The Republic Vrs Adu And Others (H1/225/07) [2008] GHACA 30 (17 April 2008);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA – GHANA
________________________________________________________
CORAM: ARYEETEY, J.A. (PRESIDING)
MARFUL-SAU, J.A.
MARIAMA OWUSU, J.A.
CIVIL APPEAL NO. H1/225/07
17TH APRIL, 2008
THE REPUBLIC
VERSUS
(1) NANA KWASI ADU }
(2) NANA KOFI ASUSEI } RESPONDENTS/APPELLANTS
(3) NANA OPPONG ASAMOAH }
EX PARTE JOHN OSEI KUSI ….APPLICANT/RESPONDENT
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J U D G M E N T
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ARYEETEY, J.A.
This is an appeal against the ruling of the Kumasi High Court in a motion for an order of Attachment and/or committal for contempt in the court below against the respondents “for their various acts and conducts with respect to Nkekyerekyi lands especially the 1st Respondent’s act of allocating parcels of Nkekyerekyi lands to prospective developers as buildings plots and the 2nd Respondent’s act of reporting the applicant herein to the Striking Force Unit of the Ghana Police Service for criminal trespass in respect of Nterkyerekyi lands and the 3rd Respondent’s act of removing demarcation pillars on the said land which said diverse acts are calculated to bring the authority and administration of the law into [disrepute] or disregarded in the light of the ruling of the High Court, Kumasi dated 1st November 2002” Since the application is based on the ruling of the Kumasi High Court in Suit No. MISC. 138/2001 dated 1st November 2002, there is the need to go into the background of that judgment. Before I do that I would like to touch briefly on a matter which emanated from the ground of appeal filed by the respondents/appellants. The appellants filed only one ground of appeal, that is, “The trial judge erred in law when he convicted the Respondents/appellants for Contempt of Court in relation to their own land in respect of which they hold a valid subsisting Consent Judgment of the High Court to which Consent Judgment the Applicant respondent is not even a party”. The ground of appeal quoted above suggests that since the applicant/respondent was not a party he had no locus standi to pursue the contempt proceedings in the court below. I observe that in his written submissions of the appellants’ case, counsel for the appellant did not address the issue of locus standi as implied in the wording of the ground of appeal which I have just referred to. It is worthy of note that in Suit No. LS 42/97 where the applicant respondent was plaintiff, the claim to set aside the consent judgment was dismissed. The conclusion of that judgment which is at page 47 of the record of appeal is as follows: “I conclude in the circumstance that the plaintiff and whoever support(s) him had the same interest in the previous action. The battle was fought by the 2nd and the 3rd defendants herein to a peaceful end. It is therefore not competent for the plaintiff to re-open the case. His case therefore failed, and it is accordingly dismissed.” That means even though he was not a party in Suit No. 747/92 he shared the same interests in the land in dispute with the defendants in that case. He was not therefore allowed to re-open the case which had been concluded on a peaceful note by way of amicable settlement. In my view therefore, the applicant/respondent was entitled to pursue the contempt proceedings in the court below.
Now we come back to the background of the ruling of the Kumasi High Court in Suit No. MISC. 138/2001, the subject matter of which was supposedly the basis for the contempt proceedings before the court below, which is the subject matter of this appeal. It all started with the case of Nana Kofi Edusei and Another v. Nana Akwasi Adu (Suit No. LS 747/92). The parties in that case arrived at terms of settlement which were embodied in a judgment dated 17th October 1996. That was followed by Suit No. LS 42/97, John Kusi v. Nana Akwasi Adu and 6 Others in which the plaintiff in that case sought to have the consent judgment of 17th October 1996 set aside as void. The plaintiff was unsuccessful. His claim was dismissed in its entirety. Thereupon a motion for contempt, which was The Republic v. John Osei Kusi and 2 Others, ex parte Nana Kwasi Adu, numbered Misc. 138/2001 was brought against the respondents in that application by Nana Kwasi Adu. The motion for contempt was dismissed. The concluding porting of the High Court’s ruling in the contempt proceedings reads:
“It has been alleged that the respondents have disobeyed the restraining order of the Court, that is, the respondents have gone beyond the land allocated to them. The respondents have denied going onto any land belonging to the applicant. Unfortunately, Exhibit C.E.1 is not too helpful. What I expected to see on Exhibit C.E.1 was the location of the old township of the respondents, the location of Nkekyerekyi, the location of the 15 acres or 60 building plots that were offered to the respondents under the Terms of Settlement and the area the respondents have trespassed onto. Merely saying that the respondents are in contempt without proving it would not ground a conviction. The evidence must show clearly that the respondents are in contempt as the charge of contempt is quasi criminal and so the guilt of the respondents must be proved not by preponderance of probabilities but beyond reasonable doubt. In the case of The Republic v. Bekoe & Ors: Ex parte Adjei [1982-83] 1GLR 91, it was held that ‘a civil contempt partook of the nature of criminal charge because conviction might entail imprisonment. Consequently, the principle of law was quite clear that where a person was charged with contempt of court his guilt should be proved with the same strictness as required in a criminal trial, i.e. prove beyond reasonable doubt’. The applicant failed to prove that the respondents are in contempt of any order(s) of the Court. The charge of contempt was accordingly not made out against him. In the circumstances, the application will be dismissed and it is hereby dismissed.”
