THE REPUBLIC vs. NATIONAL SECURITY CO-ORDINATOR AND 6 OTHERS EXPARTE: NII AKO NORTEI IV [2018]DLHC4019

THE REPUBLIC vs. NATIONAL SECURITY CO-ORDINATOR AND 6 OTHERS EXPARTE: NII AKO NO... [2018]DLHC4019

Date	2018-02-23
Suit No.	SUIT NO: CR/868/2017
Citation No.	[2018]DLHC4019

JUSTICE KWEKU T. ACKAAH-BOAFO

BRIGHT OKYERE ADJEKUM WITH MAAME SARPONG LED BY

FRANK DAVIES FOR THE APPLICANT

PATIENCE ADUMUA-LARTEY (CSA) FOR THE 1ST – 5TH RESPONDENTS

KWESI FYNN FOR 6TH & 7TH RESPONDENTS

[2018]DLHC4019
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>NATIONAL SECURITY CO-ORDINATOR AND 6 OTHERS EXPARTE: NII AKO
NORTEI IV<o:p></o:p>[HIGH COURT (GENERAL
JURISDICTION DIVISION, COURT 6) ACCRA]<o:p></o:p><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">

SUIT NO: CR/868/2017&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: 23RD
FEBRUARY, 2018<o:p></o:p>

</div><o:p>&nbsp;</o:p>COUNSEL:&nbsp; <o:p></o:p>BRIGHT OKYERE ADJEKUM
WITH MAAME SARPONG LED BY FRANK DAVIES <o:p></o:p>FOR THE APPLICANT <o:p></o:p>PATIENCE
ADUMUA-LARTEY (CSA) FOR THE 1ST – 5TH RESPONDENTS<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-left:2.0in;text-align:justify;text-indent:
-2.0in;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">KWESI
FYNN FOR 6TH &amp; 7TH 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:0in 0in 1.0pt 0in">

JUSTICE KWEKU T. ACKAAH-BOAFO<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">

OBJECTION
TO THE ADMISSIBILITY OF 1ST – 5TH RESPONDENTS AFFIDAVIT
IN OPPOSITION FILED<o:p></o:p>

</div>i.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Background:<o:p></o:p>[1]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The issue for my determination is free from complexity
but an important procedural issue. On December 6, 2017 the Applicant filed at
the registry of this Court an Application for Committal for Contempt of Court
pursuant to Order 50 of the High Court Civil Procedure Rules, 2004, C.I.
47 of all the named Respondents. After the service of the application
on the Respondents, the 6th and 7th Respondents deposed to affidavits in
opposition by themselves; in effect they have spoken for themselves. On January
17, 2018 Miss Tricia Quartey (Senior State Attorney) of the Ministry of Justice
and Attorney General’s Department deposed to a 15-paragraph affidavit in
opposition for the 1st, 2nd, 3rd, 4th and 5th Respondents to the application.
The Court’s admission and reliance on the said affidavit is the subject-matter
of the instant legal objection by Counsel for the Applicant who has submitted
with some amount of force urging on the Court to reject the affidavit on the
grounds that “there is no affidavit in opposition for the 1st to 5th
Respondents” because they have not deposed to individual affidavits in
opposition.<o:p></o:p><o:p>&nbsp;</o:p>ii.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Arguments for &amp; arguments the
Objection:<o:p></o:p>[2]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Learned
lead Counsel for the Applicant, Mr. Frank Davies submitted to the Court that
“the title of the application speaks for itself’ to the extent that this is a
contempt application. Counsel submitted that it is trite learning that contempt
is quasi-criminal and conviction potentially carries a penalty of custodial
sentence even if for a day or hours and therefore it is the “accused” who ought
to answer for him or herself. Counsel further submitted that “in the body of
the Court, the Respondents stand before the Court as accused persons and that
is why they have to respond to the charge and/or explain their absence to the
Court. <o:p></o:p><o:p>&nbsp;</o:p>[3]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Further,
Mr. Davies submitted that “we all know that nobody takes a plea for an accused
because the punishment is in personam,”
therefore according to Learned Counsel the persons cited for contempt who are
known persons in the country ought to speak for themselves. To that extent and
in the view of learned Counsel, Tricia Quartey SSA cannot by any stretch of
imagination attempt to depose to an affidavit for the Respondents. Mr. Davies
further submitted that should the Respondents be convicted, the deponent cannot
go to jail for them.&nbsp; Learned Counsel
anchored his objection and submission in the statement of Hayfron Benjamin JSC
(as he then was) in the case of IN
RE: EFFIDUASE STOOL AFFAIRS (No.2); EX PARTE AMEYAW II (1998-1999) SCGLR 639 at
660 &nbsp;and submitted that the law is that each
Respondent ought to file his or her own affidavit.<o:p></o:p><o:p>&nbsp;</o:p>[4]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Responding
to the objection, the Learned Chief State Attorney Patience Adumua Lartey also
made reference to the title of the suit and submitted that the Respondents are
public officials sued in their personal capacities. According to learned
Counsel the nature of the Respondent’s offices are transient and they do not
have any fixed term of office because they can be replaced at any time and
therefore the objection is misconceived. Mrs. Adumua Lartey further submitted
that Ms. Tricia Quartey deposed to the affidavit based on information gathered
as part of her official duties as a state attorney because the Attorney General
under the State Proceedings Act represents the 1st to 5th Respondents. <o:p></o:p><o:p>&nbsp;</o:p>[5]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; It
is also the position of the Learned Chief State Attorney that nothing prevents
the Applicant’s Counsel from cross-examining the deponent of the affidavit with
regards to her personal knowledge and the facts acquired in the course of her
duties. Finally, learned Counsel submitted that the statement relied on by Mr.
Davies was in the dissenting minority opinion and therefore the Supreme Court
did not state in EX </main>