REPUBLIC vs. HIGH COURT, ACCRA; EX PARTE LARYEA MENSAH [1997-1998] 2 GLR 1002

CASES REFERRED TO

(1) Banga v Djanie [1988-89] 1 GLR 510, CA.

(2) Ampaabeng v Edwey IX [1991] 1 GLR 169, CA.

(3) Agbleta v The Republic [1977] 1 GLR 445, CA.

(4) Kangah v Kyereh [1979] GLR 458.

(5) R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338; [1952] 1 TLR 161; [1952] 1 All ER 122, CA affirming [1951] 1 KB 711; [1951] 1 TLR 270; [1951] 1 All ER 268.

(6) R v Birmingham Compensation Appeal Tribunal of Ministry of Labour and National Service; Ex parte Road Haulage Executive [1952] 2 All ER 100.

[p.1005] of [1997-1998] 2 GLR 1002

(7) Republic v James Town Circuit Court Judge; Ex parte Annor [1978] GLR 453.

(8) Republic v High Court, Accra; Ex parte Ploetner [1984-86] 2 GLR 107, SC.

APPLICATION for certiorari to quash the ruling of the High Court, Accra delivered on 30 July 1997, convicting the applicant for contempt of court. The facts are fully set out in the judgment of Bamford-Addo JSC.

Robert Kpatsa (holding the brief of Sam Okudzeto) for the applicant.

Ben Annan for the respondent.

Bamford-Addo JSC. Delivered the ruling of the court. This is an application for certiorari by the applicant, Seth Laryea Mensah, to quash the ruling of the High Court, Accra, dated 30 July 1997, delivered by Gyamera-Tawiah J, convicting the applicant for contempt of court. The applicant was bonded over to be of good behaviour for one year or in default six months’ imprisonment with hard labour. In addition, he was fined ¢1 million and costs of ¢300,000 was also imposed on him. The ruling complained of, formed part of the record of the court proceedings and contains reasons for the decision reached by the said High Court in the contempt case. The grounds for the application for certiorari are that:

“(1) His lordship, Mr Justice Gyamera-Tawiah, sitting at the High Court, Accra acted per incuriam and fell foul of the law when he convicted the applicant for contempt of court and sentenced him to a fine of ¢1 million and costs of ¢300,000 and in effect prohibited the applicant from describing himself as head of the Ashong Mlitse/Arku Family, when he refused to be bound by a judgment of the Court of Appeal in a case in which the applicant was substituted as the second defendant of the Ashong Mlitse/Arku family of Teshie Odaiteitse We and which said judgment went in favour of the applicant, family’s long and undisturbed occupation and oversight over the Ajiringano lands.

(2) The applicant had not wilfully disobeyed any order of the High Court prohibiting him from styling himself as Head of the Ashong Mlihtse/Arku family or prohibiting the said

[p.1006] of [1997-1998] 2 GLR 1002 family from laying claim to Ajirigano lands. Hence his conviction for contempt is bereft of any substance and baseless in the law of contempt.”

The facts of this case are that some time in 1969, the head of the Samuel Ivory Djanie family of Teshie sued one Odai Banga, the Onukpa of a Teshie rural village and a member of the Ashong Mlitse/Arku family and caretaker of the Ajiringano lands, as the first defendant and one Ebenezer Akpor Mensah as the second defendant; and later one JS Laryea was joined as the co-defendant. Based upon the claim and evidence adduced at that trial, the Court of Appeal on 26 April 1987, in its judgment reported in [I 988-89] 1 GLR 510, gave judgment in favour of the defendants, namely the applicant herein and his family. The Court of Appeal in the relevant part of the said judgment found as follows: “What are the accepted facts in favour of the defendants in this suit? These are that ancestors of the first defendant lived and settled on the land in dispute. These ancestors were one Ashong Militse, Nii Arku and Nortey. The evidence that the defendants and their ancestors lived on the Ajiringano lands was not disputed by the plaintiff.”

