REPUBLIC vs. NUMAPAU; EX PARTE AMEYAW II AND OTHERS [1999-2000] 1 GLR 283

CASES REFERRED TO

(1) Republic v Moffat; Ex parte Allotey [1971] 2 GLR 391.

(2) Republic v Mensa-Bonsu [1995-96] 1 GLR 375, SC.

(3) Republic v Nkansah, Supreme Court, Accra, 28 November 1995, unreported.

(4) Fosuhene v Akore II [1992-93] 1 GLR 181, SC.

(5) Republic v Totobi-Quakyi, Supreme Court, Accra, 26 July 1994, unreported.

(6) Attorney-General v Times Newspapers Ltd [1974] AC 273; [1973] 3 WLR 298; [1973] 3 All ER 54, HL; reversing [1973] 1 QB 710; [1973] 2 WLR 453; [1973] 1 All ER. 815, CA.

(7) Bramblevale, Re [1970] Ch 128; [1969] 3 WLR 699; [1969] 3 All ER 1062, CA. (8) Heaton’s Transport (St Helens) v Transport and General Workers’ Union; Craddock Brothers v Same; Panalpina Services v Same [1973] AC 15; [1972] 3 WLR 431; [1972] 2 All ER 101, HL; reversing [19721 2 WLR 73; [1972] 2 All ER 1214,CA.

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

(10) Attorney-General v Blomfield, Attorney-General v Geddis [ 1913] NZLR 545. (11) Narh v Dombo, Court of Appeal, 23 March 1970, unreported.

(12) Republic v Omanhene of Ahanta Traditional Area; Ex parte Korkor [1983-83] GLR 1154. (13) Republic v Kwaframoah; Ex parte Fosuhene, High Court, Kumasi, 4 May 1989, unreported (14) Republic v High Court, Kumasi; Ex parte Fosuhene [1989-90] 2 GLR 315, SC. (15) Republic v Liberty Press [1968] GLR 123.

(16) Practice Direction (Practice and Procedure of the Supreme Court) [1981] GLR 1, SC. (17) Enimil v Tuakyi (1952) 14 WACA 1.

[p.287] of [1999-2000] 1 GLR 283 (18) Rv Weisz; Exparte Macdonald (Hector) [1951] 2 KB 611: [1951] 2 All ER 408; [1951] 2 TLR 337, DC.

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

(20) Luguterah v Northern Engineering Co Ltd [1980] GLR 62.

(21) Tyre Manufacturers’ Conference Ltd’s Agreement, Re [1966] 2 All ER 849; [1966] 1 WLR 1137;

110 Sol Jo 483.

(22) Messenger Newspapers Group Ltd v National Graphical Association [1984] 1 All ER 293, CA. (23) Worthington v Ad-Lib Club Ltd [1965] Ch 236; [1964] 3 WLR 1094;[1964] 3 All 674 (24) Kyereh v Kangah [1978] GLR 83, CA (full bench).

(25) Nyamekye v Tawiah [1979] GLR 265, CA (full bench).

(26) Republic v High Court, Accra; Ex parte Laryea Mensah [1998-99] SCGLR 357. (27) Jelson (Estates) Ltd v Harvey [1984] 1 All ER 12, CA.

(28) Comet Construction Co Ltd v Ghana Commercial Bank, Tema (Garnishee) [1976] 2 GLR 220, CA. (29) Izoura v R (1953) 13 WACA 313, PC.

NATURE OF PROCEEDINGS

APPLICATION by the applicant, Nana Adu Ameyaw, claiming to be the Effiduasehene, for attachment or committal or both against the respondents, the president of the National House of Chiefs (NHC), members of the research committee, the registrar of the NHC and Nana Osei Worae II, another claimant to the status of Effiduasehene, for their actions in entering the name of Nana Osei Worae II in the National Register of Chiefs as Effiduasehene at a time when a suit by Nana Osei Worae II against the applicant over the rightful occupant of the stool of Effiduase was pending before the Mampong Traditional Council. The facts are sufficiently set out in the judgment of Acquah JSC.

COUNSEL

C K Agbanu for the applicant.

Nana Adjei Ampofo for the first to fifth and seventh to fifteenth respondents.

S Kwame Tetteh (with him Anthony Forson, Jnr) for the sixteenth respondent.

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JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC.

Nana Adu Ameyaw II is the chief of Effiduase within the Asante Mampong Traditional Area and one time acting president of its traditional council. By a motion on notice, Nana, as the applicant prays this court for: “ an order of attachment or committal for contempt or both against the respondents herein.” The applicant’s ground for the application is that the respondents have shown “utter disrespect” to two of the superior courts—namely, the High Court and the Supreme Court. In amplification of his complaint from his affidavit in support of his application, I deduce that the applicant was complaining against conduct exhibited by the respondents which “interferes with the administration of justice or impedes or perverts the course of justice.”

In his supporting affidavit, the applicant avers that the genesis of the present litigation commences from February 1979, when in the applicant’s view, the sixteenth respondent “fraudulently got himself nominated, elected and installed as the Effiduasehene.” The landmarks in the following litigation were a ruling by Ampiah J (as he then was) sitting in the High Court, Kumasi dated 6 October 1981; The order of Amua-Sekyi (as he then was) also sitting in the High Court, Kumasi, and the ruling of Okyere J sitting in the High Court, Kumasi, and dated 11 April 1988. The third of these rulings is relied on by the respondents as having cleared the decks for the restoration of the name of the sixteenth respondent to the national register of chiefs which had previously been expunged on the order of Amua-Sekyi J (as he then was). The applicant avers that when the sixteenth respondent was ipso facto removed from the Effiduase Stool, Nana Konadu Yiadumsic(1) I, queenmother was installed the caretaker, and later the chief in her own right, of the Effiduase stool. Nana Kunadu Yiadom I having subsequently abdicated, the applicant Nana Adu Ameyaw was installed chief of Effiduase in accordance with custom. In paragraph (14) of his affidavit the applicant avers:

“That by Notice No 18 in the Ghana Local Government Bulletin of Friday, 25 October 1991 I was recognised as having been installed Effiduasehene.”

The applicant contended that in civil motion No 80/94 this court had ordered the abusuapanin of the sixteenth respondent’s family to perform all customary rites to the applicant before burying the Benkumhene of Effiduase who is the uncle of the sixteenth res-

[p.289] of [1999-2000] 1 GLR 283 pondent. That on the refusal of the said abusuapanin to perform the customary rites, he (the abusuapanin) suffered a month’s imprisonment for contempt of court. The applicant further averred that: “On 7 March 1997 the sixteenth respondent filed in the judicial committee of the Mampong Traditional Council a petition dated 5 March 1997 against me in which he asked, inter alia, for relief that he is the customary and lawfully properly elected, enstooled and registered incumbent Effiduasehene and the nifahene of the Mampong Traditional Area.”

(The emphasis is mine.)

The applicant further averred that on 13 August 1997 while the sixteenth respondent’s petition was pending before the judicial committee of the Mampong Traditional Council, the sixteenth respondent submitted another petition to the National House of Chiefs asking for his name to be re-entered into the National Register of Chiefs. This petition was referred to Nana Kunadu Yiadom for her comments. Nana Kunadu Yiadom I made her comments and warned nananom that:

“the sixteenth respondent was not only committing trouble for himself but for nanaanom as well as asking them to interfere with an act done on the order of a High Court judge and under, the PNDCL 10.”

Nananom, it seems, disregarded the warning to consider the petition, granted his prayer and re-inserted his name into the National Register of Chiefs. Of the first respondent, the applicant averred: “That the first respondent is the President of the National House of Chiefs. The petition of the sixteenth respondent asking that his name be re-entered in the national register as well as the comments of Nana Abena Kunadu Yiadom I thereon were handed to him. He therefore:

(a) knew that Amua-Sekyi J (as he then was) had ordered that name of the sixteenth respondent should be deleted from the national register of chiefs; and

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(b) knew that the registrar of the National House of Chiefs had acted on the order of Amua-Sekyi J (as he then was) and had struck out the name of the sixteenth respondent from the national register of chiefs.

Yet he accepted the petition, dealt with it and instructed the registrar of the house to re-enter the name of the sixteenth respondent in the national register. He has by his conduct shown utter disrespect to the High Court, Kumasi, and should be punished for contempt.”

The applicant charged the sixteenth respondent that:

“the sixteenth respondent knew at the time he presented his petition that I was the incumbent chief of Effiduase because:

(a) He had not appealed against the order made by Amua-Sekyi J (as he then was) that his name be deleted from the from the national register.

(b) He knew that the registrar of the National House of Chiefs, acting on the order of Amua-Sekyi J (as he then was), had struck out his name from the national register.

