REPUBLIC VRS ALHASSAN & 3 OTHERS (C10/12/2022) [2024] GHAHC 188 (25 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD AT SUNYANI ON THURSDAY THE 25TH DAY OF JULY, 2024 BEFORE HER LADYSHIP JUSTICE JOYCE BOAHEN, HIGH COURT JUDGE SUIT NO. C10/12/2022 IN THE MATTER OF AN APPLICATION FOR COMMITAL FOR CONTEMPT AND IN THE MATTER OF THE REPUBLIC VS. 1. ALHAJI ALHASSAN RESPONDENTS 2. SEIDU MUSA 3. ZAKARIA MUSA 4. ABUU DAMTEY ALL OF SAMPA EX PARTE; DRAMANI SIAKA OF SAMPA APPLICANT COMMITTAL FOR CONTEMPT Applicant absent represented by Adams Yahaya Respondents present Romeo Asante Nimo appears for the Applicant David Orleans Oduro holding brief of William Orleans Oduro for the Respondents 1 INTRODUCTION The proceedings and judgment of the Judicial Committee of the Sampa Traditional Council (JCSTC) dated 22nd March, 2016 triggered this contempt application. The Court will maintain the designations given to the parties and inconsistencies among others as they appear in the proceedings of the JCSTC. The Plaintiff, head of family of Kanawolo clan of Sampa and on behalf of his said stool commenced an action before the JCSTC in Suit No. 1 STC/JC/ entitled; MALAM MORO TOURE – PETITIONER vs. ALHAJI ALHASSAN, SEIDU MUSA, SIAKA MUSA AND ZAKARIA MUSA. He sought the following reliefs against the Respondents per his statement of claim; a. Declaration that the Kanawolo family is sole custodian of the Twafo Stool of Sampa. b. Declaration that the Respondent (sic) and his so called Nyagoya are not entitled to ascent to the Twafo Stool of Sampa. c. An order to restrain the Respondent (sic), his agents, assigns, successors in title from dealing with the Twafo Stool of Sampa in any manner and to pave way for Alhaji Berma Adama to be introduced to the Chiefs and Elders of Sampa Traditional Council. The Respondents were served with the statement of claim of the Plaintiff. They filed conditional appearance and stated that the Sampa Traditional Council (STC) heard and determined the case involving the Twafo Stool of Sampa. The Plaintiff conducted a search, which showed that neither the JCSTC nor the STC dealt with such a case. The Respondents did not file statement of defence neither did they pay the sitting allowance of the Committee members who sat on the case as requested by the committee. After making reference to applicable laws, which clothes the committee with jurisdiction to 2 hear the matter notwithstanding the Respondents’ refusal to participate in the matter, the committee heard the Plaintiff on his claims. Alhaji Awudu Ali testified on behalf of the Plaintiff who according to the proceedings was old and had hearing impairment, without power of attorney. He stated that the abusuapanin summoned a general meeting with all the ten (10) clans at Jeminiline in Sampa and told them that he asked Alhaji Vea to raise funds to perform the funeral rite of the late Twafohene, and after the funeral celebration, Alhaji Vea would be enstooled as the new Twafohene in accordance with Muslim custom. All the ten (10) clans and some invited personalities including the Regional chief Imam from Sunyani, Ivory Coast and some members of the Sampa Traditional Council were present at the installation on 5th May, 2013. The Awerempemhene, Kyidomhene, acting Krontihene and Tubahene were present as well. According to Malam Awudu Ali, the 1st Respondent acted as Malam without objection at the enstoolment ground and monies that were contributed was given to him to pray over it as Muslim custom demands in installing or crowning a chief with a head gear. PW1 to PW8 corroborated Malam Awudu Ali’s evidence regarding the enstoolment of Alhaji Vea. PW6, Alhaji Alhassan Toare the 1st Respondent’s senior brother said he was present when his nephew Alhaji Vea was enstooled as the new Twafohene and he advised the 1st Respondent to stop litigating to avoid disunity in the family because Alhaji Vea is their nephew. He petitioned Abusuapanin Sogolo to advise the 1st Respondent. Alhaji Iddrisu, PW9 and Alhaji Alhassan Mahama, PW10 gave evidence to support the Plaintiff’s claim that the Omanhene of Sampa gave only the Kanawolo gate the right to inherit the Twafo stool. 3 JUDGMENT OF THE JUDICIAL COMMITTEE OF SAMPA TRADITIONAL COUNCIL The JCSTC concluded that based on the totality of evidence adduced by the Plaintiff and his witnesses, on 22nd March, 2016 the committee made a finding that the plaintiff proved his case that entitles him to all the claims he seeks against the Respondents since the Kanawolo clan was bestowed with Twafo title. The committee stated that Alhaji Vea is the 6th person to ascend to the Twafo stool and that the Twafo stool is matrimonial (sic) not patrimonial (sic) which the Respondent (sic) claims. The Committee gave judgment in favour of the Plaintiff for all his claims against the Respondents and awarded cost of GH₵ 5,000.00 against the Respondents. THE APPLICANT’S CASE On 8th December, 2022 the Applicant filed the present application for the Respondents to be committed for contempt. The Applicant is the customary successor of the Plaintiff, Malam Moro Toure in his capacity as family head in Suit No. 1 STC/JC in which judgment was delivered in favour of the Plaintiff on 22nd March, 2016 by the JCSTC. The Applicant attached a copy of the judgment as exhibit “A”. According to the Applicant the 1st, 2nd and 3rd Respondents participated in the proceedings at the JCSTC leading to the judgment delivered in favour of the Plaintiff. Pursuant to the said judgment, the family of the Plaintiff subsequently enstooled Alhaji Adams Yahaya as Twafourhene of Sampa Traditional Area. The Respondents did not appeal against the said judgment. Alhaji Adams Yahaya was introduced to the Sampa community as Twafourhene of Sampa Traditional Area and on 28th July, 2016 he was formally inaugurated and outdoored at the Sampa palace per letter of introduction dated 19th July, 2016 attached as exhibit “B”. Alhaji Adams Yahaya was registered and gazetted by gazette notification dated 30th September, 2021 per an extract from the National Register