Incidentally the applicant, Nana Kwesi Adu appealed to this court in respect of the ruling and the appeal was dismissed in a judgment of this court dated 14th December 2006. Long before that date, following the Kumasi High Court’s ruling dated 1st November 2002 the motion for Attachment and/or Committal for Contempt, the ruling in respect of which is the subject matter of this appeal, was filed on 4th February 2003. As stated clearly in the motion paper and the supporting affidavit the basis of that application for contempt was the respondents’ disregard for the supposed orders of court in the ruling quoted above. Paragraphs 7-10 of the supporting affidavit state quite clearly the basis of the application for contempt. They are as follows:
“7. That in spite of the clear finding that the land on which I am working did not form part of the land granted to the 1st Respondent in Suit No. LS42/97, he continues to claim to my land and has been allocating portions to prospective developers as building plots.
8. That the 2nd Respondent who is aware of the ruling of the High Court dated 1st November 2002 has also laid claim to the land and has reported me to the Striking Force Unit of the Ghana Police Service to be investigated and prosecuted for criminal trespass.
9. That the 3rd Respondent who is aware of the ruling of the High Court dated 1st November 2002 has gone on to the land and removed demarcation pillars put up by the applicant.
10. That the conduct of the Respondents are clearly calculated to bring the administration of justice and the law into disrepute and disregard in that knowing fully well that upon their own application the High Court has found that they are not entitled to the portion of the land which I am in possession of, they continue to exhibit conduct to suggest that they have no regard at all for the hallowed pronouncement of the High Court.”
I have reproduced the relevant portion of the ruling of the High Court to bring into focus the existence or otherwise of any portion of the said ruling, the violation of which by the respondents would be basis for application for contempt. In the High Court of case of Baah v. Baah & Another, reported in [1973] 2GLR 8, Annan, J.A. had this to say at page 12 of the report:
“Disobedience to a judgment or order of the Court for the payment of money to any person or into court constitutes contempt of court for which the sanction is attachment under Order 44, r. 2 of L.N. 140A: see The Annual Practice 1964, p. 1074. It seems to me that the essence of disobedience is a refusal to honour the order of the court rather than mere failure so to do. The distinction seems to me to lie in the one case in an intentional unwillingness to do what the court has ordered to be done even though one is able so to do and in the other case inability to comply with the order even if one wants so to do. It seems to me that intention and ability are relevant matters for consideration in this type of contempt unlike other cases of contempt such as the case of acts or conduct likely to prejudice a fair trial or to interfere with the due administration of justice such as the case of Narh v. Dombo, Court of Appeal, 23 March 1970, unreported; digested in (1970) C.C. 64 which exemplifies the type of contempt based upon interference with the due administration of justice. In Heatons Transport (St. Helens) Ltd. v. Transport and General Workers Union [1972] 2 All E.R. 1214, C.A., Lord Denning M.R. said at p. 1247: "Disobedience to the orders of the court is an offence of a criminal character. . . . The disobedience must, therefore, be a conscious disobedience to the order of the court or at any rate, turning a blind eye to it."
