THE REPUBLIC vs. NANA KWAME KORANG IV EXPARTE NANA KWAME ASANTE KROBEA II [2011]DLCA3163

Date	2011-06-24
Suit No.	CIVIL APPEAL NO. H1/14/2010
Citation No.	[2011]DLCA3163

MARIAMA OWUSU (MISS) J.A. (PRESIDING)

F.G. KORBIEH J.A.

IRENE C. DANQUAH (MS) J.A.

[2011]DLCA3163
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>NANA KWAME KORANG IV EXPARTE NANA KWAME ASANTE KROBEA II<o:p></o:p>[COURT
OF APPEAL, KUMASI]<o:p></o:p><o:p>&nbsp;</o:p>CIVIL
APPEAL NO. H1/14/2010&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATED:
24TH JUNE, 2011 <o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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</div>CORAM:<o:p></o:p>MARIAMA
OWUSU (MISS) J.A. (PRESIDING), F.G. KORBIEH J.A., IRENE C. DANQUAH (MS) J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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</div>F.G. KORBIEH, J.A.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
<o:p></o:p><o:p>&nbsp;</o:p>The
brief facts of the case leading to this appeal are the following: the applicant/appellant
(hereinafter referred to simply as the appellant) was at all material times the
Adontenhene of the Awuah-Odumase Traditional Area whilst the
respondent/respondent (hereinafter referred to simply as the respondent) was at
all material times the Omanhene of the same traditional area. In or around
April, 2004 the appellant was suspended from office as Adontenhene by the
traditional council of the afore-mentioned traditional area.&nbsp; The appellant therefore filed a petition at
the Brong Ahafo Regional House of Chiefs praying for, among other things, an
order of injunction restraining the respondent from interfering with the
traditional functions of the appellant as Adontenhene or in any way assigning
the functions of the appellant as Adontenhene to any other person pending the
final determination of the suit. The appellant followed up this petition with
an application for an order of interim injunction to restrain “the respondent
and his Traditional Council, their agents, assigns, privies or any one
purporting to act as the regent or as the Adontenhene of Awuah-Odumase
Traditional Council from exercising the Traditional functions of the applicant
at any forum particularly the funeral of the late Nana Owusu II, Gyaasehene of
Awuah-Odumase until the final determination of this suit.” Both processes
having been served on the respondent, he filed a notice of appearance and
statement of defence to the petition. The main thrust of the defence of the
respondent was that the appellant, being a sub-chief in a care-taker position, had
been disloyal and disrespectful to the respondent and it was for that reason that
his title had been withdrawn. There is no indication that he filed an affidavit
in opposition to the motion for interim injunction. Whilst both the petition
and the motion for interim injunction were pending, the appellant filed a
motion seeking to attach the respondent for contempt. In the affidavit in
support of the application for contempt, the appellant deposed, among other
things, as follows: that he was still the legally enstooled Adontenhene of
Awuah Odumase; that the respondent had appointed one Opanin Kwabena Badu as the
regent of the Adonten stool; that on the 12/11/05 and 13/11/05 the respondent
went with the said Opanin Kwabena Badu to represent the Adonten stool at the
funeral of the late Gyaasehene of Awuah-Odumase and Kwatirehene of Kwatire;
that the said Opanin Kwabena Badu was seated at the funeral grounds at the very
position that the Adontenhene sits when the respondent sits in state; that the
respondent, without the slightest respect for the judicial process and with a
clear intention to bring the administration of justice into disrepute, engaged
in the very conduct the appellant sought to restrain him from. The respondent
filed an affidavit in opposition to the appellant’s motion for contempt denying
all the allegations leveled against him save the allegation that he attended
the funeral on the 12/11/05. He denied in particular the allegation that he had
appointed Opanin Kwabena Badu as the regent of the Adonten stool, adding that
given the fact that he was not a member of the Adonten stool family, he could
not have made such an appointment. He also denied that he went to the funeral
of the Gyaasehene with Opanin Kwabena Badu whom he said he did not even see at
all at the funeral; he alleged that it was only because of the avowed intention
of the appellant to embarrass him that the application had been brought. Upon
receipt of the respondent’s affidavit in opposition, the appellant filed two
supplementary affidavits to which he attached three photographs (marked
exhibits “D1”, “D2” and “D3”) a compact disc (CD) (marked exhibit “D4”) which
he claimed was proof that the respondent attended the funeral with Opanin
Kwabena Badu. These pictures were however undated photographs with just the following
deposition:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
“5. That in further denial of paragraphs 7 and 8 of the affidavit in
opposition, I wish to state that the respondent attended the funeral of the
late Gyaasehene of Awuah-Dumase with Opanin Kwabena Badu to represent the
Adonten stool of Awuah-Dumase. Indeed at the said funeral ground photographs
and a video coverage were taken. Attached and marked exhibit ‘D1, D2 and D3 are
copies of the photographs. The video footage will also be tendered in this
case.”<o:p></o:p>Nothing
on either side of photographs showed that they were pictures of either the
respondent or Opanin Kwabena Badu. It was only during the hearing of the
application for contempt that learned counsel for the appellant proceeded to explain
whom the individuals appearing in exhibits “D1”, “D2”, “D3” and “D4” were and
also to allege that this was evidence that the respondent attended the funeral
with Opanin Kwabena Badu. I must say at once that the procedure adopted by
counsel was unwarranted by any rule of procedure and ought not to have been countenanced
at all by the trial court. This is because learned counsel was in effect
testifying as to the contents of those exhibits. As a result of that approach,
counsel’s submissions were not and could not be subjected to cross-examination.
This is not permissible in law. If counsel thought that the exhibits were not
self-explanatory, what he should have done was to have applied to lead viva
voce evidence in the course of which those exhibits would be tendered. This
would have afforded the respondent the opportunity to cross-examine on the
exhibits. As it is, the respondent had no opportunity to admit or deny that he
and/or Opanin Kwabena Badu are the people counsel alleged are in those
photographs. It may be contended that the trial judge saw the respondent and
could therefore recognize him in the photographs and CD but two responses can
be given to that argument. The first is that Opanin Kwabena Badu is not a party
to this case an</main>