According to the Court of Appeal, the plaintiff, whose root of title was hotly challenged and disputed, failed to lead evidence to establish her title. It found that the evidence that the ancestors of the defendants, namely, Ashong Mlitse, Nii Arku and Nortey, had founded and been in undisputed possession of Ajiringano lands and had granted portions of the land to other persons, remained unshaken, and that the defendant-appellants in that suit were entitled to judgment. The applicant herein was substituted as the second defendant in that land case, and he later became the head of the Ashong Mlitse/Arku family of Teshie Odaiteitse We.

In October 1994 Odai Banga, the Onukpa of Ajiringano village and caretaker of the lands, died. His body was deposited at the mortuary by one of his nephews, by name Wilson Tetteh, and subsequently handed over to the respondents in the instant proceedings herein for burial, without notifying the family of the applicant and the elders. The applicant and his elders thereupon instituted suit No Misc 1693/94 (hereinafter referred to as the Corpse Case) for a declaration that his family was the rightful family ertlt1Lntitled to perform the funeral of the deceased since that

[p.1007] of [1997-1998] 2 GLR 1002 family was the immediate family of the deceased according to Teshie custom. The Corpse Case was started by a writ of summons issued by the plaintiffs including the applicant herein, against the defendants claiming:

“(a) a declaration that on the death of Nii Odai Banga, a member of the Ashong Mlitse/!Arku family, the plaintiffs by Teshie custom and usages, are the accredited elders to exercise control over his dead body and to perform his funeral;

(b) an order of perpetual injunction restraining the defendants, their servants, agents and assigns from either per forming and/! or interfering with the plaintiffs’ rights to perform the said funeral;

(c) general damages for malicious and intentional trespass and/or interference with the plaintiffs’ possession and control of the body.”

In the judgment of the Corpse Case, dated 26 July 1996, the trial judge, Afreh JA, made certain relevant findings, and referred to the Court of Appeal’s decision in the land case and stated as follows: “… It is not disputed that a long time ago, probably more than two hundred years ago, there was an Asafoatse of Odaiteitse We family of Teshie called Ashong Mlitse. Iit seems from evidence given by the deceased and Joseph Sowah Laryea, a co-defendant in the case entitled: Madam Emily Kai Djanie v Odai Banga and JS Laryea— – tendered in evidence as exhibit A – —that he founded Ajiringano whose original name was Mlitseman.”

He then went on to make the following findings:

“In my opinion, the plaintiffs have failed to discharge the burden of proving that there is a family distinct from Odaiteitse family, called Ashong Mlitse which is entitled to the possession of the dead body of Nee Odai Banga. Rather, the evidence adduced in this court overwhelmingly supported the contention of the defendants that there is no family called the Ashong Mlitse We family . . . Whatever name the plaintiffs may choose to call their immediate family or sub lineage, that family and the defendants, as well as Nii Oai Banga and his 1rnimmediate family are all members of a larger

[p.1008] of [1997-1998] 2 GLR 1002 family of the Krobo Quarter of Teshie. The whole of this larger or extended family are entitled to participate in the funeral ceremonies of Nii Odai Banga in accordance with the customary law of this country including the Gas of Teshie.”

The learned trial judge then proceeded to give judgment againsti the plaintiffs therein because, in the opinion of the court, the plaintiffs had failed to prove that there was a family called Ashon Mlitse/ Arku which was entitled to the possession of the dead body of Nii Odai Banga. The final order of the court in the case was as follows:

“The plaintiffs’ action is dismissed. The burial and funeral of Nii Odai Banga should proceed in accordance with the arrangements agreed upon by the Odaiteitse We family before the plaintiffs brought thiIs action subject to such changes as the family may deem necessary having regard to the fact that the deceased died nearly two years ago. I appeal to the head of the Krobo Quarter and Acting Teshie Mantse to take all necessary steps to ensure that Nii Odai Banga is given a fitting burial by doing all that he can to promote and effect reconciliation among members of the Odaiteitse We family.”