of Chiefs – Kumasi, attached as exhibit “C”. From his installment he enjoyed peaceful and quiet occupation of the Twafour stool without any hindrance until recently when the 1st, 2nd and 3rd 4 Respondents purportedly enstooled the 4th Respondent as Twafourhene of Sampa Traditional Area. With the support of the 1st, 2nd, and 3rd Respondents, the 4th Respondent dresses as Twafourhene of Sampa and causes announcement to be made at funeral grounds and on radio contrary to the judgment of the JCSTC per exhibit “D”, an audio and video recording the Applicant attached to his application. It is the case of the Applicant that the Respondents by disrespecting a judgment which they voluntarily participated in, their willful disobedience of the judgment of the JCSTC undermines the administration of justice and exposes the Court to public ridicule. The Applicant prayed the Court to commit the Respondents to prison to deter the Respondents and like – minded people from disrespecting and disobeying Court orders. The Applicant stated that the Twafourhene (Jiminihene) of Sampa Alhaji Alhassan Yahaya’s stool name is Nana Adama Brekum III and that he took the oath of secrecy and judicial oath on 6th December, 2021 administered by the Supervising High Court Judge of Sunyani. The Applicant attached the oaths of secrecy and Judicial oath as exhibits “E” and “E1” respectively. THE RESPONDENTS’ DEFENCE The 1st Respondent is a principal kingmaker of the Twafour stool of Sampa. He denied that he participated in the suit before the Judicial Committee of Sampa Traditional Council from which exhibit “A”, the judgment emanated. He further denied his involvement in the enstoolment of Alhaji Adams Yahaya as Twafourhene of Sampa Traditional Area. He contends that in and around 16th August, 2013 the arbitration Committee of the Sampa Traditional Council settled an impasse involving the Twafour stool in favour of his group. Pursuant to the settlement, the 4th Respondent was subsequently enstooled as Twafourhene of Sampa Traditional Area on 19th September, 2013 after the arbitration. Apart from the arbitration of the Twafour stool impasse, it was determined in favour of his group, the Respondents including him 2nd, 3rd and 4th 5 Respondents have not participated in any hearing regarding the Twafour stool. He attached a copy of the arbitration proceedings as exhibit “1”. The 1st Respondent contends that entry of judgment was not served on him and the 2nd, 3rd and 4th Respondents for them to file an appeal against the judgment and that the Respondents had not seen the judgment until they were served with the present application. He contends that the Applicant knows that since September 2013 the 4th Respondent has been the Twafourhene of Sampa Traditional Area and the 4th Respondent having been enstooled as Twafourhene of Sampa Traditional Area, regards himself as such and causes announcement to be made at funeral grounds in that regard. He however denied making radio announcements about the 4th Respondent being the Twafourhene of Sampa Traditional Area. He noted that he did not flout, disrespect nor disobey the judgment of the JCSTC for him to be committed to prison. According to him, the purported judgment dated 22nd March, 2016 is fraudulent because no proceedings occurred to warrant the said judgment. When he heard of the purported judgement by the JCSTC he applied for a copy of the judgment through his lawyer per letter dated 24th January, 2020 but the STC did not furnish his lawyer with a copy of the judgment and proceedings. According to the 1st Respondent, the extract from the National House of chiefs the Applicant attached to his affidavit is fraudulent because it suggests that the said Adams Yahaya was enstooled on 5th May, 2013. This implies that before the arbitration of Sampa Traditional Council regarding the Twafourhene stool which was determined in his favour, Adams Yahaya had already been enstooled. It is therefore not true that Adams Yahaya was enstooled as Twafourhene of Sampa on 5th May, 2013. The 1st Respondent filed supplementary affidavit in opposition on 20th July, 2023 and noted that exhibits “E” and “E1”, the oaths of secrecy and Judicial oath respectively are part of the grand fraudulent scheme of the Applicant. According to the 1st Respondent, no Twafourhene swore oath of allegiance before the Omanhene of Sampa Traditional Council for the 6 alleged Nana Brekum III to be admitted to Sampa Traditional Council. Since the Omanhene of Sampa Traditional Area, Nana Kofi Sono II died on 8th May, 2007 a new Omanhene is yet to be enstooled. He attached the letter his lawyer wrote to the Registrar of the Sampa Traditional Council and the arbitration proceedings as exhibits “1” and “2” respectively. The 1st Respondent contends that Nana Kwadwo Magsa II Acting President of the Sampa Traditional Council, is a Divisional Chief and a Divisional chief does not swear oath of allegiance to a Divisional Chief to be admitted to the traditional council. As principal kingmaker, he has not nominated Alhaji Alhassan Yahaya to be enstooled as Twafourhene and prayed the Court to dismiss the application. The 2nd and 3rd Respondents filed separate affidavits in opposition and apart from the 2nd Respondent saying that he is a King maker of the Twafour stool of Sampa, both Respondents repeated verbatim the depositions in the 1st Respondent’s affidavit in opposition. They attached the same exhibits as the 1st Respondent. They filed supplementary affidavits in opposition and repeated the same depositions as the 1st Respondent. They prayed the Court to dismiss the application. The 4th Respondent filed affidavit in opposition, repeated the depositions of the 1st, 2nd and 3rd Respondents in their affidavits in opposition and stated that he was selected and enstooled as Twafourhene of Sampa on 19th September, 2013. Pursuant to his enstoolment as Twafourhene of Sampa he regarded himself as such. He admitted that he carries himself as Twafourhene of Sampa at funeral grounds and with the support of the 1st, 2nd and 3rd