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Chieftaincy - Judicial
Committee - National House Of
Chiefs -
Destoolment -
Procedure
- Effect of signed
by document of withdrawal from
case not accompanied by any
motion - Whether or not case
will still go on if the first
plaintiff is struck off the
list - Whether or not the court
has jurisdiction to strike out
the case or his name off the
case without leave of court.
HEADNOTES
The facts in this case are
fairly simple and uncontroverted.
The appellant in this case, Nana
Boakye Ansah, is the chief of
Abedwim, while all the
respondents are sub chiefs of
the said stool. The respondents
brought some destoolment charges
against the appellant before the
JCATC. According to the
appellant he prayed the JCATC
for an earlier petition he had
filed to be heard first, since
the outcome of that would have a
significant impact on the
petition against him. This
prayer did not find favour with
the committee which went ahead
and heard the matter and a
decision published which went
against him According to him he
made several attempts to procure
a copy of the decision of the
committee to enable him to
appeal but he only received it
after the time for appeal had
lapsed. His attempt to file an
appeal out of time also met the
same fate with the reason that
the registrar was always not on
duty and that there was nobody
to receive his documents. When
time to appeal had lapsed the
appellant then filed an
application before the Judicial
Committee of the Ashanti
Regional House of Chiefs (JCARHC)
for extension of time within
which to appeal the decision of
the JCATC. His main reason for
his application was that the
registrar of the Traditional
Council was sick and other
personnel on duty had refused to
accept his notice of appeal and
file same.In an affidavit in
opposition sworn to by the
registrar E. A. Boadu, he
confirmed that he was posted to
the Council on 27th November
1999 at the time when the
previous registrar was sick. But
he denied all the averments of
the appellant regarding the
efforts he had made to file the
documents
HELD
A registrar has
specific functions assigned to
him to perform. If he is sick or
absent and a clerk is assigned
to act as the registrar he
becomes the “proper officer’
because for that moment he is
performing the functions of the
registrar. The normal thing is
for somebody to be made to take
over the responsibilities of a
registrar in his forced absence
through ill health or for
whatever reason. Such a person
acts and is the proper officer
until the registrar returns. If
his absence will be for a longer
period, a new person is
transferred from another station
to hold the fort on relieving
duties or permanently. So
whether a person acts
temporarily or permanently takes
over, there is always a proper
officer. We believe that there
is absolutely no merit in the
appeal before us and the same is
dismissed.
STATUTES REFERRED TO IN JUDGMENT
Chieftaincy (National and
Regional Houses of Chiefs)
Procedure Rules, 1972
CASES REFERRED TO IN JUDGMENT
DOKU V
PRESBYTERRIAN CHURCH OF GHANA
2005-2006 SCGLR 200
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
BAFFOE-BONNIE JSC
COUNSEL
OBENG MANU JNR, ESQ. FOR THE
DEFENDANT/APPELLANT /APPELLANT.
P. ADU – GYAMFI ESQ. FOR THE
PLAINTIFFS/RESPONDENTS
/RESPONDENTS.
JUDGMENT
BAFFOE-BONNIE JSC
This is an
appeal against the decision of
the Judicial Committee of the
National House Of Chiefs (JCNHC)
refusing to enlarge time within
which to appeal against the
decision of the Judicial
Committee of the Adansi
Traditional Council (JCATC) This
appeal is pursuant to leave
granted by this court on 3rd
May 2013.
While
preparing to write this decision
we were served with a process
titled AFFIDAVIT TO PULL OUT
FROM THE CASE sworn to by Nana
Nifa Abankro the first plaintiff
/respondent in this case.. The
10 paragraph affidavit recounted
the effect the suit has had on
the development of the
traditional area and concluded
as follows;
8/ That,
having thought about the bad
effect the court case is having
bad effect (sic) on the township
I have decided to pull out from
this case as the leader of the
plaintiffs.
9/ That, I am
therefore praying with the
honourable Supreme Court Accra
to strike my name from the case
as the leader of the plaintiffs.
10/ That, I
make this declaration to testify
and certify that I am no more
interested to pursue the case
any further and that I have pull
out from it absolutely for good.
This document
signed by the first plaintiff
personally was not accompanied
by any motion and we do not know
whether his counsel saw it and
approves of it.
