[1Q84-86] 2GLR 181

INTERIM EXECUTIVE COMMITTEE OF APOSTOLICOIVINE CHURCH OF GHANA v INTERIM EXECUTIVE

COUNCIL and Others (No 2)

HIGH COURT, KOFORIDUA

17 July 1984

ASARE - KWAPONG J

Judges—Bias—Objection to panel—Likelihood of bias Respondents actingcontrary to trial judge's order of interim injunction—Application for attachment for contempt of court against respondents—Respondents objecting to trialjudge Itearing application on grounds of likelihood oj bias—Objectionox'emiled as likelihood of bias not as forthright as being hiased-Tnal judgeshowing interest in case making judgment voidable only and not void.

Contempt of court-Offence-Ingredients-Breach of interim injunction-Respondents not being party to suit committing acts violative ofcourt order-Applia.tionfor attachment for contempt—Whether respondents liable to be attached forcommittal orderfor contempt- Ignorance of pendency of court order-Lack ofhwwledge of existence of court order no defence to contempt—Lack ofknowledge to be considered by court when passing sentence.

Contempt of court-Criminal contempt—Ingredients—Stranger to suit—Wilfuldisobedience-Sanctions—Circumstances in which stranger can be convictedfor breach of court order—Remorse of contemnor to be taken into account.

The plaintiff-applicants, as members of an interim executive committee of UieApostolic Divine Church of Ghana obtained on 13 Apnl 1984 an intenm injunctionrestraining the defendant-respondents, their agents and assigns from carrying out anyfunctions and undertaking to administer and manage the affairs of tlie ApostolicDivine Church, thereby usurping the rights, powers and functions of the plaintiffcommittee. Pastor Akoto (A) and Brother Owusu (OW) were also members ol thechurch but not parties to the suit in which the order was made. They were howevermembers of a rival committee against which the order was made. On 16 April 1984,certain members of the plaintiff committee served A (who was in charge of the AccraSociety of the church) with a certified true copy of the court's order and demanded tohave the keys to the church offices and tlie church room, but A refused to do so onthe ground that two other members of the church (Brother Osafo (OS) and Beatrice(B) who were respondents in the original suit) had put him in charge of the societyand he would only take instructions from them, Consequently, OS was invited totake the keys from A and hand them over to tite plaintiff committee, but he refusedto do so. Then on 17 April 1984 A and OW locked up the church doors and offices inAccra where tlie church was due to hold a convention. They refused to allowmembers of the church to enter the chiuch premises, offices and the chtirch room. Inthe instant application for attacliment for committal order for contempt of courtagainst the respondents which included A and OW, A deposed in paragraph (2) ofhis affidavit in opposition to the claim that he was neither a party to the suit pendingat the High Court in which the order was made nor a servant or an agent of the

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182 Ghana Law Reports [ 1984-86] 2 GLR

interim executive council nor was he an agent of OS. OW's affidavit too was exactlythe same as that of A. Both of them filed affidavits to deny generally the specificinstances deposed to in the affidavit filed by the plaintiff committee. Their counselalso raised a preliminary objection to the trial judge sitting on the case on the groundthat since the trial judge had given the earlier interim injunction he was "likely to bebiased" against the respondents. On these facts.

Held, allowing the application: (I) the allegation of likelihood of bias wasnot as forthright as being biased so that even if the court was likely to bebiased, it was not also likely to be biased against counsel's client. For evenwhere a judge had shown an interest in a case, his judgment could only bevoidable but not void. Phillips v Eyre (1870) LR 6 QB 1 at 22 cited.

(2) Any conduct which tended to bring the authority and administration ofthe law into disrespect or interfere with any pending litigation, like the instantcase, was contempt of court. There was ample evidence on record that therespondents were labouring under a misconception that they were not party tothe suit and so they could do as they liked despite the court's order. The orderwas directed to all the respondents in the suit and any one taking instructionsfrom them, so that if both A and OW took instructions from OS, they werecommitting contempt as agents of OS. Taking away the keys to the offices of thechurch was a flagrant disrespect of the court's order. Even if A and OW had noknowledge of the pendency of the said order, absence of such knowledge couldnot be a defence, if that conduct was in fact in contempt of court. Lack ofknowledge of the pendency of the said order could only be taken intoconsideration when passing sentence. It would be of no avail to A and OW thatthey were not parties to the suit and that they had not been served with the writ.R V Odhams Press Ltd; Ex pane Attorney-General [1957] 1 QB 73; Balogun vEdusei (1958) 3 WALR 547; dictum of Akufo-Addo CJ in Ohene v Tanko,Court of Appeal, 8 August 1967; digested in (1968) CC 51; Republic v Moffat;Ex pane Allotey [1971] 2 GLR 391 and Kangah v Kyereh [1979] GLR 458cited.

