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J U D G M E N T
DOTSE, J.S.C:
William Blackstone, the 18th
century English Jurist, is
credited with the following
statement, which has had
profound application in common
law jurisdictions including
Ghana. He stated and I quote:
“Better that ten
guilty persons escape than one
innocent suffer”
The story is also told of a
Chinese law Professor who, when
he was advised on the American
and common law belief that it
was better that a thousand
guilty men go free than one
innocent man be executed,
retorted “Better for whom?” The
Chinese law Professor was
answered thus:
“Better for all, because as
history has proven, if anyone
can be unlawfully jailed,
everyone can be unlawfully
jailed”.
These are the principles that
have underpinned the criteria
for establishing the ingredients
for offences such as contempt.
This is because contempt is
quasi-criminal and has to be
proved beyond all reasonable
doubt against whoever is accused
of having flouted or disobeyed
the court’s orders.
In Re: Effiduase Stool Affairs
(No.2) Republic vrs. Numapau,
President of the National House
of Chiefs and others Ex-parte
Ameyaw 11 (No.2) [1998-99] SCGLR
639 the Supreme Court stated as
follows:
“Since contempt of court was
quasi-criminal and the
punishment for it might include
a fine or imprisonment the
standard of proof required was
proof beyond reasonable doubt.
An applicant must, therefore,
first make out a prima facie
case of contempt before the
court could consider the
defences put upon by the
respondents”
We believe that it is also to
reinforce this time tested
principle of the contemnor being
presumed innocent until proven
guilty that the Supreme Court in
the case of Republic vrs. SITO 1
Ex-parte Fordjour [2001-2002]
SCGLR 322, laid down the
following as the essential
elements in dealing with the
offence of contempt:
“There must be a judgment or
order requiring the contemnor to
do or abstain from doing
something.
It must be shown that the
contemnor knows what precisely
he is expected to do or abstain
from doing and
It must be shown that he failed
to comply with the terms of the
judgment or order and that
disobedience is willful”
FACTS OF THE CASE
The facts of this case due to
their presentation from the
trial High Court to this court
now admit of some complexities.
On the 14th day of April, 1997
an action was commenced before
the Judicial Committee of the
Gomoa Akyempim Traditional
Council in a suit titled
Ebusyanpanyin Kodwo Abor and 3
others vrs. Nana Abor Ewusie XIX
and ANR seeking essentially
reliefs which constitute a
cause or matter affecting
chieftaincy. Basically, the
reliefs sought to destool the
Ist Defendant Nana Abor Ewuise
XIX as chief of Gomoa Fetteh.
The Judicial Committee of the
Gomoa Akyempim Traditional
Council, on the 22nd day of
August, 1997 at Gomoa Assin
delivered a ruling in favour of
the Plaintiffs therein, thereby
confirming the destoolment of
the 1st Defendant therein as
Chief of Gomoa Fetteh.
Following this judgment of the
Gomoa Akyempim Traditional
Council, one Edward Acquaye, the
Respondent/Appellant/Respondent
herein, hereinafter referred to
as the Respondent, was installed
by the Plaintiffs therein as the
Chief of Gomoa Fetteh under the
stool name of Nana Abor Yamoah
II on the 24th day August,
1997, barely two days after the
judgment of the Judicial
Committee of the Gomoa Akyempim
Traditional Council. On the same
date, the respondent herein
swore the oath of allegiance
before the Paramount Chief of
Gomoa Akyempim, Nana Okututan
Ahunako Acquah I who also
conferred the Divisional title
of Twafohene of Gomoa Akyempim
on the Respondent.
The Defendants therein, on the
11th day of September 1997 filed
an appeal against the decision
of the Judicial Committee of the
Gomoa Akyempim Traditional
Council
On the 24th April, 1999, the
Judicial Committee of the
Central Region House of Chiefs
delivered its judgment by
allowing the appeal and set
aside the decisions of the
Judicial Committee of the Gomoa
Akyempim Traditional Council and
ordered a trial before the same
traditional council with a
properly appointed Judicial
Committee
Whilst a new panel of the
Judicial Committee of the said
Traditional Council was
re-hearing the matter afresh and
before judgment could be
delivered, the Plaintiffs
therein filed an application
before the High Court, Agona
Swedru seeking an order of
Prohibition to prevent the
Judicial Committee of the Gomoa
Akyempim Traditional Council
from further hearing and
determining the matter before
it.