It appears from the supporting affidavit that the stand of the applicant/respondent has been that the respondents/appellants acted in violation and in disregard of an order or orders of the court. In this case there is therefore the need for the applicant/respondent to establish a clear intention by the respondents/appellants to disobey or disregard identifiable order from the court contained in its ruling dated 1st November 2002, which in actual fact the respondents/appellants disobeyed or disregarded. From the passage in the ruling in Suit No. MISC 138/2001 quoted above there was no order or orders of the court which the respondents were expected to obey neither was there restraining order from the court which the respondents/appellants were required to comply with. There was therefore no basis for their conviction for contempt. The appeal is therefore allowed. The conviction and sentence of the court below are set aside.
[SGD.] B. T. ARYEETEY
JUSTICE OF APPEAL
MARFUL-SAU, J. A.
This appeal is against the ruling of the High Court, Kumasi dated the 19th February 2007. The Notice of Appeal has one ground and same was argued. The facts of the case are simple. The Respondents/Appellants, herein to be called Appellants were adjudged owners of a parcel of land in suit No. LS 747/92, which was settled by consent. The Applicant/Respondent, herein called Respondent, sought to set aside the judgment in suit No. Ls 747/92 but his action was dismissed by the High court, Kumasi in suit No. LS 42/97.
On losing the contest in suit No. LS.42/97, the Respondent herein and some members of his family entered unto the land, alleged to be part of land, adjudged to the Appellants as owners, in suit No. LS747/92. Consequently the appellants herein brought contempt proceedings against the Respondent and two elders of his family, in suit No. MISC 138/2001. On the 1st November 2002, the High Court presided over by Abrahams . J. dismissed the contempt proceedings, having found that the Appellants herein failed to prove the guilt of the Respondent and his elders.
Upon his acquittal of the contempt, the Respondent initiated fresh contempt proceedings in Suit No MISC 57/03, against the Appellants, which proceedings had led to this appeal. In suit No MISC 57/03, the Respondent alleged the following charges against the Appellants.
For 1st Appellant, that he was allocating parcels of Nterkyerekyi land to prospective developers as building plots. The charge against 3rd Appellant was that he had removed demarcation pillars on the said land. The 2nd Appellant died in the course of the proceedings at the High Court, so the case was prosecuted against the 1st and 3rd Appellant.
By his motion and affidavit, the ground for the charges was that the conduct of the Appellants were calculated to bring the authority and administration of law into disrepute in the light of the ruling of the High Court, Kumasi dated 1st November 2002, in suit No. MISC 138/2001. From the affidavit and the statement verifying the application, it was clear that the contempt proceedings was grounded or founded on the ruling of Abrahams J. dated 1st November 2002.
The trial Court heard the case and on the 19th February 2007, found the Appellants guilty of contempt and sentenced them to sign a self-recognizance bond not to step on the Ntekyerekyi land. Cost of ¢2,000,000.00 each was awarded against the Appellants.
As I have already observed, the notice of Appeal filed on the 19th February 2007, is at page 66 of the record and it has one ground of appeal namely “that the trial Judge erred in law when he convicted the Respondents/Appellants for contempt of court in relation to their own land in respect of which they hold a valid subsisting consent judgment of the High Court to which consent judgment the Applicant/Respondent herein is not even a party”.
My observation upon studying the record of appeal is that the parties to all the contempt proceedings recited in this appeal prosecuted same as if the respective actions were for declaration of title or ownership to land. For this reason in Suit No. MISC 138/2001, Abrahams J. was led into error to appoint a surveyor to conduct a survey in a contempt action when the burden was on the Applicant to prove the guilt of the Respondent.
Now to this appeal, the ruling appealed against is at page 65 of the record of appeal. The said ruling is as follows:
“In my considered view this is a quasi criminal case. But then, the 1st and 3rd Respondents do not deny their presence on the part of the land, the Court found not to be theirs. The 2nd Respondent now dead though served never took the trouble to defend the action. I therefore find the 1st and 3rd Respondents liable in contempt of the courts decision dated 1st November 2002. The 1st and 3rd Respondent will sign a self-recognizance bond not to step on the Ntekyerekyi land. In default the 1st and 3rd Respondents will serve a term of imprisonment for six months. 1st and 3rd Respondents will pay cost of ¢2,000,000.00 each to the applicant. Case disposed of”.
