General News of Wednesday, 14 June 2023
Dominic Nitiwul and the Chief of Defence Staff (CDS) of the Ghana Armed Forces, (GAF) Vice Admiral Seth Amoama have escaped sentencing after they were convicted for Contempt by the High Court in Accra.The Minister for Defence,
After being found guilty for Contempt, convicted and a date fixed for sentencing, the Minister and the CDS through the Attorney General Godfred Yeboah Dame filed a motion to have the conviction and the entire proceedings set aside.
This was after the Attorney General had raised jurisdictional concerns and the fact that the Respondents were not personally served with the Contempt Application.
Jonathan Obodai Sai, an Estate Developer filed an application for Contempt against the Minister and the CDS after the High Court had entered judgment in his favour on November 1, 2018.
Despite having judgement in his favour, he contended that, the military was still interfering with the portions of the land that the court judgement covered against the minister, the CDS and the Attorney General.
As a result, he initiated a Contempt application against the Minister and CDS which succeeded with the Respondents (Minister and CDS) convicted for Contempt.
With the matter coming to the attention of the Attorney General when a court had fixed a date for sentencing, an application to have the conviction and the entire contempt proceedings set aside was moved.
Counsel for the Applicant (Respondent) led by Lwayer Charles Amon Kotei, opposed to the application and urged the court to dismiss the application.
The High Court in Accra presided over by Justice Nabeela Naeema Wahab after listening to the parties said when a matter of jurisdiction succeed, the court cannot proceed with its sentencing.
The court said it renders the entire proceedings a nullity before setting aside its conviction and entire contempt proceedings.
EIB Network’s Legal Affairs Correspondent, Murtala Inusah, who was in court reports that a cost of GHc1,000 was awarded against Jonathan Obodai Sai, the Applicant.
In Court on Tuesday, June 13, 2023, while moving the application for the Court to set aside the conviction and the entire Contempt proceeding against the convicted Respondents, the Attorney General (AG) Godfred Yeboah Dame said, the basis of the application are that the Respondents (applicants) became aware of the conviction after “I the Attorney General had indicated to them the fact of the pendency of the instant application, the conviction and the adjournment for sentencing.”
This according to the AG, was because, the proceedings were conducted on behalf of the Respondents by the Legal Department of the Ghana Armed Forces, who assumed responsibility without bringing it down to the personal notice of the persons involved.
Godfred Dame while advancing his argument said a consory examination of the motion for committal for Contempt, will show that there were no proper Respondents named in the application.
“The application clearly was titled the Minister for Defence and Chief of Defence Staff and the application was brought in the official capacity of the Respondents,” Godfred Dame pointed out.
He said, “It is trite learning that application for Contempt is personal and each of the act complained of must have been committed personally by specified persons named in the affidavit.”
No legal effect
It was the case of the AG that, “where no named person had been specified as Respondent to the application, the indication is that, there was no proper person clearly named as a Respondent to the application.”
The AG contended that, “the ultimate result is that the application is a nullity, void and of no legal effect and the court has no power to punish where no person had been named as the Respondent.”
Godfred Dame argued that, Contempt is quasi criminal and being quasi criminal it must be prosecuted in the same manner as a criminal action.
He added that, “even if a public officer had committed an act and is to be committed for contempt, you can’t charge the office and the said public office cannot be named.”
The AG argued further that, the charge is brought against the specific public officer to be charged personally, because the holder of public office can change anytime.
“The implications would be that, a subsequent change in the holder of the Public Office will render any person who subsequently occupies that Public Office liable for the Contempt in this manner,” the AG argued.
CDS now, not CDS then
It was the contention of the Attorney General, that, “at the material time the alleged Contempt of Court was committed, the 2nd Respondent (CDS) was not even Chief of Defence Staff.
The AG said, he was appointed in 2022 after the said alleged contempt act was committed.
While pointing to certain paragraphs in the Respondents affidavits in support, the AG said, the court will note that all the matters constituting Contempt of Court were committed between December 2018 and May 2020.
“All the various act impeding the judgement had taken place when the 2nd Respondent (CDS) was not in office.
*In terms of Contempt, the specific officer whose action is the subject of the complaint of the Contempt have to be personally named as a Respondent to the Contempt application and not his office,” the AG argued.
GAF not a corporate entity
“It matters not that, the act complaint about were allegedly committed by a corporate entity and indeed in this situation the Ghana Armed Forces (GAF) is not even a corporate entity,” he stated.
He said, GAF is “not a legal entity on it own capable of suing and being sued.”
“If one has a complaint against the GAF, the cause of action would be against the Attorney General and not the Ghana Armed Forces because the armed forces are part of government of Ghana,” he explained.