This order of the court was carried out and the deceased was subsequently buried as ordered.

Apart from this stated order, the court made no other orders directed at the applicant herein and did not prohibit him from calling his family the Ashong Mlitse family. Neither the findings nor the said order of the court can, in my opinion, be properly interpreted as prohibiting the applicant from referring to his family as the Ashong Mlitse family, nor was this relief even sought by the defendants in the Corpse Case.

As stated earlier, the Court of Appeal in the land case entitled: Madam Emily Kai Djanie (substituted by Divine Justice Nikoi Djanie) and Evelyn Archer v Odai Banga, Ebenezer Akpoh Mensah (substituted by Seth Laryea Mensah) found that the defendants’ family in that case, i.e. the applicant herein’s ancestors, had lived and settled on the land in dispute and that those ancestors were Ashong Militse, Nii Arku and Nortey. In the words of the Court of Appeal: “Since the plaintiff failed to lead any evidence to show that her ancestors had been in occupation of any portions of Ajirigano lands, the plaintiff was not entitled to

[p.1009] of [1997-1998] 2 GLR 1002 judgment.” In other words, the present applicant’s family won the land case. The Court of Appeal’s decision has not been reversed on appeal and remains the final binding decision on the said land case.

After the judgment in suit No 1693/94, described as the Corpse Case, one Wilson Kojo Tetteh challenged the right of Ashong Militse/Arku Family over the Ajiringano lands as found by the Court of Appeal— – relying as his authority on the judgment in the Corpse Case. In a publication in the Ghanaian Voice of 3– 5 February 1997, the applicants in the contempt case stated among others as follows:

“The Odaiteitse We Family will want the general public to take cognisance of the fact that there is no Ashong Mlitse Family of Odaiteitse We. There is only one Odaiteitse We family of Teshie and Ajiringano and this position has been confirmed by the High Court judgment of 26 July 1996 in the case of Seth Laiyea Mensah v Barnmey Afotey Samson & Others in suit No 1693/94. The head of Odaiteitse We Family is Nurnmo Barnmey Afotey Sarnmson. Wilson Tetteh Banga succeeds his uncle, the late Nii Odai Banga, as the Ajiringano Mantse or Onukpa. The Ajiringano Lands are vested in Odaiteitse We Family and only Wilson Tetteh Banga, acting Ajiringano Mantse (awaiting custornmalry ceremonies) and Numo Barnmey Afotey Samson have power to convey the said lands.”

(The emphasis is mine.) This statement was false and a wrong interpretation of the High Court judgment relied on by the said applicants, since Afreh JA did not decide the ownership of Ajiringano lands, but only the family entitled to bury the corpse of Nii Odai Banga. In fact, the judgment in the Corpse Case said nothing about ownership of the Ajiringano lands, nor did it vest any title thereof in Wilson Tetteh or Odaiteitse We family as claimed in the advert. This claim, in any case, is also contrary to the decision of the Court of Appeal that the Ashong Militse family, i.e. the family of the present applicant, owned the Ajiringano lands. It was to correct the wrong impression created by the defendants in the Corpse Case, as contained in their stated advert in the publication of 3-5 February 1997, that the applicant herein, Seth Laryea Mensah, in his capacity as head of Ashong

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Militse family, issued a rejoinder in The Daily Graphic newspaper of 15 March 1997 stating, inter alia, that:

“Seth Laryea Mensah and his elders wish to inform the general public to disregard the said publication as false and calculated to mislead the general public . The Odaiteitse We has never owned Ajiringano lands. In civil appeal No 9/87, which adjudged Adjiringano Lands in favour of Ashong Mlitse Family of Teshie Odaiteitse We, the contest was between Emilia Kai Djanie and the elders of Ashong Mlitse/Nii Arku Family. The Odaiteitse We were never parties to that suit.”