We do not know
exactly the prayer that the
deponent of the affidavit wants
to convey. He recalls the
negative effects that this suit
is having on the traditional
area and the need to discontinue
with the action to heal wounds.
If this is a sentiment shared by
all the plaintiffs, then we
think that the affidavit should
be deposed to by all the
plaintiffs or on their behalf,
and they should be seeking to
discontinue with the suit
altogether. But the deponent
assumes that being the first
plaintiff he is the leader of
the plaintiffs and therefore his
prayer affects them.
Unfortunately, even if he is the
ring leader or leader of the
malcontents, the law recognizes
the other plaintiffs as
plaintiffs in their individual
rights. So, even if he is struck
off the list the case will still
go on.
But looking at
the bigger picture we believe
that the procedure adopted by
the first plaintiff to have his
name struck off is wrong. At
this stage in the proceedings if
a party wants to opt out it can
only be done with the leave of
the court. Leave of the court is
sought through a motion paper
supported by an affidavit.
Merely filing an affidavit and
saying that he has pulled out of
the case for good does not cloth
this court with the jurisdiction
to strike out the case or his
name off the case.
The facts in
this case are fairly simple and
uncontroverted. The appellant in
this case, Nana Boakye Ansah, is
the chief of Abedwim, while all
the respondents are sub chiefs
of the said stool. The
respondents brought some
destoolment charges against the
appellant before the JCATC.
According to the appellant he
prayed the JCATC for an earlier
petition he had filed to be
heard first, since the outcome
of that would have a significant
impact on the petition against
him.
This prayer
did not find favour with the
committee which went ahead and
heard the matter and a decision
published which went against
him.
According to
him he made several attempts to
procure a copy of the decision
of the committee to enable him
to appeal but he only received
it after the time for appeal had
lapsed. His attempt to file an
appeal out of time also met the
same fate with the reason that
the registrar was always not on
duty and that there was nobody
to receive his documents. When
time to appeal had lapsed the
appellant then filed an
application before the Judicial
Committee of the Ashanti
Regional House of Chiefs (JCARHC)
for extension of time within
which to appeal the decision of
the JCATC.
His main
reason for his application was
that the registrar of the
Traditional Council was sick and
other personnel on duty had
refused to accept his notice of
appeal and file same.
In an
affidavit in opposition sworn to
by the registrar E. A. Boadu, he
confirmed that he was posted to
the Council on 27th
November 1999 at the time when
the previous registrar was sick.
But he denied all the averments
of the appellant regarding the
efforts he had made to file the
documents. He said;
3. that I was posted to the
Adansi Traditional Council at
the time when the substantive
registrar was sick
4. That throughout the period
that I was in charge of the
office nobody came to file any
document on behalf of the
Defendant(appellant herein).
5. That when the solicitor for
the Defendant complained about
the fact that the defendant’s
notice of appeal had not been
filed by the registry I wrote to
Lawyer F.K Amoah and indicated
to him that nobody had come to
file any such papers
6. That at all times material
the registry of the Traditional
Council was open and that other
staff could have acted on the
defendant’s said papers.
The JCARHC
dismissed the application for
extension of time within which
to appeal on the grounds that
a/ the affidavit of the
registrar had debunked all the
allegations of impropriety on
the part of the registry staff
regarding the failure to file
the notice of appeal within time
and at the appropriate forum
i.e. the JCATC and
b/ the application for extension
of time had been filed after 7
months, which is 5 months, after
the allowable 2 months.
The appellant
appealed against this decision
of the Regional House of Chiefs
to the National House of chiefs.
The appeal
before the National House was
also dismissed on similar
grounds. The National House
reiterated the fact that with
the affidavit sworn to by the
registrar putting spokes in
the wheel of his case, the
appellant’s failure to rebut
some of the positive averments
in the said affidavit was fatal
to his case. Further, the NHC
noted that even his application
for extension of time which was
filed in the first instance at
the Regional House of Chiefs was
procedurally wrong as same
should have been filed at the
court of first instance i.e. the
Adansi Traditional Council. And
finally, the Regional House of
Chiefs’ reasoning that the
application was hopelessly out
of time was sound.