From the ruling the Appellants were convicted for their alleged presence on a land found not to be theirs. I have carefully examined the ruling of Abrahams J. dated 1st November 2002 on which the complaint was based and I do not see any such finding made by the court. In other words, Abrahams J. ruling did not determine ownership rights neither did it decree declaration of title in any of the parties. The ruling dismissed the Appellants herein action for contempt against Respondent on grounds that Appellants failed to prove the contempt of Respondent. The ruling of 1st November 2002 did not declare or order anything in favour of the Respondent on which he could base or found the action of contempt.
IN RE EFFIDUASE STOOL AFFAIR (NO.2) REPUBLIC V. NUMAPAU, PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS AND OTHERS, EXPARTE AMEYAW II (NO2) 1998-99 SCGLR 639, what constitutes contempt was stated as follows:
“ Contempt of court was constituted by any act or conduct that tended to bring the authority and administration of the law into disrespect or disregard or to interfere with or prejudice parties, litigants, or their witnesses in respect of pending proceedings. And contempt of court might be classified either as direct and indirect or civil and criminal. Direct contempts were 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 were those arising from matters not occurring in or near the presence of the court, but which tended to obstruct or defeat the administration of justice, such as failure or refusal of a party to obey a lawful order, injunction or decree of the court laying upon him a duty of action or forbearance. Civil contempts were those quasi – contempt consisting in failure to do something which the party was ordered by the court to do for the benefit or advantage of another party to pending proceedings, while criminal contempt were acts done in respect of the court or its process or which obstructed the administration of justice or tendered to bring the court into disrespect”.
In as much as no evidence was adduced to establish that the Appellants had failed to obey or comply with an order or decree contained in the ruling of Abrahams J. dated the 1st November 2002, they could not have been guilty of contempt. The law is that contempt being quasi – criminal, the proof is beyond reasonable doubt and the Applicant, in this case the Respondent was to establish a prima facie case even before the Appellants were to be called to answer the charges. In this appeal there could be no prima facie case against the Appellants since the ruling of 1st November 2002 did not contain any order that could be breached.
Counsel for the Respondent in his submission urged on this court the case of Republic V. Nana Buabin II, Ex parte Nana Kuffour I 1992 – 93 GBR 1663. This case is distinguishable. In that case an order for certiorari was granted to quash a destoolment. By quashing the destoolment the order was directing that Nana Kuffour I was still chief and to prevent him from exercising his office was a direct attack on the order quashing the destoolment. In the instant case the ruling of 1st November 2002 did not decree any order, it only held that the Appellants had failed to prove the contempt of the Respondent. That ruling never adjudged the Respondent owner of any parcel of land. Indeed that was not the issue before Abrahams J.
The general principle of law is that a court vested with power to punish for contempt must do so on clear grounds and where the charge has been proved beyond reasonable doubt. The power to convict and punish for contempt is meant to preserve the sanctity and integrity of the court and so must be used judicially in order that public confidence in the courts would not erode.
In conclusion I am of the opinion that the entire proceedings before the High Court Kumasi culminating in this appeal was unnecessary, since no wrong was committed by the Appellants against the ruling of Abrahams J. No prima facie case was made against the Appellants and I find their conviction and sentence wrong in law. Consequently I will allow the appeal and set aside the conviction and sentence of the Appellants. The ruling of the court below dated 19th February 2007 is accordingly set aside. The appeal succeeds.
[SGD.] S. MARFUL SAU
JUSTICE OFAPPEAL
MARIAMA OWUSU, JA:- This is an appeal against the ruling of the High Court, Kumasi dated 19-02-07, convicting the Respondents/Appellants for contempt of court. The Respondents/Appellants were ordered by the court to sign a self recognizance bond not to step on Nterkyerekyi land or in default they will serve a term of imprisonment for six months. They were also asked to pay cost of ¢2 million each to the Applicant/Respondent.
Dissatisfied with the said ruling, the Respondents/Appellants have appealed to this court.
The Grounds of appeal are as follows:
1. The trial judge erred in law when he convicted the Respondent/
Appellants for contempt of court in relation to their own land in respect
of which they hold a valid subsisting consent Judgment of the High
Court, which Consent judgment, the Applicant/Respondent herein is
not even a party.
2. Additional grounds of Appeal will be filed when the full proceedings are
received.
The relief being sought from the Court of appeal is that the said Decision/Ruling and all its consequential orders be set aside and the appeal be allowed.