(c) He knew that the PNDC Government had recognised me as having been installed Effiduasehene.

(d) The abuasuapanin of his family had been asked by the Supreme Court to perform custom to me as Effiduasehene before he buried the Benkumhene of Effiduase, his uncle.”

The applicant therefore averred that the sixteenth respondent had exhibited utter disregard and gross contempt to the two superior courts. Of the thirteenth, fourteenth and fifteenth respondents the appellant averred:

“The sixteenth respondent knew at the time he presented his petition that I was the incumbent chief of Effiduase because:

(a) He had not appealed against the order made by Amua-Sekyi J that his name be deleted from the National Register of Chiefs.

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(b) He knew that the registrar of the National House of Chiefs, acting on the order of Amua-Sekyi J, had struck out his name from the register.

(c) He knew that the PNDC Government had recognised me as having been installed Effiduasehene.

(d) The abusuapanin of his family had been asked by the Supreme Court to perform custom to me as Effiduasehene before he buried the Benkumhene of Effiduase, his uncle.

By disregarding all the above and petitioning that his name should be re-entered in the national register, the sixteenth respondent has shown utter disrespect to the High Court, Kumasi, as well as the Supreme Court and should be punished for contempt.

The thirteenth respondent attended the meeting of the research committee and advised the second to eleventh respondents to re-enter the name of the sixteenth respondent in the national register. The fourteenth respondent attended the meetings and recorded the proceedings and the fifteenth respondent’s name in the National Register of Chiefs.”

The first to fifteenth respondents characteristically made one presentation of a defence. The affidavits in opposition filed by the first and seventh respondents were representative of the stand which the respondents took. In the view of the first to fifteenth respondents the research committee had violated no orders of any court: That there was nothing in that judgment or order which said the committee could not “re-enter” any chief’s name in the National Register of Chiefs. That some of their members were absent at the meeting and therefore could not be guilty of contempt and generally that the respondents “sincerely say that they could not have shown disrespect if their understanding of the effect and meaning of the decision of Okyere J was wrong” but which they deny.

It is important to note that the first respondent even though by his own subsequent admission was not a member of the research committee, spoke for the entire membership of that committee and forgot to answer the specific charge against him that it was he to whom the sixteenth respondent’s petition for the reinstatement of

[p.292] of [1999-2000] 1 GLR 283 his name in the register had been handed and that he set the whole contempt process in motion. The affidavit of the fifteenth respondent reveals that:

“That in the performance of my duty as the acting registrar of the National House of Chiefs I received a petition from the sixteenth respondent asking that his name be re-entered in the national register of chiefs. That I duly put the petition before the research committee of the house for its consideration. That after discussion the committee decided that the application should be granted. That as acting registrar I re-entered the name pursuant to the decision of nananom and in accordance with our practice.”

The respondents, it seemed, set great store in Okyere J’s decision when he held that the matter before him was “a cause or matter affecting chieftaincy” and so he had no jurisdiction to entertain the application before him to commit Nana Kunadu Yiadom for contempt. The respondents, in ignorance, assumed that by so declaring that he had no jurisdiction, other judgments and orders of courts of co-ordinate jurisdiction were automatically vacated.

With the greatest respect to the respondents, Okyere J’s ruling reveals no such situation. On 11 April 1988, his lordship stated in the final paragraph of his ruling:

“I am satisfied on the evidence that the order of Ampiah J (as he then was) of 16 october 1981, did not restrain the first respondent from being installed as chief. On 24 February 1982, the applicant published to the whole world that he had abdicated as the Afigyaasehene. Therefore nothing prevented the elders of Afigyaase from filling the vacancy. I have already held that this suit is a purely chieftaincy matter and the order of Ampiah J (as he then was) was made without jurisdiction. Consequently, it is my view that the application to have the respondents attached for contempt will be a fruitless exercise. I uphold the objection and dismiss the application by the applicant, David Osei Amankwah.”

The final paragraph of Okyere J’s ruling quoted above was pregnant with meaning. Instead of purporting to cancel or reverse the

[p.293] of [1999-2000] 1 GLR 283 order of Ampiah J (as he then was) as asserted by the respondents, it rather gave more recognition to the public abdication of the sixteenth respondent. As his lordship said: “On 21 February 1982, the applicant (ie the sixteenth respondent) published to the whole world that he had abdicated as the Affigyasehe.sic(2)” Amua-Sekyi J (as he then was) had ordered the name of the co-respondent to be struck off the National Register of Chiefs. That order remains in force as it was never appealed. According to Okyere J, the order of Ampiah (as he then was) had lapsed because the sixteenth respondent had abdicated and: “Therefore nothing prevented the elders of Affigyase from filling the vacancy.”

The order of Ampiah J (as he then was) lapsed and the only extant order is the order of Amua-Sekyi J (as he then was) and remains of full force and effect until it is vacated by the order of a court of competent jurisdiction. Upon this premise, it was not open to the research committee even to consider putting the sixteenth respondent’s name on the National Register of Chiefs back without evidence of a court of competent jurisdiction that Amua-Sekyi J (as he then was)’s order had been discharged. I therefore understand the complaint against the conduct of the sixteenth respondent as unsurmountable hurdles in his path to the stool of Effiduase. He nevertheless presented a petition to the National House of Chiefs to have his name re-entered in the register. Interestingly, the sixteenth respondent has not answered any of the complaints against him. He has not ascribed any reasons for his conduct. He has proceeded on the erroneous and misguided view he has taken of Okyere J’s ruling.

It was averred by the applicant that when the sixteenth respondent presented his petition (which the research committee knew was in proper form) the petition was referred to Nana Kunadu Yiadom. She reacted to the petition and pointed out, inter alia, by a letter from her solicitors:

“A search conducted by our client has revealed that the recognition of Na Pucure Pocbe Chir VII (Nandom-Na), Paramount Chief of Nandom and vice president of the National House of Chiefs was given by the PNDC under PNDCL 107. As in the case of Nana Adu Ameyaw II, his installation is protected by article 299 of the Constitution, 1992. Nananom cannot therefore interfere with it.”

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It cannot therefore be true if the research committee swears that it examined the sixteenth respondent’s claims and there being nothing amiss with his qualifications, it decided to re-enter his name on the register.

I have already said that the sixteenth respondent’s petition was wrongly framed. It was not presented with candor. It failed to disclose that a petition was pending before the judicial committee of the Ashanti Mampong Traditional Council and the applicant was the respondent and he was claiming, inter alia, to be the “incumbent” chief. If by this informal means he managed to get his name back on the register, that would be prima facie evidence of his chiefship and enable him to steal a march on the applicant in the pending petition before the Mampong Traditional Council.

The first respondent acted without authority in sending the petition directly to the research committee. As president it was the first respondent’s duty to inform the plenary of the National House of Chiefs which alone could refer any matters to any of its committees. The conduct of the research committee was ultra vires their regulations. For the sake of regularity I set down the relevant regulation:

“(i) The research committee shall undertake a progressive study and conduct of research into customary laws, and traditions of the various ethnic groups in the country in respect of:

(a) Enstoolment/Enskinment of Chiefs.

(b) Destoolment/Deskinment and Abdication of Chiefs.

(c) Stool/Skin properties.

(d) Stool/Skin properties.

(e) Customary Oaths.

(f) Succession and inheritance and any other subjects into which it is necessary to conduct research.

(ii) The Research Committee shall study chieftaincy Declaration Forms for enstoolments, destoolments, abdications and death of chiefs submitted from the Regional House of Chiefs under section 51 (1) of the Chieftaincy Act, 1971 (Act 370) for entry in the National Register of Chiefs and then transmission to the Commissioner responsible for

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Chieftaincy Affairs for publication in the Local Government Bulletin.

(iii) The Research Committee shall on behalf of the National House of Chiefs undertake the progressive study of customary law with a view to evolving in appropriate cases a unified system of rules of customary laws, for the development of customary laws and meet once in every two (2) months.”

Their decision was therefore void and of no effect.

This state of affairs was recognised by the sixth respondent who at the meeting of the committee, voted against granting the petition. The sixth respondent in a subsequent affidavit averred that it was his intention to raise the matter at a future plenum of the whole house to have the decision of the research committee declared ultra vires. The acting registrar by-passed the house and unilaterally re-entered the name of the sixteenth respondent. The Fifteenth respondent in a later affidavit admitted his error. It therefore stands to reason that all or some of the respondents were guilty of a conspiracy to pervert the course of justice: That would be a contempt of court. This contempt on the part of the sixteenth respondent arises from his false representation of a status which he well knew he did not possess with a view to inducing the research committee to act ultra vires their duties to secure his unlawful registration in the national register of chiefs.

