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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.