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11 DECEMBER 1992
Contempt of court – Offence –
Ingredients – Disobedience of
court orders punishable for
undermining court authority and
endangering orderly development
of society.
Contempt of court – Offence –
Punishment – Mitigation –
Contemnor serving substantial
part of custodial punishment
before grant of bail – Contemnor
prepared to purge contempt –
Contemnor not to be sent back
into custody.
On the strength of the decision
of the Ashanti Regional House of
Chiefs, upholding destoolment
charges against the appellant,
the kingmakers proceeded to
destool him. Despite the
destoolment the appellant held
on to the stool properties. On
the respondents’ application,
the Ashanti Region House of
Chiefs ordered the 2nd
respondent to take over the
stool properties, whereupon the
2nd respondent applied to the
High Court, Kumasi for a writ of
possession. The appellant
appealed to the Court of Appeal
against the grant of the writ of
possession and upon the
dismissal of the appeal the writ
of possession was issued. When
the officers of the court went
to execute the writ, the
appellant refused to surrender
the stool properties. The
respondents therefore applied to
the High Court to commit him for
contempt. The High Court judge
ruled that the appellant was in
contempt and sentenced him to
six months imprisonment without
hard labour unless he purged his
contempt by the surrender of the
stool properties to the second
respondent. The appellant
applied for a review of the
order and offered in his
affidavit in support of the
application to purge his
contempt. The court then ordered
that an official of the Ashanti
Region House of Chiefs and a
bailiff should accompany the 2nd
respondent to recover the stool
properties. The appellant then
applied for a declaration that
the entire proceedings
culminating in his attachment
were void on account of
Executive Instrument No 13 dated
1/3/89 that empowered the PNDC
District Secretary for Wenchi to
take possession of the stool
properties. The High Court judge
dismissed the application and
amended the committal order by
deleting the liberty reserved to
the appellant to purge his
contempt. The appellant then
appealed to the Court of Appeal.
Held:
(1) Orders of the courts ought
to be respected. It would be
chaotic to allow persons to
flout the orders of the courts
with impunity and thus undermine
the courts’ authority. That
would endanger the development
of an orderly society. It was
clear from the record that the
appellant wilfully disobeyed the
court’s order to surrender the
stool properties. EI 13, passed
on 1/3/89, said nothing about
the contempt proceedings then
pending in court. It did not
also purport to indemnify the
appellant against any punishment
that might be meted out to him.
If it was intended that the
instrument should affect the
power of the court to deal with
the matter pending before it,
the instrument would have said
so expressly. The trial judge
was right in holding that the
appellant was in contempt of the
order made for the recovery of
the stool properties and the
appeal would be dismissed.
(2) However the appellant ought
not to be sent back to prison to
serve the remaining three months
of the six-month sentence,
having served 3 months before
being granted bail. In view of
the appellant’s willingness, on
the date of his sentence, to
apologise and to purge his
contempt, and his filing two
days later, of a motion and an
affidavit in which he apologised
and expressed his preparedness
to purge his contempt by
surrendering the stool
properties, the appellant should
have been dealt with more
leniently. The six month prison
sentence would be set aside; in
its place, the appellant would
be cautioned and discharged.
Cases referred to:
Baah v Baah
[1973] 2 GLR 8.
Heatons Transport (St Helens )
Ltd v Transport and General
Workers Union
[1972] 2 All ER 1214; [1972] 3
WLR 73 CA; reversed [1973] AC
15; [1972] 3 WLR 431; [1972] 3
All ER 101 HL.
Mosi v Bagyina
[1963] 1 GLR 337, SC.
APPEAL from the ruling of the
High Court.
Obeng-Manu
for the appellant.
Adumua Bossman
for the respondent.
ADJABENG JA.
On 5 May 1975, the judicial
committee of the Kumasi
Traditional Council dismissed
charges brought by the 2nd
respondent herein, Opanin Yaw
Boyie and others against the
appellant, Nana Tabiri Kwaku,
seeking to destool him as the
Ohene of Nchiraa in the Brong
Ahafo Region of Ghana. An appeal
lodged at the Ashanti Region
House of Chiefs against the
dismissal of the charges,
however succeeded. In its
judgment given on 10 August
1976, the Ashanti Region House
of Chiefs substantially upheld
the destoolment charges brought
against the appellant at the
Kumasi Traditional Council.
