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JUDGMENT
ATUGUBA, J.S.C.:
In this case an order was on the
2nd day of November, 1988 made
by the Brong-Ahafo Regional
House of Chiefs in Chieftaincy
proceedings before it as appears
at page 26 lines 18-24 of the
Record of Appeal, as follows: —
“We order the lst petitioner
Nana Kofi Mensah, the 3rd Nana
Kwasi Wuromo the Krontihene of
Banda, the 4th petitioner Nana
Sodoyi the Oyokohene of Banda
and Nana Sie Nyomo the
Akyeamehene to convey the black
stool to the Petelli Royal
House, Kabrena not later than
15/11/88.” (emphasis supplied)
The Appellant belongs to the
Kralongo Royal House of Banda
from which the Black Stool was
to be returned to the other
royal House of Banda, namely,
the Petelli Royal House.
An Appeal from the judgment and
said order the of Brong-Ahafo
Regional House of Chiefs was
dismissed on the 29th day of
March, 1991 by the National
House of Chiefs. A further
appeal to this court was
dismissed on the 6th day of
June, 1995.
The application for attachment
for contempt against the
appellant was filed in the High
Court, Sunyani on the 26th day
of January, 1999.
It is alleged that the appellant
indulged in acts contemptuous of
the order as from 23rd day of
December, 1997; and the Court of
Appeal so found and held. It is
however, admitted that the Banda
Stool was returned to the
respondent’s family on the 15th
day of September, 1998.
Several arguments had been
addressed to us as to whether
the application for contempt
against the appellant was or was
not a cause or matter affecting
Chieftaincy. However, on
perusal of the record of appeal
we felt that the matter was not
a cause or matter affecting
chieftaincy but that if the
order of the Brong-Ahafo
Regional House of Chiefs had
lapsed before the alleged acts
of contempt by the appellant
then the question of contempt
could not arise.
Since this matter had not been
raised by the parties we,
pursuant to r.6(8) of the Rules
of this Court, C.I. 16, gave the
parties ample opportunity to
address the issue of contempt
other than whether the matter is
a cause or matter affecting
chieftaincy. The parties
however, did not advert their
minds to the question whether
the said order of the
Brong-Ahafo Regional House of
Chiefs had lapsed, aforesaid.
The said order of the
Brong-Ahafo Regional House of
Chiefs, aforesaid, required the
persons therein named “to convey
the black stool to the Petelli
Royal House, Kabrena not later
than 15/11/88”.
It is trite law that the appeal
from the Regional House of
Chiefs to the National House of
Chiefs operated, under section
26 of the Chieftaincy Act, 1971
(Act 370) as a stay of execution
of the judgment appealed from.
As aforesaid, the National House
of Chiefs determined the appeal
from the Brong-Ahafo Regional
House of Chiefs on the 29th day
of March, 1991. This Court
affirmed that judgment,
aforesaid on the 6th day of
June, 1995.
The said order of the
Brong-Ahafo Regional House of
Chiefs was confirmed in its
original form throughout the
appellate process the case
travelled, without variation. It
is obvious therefore that the
time limit, namely “not later
than 15/11/88” set by the
Brong-Ahafo Regional House of
Chiefs for compliance with its
order to return the black stool
to the respondent's family had
long lapsed at the time the
National House of Chiefs
confirmed the same in its
judgment dated the 29th day of
March, 1991, aforesaid.
Was the order then in an
enforceable state? I should
think not. In KHOURY V. KHOURY
(1971) 1 GLR 348 C.A. at 352,
Azu Crabbe, J.A. (as he then
was) delivering the Ruling of
the Court of Appeal said:
“There can be no doubt that the
High Court would have the power
to make the orders sought in
this application. Where a decree
directing an act to be done has
been drawn up without precisely
stating the place where, or
fixing a date within which the
act is to done, the decree is
not rendered ineffectual
thereby, and the court will,
upon a motion for that purpose,
fix the place and time for the
performance of the act.”
See Needham v.Needham (1842) 1
Hare 633. Also, where an
undertaking to pay money into
court or to a joint partnership
account at a bank has been
given, without fixing a definite
date for payment, an order
fixing a time is necessary
before the undertaking can be
enforced: see Carter vrs.