The background to this case is as follows; On the 17-10-1996, the High Court, Kumasi in Suit No. LS/747/92 titled:
NANA KOFI ADUSEI & OTHERS
VRS.
NANA KWASI ADU & OTHERS
Delivered itself this way.
BY COURT:
<<The case has been amicably settled between the parties and the terms of settlement filed on the 31st of July 1996.
Consent judgments are accordingly hereby entered against all parties in the terms of the Terms of Settlement as filed on the 31st July 1996. The suit is in the circumstances struck out as settled upon these terms. The Order of interim injunction granted against all the parties is hereby vacated in the circumstances.>>
On the 14-02-03, the applicant/Respondent filed motion on Notice for an Order of Attachment and or committal for contempt against the Respondents/
Appellants for various acts and conducts with respect to Nterkyerekyi lands
especially the 1st Respondent/Appellant’s act of allocating parcels of Nterkyerekyi lands to prospective developers as building plots and the 2nd respondent’s act of reporting the Applicant/Respondent to the Striking Force Unit of the Ghana Police Service for Criminal Trespass in respect of the Nterkyerekyi lands and the 3rd Respondent/Appellant’s act of removing demarcation pillars on the said land which said diverse acts are calculated to bring the authority and administration of law in to disrepute or disregard in the light of the ruling of the High Court, Kumasi, dated 1-11-02. In the supporting affidavit, the applicant averred among other things that, 1st Respondent/Appellant instituted contempt proceedings against him (the Applicant/Respondent) in the High Court, Kumasi. In that application, 2nd and 3rd Respondents/Appellants supported the said application and filed affidavit in support of the 1st Respondent/Appellant’s application. That the basis of the said 1st Respondent/Appellant’s contempt application was that the Applicant/Respondent had gone unto a piece of land at
Nterkyerekyi which was the subject matter of a judgment in the Suit No. LS42/97. that the behaviour of the Applicant/Respondent was in breach of the order of injunction granted against him in that case. The Applicant continued that his defense was that he had not gone unto the said land. That the High Court, Kumasi presided by Justice Abraham ordered a plan to be drawn and upon submission of the plan and the evidence from the surveyor, the court came to the conclusion that the applicant herein had not gone unto the land.
Consequently the Applicant/Respondent was not guilty of contempt and the application was therefore dismissed. It is the applicant/Respondent’s case that inspite of the clear finding that the land the applicant/respondent is working on did not form part of the land granted to the 1st Respondent in suit No. LS/42/97, the 1st Respondent/Appellant continues to claim Applicant/Respondent’s land. He had been allocating portions to prospective developers as building plots. That the 2nd Respondent in that application who is aware of the ruling of the High Court dated 1-11-02 has also laid claim to the land and has reported the Applicant/Respondent to the Striking Force Unit of the Ghana Police Service to be investigated and persecuted for criminal trespass. That the 3rd Respondent/appellant who is also aware of the ruling dated 1-11-02 had also
gone onto the land and removed demarcation pillars put up by the Applicant/
Respondent. That the conducts of the Respondents/Appellants are clearly calculated to bring the administration of justice and the law into disrepute and disregard.
That their conduct amounts to contempt of court and they ought to be punished.
The Respondents/Appellants opposed the application and filed affidavit in opposition to that effect. In particular, the Respondents/Appellants relied on the consent judgment of the High Court dated 17-10-96 and said since there was no appeal against the said Consent Judgment, the consent Judgment is conclusive and operates as estopple per rem judicatem. That the ruling in the contempt application dated 1-11-02 did not affect or vary the contents of the Consent Judgment. They concluded that nothing was declared or ordered in favour of the Applicant/Respondent in that ruling which can found or base his application and pray that the application be dismissed. The High Court, Kumasi, after going through the respective statement of cases, on the 19-2-07, delivered itself this way. “In my considered view this is a quasi-criminal case. But then the 1st and 3rd Respondents do not deny their presence on the part of land the court found not to be theirs. The 2nd Respondent is now dead though served but never took the trouble to defend the action. I therefore find 1st and 3rd Respondents liable in contempt of the court’s decision dated 1-11-02. The 1st and 3rd Respondents will sign a self recognizance bond not to step on the Nterkyerekyi land. In default, they will serve a term of imprisonment for six months. They will pay cost of ¢2 million each to the Applicant. Case disposed off.”
