Harrassing the living through the dead: Are the courts complicit?
As for the ubiquitous ‘one-week’ celebrations, the least said about it, the better. Traditional authorities in Ghana will not stop it because they amass wealth from it when their own relatives die. The Christian religious authorities will not pray for it to stop because it is their cash cow. Nowadays, ‘one week’ (which is traditionally a matter of custom) is held with a church service. Ethnic groups who once-upon-a-time were content with simple one-step burial/funeral rites have joined the ‘one-week’ celebration craze.

A: Introduction

On 6th May, 2011, at around some few minutes to 4 p.m, in the afternoon, I had the following conversation with a cousin:

Cousin: Maame, we have brought Mommy’s body home. The undertakers are dressing her up and making her ready for viewing but some bailiff from High Court has come to serve Daddy with an injunction order.

Me: What? When?

Cousin: He came and gave some documents to Daddy and left.

Me: Okay. No, problem. Please, calm down. Do you have the documents with you?

Cousin: Yes.

Me: Good. Look at the top right corner of each of them. Mention the date written in red ink inside the blue stamp for me.

Cousin: The one that looks like a form with ‘Writ of Summons’ written on it has today’s date on it, that is, 6th May, 2011. The second one, ‘Statement of Claim,’ has the same date.  The one that has the title ‘Order of Interim Injunction’ also has the same date.

Me: All right, thanks. Now, read the full contents of the document titled ‘Order of Interim Injunction’ to me.

Cousin: Okay.

--- Cousin reads the full document from beginning to the end to me ----

Me: So, the Court did not state to whom Daddy should hand over the body?

Cousin: That’s correct.

Me: The Court also did not indicate where the body should be taken?

Cousin: Yes.

Me: Do you know Nana Okyeame Adu Kofi, the person described as plaintiff?

Cousin: No.

Me: Very well. Please, don’t mention these documents to another soul. Make sure everything goes on as planned. Put all the documents in an envelope, seal it, and send it to my Secretary. I’ll call her and let her know you are coming. I will take care of it on Monday. I just picked the kids from school so I’ll take them home. When they settle down, I’ll come over to the house. Just keep calm and go about the programme as planned.

Cousin: Thanks so much, Maame. I feel relieved now. Daddy and I were so scared. But why didn’t the Court inform Daddy about the case before issuing an injunction against him? I don’t understand it.

Me: I know many questions would be going through your mind now but don’t worry, I will see you soon and explain some of the processes to you. Just remain calm and focused on the burial and funeral activities. I’ll handle these legal stuff on Monday.

Cousin: Sure. See you soon.

 

The story, excerpts of which I have recounted above, is no figment of my imagination. It is a real case that was heard before the High Court, Tema.[1] The deceased, who had died several weeks earlier, hailed from a certain town in Bono Region. She had married and lived with her husband in Kumasi and Accra for several years. Her only child, with whom I had the chat in the introductory section, had never visited her mother’s hometown. When the deceased passed on, a delegation was sent to go and inform the family in Bono Region. Some of the deceased’s siblings and relatives came to Accra to join the husband in organizing the burial and funeral activities.

 

In spite of the family’s involvement in the funeral preparations, a certain individual, styling himself as ‘head of family’ of the deceased, succeeded in getting an injunction order against the burial of the deceased. The writ was filed, motion was also filed, moved, granted, issued, certified and served all in one day – the day the body was taken home from the morgue for burial.

 

This article analyses the creeping phenomenon whereby persons wait till the very last minute when preparations are far advanced for the burial/funeral of deceased persons before they erupt with injunction orders seeking to scuttle the holding of the burial/funeral ceremonies. The article revisits the rules that guide the courts in granting such interim injunctions. It also takes a look at some recent cases where ex parte injunction orders have been granted by courts to stall burial/funeral activities. In the final analysis, the question this article poses is: whether the courts are complicit in the incessant issuance of interim injunction orders against burials and funerals.