On the 26th day of June, 2001
the High Court, Agona Swedru
presided over by Woanya J
delivered the ruling in which he
granted the order of prohibition
against the Judicial Committee
of the Gomoa Akyempim
Traditional Council and
prohibited it from further
hearing and determination of the
trial which was being heard de
novo. Woanya J, as part of his
ruling stated as follows:
“For the sake of peace, a new
Judicial Committee properly and
entirely differently constituted
may be asked to sort out the
same problem afresh between the
parties in a Judicial manner,
and until and unless that is
done, the status quo shall be
maintained”. (The emphasis is
mine)
It is significant to observe
that the first part of the
admonition or advice by Woanya
J., as he then was, that a
different panel be constituted
to sort out the problem afresh
between the parties in a
judicial manner has been
completely lost on the parties
in this protracted chieftaincy
saga.
Instead, the innocuous advice
that until and unless the matter
is head de novo, the status quo
shall be maintained has become
the casus beli or the bone of
contention between the parties
these last couple of years.
CASE AT THE HIGH COURT
At the High Court, Agona Swedru,
the
Appellants/Respondents/Appellants
hereafter referred to as the
Appellants sought to attach the
Respondent herein for contempt
of court on the grounds that
“The respondent in flagrant
disrespect for the High Court
order dated 26th June 2001 has
been holding himself out as
chief or Ohene of Gomoa Fetteh
during the celebration of
Akwambo Festival of Gomoa
Fetteh, by issuing writ of
summons against Nana Wiabo chief
of Gomoa Nyanyano and also
against Kofi Asmah and 21st
Century Real Estates Limited in
which the Respondent described
himself as the chief of Gomoa
Fetteh by granting interview to
“The Independent” newspaper and
“Radio Gold” an Accra FM station
whereby the Respondent described
himself as the chief of Gomoa
Fetteh”
Even though the said application
at the High Court was vehemently
opposed, the learned High Court
Judge granted the application
for contempt in the following
words:
“I therefore find the Respondent
guilty of the orders of the
Central Regional House of Chiefs
as confirmed by Woanya J. of the
Swedru High Court, which asked
the parties to maintain that
Status quo”.
APPEAL TO THE APPEAL COURT
Aggrieved and dissatisfied with
the Ruling of the High Court,
Agona Swedru, the Respondent
herein successfully appealed
against that decision to the
Court of Appeal which by a
unanimous decision reversed the
ruling as per the judgment of
Baffoe Bonnie J A as he then was
wherein he stated in part as
follows:-
“In Blacks Law Dictionary 7th
Edition by Bryan Garnier at
page 1420 STATUS QUO is defined
as “The state of things as it
exists currently”.
Taking a cue from the above
definition of status quo, the
Court of Appeal concluded their
judgment on appeal thus:
“From this definition of status
quo the only logical inference
that can be drawn from Justice
Woanyah’s orders was that he was
prohibiting the panel from
reading their judgment or
finding and ordering a fresh
panel to be constituted to go
into the matter. In the interim
however, the state of things as
existed at the time should be
maintained. And from the
affidavit evidence together with
all its annexure the existing
state of affairs was that Nana
Abor Ewusie XIX had been
destooled and Nana Abor Yamoah
II had been enstooled as the
chief of Gomoa and duly
gazetted. The fact of the
decision the Central Region
House of Chief which set in
motion the series of events that
culminated in the application
for prohibition cannot detract
from the fact that the appellant
had been installed and gazette
as a chief. The Appellants
continued styling of himself as
the Chief of Gomoa could
therefore not be said to be
contemptuous of the orders of
Justice Woanyah J.”
This is the Court of Appeal
judgment that the Appellants
herein have appealed against
with the following as the
grounds of appeal:
GROUNDS OF APPEAL TO SUPREME
COURT
(1) That their Lordships at the
Court of Appeal misdirected
themselves or erred in law in
their interpretation of section
27 of the Chieftaincy Act, 1971
(Act 370) particularly in
respect of the appeal filed by
the late Nana Abor Ewusie XIX
and the late Ebusapanyin Kweku
WU.
(2) That their Lordships
Ruling/Judgment was against the
weight of evidence.
(3) Other grounds of appeal will
be filed upon receipt of a copy
of the record of proceedings.
So far as the records are
concerned, no additional grounds
have been filed and this
judgment will be dealt with
along the two grounds of appeal
referred to supra.
Before we deal with the
substantive issues, it is
perhaps pertinent at this stage
to comment on the conduct of
this case from the High Court up
to the Supreme Court.
This case is a classic example
of how a very small issue can be
glossed over by an over zealous
litigant and thereby introduce
diversionary and irrelevant
matters into the main body of
the case.
What commenced before a Judicial
Committee of a Traditional
Council as a cause or matter
affecting chieftaincy, has along
the lines been abandoned and a
contempt application been
pursued recklessly.