When the respondents appeared before us, this court pointed it out to them that since the charge of contempt, was quasi-criminal it was necessary for each respondent to answer for himself. The respondents, except the sixteenth respondent, replied that they supported the sixteenth respondent’s affidavit in opposition. As it turned out, they did not appear to have any knowledge of the contents of his affidavit. The fourteenth respondent had in his affidavit indulged in spurious legal principles which he would not have presented if he had had the benefit of advice from counsel for the National House of Chiefs whom he was constitutionally bound to consult before committing the National House of Chiefs or any member thereof. The objections of the fourteenth respondent have been addressed in this opinion. It is however trite learning that it is dangerous for a litigant or anybody affected by a judgment or order

[p.296] of [1999-2000] 1 GLR 283 of court—in particular judgments and orders of superior courts—to treat them with disdain on the ground of a feeling that the judgment or order is null and void. The authorities suggest that if the order is indeed void then the person affected will be ex debito justitiae entitled to vacate the judgment or order. The fourteenth respondent could not demonstrate that the sixteenth respondent had taken any such steps to vacate any of those orders.

Learned counsel for the sixteenth respondent takes issue on the effect of an order allegedly void and tries to distinguish the case of Republic v Moffat; Exparte Allotey [1971] 2 GLR 391 and contends that, that case is distinguishable from this application. With all respect to counsel I do not share his view of that judgment. As I have already stated, no effort or application has been made by the sixteenth respondent or any person affected by the orders of Ampiah and Amuah-Sekyi JJ (as they then were) and Okyere J. The admonitions of Abban J, (as he then was) at 400 of the report are therefore apposite. His lordship writes: “It is … important to note that unlike the orders or judgments of the inferior courts, the orders or judgments emanating from the Superior Court of Judicature cannot be presumed to be void until the contrary is proved. So that any person who wilfullysic(3) disregards or disobeys such orders does so at the risk of being brought up for contempt. It should be borne in mind that where a party genuinely feels that an order of the Superior Court of Judicature was made without jurisdiction, it is safer for the party affected to take immediate steps to have the offending order discharged or set aside, than to allow it to stand, and then treat it with contempt.”

Counsel for the sixteenth respondent again complains that: “The respondent contends that the application is irregular and an abuse of process and ought to be dismissed.” Counsel summarises some of the objections which he has raised in this application by way of defence. If I understand the true intendment of the expression “irregular and an abuse of process” it means that there is an error in procedure which has occasioned a waste of the court’s time. If so, then the objections which follow do not support his contentions. It is not correct in law that a contempt of court must necessarily relate to: “any proceeding pending in this court, neither does it complain

[p.297] of [1999-2000] 1 GLR 283 of breach of a specific prohibitory or mandatory injunction of this court.” Of course, there are other forms of contempts. In Republic v Mensa-Bonsu [1995-96] 1 GLR 377, SC this court was concerned with the contempt of scandalising the court. But in the opinions subscribed for the Mensa-Bonsu case (supra) their lordships considered the scope and limits of our contempt power. My learned and respected sister, Bamford-Addo JSC expressed herself thus at 471:

“This is the reason why the courts are given power to commit for contempt, that is to punish any acts which tend to interfere with the proper administration of justice, or which ‘scandalises’ the courts, by eroding public confidence in them or by weakening and impairing their authority. The power to commit summarily for contempt is indeed an effective but very powerful tool which must be wielded only in very clear cases. It must be noted however that it is not to be used from a tenderness of feeling or to vindicate any particular judge, it is used to protect the whole administration of justice and to keep the ‘blaze of glory’ round the courts for obvious reasons. The public must have confidence in the law and the courts, and any attempt by any one calculated to erode such confidence must be viewed very seriously and must be punished swiftly to restore the integrity of the courts which administer the law.”

In that judgment the authority by which wesic(4) act was explained. In the case of Republic v Nkansah, Supreme Court, 28 November 1995, unreported, I defined the power and authority of this court when I said:

“The power of this court to commit for contempt is granted by article 126 (2) of the Constitution, 1992. It is neither dependent on nor ancillary to any jurisdiction granted to this court by any statute or any other law. Yet again, by article 129(4) of the Constitution, 1992 this court in the determination of any matter presented before it has ‘all the powers, authority and jurisdiction vested in any court established by this Constitution or any other law’ not only to demand obedience to the court’s orders, but also vindicate its authority.”

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Counsel for the sixteenth respondent has in his presentation made some interesting submissions which, with due respect to him, do not address the issues in the application. Counsel takes a narrow view of the meaning of contempt of court and would restrict same to disobedience to court orders. I think the point is now clear that any: “conduct that tends to bring the authority and administration of the court into disrespect or disregard, and or to interfere with or prejudice parties litigant, or their witnesses” is a contempt.

One more hurdle remains to be overcome. Of the eleven members who constitute the research committee, three of them were admittedly absent. These were the fifth respondent—Okatakyie Agyeman Kudom; the tenth respondent—Togbe Adja Tekpor and the eleventh respondent—Naa Abeyifa Karbo. Of the eight remaining members of the committee it appears the sixth respondent—Nana Aboagye Agyei II—and the second respondent opposed the re-entry of the sixteenth respondent’s name in the register. The record, however, shows that of the remaining members of the committee, seven voted and the division was four to three in favour of re-entering the sixteenth respondent’s name in the register. Thus the members who took the decision were: (2) Nana Dr Puaire Puobi Chir VII, (3) Odeefuo Boa Amponsem, (4) Nene Kragboajor Awulae V, (6) Nana Aboagye Agyei II, (7) Nene Nar Dawutey Onogo V, (8) Nana Awuah Duku II and (9) NA JD Yamyia Tooka II. As I have already stated, the second and sixth respondents and one other respondent opposed the motion leaving: the third, Odeefuo Boa Amponsem; the fourth, Nene Kragboajor Awulae V; the seventh, Nene Nar Dawutey Onogo; and the eight, Nana Awuah Duku.

Now, in the case of Fosuhene v Akore, Supreme Court, Accra, 2 June 1992, unreported, this court was presented with the problems of the liability of members of a group. In the case under reference the group was the Asanteman Council, the membership of which was coterminous with the membership of the Ashanti Regional House of Chiefs. In that appeal, which concerned with the issue of bias against a group, I agreed, upon the authorities, with the principle which counsel enunciated. I wrote: “It is my view that on the principle stated [above] all the members of the Ashanti Regional House would be disqualified from adjudicating on [the appellant’s petition.]” So it is in the present application. Every member of the research committee was bound by all decisions arrived at by them—whether

[p.299] of [1999-2000] 1 GLR 283 they were present or absent. However, in the present application it is agreed that the complaint is of a quasi-criminal nature and that each member thereof should be permitted to make his own defence. This proposal came from the bench and I will apply it to this application. In the circumstances, no liability will attach to the fifth respondent, Okatakyie Agyeman Kudom; the tenth respondent, Togbe Adja Tekpor; and the eleventh respondent, Naa Abeyifa Karbo. These chiefs were absent from that meeting and ought not to be visited with any liability.

Of the remaining respondents, the three who voted against the motion, namely the second respondent, Naa Dr Puair Poubi Chir VII; the sixth respondent, Nana Aboagye Agyei and the third chief are nominally in contempt. The rest are liable for contempt. The liability for contempt of the following chiefs has been proved. These are the third respondent, Odeefuo Boa Amponsem II; the fourth respondent, Nene Kragboatorsic(5) Awulae V; the seventh respondent, Nene Nar Dawutey Onogo, the eight respondent, Nana Awuah Duku II, and the ninth respondent, Na JD Yaamyia Tooka II. I find the complaint proved against the first respondent. As have said, the first respondent by his conduct in by-passing the full house thereby facilitated the wrongful and illegal steps taken by the sixteenth respondent to re-enter his name on the register. There is evidence on record that on 13 October 1995 the applicant, then the Acting President of the Mampong Traditional Council presented a petition to “The President, National House of Chiefs, Kumasi Ashanti” stating the circumstances under which he was acting as the president of the council and requesting his name to be entered into the National Register of Chiefs. His petition was accompanied by his curriculum vitae certified by the registrar of the Mampong Traditional Council and an enstoolment form (CDF 8) duly completed by the applicant. Up to the time this application for contempt was presented, he had done nothing about the applicant’s petition. Yet with alacrity he had the sixteenth respondent’s petition, not accompanied by any CD form, processed and re-entered. As I have said, the first respondent offered no defence as his conduct in the Effiduase stool affairs betrayed him. He was liable for the contempt which resulted from their unlawful action.

I now come to the role played by the fourteenth respondent, Mr Okyere Boateng and the fifteenth respondent, Mr Kusi Ankra.