Roberts [1903] 2 Ch. 312 and
Cotton v. Hey [1930] 1 Ch.D 510.
In Gilbert vrs. Endean (1878) 9
Ch.D. 259, there was a motion to
enforce a judgment, and Sir
George Jessel M.R. said at
p.266:
“The mode adopted for bringing
that question to trial was a
motion to enforce the judgment.
Now it happens accidentally, for
I have no doubt it is an
accident, that the judgment
required a further motion to
enforce it, because it fixed no
date for the acts to be done.
The one act is directed to be
done 'forthwith,' and the other
act is simply directed to be
done without any reference to
time. Therefore, technically, no
doubt a motion for fixing a day
was required, and until a day
was fixed the order could not be
enforced".
This was the general rule of the
old Court of Chancery, and was
subsequently embodied in the
rules of court (Order XLI, r.5).
“Failure by the court to fix a
time for the performance of an
act, where an order requires a
person to do a special act is a
technical defect in the order,
and the court has an inherent
power to remedy that defect so
as to make the order effectual.
The court does not make an order
for its own sake, or an order
which is a brutum fulmen.”
(emphasis supplied)
In REPUBLIC V. BREW (1992) 1 GLR
14 Kpegah, J. (as he then was)
held that where no time is fixed
for obeying a mandatory order,
(such as in this case), the same
has to be obeyed within a
reasonable time. Be that as it
may, definite time, aforesaid
namely "not later than 15/11/88'
was fixed by the order in this
case. Obviously then, since the
time within which an order is to
be complied with is an essential
part of the order for the
purposes of its enforcement, it
stands to reason that when the
time fixed by the order is,
owing to no fault of the alleged
contemnor incapable of
compliance, no contempt can
arise on his part. In
ASUMADU-SAKYI VRS. OWUSU (1981)
GLR 201 C.A. it is stated in
holding (2) of the Headnote
inter alia, as follows:—
“... in the instant case, the
Appellant was adjudged guilty of
contempt because he was thought
to have wilfully disobeyed the
Court's order to pay the
judgment debt. If it was shown
that the Applicant could not by
the date of the Court’s order
had been in possession of the
money, there could be no case of
wilful disobedience which
merited an attachment for
contempt. Mere inability to pay
could not ground penal
proceeding for contempt.
Clements, in Re: Costa Rica
Republic Vrs. Erlanger (1877) 46
L.J. Ch. Cited”. (emphasis
supplied).
I see no difference between
inability to obey an order due
to poverty and inability to obey
the order due to its inherent
impossibility of compliance.
In Re HARROW LITERACY
INSTITUTION (1953) 1 WLR 551)
Vaisey, J. held that no order
for dissolution should be made
against an institution since the
institution had, in the events
which had happened, already in
effect dissolved itself. In
FATTAL VRS. MINISTER OF INTERNAL
AFFAIRS (1981) GLR 104 S.G.
which was followed in ELLIS VRS.
ATTORNEY-GENERAL, Writ 16/94
dated 22/7/98, it was held that
an enactment which has fully
effected the purpose for which
it was passed, is a spent force,
and though it is still a law on
the statute book yet it is not a
live legislation which can be
struck down as unconstitutional.
All this establishes the
principle that one cannot in law
do or be expected to do the
impossible.
In the circumstances of this
case unless the said order of
the Brong-Ahafo Regional House
of Chiefs is varied, upon motion
for the purpose, to make it
capable of enforcement it will
be idle to talk of it being
infringed.
No doubt this Court could vary
the said order by fixing a new
date for its compliance but
since it is admitted that the
Black Stool, the subject-matter
of the order has been delivered
to the Respondent's family,
since the 15th day of
September, 1998 it would be
pointless to do so. A worse
impossibility of compliance
would arise from such an order.
A Court will not stultify itself
by making an order which it
cannot enforce. See LE VANDOWSKY
VRS. ATTORNEY-GENERAL (1971) 1
GLR 49 C.A.
I would therefore allow the
appeal, set aside the judgments
of the Court of Appeal and the
High Court, Sunyani and dismiss
the contempt application.
T.K. ADZOE, J.S.C.:
The matter before us in this
appeal started at the Sunyani
High Court as an application for
the attachment of the Appellant
herein for contempt of court.
