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JUDGMENT
AMPIAH, JS.C.:
The Plaintiffs who are all from
Appolonia, claim to be the
respective heads of the ruling
clans of Appolonia and the
Kingmakers and/or elders of the
Appolonia Stool. The Defendant
is the incumbent occupant
(Chief) of Appolonia and the
Co-Defendant is the Paramount
Chief of the Kpone Traditional
Area of which Appolonia is a
part. For sometime now the
Defendant has been alienating
lands at Appolonia to certain
individuals and companies or
bodies without reference to the
Plaintiffs. The Plaintiffs took
objection to these alienations
and protested to certain
authorities about the conduct of
the Defendant. The Defendant
claimed that as the Plaintiffs
were neither his Kingmakers nor
elders of his Stool, they were
not entitled to be consulted in
the alienation of land at
Appolonia for any purpose.
On the 1st day of September,
1994, ALHAJI TETTEH KWAO and two
other Plaintiffs (now
Appellants) issued a Writ of
Summons against NII TEI ADUMUAH
II of Appolonia, Defendant (now
Respondent) for—
“(a) Declaration that the lands
of Appolonia can only be
alienated with the consent and
concurrence of the Plaintiffs
clan.
(b) Account of all monies
received from the sand winning
for all the year.
(c) Perpetual Injunction to
restrain Defendant his
agents/servants from further
alienating Appolonioa lands
without the consent and
concurrence of the Plaintiffs”.
The Respondent entered a
conditional appearance and
applied on 14th September, 1994
to have the Writ of summons and
Statement of Claim set aside.
The application was heard on 7th
February, 1995. The relief for
account was struck out leaving
the two other reliefs to proceed
to trial.
In due course NII TETTEH OTU II
of Kpone was joined as
Co-Defendant (now also
Co-Respondent). The necessary
processes were filed by all the
parties and summons for
Directions taken. The case was
heard at the High Court, Tema
and judgment given for the
Plaintiffs on 28th September,
1995 granting the 1st relief and
the order for Injunction.
The Defendants appealed to the
Court of Appeal against the
judgment on several grounds;
however, only two of the grounds
were argued.
On 13th March, 1997 the Court of
appeal allowed the appeal and
set aside the judgment of the
High Court by a majority of two
to one; their Lordships, LAMPTEY
and BENIN, JJ.A. in the majority
with ESSILFIE-BONZIE dissenting.
It is against this judgment that
the Plaintiffs now appeal to the
Supreme Court.
GROUNDS OF APPEAL
The grounds of appeal by the
appellants are set out in their
Notice of appeal. These are:—
(a) “That the majority of the
court of Appeal misdirected
itself in law by holding that
the action was chieftaincy cause
or matter so, the High Court had
no jurisdiction to try the case.
Raised as preliminary point
before the High Court”.
PARTICULARS OF MISDIRECTION:
That as a resolution of the case
will involve a determination of
the existence of ruling houses
or was then it is a chieftaincy
case or matter.
(b) The decision of the Court of
Appeal is against the weight of
evidence.
(c) That the decision of the
Court of Appeal allowing the
appeal and in effect setting
aside the injunction granted by
the Trial Court was wrong as the
two of the Court of Appeal
Judges accepted that there was
evidence on the record to the
effect that the Plaintiffs have
to be consulted by the
Defendants on grants of
Appolonia Lands”.
The majority judgment of the
Court of appeal is that:—
(a) The High Court did not have
jurisdiction to determine the
suit and
(b) That the Plaintiffs lacked
capacity
What was the claim of the
Plaintiffs before the Court? The
trial Judge did discuss the
issue whether or not the claim
before him was ‘a cause or
matter affecting chieftaincy’.
He had no difficulty in
resolving the issue. He made
findings of fact and law on the
evidence before him in relation
to the claim and concluded,
“I am prepared to accept the
word of the Plaintiffs that the
Defendant as Chief of Appolonia
has been making grants of land
without recourse to the
Plaintiffs as elders or heads of
the ruling clans at Appolonia. I
find that the Plaintiffs have
the capacity to bring this
action and that their claim is
properly before this court. I
therefore enter judgment in
favour of the Plaintiffs in
respect of the claims (a) and
(c) endorsed on their Writ of
Summons…..”
