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JUDGMENT
TWUMASI, J.A.:
This appeal raises the vexed
question as to the proper
approach which a court is
required to adopt in determining
an issue in a case where the
parties have stated their
respective versions of the issue
by way of affidavits.
In the instant case, the
appellants were cited for
contempt before the High Court,
Sekondi for disobeying an order
given by the Western Regional
House of Chiefs. The order
stated that the appellants
should within a specified time
surrender to the Home of chiefs,
the black stool and Bombae drums
of Kwesimintim, a town near
Takoradi in the Western region.
The appellants were cited for
contempt at the behest of the
respondents for the reason given
by the latter that the stool
surrendered to the House of
Chiefs was not the black stool
of Kwesimintim, but a kitchen
stool. Also it was contended by
the respondents, that the
appellants had returned only
three out of six bombae drums.
The issues that fell for
determination by the trial judge
were (1) whether the stool
surrendered was in fact the
black stool of Kwesimintim (2)
whether the bombae drums were
only three or six in number. The
material evidence before the
trial judge were affidavits
only. The ground of appeal most
loudly levelled against the
decision of the learned trial
judge was that he failed to take
oral evidence to determine the
issues raised and, consequently,
he erred in basing his finding
of guilt against the appellants
on the basis of the affidavits.
To my understanding, Counsel’s
contention was that the
proceedings had reached such a
pivotal stage where the only
compelling option open to the
learned trial judge was not a
capricious evaluation of bare
conflicting affidavits but
rather examination in the
witness stand of the parties or
other persons where the benefit
of cross-examination would be
available as true indicator to
the credibility of witnesses and
ultimately serve the ends of
justice. He relied on Order 59
rule 26 of the High Court (Civil
Procedure) Rules 1951 Rev LN 140
A, which provides that
“59 r 26. On the hearing of any
motion or summons to which this
Order relates the Court or judge
may direct any issue of fact in
dispute to be tried in the same
manner as other issues of fact
are tried.”
The reaction of Counsel for the
respondents to these submissions
by his learned friend was that
there was no need for the
learned trial judge to take
evidence on oath because, as he
explained in his statement of
case, the Registrar of the
Regional house of Chiefs had
deposed to an affidavit which
was neither challenged by the
appellants by affidavit nor by
word of mouth in Court and, he
opined, that this failure to
challenge the Registrar’s
averments constituted clear
admission which made otiose the
taking of evidence on oath
inasmuch as the learned trial
judge was entitled to determine
the issue on the affidavits. The
affidavit sworn to by the
Registrar read as follows: -
“Affidavit of Crosby Kwesi
Davis
I, Crosby Kwesi Davis of Sekondi
make oath and say as follows:-
(1) That I am the Registrar of
the Western Region House of
Chiefs and the deponent herein.
(2) That on the 22nd October,
1998 the respondents herein
deposited an ordinary stool and
three drums at the registry of
the house.
(3) That from my own knowledge
and experience as Registrar of
the House of Chiefs for nearly
thirty years I know a black
stool, and that which was sent
could not be a black stool.
(4) That on the said date I
heard the respondents vow never
to surrender that stool and
other regalia, because if he
surrenders them to Opanyin Kofi
Yalley and George Emmanuel
Acquah there would be chaos in
Kwesimintim.”
It was submitted on behalf of
the respondents that the thirty
years experience acquired by the
said Registrar qualified him as
credible witness on the identity
and character of a black stool
as distinguished from an
ordinary stool. Furthermore, the
fact that his averment that the
appellants had vowed never to
return the black stool had not
been challenged added weight to
his credibility. In answer to
these submissions, I would in
fairness quote paragraphs 34 &
35 of the submissions of Counsel
for the appellants before I make
my comment. The said paragraphs
are as follows:-
“(34) In contempt case, what is
the standard of proof? It is
trite learning that contempt
applications are quasi- criminal
and the standard of proof is
beyond reasonable doubt.
(35) Faced with such a
yardstick, can it be said that
the High Court correctly
evaluated the evidence before
him? All he had before him was
affidavit evidence. He chose to
believe the story of an
administrative officer who has
no royal blood that the stool
was not a black stool. The
administrative officer was not
cross-examined. We therefore
cannot tell whether he has ever
seen the Kwesimintim black stool
before, though he said that he
knows a black stool. It is
common knowledge that black
stools are never brought out so
one cannot but wonder how this
Registrar claims to know black
stool. We all know he is not an
expert in this field. Only
kingmakers are.”