The Respondent herein Opanin
Kwadwo Fordjuor was the
Applicant before the High Court.
Both the Appellant and the
Respondent hail from Banda in
the Brong-Ahafo Region.
The facts show that the Omanhene
stool of Banda Traditional Area
is enjoyed by rotation between
two royal houses which are the
Kralongo Royal House and the
Petelli Royal House. The
Appellant is from the Kralongo
house and the Respondent is from
the Petelli house.
In 1977 the Omanhene Nana Dwuru
II died, after ruling for about
36 years. He was from the
Kralongo house. If the tradition
of rotation were respected then
the successor Omanhene had to
come from the Petelli house.
That tradition was ignored and
one George Millar also from the
Kralongo House was enstooled by
the Kralongo house as Nana Dwuru
III to succeed Nana Dwuru II.
The Petelli house which claimed
that it was their turn to occupy
the stool also proceeded to
enstool their own candidate Nana
Kwadwo Worasa alias Kumah as the
Omanhene. In the state of
confusion created by these
enstoolments of two Omanhenes,
the Gyasehene of Banda and
others sued Opanin Kwadwo Worasa
(now Nana Kwadwo Worasa) and
others before the Judicial
Committee of the Brong-Ahafo
Regional House of Chiefs
claiming that the enstoolment of
Worasa was null and void as not
having been done by the
accredited Kingmakers. The
Defendants counterclaimed for a
declaration that the enstoolment
of George Millar as Nana Dwuru
III, was customarily
unconstitutional, null and void,
and also that the Kralongo house
should hand over the Black Stool
to the Petelli house. The
Judicial Committee of the
Brong-Ahafo Regional House
dismissed the petitioners’
claims and upheld the
defendants' counterclaim. The
Judicial Committee made the
following order:
“We accordingly order the 1st
Petitioner, Nana Kofi Mensah,
the 3rd Nana Kwasi Wuromo the
Krontihene of Banda, the 4th
Petitioner Nana Sodoyi the
Oyokohene of Banda and Nana fie
Nyomo the Ohyeamehene to convey
the Black stool to Petelli Royal
House Kabrono not later than
15/11/88”.
The Petitioner in the action
unsuccessfully appealed against
this decision to the National
House of Chiefs and the Supreme
Court, both of which dismissed
the appeal. Neither made any
further orders. At the end of
the case, therefore, the only
order ever made in the case was
that of the judicial committee
of the Regional House for the
return of the stool as quoted
above.
It was directed to some named
persons. Those persons did not
return the stool by the date
stated in the order but waited
until 15/9/98 before they
returned it to the Petelli
House. Meanwhile Nana Worasa
died on 18/10/97 and on or about
23/11/97 the Kralongo House
enstooled the Appellant as the
new Omanhene of Banda. The
Petelli House also enstooled
Nana Sekyeame Sem Pem II as the
Omanhene on 22/11/98.
In December 1998 a fund raising
rally was held at Banda and it
is undisputed that during the
ceremony the Appellant rode in a
palanquin through the streets of
Banda as the Omanhene. He also
performed customary rites in the
capacity of Omanhene.
The Respondent herein who formed
the view that the Appellant's
conduct amounted to contempt of
court initiated proceedings
before the High Court at Sunyani
for an order "attaching the
person and committing" the
Appellant for contempt "of the
decisions of the judicial
Committee of the Brong-Ahafo
Regional House of Chiefs and the
National House of Chiefs as well
as the Supreme Court...” In
paragraph 14 of his affidavit in
support of the motion on notice
the Respondent deposed as
follows:
“14. That in defiance of, and
in contemptuous disregard of the
decisions of the Judicial
Committee of the Brong-Ahafo
Regional House of Chiefs, the
National House of Chiefs and the
Supreme Court, the Respondent
claims to be the Omanhene of
Banda Traditional Area under the
stool name of Okokyeredom
OSABARIMA KWADWO SITO I, and has
styled himself as Omanhene of
Banda”
He also stated his grounds for
the application as follows:
“1. The Respondent has in total
disregard and respect for the
decisions of the Regional House
of Chiefs, the National House of
Chiefs and the Supreme Court,
sought to style, portray, hold
and make himself as the
Paramount Chief of Banda
Traditional Area.