Dissatisfied with this decision,
the appellant, Nana Tabiri
Kwaku, appealed to the National
House of Chiefs. This appeal
was, however, later abandoned by
the appellant and consequently
it was struck out. On the
strength of the judgment of the
Ashanti Region House of Chiefs,
therefore, the 2nd respondent,
Nana Boyie, and the other
kingmakers customarily destooled
the appellant as Nchiraahene.
Despite the destoolment which,
in effect made the appellant an
ordinary person, he refused to
accept his new status. He still
held on to the stool and its
properties. This compelled the
2nd respondent and his
colleagues to apply to the
Ashanti Region House of Chiefs
on 4 May 1984, for an order that
the 2nd respondent as the
Abontendomhene, should take over
the stool properties as
caretaker, apparently pending
the enstoolment of a new chief.
The Judicial Committee of the
Ashanti Region House of Chiefs
granted the application and
ruled as follows:
“It is hereby ordered that the
Abontendomhene Opanin Yaw Boyie
be appointed to take over all
the stool properties and to be
the custodian on behalf of the
House for the meantime.”
The 2nd respondent then applied
to the High Court, Kumasi, under
Order 42 rule 6 of the High
Court (Civil Procedure) Rules
1954 (LN 140A) and section 30(1)
of the Chieftaincy Act 1971 (Act
370), for the recovery of the
Nchiraa Stool properties from
the appellant. The High Court
granted the application on 15
October 1984. The appellant then
appealed against the grant to
this court. In a unanimous
judgment read by Taylor JSC,
this court dismissed the appeal.
In effect, therefore, the order
of the High Court that a writ of
possession be issued to enable
the 2nd respondent take over the
Nchiraa Stool properties from
the appellant was affirmed by
the Court of Appeal in its said
judgment dated 28 April 1988.
The writ of possession was
subsequently issued by the High
Court, Kumasi on 13 October
1988. But when the officers of
the court went to execute it on
the appellant at the palace at
Nchiraa on 21 October 1988, the
appellant flatly refused to
surrender the stool properties.
According to the report of the
executing bailiff, exhibit D, at
page 18 of the record herein,
the appellant said: “I will
never hand over the Nchiraa
Stool property to anybody”.
It is not surprising therefore,
that on 7 December 1988, the
respondents herein filed a
motion at the High Court, Kumasi
for a writ of attachment to
issue for the committal of the
appellant for contempt of court
because of the [appellant’s]
failure to comply with [the]
Writ of Possession” issued by
the court. After hearing
arguments on the matter, the
judge on 13 March 1989, ruled
that the appellant was in
contempt of the orders made for
the recovery of the Nchiraa
Stool properties. According to
the judge, the appellant “has
wilfully disobeyed the order
made by the Ashanti Region House
of Chiefs”, and he made the
following orders:
“I find him guilty and sentence
him to six months imprisonment
without hard labour unless he
earlier purges his contempt by
the surrender of the Stool
properties to the second
applicant, Opanin Yaw Boyie.”
The appellant later applied for
the review of the order. He
deposed in the supporting
affidavit that he was sorry for
what had happened, and he
offered to purge his contempt by
delivering the stool properties
as ordered, if he would be
allowed to do so. The court was
prepared to permit the appellant
to purge his contempt. The court
ordered that an official of the
Ashanti Region House of Chiefs
and a bailiff of the court
should accompany the 2nd
respondent to Nchiraa for the
surrender of the stool
properties to the 2nd respondent
in the presence of armed
policemen. A date convenient to
those involved was to be fixed
for the purpose.
This exercise could however not
be carried out when a motion was
filed on behalf of the appellant
seeking to declare the order
void. The application was based
on Executive Instrument No 13
dated 1 March 1989, which
ordered the PNDC District
Secretary for Wenchi to take
possession of the Nchiraa stool
properties.
