S v Kyeremeh (J4/5/2026) [2026] GHASC 78 (3 June 2026)

1 IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – A.D.2026 CORAM: AMADU JSC (PRESIDING) ADJEI-FRIMPONG JSC DZAMEFE JSC BARTELS-KODWO JSC AMALEBOBA JSC CIVIL APPEAL NO: J4/5/2026 3RD JUNE, 2026 IN THE MATTER OF AN APLICATION FOR CONTEMPT IN THE MATTER OF THE REPUBLIC VRS KWADWO KYEREMEH …….……. RESPONDENT/APPELLANT/RESPONDENT KATO 2 EX PARTE: 1. NANA AFIA SIRAA ABABIO III 2. OPANIN KWAKU PEPRA 3. NANA KUSI ASOMAH APPLICANTS/ 4. NANA KWAKU NYAMEAMA RESPONDENTS/ 5. NANA GYENSI AMEYAW DARTEH APPELLANTS 6. NANA AGYEI AMANKONA AKOANAH 7. NANA OPOKU SIAW BREMPONG 8. NANA KWABENA ASANTE JUDGMENT ADJEI-FRIMPONG JSC: This appeal has emanated from a chieftaincy dispute over the installation of the Respondent/Appellant/Respondent (hereinafter “Respondent”) as chief of Kato near Berekum in the Bono Region. The Applicants/Respondents/Appellants (hereinafter Applicants) filed a petition against him and seven (7) others before the Berekum Traditional Council (BTC) to challenge his installation. According to the facts alleged in the case, even though the Respondent and others were served with the petition , t hey failed to attend the hearing. The BTC then proceeded to conduct the trial without them. In the end , all the reliefs sought in the applicants’ petition were granted. The BTC ordered that the decision and orders made be served on the losing parties by substituted service. This was allegedly done. Key among the orders was that the Respondent shall not hold himself and the others shall not hold him out as chief of Kato. 3 In defiance of this order, so it was claimed, the Respondent allowed his name to be published on notices of funerals as Katohene. He also attended those funerals as such. His supporters were also alleged to have assaulted a bailiff of the BTC who tried to serve him with an earlier order of interlocutory injunction. The applicants therefore commenced the instant contempt proceedings against the Respondents in the High Court , Sunyani. The Court was prayed to commit them for contempt for defying the orders of the BTC. The Respondents needless to say, resisted the applica tion. The trial Court however found sufficient evidence to commit the Respondent herein for contempt sentencing him to 10 days imprisonment. His appeal to the Court of Appeal was however successful. Consequently, his conviction and sentence were set aside. Disgruntled by the turn of events, t he applicants who would not wish to rest the matter have further appealed in this Court. Their grounds are as follows: a. The Court of Appeal erred in setting aside the judgment of the trial court dated the 19th day of October, 2021 on the ground that the respondents/appellants/respondent was not served with the petition at the judicial committee of the Berekum Traditional Council. b. The Court of Appeal erred in setting aside the judgment of the trial High Court when the judgment of the Judicial Committee of the Berekum Traditional Council restraining the respondent/appellant/respondent from holding himself as the chief of Kato which restraining order had been served on the respondent/appellant/respondent but had not been set aside. c. The judgment was against the weight of evidence. Decision of the Court of Appeal 4 The Learned Justices of the Court below resolved the appeal on the issue of non -service of notice of hearing of the petition on the respondent before the BTC proceeded to determine the petition . In the ir view, the respondent’s denial of service on him meant a denial of hearing. And since the petition was the foundation of the contempt application, the contempt could only succeed upon proof that the respondent was duly served and afforded a hearing of the petition. Reference was made to paragraph 7 of the respondent’s affidavit in opposition to the contempt application where he deposed: “7. That paragraphs 5, 6 and 7 of the affidavit in support are denied and in answer thereto , I say that hearing notice was not served on me to participate in the determination of the petition, therefore my right to be heard had been breached.” Their Lordships found that the effect of the deposition was that the respondents were not informed about the date the petition would be heard and determined, and so had no opportunity to present their side of the story to attend the hearing. Their Lordships had also observed that the trial Judge himself had noticed some uncertainties about the very nature of the process that was purportedly served on the respondent. In spite of this however, and w ithout any evidence of clarification , the trial judge had found the process to be a petition. Th at, conclusion their Lordships found unjustifiable. For the principle is that as a contempt matter, the standard of proof was proof beyond doubt. And that given the uncertainties about the process alleged to have been served , it was wrong to conclude that the respondent was duly served with the originating petition. In the words of the learned Justices: “This was an application for contempt where proof required is prove [sic] beyond reasonable doubt as held in cases like Republic Vrs Bekoe [1982-83]1 GLR 92; Akele Vrs Cofie [1979] GLR 84; Kangah Vrs Kyere & Ors [1979] GLR 458, and Republic Vrs Osei Bonsu II Mamponhene, & Ors; ex parte Amadie & Bour [2007 -2008] SCGLR 560 @ 579. What was the basi s of the 5 trial Court’s preference of the responden t’s affidavit evidence as against that of the appellant, when he admitted that the appellant fiercely denied service of the processes