It is this decision that the Respondents/Appellants have appealed against.
In their written statement of case filed on the 4-9-07, and in arguing the sole ground of appeal filed, counsel for the Respondents/Appellants submitted that by finding that 1st and 3rd Respondents/Appellants did not deny their presence on the part of land the court had found not to be theirs; the trial judge fell into error. This is because this finding is inaccurate as there was no such finding by any of the decisions exhibited on the record, in particular in the ruling of Justice Abrahams dated 1-11-02. Similarly, the decision of the Court of
Appeal dated 14/12/06 in Civil Appeal No. H1/135/05, which decision affirmed the High Court ruling dated 1-11-02 did not make any such finding. Counsel continued that no declaration of title to any separate and distinct parcel of land was ever made in favour of the Applicant/Respondent. No description of the boundaries was given and this was re-echoed by the High Court ruling dated 1-11-02. that both the High Court and the Court of appeal rulings dated 1-11-02 and 14-12-06 respectively held that the 1st Respondent/appellant could not prove beyond reasonable doubt the contempt charge. Counsel concluded that the finding of the High court that the Respondents/Appellants had admitted going on to the land outside the consent judgment boundaries is not supported by the
evidence on record nor the ruling of the High Court dated 1-11-02. Therefore the trial judge was wrong in convicting the Respondents/Appellants both on the facts of the case and also because the Applicant/Respondent could not proof the alleged contempt. Counsel therefore urged this court to reverse the ruling of the High Court dated 19-2-07.
In answer to these submissions, counsel for the Applicant/Respondent submitted that whilst the Respondents/Appellants appeal is on a point of law no error of law had been canvassed on their behalf. That all the arguments had been to impugned the weight of evidence. That the Appellants went to court by way of contempt application to have the Respondent punished for being on a parcel of land which was adjudged to belong to the 1st Respondent/Appellant in Suit No. LS/747/96. That both the High Court and the Court of Appeal held that the Respondents/Appellants had failed to prove that the land indeed was covered by the consent judgment. Counsel continued that following that failure, it was not open to the Respondents/Appellants to behave as if no ruling had been given by the court. That their behaviour subsequent to the dismissal of that contempt application was acts calculated to bring the administration and the authority of the law into disrepute. That even the way the ground of appeal has been couched shows that the Appellants are clearly saying that, as far as they are concerned, they believe that the land on which the Respondent Osei Kusi erected sign boards belongs to 1st Respondent/Appellant by virtue of the decision
In Suit No. LS/747/96. Counsel referred to the case of Republic Vs. Nana Buabin II, Ex-Parte; Nana Kuffour 1 1992-93 GBR 1663, and submitted that once the High Court in the contempt application in MISC 301/01 had a map drawn up, and came to the conclusion that, the Applicant/Respondent was not in contempt, it would follow that the land he had gone onto was found not to be the land covered by the consent judgment The behaviour of the Respondents/ Appellants was done in utter disregard of this implied finding by the court and this constitute the contempt of bringing the administration of justice into disrepute in terms of the decision in the Ex-Parte Kuffour I case cited supra. In other words, the acts of the 1st Respondent/Appellant in allocating part of the land to third parties as building plots and the 3rd Respondent/Appellant’s act of removing demarcation pillars on the land amounted to outrageous disregard of the order of the High Court dismissing the contempt application brought against the Applicants/Respondents in Suit No. MISC 381/2001 and this is sufficient conduct to constitute contempt of court. Counsel concluded that since the Respondents/
Appellants have not denied having done the acts charged against them, the
Applicant/Respondent has proved beyond reasonable doubt that, they have indeed done so.
>>Civil Contempt partakes of the nature of a Criminal charge. The defendant may be liable to a term of imprisonment. The requisite degree of proof in civil cases in which crime is alleged against a party, (including civil contempt), is proof beyond reasonable doubt in terms of Section 13 of the Evidence Decree, 1975 NRCD 323….
In the instant case, the respondent cannot be held guilty of contempt in respect of the two published obituaries complained of by the applicants, which had described the respondent as the queenmohter of Kwabeng, contrary to the earlier order of the Supreme Court made on the 19-06-02 restraining the respondent from claiming or presenting herself as the Queenmother of Kwabeng.