2. The Respondent has held
himself out as the Omanhene of
Banda Traditional Area and
purported to have performed all
rituals customarily performed by
a paramount chief of Banda.”
The question for the High Court
to decide was, therefore,
whether or not the Appellant was
in contempt having regard to the
acts complained of. After
Counsel on both sides had
submitted arguments, the learned
High Court Judge declined to
determine the issue because, in
his opinion, the application
involved a cause or matter
affecting chieftaincy over which
the High Court had no
jurisdiction. The Respondent
herein appealed to the Court of
Appeal on the ground that "the
learned judge completely avoided
the issue before him and
incapacitated himself from
resolving it”.
Curiously, the Court of Appeal
did not consider the issue of
jurisdiction which prevented the
High Court judge from making a
decision. The Court of Appeal
proceeded to determine the
question of contempt oblivious
of the fact that if the High
Court lacked jurisdiction the
Court of Appeal itself would be
incompetent to hear and
determine the appeal. In dealing
with the appeal, the Court held
that the appellant herein was in
contempt. It did not however
convict the appellant and left
the matter in a limbo.
It is this judgement which the
appellant has appealed against
to this court. Three grounds of
appeal have been filed. They
read as follows:
“1. The Court of Appeal has no
jurisdiction in the matter the
same being a cause or matter
affecting chieftaincy.
2. The Court of Appeal erred in
treating the application as a
contempt of court case when by
its real nature and import it
was a cause or matter affecting
chieftaincy.
3. The Court of Appeal erred in
giving judgement in this matter
which had the effect of
determining a cause or matter
affecting chieftaincy then and
still pending before the
Brong-Ahafo Regional House of
Chiefs.”
The three grounds are singing
the same tune which is that the
Court of Appeal lacked
jurisdiction because the matter
in controversy was a cause or
matter affecting chieftaincy.
It is clear therefore that the
primary issue raised before us
is whether or not the
application by its true nature,
was a cause or matter affecting
chieftaincy. Our decision on the
point must relate back to the
trial High Court where the
action was commenced. So did the
High Court have jurisdiction as
the court of first instance? The
law is clear that in this
country the High Court and the
Court of Appeal have no
jurisdiction to adjudicate in
chieftaincy matters. That
jurisdiction is exclusively
vested in the chieftaincy
tribunals with the Supreme Court
acting as the final court of
appeals. But the ambit of what
the law defines as “a cause or
matter affecting chieftaincy”
needs to be properly understood
by both lawyers and litigants.
The courts have always
emphasised that in order to
determine into what category a
particular suit falls, the court
must apply the test of what the
real issue is between the
parties and not to look merely
at the wording of the plaint.
[see Vanderpuge v. Botchway:
(1956) 2 WLR 1080)]. A plaint is
the cause for which the
Plaintiff complained against the
Defendant and for which he
initiates legal proceedings.
Straoud's Judicial Dictionary
defines a plaint as "the process
by which proceedings ..... are
generally commenced" (vide 4th
Edition, Vol.4 at p.1975). The
principle in Vanderpuge v.
Botchway (supra) is seeking to
send the court on a voyage of
discovery. The Court must
scrutinise the claim of the
Plaintiff to find out what the
real controversy is between him
and the Defendant and nature and
effect of the relief that is
contemplated. This examination
by the court is necessary,
particularly for the purpose of
deciding questions of
jurisdiction. Experience has
shown that a Plaintiff may so
frame his plaint as to disguise
the nature of the relief he is
seeking in order to mislead the
court to assume a jurisdiction
that the court by law may not
have. A simple example from the
English law is the case of Hunt
v. North Stafford shine Rly Co.
(1857) 2 h & n 451. The
Plaintiff was wrongfully
summoned by the Defendant Co.
before the magistrates on a
false charge that he rode in a
railway carriage without paying
his fare. The Summons was
dismissed with costs. Thereafter
the Plaintiff sued the Defendant
company in the county court
claiming recovery of the
expenses incurred by him in
respect of the summons. It was
held that the Plaintiff's case
was in effect an action for
malicious prosecution in
disguise over which the county
court had no jurisdiction.