Earlier in the proceedings, the
Defendant had by a motion
supported by an affidavit prayed
for the Striking Out of the
action on the grounds that the
Plaintiffs had no capacity to
institute the action. The trial
Judge, on the Application, while
holding that the Plaintiffs had
no legal right at customary law
as subjects to call upon the
Defendant to account, and for
that reason the Court had no
jurisdiction to do so, observed,
“…..the Plaintiffs are no
ordinary subjects of the
Defendants. They claim to be the
heads of the ruling clans of
Appolonia. It is an accepted
principle of the customary law
that a chief only acts or is
supposed to act on the advice
and with the consent and
concurrence of his elders”.
The Co-Defendant was joined in
the action later, and he filed
his Statement of Defence. At no
stage of the proceedings did the
Plaintiffs or the Defendant and
Co-Defendant raise any issue
involving ‘a cause or matter
affecting chieftaincy’. In fact
at the Summons for Directions
stage the issues raised for
determination were:—
“(a) Whether or not Plaintiffs
have the capacity to institute
this action.
(b) Whether or not there are
ruling clans at Appolonia.
(c) Whether or not Appolonia
lands all belong to the Kpone
Paramount Stool.
(d) Whether or not by the custom
and tradition of the people of
Appolonia land at Appolonia is
only alienable with the consent
and concurrence of the Kpone
Paramount Stool”.
The issue as to whether or not
the matter before the Court was
‘a cause or matter affecting
chieftaincy’ was never raised in
the pleadings. It was only on
appeal that the Defendant raised
it as a ground—
“That the trial Judge erred in
assuming jurisdiction over the
case”.
Appellants’ Counsel submitted
inter alia that—
“…..having regard to the writ of
Summons and the Statement of
Claim, the real issue in
controversy is a cause or matter
affecting chieftaincy”.
Referring to the Statement of
Claim (paragraphs 1– 4, Counsel
contended that “…..to enable the
issues to be determined the
Court has necessarily to
determine whether the Plaintiffs
are the respective heads of
their ruling clans of Appolonia
and what the Ruling Clans of
Appolonia are. After that the
Court has to determine whether
by custom and practice the Chief
has to alienate lands with the
consent of the ruling clan
heads”. He concluded “…..in an
attempt to make these findings
the Court will necessarily have
to determine a cause or matter
affecting chieftaincy Contrary
to Sections 15(1) and 66(1) of
the Chieftaincy Act 1971 (ACT
370).
The question of jurisdiction can
of course be raised at any stage
of the proceedings. If a Court
is found to have acted without
jurisdiction, the proceedings
under the wrongly assumed
jurisdiction become null and
void and must be set aside at
any time. Benin J.A. in his
reasoning on this issue referred
to the relevant authorities, in
my view. He proceeded, ‘it is
not the mere mention of certain
words denoting royalty which
brings an issue within the
definition of cause or matter
affecting chieftaincy, the issue
must necessarily involve a
person’s right to occupy a Stool
either by himself or his family
members etc. He then referred to
the case of Osei v. Siriboe II
[1984–86] 1 GLR 588 which
decided inter alia that a claim
to belong to a royal family is
not prima facie a case or matter
affecting chieftaincy and so is
a claim to be a royal. In
support of the above holding,
Benin, J.A. again referred to
the case of Amoasi II v. Twintoh
(1987 – 88) 1 G.L.R. 554 which
also decided, that a suit to
determine whether a person was
the head of a Stool family was
not a cause or matter affecting
chieftaincy and therefore not
congnisable by a Traditional
Council. A head of family is not
a chief. The Judge then
concluded, ‘In my view each case
will have to be considered on
its merit to determine whether
the facts and/or issues all
involved a cause or matter
affecting chieftaincy; in that
respect not only the
endorsement, but the entire
statement of claim, and defences
and indeed the entire record of
the case has to be considered in
order to discover whether any
cause or matter affecting
chieftaincy is raised”. His
Lordship then referred
extensively to the pleadings on
the evidence adduced by the
parties to find out what they
meant by “the ruling clans”.
