THE REPUBLIC vs. ERZOAH BEALEE @ NANA EKUMSA V & 9 OTHERS EX-PARTE: NANA NYAMEKYEH ANNOR III [2004]DLCA6615

THE REPUBLIC vs. ERZOAH BEALEE @ NANA EKUMSA V & 9 OTHERS EX-PARTE: NANA NYAMEK... [2004]DLCA6615

Date	2004-07-30
Suit No.	H1/124/2004.
Citation No.	[2004]DLCA6615

OWUSU JA

ANIM JA

QUAYE JA

[2004]DLCA6615
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>ERZOAH
BEALEE @ NANA EKUMSA V &amp; 9 OTHERS<o:p></o:p>(RESPTS/APPE'TS)<o:p></o:p>EX-PARTE: NANA
NYAMEKYEH ANNOR III<o:p></o:p>(APP'T/RESPT.)<o:p></o:p><o:p>&nbsp;</o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
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QUAYE,JA<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>QUAYE,
JA. <o:p></o:p>This
appeal centrally turns on whether an application for attachment for contempt
arising from disobedience of a judgment of a court is cognisable under 059 r 21
(2) of the High Court (Civil Procedure) Rules 1954 (LN 140A). The said rule
states:— <o:p></o:p>(2)
This rule applies to cases where the contempt is committed— <o:p></o:p>(a) in connection with proceedings to which this Order
relates; <o:p></o:p>(b)
in connection with any proceedings in Court, except where the contempt is
committed in facie curiae or consists in disobedience to an order of the Court;
<o:p></o:p>(c)…………………….(not
applicable). (emphasis mine). <o:p></o:p>The
parties herein are opposing factions in the chieftaincy affairs at Bonyere in
the Nzema District of the Western Region of Ghana. The applicant, now
respondent in this appeal, filed a motion ex-parte in the High Court for leave
to attach the respondent/appellant herein for contempt found upon his alleged disobedience
by the respondents, now appellants herein, of the decision and orders issued
from the Court of Appeal on 21st April 1975 in the suit entitled, AGYILIHA
&amp; ANOR. VRS TAYEEE reported in (1975) 1 GLR 433. <o:p></o:p>The
said judgment in effect declared the applicant/respondent's Asamangama family
to be the rightful chiefs of Bonyere as against the respondents/appellant's
Adahonle family. By virtue of the said decision of the Court of Appeal in 1975,
the applicant/respondent's predecessor on the stool, Nana Nyamekeh Annor II,
who was enstooled in 1960, continued his reign without let until he died on
16th August 2002. Subsequent to that the applicant was enstooled chief of
Bonyere on 16th November, 2002, in succession. Shortly thereafter, precisely on
28th November 2002, the 1st respondent/appellant was enstooled and set up as a
rival chief to the Bonyere stool. It was this development which was in direct
wilful disobedience of the Court of Appeal judgment of 1975 supra, that
occasioned the filing of the contempt application by the applicant/respondent
in the High Court pursuant to leave granted by that court on 28th March 2003. <o:p></o:p>The
record of appeal shows that the 3rd respondent/appellant filed a composite
affidavit in opposition to the pursuant notice for himself and on behalf of the
rest of the respondents/appellants on 11th April 2003. In view of the issues
raised, the flood gates were, so to speak, opened for amendments, and the
filing of several supplementary affidavits to which numerous exhibits were
attached on both sides. The ensuing issues which are, in any case, not material
for consideration in this appeal led the trial Judge to seek the intervention
of the experts from the Police Forensic Laboratory by referring some of the
exhibits to them for analysis and confirmation of their authenticity. <o:p></o:p>Upon
the submission of their report to the court, the expert from the Police
Forensic Laboratory testified before the court as C.W.1 and was subjected to
cross examination by respective counsel for the parties. That was on 4th
September 2003. The court then adjourned to 16th October 2003 for counsel to
make their submissions. <o:p></o:p>As
it turned out, the 2nd respondent/appellant failed to attend the court on the
adjourned day hence the application was further adjourned until 21st October
2003 for both counsel to complete their arguments." On the said 21st
October 2003 when the court was ready to hear the submissions albeit the 2nd
respondent/appellant was again absent, the counsel for the
respondents/appellants applied to raise preliminary legal objections to the
procedure of the application. He raised two main issues, to wit (a) that the
contempt application had been brought long after judgment had been delivered in
the AGYILIHA &amp; ORS. VRS. TAYEE case (supra) which was given on 25th April
1975, and (b) that the application cannot be brought under Order 59 rule 21 (2)
of LN 140 A because thereunder, applications founded on disobedience of an
order of the court are excepted or ousted. After counsel for the
applicant/respondent had reacted to the grounds in support of the preliminary
objection, the trial court virtually upheld the contention of the
respondents/appellants touching on the interpretation of Order 52 rule 21
(2)(b) of LN 140A. <o:p></o:p>