A local example is the case of
Awadali IV and Anor. vr. Awadali
IV Part 2 [1992-93] GBR 452. The
case raised the issue of the
High Court's powers of
jurisdiction over a case which
was, on the face of it, dressed
up as a land dispute. In the
action which was initiated at
the Denu High Court the
Plaintiffs claimed for a
declaration that the 1st
Plaintiff
“is the present Head/Hlotator of
the whole Anyigbe Clan/Family
... and is entitled to manage
all the lands and other
properties of the Anyigbe
Clan/Family”
They also asked for “perpetual
and prohibitive” injunction
restraining the Defendant from
posing or claiming to be the
Head/Hlotator of the Anyigbe
clan and dealing with the
properties of the clan in the
said "false capacity". The
Defendant entered a conditional
appearance and applied by a
motion on notice to have the
action struck out on the ground
that it was a chieftaincy matter
over which the High Court had no
jurisdiction. The defendant
produced documents indicating
clearly that he and the 1st
Plaintiff had been installed as
chiefs but the installation of
the lst Plaintiff was challenged
and subsequently annulled at an
arbitration. He therefore
contended that the claim by the
Plaintiffs was in the nature of
a cause or matter affecting
chieftaincy. The High Court
judge held that it was not, and
dismissed the defendant's
application. The defendant then
brought an application before
this court for an order of
certiorari to quash the ruling
of the High Court. This Court
(Supreme Court) had no
hesitation in quashing the High
Court ruling, and held that the
claim before the High Court was
by its nature a chieftaincy
dispute over which the High
Court had no jurisdiction. In
arriving at that conclusion the
court satisfied itself that
among the Anyigbe people "a
Hlotator is a chief” Abban,
J.S.C. (as he then was) observed
in his judgement at p.745 of the
report as follows:
"It therefore seemed that it was
his attempt to get recognition
for this status that the 1st
Plaintiff-Respondent sought the
declaration in relief (a) of the
writ of summons.”
I think I should add another
case to illustrate the point. It
is the case of the Rep. V. High
Court, Koforidua; Ex Parte
Bediako II (1998-99) SCGLR 91.
A panel of arbitrators purported
to hear destoolment charges
against a chief; they found him
liable and declared him
destooled. The chief appealed to
the High Court for an order of
certiorari to quash the
arbitration proceedings as a
nullity for lack of jurisdiction
in the panel. The High Court
granted the certiorari. The
chairman of the arbitration
panel then applied for
certiorari at the Supreme Court
to quash the decision of the
High Court for want of
jurisdiction. His contention was
that the application for
certiorari which was brought
before the High Court related to
the status of the "deposed"
chief and therefore involved an
inquiry into a cause or matter
affecting Chieftaincy.
This court unanimously dismissed
the application brought before
it. It held that the issue
before the High Court was simply
whether the arbitration panel
had jurisdiction to entertain
the destoolment charges and
adjudicate on them. The High
Court did not determine whether
the "deposed" chief was or was
not a chief. Sophia Akuffo, JSC
put the matter succinctly in the
following language:
“To my mind, the mere fact that
the question of whether or not a
person is a chief rears its head
during an application for
certiorari before the High Court
does not necessarily constitute
the matter as one affecting
chieftaincy for the purposes of
section 57 of the Courts Act,
1971, where such a question
arises as a matter secondary to
the determination of the
fundamental question of whether
or not an inferior body had the
jurisdiction to do something,
and does not give rise to the
necessity to make a final
determination of such status and
whether or not such person has
been properly nominated, elected
and installed according to the
applicable custom or usage. In
order to constitute a matter as
one affecting chieftaincy, it
must, in my view, be the
determination of which, unless
overturned on appeal, would
settle once and for all, a
chieftaincy matter or dispute.”
The authorities indicate that
each case must be examined
carefully in order to determine
whether it is a chieftaincy
dispute within the meaning of
S.117 of the Court Act, 1973
(Act 459) and S.66 of the
Chieftaincy Act, Act 370 of
1971.
I hold that on the facts of this
case, the application presented
before the High Court cannot be
described as involving a cause
or matter affecting chieftaincy
in our law. I hold also that the
High Court and the Court of
Appeal had jurisdiction to hear
and determine the matter. The
simple issue for the High Court
Judge to determine was whether
or not the Appellant flouted any
orders of the chieftaincy
tribunals and the Supreme Court
as pleaded by the Respondent.
