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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.
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