We are surprised that with full
knowledge of counsel, the
parties had been misguided to
pursue this contempt application
as if that was going to solve
their substantive application
before the Judicial committee.
In this reckless pursuit,
learned counsel who should have
known better that the only way
the rights of the parties can be
vindicated is for them to go
back to the Judicial Committee
of the Gomoa Akyempim
Traditional Council for the
third panel to be constituted to
deal with the matter, have
professionally failed their
clients.
It should have dawned on learned
counsel that, because of
jurisdictional limitations
imposed on the superior courts
i.e the High Court and Court of
appeal, which have no
jurisdiction in Chieftaincy
matters as a court of first
instance or of appeal,
respectively the path they had
pursued these past years would
take them nowhere. For example,
when the Appellants stated in
their statement of case that “in
a narrow sense, this is
simpliciter an application for
contempt. Yes, but this is the
Supreme Court, where issues are
looked at GLOBALLY.
From, the continuing paragraphs
of the statement of case it is
clear that the Appellants are
expecting the Supreme Court to
engage in a wild goose chase
just as they had done by
treating this appeal as if it is
an appeal in a chieftaincy
matter. This is absolutely
wrong.
We concede that this court,
unlike the other superior
courts, has jurisdiction in
appeals from decisions of the
Judicial Committees of the
National House of Chiefs. But
certainly this is not an appeal
to this court from a decision or
ruling of the National House of
Chiefs.
What must be noted is that the
jurisdictional limits of courts
in this country has been stated
in the 1992 Constitution and the
Courts Act, 1993 Act 459 as well
as the various Rules of Court,
to wit, C. I 47 for the High
court, C.I. 19 with its various
amendments for the Court of
Appeal, and C. I. 16 and its
amendment for the Supreme Court,
have not been made for nothing.
These pieces of legislation and
rules of procedure are to guide
and regulate the jurisdictional
limits of these courts anytime
they consider cases that come
before them.
In this regard, the invitation
being made to this court by the
Appellants to treat GLOBALLY
this appeal is rejected outright
as misplaced and without any
basis whatsoever. What should be
noted is that, even though the
Supreme Court is the final court
of the nation, and must rise up
to the occasion to do
substantial justice without
regard to technicalities (see
case of Okofoh Estates Limited
vrs Modern Signs {1996-97
SCGLR.227}) the court will not
make orders which will not
address the issues that have
been brought before it. In other
words, the Supreme Court will
not create and expand its scope
of jurisdiction in the appeal
that has been brought before it
by straying into unauthorised
grounds.
APPEAL TO SUPREME COURT
As has been stated supra, the
appeal to this court has been
based on two grounds. However,
in the formulation of the
arguments of learned counsel for
the Appellants, it is unclear
which of the grounds has been
articulated.
After a perusal of the appeal
record and the statement of case
presented by counsel for the
parties, this court is of the
view that the success or failure
of this appeal depends upon the
evaluation of the meaning
attached to the words “STATUS
QUO” as was used in the order
made by Woanya J as he then was
on the 26th June, 2001 at the
High Court, Agona Swedru.
What was the nature of the
application that was made to the
High Court, Agona Swedru which
Woanya J pronounced upon?
The answer to the above question
can be found at page 5 of the
record of appeal, “exhibit CKE
1” wherein Woanya J himself
stated the nature of the
application that came before him
in the following terms:
“This is a prohibition
application brought by the
applicant herein under the High
Court (Civil Procedure) Rules
1954 (LN 14OA) order 59 rule
2(1), praying for an order to
prevent the Judicial Committee
of the Gomoa Assin Traditional
Council, Gomoa Assin from
further hearing and or
determining and delivering its
judgment in the Chieftaincy
matter before it between
Ebusuapanyin Kwadwo Abor, Nana
Kofi Koranteng III, Supi Kojo
were on the other hand and Nana
Abor Ewusie XIX (deceased) and
Ebusuapanyin Kwaku Wu on the
other hand”
From the above narrative, it is
clear that it was a straight
forward application to prohibit
a lower court from delivering
its judgment on grounds as was
stated by Woanya J in that
Ruling. Having granted that
application it was completely
out of place for Woanya J to
have made the consequential
orders or statements that have
become the subject matter of
these contempt applications and
appeals to the court of appeal
and this court.
Be that as it may, the crucial
factor to consider is whether
the conduct of the Respondent
herein in the manner in which he
has been stated to be conducting
himself by styling himself as
chief of Gomoa Fetteh
constitutes contempt in terms of
the orders made by Woanyah J.