Pursuant to
leave granted by the National
House of Chiefs, the appellant
has filed this appeal
challenging the National House
Of Chiefs’ refusal to enlarge
time for him to appeal against
the decision of the Traditional
Council on the following
grounds;
i.
The Judicial Committee of the National
House of Chiefs failed to
appreciate the facts as
contained in the Affidavit of
E.A. Boadu the new Registrar of
the Adansi Traditional Council
which clearly stated that he was
posted to the Council on 27th
November, 1999 at a time when
the substantive Registrar was
sick, confirming the Appellant’s
assertion that the Registrar was
all along absent and was not at
post to accept the appellant’s
notice of appeal for filing.
ii.
The Judicial Committee of the Adansi
traditional council erred in law
when it failed to construe the
true meaning of “proper officer”
as contained in Rule 13 (1) CI
27 as interpreted in Rule 30 of
CI 27 and in consequence,
wrongly ruled that the Notice of
Appeal could have been filed by
other officials of the Council.
iii.
The Judicial Council of the National
House of Chiefs erred when they
failed to consider the fact that
the trial Judicial Committee
ignored the respondent’s
petition to the trial committee
to determine a matter pending
between himself and Nana Guahyia
Ababio, New Edubiasehene which
was pending before the
committee, was first in time,
and whose outcome was likely to
have a direct bearing and
influence on the matter.
iv.
The Judicial committee of the National
House of Chiefs failed to
exercise its discretion
judicially and thus shut out the
defendant appellant, thus
perpetually preventing him from
putting forward his side of the
case.
After studying
the records of proceedings very
closely we are of the opinion
that this appeal does not
deserve any lengthy treatment.
We believe that both the
Regional and the National
Houses’ reasoning to the effect
that the failure of the
appellant to react to the rather
damning affidavit of the
registrar was fatal to his case,
cannot be impeached. Not only
did the registrar deny the
assertion of the applicant that
there was nobody on duty to
receive the applicants documents
for filing, he made a positive
and verifiable statement to the
effect that when the applicant’s
solicitor complained of the fact
that the documents had not been
filed, he (the registrar) wrote
to Lawyer F.K. Amoah (who was
counsel at the time) and
indicated that nobody had come
to file any documents.Positive
and verifiable as this statement
was the appellant did not find
it needful to deny it.
We agree with
both theRegional and National
houses that failure to rebut
this affidavit was fatal to the
case of the appellant so the
appeal fails on this ground.
In his 3rd
ground of appeal, the appellant
emphasizes the point that by not
granting his application for
extension of time, both the
Regional and National Houses
completely shut the door of
litigation in his face thus,
permanently preventing him from
telling his side of the case.
Here again, we believe that both
the Regional and National Houses
were right in not granting an
extension of time to appeal on
the grounds that the time lapse
was too much. In reality the
Regional and National Houses did
not exercise any discretion in
this matter. They merely threw
the book at the appellant.
Rule 13(2) of
Chieftaincy (National and
Regional Houses of Chiefs )
Procedure Rules, 1972 CI.21
provides,
“In accordance with
sections 22(5) and 23 (6) of the
Chieftaincy Act 1971 (Act 370),
any appeal to the National House
of Chiefs against a judgment or
order of a Regional House of
Chiefs, or to a Regional House
of Chiefs against a judgment or
order of a Traditional Council,
shall be lodged within thirty
days after the judgment or order
appealed against. Provided that
the Judicial Committee to whom
the appeal is directed may, if
it appears to it to be just so
to do, extend the said period in
any particular case for a
further period expiring not
later than two months after the
date of the decision appealed
against”
The discretion
of both houses to extend time
can be exercised within two
months of the judgment and no
more. So if either the Regional
or National Houses had purported
to grant an extension when the
application was filed after 7
months such an extension would
have been a nullity and the
appeal thrown out. This point
was made more succinctly by our
very able sister, Sophia Akuffo
JSC in the case of DOKU V
PRESBYTERRIAN CHURCH OF GHANA
2005-2006 SCGLR 200 holding 2;
She said
“(2) It is not for
nothing that rules of court
procedure stipulate time limits.