(3) The court had jurisdiction to punish for contempt, a person who,though not a party to the action, as in the instant case, chose to assist others inthe doing of that which he well knew was prohibited by an order of the court.Such wilful disobedience of the court's order by a stranger to the litigationconstituted criminal contempt, because each was a stranger to the proceedingsm which the order of injunction was made. Each of the respondents wastherefore guilty of contempt. However, in view of the remorse of therespondents—each of them pleading for leniency and also of the plea of theircounsel for leniency with every lawyer in court associating himself with counselfor the respondents they would not be imprisoned outright but instead given anoption of a fine even though the breach of the order by them was considered bythe court to be serious. Seaward v Paterson [1897] 1 ChD 545, CA; dictum ofLord Romer LJ in Hadkinson v Hadkinson [ 1952] 2 All ER 569 CA andTetteyga II v Sappor [1973] 2 GLR 277, CA cited.

Cases referred to:

(1) Interim Executive Committee ofApostolic Divine Church ofGhana v Interim Executive Council [1984-86] 2 GLR175.

(2) Phillips V Eyre (1870) LR 6 QB 1; 22 LT 869.(3) Republic \ Moffat; Exparte Allotey [1971] 2 GLR 391.

[1984-86] 2GLR Interim Committee v Interim Council 183

(4) Ohene v Tanko, Court of Appeal, Accra, 8 August 1967;digested in (1968) CC 51.

(5) Balogun v Edusei (1958) 3 WALR 547.(6) R V Odhams Press Ltd; Ex parte Attorney-General [1957] 1

QB 73; [1956] 3 WLR 796; [1956] 3 All ER 494, DC.(7) Kangah v Kyereh [1979] GLR 458.(8) Hadkinson v Hadkinson [1952] 2 All ER 567; [1952] 2 TLR

416, CA.(9) Seaward \ Paterson [1897] 1 ChD 545, CA.(10) Tetteyga II \ Sapper [1973] 2 GLR 277, CA.

Application for attachment for committal order for contemptagainst the respondents for violating an order of the High Courtrestraining them from carrying out any functions or admuustering ormanaging the affairs of the Apostolic Divine Church of Ghana. Thefacts are set out in the ruling.

D Y Osei (with him Oppong-Adjei) for the applicantsAddai Aboagye (for Asante Fosuhene) for the respondents.

Asare-Kwapong J. On 13 April 1984, the plaintiff-applicants herein,obtained, inter alia, an order restraimng the defendant-respondents,their agents and assigns from carrying out any functions and/or undertaking to administer and manage the affairs of the Apostolic DivineChurch thereby usurping the rights, powers and functions of the plaintiff committee: see [1984-86] 2 GLR 175. Brother Owusu and PastorAkoto were not parties to that suit but members of the church who areagents of the defendant committee to whom the order was directed.

In the instant application for attachment for committal order forcontempt of court against the respondents, the applicants complainedthat since the order for interim injunction was made on 13 April 1984,the two respondents as agents or servants of the respondent committeehad violated the order. The acts and conduct complained of were thatBrother Owusu and Pastor Akoto locked up the church doors andoffices in Accra where they were due to hold a convention on 17 April1984, and did not permit any of the members of the church to enter thechurch-room, offices and foe mission house; that all persuasion toallow them to enter failed and in flagrant disregard for foe orders of foecourt foe defendants still insisted that foe order of foe court was of noeffect.

The applicants have set out foe grounds on which they havebrought this application in foe accompanying affidavit and I hereunderproduce foe selected paragraphs which I consider relevant to foe issuesbefore foe court:

Ig4" Ghana Law Reports [1984-86] 2 GLR

"(2) That on or about 13 April 1984 the High Court granted theplaintiff committee's application for interim injunctionagainst the defendants and restrained them from carry ing outany functions and/or undertaking to administer and managethe affairs of the Apostolic Divine Church and therebyusurping the right and functions of the plaintiff committee.