After a lengthy evaluation of
the matter he came to the
conclusion—
“…..so that on the pleadings a
very vital issue as to whether
or not there are ruling clans at
Appolonia, and if so what they
are was raised.
And by ruling clans, the 1st
Plaintiff and Defendant in their
testimony made it clear, that
there were the clans which
provide both the Kingmakers and
chiefs at Appolonia… Thus any
decision as to whether or not
Plaintiffs belong to the ruling
clans and are the heads thereof
would be a determination that
they are the Kingmakers of
Appolonia. The fact that this
clanship was related to
chieftaincy….. In this action
the issues ruling clans and
Kingmakers were interwoven and
inseperable, if Plaintiffs were
Kingmakers then they belong to
the ruling clans and were the
heads then also they were the
Kingmakers”.
However, having come to this
conclusion, the learned Judge
posed the issue, “but the claim
could still be decided without
resolving this apparently
chieftaincy issue if they are
limited to whether the heads
and/or elders or these clans
have to be consulted in land
alienation. So I will not allow
the appeal on this ground”. But
what was the claim of the
Plaintiffs before the Court? A
declaration that the lands of
Appolonia can only be alienated
with the consent and concurrence
of the Plaintiffs’ clans’. Was
there any necessity then to go
into the issue of chieftaincy as
proposed by the Judge? The
chieftaincy aspect of the matter
as the Court found, was properly
before the Regional House of
Chiefs.
To find a basis for his rather
unclear conclusion, Benin, J.A.
had brought in the issue of
chieftaincy. Having fully and
thoroughly digested the
authorities (case law) on the
issue, His Lordship observed,
“I think a cause or matter
affecting chieftaincy was
clearly raised by this action.
The 1st Plaintiff’s testimony
was clear that land could only
be alienated by reference to the
Kingmakers that it is not
possible to determine the mode
of alienation without determine
who these Kingmakers are if in
truth their consent is required
in land alienation at Appolonia”.
Surprisingly however, the same
Judge concluded,
“…..I will therefore allow the
appeal except to emphasise that
Plaintiffs are entitled to be
allowed in such meetings on land
alienation”(emphasis mine).
In what capacity are the
Plaintiffs entitled to be
allowed at a meeting for the
alienation of land at Appolonia?
It could only be in their
capacity as Kingmakers or elders
of the Appolonia Stool as they
claim to be in their Writ of
Summons. This is exactly what
the Plaintiffs were asking for!!
In this respect Benin, J.A.
agrees with the trial Judge and
Essilfie-Bondzie J.A. The trial
Judge found as a fact that the
Plaintiffs were some of the
elders of the Stool whose
consent and concurrence are
required for the valid
alienation of Appolonia Stool
Lands. This finding was
supported overwhelmingly by the
evidence on record. D.W.1 Gideon
Doku Tettey who gave evidence as
an elder and who denied the
status of the Plaintiffs had
himself had a problem with the
Defendant as to his own status.
He said he has reconciled with
the Defendant. His evidence
could not be reliable! The
Defendant himself when it was
suggested to him.
“Q. I want to suggest to you
that of late you have not been
consulting with the Plaintiffs
as you used to in the past and
this has been the source of
confusion in your village.
A. My elders and I have no
quarrel with them. The
Plaintiffs themselves have
distanced themselves from us and
they know why they have done
so”.
The Defendant alleged that
Plaintiffs were heads of their
various families or houses, but
he could not, apart from D.W.1
whose stand I have already
commented on, produce before the
Court his so-called real elders.
I have referred extensively to
the opinion of Benin, J.A.
because it was in support of his
opinion that Lamptey, J.A. also
came to the conclusion that, “In
all the circumstances and
evidence on record the claim by
each Plaintiff that they are
Kingmakers and/or elders and
that by custom and usage they
must be necessary parties in the
nomination, election and
enstoolment of Chief of
Appolonia raised a dispute
affecting chieftaincy”.
With due deference to His
Lordships in the majority
decision, I think they
misconstrued the claim by the
Plaintiffs. As stated in the
various authorities (case law)
cited, it is not in every case
that when words like ‘Chief’.