That there must be proof beyond
reasonable doubt that a person
is guilty of contempt is a
principle whose genesis goes
back to Lord Denning of blessed
memory in his opinion in the
case of Re Bramblevale Ltd (1969
) 3 All E.R. 1062 where he said:
“A contempt of court is an
offence of a criminal nature. A
man may be sent to prison for
it. It must be satisfactorily
proved. To use the time-honoured
phrase, it must be proved beyond
reasonable doubt. Where there
are two equally consistent
possibilities open to the court,
it is not right to hold that the
offence is proved beyond
reasonable doubt.”
In the case of Republic v Bekoe
and Others Ex Parte Adjei
(1982-83) GLR 91 holding (1)
Osei-Hwere J (as he then was)
held and I quote:-
“a civil contempt partook of a
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 must be proved with the
same strictness as required in a
criminal trial ie proof beyond
reasonable doubt.”
Benin J (as he then was) applied
the principle strictly in the
case of Gbadamosi v Mohammmadu
(1991) 1 GLR 283 and the Court
of Appeal in the recent case of
the Republic v Georgina Asare Ex
Parte Annor-Yeboah & Anor. CA
dated 20th May, 2001 unreported
this court adopted the principle
in a case where the contemnor
had denied an allegation that
she was among persons who had
disrupted a Church Meeting. Her
conviction by the High Court on
the basis of the affidavits was
quashed on the ground that the
said contemnor had expressly
denied being present or anywhere
near the scene of the alleged
contempt of Court. The
contemnors had been charged for
disobedience of an order of the
High Court not to go to or near
the place of the Church
meeting. The Court of Appeal
expressed disapproval and
condemnation of what it called
“the dangerous misconception by
some judges that contempt cases
were triable only on affidavits
and at times ignoring express
denials in affidavits of alleged
commission of contempt”.
Against this background I wish
to examine a little bit more
closely the facts of this case
which I consider relevant to the
determination of the rightness
or wrongness of the decision
appealed. First of all, the
order made by the western Region
House of Chiefs is hereunder
reproduced and it is that: -
“It is hereby ordered that the
Petitioner or plaintiff
appellant Opanin Ekra Kwame
should or must surrender the
Kwesimintim Black Stool and the
Bombae drums in his possession
to the defendant/respondent
Opanuyin Kofi Yalley immediately
or forthwith.”
Noticeable in this order is the
fact that it does not offer any
indication or clue to the actual
number of bombae drums and
sooner or later the inevitable
but avoidable difficulties for
this lack of clarity of the
order will unfold. Yet another
ambiguity in the order is
whether the plaintiff had in his
possession only some of the
bombae drums. The only order
which does not admit of any
equivocation is that the black
stool is supposed to be in the
possession of the plaintiff. On
the 5th June 1998 the High Court
issued a writ of delivery and
the appellants were served but
they failed to surrender the
items and a bench warrant was
issued for their apprehension
for disobeying an order to
appear before the court. Upon
service of the bench warrant,
the appellants filed a notice of
appeal before the Western
Regional House of Chiefs
challenging its decision on the
substantive chieftaincy matter
which culminated in the order
disobeyed by the appellants. In
tune with the practice in our
courts, Counsel for the
appellants applied for bail for
them.
I wish to state in parenthesis
that in the relief sought by the
respondents the applicants in
their pursuant notice for the
application for attachment for
contempt, it was stated that the
appellants had refused to
surrender:
“the black stool and Bombae
drums as demanded in the Writ of
delivery executed on the
respondents on the 5the June
1998.”
No mention was specifically made
in their relief sought about the
number of Bombae drums.
However, on the 19th October
1998 when the court tried the
case, the accusation made
against the appellants was that
they had defiantly failed to
obey the order to surrender the
items stated in the order of the
Regional House of Chiefs.
Counsel for the appellants
challenged the competency of the
court to entertain the
application on the ground that
an appeal against the order of
the Regional house of Chiefs had
been filed which operated as a
stay of execution of the order.
The court summarily rejected the
objection on the ground that the
appeal was rather incompetent
having been filed out of time.
Counsel for the appellants
conceded the incompetence of his
proposed appeal and the learned
trial judge imposed a sentence
of imprisonment for a three
months term without hard labour.
Counsel for the appellants then
pleaded for mitigation of
sentence and prayed for the
option of a fine and for bail so
that the appellants would be
able to surrender the items
demanded by the order of the
Regional House of Chiefs and the
court obliged and granted bail.
On the adjourned date, that is
the 23rd October 1998, it came
to the notice of the court that
the appellants had brought some
items. But Counsel for the
respondents applied to the court
not to rescind the bail because,
as he contended, the appellants
had brought an ordinary kitchen
stool, not the black stool and
also only 3 Bombae drums, out of
six. This was the first time
the court was being told that
the Bombae drums were six. The
court notes went as follows:-
“By Respondents: We brought to
them what we had in our custody.