He made out the issue when he
said in his ruling that:
“The Respondent can be committed
to prison if the court finds
that he flouted the orders of
the court or by his acts have
done anything to frustrate the
realisation of the orders made
by the court or has assisted the
other petitioners to do acts
which amount to flagrant
disrespect of the orders of the
Brong-Ahafo House of Chiefs as
confirmed by the National House
of Chiefs and Supreme Court.”
He went astray when he continued
to add that:
“This Court will therefore have
to pronounce whether Nana Worasa
was Paramount Chief and that
after his death as such it is
the turn of the Kralongo —
family again to enstool a new
chief. Again I will have to
determine whether the acceptance
by Respondent to be chief is a
violation of the orders of the
court. This is definitely a
cause or matter affecting
chieftaincy.”
The matters raised by the
learned High Court Judge were
not germane to the determination
of the contempt issue in the
circumstances of this case.
Contempt proceedings arising out
of chieftaincy disputes have
been heard and determined by the
traditional courts in this
country. In the case entitled
In Re Effiduase Stool Affairs
(No.2) The Rep. V. Numapau &
Ors.; Ex Parte Ameyaw II
(1998-99) SCGLR 639 this court
by a majority held that the High
Court has jurisdiction and is
the proper forum as a court of
first instance, to entertain
contempt of court applications
from Judicial Committees of
traditional councils. In that
judgement their Lordships also
explained with sufficient
clarity and conviction that
where a party to proceedings
before a judicial committee, and
not the judicial committee
itself, initiates at the High
Court an application for
contempt of a judicial
committee, S. 26(7) of the
Chieftaincy Act, Act 370 of 1971
and regulation 13(5) of L.I.798
requiring a certificate from the
judicial committee to the High
Court of the fact that the
person has committed contempt is
not applicable. The party
initiating the contempt
proceedings at the High Court
must be deemed to be exercising
his common law right to
institute such a process which
has not been taken away by the
provisions of the Chieftaincy
Act and the regulation
thereunder. This decision was
delivered by this Court on
21/7/99. Earlier on 25/4/90 this
same court reached the same
conclusion in The Republic v.
High Court Kumasi and Ors.; Ex
Parte Fosuhene (1989-90) 2 GLR
315.
It follows that the contrary
opinion held by the High Court
in earlier decisions to the
effect that a party must comply
with the procedure laid down in
S.26(7) of Act 30 must be deemed
to have been overruled by this
Court. The cases which suffer
this fate of judicial demise are
The Rep. V. Omanhene of Ahanta
Traditional Area; Ex Parte
Korkor (1982-83) 2 GLR 1154: The
Rep. vrs. Kwafromoah, Ex Parte
Fosuhene (unreported) and
Akenten II v. Mensah digested in
(1989-90) GLRD 102: And the
Court of Appeal decision in
Ahenten II v. Yankyera (1992-93)
GLR 569 sufficiently support my
conclusion that the question of
jurisdiction raised by the
Appellant cannot be resolved in
his favour. I would dismiss the
appeal on that ground.
This conclusion, however, does
not decide the appeal. I think
it is necessary to go further
and decide whether or not the
Appellant was in contempt as
held by the Court of Appeal.
It is a matter of some regret
that the Appellant has not
specifically attacked the
finding made by the Court of
Appeal that the Appellant had
committed contempt. No ground of
appeal has been filed against
that aspect of the Court's
decision and Counsel made no
effort to dispute that finding
in his submissions before this
Court. The Appellant and his
counsel apparently convinced
themselves that the question of
jurisdiction was unassailable
and would automatically dispose
of this appeal in their favour.
That has turned out to be a
false dream. Fortunately for
them the omission does not
inhibit this court from
considering the question whether
or not the finding made was
supported by the evidence on
record. Rule 6 of the Supreme
Court Rules 1996 (CI 16) permits
this Court to go beyond the
grounds set out in the notice of
appeal and consider grounds not
set forth by the Appellant.
Hereunder are the provisions
which give us that right.
Rule 6(6), (7) and (8) provides
as follows:
“6(6) The Appellant shall not,
without leave of the Court,
argue or be heard in support of
any ground of appeal that is not
mentioned in the notice of
appeal.