Respondents he causes announcements to be made to the effect that he is the Twafourhene of Sampa Traditional Area. He however denied making radio announcements. Upon filing a corrective affidavit he noted that the date, 5th May, 2013 intends to suggest falsely that before the arbitration of the Sampa Traditional Council touching on the Twafour stool that went in favour of Alhaji Alhassan Toure, Zachariah 7 Musa and Seidu Musa, the said Adam Yahaya had been enstooled Twafohene of Sampa. He prayed the Court to dismiss the application. BY COURT; S. Kwami Tetteh’s book, Civil Procedure A Practical Approach at page 611 states as follows; Committal for contempt of a lower court or chieftaincy Tribunal is upon application to the High Court. Anything done in relation to exercise of the judicial functions of the National House of Chiefs or a Regional House of Chiefs, which if done in relation to the High Court constitutes contempt, is contempt of the house. Where it appears to a Judicial Committee of a House of Chiefs that a person has committed contempt, the committee may certify that fact to the High Court and if satisfied, the Court would take steps for the committal or acquittal of the contemnor. Any act in relation to the exercise of the judicial functions of a traditional council, which if done in relation to the exercise of the judicial committee of the Council that a person has committed contempt of the Council, the committee may certify the fact to the High Court to inquire into the matter and take steps for the committal or acquittal of the alleged contemnor. In any of the situations above, the aggrieved party is the chieftaincy Tribunal but either the tribunal or the party concerned in the proceedings before the tribunal may make the application. In the latter situation, no certificate is required but in an application by the tribunal, the certificate is indispensable, and a committal without certificate would be set aside. PRELIMINARY MATTERS Before I consider whether the Applicant proved the liability of the Respondents for committal for contempt beyond reasonable doubt, it is important that I address some issues of capacity, fraud and inconsistencies Counsel for Respondents and the Respondents raised against the processes and exhibits the Applicant filed to support his case. 8 WHETHER THE APPLICANT HAS CAPACITY TO MOUNT THIS SUIT The Respondents and their Counsel contend that the Plaintiff in the suit before the JCSTC was Malam Moro Toure while the Applicant in this case is Dramani Siaka who does not have capacity to mount this suit. Counsel noted that since capacity goes to the root of an action and the said Dramani Siaka does not have capacity, the action mounted by the Applicant must fail. Counsel argued that since the extract from the National House of Chiefs, exhibit “C” states that Adama Yahaya was enstooled with the stool name Nana Adams Brekum III on 5th May, 2013, he should have petitioned the JCSTC and not Malam Moro Toure who according to the proceedings was very old and had ear problems so he could not testify. It is instructive to note that the JCSTC determined the matter initiated by Malam Moro Toure as head of family of Kanawolo clan of Sampa and on behalf of his said Stool against the Respondent (sic) and his Nyagoya. The Applicant Dramani Siaka initiated this suit in his capacity as customary successor of Malam Moro Toure. He is therefore properly before this Court and has capacity as customary successor of Malam Moro Toure to initiate this contempt proceedings contrary to Counsel for Respondents’ submission that he lacks capacity. Counsel’s contention that if Alhaji Adams Yahaya were alive he should have initiated this contempt application does not arise because Alhaji Adams Yahaya is not the head of family of the Kanawolo clan on whose behalf Malam Moro Toure instituted the action before the JCSTC. Since the matter involved the Kanawolo family, the family head had capacity to sue. Until the head of family delegates Alhaji Adams Yahaya to sue on behalf of the family he could not do so on his own volition although the family head is old and had ear impairment. The Court is therefore of the view that there is no issue of lack of capacity of the Applicant to initiate this suit as customary successor of Malam Moro Toure who instituted the action at the JCSTC. The JCSTC delivered judgment in favour of Malam Moro Toure for and on 9 behalf of the Kanawolo clan of Sampa and on behalf of the said stool. The said judgment is the subject matter of the present contempt application. The powers of the Judicial Committee of a Chieftaincy tribunal is analogous to the powers of a District Court. An aggrieved party in proceedings before a chieftaincy tribunal could mount contempt proceedings before the High Court according to S. Kwami Tetteh’s book cited supra. The Applicant is therefore properly before this Court as customary successor of Malam Moro Toure in this contempt proceedings. ALLEGATION OF FRAUD ETC IN THE PROCESSES AND EXHIBIT OF THE APPLICANT BY THE RESPONDENTS AND THEIR COUNSEL The Respondents and their Counsel further contend that exhibit “A” the judgment and proceedings of the JCSTC attached by the Applicant is fraudulent. Their reasons are that although the Judgment and the proceedings happened the same day, the substantive Registrar, Isaac Ofosu signed the Judgment and the Acting Registrar, Daniel Semenhyia signed the proceedings with the date of the judgment doctored as 22th (sic) March 2016. Counsel submitted that Malam Moro Toure is the Plaintiff in the said proceedings but he did not testify as the proceedings indicated that he was too old and had ear problems. One Mallam Awudu Ali testified on behalf of the Plaintiff without power of attorney, which is not proper. Counsel mentioned fraudulent acts of the Applicant, which are apparent on the faces of the Applicant’s exhibits attached to his application. He juxtaposed Paragraph 5 (b) of the affidavit in support to the Applicant’s application, to relief (c) of the proceedings of 22th (sic) March 2016. The