The contention of the appellant
in that application as deposed
in paragraph 7 of the
application is as follows:
“That in view of the said EI
13, the whole proceedings which
culminated in my attachment on
13 March 1989, I am legally
advised and I verily believe the
same to be true, were null void
and of no legal effect
whatsoever.”
The appellant therefore prayed
that the order of the court for
the attachment and sentence be
set aside and an order made for
his release.
The learned High Court judge was
not impressed by the appellant’s
argument. On 8 May 1989, he
dismissed the application but
amended his order of 13 March
1989, by deleting therefrom the
“unless” clause therein, thus
making the sentence of 6 months
no longer conditional. It is
against the court’s order of 13
March 1989, and the refusal to
set it aside that the appellant
has lodged this appeal. It must
be mentioned here that while
this appeal was pending the
appellant applied to this court
for bail. He was granted bail
after he had been in prison for
three months on condition that
he complied with the provisions
of EI 13. He did comply.
The two grounds of appeal filed
are as follows:
“(i) The judgment/ruling or
order of the court below dated
13 March 1989 was null and void
as it was judgment/ruling given,
made or delivered without
jurisdiction.
(ii) The judgment/ruling or
order of the court below dated 8
May 1989 was erroneous and void
in that it was made, given or
delivered in excess of
jurisdiction.”
The contention of the appellant
simply is that EI 13 dated 1
March 1989, took the matter out
of the jurisdiction of the
court, and so the court had no
power to make the order it made
on 13 March 1989 convicting the
appellant for contempt as the
matter was, since 1 March 1989,
no longer within the
jurisdiction of the court.
Counsel for the appellant cited
in support Mosi v Bagyina
[1963] 1 GLR 337 at pp 342 -
343.
The 2nd respondent’s counsel
disagrees. He contends that the
court’s order was valid because
since 4 May 1984, when the
Ashanti Region House of Chiefs
made the order for the surrender
of the stool properties, the
appellant had been in continuous
contempt of the said order. To
counsel, therefore, the order of
13 March 1989, dishing out
punishment for the said
contempt, which had already been
committed, could not have been
affected in any way by EI 13
passed on 1 March 1989. In any
case, argued the 2nd
respondent’s counsel, the
instrument, EI 13, in so far as
it purported to interfere with a
matter then pending before the
court, was itself an act of
contempt. He invited the court
to ignore it.
As mentioned earlier, the
argument advanced on behalf of
the appellant is that EI 13 had
taken the matter involving the
appellant out of the
jurisdiction of the High Court
at the time the court made the
order complained of.
But did EI 13 really do that? As
explained earlier, EI 13 only
ordered the PNDC District
Secretary for Wenchi “to take
possession of the Nchiraa Stool
property”. This instrument,
which was passed on 1 March 1989
does not say anything about the
contempt proceedings then
pending before the court against
the appellant. Nor does it say
that the court should not deal
with this contempt matter. It
does not also purport to
indemnify the appellant against
any punishment that might be
meted out to him. It seems to me
that if it was intended that
this instrument should affect
the power of the court to deal
with the matter before it, or it
was intended that the court
should stop dealing with it, the
instrument would have said so
specifically.
The motion giving rise to the
court’s order of 13 March 1989
was filed on 7 December 1988 as
mentioned earlier. It is an
application praying the court
“for a writ of attachment to
issue to respondent hereto for
committal to prison of the
respondent hereto for the
respondent’s failure to comply
with a writ of possession and,
or fieri facias filed in
this Honourable Court, on 13
October 1988, pursuant to an
order of the Ashanti Region
House of Chiefs, dated 4 May
1984 and High Court order of
Amua-Sekyi J dated 15 October
1984 granting leave for the said
writ of possession to issue and
a further order dated 21 January
1985”.