(3) That on the very 13 April 1984 the fifth defendant, BrotlicrE K Osafo, was in court when the said ruling was read mcourt and was also served with a certified true copy of theorder and had full knowledge of the said ruling and order ofthe court.

(4) That on or about 16 April 1984 certain members and I of theplaintiff committee went to the church premises in Accraand met Pastor John Akoto who is in charge of the Accrasociety of the Apostolic Divine Church.

(5) That the members and I gave him a certified true copy of thecourt's order and requested to have the keys to the churchoffices and church room but he refused to hand the keys tous on the grounds that Brother E K Osafo and BeatriceAkoto (these two persons were respondents in the originalsuit) put him in charge of the society and would only takeinstructions from them.

(6) Consequently, Brother E K Osafo was invited to take thekeys from Pastor John Akoto and hand them over to the

/ plaintiff committee but he refused and in spite of repeatedy demands Brother E K Osafo and Pastor John Akoto still

refuse to hand over the keys and he is keeping them. (1 musthere emphasise that Brother E K Osafo, who should havebeen one of the alleged contemnors, had not been served uptill now.

(7) That on or about 11 April 1984 Brother E K Osafo andBrother Owusu reported members of the plaintiff committeeto the Regional Police Headquarters, Accra, and to theInspector-General of Police that the doors of the church andoffices had been forced open but investigations by the policeproved the accusation false.

(8) That they convinced other members of the church that anappeal had been lodged and therefore the order of the courtwas ineffective.

(9) That there was a heavy downpour of rain and members whoattended the convention had no shelter and became wet inthe rain. That the defendants are still committing actscontrary to the order of the court."

[1984-86] 2 GLR Interim Committee v Interim Council 185

Learned counsel for the applicants moving the court for the motion,forcefully impressed upon the court that pursuant to the leave grantedon 3 May 1984, notices and all relevant papers were served on all theparties concerned, ie the respondent committee except the fifthrespondent. He said by the tone of the pursuant notice the agents andassigns became aware of the pendency of the application for interiminjunction in the court. He further argued that Pastor Akoto in hisaffidavit stated tliat he was not a party to the pending suit but it mustbe observed that he is an agent of the defendant committee and once theorder was against the church. Pastor Akoto was deemed to have knownof the order. He reiterated that judicial notice must be taken of the factsthat all spiritual churches go on convention during Easter, and thatPastor Akoto knew this and was aware that the plaintiff committeewere going to hold a convention in Accra, and tliat even those who wererestrained were going to hold one at Krobo Odumase. As regardsBrother Paul Owusu, he was totally aware of the order as the matterwent as far as the Police Headquarters in Accra and that it wasresolved there, said counsel for the applicants. He asked the court totake the issue seriously as the defendants have flouted the court s order.

The affidavit filed by the respondents, in opposition to thisapplication did not seek to admit the allegations made by the applicantsbut denied the allegations generally. What Pastor John Akoto saidwhich is relevant to this issue were contained in paragraphs (2)-(4) ofhis affidavit in opposition which stated as follows.

"(2) That I am not a party to the present suit and neither am I theservant or agent of the respondent interim executive councilor agent of E K Osafo.

(3) That I have not flouted any of tlie orders made against thedefendants in this suit by this honourable court on 13 April1984; [and he set out the interim injunction order I made on13 April 1984.]

(4) That I locked up the church d.oors and offices as I wastravelling and that at the time of travelling nobody hadapproached me to hold a meeting in the church building."

The affidavit of Brother Paul Owusu is exactly the same as that ofPastor John Akoto.

Counsel for the respondents before replying to the argumentssubmitted by the counsel for the plaintiffs, raised an objection to mysitting on the case, his reason being that and I quote, "You are likely tobe biased against the defendants as you gave judgment against them." Igave my reason for overruling his submission that "likely to be biased"

186 Ghana Law Reports [1984-86] 2 GLR

was not as forthright as "being biased" so that if I was likely to bebiased, I was also not likely to be biased against his clients. For evenwhere a judge has shown an interest in a case, which I did not do, hisjudgment could only be voidable but not void: see Phillips v Eyre(1870) LR 6 QB I at 22. When counsel for the respondents resumedhis argument he referred to the injunction order made against his clienton 13 April 1984 and argued that there was no order in the injunctiongranted that Pastor Akoto should hand over the keys of the property ofthe church to the plaintiff committee and that Pastor Akoto was amember of the plaintiff committee.