‘Kingmaker’, ‘royal’ etc. etc.
are mentioned that the matter
becomes a chieftaincy issue. It
is only when the status is
claimed in relation to the
matters set out in section 66 of
the chieftaincy Act, 1971 (Act
370), that the matter becomes a
cause or matter affecting
Chieftaincy. Section 66 of Act
370 provides—
“66 In this Act—
………………………………………
Cause or matter affecting
chieftaincy
Means any cause, matter question
or dispute relating to any of
the following—
“(a) the nomination, election,
appointment or installation of
any person as a Chief or the
claim of any person to be
nominated, elected, appointed or
installed as Chief;
(b) the destoolment or
abdication of any Chief;
(c) the right of any person to
take part in the nomination,
election, appointment or
installation of any person as a
Chief or in the destoolment of
any Chief;
(d) the recovery or delivery of
Stool property in connection
with any such nomination,
election, appointment,
installation, destoolment or
abdication;
(e) the constitutional
relationship under customary law
between Chiefs”.
An action before the ordinary
courts could be ousted only if
it falls within any of the above
categories.
The action before the Court did
not seek to nominate elect etc.
any person as ‘Chief’. Neither
were the Plaintiffs claiming
that they were entitled to take
part in the nomination, election
etc. of a ‘Chief’. There was no
issue of destoolment or
abdication. Paragraph (a), (b)
and (c) of Section 66 of Act 370
would therefore not be
applicable. The Plaintiffs
admitted, and the Court found
that the Defendant was the Chief
of Appolonia. The claim they
made as Kingmakers and/or elders
was in relation to their right
to consent and concur in the
alienation of Stool lands at
Appolonia. So the determination
of their status cannot in any
way be construed as a claim to
take part in the nomination etc.
of the Defendant as a Chief. In
their capacity as Kingmakers or
elders they claim to have a
customary duty to perform. If
they succeeded they would be
entitled to be consulted under
customary law in the alienation
of the Stool lands. Their action
therefore cannot be said to be a
cause or matter affecting
chieftaincy.
Paragraph (d) of Section 66
deals with the recovery or
delivery of Stool property in
connection with any such
nomination, election etc. Since
there was no question of
nomination, election etc. the
issue of recovery or delivery of
property in connection with the
nomination, election etc. did
not arise.
Paragraph (e) deals with the
relationship under customary law
between Chiefs. The Plaintiffs
do not claim to be Chiefs;
whether the Defendant accepts
the Plaintiffs as his Kingmakers
or not does not create a
relationship between chiefs. If
they were found to be kingmakers
and/or elders they would be
entitled to be consulted in the
alienation of the Stool lands.
This could not be said to be a
cause or matter affecting
chieftaincy.
The institution of Chieftaincy
is customary. With the exception
of a few statutory limitations,
Chiefs derive their authority
from customary law and
practices. The acceptable
practice is that Chiefs function
in consultation with their
Kingmakers and/or elders of
their Stools. Like the head of a
family or the customary
successor, the properties they
inherit are disposed of or dealt
with with the consent and
concurrence of the elders of the
Stool or family; Stool lands not
being the bona fide properties
of the occupant of the Stool,
are dealt with with the
knowledge, consent and
concurrence of those on whose
behalf the lands are held. It is
for the protection of the
Stools’ lands that Article
267(1) of the Constitution
provides—
“267(1) All Stool lands in Ghana
shall vest in the appropriate
Stool on behalf of, and in trust
for the subject of the Stool in
accordance with customary law
and usage”. (emphasis supplied).
Consequently any dealings with
Stool land without the consent
and concurrence of the elders in
accordance with customary law
and practice would make such
dealings voidable or even void
in certain situations. For the
kingmakers and/or the elders to
request that no alienation of
Stool land be made except with
their consent and concurrence is
only an assertion of the
customary rights of such
kingmakers or elders. This can
be done without necessarily
delving into causes or matters
affecting Chieftaincy. What
Stool lands are stated at
Section 31 of the Administration
of Lands Act 1962 (Act 123).
There is no dispute that the
lands at Appolonia are Stool
lands.