On the evidence, the posters are not the acts of the respondents nor is she in anyway, privy to them.” See the Supreme Court case of In Re Kwabeng Stool; Republic Vrs. Broni; Exparte; Karikari & Another [2005-2006] SCGLR 35, 37.
From the case cited supra, the standard of proof in a contempt case is proof beyond reasonable doubt. In this appeal the contempt against the Respondents/
Appellants from the trial High Court Judge’s ruling is that “But the 1st and 3rd respondents do not deny their presence on the part of the land, the court found not to be theirs…..”
Section 13 of the Evidence Decree, 1975, NRCD 323 states;
“In any Civil or Criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt.” Sub Section 2 states;
“Except as provided in Section 15(3), in a criminal action the burden of persuasion when it is on the accused as to any fact the converse of which is essential to guilt, requires only that the accused raise a reasonable doubt as to guilt.”
This means that, the burden is on the one accusing the party to proof beyond reasonable doubt. Therefore the burden on the person alleging is higher. In the case that resulted in the 1-11-02 ruling, what the trial judge said was that
“Merely saying that the respondents are in contempt without proving it will not ground a conviction. The evidence shows clearly that the respondents are not in contempt, as a charge of contempt is quasi-criminal and so the guilt of the respondents must be proved not by preponderance of probabilities but beyond reasonable doubt…” It goes on’ “consequently the principle of law is quite clear.
Where a person was charged with contempt of court his guilt should be proved with the same strictness as required in a criminal trial i.e. proof beyond reasonable doubt. The Applicant has failed to prove that the Respondents are in
Contempt of any orders of the court. The charge of contempt was accordingly not made out against him. In the circumstances, the application will be dismissed and it is hereby dismissed.” This was on the 1-11-02. Clearly from the ruling quoted supra, there was no order made. Similarly, the Court of Appeal
made this point when the case went on Appeal. Their Lordships in a unanimous decision Per Dotse JA, relying on the Supreme Court Case of In Re Effiduase Stool Affairs Case (No. 2), Republic Vrs. Others; Ex-Parte: AMEYAW II
[1998-99] SC GLR 639 held that “ we are therefore of the opinion that, once the learned trial judge found as a fact at pages 54 of the Record of Appeal, that, the identity of the land has not been properly established after arguments by both counsel, then it meant that the Applicant herein who had to prove the contempt charge against the Respondents beyond reasonable doubt had failed to meet the burden of proof. In such a situation, on the basis of the authority in In Re Effiduase Stool Affairs Case (No. 2) already referred to supra, the learned judge should have dismissed the contempt application.” It goes on “in our considered view, this is a quasi-criminal case and standard of proof required to succeed is proof beyond reasonable doubt. Since the standard was eloquently stated in In Re Effidause Stool Affairs, (No. 2) has not been met we deem it proper to dismiss the appeal herein.” From both the High Court ruling dated 1-11-02 and the Court of Appeal judgment dated 14-12-06, confirming the ruling, no order(s) were made for which the Respondents/appellants can be said to have breached. All that the judges said was that the Respondents/Appellants did not meet the standard of proof cast on them. So their application for contempt should fail. No order or orders were made. If the Applicant/Respondent wants to attach the Respondents/Appellants for contempt, they should proof it in terms of Section 13 of the Evidence Decree NRCD 323 by showing the portion of land the Appellants had gone onto, the boundaries etc. What the trial judge did in the ruling under appeal was to shift the burden of proof onto the appellants and in doing so erred in law. In the Court of appeal decision dated 14-12-06, their Lordships commented on the fact the trial judge after listening to the arguments from both counsel, ordered a plan to be drawn up to ascertain the real situation on the ground. Their Lordships said that was wrong. Once he found that the contempt has not been proved beyond reasonable doubt he should have dismiss the application and not ordered a plan to drawn.
From the forgoing therefore, the conviction of the Respondents/Appellants for contempt was wrong. It is for this reason that the conviction and the consequential orders together with the cost would be set aside and same is hereby set aside. The Appeal succeeds accordingly.
[SGD.] MARIAMA OWUSU [MS]
JUSTICE OF APPEAL
COUNSEL:- ADUMUA-BOSSMAN FOR APPELLANTS.
MICHAEL OWUSU FOR RESPONDENT.
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