The said publications by the applicant are the acts which the applicants in the contempt case claimed amounted to contempt of the order of Afreh JA in the Corpse Case and for which the applicant was convicted and sentenced for contempt by the High Court presided over by Gyamera-Tawiah J.

The reasons for the contempt were contained in the record and this is what is sought to be quashed by certiorari for error on the face of the record. What is the error patent on the face of the record? On the facts and in the circumstances of this case, can it be said that the applicant disobeyed the final order of Afreh JA in the Corpse Case when he published in the newspapers adverts for the purpose of asserting his family’s, i.e. Ashong/Mlitse family’s entitlement to the Ajiringano lands as decided by the Court of Appeal? The Court of Appeal’s decision is clearly what the applicant was relying on in his said adverts and not the decision in the Corpse Case.

The trial judge in the contempt case stated: “What is the conduct of the respondent calculated to bring? In my view, these publications are a clear violation of the findings of fact made by the learned judge in his judgment.” As I see it, the said judge was confusing findings of fact with specific orders of court meant to be obeyed. These findings of fact were made by Afreh JA in coming to the conclusion that the plaintiffs in the Corpse Case were not the family solely entitled to the burial of the dead body of Nii Odai Banga but that it was the larger family of Odaiteitse We of Teshie, which includes the applicants’ family, which was entitled to participate in the funeral ceremonies of Nii Odai Banga in accordance with customary law of the Gas of Teshie. It is the final “order” of the court, i.e. the enforceable order, which should be

[p.1011] of [1997-1998] 2 GLR 1002 considered in deciding whether contempt had been committed or not. Therefore for the acts of the applicant to amount to contempt of court, he must be found to have been guilty of wilful disobedience or to have wilfully violated the court’s specific order.

What then was the order of court which was wilfully disobeyed’? The order of Afreh JA was: “The plaintiffs’ action is dismissed. The burial and funeral of Nii Odai Banga should proceed in accordance with the arrangements agreed upon by the Odaiteitse We family before the plaintiffs brought this action, subject to such changes as the family may deem necessary having regard to the fact that the deceased died nearly two years ago.”

This is the final specific order made to the whole family of Odaiteitse We, which, if wilfully disobeyed or disregarded, would have amounted to contempt. But the order was carried out when the body of Nii Odai Banga was buried by the larger family. The court order having been discharged, there was no other order on record made by the court against the applicant, nor was there an injunction preventing him from referring to his family as Ashong/Mlitse. In fact, the applicant, Seth Laryea Mensah’s reference to his family as the Nii Ashong Mlitse (Nii Arku) family of Teshie Odaiteitse We appears to be in conformity with the finding of Afreh JA that the applicant’s family, by whatever name they called themselves, were part of the larger family of Odaiteitse We of Teshie. Therefore, there being no injunction order against the applicant, he cannot be said to have disobeyed wilfully a non existent order as found by Gyamera-Tawiah J, who erred in his judgment when he stated that: “Such a behaviour would really be a total disregard for the authority of the court and likely to lead to a breakdown of law and order.”

1Further, on the face of the record, there was absolutely no evidence of the relevant criminal intention supporting thec applicant’s conviction for contempt in view of the absence of a prohibition order, and also in view of his reasons for thec publication of his advertisement, namely, to protect his family’s interest in the Ajiringano lands. Consequently, he cannot be said to have wilfully disobeyed the court’s only order which had already been discharged, and his conviction was wrong in law.

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Another error committed by the trial judge in the contempt case is that he appears to have disregarded the legal principle of judicial precedent which says that lower courts are bound by decision of higher courts. According to article 136 (5) of the Constitution, 1992 the previous decisions of the Court of Appeal are binding on lower courts which they have to follow. Yet, the said High Court judge, contrary to this rule, stated that:

“The fact that the publications all seek to assert ownership of Ajiringano lands is neither here nor there. The act complained of is that despite the judgment, the respondent has asserted that there exists a Nii Ashong Mlitse Family at Teshie Odaiteitse We of which he is the head.”

