THE REPUBLIC vs. OPANIN KWADWO GARI AND 4 OTHERS ALL OF ABURASO, KUMASI; EX PARTE NANA NKANSAH BOASARE II [2012]DLHC8183

THE REPUBLIC vs. OPANIN KWADWO GARI AND 4 OTHERS ALL OF ABURASO, KUMASI; EX PART... [2012]DLHC8183

Date	2012-02-20
Suit No.	SUIT NO. C12/107/11
Citation No.	[2012]DLHC8183

HIS LORDSHIP JUSTICE JACOB B. BOON

PATRICK ADU-POKU FOR APPLICANT

D. K. DOKU FOR THE RESPONDENTS

[2012]DLHC8183
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>OPANIN KWADWO
GARI AND 4 OTHERS ALL OF ABURASO, KUMASI;<o:p></o:p>EX PARTE NANA NKANSAH BOASARE II<o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. C12/107/11&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;DATE: 20TH
FEBRUARY, 2012<o:p></o:p>

</div>COUNSEL:<o:p></o:p>PATRICK
ADU-POKU FOR APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

D.
K. DOKU FOR THE RESPONDENTS <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;
padding:0cm 0cm 1.0pt 0cm">

HIS LORDSHIP JUSTICE JACOB B. BOON<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:0cm 0cm 1.0pt 0cm">

</div>This ruling is in respect of an application for contempt
filed by one Nana Nkansah Boasare II who described himself as the chief
Akyremekuku, Aburaso. He would be referred to as the applicant in this ruling. &nbsp;Before this application, the applicant mounted
a writ in the Circuit Court, Kumasi, presided over by His Honour Judge
Amo-Yartey. On the 10th of December, 2010, the day the writ was
filed in the Registry of the circuit court, the applicant was granted a limited
order of injunction against the first three respondents, who are the defendants,
in that suit. According to the terms of the order, the respondents were
restrained from interfering with a parcel of land described as plot No. 26
Block R, Aburaso, Kumasi, and also from burying or organizing the funeral rites
of the late Queen of Aburaso on the parcel of land already referred to. It is
the case of the applicant that the 1st to 3rd respondents
defied the orders of the circuit court when they went ahead and continued with
the construction of a building on the disputed plot and performed the funeral
of the late queen of Aburaso on it. It was also asserted that the 4th
respondent was engaged by the first three respondents to continue with the building
of the disputed structure, though he was aware of the injunction of the Circuit
Court, Kumasi. On the other hand, the 5th respondent was later
joined to the contempt application on the ground that the affidavit in
opposition filed by the first three respondents indicated that the disputed
property was in his possession. It was further alleged that the funeral
organization was under-taken by the same 5th respondent. It was
therefore urged upon the court that it was necessary for him to be joined to
the contempt application as a respondent to enable the applicant completely
prove his case. Apparently, the respondents had indicated in their affidavits
in opposition to the motion, that the 5th respondent was directed by
the Asantehene to act as a caretaker of the township of Aburaso pending the
resolution of a chieftaincy dispute at Aburaso that involves the applicant and
the second respondent. They also asserted that the Asantehene had, in addition,
charged the 5th Respondent to supervise the performance of the
funeral of the late queen. The contention of the respondents therefore was that
it was the 5th Respondent who directed the further construction of
the structure referred to as the Aburaso palace on the disputed plot to
facilitate the burial and funeral of the queenmother. It is their case that the
other respondents particularly, the 1st to 3rd, played no
part in continuing with the construction of the proposed palace on the disputed
property nor did they play a part in the funeral performance of the queen.<o:p></o:p><o:p>&nbsp;</o:p>The respondents attached the said orders of the
Asantehene to their affidavit in opposition to the supplementary affidavit of
the applicant and marked it as exhibit ‘A’. In exhibit ‘A’, it is true that the
Asantehene directed the 5th Respondent, the Gyasehene of Aburaso and
the late Obaapanin to take care of the entire township of Aburaso till the
chieftaincy dispute referred to before his court was disposed of. I believe it
was as a result of this directive that the respondents put up a case that the
disputed property was possessed by the 5th respondent.<o:p></o:p><o:p>&nbsp;</o:p>I have carefully studied all the processes filed in this
application in addition to the evidence led when the court granted leave to the
parties to lead oral evidence, and I am of the opinion that joining of the 5th
Respondent to the contempt application was unnecessary. In the first place, he
was not a party to the suit filed at the Kumasi Circuit Court, and no evidence
was led that he was served with the processes filed in that court, nor that the
order under attack was brought to his attention. Though, he and others were
directed by the Asantehene to act as caretakers of the Aburaso township, I have
not been sufficiently persuaded that he took possession of the disputed land
and ordered the continued construction of the building on it to facilitate the
burial and performance of the funeral of the late queen on that property. It is
also true that his name appeared in the funeral invitation card of the deceased
queen. But no evidence was led that he did so in wilful defiance of the order
of the Circuit Court or he put up a conduct that tendered to bring the
authority and administration of the law into disrepute. Merely being directed
by the Asantehene to act as a caretaker of Aburaso was not enough to show that
he ordered the continuation of the building of the proposed palace on the
disputed property nor the appearance of his name among the chief mourners in
the funeral invitation card regarding the funeral performance of the late queen
of Aburaso is sufficient evidence of his guilt in terms of the motion for
contempt now being considered. Indeed, as indicated, he was not originally made
a respondent by the applicant. He was joined later because the applicant said
he was the caretaker of the disputed property. Though that is a fact, no
further proof was exhibited that he ought to be liable for contempt of court.
In the circumstance, I do not find the 5th Respondent liable for
cont</main>