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In an affidavit sworn in the application, the first fourteenth respondent deposed in his affidavit that: “The National House of Chiefs has no record of the purported enstoolment of Nana Ameyaw II as Effiduasehene since no chieftaincy declaration had been sent to the National House of Chiefs by the Mampong Traditional through the Ashanti Regional House of Chiefs as required by section 51 (1) of the Chieftaincy Act, 1971 (Act 370).”

The fourteenth respondent followed his affidavit of 21 November 1997 with another affidavit, this time in his capacity as the secretary to the research committee, that after diligent investigation and close research they, ie the research committee—had found that: “as far as the National House of Chiefs was concerned there had never been and there is still no official record of the occupancy of the Effiduase stool by the applicant.”

The fifteenth respondent says almost the same things as the fourteenth respondent. In his case, however, he admits that it was he who without authority re-entered the name of the sixteenth respondent in the register. In this application nananom complain that they were misled by the fourteenth and fifteenth respondents into committing the contempt. In my respectful opinion, these two respondents hoodwinked nananom of the research committee and led them to perdition. The regulations of the research committee provide for the study of the chieftaincy declaration form: “for entry in the National Register of Chiefs and their transmission to the Commissioner responsible for Chieftaincy Affairs for publication in the Local Government Bulletin.” As I have said, the CD Forms were there. There was in existence a Local Government Bulletin announcing the enstoolment of the applicant in furtherance of a transmission to the commissioner of the situation with respect to the Effiduase tool. Yet, the respondents say there is no record. For my part, I will say that the fourteenth and fifteenth respondents conspired to deceive the research committee and they are liable to be punished for contempt.

At first blush it appears that his case is simple. He sent his petition to the National House of Chiefs for their consideration. They could have rejected his petition and that would have been the end of it. But a closer examination reveals that the sixteenth respondent’s

[p.301] of [1999-2000] 1 GLR 283 real intention was to use the re-entry of his name in the register as his trump card against the applicant whom he had sued before the judicial committee of the Mampong Traditional Council for, inter alia, a declaration that he was the “incumbent chief.” Entry of one’s name in the register is prima facie evidence of the fact that that person is a chief. I have in this opinion fully discussed the sixteenth respondent’s case. I therefore do not think it will repay its repetition here. I am, however, satisfied that it was deliberate conduct on his part to pre-empt the evidence for the case now pending before the judicial committee of the Mampong Traditional Council. He misconceived the legal position in which he had placed himself and thereby embarked on a quixotic adventure which has led to his attempt to pervert the course of justice. He is liable for contempt.

I have considered the position of the thirteenth respondent, Dr Annor. He is not shown to have participated in the meeting of the research committee. Even though he was in attendance at that meeting, he is not a member of the committee. He is therefore not bound by any decision of the committee; nor has anybody claimed he contributed to the discussion which led to the decision under attack. I will therefore discharge thirteenth respondent.

I have not been impressed by the revelations of laxity and perhaps even the recklessness with which the affairs and records of our National House of Chiefs are managed. A strict adherence to their own rules and procedures will materially improve the sunken image of nananom in the country. Some of them have treated this court with great levity. In the face of such a serious charge as contempt of court, they have not bothered to file defences. The first to the fifteeth respondents, however, realise the error of their ways and by their subsequent affidavits have offered their apologies and have indicated to the court that they have expunged the name of the sixteenth respondent wrongly so entered in the National Register of Chiefs therefrom. These are, of course, matters in mitigation of whatever punishment which this court may mete out to the respondents. The law is, of course, not a respecter of persons and will exact the requisite penalty whenever so merited.

JUDGMENT OF AMPIAH JSC

The applicant in this case seeks an order of this court to commit the respondents for contempt of court. The facts in this case have been clearly stated in the opinion of my learned [p.302] of [1999-2000] 1 GLR 283 brother Charles Hayfron-Benjamin JSC of which I have had the opportunity to read beforehand, and I agree with him on his conclusions.

In my opinion the real issues in this application are:

(i) whether or not there has been contempt of court, and, if so, have the respondents or any of them committed contempt;

(ii) whether this court is the proper forum for the determination of the contempt, if any has been committed; and

(iii) what punishment if any is to be meted out to any of the respondents who have committed contempt.

The contemptuous conduct alleged by the applicant in this application consists in:

(a) a disobedience of the order of the High Court, Kumasi;

(b) interference with proceedings before the judicial committee of the Mampong-Ashanti Traditional Council; and

(c) disrespect for the pronouncement of the Supreme Court in a matter affecting the chieftaincy status of the applicant.

The sixteenth respondent herein, the provocateur of these proceedings, has since before 1981 and after attempted to have himself installed as Effiduasehene in Ashanti. Proceedings were brought against him and others for having fraudulently caused his name to be entered in the register of chiefs of the National House of Chiefs. Ampiah J (as he then was) had found a prima facie case of fraud against him. Amua-Sekyi J (as he then was) had ordered the removal of the sixteenth respondent’s name from the said register on account of fraud. This order was duly carried out. Upon these orders, which the sixteenth respondent later had found to have been given without jurisdiction, he had abdicated. His subsequent attempt to have the queenmother of Effiduase (Nana Konadu Yiadom I) committed for contempt for putting someone on the Effiduase stool failed because, the court (coram Okyere J) found that since the first respondent had voluntarily abdicated, and the stool had become vacant, albeit the pendency of the substantive action in court, the queenmother could not be charged in contempt for putting a new chief on the vacant stool. Not satisfied, the respondent instituted a fresh action in the

[p.303] of [1999-2000] 1 GLR 283 judicial committee of the Mampong-Ashanti Traditional Council to assert his right of entitlement to the Effiduase stool. That action is still pending.

The new Effiduasehene put on the stool by the queenmother, was subsequently recognised by the government in the Local Government Bulletin, No 18, of 25 October 1991. A petition presented to the National House of Chiefs and placed before the research committee for registration of the new Effiduasehene, Nana Adu Ameyaw II, the applicant herein, seems to have received no response. Obviously, this lack of activity by the National House of Chiefs to have the applicant’s name registered, was an encouragement to the sixteenth respondent to have his name put back on the register. He submitted a petition to the National House of Chiefs to have his name re-entered. The incumbent president of the National House of Chiefs, then was the first respondent, to whose office the applicant’s petition for registration of his name in the register had been addressed. The sixteenth respondent’s petition was referred to the research committee of the National House of Chiefs. However, there was nothing said of the applicant’s petition for registration. At the time that the sixteenth respondent submitted his petition, he was aware that he had before the judicial committee an action relating to his claim to the Effiduase stool. He was also aware that a High Court order had been made to have his name removed from the register of chiefs. He had notice also of the government’s recognition of the applicant’s status as the incumbent chief of the Effiduase stool and more so, since by a pronouncement of the Supreme Court in proceedings affecting the Effiduase stool, the late abusuapanin of his, the sixteenth respondent’s family, had been committed for contempt for failing to perform custom to the applicant as Effiduasehene before burying the Benkumhene of Effiduase, an uncle of the sixteenth respondent. There was thus a conduct of the sixteenth respondent to overreach the ends of justice. By this conduct he was asking the research committee to prejudge the issues pending in the judicial committee of the Ashanti-Mampong Traditional Council and also to disobey a lawful order of the High Court to have his name re-entered on the register without lawfully getting the order of the High Court vacated.

The research Committee on its part acted over the powers that it had and without proper consideration of the effect of the order of the High Court and the subsistence of the action before the judicial

[p.304] of [1999-2000] 1 GLR 283 committee, happily and without caution, acceded to the unlawful request of the sixteenth respondent. This was done despite the fact that the applicant on hearing of the petition by the sixteenth respondent, had submitted to the committee full facts of the case and warning that it would be committing contempt of court if it acceded to the request by the sixteenth respondent. It is not known what material the research committee had investigated in coming to its conclusion and what advice had been given to it, but it was aware that the applicant had petitioned for his name to be registered and there was a government bulletin which was notice to all that the applicant was the incumbent and recognised chief of Effiduase. In flagrant disregard for fairness, and respect for orders and pronouncement of the courts, the research committee went on to act the way it did. I am happy to note that not all the members of the committee were in agreement with the decision taken, but that was a decision by a majority which was binding on the four minority. Perhaps, the minority would console themselves by the saying that: “the many are not always right, the few not always wrong.”

It is gratifying to note that the research committee has subsequently found their mistake, and apologised with a resolution by the same committee that the name which they wrongly re-entered, should once more be removed, and it has so been done. They explained their conduct by saying that they did not understand the effect of the committee’s orders. This only goes to mitigation of their conduct which is found to be in contempt. I agree with my brother Charles Hayfron-Benjamin JSC that by their conduct, the research committee and also the sixteenth respondent committed contempt of the tourt. Contempt of court does not consist only in the disobedience of a court order, but includes every conduct that tends to bring the authority and administration of the court into disrespect or disregard or to interfere with or prejudice parties litigant, or their witnesses.