The judge then concluded by referring to the judgment of Afreh JA in the Corpse Case that: “If before the said judgment, the respondent was being referred to as head of the Ashong/Mlitse family of Teshie Odaiteitse We, the said judgment has come to put a stop (albeit, temporarily, i.e. pending appeal) to that.”

This is a wrong assertion because, in fact, the applicant was relying on the Court of Appeal’s decision, which is binding on the High Court, to the effect that the Ashong Mlitse family are owners of Ajiringano lands and, no High Court decision can “put a stop” to the binding decision of the Court of Appeal. Therefore, Gyamera-Tawiah J’s statement that the High Court decision “has come to put a stop” to the decision of the Court of Appeal is an error apparent on the face of the record. In the case of Ampaabeng v Edwey lIX [ 19911] 1 GLR 169 at 181, CA it was held that:

“The High Court is inferior to the Court of Appeal and is accordingly under the provisions of the said article 121 (3) of the Constitution, 1979 bound to follow the decision of the Court of Appeal on questions of law. An injunction order of the Court of Appeal is a declaration of a legal position and all courts inferior to the Court of Appeal are bound by such a decision.”

We only have to substitute article 136 (5) of the Constitution, 1992 for article 121 (3) of the Constitution, 1979.

Now, we come to the legal meaning of contempt. Contempt according to Halisbury ‘’s Laws of England(ed), Vol 8, para 46, is

[p.1013] of [1997-1998] 2 GLR 1002 disobedience to a “judgment or order of a court requiring one to do any act other than payment of money, or to abstain from doing anything . . .” In Oswald’s Contempt of Court (3rd ed) at p 6 it is also stated that: “To speak generally, contempt of court may be said to be constituted by any conduct that tends to bring the authonrity and administration of the law into disrespect or to disregard or to interfere with or prejudice parties, litigants or their witnesses during the litigation.”

By definition, a person commits contempt and may be committed to prison for wilfully disobeying an order of court requiring him to do any act other than the payment of money or to abstain from doing some act; and the order sought to be enforced should be unambiguous and must be clearly understood by the parties concerned. The reason is that a court will only punish as contempt a wilful breach of a clear court order requiring obedience to its performance. Therefore, disobedience which is found not to be wilful cannot be punished: see Agbleta v The Republic [1977] 1 GLR 445 at 447, CA, wherein Azu Crabbe CJ stated that:

“It seems to follow from the authorities that wilful disobedience of the order of the court must be established before a person can be held to be guilty of contempt. With all due respect to the learned judge, this court thinks that it is onec thing to find unsatisfactory the appellant’s explanation of his conduct, and quite another to infer wilful defiance from his conduct.”

Reference may also be made to the case of Kangah v Kyere [1979] GLR 458. In that case, an application for a committal orderi for contempt of court was sought against the respondents since, according to the applicant, the respondents had violated the court’ s order. The acts complained of were, inter alia, that the third respondent had held himself out publicly as omanhene occupying the omanhene palace despite an order restraining the first and second respondents from enstooling the third respondent as omanhene. There was no further prohibitive order made againsit the third respondent from doing anything or holding himself out as the omanhene. It was held, dismissing the application (as stated in the headnote at p 458), that:

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“. . . to obtain a committal order for contempt, the applicant must strictly prove beyond all reasonable doubt that the respondents had wilfully disobeyed and violated the court ’s order. Since the order had only restrained the first and second respondents from enstooling the third respondent as an omanhene, there must be evidence of actual installation or full preparation towards installation or direct attempts by the respondents to enstool the third respondent as omanhene. In the absence of such evidence, the respondents could not be guilty of contempt.”