He said, even in the case of a corporate entity where a Contempt is alleged , the directors of the entity must be specifically named as Respondents in the Contempt application and (the said) act committed by each of them specified.
“While the corporate entity itself would be liable for Contempt, it would not be legally competent or sufficient for the office of the managing Director or another office Director to be cited for Contempt.
“The individual directors must be named personally and personal liability shown against each of them,” he argued.
The AG while citing authorities made reference to ‘The Repubilc vs Abu Ramadan and Nimako no.4 against the Electoral Commission and the Attorney General’ where apart from the contemnors, individual owners of Montie 3 were also handed punishment.
To buttress his argument, the AG said, for a Contempt application against corporate bodies to be liable, individual directors have to be named otherwise, no case had been made.
“If a Contempt application is treated the same as criminal proceedings, then it goes without saying that a Contempt application brought against a public officer in his official capacity as a minister cannot hold,” the AG argued.
Mr Godfred Dame further argued that, the Contempt application was deployed as one of the means of enforcing the obedience to the judgement of the High Court
He said, the rules of the court had stated clearly in a situation where a Contempt application is being deployed in enforcing a judgment of the High Court and where such an application has to commence.
“In conditions precedent for invoking Contempt as a means for enforcing obedience and judgement of this court dated November 1, 2018, were never complied with by the applicant (Respondent) herein,” he argued.
He said per Order 43(1) CI47, the court will note that the commitment for Contempt had been specified for immovable properties and the conditions in evoking Contempt is that applicant was complaining about his denial to enter into the property.
To this, he said one of the reliefs in the committal for Contempt is that, the person in possession may be served personally and the person has to show that the person has personal knowledge
While describing the Contempt application as “incompetent,” the AG said it was of no legal effect because the condition precedent was to satisfy Order 43.
He said the application was null, void and of no legal effect and prayed for “the entire conviction and Contempt proceeding be set aside.”
Counsel for the Applicant (Respondent), Charles Amon Kotei, opposed to the application for the court to set aside the Contempt, the conviction and the entire proceedings.
“We opposed the instance application which has been canvases on behalf of the Respondents (Minister and CDS) and that the application ought to have been brought against them personally.
Counsel said, all offices are occupied by personalities and the said personalities hold the office in a period of time.
According to him, if the application for committal for Contempt filed against the Respondents and have been served on them and being it their matter personally, they can engage personal counsel to defence them in court.
He contended that, the affidavit in opposition for Contempt was filed by a competent lawyer at the BAR on behalf of the Respondents.
Counsel said, the depositions in the affidavit in opposition was also sworn to by a competent member of the BAR.
He said, “the learned trial judge ordered that parties to file written submissions in the matter and again a lawyer who has always represented the Respondents file written submissions on their behalf.”
Lawyer Kotei said, it had been deposed to in their affidavit in support of the application that the Respondent were not aware of the application for Contempt and that because aware on May 19, 2023.
“It is our case that a lawyer of good standing at the BAR knowing the consequences of acting without instructions will not proceed to act on behalf of the Respondents when he had no instructions from them,” Counsel argued.
Counsel said, “The application that was filed before this honorable court for committal for Contempt was argued on its merit and the court delivered its decision against the Respondents.
“It is our case that if the Respondents are dissatisfied with the decision of the court, they can always appeal against the said decision and not to bring the instance application,” counsel argued.
“It is also our case that the grounds canvassed will not go to jurisdictions to annul the conviction of Contempt proceedings that took place before this court and when one look at the substance and not the form, the court did not erred in convicting the Respondents.
Counsel subsequently prayed that the instance application is of “no merit and same out to be dismissed.”
The High Court (Land Court 9) presided over by Justice Nabeela Naeema Wahab, after listening to the application filed by the 1st and 2nd Respondents on June 5 and the affidavit in opposition from Lawyers of Jonathan Obodai Said, the court set aside the conviction and the entire Contempt proceedings.
While referring to the Supreme Court decisions, the court said jurisdiction is so fundamental that it’s absence in a court renders the court proceedings a nulity
“The court considers therefore that even though the Contempt proceedings have already been heard and a ruling delivered, the proceedings against the parties not personally named as party deprived the court the jurisdiction to consider the sentence,” the judge held.
“A judgment or order given or made without jurisdiction is void and the court is under a legal obligation to set same aside or an application for the parties affected.
Justice Wahab held that, no judicial discretion arises here,” in situations where jurisdiction is raised.
To this end, the court ruled that the “Contempt proceedings and the conviction of the Respondents (applicants) are therefore set aside.”