Has this court jurisdiction to entertain the instant proceedings? The Constitution, 1992 vests in the Supreme Court, jurisdiction to deal with contempt cases. Article 126(2) of the Constitution, 1992 provides:

“(2) The Superior Courts shall be superior courts of record and shall have the power to commit for contempt to themselves [p.305] of [1999-2000] 1 GLR 283 and all such powers as were vested in a court of record immediately before the coming into force of this Constitution.”

It is further provided by the Constitution, 1992, ar 129 (4):

4ex [sic](6)

“(4) For the purpose of hearing and determining a matter within its jurisdiction and the amendment, execution or the enforcement of a judgment or order made on any matter, and for the purpose of any other authority, expressly or by necessary implication given to the Supreme Court by this Constitution or any other law, the Supreme Court shall have all the powers, authority and jurisdiction vested in any court established by this Constitution or any other law.”

In the case of the Republic v Totobi Quakyi, Supreme Court, Accra, 26 July 1994, unreported the Supreme Court by a majority of six to one held that the Supreme Court has jurisdiction to entertain contempt proceedings brought before it even though no order of the court had been interferred with, or the contemptuous conduct complained of is not of the Supreme Court itself; this was on a preliminary legal issue taken by counsel as to whether or not the court had jurisdiction to entertain contempt of High Court proceedings. As stated earlier in my opinion, I agree with my brother Charles-Hayfron-Benjamin JSC that contempt has been committed by those persons named in his opinion and those persons must be punished according to the part they played in the contemptuous conduct.

JUDGMENT OF ACQUAH JSC.

My lords, contempt of court is the only common law offence still known to our law, as same is saved by article 19(12) of the Constitution, 1992 and section 10 of the Criminal Code, 1960 (Act 29). And unlike other countries where the offence is codified like the English Contempt of Court Act, 1981, ours is still case law. In brief, contempt of court is constituted by any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority. Oswald in his classic, Contempt of Court (2nd ed, 1895), p 6 said:

“Speaking generally, Contempt of Court may be said to be said to be constituted by any conduct that tends to bring the authority and

[p.306] of [1999-2000] 1 GLR 283 administration of the law into disrespect or disregard, or to interfere with, or prejudice parties litigant or their witnesses during the litigation.”

Contempt of court is both of ancient origin and fundamental contemporary importance. In their 1959 Report on Contempt of Court, the Organization of Lawyers in Britain in the publication, Justice, stated: “. . . it is essential to the maintenance, and indeed to the very existence, of the legal system of any state that the Court should have ample powers to enforce its orders and to protect itself or its procedure. We desire at the outset to recognize and accept this principle.”

Lord Diplock in Attorney-General v Times Newspaper Ltd [1973] 3 All ER 54 at 71, HL expatiated on the vital role and the diversity of forms of this law, in the following words:

“The provision of such a system for the administration of justice by courts of law and the maintenance of public confidence in it are essential if citizens are to live together in peaceful association with one another. ‘Contempt of court’ is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. Contempt of court may thus take many forms.”

Contempt of court may be classified either as direct and indirect or as civil and criminal. Direct contempts are those committed in the immediate view and presence of the court (such as insulting language or acts of violence) or so near the presence of the court as to obstruct or interrupt the due and orderly course of proceedings. Indirect (or constructive) contempts are those which arise from matters not occurring in or near the presence of the court, but which tend to obstruct or defeat the administration of justice, and the term is chiefly used with reference to the failure or refusal of a party to

[p.307] of [1999-2000] 1 GLR 283 obey a lawful order, injunction, or decree of the court laying upon him a duty of action or forbearance. Civil contempts are those quasi-contempts which consist in the failure to do something which the party is ordered by the court to do for the benefit or advantage of another party to the proceedings before the court, while criminal contempts are acts done in disrespect of the court or its process or which obstruct the administration of justice or tend to bring the court into disrespect.

Now, in this case, one Nana Adu Ameyaw who describes himself as the Effiduasehene prays “for an order of attachment or committal for contempt or both” against the respondents who are sixteen in number. The first respondent was at the material time, the president of the National House of Chiefs, the second to the twelveth respondents were members of the research committee of the house, the thirteenth to fifteenth respondents were staff of that house, while the sixteenth respondent was a long standing rival of the applicant in the claim to the Effiduase stool. The facts giving rise to the application as set out in the applicant’s supporting affidavit, read:

“(17) … On 7 March 1997 the sixteenth respondent filed in the judicial committee of the Mampong Traditional Council a petition dated 5 March 1997 against me in which he asked me inter alia, for relief that “he is the customary and lawfully properly elected, enstooled and registered incumbent Effiduasehene of the Mampong Traditional Area.”

(18) That I denied the sixteenth respondent’s claim and filed a defence that I was the lawfully nominated, elected and installed Effiduasehene.

(19) That on 15 August 1997, while the case was pending in the judicial committee of the Mampong Traditional Council the sixteenth respondent filed another petition in the National House of Chiefs asking the house to re-enter his name in the National Register of Chiefs. The petition was referred by the house to Nana Abena Konadu Yiadom I for her comments. Copy of the petition is attached hereto and marked C.

(20) That in her comments Nana Abena Konadu Yiadom I drew the house’s attention to article 127 (1) and (2) of the

[p.308] of [1999-2000] 1 GLR 283

Constitution, 1992 and PNDCL 107 and pointed out to nananom that the sixteenth respondent was not only courting [sic](7) trouble for himself but for nananom as well by asking them to interfere with an act done on the order of a High Court judge and under PNDCL 107. Copy of her comments is attached hereto and marked D.

(21) That by disregarding the warning given by Nana Abena Konadu Yiadom I and proceeding to deal with and granting the petition, the second and eleventh respondents who are all members of the research committee of the house have shown utter disrespect to the High Court, Kumasi and should be punished for contempt.

(22) That the first respondent is the president of the National House of Chiefs. The petition of the sixteenth respondent asking that his name be re-entered in the national register as well as the comments of Nana Abena Konadu Yiadom I thereon were handed to him. He therefore:

(a) knew that Amua Sekyi J (as he then was) had ordered that the name of the sixteenth respondent should be deleted from the National Register of Chiefs.

(b) knew that the registrar of the National House of Chiefs had acted on the order of Amua Sekyi J (as he then was) and had struck out the name of the sixteenth respondent from the National Register of Chiefs.

Yet he accepted the petition, dealt with it and instructed the registrar of the house to re-enter the name of the sixteenth respondent in the national register. He has by his conduct shown utter disrespect to the High Court, Kumasi, and should be punished for contempt.

(23) The sixteenth respondent knew at the time he presented his petition that I was the incumbent chief of Effiduase because:

(a) He had not appealed against the order made by Amua-Sekyi J (as he then was) that his name be deleted from the national register.

(b) He knew that the registrar of the national house, acting on the order of Amua Sekyi J (as he then

[p.309] of [1999-2000] 1 GLR 283 was) had struck out his name from the national register.

(c) He knew that PNDC Government had recognised me as having been installed the Effiduasehene.

(d) The abusuapanin of his family had been asked by the Supreme Court to perform custom to me as Effiduasehene before he buried the Benkumhene of Effiduase, his uncle.

(24) By disregarding all the above and petitioning that his name should be re-entered in the national register the sixteenth respondent has shown utter disrespect to hesic(8) High Court, Kumasi as well as the Supreme Court and should be punished for contempt.

(25) The thirteenth respondent attended the meeting of the research committee and advised the second to eleventh respondents to re-enter the name of the sixteenth respondent in the national register, the fourteenth respondent attended the meetings and recorded the proceedings, and the fifteenth respondent carried the decision out by re- entering the sixteenth respondent’s name in the national register. They are all in contempt of the High Court and should be punished.

(26) The respondents were in clear breach of the law and exhibited bad faith and contempt of the provisions of PNDCL 212 which was in force after due notification in the Gazette of 31 March 1989.

(27) The respondents by their said action have demonstrated total and utter contempt for the judicial system as established by the Constitution, 1992 and of the laws of this country.

(28) The applicant contends that the action of the respondents is vitiated by illegality deliberately committed by them to provoke public disaffection.”