 

B: The phenomenon of last minute ex parte injunction orders against burials and funerals

In many African traditions and customs, we revere the dead. We may not be concerned about how an individual lived their lives. But the moment they die, they are accorded a grandiose status that only death itself can confer. It is only after death that we get to see and know the ‘true’ family of the dead person that owns the carcass.

 

As of now, I doubt if there is any individual in this country who does not know that we love the dead. I dare say, more than the living. Anyone with a shred of doubt should just look around their neighbourhood and see if they will not come across countless posters with ‘Call to Glory,’ ‘Gone too soon,’ and the oxymoronic ‘Celebration of Life’ of the dead. The posters may be on postage stamp-sized paper or canvass material or - depending on the alleged wealth of the deceased or their relatives – on commercial size advertisement billboards that can only match President Cheddar’s masked billboards that have courted Presidential reaction.

 

A visit to my own beloved Asante-Mampong puts this love-for-the-dead agenda beyond imagination. From Hospital Junction to St. Monica’s Junction – the main road that ushers one into the town - the only obvious attraction is a parade of billboards of dead persons. Just last year or so, the biggest ever dead person’s billboard I have ever seen appeared at the tail end of that ‘parade of the dead.’ Due to its sheer size, it towers over all the others. One can see the neatly-cropped head of the dearly departed 100-year old soul from a mile away.  Mampong Municipality is known as a leading producer of vegetables, and carrots in particular, in Ghana. It has the best type of soil for growing almost every plant. It has top schools, including a university. Yet, we do not showcase these to the world. We rather advertise the dead to the living.

 

As for the ubiquitous ‘one-week’ celebrations, the least said about it, the better. Traditional authorities in Ghana will not stop it because they amass wealth from it when their own relatives die. The Christian religious authorities will not pray for it to stop because it is their cash cow. Nowadays, ‘one week’ (which is traditionally a matter of custom) is held with a church service. Ethnic groups who once-upon-a-time were content with simple one-step burial/funeral rites have joined the ‘one-week’ celebration craze.  

 

Now, in view of the importance attached to all things to do with the dead, burial/funeral rites are organized with the requisite pomp and ceremony. Detailed preparations are made over the course of several weeks, if not months. But in some instances, in just a day or two to the funeral (or, as in the case narrated in the introductory section, on the same day fixed for the body to be brought home), someone will obtain an ex parte injunction order from a court to stop the burial/funeral activities.

 

The unfortunate part is that, the orders are made ex parte, meaning that the people who are supposed to be stopped from going on with the burial/funeral activities are not even informed about it. Because of that, they are not given any opportunity to appear in court and put their side of the case across to the judge. This emerging trend has caused much anguish to many families. In some instances, those who apply for the injunction orders have no real part to play in the burial/funeral activities. They apply – and are granted such orders – only for nuisance purpose, among other obnoxious objectives. Due to such orders, some corpses have been languishing in morgues for years, leading to waste of money and other emotional costs.

 

C: Recent cases where ex parte injunctions have been issued against burial/funerals rites

The subject of interim injunction orders against burial/funeral activities have been in the news in recent times. It will be recalled that a few days to the burial and final funeral rites of one Rev. Anthony Kwadwo Boakye,[2] his widow, who had apparently been side-lined in the preparations and prevented from performing the customary widowhood rites, obtained an interim injunction order from the High Court to stop the burial and funeral activities.[3] The court granted the order in spite of the fact that the preparations had been going on for several months but the widow only applied for the order a few days to the D-day. Needless to add, the organizers went ahead with the burial/funeral activities in total disregard of the court order.

