REPUBLIC vs. AKENTEN II; EX PARTE YANKYERA [1993]DLCA846

Date	1993-04-08
Suit No.
Citation No.	[1993]DLCA846

KPEGAH JSC

AMUAH JA

LUTTERODT JA

ASARE BEDIAKO (WITH HIM DAAKWA DWAMENA) FOR THE APPELLANT.

TOTOE (WITH HIM MARIAM AGYEMAN GYASI) FOR THE RESPONDENT.

[1993]DLCA846
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">REPUBLIC<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">AKENTEN II; EX PARTE YANKYERA<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1993-94] 1 GLR 246<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">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 AGYEMAN GYASI) FOR THE RESPONDENT. <o:p></o:p>

KPEGAH JSC, AMUAH AND LUTTERODT JJA<o:p></o:p>

</div>JUDGMENT OF LUTTERODT JA.<o:p></o:p>The Gyasewa stool of the Offinso Traditional Area became vacant
following the death of Nana Owusu Agyepong some eleven years ago. Three persons
including the applicant-respondent (hereinafter referred to as the respondent)
laid adverse claims to it. They did so by oath and these were, as custom
demanded, reported to the respondent-appellant, Nana Wiafe Akenten II, Omanhene
of the Offinso Traditional Area and the president of the Offinso Traditional
Council (hereinafter referred to as the applicant). In accordance with the
Chieftaincy Act, 1971 (Act 370) he set up a chieftaincy tribunal 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 grounds 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 chieftaincy tribunal
pending the hearing and determination of his appeal. In the meantime, during
the pendency of the appeal the appellant urged the parties to reconcile their
differences extra-judicially. When all attempts at reconciliation failed, he
summoned two meetings of the various contestants and took the following steps.
First, he announced the dissolution of the post of Gyasewahene (and impliedly
the dissolution of the stool) on the ground that the chieftaincy tribunal had
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 had by those acts of the
destruction of the old stool, the subject matter of the dispute, and creation
of a new stool 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 ground of appeal argued before us. The first was this,
that because at the time of the abolition of the said stool the judicial
committee, the actual body before whom the matter was pending, had been
dissolved and was not functioning, it was wrong for the judge to have granted
the relief sought. Then 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 cannot be described as contemptuous of the committee.<o:p></o:p>First, 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 merely show that upon an application brought by the
appellant the registrar adjourned the proceedings sine die. The respondent
himself does not in his affidavit allege that the committee had been abolished.
It (the committee) derived its authority from the traditional council. And, in
the absence of evidence that the appointing authority has, in the exercise of
its statutory powers dissolved it, the argument of counsel fails.<o:p></o:p>But, 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 think the trial judge cannot be
faulted. Here is my reason for saying so: We will find from a careful reading
of section 13(4) of the Chieftaincy (Proceedings and Functions) (Traditional
Councils) Regulations, 1972 (LI 798) that contempt’s against the judicial
committees are in fact and law contempts committed against the traditional
councils who established them. So that, where the allegation is that there is a
contempt committed against the committee, 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 even the committee trying the
chieftaincy dispute had ceased to exist, the traditional council has not, and
therefore any act committed against the erstwhile committee, is 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? I should think not. Any act,
whether customary or not done and which interferes with the due administration
of justice amounts to contempt. In this instant case, where the subject matter
in the p</main>