THE REPUBLIC vs. NANA KWASI ADU, NANA OPPONG ASAMOAH AND NANA KOFI ASUSEI EX-PARTE: JOHN OSEI KUSI [2008]DLCA6758

THE REPUBLIC vs. NANA KWASI ADU, NANA OPPONG ASAMOAH AND NANA KOFI ASUSEI EX-PA... [2008]DLCA6758

Date	2008-04-17
Suit No.	CIVIL APPEAL NO. H1/225/07
Citation No.	[2008]DLCA6758

ARYEETEY J.A. (PRESIDING)

MARFUL-SAU J.A.

MARIAMA OWUSU J.A

ADUMUA-BOSSMAN FOR APPELLANTS.

MICHAEL OWUSU FOR RESPONDENT

[2008]DLCA6758
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>NANA KWASI ADU,
NANA OPPONG ASAMOAH AND NANA KOFI ASUSEI<o:p></o:p>(RESPONDENTS/APPELLANTS)<o:p></o:p>EX-PARTE: JOHN
OSEI KUSI<o:p></o:p>(APPLICANT/RESPONDENT)<o:p></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;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO. H1/225/07 &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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 17TH APRIL, 2008<o:p></o:p>

</div>COUNSEL:
<o:p></o:p>ADUMUA-BOSSMAN FOR APPELLANTS. <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" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">MICHAEL OWUSU FOR
RESPONDENT. <o:p></o:p>

<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;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">ARYEETEY J.A. (PRESIDING),
MARFUL-SAU J.A., MARIAMA OWUSU J.A<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;
padding:0in 0in 1.0pt 0in">

</div>ARYEETEY, J.A. <o:p></o:p>This is an appeal against
the ruling of the Kumasi High Court in a motion for an order of Attachment
and/or committal for contempt in the court below against the respondents “for
their various acts and conducts with respect to Nkekyerekyi lands especially the
1st Respondent’s act of allocating parcels of Nkekyerekyi lands to prospective
developers as buildings plots and the 2nd Respondent’s act of reporting the
applicant herein to the Striking Force Unit of the Ghana Police Service for
criminal trespass in respect of Nkekyerekyi lands and the 3rd Respondent’s act
of removing demarcation pillars on the said land which said diverse acts are
calculated to bring the authority and administration of the law into
[disrepute] or disregarded in the light of the ruling of the High Court, Kumasi
dated 1st November 2002” Since the application is based on the ruling of the
Kumasi High Court in Suit No. MISC. 138/2001 dated 1st November 2002, there is
the need to go into the background of that judgment. Before I do that I would
like to touch briefly on a matter which emanated from the ground of appeal
filed by the respondents/appellants. The appellants filed only one ground of
appeal, that is, “The trial judge erred in law when he convicted the
Respondents/appellants for Contempt of Court in relation to their own land in
respect of which they hold a valid subsisting Consent Judgment of the High
Court to which Consent Judgment the Applicant respondent is not even a party”.
The ground of appeal quoted above suggests that since the applicant/respondent
was not a party he had no locus standi to pursue the contempt proceedings in
the court below. I observe that in his written submissions of the appellants’
case, counsel for the appellant did not address the issue of locus standi as
implied in the wording of the ground of appeal which I have just referred to.
It is worthy of note that in Suit No. LS 42/97 where the applicant respondent
was plaintiff, the claim to set aside the consent judgment was dismissed. The
conclusion of that judgment which is at page 47 of the record of appeal is as
follows: “I conclude in the circumstance that the plaintiff and whoever
support(s) him had the same interest in the previous action. The battle was
fought by the 2nd and the 3rd defendants herein to a peaceful end. It is
therefore not competent for the plaintiff to re-open the case. His case
therefore failed, and it is accordingly dismissed.” That means even though he
was not a party in Suit No. 747/92 he shared the same interests in the land in
dispute with the defendants in that case. He was not therefore allowed to
re-open the case which had been concluded on a peaceful note by way of amicable
settlement. In my view therefore, the applicant/respondent was entitled to
pursue the contempt proceedings in the court below. <o:p></o:p>Now we come back to the
background of the ruling of the Kumasi High Court in Suit No. MISC. 138/2001,
the subject matter of which was supposedly the basis for the contempt
proceedings before the court below, which is the subject matter of this appeal.
It all started with the case of Nana Kofi Edusei and Another v. Nana Akwasi Adu
(Suit No. LS 747/92). The parties in that case arrived at terms of settlement
which were embodied in a judgment dated 17th October 1996. That was followed by
Suit No. LS 42/97, John Kusi v. Nana Akwasi Adu and 6 Others in which the
plaintiff in that case sought to have the consent judgment of 17th October 1996
set aside as void. The plaintiff was unsuccessful. His claim was dismissed in
its entirety. Thereupon a motion for contempt, which was The Republic v. John
Osei Kusi and 2 Others, ex parte Nana Kwasi Adu, numbered Misc. 138/2001 was
brought against the respondents in that application by Nana Kwasi Adu. The
motion for contempt was dismissed. The concluding porting of the High Court’s
ruling in the contempt proceedings reads: <o:p></o:p>“It has been alleged that the
respondents have disobeyed the restraining order of the Court, that is, the
respondents have gone beyond the land allocated to them. The respondents have denied
going onto any land belonging to the applicant. Unfortunately, Exhibit C.E.1 is
not too helpful. What I expected to see on Exhibit C.E.1 was the location of
the old township of the respondents, the location of Nkekyerekyi, the location
of the 15 acres or 60 building plots that were offered to the respondents under
the Terms of Settlement and the area the respondents have trespassed onto.
Merely saying that the respondents are in contempt without proving it would not
ground a conviction. The evidence must show clearly that the respondents are in
contempt as the charge of contempt is quasi criminal and so the guilt of the
respondents must be proved not by preponderance of probabilities but beyond
reasonable doubt. In the case of The
</main>