It is clear from the motion
paper quoted above, and the
supporting affidavit that the
application before the court was
for attachment for contempt of
court. It was not for the
delivery of Nchiraa stool
property. It was an application
for the punishment of the
appellant for disobeying the
court’s order. There is no doubt
that when the writ of possession
issued by the court was shown to
the appellant at Nchiraa by the
officers of the court, he said
flatly that he would not comply
with it. That was on 21 October
1988. Does this refusal not
amount to contempt of court? And
how can it be said that the
power of the court to punish the
appellant for this blatant
disobedience of the court’s
order has been taken away by EI
13 when this instrument passed
over four months later never
said anything like that, and
only directed the District
Secretary to take delivery of
the Nchiraa stool property?
It need not be emphasised that
the orders of the courts ought
to be respected. It will be
chaotic to allow persons to
flout the orders of the courts
with impunity, and thus
undermine the courts’ authority.
That will endanger the
development of an orderly
society. In the English case of
Heatons Transport (St Helens)
Ltd v Transport and General
Workers Union [1972] 2 All
ER 1214, CA, Lord Denning MR
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.”
Also, in the local case of
Baah v Baah [1973] 2 GLR 8,
where the respondents, executors
of the will of the applicant’s
husband refused to honour the
order of the court to make some
payments and instituted an
action for a declaration that
the order was null and void,
Annan JA, sitting at the High
Court Accra, held, inter alia,
and applying the dictum of Lord
Denning quoted above that:
“disobedience to a judgment or
order of the court
for the payment of money to any
person or into court
constituted contempt of court
for which the sanction was
attachment. Disobedience was
a refusal to honour the order of
the court rather than a mere
failure to do so...”
(The emphasis is mine.)
It was also held in that case
that the respondent’s disregard
of the court’s order for the
reason that the order was
unreasonable or incorrect
“amounted to a conscious
disobedience of a court order”.
It is clear from the record
before us that the appellant
wilfully or consciously
disobeyed the court’s order to
surrender the stool properties
to the 2nd respondent when the
writ of possession was executed
on him on 21 October 1988. He
told the court officials that he
would never comply with the
court’s order. As stated
earlier, he said “I will never
hand over Nchiraa stool property
to anybody”. Of this statement,
the learned High Court judge in
his ruling of 13 March 1989
said:
“This allegation the respondent
never denied in his affidavit.
The contention by the respondent
that no proper execution was
effected is false. The hostile
crowd he caused to be assembled
in his ahenfie and the
threats they made were all at
his instance, and support the
allegation that he wilfully
refused to hand over the stool
properties.”
I have no hesitation, therefore,
in agreeing with the learned
trial judge that the appellant
was in contempt of the order
made for the recovery of the
Nchiraa Stool properties.
Again, I see nothing wrong with
the learned judge’s refusal to
set aside his order of 13 March
1989, convicting the appellant
of contempt of court. In his
ruling of 8 May 1989, the
learned judge ruled that his
earlier order had not been
rendered void by EI 13 which was
dated 1 March 1989. That was
because, as rightly pointed out
by the judge, the appellant had
refused to hand over the stool
properties on 21 October 1988,
when the writ of possession was
executed on him. According to
the judge, the appellant,
therefore, committed the
contempt on that date, 21
October 1988.
I agree entirely with the
learned judge when he ruled that
EI 13 made subsequently on 1
March 1989 did not affect the
appellant’s contempt and did not
interfere with his blatant
disrespect for the due process
of law. I think therefore that
the appeal against the
conviction for contempt must
fail.
It is my view, however, that the
appellant ought not to be sent
back to prison to serve the
remaining three months of the
six-month sentence, having
served three months before being
granted bail. In view of the
appellant’s willingness on the
date of his sentence to
apologise and to purge his
contempt, and his filing two
days later, of a motion and an
affidavit in which he apologised
for what had happened, and
expressed his preparedness to
purge his contempt by
surrendering the stool
properties, I think that the
appellant should have been dealt
with more leniently. Because of
the above matters and what the
appellant has suffered, I think
that the six months prison
sentence imposed on the
appellant ought to be set aside.
In its place, I would substitute
a caution and discharge.
In sum, the appeal against the
conviction for contempt fails
and it is dismissed.
ESSIEM JA.
I agree.
LUTTERODT JA.
I also agree.
Appeal dismissed.
Justin Amenuvor, Legal
Practitioner. |
