|
Chieftaincy –
Causes of matter affecting
Chieftaincy - Contempt of Court
– Succession to stool -
Nomination – Capacity - Judicial
Committee of the Agogo
Traditional Council – Whether or
not the respondent had
established a case of contempt
against the appellants -
Whether or not the standard of
proof required is that of proof
beyond reasonable doubt. -
Sections 11(3) and 13(2) of the
Evidence Act, NRCD 323
HEADNOTES
Following the
death of Nana Kwaku Affum, the
Akwamuhene of Agogo Traditional
Area, the stool became vacant
and therefore it became
necessary for the kingmakers to
find a successor. In his
capacity as the head of family,
the respondent herein nominated
one Nana Adu Asabre whiles the
second appellant nominated the
first appellant herein At a
meeting held subsequently to
elect the successor to the stool
from the two nominees, the
kingmakers agreed to determine
their choice by the casting of
votes. Out of the sixteen votes
cast, the majority opted for
Nana Adu Asabre, the nominee of
the respondent while the other
contestant, the first appellant
herein had five votes. The
victorious party thereafter
performed the requisite
customary rites by providing two
bottles of schnapps and five
hundred cedis, which was shared
among the elders with the first
and second appellants herein,
however, refusing to accept
their share. It appears that
from this moment, the Asakyiri
royal family was not at peace as
subsequent events would attest
to. In order to bring the family
together, the respondent as head
asked the queen mother of
Asakyiri family of Adansi
Akrokeri to intervene in the
matter but she referred the
matter to the chief of Morso,
the third appellant herein.
Instead of resolving the
impasse, the third appellant
asked the queen mother to
nominate one of the two
contesting parties to occupy the
stool. This she did by
nominating the first appellant.
Naturally, the other side felt
aggrieved and resorted to legal
action by taking out an action
before the Judicial Committee of
the Agogo Traditional Council
claiming reliefs that were in
their nature causes or matters
affecting chieftaincy including
a declaration that Nana Adu
Asabre has been lawfully
nominated and elected for
enstoolment as the occupant of
the Akwamu Stool of Agogo
traditional Area and a
declaration that the subsequent
nomination and election of the
first respondent herein ( third
defendant in the chieftaincy
case) for enstoolment is void
and of no legal effect Whiles
the said petition was pending
before the Judicial Committee
and before its determination,
the first respondent herein who
is the third defendant in the
said case was enstooled as
Akwamuhene of the Agogo
Traditional Area. The respondent
feeling overreached by his
adversaries, commenced contempt
proceedings against the
appellants herein for enablng
the swearing in to be done
before the Agogohene who was
cited as the fourth respondent.
the High Court, trial judge
convicted the appellants and
sentenced them variously after
acquitting and discharging the
fourth respondent to the
application. Having felt
dissatisfied with the conviction
and sentences imposed on them,
the appellants lodged an appeal
to the Court of Appeal which
after hearing the parties
dismissed the appeals and
affirmed the decision of the
trial High Court
HELD
We think that
the learned justices of the
Court of Appeal did not advert
their minds to this aspect of
the case and that their failure
ought to be righted by us by
allowing the appeal herein on
this ground alone which we
consider sufficient for the
purpose of our determination in
the proceedings herein .The
result is that the convictions
and sentences imposed on the
appellants by the trial High
Court are hereby set aside.
STATUTES
REFERRED TO IN JUDGMENT
Evidence Act,
NRCD 323 of 1975.
CASES
REFERRED TO IN JUDGMENT
Heatons
Transport (St Helens) Ltd v
Transport and General Workers
Union [1972] 2 All ER 1214 CA
Republic v
Numapah, President National
House of Chiefs 7 ORS; EX PARTE
Ameyaw II (No 2) [1998-99] SCGLR
639.
Re
Bramblevale Ltd [1969] 3 All ER
1062
In Re Aryeeetey (Decd); Aryeetey
v Okwaby [1987-88] 2 GLR 44;
The Republic v Bekoe; EX Parte
Adjei [1982-83] GLR 91.
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ANIN-YEBOAH
JSC:
COUNSEL
GODFRED
YEBOAH-DAME FOR THE 1ST
AND 3RD
RESPONDENTS/ APPELLANTS/
APPELLANTS.