contention of Counsel is that Alhaji Adams Yahaya in paragraph (5) of the affidavit in support is not the same as Alhaji Berma Adama in relief (c) of the proceedings dated 22th (sic) March 2016 because Adam and Adama are not the same. Counsel submitted that no proceedings was attached to the judgment, exhibit “A” as indicated in the Judgment. According to Counsel the proceedings attached is that of 10 another judgment with the date doctored as 22th March 2016 certified as true copy of the judgment and noted that there is nothing honourable about doctored proceedings. The Petitioner who was too old and had ear problems was directed by the Court to go into execution at the District Court. Counsel contends that the Applicant sought to fill in the gaps with supplementary affidavit in support to show that Nana Adama Brekum III, Jiminihene / Twafourhene are the same. Counsel noted that exhibit “B” indicates that Alhaji Adams Yaya would be introduced at the “Krontihene’s palace Sampa” and the Applicant stated “Sampa palace” in paragraph (8) of his affidavit in support. Counsel contends that Sampa Palace is the palace of the Omanhene. Therefore, the Krontihene’s palace and Sampa palace are not the same, which raises doubts in the Applicant’s depositions in his supporting affidavit. Regarding the inconsistencies, anomalies and allegations of fraud alleged against exhibit “A” by the Respondents and their Counsel enumerated above, Counsel for the Applicant submitted that since the Respondents failed to appeal against the decision of the JCSTC they are estopped from raising issues about it. It is Counsel’s contention that a decision of a competent adjudicating body no matter how incongruous it may be, remains valid until it is set aside. The Court takes notice that it is not the case that the JCSTC did not attach proceedings to its judgment as claimed by Counsel for Respondents. It is also not the case that the proceedings are that of another judgment that was doctored. The Court acknowledges that the date on the face of the judgment is doctored and on the last page there is also an insertion in ink, which is not legible but as rightly argued by Counsel for Applicant until it is set aside it remains valid. Notwithstanding the above, the Court is convinced that the three paged document with the heading; IN THE JUDICIAL COMMITTEE OF THE SAMPA TRADITIONAL COUNCIL TWAFO STOOL AFFAIRS JUDGMENT ON 22TH (SIC) MARCH 2016 11 It was certified as true copy on 22nd March, 2016 as the proceedings accompanying the judgment of the JCSTC which the Registrar captured on the first page of exhibit “A”. The proceedings is not judgment from elsewhere as claimed by Counsel for Respondents. The opening paragraphs of the proceedings and the claims of the Plaintiff confirm that the proceedings in respect of suit No. 1 STC/ JC as stated on the first page of exhibit “A” titled “judgment” did happen and the Registrar of the Sampa Traditional Council signed it. The Registrar mentioned the chairman of the Committee as Nana Yeboah Asuamah Tufuhene and on the third page of the proceedings Nana Yeboah Asuamah Tufuhene signed as chairman. It is also not the case that the Registrar and Acting Registrar both signed the judgment and the proceedings the same day. The Registrar signed the judgment and the Acting Registrar signed the proceedings as the recorder of the proceedings. There is therefore no fraud regarding the judgment and proceedings, which happened the same day and signed by the Registrar and the Acting Registrar respectively. Granted without conceding that there is anything fraudulent about the judgment and proceedings as claimed by Counsel for Respondents, once it is a decision of a competent adjudicating body, it prevails and it must be obeyed until proper steps are taken to set it aside. In the case of The Republic vs. High Court, Accra; Ex Parte Afoda & Another [2001 – 2002] 1 Ghana Law Report (GLR) 416 dated 19th June, 2001 The issue for consideration was whether a party to a suit or a person to whom an order of a court of competent jurisdiction is directed can justify his disobedience of the said order on grounds that the order or process is null and void, erroneous, or improvidently made? With reference to the case of The Republic vs. Brew [1992] 1 Ghana Law Report 14, the Court stated as follows; It was an established rule that an order of a court of competent jurisdiction whether considered erroneous, illegal, indiscreet, or irregular had to be obeyed. Accordingly, non – compliance with 12 an order which amounted to contempt of court could not be justified on the ground that the said order was irregularly made or bad in law. The proper thing for the aggrieved party to do was to question the order in the proper forum by a proper application. Accordingly, the Defendant could not justify her willful disobedience and consequent contempt by her contention that the order was erroneous and therefore her appeal against the interim injunction had a good chance of succeeding. We whole – heartedly endorse the principle as stated above and consequently reiterate the law to be: the fact that an order of, or a process from a court of competent jurisdiction is perceived and considered void or erroneous should not give a party who is affected by the order, or to whom the process is directed, the slightest encouragement to disobey it; and when cited for contempt, only to turn round to justify the said disobedience by the fact that the order ought to have been made or the process issued in the first place. The proper thing to do is to either obey, or sue for a declaration to that effect or apply to have it set aside. The proponent of the order then assumes the burden to justify the order on which he relies and to prove that the order or the process was not improvidently made. As a matter of public policy it is important that the authority of the court and the sanctity of its processes and orders be maintained at all times. It is too dangerous to give a litigant and his counsel the right to decide which orders or process of