Narrating the background of the Effiduase stool affairs in the early part of his supporting affidavit, the applicant alleged that the sixteenth respondent got himself fraudulently enstooled as the Effiduasehene in February 1979. And so on 21 November 1980, Nana Abena Konadu Yiadom I, Effiduasehene sued the sixteenth [p.310] of [1999-2000] 1 GLR 283 respondent in the High Court, Kumasi (challenging his enstoolment. On 16 October 1989) the High Court, Kumasi Ampiah J (as he then was) restrained the sixteenth respondent from exercising the functions of Effiduasehene and interfering with the Effiduase stool properties. The sixteenth respondent filed an appeal against the orders of Ampiah J (as he then was). But while the appeal was pending, the sixteenth respondent declared that he had abdicated as Effiduasehene. And so Nana Yiadom I applied to the High Court to strike out the suit. Since the appeal of the sixteenth respondent was pending, Amua Sekyi J (as he then was) refused to strike out the suit, but rather ordered that the name of the respondent be deleted from the National Register of Chiefs. This was accordingly done.

Thereafter Nana Yiadom I was enstalled Effiduasehene and recognised as such in PNDCL 212, in addition to her position as the Effiduasehemaa. She subsequently abdicated and the applicant was enstooled as the effiduasehene and recognised by notice in the Local Government Bulletin No 18 of 25 October 1991.

The applicant also averred that when the Benkumhene of Effiduase, Nana Akuamoah Boateng, the uncle of the sixteenth respondent, died, the Supreme Court in suit number CM 8094 ruled that the sixteenth respondent’s head of family should perform all customary rites to him the applicant, before the deceased could be buried. And when the head of family buried the body without performing those customary rites, he was committed for contempt and imprisoned for a month by the Supreme Court.

The applicant contended that by that ruling and committal for contempt by the supreme Court, the latter had recognised him, the applicant, as the incumbent Effiduasehene. And that it was contemptuous for the sixteenth respondent to petition the National House of Chiefs for his name to be entered as the Effiduasehene and equally contemptuous for the remaining respondents to accede to the request of the sixteenth respondent. The respondents filed series of affidavits in opposition. In a nutshell, each denied that he was liable for contempt.

Now, 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. In Re Bramblevale Ltd [1970] Ch 128, the appellant, the managing director of a property company which had gone into liquidation,

[p.311] of [1999-2000] 1 GLR 283 failed to comply with the registrar’s order calling on him to produce the company’s cash book and the creditors ledgers. The High Court regarded the defendant’s explanation that the books had been soaked in a petrol in the boot of his car, and had then found their way into a dustbin before the deadline for producing them, as “a cock and bull story.” He was accordingly committed to prison for an indefinite time, the court evidently being of the opinion that the books were still in his possession. On appeal, the Court of Appeal regarded this conclusion as being based on “surmise rather than proof and ordered his immediate release. Winn LJ at 137 said:

“. . . unless the guilt of the appellant was proved with such strictness of proof as is consistent with the test ‘beyond reasonable doubt’; or, as [Lord Denning MR] has more than once put it, consistent with such standard as the court, with its responsibility, regards as consistent with the gravity of the charge—a test which I personally prefer—the decision that he should be imprisoned for contempt of court cannot be sustained.”

In Heatons Transport Ltd v Transport and General Workers Union [1972] 2 All ER 1214 at 1247, CA Lord Denning MR said that contempt of court, “Being of a criminal character, the offence must be proved with the same degree of satisfaction as any criminal offence: See Re Bramblevale Ltd. It is not an absolute offence such as to be punishable without a guilty mind. It requires a guilty mind. See Parker Manufacturing Co Ltd v Cooper [(1901) 18 RPC 319], and Attorney-General v Butterworth [[1962] 2 All ER 326 at 331]. The disobedience must, therefore, be a conscious disobedience to the order of the court or, at any rate, turning a blind eye to it.”

In our local jurisprudence, it was held in the headnote in Kangah v Kyereh [1979] GLR 458 that: “to obtain a committal order for contempt, the applicant must strictly prove beyond all reasonable doubt that the respondents had willfully disobeyed and violated the court’s order.” (The emphasise is mine).

[p.312] of [1999-2000] 1 GLR 283

Now, from the standard of proof required to sustain liability, an applicant must therefore first make out a prima facie case of contempt against each of the respondents before the court can turn to consider the defences put up. And in this regard, an admission or proof of the factual allegations does not imply an admission of liability in contempt, as it would still be the burden of the applicant to establish that the said factual allegations constitute contempt.

Now, the particulars of contempt against each of the respondents as set out in the supporting affidavit are first, that the second to the eleventh respondents, members of the research committee of the National House of Chiefs were in contempt in proceeding to deal with the sixteenth respondent’s petition to the National House of Chief (see paragraph 21). Secondly, the first respondent was in contempt of the High Court, Kumasi in taking action on the first respondent’s petition and directing the registrar of the National House of Chiefs to enter that name in the National Registrar of Chiefs (paragraph 22). Thirdly, the sixteenth respondent was in contempt of both the High Court, Kumasi and the Supreme Court by presenting his petition to the National House of Chiefs when he knew that the applicant was the Effiduasehene (paragraphs 23 and 24). And finally, the thirteenth respondent by attending the meeting of the research committee and advising the second to eleventh respondents, the fourteenth respondent by attending and recording the minutes of that meeting and, the fifteenth respondent by entering the name in the National Register of Chiefs, were all in contempt of the High Court, Kumasi. It is quite evident that no particulars of contempt were levelled against the twelfth respondent. He has therefore no case to answer, and the application is dismissed against him with costs.

Now, the common law offence of contempt of court arises only on satisfactory proof of an act or omission calculated to embarrass, hinder, obstruct the court in the administration of justice, or to lessen its authority or its dignity. In Attorney-General v Blomfield; Attorney-General v Geddis (1913) 33 NZLR 545 at 556 Stout CJ said: “Before an act can be deemed a contempt of court, it must lead or be likely to lead to an interference of Justice.” Accordingly, I have no doubt in my mind that none of the above particulars of contempt can support a finding of liability.

[p.313] of [1999-2000] 1 GLR 283

The first respondent was then the President of the National House of Chiefs, and the petition of the sixteenth respondent was addressed to him in that capacity. Certainly, he cannot on his own take a decision to accept or reject the prayer contained in that petition. The research committee of the National House of Chiefs, the members of which are cited in this application as the second to the twelfth respondents, is one of the committees constituted under section 2 (2) of the Chieftaincy Act, 1971 (Act 370). Its functions as spelt out in paragraph 56 of the National House of Chief Standing Orders (Revised) 1991 are, inter alia, to “study chieftaincy declaration forms for enstoolments, destoolments, abdications and death of chiefs … for entry in the National Register of Chiefs.”

The reference of the sixteenth respondent’s petition to that committee was thus the appropriate thing to do. And I do not see how members of that committee can be liable in contempt for doing what they are expected to do. If their recommendations turned out to be inconsistent with a binding decision of a court of competent jurisdiction, those adversely affected are entitled to apply to set same aside. Contempt does not arise in such circumstances. Otherwise, whenever a body entertains a matter which had previously been determined by a competent judicial authority, that body would be held to be in contempt of that judicial authority. But this not the legal position. The doctrines of per incuriam and res judicata are meant to protect previous binding decisions of courts. It follows that the staff of the research committee who were present, and are cited as the thirteenth, sixteenth and fifteenth respondents, can by no stretch of the imagination be equally held liable in contempt.

Indeed, it was on the facts and circumstances before the High Court, Kumasi then, ie that the sixteenth respondent had abdicated, that Amua-Sekyi J (as he then was) ordered that the sixteenth respondent’s name as the Effiduasehene, be deleted from the National Registrar of Chiefs. His lordship did not order, and the record does not say so, that the sixteenth respondent was perpetually forbidden from having his name entered as Effiduasehene in the National Register of Chiefs, so as to bar for ever the entry of his name as Effiduasehene in the said register. He was not so forbidden. In respect of the sixteenth respondent, the particulars of contempt herein leveledsic(9) against him are also not adequate to render him liable. None of the particulars levelled against the respondents does cons-

[p.314] of [1999-2000] 1 GLR 283 titute contempt in law to warrant a consideration of the affidavits in opposition.

From the facts, the sixteenth respondent initiated chieftaincy a suit at the Ashanti Mampong Traditional Council against the applicant for a determination that he, the respondent, was the lawful Effiduasehene. That it was during the pendency of this suit that he petitioned the National House of Chiefs for his name to be entered in the National Register of Chiefs as the Effiduasehene—the very status he was claiming in the pending suit at the Mampong Traditional Council. On these undisputed facts, the proper issue in relation to contempt, is whether the presentation of that petition to the National House of Chiefs was not calculated to interfere or prejudice the fair hearing of the suit at the judicial committee of Mampong Traditional Council. For as I have stated, any act or omission calculated to prejudice or interfere with the fair determination of a pending suit constitutes contempt of the court where the proceedings are pending. And as Azu Crabbe Ag CJ (as he then was) said in Narh v Dombo, Court of Appeal, Accra, 23 March 1970, unreported: “. . the test is whether in the particular circumstances of this case, the conduct of the appellants was one likely to prejudice a fair trial or interfere with the due administration of justice.”