on h im? By admitting that the depositions of service were fiercely denied, the Court by implication was saying the respondent’s allegation of service was not sufficiently proved, and to hold that in the face of the fierce denials, it was safe to conclude that the document served per Exhibit C was the petition can best be a conjecture or mere supposition by the trial Court. With fierce denials admitted by the trial judge about the service of the petition and other processes, including those leading to the hearing of the petition in the absence of the appellant, the tri al judge could not vouch for the truthfulness or otherwise of the conflicting affidavit evidence, without further evidence, or the parties been [sic] subjected to cross-examination.” [page 134-135 ROA] On this analysis, their Lordships held: “By the appellant’s complaint, he was attacking the very root of the application for contempt , which is the decision of the Judicial Committee of the Berekum Traditional Council dated 24th July 2019 and the orders made therein. If the appellant was not in fact served, and we think this was never proved as required, then the determination of the petition without notice to him was a breach of the rules of natural justice and his right to be heard and this rendered all that transpired before the Judicial Committee on 24th July 2019, i.e., its decision and, its orders, and all other subsequent processes that were served, a nullity, and upon which no application for contempt could be mounted.” Applicant’s argument in this appeal The first ground alleges error on the part of the Court of appeal in setting aside the decision of the High Court for the sole reason that the respondents were not served with the petition filed at the BTC. Counsel argues that there was evidence from Exhibit C that on 15 th March 2019 at 1.55pm, the bailiff attached to the B/A House of Chiefs served the petition on the respondent in front of his house. With this evidence, the decision of the Court of appeal to 6 set aside the judgment of the High Court for the only reason that the petition was not served on the respondent was not borne by the record and was therefore erroneous. This argument can be dis posed of more summarily. Counsel clearly misapprehended the reasoning of the Court of Appeal. It was not their Lordships ’ decision that the petition was no served on respondent a nd therefore the contempt founded on it had no basis. The real basis of their Lordships conclusion was failure to serve the respondent with notice of hearing of the petition before the determination was made. The record from Exhibit C shows that there was service of ‘a process’ on the respondent (although the particular process was not identified). The service was effected on 15 th March, 2019. It appears the petition was determined on 2 7th July 2019. What the learned Justices found was that there was no record of service of notice of hearing on the respondent as deposed to in their affidavit. Indeed, part of their judgment read: “From the analysis given above, the trial Court failed to thoroughly consider the affidavit evidence before it. It also failed to apply the law on service properly, otherwise, it would not have come to the conclusion that the Appellant was liable for contempt in the face of the uncontroverted evidence that the Appellant was not served any notice about the date the petition was to be heard . It also overlooked the requirements on the respondent to prove service of the processes when it held, in the face of the fierce denials of service, that it was safe to conclude that what was served was the petition. Apart from the onus of respondents to prove strictly that the appellant was served with all necessary processes leading to the determination of the petition, the evidence, even though not proved as required, show that only the petition might have been served.” The above was what their Lordships thought amounted to a denial of the respondent’s constitutional right to be heard which breach nullified the decision of the BTC and consequently the contempt proceedings mounted upon it. Of course, their Lordships also 7 faulted the learned trial Judge for concluding that the unidentified process served per Exhibit C was a petition without evidence to clarify it. That however was not the main reason for setting aside the judgment of the High Court. For this reason, we dismiss the first ground of appeal. The second ground of appeal made an impression of a stronger argument upon us. It was argued that the judgment of the Judicial Committee of the B TC restraining the respondent from holding himself out as the chief of Kato had been served on the respondent . By the service, it did not lie with the respondent to choose not to obey even if the order was wrongly obtained. The learned Justices therefore committed an error in setting aside the decision of the High Court committing him of contempt. Counsel’s argument was this: “It is trite law that the validity of an order breached is immaterial and ought to be obeyed until set aside, and any conviction of contempt based on such an impugned order would stand when not set aside before disobedience. See the cases of Republic v High Court, Accra Ex Patre Afoda [2001-2002] SCGLR 768 at 773; Republic v Condua; Ex parte Aaba [2013-2014)2 SCGLR 1032 at 1060; In Re Gbese Stool affairs ; Republic vrs Adama Thompson and Others Ex parte Ahinakwa II [2013-2015)2 GLR 685 at 728. The Respondent not having made any effort to set aside the judgment of the Judicial Committee he was impugning