We then proceed to evaluate the
orders made by Woanyah J. along
the lines directed by the
Supreme Court in the Republic
vrs. SITO I Ex-parte; Fordjour
case already referred to supra
as follows:
Was there an order or judgment
requiring the contemnor, i.e.
the Respondent herein requiring
him to do or abstain from doing
something? Quite clearly, the
orders of Woanyah J, were
directed primarily at the
Judicial Committee of the
Traditional council prohibiting
them from proceeding to deliver
judgment in the case that was
pending before them. The other
orders that the Traditional
Council should empanel a new
committee to hear the suit
afresh is a surplusage as
without it, that would have been
the appropriate step. Again,
that is not an order directed at
the Respondent requiring him to
do or not to do something. The
third aspect of the order is the
one requiring that the “STATUS
QUO” should be maintained unless
and until the new committee
determines the case afresh.
Since this aspect of the order
is ambiguous and unclear,
contempt cannot be founded on
it.
Secondly, is the order so clear
that the contemnor will know
precisely what he is expected to
do or abstain from doing? Our
evaluation and assessment of
this order of Woanyah J is that
it is ambiguous and unclear.
There is absolutely nothing in
the entire order to suggest
remotely that the Respondent
was not to hold or style himself
as a chief of Gomoa Fetteh.
The Supreme Court unanimously
stated the above principle
clearly in the case of Republic
vrs. High Court, Accra Ex-parte
Laryea Mensah[1998-99] SCGLR
when it stated that “a person
commits contempt and may be
committed to prison for
willfully disobeying an order of
court requiring him to do any
act other than payment of money
or to abstain from doing some
act, and the order sought to be
enforced should be unambiguous
and must be clearly understood
by the parties concerned. The
reason is that a court will only
punish as contempt a willful
breach of a clear court order
requiring obedience to its
performance”
In our opinion, since the orders
made by Woanyah J which have
been complained of are so fluid
and clearly unenforceable in the
manner in which they are being
interpreted by the Appellants,
the instant appeal herein must
fail and same must be dismissed.
Thirdly and finally, has the
Respondent wilfully disobeyed
the orders of the court by
failing to comply with the
orders of the court?
We do not think so. This is
because, as it has already been
pointed out, the orders of the
court relating “STATUS QUO’
construed in their ordinary
meaning in the context in which
they have been used, does not
require compliance or abstention
from the doing of an act, to wit
holding himself out as a chief
of Gomoa Fetteh at the given
time.
Having therefore answered all
the three questions posed above
on the lines suggested in the
Ex-parte Fordjour case in the
negative, it is established
clearly that the conduct of the
Respondent herein cannot
constitute contempt in terms of
the orders made by Woanyah J as
he then was, in line with the
Supreme Court decision in the
case of in Re Effiduase Stool
Affairs (No.2) Repubic vrs.
Numapau, President of the
National House of Chiefs and
others Ex-parte Ameyaw II (No.2)
already referred to supra.
On the facts, the Appellants
have woefully failed to make a
prima facie case for the
Respondent to be called upon to
make his defence if at all. The
learned Trial Judge was
therefore wrong to have
committed the Respondent for
contempt. What had to be noted
is that, it is not the decision
of the Judicial Committee that
made the Respondent Chief of
Gomoa Fetteh. That decision
could have created the enabling
environment for his nomination,
election and installation by the
Kingmakers of Gomoa Fetteh. The
claim that an order for the
parties to return to the “STATUS
QUO” connotes a return to the
position in which the Respondent
was before he was made a chief
is clearly untenable.
Under the circumstances we
endorse the decision of the
Court of Appeal on the matter.
Just as we began this judgment,
we reiterate the view that it is
better for guilty persons to
escape the scope of contempt by
strictly enforcing the standards
of proof as in criminal cases
than for innocent persons such
as the Respondent to be
committed.
The appeal herein is accordingly
dismissed as woefully
unmeritorious and undeserving of
any consideration whatsoever.
The parties in this appeal are
advised to seek wise counsel to
pursue in the right fora the
vindication of their Chieftaincy
suit. The practice whereby
litigants and sometimes counsel
seek to use criminal and quasi
-criminal actions to muzzle
their opponents in chieftaincy
actions is seriously deprecated
and is frowned upon. This appeal
is accordingly dismissed.
J.V.M. DOTSE
(JUSTICE OF THE SUPREME COURT)
S. A. B. AKUFFO (MS)
(JUSTICE OF THE SUPREME COURT)
DR. S. K. DATE-BAH
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
R. C. OWUSU (MS)
(JUSTICE OF THE SUPREME COURT)
COUNSEL
EFFAH-DARTEY FOR THE APPELLANT
GEORGE ANKUMAH MENSAH FOR THE
RESPONDENT
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