 

It will also be recalled that the Ga Manye, Naa Dedei Omaedru III, died in December, 2022. On 25th October, 2023, after preparations had been made to start the burial activities, seven members of her family procured an ex parte injunction order from the High Court to stop the burial activities for 10 days. The very next day, the same High Court, made a 360-degree turn-about and set aside the order. These were the reasons the judge reportedly gave:

“I am of the view that the Order of Interim Injunction granted on 25th October, 2023 was made in error. The Applicants failed to give the Court the true state of affairs… In fairness to the parties, therefore, the order of Interim Injunction granted on 25th October 2023 is hereby set aside. Any party desirous of proceeding may come on notice to the other party for a proper evaluation of the evidence from both sides.”[4]

 

Talk about comedy of legal errors! In fact, the High Court had a change of mind only after the defendants had filed an application challenging the basis on which the court granted the application without their notice in the first instance. So, the question on most fertile minds was why the court was in such haste to injunct the burial activities just a few days to the time, and without notice to the defendants.

 

D: The principles of law that guide the grant of injunction orders

What is an injunction order: An injunction is an equitable remedy or order to restrain a person from doing something or to compel someone to do something. Like most other equitable remedies, injunction is granted at the discretion of the court. Injunction orders can be used in several civil cases that come before the courts, ranging from family law cases (such as divorce and custody), land cases and corporate law to commercial litigation.[5]

 

Injunction orders must generally be obtained on notice: A person who is made a party in a case in court must be given the opportunity to respond to what the other party says before the court makes an order.[6] This right of a party to be heard is in accord with the principle of natural justice.[7] So, as a general rule, a party in a court case must be informed about what the other party says so as to afford her the opportunity to defend himself.

 

Circumstances where a court may grant an ex parte injunction: An injunction order can be obtained ex parte, that is, without informing the person against whom the order is being sought under certain few and special cases. Since the order is given without notice, courts are always reminded to be very cautious when granting such applications. One person can go to court and get an ex parte injunction order based on frivolous or false information, to the detriment of the other person who was not notified. So, even where a party files an ex parte application, the judge can order her to serve a copy on the other party before the application will be heard. This will enable the judge to hear from both sides before making a decision on the application one way or the other.

 

E: Are the courts to blame?

In the circumstances of the case alluded to in the introduction, as well as the aftermath of the Rev. Boakye and Ga Manye cases, are the courts to blame for the embarrassing outcome in situations where their injunction orders are treated with disdain? Unfortunately, the answer appears to be in the affirmative. That is so because some courts appear to adopt a knee-jerk approach when confronted with such applications regarding burials and funerals. The courts sometimes fail to apply the legal principles that guide the grant of ex parte injunction orders, such as that the plaintiff has an arguable case on the merits; that giving notice will jeopardize the status quo; that there is real risk of a judgment obtained against the defendant being made useless or nugatory; and that the plaintiff/applicant will give an undertaking to indemnify the defendants in damages.

 

The courts must be slow in granting such injunction orders in ex parte fashion where the applicant knew of the circumstances of the application but waited till the very last minute to scuttle the planned burial activities. Again, if the effect of an ex parte injunction is to dispose of the case after the order is granted, thereby leaving no live issue to be determined substantively by the court, the court should not grant such an order. It is advisable for courts to adjourn such ambush applications and direct the applicants to serve the respondents with copies of the application so they can respond appropriately to the depositions contained in the application.

 

F: The Berekum banter

No discussion of this subject will be complete without touching on the recent Berekum Paramount chief’s burial, the last-minute injunction and matters arising. It bears recalling the rather novel development during the burial rites (“dͻte yie”) of the late Paramount chief of Berekum, Nana Dr. Amankona Diawuo. Unlike the cases discussed earlier on, this time, the ex parte injunction order was not directed against the burial of the dead. It was rather issued to directly prevent a Paramount chief, Dormaahene, Nana Oseadeeyo Agyemang Badu II,[8] from attending the burial rites of the Paramount chief from the same region. As it subsequently emerged, the injunction order was procured to pave way for another Paramount chief, Asantehene, Otumfuo Osei Tutu II[9] from another region to attend the late Paramount chief’s funeral in Berekum.