as being void, on the allegation of non-service of the petition on him, his breach of the judgment and conviction based on same would still stand. The Court of Appeal was bound to follow the decisions of the Supreme Court cited above but failed to follow same and renders its decision per incuriam and therefore void.” We note that the applicant rested his arguments on the first two grounds of appeal. The omnibus ground of appeal which was the third ground was not argued. The applicants seem contented that the first two grounds were capable of disposing of the appeal. For not arguing the third ground, it is deemed abandoned and accordingly struck out. This, however, does not detract from this Court’s power to thoroughly examine the entirely of the record before 8 it, to determine whether the decision of the court below was supportable. This appeal, like any other, is by way of rehearing. Now, the REPUBLIC VRS CONDUA; EX PARTE AABA (supra) was a case where a High Court had made an order of injunction in a chieftaincy matter which it had not jur isdiction to make. This Court upheld the principle that a party who believed that an order of a court was void for want of jurisdiction was to take steps to have the order set aside rather than flout it. Litigants and their Counsel could not unilaterally decide which orders were lawful or deserved obedience. To flout even a void order as therein obtained amounted to contempt of Court. The position was reiterated in IN RE GBESE STOOL AFFAIRS; REPUBLIC VRS ADAMAH THOMPSON & ORS; EX PARTE AHINAKWA II [20 13-2015]2 SCGLR 685 in holding (4) of the headnote thus: “(4) Although on the authorities, where a court was held to have acted without jurisdiction in a matter, any orders made by a court on that matter would be vacated, as long as that decision had not been set aside, a party affected by the order had no reason to disobey it and a conviction for contempt for disobeying the order would stand. Indeed, no person had the right to disobey an order made by a court of competent jurisdiction . . .” The two decisions followed the position espoused by this Court in the earlier case of REPUBLIC VRS HIGH COURT , ACCRA; EX PARTE AFODA [2001-2002] SCGLR 768 that, the fact that an order of or a process from a court of competent jurisdiction is perceived and considered void or erroneous should not give a party who is affected by it the slightest encouragement to disobey. The learned Justices of the Court below in this case took the position that the order of BT C was a nullity as the Respondent was not served with notice to attend the hearing to prosecute 9 his case. Thus, the contempt proceedings brought upon the void proceedings could not stand. Indeed, they had made reference to the oft-cited principle of voidness by their statement at page 12 of the judgment [page 140, ROA] that “you cannot put something on nothing and expect it to stand”. But then, was it not the same principle in the popular case of MCFOY VRS UAC [1962] AC 152 which this Court took exception to, to state the principle in EX AFODA? This was what KPEGAH JSC opined at 771-772 of the report: “Those who are prone to giving affirmative answer to the legal questions whether the invalidity of an order, or process can be a justification for its disobedience or not, often base their position on certain dicta in MacFoy v UAC [1962] AC 152, PC and Mosi v Bagyina [1963]1 GLR 337, SC . . . Although Lord Denning in MacFoy v UAC [1962] AC 152, PC could be taken to have been categorical on stating that when an order or a process is void “there is no need for an order of the Court to set aside”, he nevertheless had an inhibition that in certain circumstances, it would be convenient to have the Court declare it to be so. Unfortunately, he did not indicate those circumstances; neither did he indicate those situations when it would be inconvenient or hazardous to a party not to have it set aside . We do not see anything in the dictum of Lord Denning which suggests to, or positively encourages a party to disobey an order considered or perceived by him to be void, or erroneous and justify the said disobedience on that ground; nor do we find anything to suggest that an irregular or void process can be resisted on that ground or impeached through disobedience.” The learned justices of the court below therefore misapplied the law when they justified the conduct of the applicant on the basis that the decision of the BTC was a nullity. The question whether the decision of the BTC was a nullity , for lack of notice of hearing , which they seemed to have answered was the wrong one. The correct question was whether there was a subsisting order which applicant had willfully disobeyed. This was the question the learned trial Judge answered and whose correctness we shall in a moment assess and not the nullity question. The nullity question mattered less for purposes of liability in contempt. Consequently, to the extent that the learned Justices of the Court below set aside the decision 10 of the trial Court o n the ground of nullity of the order of the BTC , they committed an error for which reason the second ground of appeal must succeed. Reaching the above conclusion, we must express our discomfort with the position that a High Court faced with an allegation of breach of a right to fair hearing must nevertheless lean towards a more public policy oriented rule requiring a party to comply with an order of a court even if it is believed to be void. Our discomfort stems from the fact that the High Court, in terms of