the court are lawful and therefore deserving obedience and if not, must be disobeyed. An order or process of a court of competent jurisdiction cannot be impeached by disobedience. That way we would needlessly be empowering lawyers in their various chambers, to have supervisory jurisdiction over the courts. That is an effective way to undermine, if not destroy the administration of justice. Although the Court acknowledges the inconsistencies noted by Counsel for Respondents, it is the Court’s respective view that the said inconsistencies are cosmetic and do not affect the root of the matter. The reality is that the Twafohene of Sampa Traditional Area is known in private life as Alhaji Adams Yahaya with the stool name Nana Adams Brekum III who was introduced to Nananom and the people of Sampa on 28th July, 2016 at 10.30am. Although the Applicant stated Sampa Palace in his affidavit in support, 13 Krontihene’s palace stated by the Registrar in exhibit “B” prevails because per the letter that is where the introduction of the new Twafohene was held. The Court takes notice of inconsistencies in the proceedings before the JCSTC and exhibits the Applicant tendered in this Court. In the proceedings, the parties are in some instances referred to as Petitioner and Respondent and in other instances Plaintiff and Defendant and Plaintiff and Respondent. Alhaji Vea and Via, Twafourhene and Twafohene, Jiminihene and Jeminihene, matrimonial instead of matrilineal and Patrimonial instead of Patrilineal, Breku, Bereku and Brekum, Adama and Adams Yaya and Yahaya, Respondent instead of Respondents among others. The Court is of the utmost view that the said inconsistencies do not shake the root of the matter once the real names of the Twafohene for instance could be ascertained from exhibits “B”, “C”, “E” and “E1” which are Alhaji Adams Yahaya (private name) and Nana Adams Brekum III (Stool name). It is useful to note that the said inconsistencies did not affect the Court’s understanding of the substance of the Applicant’s case. The Respondents were given opportunity to be heard in the suit before the JCSTC but they spurned the opportunity to be heard. They filed notice of conditional appearance claiming that Sampa Traditional Council has tried the case. A search conducted at the registry at the instance of the Plaintiff showed that neither the traditional council nor the JCSTC had settled or arbitrated the matter. The Respondents did not file statement of defence neither did they pay the sitting allowance of the committee members. The Committee therefore proceeded without them. The Respondents had notice of the judgment but they did not take any proper steps to appeal against it or have it set aside. In the light of the Ex Parte Afoda case cited supra, the Respondents are obliged to obey the judgment until they take proper steps in a proper forum to appeal against the judgment or have it set aside. Therefore, the Respondents and their Counsel’s argument about the impropriety of the judgment does not arise. The judgment remains valid until 14 a proper application is filed to set it aside. The inconsistencies enumerated by Counsel for Respondents in the Court’s view does not affect the substance of the suit. WHETHER THE APPLICANT PROVED BEYOND REASONABLE DOUBT THAT THE RESPONDENTS ARE LIABLE FOR COMMITTAL FOR CONTEMPT In brief, contempt 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. In Re Effiduase Stool Affairs (No.2) Ex Parte Ameyaw II [1998 – 99] SCGLR 639 @ 660 refers. In the case of Boamah & Ansah Sikatuo Vs. Amponsah [2012] 1 Supreme Court of Ghana Law Report (SCGLR) 58 @ 59; the basic principle regarding the standard of proof for the offence of contempt of court was well – settled. Since contempt of court was quasi criminal and the punishment for it might take various forms, including a fine or imprisonment, the standard of proof required was that of proof beyond reasonable doubt. There was no proof by showing that the person charged with contempt of court had told lies when asked about it. There must be some further evidence to incriminate him. Once some evidence was given, then his lies could be thrown into the scales against him. But there must be some other evidence. In the case of Akele vs. Cofie and Another vs. Okine and Another (Consolidated) [1977] Ghana Law Report 84 – 90 High Court Accra dated 17th March 1978 the Court held that; Where parties seek to invoke the power of the court to commit people to prison and to deprive them of their liberty, there has got to be quite clear certainty about it. What this boils down to is the question of the cogency of the material which is to sustain punishment for contempt. “Contempt of Court is something that may carry penal consequences, even loss of liberty, and the evidence required to establish it must be appropriately cogent. “ 15 In this statement lies the measure of standard of proof, and this standard was stated in very simple and lucid language by Lord Denning M. R in In Re Bramblevale Limited [1970) Ch. 128 at P. 137, CA when he said; “A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use time – honoured phrase, it must be proved beyond reasonable doubt.” In the case of the Republic Vs. Sito Ex Parte Fodjour [2001 – 2002] (SCGLR) 322 The Supreme Court held that the following ingredients must be proved to establish contempt of court; 1. There should have been a judgment or order which requires the contemnor to do or abstain from doing something. 2. The contemnor knew what precisely he was expected to do or abstain from doing. 