It must here be remembered that Pastor Akoto defected from theplaintiff committee to join the respondent committee. And that he wasnot an agent of E K Osafo. Counsel for the respondents at this stageasked for an adjournment and at the next adjourned date, counselfurther argued that nothing had been done by the respondents to floutthe orders of the court and that no one reported the applicants to thepolice that the church had been broken into. He finished by saying thatthe court could not put the plaintiff committee at the helm of the affairsof the church.

From the affidavits filed by both parties and the arguments putforth before me, it is incumbent upon the court to determine whether ornot the order I made on 13 April 1984 has been breached by the tworespondents. As I said earlier on, the respondents affidavit is a generaldenial of the specific instances given by the plaintiff committee asamounting to the breach of the order. There was virtually no affidavitm. opposition filed to deny specific instances filed by the plaintiffcommittee^Trial of this nature is by affidavits, no evidence is requiredexcept in very rare cases, and so he who is called upon to answerspecific charges must do so on affidavit. The plaintiffs had been put atthe helm of affairs by the Apostolic Divine Church itself, and they wererequired to do virtually everything on behalf of the church. I need notrecall the terms of reference of the plaintiff committee as I stated all inmy ruling of 13 April 1984: see Interim Executive Committee ofApostolic Divine Church of Ghana v Interim Executive Council(supra).

When this case was started the respondents were coming fromAccra. This was stated by counsel for the respondents in an open courtas I do not know them. This being the case. Pastor John Akoto ofAccra and Brother Owusu of Accra knew of the pendency of this caseand would be aware of the ruling of 13 April 1984; and should nothave dealt with the church and offices of the church as they liked whenthe plaintiff committee had requested for the keys. It must beemphasised that any conduct which tends to bring the authority andadministration of the law into disrespect or interfere with any pending

[1984-86] 2GLR Interim Committee v Interim Council 187

litigation, like the present case, is contempt of court; see Republic vMoffat: Ex parte Allotey [1971] 2 GLR 391. There is ample evidenceon record that the respondents are labouring under a misconception thatthey are not party to the suit and so they can do as they like despite thecourt order. This is borne out by paragraph (2) of the affidavit filed byboth parties. The order is directed to all the respondents in the suit andanyone taking instructions from them; so that if both respondents tookinstructions from E K Osafo they are committing contempt as agents ofE K Osafo. By paragraphs (6H8) of the plaintiff committee's affidavitwhich was not controverted, they became aware at the police stationthat there was such an order pending. Why did they not hand over thekeys? The defendants know that the plaintiffs are members of thechurch and that they were coming to worship in the church, even if hewas travelling why did he lock up the church to take the keys away?Would this not lend support to the allegation that they locked theplaintiffs out to be drenched by the rain? Again, taking away the keysto the offices of the church is a flagrant disrespect of the court order.Where would the plaintiffs sit if the office is locked when they areseised with responsibility for the church? I would go further to say thateven if Pastor John Akoto and Brother Paul Owusu had no knowledgeof the pendency of the said order, absence of such knowledge could notbe a defence, if that conduct was in fact in contempt of court; lack ofknowledge of the pendency of the said order could only be taken mtoconsideration when passing sentence: see the case of Ohene v Tanko,Court of Appeal, Civil Appeal No 16/67, 8 August 1967; digested m(1968) CC 51 where Akufo-Addo CJ, reading the rulmg of the Court ofAppeal said:

''While it is possible that the appellant might not have known ofthe pendency of the proceedings before the court, such absence ofknowledge is actually no defence if the action of the appellant didin fact achieve the result complained of, namely, if his action wasin fact in contempt of court, although the proved absence ofknowledge would afford a mitigation circumstance when it cameto assessing punishment."

Again in Balogun v Edusei (1958) 3 WALR 547 it was held, interalia, that since the respondents knew that the court had made an orderfor service on them (even in this case the order had already been servedon them) the actual service of the said order was not necessary beforethere could be committal for contempt. From the foregoing it would beof no avail to them that they are not parties to the suit and that theywere not served personally with the writ. For neither lack of knowledgeof the pendency of the suit nor lack of an intention to commit contempt

188 Ghana Law Reports [ 1984-86] 2 GLR

is a defence; see R v Odhams Press Ltd: Ex parte Attorney-General[1957]1QB73.