Since the court herein is the judicial committee of the Mampong Traditional Council, there is the further question as to the proper court to entertain applications for contempt in respect of judicial committees of chieftaincy tribunals. This latter issue is one of jurisdiction, and I will therefore deal with it before the former.

Now, the judicial committees of chieftaincy tribunals are inferior tribunals and the general principle of law is that an inferior tribunal or court has no powers to commit for contempt. Thus section 26(7) of Act 370 provides:

“(7) Where it appears to a judicial committee that any person has committed contempt of the House of Chiefs by which that committee was appointed it shall certify that fact to the High Court and the High Court shall after inquiring into the matter take steps for the punishment of the person in question if it is satisfied that he is guilty of contempt, and shall otherwise acquit that person.”

[p.315] of [1999-2000] 1 GLR 283

We have the same provision in regulation 13(5) of the Chieftaincy (Proceedings and Functions) Traditional Councils) Regulations, 1972 (LI 798). The court with jurisdiction to entertain contempt applications from the judicial committees of the traditional councils is thus the High Court. As to who has the right to present such applications, two decisions of the High Court deserve to be commented upon.

In Republic v Omanhene of Ahanta Traditional Area; Ex parte Korkor [1982-83] GLR 1154, the petitioner in a chieftaincy suit pending at the judicial committee of the Ahanta Traditional Council filed a contempt application at the High Court, Sekondi against the respondents in that petition for out-dooring the candidate in dispute during the pendency of that suit. The High Court judge, Twumasi J (as he then was), in dismissing the contempt application said at 1156:

“It is clear from regulation 13(5) of L.I. 798 that the precondition necessary for the High Court assuming jurisdiction to inquire into the cases of contempt of a traditional council acting in their judicial capacity is a certificate of an alleged contempt submitted to the High Court by the judicial committee of the traditional council concerned. Where no such certificate is submitted, the High Court has no jurisdiction to entertain allegations of contempt of a traditional council acting in its judicial capacity . . The applicants in this case are not the judicial committee of the Ahanta Traditional Council … I would therefore dismiss the application for want of jurisdiction . .

In Republic v Kwafromoah;[sic](10) Exparte Fosuhene, High Court, Kumasi 4 May 1989 (unreported), Lartey J (as he then was) also arrived at the same conclusion as Twumasi J (as he then was) dismissing a contempt application by a party to chieftaincy proceedings at the judicial committee of the Ashanti Regional House of Chiefs. Lartey J (as he then was) held that section 26(7) of Act 370 prescribed the only procedure for proceeding on contempt from chieftaincy tribunals.

Now, in interpreting a provision of a statute, it is important not

[p.316] of [1999-2000] 1 GLR 283 to import into it what had not been stated therein, nor extend its effect beyond what the provisions says. Section 26(7) of Act 370 and regulation 13(5) of LI 798 which are the same, read:

“5. Where it appears to a judicial committee that any person has committed contempt of the House of Chiefs by which that committee was appointed it shall certify that fact to the High Court and the High Court shall after inquiring into the matter take steps for the punishment of the person in question if it is satisfied that he is guilty of contempt, and shall otherwise acquit that person.”

(The emphasis is mine.) From the opening words emphasised above, it is clear that it applies to a situation where the judicial committee itself as opposed to a party to the proceedings, is of the view that someone has committed contempt. The provision does not exclude the right of the individual to initiate contempt proceedings in respect of matters pending before the judicial committee. The provision does not say so. And it would be wrong to conclude that because the judicial committee is empowered to initiate contempt proceedings, the common law right of the individual and, indeed, that of the party to the suit to initiate contempt proceedings is abolished. For one of the basic principles of any civilised system of justice is that a person is entitled to a fair trial free from prejudice. No system of justice can be effective unless a fair trial to both sides is ensured. There are therefore many rules of law and practice intended to support this principle. Among them are the rules of natural justice and the law of contempt. And, as I said earlier, one of the purposes of the law of contempt is to provide sanctions against any words, conduct or omission that are likely to prejudice a fair trial. This common law right of fair trial is now elevated to a fundamental right in the Constitution, 1992 of Ghana: see article 19, particularly 19(12) and (13).

Thus, to interpret section 26(7) of Act 370 and regulation 13(5) of LI 798 as denying the individual the right to initiate contempt application in respect of proceedings pending at the chieftaincy tribunals, would not only be importing into those provisions matters not stated nor intended therein, but also be denying the individual an essential weapon in the protection if his fundamental right to a fair

[p.317] of [1999-2000] 1 GLR 283 trial at the chieftaincy tribunals. It would, indeed, be a denial of a constitutional right. And further, imply that where there is a naked contemptuous act by a party to chieftaincy proceedings, and the judicial committee is either unaware or unwilling to act, the party affected would be without remedy. No system of justice in any civilised nation would permit a party to suffer such an injustice. And section 26(7) of Act 370 and regulation 13(5) of LI 798 do not deny that right. The true position therefore is that the right of the individual to initiate contempt proceedings against any person in respect of proceedings pending at a chieftaincy tribunal is not affected by the provisions of section 26(7) of Act 370 and regulation 13(5) of LI 798.

And since these chieftaincy tribunals including that of the National House of Chiefs are inferior tribunals, the court with jurisdiction to entertain any such contempt application by the individual or a judicial committee is the High Court. Thus in Republic v High Court, Kumasi; Ex parte Fosuhene [1989-90] 2 GLR 315, SC, wherein certiorari was sought to quash the High Court, Kumasi’s refusal to review its decision in the Republic v Kwafromoah (supra), Francois JSC relying on R v Editor of the Daily Mail; Ex parte Fransworth [1921] 2 KB 732, said at 321:

“It is said that the object of the discipline enforced by the court in a case of contempt is not to vindicate the dignity of the court or the person of the judge, but to prevent undue interference with the administration of justice . . . That rationale permits both the court and suitors to it to challenge any interference with its administration. Section 26(7) of Act 370 does not abrogate a suitor’s right of recourse to the courts to uphold and sustain the uninterrupted administration of justice. “

(The emphasis is mine.) The Supreme Court was, indeed, unanimous with Francois JSC’S opinion above.

From what I have already said, a judicial committee or a party to the proceedings at a judicial committee is therefore entitled to initiate at the High Court an application for contempt of a judicial committee. Where the contempt application is initiated by the judicial committee, section 26(7) of Act 370 requires a certificate to that

[p.318] of [1999-2000] 1 GLR 283 effect by the judicial committee to be filed at the High Court. No such certificate is required in the case of an application by a party to the proceedings at the judicial committee. The party adopts the normal procedure for contempt in the High Court.

Finally, since it is clear that the High Court is the proper forum to entertain applications for contempt of a judicial committee, this court cannot therefore determine at first instance the issue of whether the sixteenth respondent’s petition to the National House of Chiefs constituted contempt of the judicial committee of the Mampong Traditional Council.

The application is therefore destined to be dismissed. But before I am done, I cannot help but to observe that this application is wholly unmeritorious, mischievous, and calculated solely to embarrass the respondents. They have done nothing wrong. And each deserves to be awarded substantial costs.

I will therefore dismiss the application with costs in favour of each of the respondents.

JUDGMENT OF AKUFFO JSC.

I agree

JUDGMENT OF ATUGUBA JSC.

The facts of this matter have been masterly related by my brother Charles Hayfron-Benjamin JSC and I need not repeat them except where necessary.

It is said that the respondents committed contempt of: (a) the order of Amua-Sekyi J (as he then was), deleting the sixteenth respondent’s name from the National Register of Chiefs; (b) pending proceedings in the Mampong Traditional Council; and (c) this court itself.

As to the first two, assuming the charge of contempt is made out, this court has no jurisdiction to commit the respondents for contempt. Unlike the Constitutions, 1969 and 1979 the Constitution, 1992 has parted ways with the fiction of one superior court of judicature. In separatist language, article 126(1) of the Constitution, 1992 unambiguously provides as follows:

[p.319] of [1999-2000] 1 GLR 283

“126. (1) The Judiciary shall consist of—

(a) the Superior Courts of Judicature comprising (i) the Supreme Court;

(ii) the Court of Appeal; and

(iii) the High Court and Regional Tribunals.”