3. That he failed to comply with the terms of the judgment or order and that his disobedience was willful. Counsel for Respondents argued that the Respondents did not participate in the proceedings at the JCSTC and they did not pay the sitting allowance of the committee members. It is Counsel’s contention that but for their being served with the application the Respondents did not know of the said judgment and proceedings. Counsel submitted that the Respondents were not served with the judgment and the Applicant could not prove that the judgment was served on the Respondents. Counsel for Applicant contends that the Respondents participated in the matter voluntarily and the covering letter of exhibit “A” shows that the Registrar of STC sent copies of the judgment to the 16 Respondents. Therefore, the Respondent’s claim that they only saw a copy of the judgment when the contempt application was served on them is not true. Counsel argued that the letter written by Counsel for Respondents addressed to the Registrar of STC is self – serving because there is no evidence that it was filed at the Registry of the STC. Assuming that the Registrar refused to comply with the letter, there is no reminder to demonstrate how important the proceedings was to the Respondents. According to Counsel, the JCSTC being of the status of a District Court, the failure of parties being served with notice to appear did not oust the jurisdiction of the Council to proceed with its work. Therefore, when several hearing notices were served on the Respondents and they failed to appear, the committee proceeded with its work. When the Respondents filed conditional appearance that the STC had already determined the matter, a search was conducted at the registry of the traditional council to show that the matter had not been settled before. The Court acknowledges the fact that although the Respondents had notice of the proceedings before the JCSTC they failed to participate in it. The Respondents failed to pay the sitting allowance of the Committee members and they did not file statement of defence. They therefore did not participate in the proceedings. The Committee therefore proceeded without them after considering the applicable law which clothed them with jurisdiction to continue in the absence of the Respondents. The committee noted that it was the responsibility of the Respondents to file proper statement of defence and not to rely on the arbitration judgment of some members of the council. According to the committee, the 2nd Respondent who had not paid the judicial committee members’ sitting allowance for two years asked the committee to adjourn the sitting to April ending, because he is the chief security of Jaman North District Assembly and there was demonstration in town. The committee noted that demonstration in town had absolutely nothing to do with the judicial committee sitting. 17 The Respondents denied the enstoolment of Alhaji Adams Yahaya on 5th May, 2013 and contend that if the said date is anything to go by, then it means that Alhaji Adams Yahaya was enstooled before the arbitration was held and therefore that could not be true. A careful reading of the proceedings of the JCSTC shows that before the Plaintiff petitioned the JCSTC Alhaji Yahaya had already been enstooled in accordance with Muslim custom on 5th May, 2013. One of the Plaintiff’s reliefs before the Committee was for the Respondents to be restrained to pave way for his introduction of Alhaji Berma Adama to the chiefs and elders of Sampa. The covering letter of exhibit “A” authored and signed by the Registrar of the Traditional Council shows that notice of the judgment and proceedings were addressed to the 1st, 2nd and 3rd Respondents. However, there is no evidence before this Court to establish that the Respondents were served personally with the judgment and proceedings of the JCSTC dated 22nd March, 2016. It is instructive to note that the essence of service is to give notice to parties in a suit. It is worthy to note that when the head of family of the Kanawolo clan commenced the action before the JCSTC the Respondents were served with the Plaintiff’s statement of claim in which his reliefs which were reproduced in the proceedings, exhibit “A” are as follows; a. Declaration that the Kanawolo family is sole custodian of the Twafo Stool of Sampa. b. Declaration that the Respondent and his so called Nyagoya are not entitled to ascent to the Twafo Stool of Sampa. c. An order to restrain the Respondent, his agents, assigns, successors in title from dealing with the Twafo Stool of Sampa in any manner and to pave way for Alhaji Berma Adama to be introduced to the Chiefs and Elders of Sampa Traditional Council. The proceedings show that the Respondents entered conditional appearance to the suit, which establishes conclusively that they were served with the Plaintiffs reliefs. Therefore, 18 the Applicant established that the Respondents were served with the Plaintiff’s reliefs in the suit before the JCSTC. The Committee after hearing the Plaintiff delivered judgment in the Plaintiff’s favour for all his reliefs, which the Respondents already knew about. Although the Respondents did not participate in the proceedings at the JCSTC, they had notice of the judgment dated 22nd March, 2016 based on which on 24th January, 2020 their lawyer wrote to the Registrar of the STC. The letter seems to suggest that the Respondents did not have the proceedings and judgment so their lawyer requested the Registrar to furnish him with them. Although the letter suggests that Counsel needed the judgment and proceedings to advise his clients, the Respondents did not produce further evidence to show that they followed up on the proceedings, which their lawyer needed to advise them. For the avoidance of doubt, Counsel for Respondents’ letter dated 24th January, 2020 addressed to the Registrar of the Sampa Traditional Council for and on behalf of Alhaji Alhassan, Seidu Musa and Zakaria Musa the 1st, 2nd and 3rd Respondents respectively had the heading; IN RE: MALLAM MORO TOURE VS. ALHAJI ALHASSAN, SEIDU MUSA, SIAKA MUSA AND ZAKARIA MUSA. Both Counsel intimated to the Court that Siaka Musa is deceased and he is not among the Respondents in the present suit. Excerpts of the letter Counsel wrote on behalf of the Respondents are as follows; With due deference, I write to you on instructions of Alhaji Alhassan, Seidu Musa and Zakaria Musa hereinafter referred to as my clients acknowledging receipt of your letter dated 10th January, 2020 with Reference Number STC/LM/V.1/20. With due respect, the content of your letter leaves much to be desired. A matter that had been heard by the Judicial Committee of your Traditional Council and my clients pronounced victorious on or around 16th August, 2013 cannot be heard by your Judicial Committee again. Your Judicial Committee has no appellate jurisdiction. 