KENNETH
AGYEMANG-ATTAFUAH, WITH HIM
MARTIN KPEBU FOR THE APPLICANT/
RESPONDENT/ RESPONDENT.
______________________________________________________________________
ANIN-YEBOAH JSC:
This is an appeal from the
judgment of the Court of Appeal
that confirmed the previous
decision of the High Court,
Kumasi in a
contempt
application. For the sake of
convenience, in this judgment,
we refer to the applicant in the
trial High Court as the
respondent and the respondents
in the trial court as the
appellants. The circumstances in
which the contempt application
was taken out by the respondent
in the High Court are these.
Following
the death of Nana Kwaku Affum,
the Akwamuhene of Agogo
Traditional Area, the stool
became vacant and therefore it
became necessary for the
kingmakers to find a successor.
In his capacity as the head of
family, the respondent herein
nominated one Nana Adu
Asabre whiles the second
appellant nominated the first
appellant herein.
At a meeting held subsequently
to elect the successor to the
stool from the two nominees, the
kingmakers agreed to determine
their choice by the casting of
votes. Out of the sixteen votes
cast, the majority opted for
Nana Adu Asabre, the nominee of
the respondent while the other
contestant, the first appellant
herein had five votes. The
victorious party thereafter
performed the requisite
customary rites by providing two
bottles of schnapps and five
hundred cedis, which was shared
among the elders with the first
and second appellants herein,
however, refusing to accept
their share. It appears that
from this moment, the Asakyiri
royal family was not at peace as
subsequent events would attest
to. In order to bring the family
together, the respondent as head
asked the queen mother of
Asakyiri family of Adansi
Akrokeri to intervene in the
matter but she referred the
matter to the chief of Morso,
the third appellant herein.
Instead of resolving the
impasse, the third appellant
asked the queen mother to
nominate one of the two
contesting parties to occupy the
stool. This she did by
nominating the first appellant.
Naturally, the other side felt
aggrieved and resorted to legal
action by taking out an action
before the Judicial Committee of
the Agogo Traditional Council
claiming reliefs that were in
their nature causes or matters
affecting chieftaincy including
a declaration that Nana Adu
Asabre has been lawfully
nominated and elected for
enstoolment as the occupant of
the Akwamu Stool of Agogo
traditional Area and a
declaration that the subsequent
nomination and election of the
first respondent herein ( third
defendant in the chieftaincy
case) for enstoolment is void
and of no legal effect. The
petitioners also claimed the
ancillary relief of perpetual
injunction restraining the
defendants their agents,
servants and or privies from
holding the first respondent out
as the Akwamuhene elect of
Agogo.
Whiles the said petition was
pending before the Judicial
Committee and before its
determination, the first
respondent herein who is the
third defendant in the said case
was enstooled as Akwamuhene of
the Agogo Traditional Area. The
respondent feeling overreached
by his adversaries so to say,
commenced contempt proceedings
against the appellants herein
for conspiring, colluding and
collaborating to have the first
appellant enstooled in the midst
of tight security which enabled
the swearing in to be done
before the Agogohene who was
cited as the fourth respondent.
The contempt proceedings were
heard before
the High
Court, Kumasi and on 23
February, 2005, the learned
trial judge convicted the
appellants herein and sentenced
them variously after acquitting
and discharging the fourth
respondent to the application.
Having felt dissatisfied with
the conviction and sentences
imposed on them, the appellants
lodged an appeal to the Court of
Appeal which after hearing the
parties dismissed the appeals
and affirmed the decision of the
trial High Court in the
matter. The appellants are
before this court on a second
appeal inviting us to set aside
their convictions and the
sentences founded thereon.
Before the appeal could be heard
by us, however, the second
appellant embarked upon a
journey to join her ancestors
and as such is no longer a party
before us in these proceedings.
This appeal has been argued on
several grounds, perhaps the
most arguable of the grounds was
the first which was expressed as
follows:
“The
learned judges failed to
consider that
the
respondent had not established a
case of contempt against the
appellants.”
In
support of the said ground,
learned counsel for the
appellants urged on us that the
contempt proceedings being
quasi-criminal in nature, the
standard of proof required to
secure a conviction is that of
proof beyond reasonable doubt
and that on the affidavit
evidence that was placed before
the learned trial judge of the
High Court, the evidence in its
totality was insufficient to
satisfy the burden of proof in
such cases as provided for in
sections
11(3) and 13(2) of the
Evidence
Act, NRCD 323 of 1975.
