THE REPUBLIC vs. KWAME NKRUMAH UNIVERSITY OF SCIENCE AND TECHNOLOGY EX PARTE ALFRED OBENG BOATENG [2012]DLCA3175

THE REPUBLIC vs. KWAME NKRUMAH UNIVERSITY OF SCIENCE AND TECHNOLOGY EX PARTE ALF... [2012]DLCA3175

Date	2012-06-01
Suit No.	CIVIL APPEAL NO. H1/50/2011
Citation No.	[2012]DLCA3175

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

F.G. KORBIEH J.A.

IRENE C. DANQUAH (MS.) J.A.

ADOMAKO KWAKYE FOR RESP/APPELLANT

OSEI KUFFOUR FOR APPLICANT/RESPONDENT.

[2012]DLCA3175
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>KWAME NKRUMAH UNIVERSITY
OF SCIENCE AND TECHNOLOGY<o:p></o:p>EX PARTE ALFRED OBENG
BOATENG<o:p></o:p>&nbsp;[COURT OF APPEAL, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO. H1/50/2011&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: 1ST JUNE, 2012<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>ADOMAKO KWAKYE FOR RESP/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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OSEI KUFFOUR FOR
APPLICANT/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;
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MARIAMA
OWUSU (MISS) &nbsp;J.A. (PRESIDING), F.G.
KORBIEH J.A., IRENE C. DANQUAH (MS.) 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;
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JUDGEMENT<o:p></o:p>

</div><o:p>&nbsp;</o:p>F.G. KORBIEH, J.A.<o:p></o:p>The
brief facts of the case leading to this appeal are as follows: the
applicant/respondent (hereinafter only referred to as the respondent) and one
other person were part-time students at the Law Faculty of the Kwame Nkrumah
University of Science and Technology (KNUST), Kumasi who were dismissed from
the university for examination malpractices. Before the dismissal of the two, the
university had set up a committee to investigate the alleged malpractices. The respondent
and his colleague attended the initial sitting of the committee as constituted but
raised an objection to its composition. As a result the composition of the
committee was changed. They again objected to the new composition of the
committee and it was again changed. They challenged the very existence of the
committee the third time on the basis that their examination results had been
publishedand so there was no need for the committee. This time the university
refused to oblige and their objection to the committee was over-ruled. The respondent
and his colleague and their counsel then boycotted the sittings and proceedings
of the committee on the grounds that they were going to test the validity of
the order over-ruling their last objection in court. They thereafter proceeded
to apply to the High Court, Kumasi for an order of certiorari to bring up to
the court and have quashed the proceedings of the committee as well as the
letters subsequently issued by the university to the two colleagues informing
them of their dismissal from the university. The application for certiorari (which
was opposed by the university) was placed before ImoruZiblim, J who ordered the
recommendation of the committee and the resultant two letters informing the respondent
and his colleague of their dismissal from the university to be brought up and
quashed.The university subsequently brought an application before the same Ziblim,
J. seeking to stay execution of the order of certiorari granted by him. In his
ruling on the application for stay of execution, Ziblim, J. stated that he had
‘not ordered anything to be done by the applicant nor did I order that the
applicant should not do anything.’ He therefore dismissed the application for
stay of execution as being unmeritorious. Following the refusal of the
application for stay of execution, the ‘Daily Graphic’ newspaper carried an
article in its Monday, July 7, 2008 edition to the effect that the respondent
and his colleague had been re-admitted into the university following the
decision of the Kumasi High Court presided over by Mr. Justice ImoruZiblim to
quash their dismissal from the university. Subsequently, on the 10/7/2008, the
same ‘Daily Graphic’ newspaper carried another articleentitled ‘Re: KNUST
Re-admits Two Dismissed Students’ which then went on to deny that the respondent
and his colleague had been admitted into the university as continuing students.
It was this later publication that led the respondent to file an application
for contempt of court against the respondent/appellant (hereinafter only
referred to as the appellant). In the affidavit in support of his application
for committal for contempt of court, the respondent deposed, inter alia, that
the second publication carried by the ‘Daily Graphic’ newspaper was made by the
appellant as a rejoinder to the first publication. He also deposed that the
appellant had made a categorical statement in the publication that the respondent
and his colleague remained dismissed for examination malpractices. He further
deposed that in so far as the recommendations and the dismissal letters had
been quashed by order of the court and the order quashing those documents had
not been appealed against, there was no dismissal in law. He went on to say that
the appellant’s action in making the publication had the tendency to undermine
the administration of justice and was calculated to bring the administration of
justice into disrepute. In his affidavit in opposition to the application for
committal for contempt, the appellant deposed as follows, inter alia: that at
the time the second publication was made, he had gone on his annual leave and
was therefore not at post at the university; that the ruling of the High Court
given on the 5/3/2008 contained no executable order; that a person could not be
cited for contempt of court in respect of a ruling that was non-executable
unless he insulted the judge that delivered the ruling; that as a solicitor/barrister
he had committed no contemptible act; that the court did not order the
university not to exercise its constitutional right of rejoinder to the first
publication and that the application was only meant to embarrass him. In a
supplementary affidavit in support of the application, the respondent deposed
as follows, among others:that he insisted that it was the appellant who caused
the offending publication to be made and further &nbsp;that it was the duty of the appellant to tell
the court the person who caused the publication to be made; that it was a
mis-appreciation of the law to think that contempt ‘cannot properly be put up
in the absence of an executable order decree or injunction’ and that contempt
could be founded on conduct that either interferes with pending proceedings or
has the tendency to bring the administration of justice into disrepute. <o:p></o:p>In
a ruling pertaining to the preliminary issue whether or not the application for
contempt was sustainable in court, Debrah, J. ruled that it was only after the
parties had been heard that the issue could be determined. He therefore
dismissed the preliminary objection raised by the appellant. In his subsequent
ruling dated 16/12/2009 on the merits of the application, Debrah, J. found the
appellant liable to be committed for contempt and proceeded to order the
‘Defendants’ to:<o:p></o:p>‘(a)
Pay fine of GH₵