19 Please furnish me at your earlier (sic) convenience with a Certified True Copy of the record of proceedings of the Judicial Committee as regards the hearing and verdict of the matter you claim had been heard and or determined. Although the content of the Registrar’s letter dated 10th January, 2020 being acknowledged by Counsel for Respondents is not stated in Counsel’s letter, the acknowledgement of receipt of the Registrar’s letter and the immediate paragraph suggests that the Respondents had notice of the judgment. The question is which matter is counsel referring to that has been settled? Per the Respondent’s arbitration proceedings that they relied on, the matter was on; SETTLEMENT ON CHIEFTAINCY DISPUTE ON TWAFO STOOL – JEMINE AND EXHIBIT “A” IS ON TWAFO STOOL AFFAIRS The above confirms that the matter Counsel for Respondent was referring to in the letter is about chieftaincy dispute regarding the Twafo stool. The letter establishes that the Respondents had notice of the judgment because their lawyer stated in the letter that “A matter that had been heard by the Judicial Committee of your Traditional Council and my clients pronounced victorious on or around 16th August, 2013 cannot be heard by your Judicial Committee again. Your Judicial Committee has no appellate jurisdiction”. Counsel for Respondent’s request to be furnished with a copy of the proceedings does not in any way dispute the fact that the Respondents had notice of the judgment. It is the Court’s considered view that the essence of service of processes on parties is to give them notice of the proceedings for them to defend themselves. It is clear from Counsel for Respondents’ letter written on behalf of the Respondents to the Registrar of STC that the Respondents had notice of the judgment, the subject matter of this contempt application. 20 The Applicant therefore established positively that there was a judgment dated 22nd March, 2016 delivered by the JCSTC in favour of the Plaintiff’s reliefs; That the Kanawolo family of Sampa is sole custodian of the Twafo stool of Sampa. That the Respondent and his so called Nyagoya are not entitled to ascent to the Twafo stool of Sampa. The judgment also granted the Plaintiff’s claim for an order to restrain the Respondent, his agents, assigns, successors in title from dealing with the Twafo Stool of Sampa in any manner and to pave way for Alhaji Berma Adama to be introduced to the Chiefs and Elders of Sampa Traditional Council. It is the Court’s view that the Respondents were served with the plaintiff’s statement of claim, which had the plaintiff’s reliefs in it and the JCSTC, granted all the reliefs to the Plaintiff. The Respondents therefore knew of the Plaintiff’s claims before the JCSTC. The JCSTC delivered judgment in the Plaintiff’s favour for the said reliefs, which the Respondents knew. The Respondents subsequently had notice of the judgment delivered in favour of the Plaintiff for his reliefs based on which their lawyer wrote to the Registrar. With foreknowledge of the Plaintiff’s reliefs the Respondents knew what precisely they were expected to do or abstain from doing. Per the judgment, they were restrained from having any dealings with the Twafo Stool of Sampa and to pave way for Alhaji Berma Adama to be introduced to the chiefs and elders of Sampa Traditional Council. Although Alhaji Berma Adama was introduced to the chiefs and elders, the Respondents put impediments in his way by parading the 4th Respondent as Twafohene of Sampa Traditional Area. The Applicant attached an audio and video recording as exhibit “D”. The Court, the parties and their lawyers listened to and watched Exhibit “D” an audio recording of an announcement on radio and a video recording of announcement at a funeral ground in open Court. The Respondents admitted the funeral announcement but denied the radio announcement and stated that the said announcement was made because the 4th 21 Respondent was enstooled as Twafohene of Sampa pursuant to the arbitration proceedings that was determined in their favour. The Respondents’ admission of the funeral announcement and denial of the radio announcement is enough to convince the Court that the Applicant’s allegation against the Respondents is true. The above recent developments is what compelled the Applicant to file this contempt application on 8th December, 2022. The Respondents relied on an arbitration, which they claim was held by the STC. Instead of filing a statement of defence to participate in the trial, to tender the arbitration proceedings to prove the validity of the said arbitration, and to establish their defence they did not. Instead, they willfully disobeyed the judgment of the JCSTC referring to it as fraudulent. Their lawyer stated in the letter written to the Registrar of the STC as follows; My clients have not participated in another hearing of the same subject matter they were pronounced victorious. My clients performed the requisite custom when they were pronounced victorious. My clients selected, elected and enstooled a new Twafohene after they were pronounced victorious and have since requested for a date to introduce the new Twafohene to your traditional council. It is the Court’s considered view that the above statements made by Counsel in the letter written on behalf of the Respondents is very crucial and it was very important for the Respondents to have appeared before the JCSTC to establish their defence. The Respondents relied on the arbitration proceedings, which allegedly gave the Twafo Stool (Jemine) to Alhaji Alhassan Group to choose a suitable candidate for the stool. Per Counsel’s letter on behalf of the Respondents, the Respondents requested for a date from the traditional Council to introduce the new Twafohene but the Respondents did not lead evidence as to whether the traditional council gave them the date and whether the 4th Respondent was introduced to the traditional council. It appears to the Court that neither 22 the STC nor the JCSTC recognized the said arbitration proceedings flaunted by the Respondents. If they did, they would not have entertained the Plaintiff’s action because the arbitration was purportedly held on 16th August. 