There is evidence that the
people of Appolonia are from
Kpone and that the Paramount
Stool owns the lands at
Appolonia. What is not clear is
what part the Kpone Stool plays
in the alienation of Stool lands
at Appolonia. The defendant
created an impression that
although in the alienation of
lands at Appolonia or in any
dealings with the lands, he
being a caretaker only, it must
be sanctioned by the Paramount
Stool of Kpone after he and his
Kingmakers and/or elders had
agreed upon the transaction. To
a question—
“Q. What is the procedure for
alienating the land at Appolonia?”
he answered,
A. A citizen of Appolonia in
search of land presents drinks
to the Chief of Appolonia
through a linguist and a
stranger who wants to be granted
land also sends drinks through
the linguist to the chief and
his elders. The chief and his
elders will then examine the
purpose for which the land is
being acquired by the stranger
and whether it will benefit the
citizens…..The transaction is
then reported to the Kpone
Traditional Council”.
Of course, apart from the
concurrence which the Lands
Commission must give to any
transaction on Stool lands to
make it effective — see Section
8(1) of the Administration of
Lands Act. 1962 (ACT 123), it is
also required that the
transaction be consented to by
the Traditional Council within
which the land is situated — See
Section 37 of the Chieftaincy
Act, 1971 (Act 370).
The trial Judge found that there
have been dealings in respect of
the Appolonia lands by the
Chief, the Defendant, without
the consent and concurrence of
his elders. As stated above it
is not clear what part the Kpone
Stool played in all those
transactions. The trial Judge
found that in not even one of
these dealings with the
Appolonia lands by the
Defendant, did the paramount
Stool take part; no documents
were tendered nor evidence given
by the Co-Defendant of Knowledge
of any of the dealings with the
Appolonia lands.
Of course, what the relationship
is between the Kpone Stool and
the Appolonia Stool respecting
the lands at Appolonia is a
matter to be settled between
those two Stools. On the
admission by the Defendant, he
deals with the Appolonia lands
in consultation with the
Kingmakers and/or elders or
Appolonia with whom the
defendant must consult in his
dealings with Appolonia lands.
However, the claim by the
Plaintiffs that they belong to
the clans at Kpone would not
necessarily make them the
Kingmakers and/or elders of the
Kpone Stool. The evidence is
that the clans at Kpone are
duplicated at Appolonia. All
Chiefs whether sub-chiefs or
paramount chiefs must have their
own kingmakers and/or elders.
The Plaintiffs have been found
to be elders of the Appolonia
Stool. The claim is based on the
positions they hold at
Appolonia; they cannot in this
action also claim to be
Kingmakers and/or elders of the
Kpone Stool. That issue does not
arise under this action.
The findings made by the Trial
Court were amply supported by
the evidence. The Court of
Appeal failed to show why these
findings should be set aside.
Consequently, it erred. I would
therefore allow the appeal and
set aside the judgment of the
Court of Appeal and restore the
judgment of the trial Court.
A.K.B. AMPIAH
JUSTICE OF THE SUPREME COURT.
KPEGAH, J.S.C.:
I agree
F. Y. KPEGAH
JUSTICE OF THE SUPREME COURT
ADJABENG, J.S.C.:
I also agree.
E. D. K. ADJABENG
JUSTICE OF THE SUPREME COURT.
ACQUAH, J.S.C.:
And I also agree
G. K. ACQUAH
JUSTICE OF THE SUPREME COURT.
SOPHIA A. B. AKUFFO (MISS),
J.S.C:
I am in full agreement with my
esteemed brothers that this
appeal must succeed. I however
wish to contribute a few
thoughts on the issue of whether
or not the matter that came
before the trial court was one
affecting chieftaincy.
It is true that from time to
time attempts are made by
parties to circumvent the
limitation on the jurisdiction
of the High Court, stipulated by
Section 57 of the Courts Act,
1993 (Act 459), by clothing
chieftaincy disputes in the
guise of land and other
disputes. This court, through
the application of both its
supervisory and appellate
jurisdictions, has always
rejected such machinations.