article 33 of the Constitution is vested with the power to enforce the fundamental human rights of individuals including the right to be heard. Therefore, ordinarily, it must be within the power of the High Court to free a contemnor if his reason for the disobedience was that he was not heard in the proceedings leading to the contempt application. We are however quick to remind ourselves that if litigants were allowed to disobey orders of the Court on their subjective thinking of breach of any of their rights as justification for the disobedience, the administration of justice will crash and society will be in chaos. There is therefore sound reason to maintain the policy rule of obey now, complain later , even if obedience is on pain of breach of a right. Societal piece and orderliness thrive on this approach. Now did the learned trial Judge answer the correct question correctly? Was there sufficient evidence to prove the guilt of the applicant of the charge of contempt up to the required standard? It is settled a principle that contempt is quasi -criminal and the allegation must attain the standard of proof beyond reasonable doubt. This means the accuser must adduce sufficient evidence that establishes the allegation beyond reasonable doubt. For this purpose, it was required to prove inter alia that the applicant was aware of the order said to have been disobeyed. The applicant in his affidavit in opposition denied being served with the judgment of the BTC. He deposed as follows: 11 “12. Paragraph 11 of the affidavit in support is denied and in answer t hereto I say that no process has been served on me including the judgment and the order of the Judicial Committee in accordance with law and best practice. 13. Save that there i s a judgment purported to have been delivered by the Judicial Committee the rest of paragraph 12 of the affidavit in support of the is denied. In answer thereto, I say that the orders and judgment of the Judicial Committee of the Traditional Council is enforced by the District Court and no process has been served on me for the enforcement of any order or judgment. 14. Save that the judgment purported to have been delivered by the Judicial Committee, the rest of paragraph 13 of the affidavit in support is denied. And I say that the judgment has not been personally served on me and I am not aware of the orders contained in the judgment.” The learned trial Judge thought there was sufficient evidence that the applicant had notice of the order not to carry himself out as the chief of Kato. He based his finding mainly on the search result from the registry of the BTS (Exhibit G) and a charge sheet filed in the registry of the Berekum Circuit Court ( Exhibit H) which had attached to it facts alleged by the investigator containing some information about the order of the BTC. Were these sufficient? First, the search result indicates that the judgment of the BTC was posted on the notice boards of the Circuit and District Courts Berekum, the notice board and the walls of the Kato place. But then a search result is no evidence of proof of service or proof of posting. The established practice is that proof of service is by an affidavit. An affidavit of service is the process which the law recognizes as prima facie evidence of service. It is a document duly sworn, containing statement of facts which the deponent swears to be true to the best of his knowledge. In it, the bailiff or process server discloses information about the particular process served and the mode and date of service. It constitutes a prima facie evidence of service which the court can rely on unless properly rebutted. See the Nigerian case of NWOKO VRS AZEKWO [2012]12 N.W.L.R. (Pt. 1313) 151 at 179. 12 In line with this, the provision in Order 7 rule 9(1) of the High Court (Civil Procedure) Rules, 2004 (C.I 47) has strict requirements for affidavit of service as follows: “9. (1) Subject to subrule (2), an affidavit of service of a document must state by and whom the document was served, the day of the week and the date and hour on which it was served, where it was served and how.” Subrule (3) states thus: “An affidavit of service signed by the person who effects service shall, on production without proof of signature, be prima facie evidence of service. Based on the foregoing, we do not find that a search result amounts to evidence to prove service or posting. We do not also find Exhibit H which is made up of the charge sheet and the facts attached , proof of the applicant knowledge of the decision of the BTC. Exhibit H is not a record of proceedings. It represents no more than the fact that on 28th November 2019, those charges were filed against the applicant a nd others. Not being a record of proceedings, it does not show that the applicant wa s in Court on the said date, that the charges and the facts were read to his hearing and hence he knew exactly what he was to do or refrain from doing. With these questions unresolved, we are not satisfied that there was sufficient evidence to prove the charge beyond reasonable doubt. It is on this ground that we dismiss the appeal. (SGD.) R. ADJEI-FRIMPONG (JUSTICE OF THE SUPREME COURT) 13 (SGD.) I. O. TANKO AMADU (JUSTICE OF THE SUPREME COURT) (SGD.) S. DZAMEFE (JUSTICE OF THE SUPREME COURT) (SGD.) J. BARTELS-KODWO (JUSTICE OF THE SUPREME COURT) (SGD.) H. AMALEBOBA (JUSTICE OF THE SUPREME COURT) COUNSEL CHARLES OWUSU ANSAH ESQ. FOR THE RESPONDENT/APPELLANT/ RESPONDENT WITH PETER QUAN ESQ. 14 KWAME FOSU-GYEABOUR ESQ. FOR THE APPLICANTS/RESPONDENTS/ APPLELLANTS