2013 and judgment was delivered in the Plaintiff’s favour on 22nd March, 2016. The arbitration proceedings was therefore first in time and it would have taken precedence over the Plaintiff’s case, which was mounted later. The arbitration proceedings between Alhaji Alhassan Group and Abubakari Group has nothing to do with this case and the Court did not find any reference to the Applicant nor the Plaintiff who mounted the suit before the JCSTC. The said arbitration proceedings therefore does not apply to the present case. Counsel for Respondents contends that in the light of the arbitration that was held before the JCSTC, Malam Moro Toure was estopped from litigating the same Twafour stool matter before the same traditional Council which determined the matter in favour of the 1st Respondent’s group. The Court takes notice that the proceedings does not show that Malam Toure participated in the arbitration proceedings. The membership of the committee was seven (7). However one member Nana Yaw Bediako, Linguist did not sign the proceedings and no reason was stated on the face of the proceedings for his refusal to sign contrary to Section 49 (4) of the Alternative Dispute Resolution (ADR) Act, 2010 (Act 798). Section 49 (4) of the Alternative Dispute Resolution Act, 2010 (Act 798) provides that; 49 (4) Where there is more than one arbitrator, the signatures of the majority of the arbitrators shall be sufficient where the reason for the omission of the signatures of some of the arbitrators is stated. The Arbitration and Mediation Rules, 2020 published by the Ghana ADR Hub, Article 29.4 states that; 23 If any arbitrator refuses or fails to sign the award, the signatures of the majority or (failing a majority) the Chairman shall be sufficient, provided that the reason for the omitted signature is stated in the award by the majority or the chairman. My understanding of the law is that an arbitration proceeding / award would be valid if majority of the panel members sign and reasons are given on the proceedings why other members abstained from signing. Where a panel member declines to sign without reasons given on the proceedings or award it will not be valid. In the Court’s considered view therefore, since one of the arbitrators did not sign the arbitration proceedings held on 16th August, 2013 and neither the chairman nor the majority stated the reason on the agreement, same is not valid and therefore cannot be relied upon. Therefore, the proceedings of the JCSTC dated 22nd March, 2016 prevails since the Respondents did not seize the opportunity to tender the alleged arbitration proceedings as estoppel against the plaintiff. Baring all the issues raised against the Applicant’s processes filed, particularly the judgment which is the subject matter of the present application, the Court is of a maximum conviction that until the Respondents take proper steps to appeal against the said judgment or have it set aside the said judgment remains valid. The Respondents in the circumstance must obey the said judgment. Consequently, it is the Court’s considered view that the 1st, 2nd and 3rd Respondents were served with the Plaintiff’s reliefs before the JCSTC and they had notice of the judgment the JCSTC delivered in favour of the Plaintiff’s reliefs. They knew that per the said reliefs on which the judgment was based, they were restrained from having any dealings with the Twafo stool of Sampa. Yet, the Respondents, recently before the Applicant mounted this action willfully disobeyed the judgment and the 4th Respondent with the support of the 1st, 2nd and 3rd Respondents carries himself as the newly installed Twafohene of the Sampa Traditional Area. They relied on an arbitration proceedings which is known to them alone not known to the Applicant, the STC nor the JCSTC and one of the arbitrators 24 did not sign the proceedings to make it authentic. Therefore, the Respondent’s denial that they did not have notice of the judgment and the proceedings is an afterthought calculated to escape punishment. Consequently, the Court’s view is that the Respondent’s defence did not raise doubts in the Applicant’s case. CONCLUSION In the light of the foregoing, the Court’s conclusion is that the Applicant proved beyond reasonable doubt that the Respondents are liable for committal contempt. The Court accordingly finds the Respondents liable for contempt as prayed by the Applicant. PLEA OF MITIGATION BY COUNSEL FOR RESPONDENTS • My lady looking at the Respondents they are all above sixty five (65) years. • Considering the sentencing guidelines of our country, contempt although custodial, also comes with a fine. • Thirdly, from the town that they are coming from which is Sampa, the said town is even under curfew due to some other chieftaincy dispute. • In the interest of justice, I pray that My Lady imposes a fine rather than imprisonment because sentencing them to prison will cause uproar in their town. • They are all responsible citizens of the country and they have no brush with the law. 25 • They are all family men with one or more wives as well as children and grandchildren. In order not to cause hardship to their family members, we humbly pray that you exercise your discretion to impose a fine rather than custodial sentence. SENTENCE After taking into consideration the plea of mitigation by Counsel for the Respondents, I hereby sentence each of the Respondents to pay a fine of GH₵ 40,000.00 each to the Republic. In default, each of the Respondents shall serve two months imprisonment. JUSTICE JOYCE BOAHEN HIGH COURT JUDGE 25TH JULY 2024 26