The Courts Act, 1993 (Act 459) realistically sets out, inter alia, as indicated by its preamble “to incorporate into the law relating to the courts, the provisions of chapter eleven of the Constitution“ and accordingly maintains a plural system of superior courts. In Republic v Liberty Press Ltd [1968] GLR 123 Akufo-Addo CJ made it quite clear that the High Court’s jurisdiction to punish for a contempt of the Court of Appeal was based on, inter alia, the fact that under the Courts Decree, 1969 (NLCD 84) there was one Supreme Court of Judicature comprising the High Court and the Court of Appeal. In any case Akufo-Addo CJ added that the High Court, being the court with original jurisdiction in all matters, was rather the suitable forum to pursue a contempt against that Supreme Court of Judicature. Similarly, the Practice Direction (Practice and Procedure of the Supreme Court) [1981] GLR 1, SC of this court requires that “ . . . where a cause or matter can be determined by a superior court, other than the Supreme Court, the jurisdiction of the lower court shall first be invoked. The Supreme Court may dismiss any such cause or matter, with punitive costs to be paid personally by counsel or by the party responsible for bringing such cause or matter to the Supreme Court in the first instance.”

(The emphasis is mine.) This direction has been insisted upon: see Edusei v Attorney General [1996-97] SCGLR 1.

Since the matter has been fully argued and there are divergent views as to whether the respondents are guilty of contempt in respect of the said order of Amua-Sekyi J (as he then was), I shall have to express my views thereon. In Enimil v Tuakyi (1952) 14 WACA 1 at 2 Foster-Sutton P said:

“A motion to show cause why a person should not be committed for contempt of Court is an application affecting

[p.320] of [1999-2000] 1 GLR 283 the liberty of the subject and is always regarded by the Courts as a matter strictissimi juris.

(The emphasis is mine.)

The order of Amua-Sekyi J (as he then was) aforesaid did not in fact require the sixteenth respondent to do anything; his name was simply to be deleted from the National Register of Chiefs. Nonetheless, if a party acts in a manner that is tantamount to a defiance of the authority of the court, this would be contempt. In R v Weisz [1951] All ER 408, Goddard CJ said that if a man were to bring back the same cause of action which had previously been struck out as an abuse of the process of the court, he would be in contempt for that would mean a defiance of the court. If also the National House of Chiefs defaults on the order or a third party should interfere with the compliance with the same, it would be a contempt.

But it would seem that in contempts of this kind the contempt to be punishable must be wilful. In Agbleta v The Republic [1977] 1 GLR 445 at 447, CA Azu Crabbe CJ delivering the judgment of the court stated as follows: “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.” (The emphasis is mine.) See also Luguterah v Northern Engineering Co Ltd [1980] GLR 62, though I must point out that unlike Taylor J (as he then was)’s views in that case, reliance on the advice of counsel is taken only as a matter of mitigation of sentence in England: see Re Tyre Manufacturers Agreement [1966] 2 All ER 849. But the requirement that for contempt of the sort involved here to be punishable, the same should be wilful, applies also in England: see Heatons Transport Ltd v Transport and General Workers Union [1972] 3 All ER 101, HL. Thus in Messenger Newspapers Groups Ltd v National Graphic Association [1984] 1 All ER 293, CA it was held that since it would not be clear to auditors that they would be in contempt of court for not releasing to sequestrators information about their clients’ assets they ought not to be punished. In Worthington v Ad Lib Club [1964] 3 All ER 674, Stirling J held that since the measures adopted by the defendants to comply with the court’s order seemed reasonable the defendants ought not to be punished for contempt.

In this case, the ruling of Okyere J, holding that injunctions earlier granted in this same case were unenforceable for lack of

[p.321] of [1999-2000] 1 GLR 283 jurisdiction, because the same was a cause or matter affecting chieftaincy, was likely to give a reasonable impression to the respondents that Amua-Sekyi J (as he then was)’s order was after all vacated. It has taken the masterly analysis of my brother Charles Hayfron Benjamin JSC to demonstrate the contrary. I am inclined on this issue to agree with my brother Charles Hayfron-Benjamin JSC that the order of Amua-Sekyi J (as he then was) still subsisted despite Okyere J’s judgment.

But in such circumstances, I think that it cannot be said that the respondents’ conduct was wilful contempt. It must be borne in mind also that this court and others before it have consistently held that our chiefs are not given their statutory duties, that is to say chieftaincy jurisdiction, because of any skill in strict legal technicalities: see Kyereh v Kangah [1978] 1 GLR 83, CA (full bench) and Nyamekye v Tawiah [1979] GLR 265, CA. It is these same chiefs who have been given statutory power to carry out research into customary law inter alia, and I do not think that when they were embarking on this latter duty they suddenly acquired skills in legal technicalities so as to make the implications of Okyere J’s judgment clear to them, such that in embarking on the inquiry called in question in these proceedings, they can be said to have acted wilfully.sic(11)

In Enimil v Tuakyi (supra) the appellant was technically ejected from the land under a court judgment but he and those he represented were still in de facto possession at the time he obtained final leave to appeal to the Privy Council. At that time, the appellant also withdrew or abandoned his application for stay of execution of the judgment for delivery of possession to the respondents because their counsel gave an undertaking that the respondents “would not take possession of any further portions of the land.” The appellant understood the undertaking to mean that he could remain on the land. Upon a motion for contempt it was held that in the premises, the appellant had acted upon a reasonable belief as to the import of the respondents’ undertaking and the application for contempt was dismissed. I think the respondents here acted upon a reasonable belief that Okyere J’s judgment had nullified the previous order of Amua-Sekyi J (as he then was) against the sixteenth respondent, and should not be held for contempt.

I also do not think that in relation to this court’s judgment said to have been contravened, the respondents were aware of the

[p.322] of [1999-2000] 1 GLR 283 same. Such knowledge is essential. I prefer the law on this point as expounded by Amissah JA in Comet Co Ltd v Commercial Bank, Tema [1976] 2 GLR 220 at 224, CA that:

“without knowledge of any kind of the court’s proceedings or order, a person cannot be held in contempt of court for acting in a manner which interferes with the proceedings or contravenes the order.”

(The emphasis is mine.)

Also as regards the charge that they violated the said judgment of this court which directed the sixteenth respondent’s family to comply with certain customary formalities before burying the sixteenth respondent’s uncle, I will say that it would be stretching matters too far to say that the conduct of the respondents in this case violated the same. What the respondents did here has nothing to do with the burial of anybody. Their conduct cannot be said to be a defiance of this court by reason of its said judgment: see Republic v High Court, Accra; Ex parte Laryea Mensah, Supreme Court, Accra 22 July 97, unreported. Indeed in Jelson (Estates) Ltd v Harvey [1984] 1 All ER 12, CA the defendant was by injunction restrained from, inter alia, “depositing any industrial waste or rubbish on the forecourts of units 11 and 12 of the said Hayhill Industrial Estate so as to cause the said units to appear untidy.” (The emphasis is mine.) The defendant, upon breach was fined for contempt but the Court of Appeal held as stated in the editorial note:

“that the penalty by way of fine should be reduced from £5,000 to £2,500 on the ground that the injunctions were restricted to the deposit of industrial waste or rubbish and did not cover the deposit of the pallets and skips which made the units untidy

(The emphasis is mine.)

I will also remark that contempt of court is treated practically according to the same rules as applicable to ordinary crimes because of its penal character. It is therefore necessary to formulate the charges or allegations with particularity so as to give fair notice of the same to the defendant to enable him prepare to meet them. In England this is statutorily insisted upon: see Jelson (Estates) Ltd v Harvey (supra). In this case it appears the charge of contempt rela-

[p.323] of [1999-2000] 1 GLR 283 ting to the Mampong Traditional Council proceedings was thrown into the application just in the course of the narrative of events.

In Izuora v R (1953) 13 WACA 313 at 316, PC Lord Tucker delivering the judgment of the Board of the Privy Council said:

“It is not possible to particularise the acts which can or cannot constitute contempt … but … it is desirable to bear in mind what was said in the judgment of the Board delivered by Lord Goddard in the case of Parashuram Detaram Shamdasani v The King-Emperor [1945] A.C. 214 at 270] where these words are to be found: ‘Their Lordships would once again emphasise, what has often been said before, that this summary power of punishing for contempt should be used sparingly and only in serious cases. It is a power which a Court must of necessity possess; its usefulness depends on the wisdom and restraint with which it is exercised. . .”’

(The emphasis is mine.)

For all the reasons I have given, I would also dismiss the application.

DECISION

Application dismissed.

LSNA

Endnotes

1 (Popup – Footnote) sic same in original.

2 (Popup – Footnote) sic same in original.

3 (Popup – Footnote) sic same in original.

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5 (Popup – Footnote) sic same in original.

6 (Popup – Footnote) [sic] same in content 7 (Popup – Footnote) [sic] same in content 8 (Popup – Footnote) sic same in original.

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10 (Popup – Footnote) [sic] same in content 11 (Popup – Footnote) sic same in document