6(7) Notwithstanding sub-rules
(1)-(6) of this rule the Court
(a) may grant an Appellant leave
to amend the ground of appeal
upon such terms as the Court may
think fit; and
(b) shall not, in deciding the
appeal, confine itself to the
grounds set forth by the
Appellant or be precluded from
resting its decision on a ground
not set forth by the Appellant.
6(8) Where the Court intends to
rest its decision on a ground
not set forth by the Appellant
in his notice of appeal, or on
any matter not argued before it,
the Court shall afford the
parties reasonable opportunity
to be heard on the ground or
matter without re-opening the
whole appeal.”
These are laudable provisions
intended to promote the
even-handed administration of
justice, and a judicious
reliance on them will ultimately
prevent technical niceties of
procedure from undermining the
necessity of doing substantial
justice in our Court.
On the authority of these
provisions, the Court, on
2/5/2001, drew Counsel's
attention to the issue of
contempt vel non and ordered
them to file arguments for the
consideration of the Court.
Counsel for both sides have
complied with the order, and in
the circumstances we are
lawfully permitted to consider
whether or not the Court of
Appeal was right in its findings
that the appellant was guilty of
contempt.
The judgement of the Court of
Appeal which was delivered by A.
Essilfie-Bondzie, J.A., and
concurred in by his two brothers
Twumasi and Farkye, JJ.A,
concluded as follows:
“In this case, it is my
judgement that the Respondent's
conduct in allowing himself to
be enstooled by the Kralongo
Royal House as the Paramount
Chief of Banda and acting as
Omanhene by riding in a
palanquin on 29/12/98 when the
orders of the Judicial Council
of Brong-Ahafo Region had not
been obeyed amounted to contempt
of Court.”
By the “Judicial Council of
Brong-Ahafo Region” I understand
the learned Judge to mean the
Judicial Committee of the
Brong-Ahafo Regional House of
Chiefs which tried the case at
first instance. The order made
by that Committee in its
judgement of 2/11/88 was that
the Omanhene Stool should be
returned to the Petelli House by
15/11/88. That was just a period
of about thirteen days. No other
order was made by the Committee
preventing or restraining the
Kralongo House from enstooling a
new Omanhene. In confirming the
judgement of the Committee
neither the Judicial Committee
of the National House of Chiefs
nor the Supreme Court made any
further orders. The Judicial
Committee of the National House
of Chiefs simply noted that:
“Since the evidence of Petelli
as to rotation has been accepted
their version of who the
Kingmakers are is also accepted
and we come to the final
conclusion that the different
house have their own kingmakers
to install their Chief when the
rotation comes to their turn and
that these kingmakers are the
elders of that particular family
being either Kralongo or
Petelli.”
The Judges of the Supreme Court
also did not go beyond
confirming and affirming the
findings made by the trial
committee. In the circumstances
of this case it should have been
obvious to the Court of Appeal
that the Respondent's complaint
that the Appellant disregarded
the decisions of the Judicial
Committees and the Supreme Court
was not a ground to support a
case of contempt. The type of
contempt charged against the
Appellant involves wilful
disobedience to the judgement or
order, or other process of a
Court; it must import a demand
to do or abstain from doing
something. A refusal to comply
with that demand of the Court is
what constitutes the offence of
contempt which the Courts
consider as an obstruction to
the fair administration of
justice and also as an affront
to the dignity of the Court. The
offence interferes with the
administration of justice
because it in effect denies a
party his right to enjoy the
benefits of the judgement or
order; it is an affront to the
dignity of the Court in this
sense that it is viewed as an
act deliberately contrived to
undermine the authority of, and
respect for, the Court. And the
law treats it as a
quasi-criminal offence to
vindicate the cause of justice.
Some degree of fault or
misconduct must be established
against the contemnor to show
that his disobedience was
wilful. Indeed three essential
elements in the offence appear
to be identified by the
authorities, namely:
1. There must be a judgement or
order requiring the contemnor to
do or abstain from doing
something.
2. It must be shown that the
contemnor knows what precisely
he is expected to do or abstain
from doing, and
3. It must be shown that he
failed to comply with the terms
of the judgement or order, and
that his disobedience is wilful.
