REPUBLIC VRS. PREMPEH DWAMENA II (D16/28/2023) [2024] GHAHC 76 (29 February 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE SITTING AT KOFORIDUA ON THURSDAY 29TH DAY OF FEBRUARY, 2024 BEFORE HER LADYSHIP JUSTICE GIFTY DEKYEM (MRS.) SUIT NO. D16/28/2023 THE REPUBLIC VS NANA OSEI AGYEMANG PREMPEH DWAMENA II EX PARTE: ABUSUAPANIN KWABENA FRIMPONG PARTIES: Present COUNSEL: Frank Nkansah ESQ. holding brief of Martin O. Amoyaw Esq. for Respondent JUDGMENT The instant is in respect of motion on notice for contempt. Per the affidavit in support of the application, the Applicant filed motion on notice for an injunction to restrain the interment of the deceased defendant Opanin Amoako in Suit No. A1/06/14 titled ABUSUAPANIN KWABENA FRIMPONG v NANA OSEI AGYEMANG PREMPEH DWAMENA II (Substituted for Opanin Kofi Amoako (Deceased)). By the affidavit in support, the Applicant deposed that whilst the injunction application was pending, the Page 1 of 5 Respondent having been served with the injunction application on 19th September, 2022, on 24th September, 2022 nevertheless went ahead to do what the injunction application was seeking and preventing him to do. It is the case of the Applicant that, the Respondent’s conduct thus amounts to contempt of court as his conduct was calculated to bring the administration of the law into disrepute. Applicant attached to the motion paper the injunction application and proof of service of the same as exhibits ‘AKF 1’ and ‘AKF 2’ respectively. The Respondent concedes that he was served the motion for an injunction but the same was not directed at him. He contended that he was not a member of the Funeral Committee formed by the Agona Royal Family headed by Nana Afia Asiedua to plan the burial and funeral of the deceased Opanin Kofi Amoako. The Respondent deposed that the funeral committee included Applicant’s nephews and he was very much aware of the committee members and their activities. It is the Respondent’s case that he had nothing to do with the programme and burial of the deceased. The instant case does not fall on all fours with what constitutes contempt as enunciated in the case of the Republic v Sito Ex Parte: Fordjour [2001-2002] SCGLR 322. This case requires that there should be an order or judgment of the court in which the contemnor knows precisely what he or she is expected to do or abstain from doing and that he or she willfully disobeyed the terms of the order or judgment. In the present case, the injunction application had not been heard and determined, therefore it remained pending at the date of the conduct complained of by the Applicant. The case of Republic v Moffat; Ex Parte Allotey [1971] 2 GLR 391 held that: It is well established that any conduct which tends to bring the authority and administration of the law into disrespect or to interfere with any pending litigation is a contempt of court. So that once the respondents had become aware of the pendency of the motion before the High Court, and which motion gave them Page 2 of 5 notice in clear terms of the court's intention to inquire into the matter and to decide whether or not they should be prohibited from outdooring the said James Allotey, any conduct on their part which was likely to prejudice a fair hearing of that motion or was likely to interfere with the due administration of justice, would amount to a contempt of court, absence of an interim order for stay notwithstanding. From the foregoing, it is clear that once the Respondent had become aware of the pending motion for the injunction, any conduct of his which was likely to prejudice a fair hearing of the injunction application would amount to contempt of court. The standard of proof in contempt applications is one beyond reasonable doubt. In the Supreme Court case of Republic v Numapau; Ex Parte Ameyaw II and Others [1999-2000] 1 GLR 283 – 323, it was held that, since contempt is quasi-criminal and the punishment for it may take various forms, including a fine or an imprisonment, the standard of proof required is that of proof beyond reasonable doubt. The standard of proof required in the contempt cases is stipulated under section 13 (1) of the Evidence Act, 1975 (NRCD 323) that, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt whether in a civil or criminal action. The Applicant on whom the burden of proof lies is obligated to prove what he alleges to be the contumacious conduct of the Respondent beyond a reasonable doubt. The Respondent did not deny that he was served copy of the injunction application but contends that it was directed at the funeral committee members of which he was not a member and had no hand in the burial of the deceased. A perusal of the injunction application does not lend itself to the suggestion that the Applicant was seeking to Page 3 of 5 restrain the Respondent from interring the deceased at the royal mausoleum. The title of the motion paper reads as follows: MOTION ON NOTICE FOR AN INTERIM INJUNCTION TO RESTRAIN THE INTERMENT OF THE DECEASED DEFENDANT OPANIN AMOAKO AT THE MAUSOLEUM. The affidavit in support also stated at paragraph 7 that: That per the obituary of Opanin Kofi Amoako, it manifestly shows that it is intended by the organizers of the funeral to inter the remains of the deceased at the mausoleum (the Akan Twi dialect version called eban mu) on Saturday, 24th September 2022. To all intents and purposes the real respondents in the injunction application were the organizers of the funeral who per the obituary intended to bury the deceased at the mausoleum. The injunction application was therefore to restrain them from interring the deceased at the mausoleum. The Applicant is obligated to prove beyond a reasonable doubt that the Respondent interred the remains of the deceased or upon his instructions contrary to what the injunction application was seeking to do. The Applicant did not demonstrate by proof beyond a reasonable doubt that the Respondent had a hand in the interment of the deceased at the mausoleum. The Applicant’s testimony under cross examination that the Chief, in this case the Respondent, before the grave of a royal member is dug, has to perform his religious function of pouring libation to invoke the ancestral world without positive evidence does not relieve him of the burden of proof. The Applicant has therefore failed to discharge the burden he assumed when he alleged that the Respondent’s conduct if any amounted to contempt. The instant application thus fails and same is dismissed. Costs of GHS20,000.00. Page 4 of 5 Justice Gifty Dekyem (Mrs) Justice of the High Court Cases cited: In Re Effiduase Stool Affairs (No 2) Republic vrs Numapau, President of the National House of Chiefs and others, Ex-parte Ameyaw II No. 2 [1998 -99] SCGLR 639 Republic v Moffat; Ex parte Allotey [1971] 2 GLR 391-403 Page 5 of 5