However, there are numerous
instances where an apparent
chieftaincy issue arising in a
suit before the High Court may
be nothing more than a red
herring. Thus, the learned
Essilfie-Bondzie, JA., in his
minority opinion in this matter
when it came before the Court of
Appeal was perfectly correct
when he stated that:—
“…a mere claim by the Plaintiffs
as heads of the ruling clans or
houses of a village does not
amount to a dispute which should
qualify the action before this
Court as a ‘cause or matter
affecting chieftaincy.’”
As was demonstrated in The
Republic v. The High Court,
Denu; Ex Parte Togbe Lugu
Avadali IV, (SC Judgement dated
14th December, 1993), in matters
of this nature, when it is
claimed by an applicant or
appellant that a matter before
the High Court had been a cause
or matter affecting chieftaincy,
it is always crucial to keep in
sight the essential nature of
the plaintiff’s claim, the
issues necessarily raised
thereby and the nature of the
determinations required to be
made or which were actually made
by the trial court. Failure to
do so might drag an appellate,
or supervisory court into
embarking upon an exercise in
futility, chasing after red
herrings.
The issues set down for trial
before the High Court, in this
case were:—
a. Whether or not the
plaintiffs have the capacity to
institute this action.
b. Whether or not there are
ruling clans at Appolonia.
c. Whether or not Appolonia
lands all belong to the Kpone
paramount stool.
d. Whether or not the defendant
is only a caretaker of Appolonia
lands for and on behalf of the
Kpone stool.
e. Whether or not by the custom
and tradition of the people of
Appolonia the defendant can
alienate or take any action in
respect of Appolonia lands
without the consent and
concurrence of the ruling clans
or houses.
f. Whether or not by the custom
and tradition of the people of
Appolonia land at Appolonia is
only alienable with the consent
and concurrence of the Kpone
Paramount stool.
In view of these issues, the
first question we need to
determine is whether the
resolution of any of these
issues necessarily required the
High Court to make any
determinations affecting any of
the following:—
a. the nomination, election,
selection, installation or
deposition of a person as a
chief or a claim of a person to
be nominated, elected, selected
or installed as a chief;
b. the destoolment or
abdication of any Chief;
c. the right of any person in
the nomination, election,
selection, appointment or
installation of any person as a
Chief or in the deposition of
any Chief;
d. the recovery or delivery of
stool property in connection
with any such nomination,
election, appointment,
installation, deposition or
abdication;
e. the constitutional relations
under customary law between
Chiefs. (see Section 117(1) of
the Courts Act, 1993 (Act 459)
defining ‘cause or matter
affecting chieftaincy’)
In his Statement of Case herein,
Counsel for the Respondent
herein submitted that:—
“…a challenge to the capacity of
the plaintiffs constituted a
denial of their status as chiefs
under section 49(e) of Act 370,
as exemplified in LI 798. Since
the plaintiffs claim the right
to administer the lands in their
capacity as heads of the royal
families and the defendants
challenge the plaintiffs’
capacity the court must
necessarily determine the issue
of capacity before proceeding to
determine the merits of the
claim. This would lead the court
into a chieftaincy matter. In
other words a decision in favour
of the plaintiffs would confirm
their positions as chiefs under
section 49(e) of Act 370, as
exemplified in LI 798… The
decision either way would stand
as a decision in rem, binding on
all Apollonians and their prives
and estop them ever from
reopening those chieftaincy
issues….”
Counsel sought support from the
case of The Republic v. The High
Court, Denu; Ex Parte Togbe Lugu
Avadali IV, (supra) to bolster
up this argument. However, in
that case the main claim was
for:—
“A declaration that the 1st
Plaintiff is the present Head/Hlotator
of the whole Anyigbe
clan/family… and is entitled to
manage all the lands and other
properties of the Anyigbe
clan/family.