Several cases were cited to
support this contention among
which are the following:
(1)
HEATONS TRANSPORT (ST HELENS)
LTD v TRANSPORT AND GENERAL
WORKERS UNION [1972] 2 All ER
1214 CA
(2)
REPUBLIC v NUMAPAH, PRESIDENT
NATIONAL HOUSE OF CHIEFS 7 ORS;
EX PARTE AMEYAW II (NO 2)
[1998-99] SCGLR 639.
We would like to say at once
that the basic principle that is
discernible from a collection of
cases regarding the standard of
proof in contempt matters is
settled and free from conflict
of opinion and make reference to
the pronouncement of Acquah JSC
(as he then was) in the NUMAPAH
case (supra) wherein he said at
page 665 as follows:
“Now,
since contempt is quasi-criminal
and the punishment for it may
take various forms, including a
fine or imprisonment,
the
standard of proof required is
that of proof beyond reasonable
doubt.”
In making that speech, Acquah
JSC echoed the opinion that is
generally accepted as correct in
such matters regarding the
standard of proof. In the case
of RE
BRAMBLEVALE LTD [1969] 3 All ER
1062 at 1063, Denning L J
said as follows:
“A contempt
of court is an offence of a
criminal character. To use the
time honoured phrase, it must be
proved beyond reasonable doubt.
It must be satisfactorily
proved. It is not proved by
showing, that when the man was
asked about it, he told lies.
There must be some further
evidence to incriminate him.
Once some evidence is given,
then his lies can be thrown into
the scales against him. But
there must be some other
evidence.”
On the evidence contained in the
rival depositions there were two
equally possible situations,
either the respondents had
wrongfully done that which was
urged against them or they had
not done so. The court must be
satisfied beyond all reasonable
doubt that they had done so
based solely on the affidavit
evidence. There is no room for
conjecture and evidence was
required to be placed before the
court to enable it comes to a
decision on the matter. By
evidence, we mean proof beyond
the affidavits .We add that it
was not enough for the purposes
of the application with which we
are concerned in this
application to have left the
serious depositions of fact at
large as it was not possible to
say which of the two versions
of the matter was correct. In
the absence of further evidence,
the learned trial judge fell
into error when he purported for
no reason whatsoever that
appears from the record to
accept the case of the applicant
as it did not satisfy the
evidential burden of proof
beyond reasonable doubt. In the
face of the denial by the
respondents to the contempt
application, the applicant ought
to have called further evidence
in the matter or by seeking
leave to have the deponent
cross-examined on his
deposition, which in such cases
has the effect of
evidence-in-chief and not having
done so then the court was faced
with an assertion and a denial
that by the operation of the
rules placed the burden of
dislodging the effect of the
denial on the applicant in order
to sustain his application for
contempt.
His failure so to do signaled
the failure of his application
as the respondents were entitled
in the circumstances to have the
benefit of the doubt. See - (1)
IN RE
ARYEEETEY (DECD); ARYEETEY v
OKWABY [1987-88] 2 GLR 44; (2)
THE REPUBLIC v BEKOE; EX PARTE
ADJEI [1982-83] GLR 91.
We think that the learned
justices of the Court of Appeal
did not advert their minds to
this aspect of the case and that
their failure ought to be
righted by us by allowing the
appeal herein on this ground
alone which we consider
sufficient for the purpose of
our determination in the
proceedings herein .The result
is that the convictions and
sentences imposed on the
appellants by the trial High
Court are hereby set aside.
(SGD) ANIN
YEBOAH
JUSTICE
OF THE SUPREME COURT
(SGD) S. A. B.
AKUFFO (MS.)
JUSTICE
OF THE SUPREME COURT
(SGD) S. O.
A. ADINYIRA
(MRS.)
JUSTICE OF THE SUPREME COURT
(SGD) N. S.
GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) V.
AKOTO-BAMFO (MRS.)
JUSTICE
OF THE SUPREME COURT
COUNSEL;
GODFRED
YEBOAH-DAME FOR THE 1ST
AND 3RD
RESPONDENTS/ APPELLANTS/
APPELLANTS.
KENNETH
AGYEMANG-ATTAFUAH, WITH HIM
MARTIN KPEBU FOR THE APPLICANT/
RESPONDENT/ RESPONDENT.
|