As stated in the case of Collins
vrs. Wayne Iron Works 76 A. 24
(1910) US the order must be “as
definite, clear and precise in
its terms as possible, so that
there my be no reason or excuse
for misunderstanding or
disobeying it.”
As already indicated, the only
order in the judgements relied
on by the Respondent was the
order to return the Stool to the
Petelli house. That order was
duly carried out. The Respondent
himself acknowledged this fact
in his affidavit in support of
the application for contempt
before the High Court, Sunyani,
when he deposed that "the
Respondent have since
surrendered the Black Stool
pursuant to the decisions of the
Supreme Court...” I concede that
the Stool was surrendered long
after the time stated in the
order of the trial committee.
But during all that period that
the Stool was not returned, the
Respondent took no steps to
enforce the order. The Stool was
returned to the Petelli house
(of the Respondent) on 15/9/98,
nearly ten years after the date
fixed by the order but the
respondent did nothing. He
commenced the contempt
proceedings in this appeal on
26/1/99 after the order, having
been complied with, became
discharged and no longer
operative. Whether or not that
order would have affected the
Appellant, assuming the
application for contempt was
properly lodged at the right
time on the ground that it was
disobeyed is quite another
matter which does not arise for
determination now.
The enstoolment and public
conduct of the appellant cannot
be used to sustain a case of
contempt against him. There was
no order forbidding his
enstoolment or the enstoolment
of any other person by the
Kralongo house. There was no
order forbidding the Appellant
or any other person from holding
himself out as Omanhene and
parading himself as the Chief of
Banda through the streets of
Banda. Whatever the Appellant
did could not be said to amount
to a disobedience of any order.
There was no order he could have
disobeyed.
The Court of Appeal and Counsel
for the Respondent were under
the wrong impression that by
allowing himself to be enstooled
as Omanhene, the Appellant
committed contempt of court
because at the time of the said
enstoolment the Black Stool had
not been returned to Petelli
house. That argument is clearly
misplaced. The return of the
Stool was not declared as a
condition precedent to the
enstoolment. It must not be
forgotten that the Judicial
Committee of the Brong-Ahafo
Regional House of Chiefs found
as a fact that Nana Kwadwo
Worasa “was properly and
customarily enstooled by the
elders of the Petelli family” at
a time when the Black Stool was
still in the custody of the
Kralongo house. To the contrary
the same Judicial Committee
found “as a fact that the
purported enstoolment of George
Miller was contrary to custom
because it was not the turn of
the Kralongos" even though the
Kralongos at that time were
keeping the Black Stool. These
findings did not define the role
played by the Black Stool in the
customary process of enstoolment
in Banda Traditional Area, and
they made no orders affecting
the Black Stool with regard to
the enstoolment procedure.
It appears to me that the fact
in the instant proceedings
before us are very similar to
the circumstances of the case of
The Republic vrs. High Court
Accra, Ex-parte Laryea Mensah
(1998-99) SC GLR 360 decided by
this Court. The facts relied on
in that case as in the instant
case, were findings of fact and
not "Orders" of the Court. A
strong five-member panel of this
Court unanimously allowed an
appeal from a conviction based
on “findings of fact” and
emphasised that a person can
only be convicted of contempt
upon proof of “a wilful breach
of a clear order requiring
obedience to its performance.”
I agree with Counsel for the
Respondent that the Appellant,
though a stranger to the
proceedings relied on in this
case for the contempt action,
could be guilty of contempt. The
authorities are clear that it is
possible for such a stranger to
the proceedings to commit the
contempt; but his liability will
still depend on whether or not
there is an order made by the
Court and subject to other
considerations. My finding in
this case that no order was
breached settles all issues in
favour of the Appellant, and I
hereby allow the appeal, set
aside the finding of contempt
made against the Appellant by
the Court of Appeal, and proceed
to acquit and discharge the
Appellant.
AMPIAH, J.S.C.:
I agree.
AKUFFO, J.S.C.
I agree.
LAMPTEY, J.S.C.:
I also agree.
COUNSEL
Mr. Ambrose Dery (with him Miss
Leda Limann and T. Sory) for the
Appellant.
Mr. W. Y. Oppong for the
Respondent.
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