By the nature of the claim in
that case, it was of primary
importance to ascertain exactly
what is a Hlotator, and there
was clear evidence on the record
that the real status of a
Hlotator was that of chief, as
had been acknowledged by the
Agave Traditional Council, not
only in a previous arbitral
decision, but also in a book on
Agave History, previously
published by the Council. Thus,
in the application to this Court
for Certiorari, the main ground
of the Applicant was that, since
the office of Hlotator was a
chiefly one, the declaration
sought by the Respondent was a
cause or matter affecting
chieftaincy. This Court held
that the High Court of Denu
could not grant the declaration
sought since it would
necessarily amount to declaring
the plaintiff therein the chief
of the Anyigbe Clan, a power the
court did not have. In the
course of his ruling, the
learned Adade, JSC., succinctly
stated the crux of the matter
therein as follows:—
“The issues that calls for a
determination therefore is
simply:
“Who or what is a Hlotator?’ If
Hlotator, on the face of the
record that was then before the
learned High Court Judge, means
a Chief, then the plaintiffs are
out of court; if not, not.”
In the instant case, the
substance of the case for the
Respondents, if I have clearly
understood Counsel’s arguments
(and I believe that I have), is
that the determination of the
issue of the capacity of the
Appellants amounted to a
decision on the chieftaincy ‘set
up’ at Appolonia and the status
of the Appellants as chiefs
within the meaning of section
49(e) of Act 370 and LI 798.
Now, section 49 of the
Chieftaincy Act, 1971 (Act 370)
spells out the categories of
chiefs and, in sub-section (e),
includes:
“such other Chiefs not falling
within any of the preceding
categories as are recognised by
the Regional House of Chiefs.”
However, in no part of the
record before us is there any
evidence or indication that the
Regional House of Chiefs
classifies the heads of the
royal clans/houses/’Wes’ at
Appolonia as chiefs. Thus, the
fact that, in paragraph (v)(c)
of the 1st Schedule to the
Chieftaincy (Proceedings and
Functions) (Traditional
Councils) Regulations, 1972 (LI
798), a fee is stipulated for
the filing of complaints to
initiate proceedings against the
nomination, election and
installation of a family head,
cannot be read to constitute the
headship status of the
Appellants a chiefly one. In any
event, there was no issue
arising in this case relating to
the nomination, election and
installation of any of the
parties as family head or
otherwise.
The Appellants’ fundamental
claim before the trial court was
for:—
“A declaration that the lands of
Appolonia can only be alienated
with the consent and concurrence
of the Plaintiffs’ clans.”
The Respondents’ had, before the
High Court, challenged the
capacity of the Appellants to
bring the action, upon the
ground that there are no ruling
clans in Appolonia. However,
this was debunked by the
Respondent’s own admission, on
cross-examination, that he
considered the Appellants to be
amongst the persons to be
consulted in matters of land
alienation. Indeed, the
Respondent also admitted that
the only reason the Appellants
had not been consulted was
because they themselves had
‘distanced themselves from us’.
Furthermore, the representative
of the Co-Respondent also
readily admitted that there are
ruling clans in Appolonia, which
duplicate the ruling houses in
Kpone.
Thus, the challenge to the
capacity of the Appellants to
bring the action herein was
nothing more than a challenge to
their right to be consultated by
the Respondent, chief of
Appolonia, in the alienation of
Appolonia lands, and a
determination thereof did not
necessarily require a resolution
of matters affecting
chieftaincy. It is clearly
evident on the record that the
challenge to capacity cannot be
likened to the nature of the
challenge to capacity that arose
in the Avadali case (supra).
The next question is whether,
the course of the adjudication
of the issues, the trial judge
made any determination, which
affected chieftaincy. I have
combed through the judgment of
the trial judge and I cannot
find any finding that would lead
to such a conclusion. The core
findings made by the judge were
that Appolonia lands, although
they belong to Kpone are
alienable by the chief of
Appolonia in consultation with
his elders, of whom, on the
Respondent’s own admission, the
Appellants form part; that upon
the admission of the
Co-Respondent’s representative,
there are ruling clans in
Appolonia; that the Respondent
has been making land grants
without the participation of the
Appellants; that, therefore, the
Appellants have capacity to
bring the suit. His Lordship
then proceeded to grant the
Appellants’ claims for (a) and
(c) sought by the Appellants. In
the circumstances of this case,
he was, in my view, correct in
doing so.
S.A.B. AKUFFO (MISS)
JUSTICE OF THE SUPREME COURT.
COUNSEL
Mrs. I. Quansah for Appellant.
Mr. Nsiah-Akwetey for
Respondents. |