In the present case, there was no prohibition order that the applicant should not call his family the Ashong/Mlitse family, nor was there anything in the judgment of Afreh JA in the Corpse Case capable of being so interpreted; and, consequently, the applicant cannot be convicted for contempt for wilfully disobeying or disregarding a non-existent cQourt order.

This leads me to the final question, namely whether certioranri lies in the circumstances of this case. The answer is in the positive. Certiorari lies to quash a decision of a lower court or tribunal where, upon the face of the proceedings themselves, it is clear that the determination of that tribunal is wrong in law. The case of R v i’JNorthumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 at 352, CA decided that an order for certioranri can be granted in respect of the decision of an inferior court on the ground of error of law on the face of the record. The record is the document which initiates the proceedings, the pleadings, if any,; and the adjudication but not the evidence nor the reasons, unless the tribunal chooses to incorporate them. As stated by Denning LJU in Ex parte Shaw (supra) at 352: “The record had also to set out the adjudication, but was never necessary to set out the reasons . . . nor the evidence save in the case of convictions… I think the record must contain at least the document which initiates the proceedings,; the pleadings, if any, and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision.”

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If therefore a tribunal, in its judgment, gives reasons for its decision, its order becomes “a speaking order” and the court will consider whether those reasons are right in law. Likewise, where evidence is set out in a conviction and the superior court is of opinion that there was no evidence proper to be considered in support of some point material to the conviction or order, certiorari will be granted to prevent an injustice being done: see R v Birmingham Compensation Appeal Tribunal of Ministry of Labour and National Service; Ex parte Road Haulage Executive [1952] 2 All ER 100.

In the case of Republic v James Town Circuit Court Judge; Ex parte Annor [1978] GLR 453, it was held, as stated in the headnote, that:

“(1) since the circuit court stated upon the face of its order, by way of recital, what the facts were and the grounds of its decision were such as were so stated, then the order was, upon the face of it, a speaking order. Certiorari lay to quash a speaking order where an error of law patent on the record was disclosed. Dicta of Lord Cairns LC in Walsall Overseers v London and North Western Rail Co [1878] 4 App Cas 30 at 40, HL applied. R v Nat Bell Liquors Ltd [1922] 2 AC 128, PC; R v Northumberland Land Compensation Appeal Tribunal; Ex parte Shaw [1951] 11 KB 711, DC and Republic v James Town Circuit Judge; Ex parte Whiteside [1977) 1 GLR 99 cited.”

This case was applied in the case of Republic v High Court, Accra; Ex parte Ploetner [1984-86] 2 GLR 107, SC where it was stated in the headnote at that:

“(1) where a court made a speaking order, i.e. one in which the grounds and reasons therefor were adequately and clearly stated, and the said grounds were found to be patenti)ly erroneous in law on the face of the record, a superior court ought to quash the order on certiorari. By the mere attachment of exhibit BPC to his affidavit, there was no admission by IP of the content of the statement of claim.

In the result, there was no proof of any kind of the bankruptcy of the defendant because there was no evidence on which the court could come to a decision that the defendant, P, had been adjudged bankrupt. In so fundamentally misconstruing the purport of

[p.1016] of [1997-1998] 2 GLR 1002 exhibit BPC, the learned judge committed an error of law. Since that error was apparent on the face of the record, the application for certiorari would be granted. Republic v James Town Circuit Court Judge; Ex parte Annor [1978] 1 GLR 453 applied.”

The above quoted cases show that errors of law patent on the face of the record would be quashed by certiorari.

In this case, where there is no prohibition order of court or any other order against the applicant and no evidence at all of a wilful breach of such an existent order, a conviction of contempt wouldk amount to a patent error in law on the face of the record and consequently certiorari would lie to quash the decision of the Higih Court presided over by Gyamera-Tawiah J, dated 30 July 1997, convicting and sentencing the applicant for contempt.

In the result the application succeeds and is allowed.

Application granted.

SA