Because it is in the public
interest that there shall be an
end to litigation, the rules of
the Supreme Court have set time
limits to guide litigants with a
view to achieving certainty and
procedural integrity. Otherwise,
in the case of appeals, any
litigant may conveniently take
his or her time to decide when
to resurrect the litigation of
suits in which decisions have
been given. Thus time limits are
too important for this court to
ignore, even if it had any
discretionin the matter; and
although one might empathise
with the appellant’s prayer for
this court to take into account
the rules of equity to “prevent
the respondent from taking undue
advantage of the weakness or
necessity” of the appellant, the
court cannot craft new rules to
suit the appellant’s situation,
nor will the ends of justice and
equity be served in any attempt
on the court’s part to do so.
There is no principle of equity
that permits the court to ignore
the time limits set by the rules
so as to favour the appellant
with an undue advantage.”
This ground of
appeal also fails.
Before us the
appellant has argued for the
first time another rather
strange ground of appeal. This
strange ground of appeal reads
as follows;
“The Judicial Committee of the
National House of Chiefs erred
in law when it failed to
construe the true meaning of
proper officer as contained in
Rule 13 (1) of CI 27 as
interpreted in Rule 30 of CI 27
and in consequence, wrongly
ruled that the notice of appeal
could have been filed by other
officials of the Council.”
Rule 13(1) of CI 27 reads
‘An appeal to a judicial
committee in accordance with the
chieftaincy act 1971 (Act370)
shall be brought by notice of
appeal in form 2 set out in the
first schedule signed by the
appellant or his counsel and
filed with the proper officer of
the judicial committee
whatsoever decision is appealed
against’.
Proper officer
has been defined in Rule
30 of of C.I 27 as
“Proper officer means the
officer, howsoever named
performing the functions of
Registrar in relation to a
judicial Committee”.
The appellant
has submitted that the affidavit
of the registrar clearly
indicated that the registrar had
been taken ill and that he was
posted there later. So counsel
submits that during that period
there was no proper officer to
receive and file his documents.
Coming from a
party who has maintained all
along that the registrar and
other personnel deliberately
avoided him and/or refused to
accept his documents for filing,
we found this ground of appeal
and the submissions thereon very
strange and rather confusing.
Is it the
appellants case that the
registrar was not there
(deliberately or not) and the
other persons refused to accept
his documents for filing, or
that the registrar was not
around (deliberately or not) and
though other persons were around
they were not ‘proper officers’
so he could not entrust his
documents to them for filing?
If it is his
case that the registrar and his
people all refused to accept his
documents then it is our holding
that the registrar’s undenied
affidavit jettisons his case. If
his case rests on the meaning he
has ascribed to a proper officer
in his submission, then it is
our holding that his
understanding of ‘proper
officer’ is wrong. The meaning
ascribed to proper officer in
Rule 30 is self-explanatory and
needs no further interpretation.
It means exactly what it says. A
proper officer means the
officer, howsoever named
performing the functions of
Registrar in relation to a
judicial committee.
A registrar
has specific functions assigned
to him to perform. If he is sick
or absent and a clerk is
assigned to act as the registrar
he becomes the “proper officer’
because for that moment he is
performing the functions of the
registrar. The normal thing is
for somebody to be made to take
over the responsibilities of a
registrar in his forced absence
through ill health or for
whatever reason. Such a person
acts and is the proper officer
until the registrar returns. If
his absence will be for a longer
period, a new person is
transferred from another station
to hold the fort on relieving
duties or permanently. So
whether a person acts
temporarily or permanently takes
over, there is always a proper
officer.
We believe
that there is absolutely no
merit in the appeal before us
and the same is dismissed.
(SGD)
P. BAFFOE- BONNIE
JUSTICE OF THE SUPREME COURT
(SGD)
S. A. B. AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
(SGD)
V . AKOTO – BAMFO (MRS)
JUSTICE OF THE SUPREM
COURT
(SGD)
YAW APPAU
JUSTICE OF THE SUPREME COURT
(SGD)
G. PWAMANG
JUSTICE OF THE SUPREME COURT
COUNSEL:
OBENG MANU JNR, ESQ. FOR THE
DEFENDANT/APPELLANT /APPELLANT.
P. ADU – GYAMFI ESQ. FOR THE
PLAINTIFFS/RESPONDENTS
/RESPONDENTS |
