AKENTEN II vs. YANKYERA [1993]DLCA4318

Date	1993-04-08
Suit No.
Citation No.	[1993]DLCA4318

KPEGAH JSC

AMUAH JA

LUTTERODT JA

ASARE BEDIAKO WITH HIM DAAKWA DWAMENA FOR THE APPELLANT.

TOTOE WITH HIM MARIAM GYASI FOR THE RESPONDENT.

[1993]DLCA4318
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													<main id="main" class="content" style="min-height: 60rem" >AKENTEN II<o:p></o:p>vs.<o:p></o:p>YANKYERA<o:p></o:p>[COURT
OF APPEAL, OFFINSO]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

[1992-93] 2 G B R&nbsp; 869 – 876&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 8 APRIL 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ASARE BEDIAKO, WITH HIM
DAAKWA DWAMENA, FOR THE APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

TOTOE,
WITH HIM MARIAM GYASI, FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

KPEGAH
JSC, AMUAH JA, LUTTERODT JA<o:p></o:p>

</div>LUTTERODT
JA. The Gyasewa stool of the Offinso Traditional area became vacant following
the death of Nana Owusu Agyemang some 11 years ago. Three persons, including
the applicant-respondent whom I shall hereinafter refer to as ‘the respondent’,
laid adverse claims to the stool. They did so by oath and this was, as custom
demanded, reported to the respondent-appellant, Nana Wiafe Akenten II, Omanhene
of Offinso traditional area and the President of the Offinso Traditional
Council. Henceforth I shall describe him as ‘the appellant’.<o:p></o:p>The
chieftaincy tribunal was to determine which of the three claimants owned the
stool and was therefore entitled to nominate a candidate to fill the vacancy.<o:p></o:p>In
the course of the proceedings the respondent applied for the removal and
replacement of the recording clerk on the ground of bias. When his application
was turned down he appealed against the refusal and successfully obtained an
order for a stay of the proceedings before the tribunal pending the hearing and
determination of his appeal.<o:p></o:p>During
the pendency of the appeal the appellant urged the parties to reconcile their
difference extra-judicially. When all attempts at reconciliation failed he
summoned two meetings of the various contestants and took the following steps:
Firstly, he announced the dissolution of the post of Gyasewahene (and impliedly
the dissolution of the stool) on the grounds that the tribunal has ceased to
function. Secondly he announced a replacement of the stool by the creation of
an entirely new one.<o:p></o:p>The
respondent therefore promptly caused contempt proceedings to issue in the High
Court, claiming that the appellant has by these acts of the destruction and
creation of a new stool, the subject matter of the dispute, interfered with the
due administration of justice. The appellant was found guilty but before
sentence could be passed, he appealed against his conviction.<o:p></o:p>Two
matters were urged before us with respect to the additional ground 2. The first
was that because at the time of the abolition of the said stool the judicial
committee, the actual body before which the matter was pending, had been
dissolved, it was wrong for the judge to have granted the relief sought.
Secondly it was argued that because the appellant was, by the abolition and the
subsequent creation of the new stool, exercising a customary function, his
conduct could not be described as contemptuous of the committee.<o:p></o:p>Firstly,
the evidence before us does not, in any way, show that the committee had been
dissolved. Paragraphs 9 and 10 of the appellant’s affidavit in support of the
application merely show that, upon an application brought by the appellants,
the registrar adjourned the proceedings sine die. The respondent himself does
not, in his affidavit, allege that the committee had been abolished.<o:p></o:p>The
committee derived its authority from the traditional council, and in the
absence of evidence that the appointing authority had, in the exercise of its
statutory powers, dissolved it, the argument of counsel fails.<o:p></o:p>Even
if I am in error and the true position is that the death of a member of the
committee and the resignation of another meant the committee had ceased to
exist, I would nevertheless hold that the trial judge could not be faulted.<o:p></o:p>This
is my reason for saying so. We will find, from a careful reading of reg 13(4)
of the Chieftaincy (Proceedings and Functions) (Traditional Councils)
Regulations 1972 (LI 798) that contempt against a judicial committee is in fact
and law contempt against the traditional council that established the judicial
committee; so that where an allegation of contempt against the committee is
made, the injured party is, in reality, the traditional council that set up
that committee. Elsewhere in this judgment I shall deal with this in full.
Therefore assuming that the committee hearing the chieftaincy dispute had
ceased to exist, the traditional council had not and therefore any act
committed against the erstwhile committee would be punishable provided it can
be shown to be contemptuous.<o:p></o:p>The
other issue raised by this ground of appeal is: would any act done in
accordance with customary law even if it does interfere with the due
administration of justice amount to contempt? Put in other words could a
respondent in contempt proceedings legitimately set up a defence that the act
complained of was done under customary law?<o:p></o:p>I
should think not. Any act, whether customary or otherwise, that interferes with
the due administration of justice amounts to contempt. In this instant case
where the subject matter in the proceedings was the abolition and creation of a
new one, it lies ill in the mouth of the respondent, the President of the
council that set up the committee, to allege that he was exercising his
customary function.<o:p></o:p>Next
it was argued in support of the ground (b) of the original ground of appeal
that the act complained of was an act of the traditional council, not the act
of the respondent. The argument therefore is that the council cannot be in
contempt of itself. Furthermore it was contended that, in any event, because
the stool was not an ancestral stool but one created by the Offinsohene he
could do whatever he liked with it.<o:p></o:p>I
agree with applicant counsel that the evidence does not justify a finding that
the act was done by the council. Both in his motion paper and the statutory
statement accompanying it, the applicant cited the respondent as the contemnor.
More importantly, in his affidavit in support he named the respondent as the
person who committed the act complained of. The respondent’s reaction to these
allegations is contained in the paragraphs 5, 13 - 23 of his affidavit in
opposition. I reproduce the more relevant ones - paragraphs 20, 22 and 23.<o:p></o:p>