Defence Minister

The Minister of Defence, Dominic Nitiwul and the Chief of Defence Staff (CDS), Vice Admiral Seth Amoama, have escaped punishment after the Accra High Court set aside a contempt conviction against them.

The two were convicted for contempt by the court over failure of the Ghana Armed Forces (GAF) to obey a court order not to encroach on a land, but their sentencing was deferred.

However, following an application by the Attorney –General and Minister of Justice, Godfred Yeboah Dame, the contempt conviction against Mr Nitiwul and the CDS  was set aside yesterday (June 13, 2023).

Ruling 

In a ruling, the court, presided over by Justice Nabeela Naeema Wahab, held that the contempt application leading to the conviction was defective and against the rules of court since it did not list the personal names of the Minister of Defence and the CDS but rather their positions.

According to the court, failure to mention the names of the Minister and the CDS on the contempt application meant the court had no jurisdiction to determine the application.

“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 parties deprived the court the jurisdiction to consider the sentence 
The contempt proceedings and the conviction of the respondents applicant are therefore set aside,” the court ruled.

A-G’s submission 

Making a case for the application to set aside the contempt conviction , the A-G argued that contempt was a quasi-criminal offence and must therefore be prosecuted as a criminal offence with the respondents personally named.

The application for the contempt, he said, had the Minister of Defence and the CDS as the respondent instead of their personal names.

“Respectfully where no named person is specified as the respondent to the application, the indication is that there was no proper party named as the respondent

The ultimate result is that the application is a nullity, void and of no effect and the court has no power to punish where no person has been named as the respondent,’ he said.

According to Mr Dame, the danger of not bringing a contempt application against a specific public officer was that a subsequent occupiers of that office could be made to suffer the wrongs of the previous office holder.

For instance, he said the alleged contemptuous act was said to have been committed during a period when current CDS was not in office.

“The charge is brought against the specific public officer to be charged personally because the holder of public office can change anytime,” the A-G added.

Background 

The case leading to the contempt involved one Jonathan Obodai Sai, an estate developer, who won a judgment  in 2018 over an 11.822 acres of land located at La in Accra.

In a suit, Mr Sai contended that he validly bought the land from the East Dadekotopon Development Trust (EDDT) but the Ghana Armed Forces (GAF) had taken over the land.

He therefore sued the Minister of Defence, the CDS and the A-G for declaration of title, recovery of possession and an order of perpetual injunction to restrain the GAF from going on the land.

The defendants refuted the plaintiff’s claim of ownership and argued that a portion of the land belonged to the military which it intends to use to create a buffer zone protecting military installations from the public.

Delivering the judgment, the court, presided over by Justice Barbara Tetteh-Charway, held that the evidence on record showed that the land belonged to Mr Sai.

The court therefore declared title of the land in favour of Mr Sai and perpetually restrained the GAF from interfering with the plaintiff’s enjoyment of the land.

According to the court, the only means through which the GAF could have access to the land was for the state to compulsorily acquire the land and pay the adequate compensation to Mr Sai as stipulated by Article 20 of the 1992 Constitution.

‘I therefore hold that until the provisions of Article 20 of the 1992 Constitution are complied with, the Ghana Armed Forces does not have an exclusive right over the area of land been earmarked for the creation of a buffer zone,” the court ordered.

A year after the judgment, Mr Sai filed a contempt application against the Minister of Defence and the CDS with a case that despite the judgment by the court, the GAF were still in occupation of the land and had prevented him from going on the land.