By Applicants: They brought only
three drums out of six. The
respondents brought a big white
stool and it is not the black
stool.
By court: - The respondents will
be given two weeks to surrender
the black stool and the other
three drums. In the meantime the
bail granted to the respondents
on 21st October, 1998 is hereby
rescinded. The matter stands
adjourned to Thursday November
5th 1995 for further
consideration.
(Sgd.) O.K. Sampson
JUDGE”
Three days later Counsel for the
appellants filed a fresh motion
for review of the judgment of
the court and the vital
averments in the supporting
affidavit sworn to by Ekra Kwame
the first appellant is
reproduced hereunder:-
“(6) That on the 23rd October
1998 when we appeared before
this court the applicants
complained that the stool we
surrendered is not the Black
Stool and that we have not
surrendered all the Bombae
drums.
(7) That I explained to the
court that the stool I have
surrendered to the House of
Chiefs is the Kwesimintim Black
Stool and that the drums I have
surrendered are the stool drums
in my possession.
(8) That despite my
protestations the court
convicted us for contempt on the
grounds that the items we have
surrendered are not the correct
items.
(9) That the court erred by
hearing in favour of the story
of the applicants who were
merely assuming that the Black
Stool of Kwasimintim should be
black in colour.
(10) That I pray that the court
review its order committing us
to prison since we have complied
fully with the order of the
Judicial Committee of the
Western Regional House of
Chiefs.
(11) Wherefore I swear to this
affidavit in support of this
application."
What took place before the court
at the hearing of this motion
was the usual practice of
applicant's counsel moving the
motion and referring to the
affidavit in support with a
little elaboration of the
applicant's grounds for the
motion and the taking of a reply
from counsel for the
respondents. The learned judge
after going through this ritual
listened to the affidavit of the
Registrar read in court and
without any cross-examination
wrote his judgment that he was
satisfied that the appellants
had refused to surrender the
Kwesimintim black stool and also
kept three of the Bombae drums
and released only three. The
learned trial judge literally
swallowed hook, line and sinker
all that was contained in the
Registrar’s affidavit as the
gospel truth. Is this procedure
right, one may ask? Counsel for
the respondents supports the
judgment on the ground, among
other things, that the affidavit
sworn to by the Registrar was
not challenged and the learned
trial judge was perfectly
entitled to base his decision on
it without more. It is conceded
that evidence which is not
challenged need not be further
proved by its proponent: (See
Armah v Addoquaye (1972) 1 GLR
109), the principle is
inapposite in the instant case
because the issues as to the
identity of the Kwasimintim
black stool and the number of
its Bombae drums have been
raised throughout the trial by
the protestations of the
respondents and I do not think
it would be right or fair to
them to foist upon them an
admission of the issues at the
hearing of the motion for review
merely because they did not file
an affidavit reacting to the
Registrar’s averment.
Aside from this, it must be
observed that the hearing of the
motion for review was hasty and
it did not make justice appear
manifestly to have been done.
The Registrar’s affidavit was
filed on the 2 November 1998 at
9.50 am. Another affidavit
sworn to by the respondents was
filed at the same time, 2
November 1998 at 9.50 am. And
the learned trial judge took the
motion that same morning and
gave the appellants no elbowroom
to maneuvre in terms of an
opportunity to file any
affidavit.
I do not think the learned judge
appreciated the compelling
necessity on his part to conduct
a fair enquiry into the issue
which it may considered that
arose out of the affidavits and
pronouncements by the parties in
open court. The learned trial
judge should have called
competent witnesses with
requisite knowledge of the
identity of the Kwesination
Stool to inspect the one
tendered by the appellants and
to tell the court whether is the
real stool or its imitation.
The queen mother, or any of the
Kingmakers who enstool occupants
of the stool could qualify, not
a court Registrar, unless of
course he also falls within the
list of qualified persons.
Again the issue of the number of
Bombae drums should have been
tried in a proper manner.
Failure by the learned trial
judge to perform his judicial
function properly rendered the
proceedings a nullity and they
are so declared. The appeal is
allowed and the case is remitted
to the court below with a
directive that the presiding
judge retry it in terms of the
procedure laid down in Order 59
rule 26 of the High Court (civil
Procedure) Rules 1951 Rev LN 140
A and give a ruling or judgment
thereon.
P. K. TWUMASI
JUSTICE OF APPEAL
FARKYE, J.A:
I agree.
S. T. FARKYE
JUSTICE OF APPEAL
ANSAH, J.A.:
I also agree.
J. ANSAH
JUSTICE OF APPEAL |