I have carefully examined the various affidavits filed by theapplicants and those filed by the respondents in the whole proceedings,and I do not find myself able to accept the submissions of learnedcounsel for the respondents. I am of the view that the facts as presentedby the applicants herein were not and are not false.

I shall now pass on to what I consider to be a very unfortunateremark made by counsel for the defendants that the court cannot put theplaintiffs at the helm of affairs of the church. ] consider such a remarkunfortunate. The court is not in any way trying to put the plaintiffs atthe helm of the affairs of the church. The church itself put the plaintiffsat the helm of affairs of the church at their delegates' meeting on 19April 1980 and surrendered their entire power to them. The court is nota member of the church to prefer one committee to the other. What thecourt has decided is upon the facts presented to it. I hope this closes thechapter of wrangling by the respondents in this case.

In conclusion I am satisfied beyond every reasonable doubt (seekangah v Kyereh [1979] GLR 458) that the respondents are guilty ofcontempt of court. Their conduct did not only prevent the court fromdischarging its judicial function but also brought the authority and theadministration of the law into disrespect, and they have been unable toshow cause why they should not be attached for contempt.

I now come to the question of sentence. In Hadkinson v Hadkinson[1952] All ER 567 at 569, CA Romer LJ said

. . anyone who disobeys an order of the court (and I am notnow considering disobedience of orders relating merely to mattersof procedure) is in contempt and may be punished by committalor attachment or otherwise."

The court has jurisdiction to punish for contempt a person, who,though not a party to the action, as in this case, chose to assist others inthe doing of that which he well knew was prohibited by an order of thecourt: see Seaward v Paterson [1897] 1 ChD 545, CA. Such wilfuldisobedience of the court's order by a stranger to the litigationconstitutes criminal contempt, because each was a stranger to theproceedings in which the order of injunction was made. I therefore findeach of the respondents guilty of contempt: see Tetteyga II v SavDor[1973] 2 GLR 277, CA. -

In view, however, of the remorse of the respondents, each of themvirtually going down on his knees to plead for leniency, and also of theplea of the counsel for the respondents for leniency, with every lawyerin court associating himself with counsel for the respondents, even

[1984-86] 2GLR Interim Comniittee v Interim Council 189

though I consider the breach of the order to be serious, I will not sendthe respondents to prison but I will fine each of them 02,000 or twomonths imprisonment with hard labour.

Application allowed.

LKA

IN RE YENDI SKIN AFFAIRS; ABUDULAI v YAKUBU II

COURT OF APPEAL, ACCRA

29 October 1985

EDUSEl. EDWARD WIREDU AND ABBAN JJA

Statutes-^omtruction-Yendi Skin Affairs (Appeal) Law, 1984 (PNDCL 86)~Scope of right of appeal--PNDCL 86 granting right <'faggrieved by findings of Ollennu Committee implemented by NRCD 299-Committeefinding "the purported nomination or selection and enskinment ofMnull and void"—Finding the sum total of a number of sub-findings made onissues of selection and enskinment-Whether M entitled to attack sub-findingswithin meaning and language of PNDCL 86 and NRCD 299-yendi SkinAffairs Decree. 1974 (NRCD 299)—Yendi Skin Affairs (Appeal) Law, 1984(PNDCL 86).

Administrative law-Committee of inquiry—Findings-Sufficiency of evidence-Committee charged to find traditional body responsible for selection ofYa-Naunder Dagbon custom—Claim by respondent that body made up of a group offour—No instance cited in support of claim—Appellant denying membership ofgroup—Documentary evidence disputing composition of group—Whethercommittee justified in finding composition conclusively proved—Whether issueproperly resolved judicially.

Natural justice—Traditional council—Issue affecting president—Determination ofYa-Na presiding over all meetings of Dagomba Traditional Council (DTC)irrespective of agenda—Gbon Lana obliged to preside in absence of Ya-Na—Council empowered to discuss all issues affecting Dagbon and the Nam itself inabsence of statutory limitations—Whether decision making Gbon Lana eligibleto contest position of Ya-Na when presiding in violation ofnatural justice.

Local government—State council—Appointment as native authority—Effect onstatus—Dagomba State Council (DSC) an indigenous institution—DSCcustomary legislative body—Whether DSC created by Ordinance No 2 of 1932—Native Authority (Northern Territories) Ordinance, 1932 (No 2 of1932).