 

Snippets that came out in the aftermath indicated that, the Ministers of Chieftaincy & Religious Affairs and National Security had failed to coax Nana Dormaahene to change his mind on when to attend the burial ceremony. Thus, when the coaxing and brow-beating failed, the courts had to be summoned in aid to harass the living under the pretext of honouring the dead. Needless to say, the courts did not disappoint on that occasion.

 

As it is characteristic of ex parte injunction orders, the order was secured the day before the Paramount chiefs were to attend the funeral. It was served on the injunctee just when he was ready to attend the funeral with his retinue. He had no opportunity to respond to the application that elicited the injunction order. The court did not see anything wrong with the fact that the application was made obscenely too late in the day. As it is to be expected, there is no substantive case to be heard after the injunction. So, are the courts to blame? You answer is as good as mine.

 

F: Conclusion

By the time the dust that is kicked up by belatedly procured ex parte orders of injunction settles, it emerges that the real beneficiaries of those orders are not the dead. It is rather the living who use the dead as a springboard to needlessly torment and traumatize other living beings. And in most cases, it is for no legitimate reason other than their nuisance value, to puff up sagging egos or to expose how malleable our judicial institutions can be when we need them most to be the buffer zone between bullies and abusers and the rest of society.

 

In the case recounted in the introduction, the burial and funeral activities went on as scheduled, in spite of the ex parte injunction order. In fact, the order did not even fix any time frame within which it will operate. An application was filed to set aside the writ and the injunction order. We were told the application had been fixed for hearing before a ‘motions court.’ We went there to make the necessary enquiries. After several minutes of back and forth, the clerk told us the docket was still before the judge who made the order. We packed our files and rushed to that court only to be told that the case had been called and struck out for want of prosecution because we were absent. We were not the least surprised.

 

We filed an application for an order to relist the earlier motion that had been struck out. On the return date, as soon as we arrived in court (this time, no one dared pull any shenanigans), the plaintiff’s lawyer[10] approached me. After exchanging greetings, he told me that his client had decided to discontinue the case. I informed him I had no objection to his client’s wishes, save that I will press the court for heavy costs against his client. True to fact, when the case was called, the plaintiff’s lawyer sought leave orally to discontinue the case. I did not oppose it but asked for GH₵2,000 costs. Keeping her nose right in the record book throughout the proceedings, the judge granted the order for discontinuance and awarded costs of GH₵500 against the plaintiff. We never bothered to track the plaintiff down in Bono Region to execute the paltry costs.

 




Footnotes


[1] Nana Okyeame Adu Kofi v Aduse-Opoku Abunyewa Suit No. E12/110/2011 ruling dated 6th May, 2011, HC (coram: Avril Anin Yeboah, J (as she then was))

[2] Founder of Resurrection Power New Generation Church

[5] Francisca Serwaa Boateng, THE HANDBOOK IN CIVIL PROCEDURE & PRACTICE IN GHANA, 1st Ed (2023) p. 389

[6] Pobee, Tufuhene Elect of Apam v Yoyoo [2013-2014] SCGLR 208; Republic v High Court (Fast Track Division) Accra; ex parte State Housing Co. Ltd. (No 2) (Koranten-Amoako Interested Party) [2009] SCGLR 185; Republic v High Court Accra; ex parte Osafo [2011] 2 SCGLR 966; Republic v High Court, Accra; ex parte Salloum (Senyo Coker Interested Party) [2011] I SCGLR 574

[7] Natural justice, or, as it was called by Byles J. in Cooper v Wandsworth Board of Works [1863] 14 C.B.N.S. 180 at 194, ‘the justice of the common law’

[8] President of the Bono Regional House of Chiefs

[9] President of Ashanti Regional House of Chiefs and President of Asanteman Council

[10] My late learned friend, the affable Charles Imbeah, Esq.

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