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Chieftaincy – Regional House of Chiefs – Jurisdiction – Petition not concerning paramount chief or queenmother – Whether regional house has jurisdiction – Constitution 1979 art 180(2) – Chieftaincy Act 1971 (Act 370) s 23(1).

Chieftaincy – National House of Chiefs – Jurisdiction – Appeal from traditional council to regional house of chiefs in claim not concerning paramount chief or queenmother – Whether regional house has jurisdiction – Constitution 1979 art 179(5) – Chieftaincy (National and Regional Houses of Chiefs) Procedure Rules 1972 (CI 27) r 23(3).

To a petition filed against them at the Brong-Ahafo Regional House of Chiefs, the respondents raised the preliminary objection that the house did not have jurisdiction as the claim did not involve a paramount stool. The petitioners had sought declarations that the installation of the 1st respondent as Krontihene by the 2nd - 8th respondents was null and void and that the refusal of the Dormaa Traditional Council, the 9th respondent, to allow Nana Peprah of Wamfie to swear his oath of allegiance to the Dormaa Traditional Council was also void. The petitioners sought also perpetual injunction to restrain the 1st respondent from acting as Krontihene of Wamfie or the 9th respondent from recognising him as such.

The Brong Ahafo Regional House of Chiefs found that the respondents’ refusal to allow the oath of allegiance to be sworn did not constitute a cause or matter affecting chieftaincy but that the Omanhene president of the traditional council, had shown such personal interest in the matter as disqualified the Dormaa Traditional Council from adjudicating the matter on ground of bias. The regional house of chiefs therefore assumed jurisdiction over the matter. An appeal was filed against the assumption of jurisdiction to the National House of Chiefs.

The National House of Chiefs upheld the finding of the regional house that the matter did not affect a paramountcy but assumed jurisdiction as at first instance under article 179(5)(e) of the 1979 Constitution and section 23(3) of CI 27 to determine the matter in order to save “a funny situation”. The respondents appealed to the Supreme Court and applied to join or substitute the Omanhene for the 9th respondent.

Held: (1) Under article 180(2) of the 1979 Constitution and section 23(1) of the Chieftaincy Act 1971 (Act 370) a regional house of chiefs had original jurisdiction in all matters relating to a paramount chief or a queenmother to a paramount stool. The reliefs sought had no direct reference to a paramount chief or such queenmother. The swearing of an oath of allegiance was purely customary, the responsibility of the Omanhene, not the president of the traditional council. The substance of the petitioner’s complaint was the refusal of the Omanhene to allow the 1st petitioner to swear the oath of allegiance. As such the Omanhene, not the traditional council, was the proper party to the petition.

(2) Since no paramount chief was a party, the regional house had no jurisdiction. Having held that the regional house had no jurisdiction, the National House of Chiefs ought to have directed the parties to the proper forum. Instead it wrongfully assumed original jurisdiction in the matter.

(3) Under rule 23(3) of the Chieftaincy (National and Regional Houses of Chiefs) Procedure Rules 1972 (CI 27) the National House of Chiefs could exercise jurisdiction over proceedings at first instance or rehear or remit a matter to a chieftaincy tribunal below but such power did not entitle it to discard evidence and hear the matter afresh. It was to hear the matter before it, ie the preliminary objection against the wrongful assumption of jurisdiction over the matter by the regional house of chiefs, not to assume original jurisdiction in the substantive matter that had not come before it on appeal. Nkrumah v Ataa [1972] 2 GLR 13 referred to.

(4) Article 179(5) of the 1979 Constitution vested the National House of Chiefs with original jurisdiction in any matter cognizable by two or more regional houses or not cognizable by a regional house or which could not otherwise be dealt with by a regional house of chiefs. The provision presupposed the justiciability of the matter in a regional house, ie affecting a paramount chief or the queenmother. Having held that the matter did not affect a paramount chief, the National House of Chiefs could not assume original jurisdiction in the matter.

(5) The application for amendment could not be granted. It was for counsel to advice himself as to the party to sue and in what capacity to be sued.

Case referred to:

Nkrumah v Ataa [1972] 2 GLR 13.

APPEAL against the judgment of the National House of Chiefs to the Supreme Court.

James Ahenkorah for the appellants.

Anthony Norvor for E D Kom for the respondents.

AMPIAH JSC. This is an appeal from the decision of the chieftaincy tribunal of the National House of Chiefs.

The petitioners in this matter instituted chieftaincy proceedings against the respondents at the chieftaincy tribunal of the Brong-Ahafo Regional House of Chiefs. The respondents raised a preliminary objection that the tribunal was incompetent to entertain the action since the matter did not involve a paramount stool or an occupant of a paramount stool. The tribunal overruled the objection and insisted on hearing the matter whereupon the respondents appealed against the ruling to the chieftaincy tribunal of the National House of Chiefs. The National House of Chiefs chieftaincy tribunal upheld the appeal but ruled that it had jurisdiction to exercise original jurisdiction in the matter. It relied on section 23(2) of Chieftaincy (National and Regional Houses of Chiefs) Procedure Rules 1972 (CI 27) and also article 179(5) of the 1979 Constitution which was the relevant law at the time. The respondents have appealed against that ruling.

The reliefs sought in the chieftaincy tribunal of the Regional House of Chiefs were:

“(1) A declaration that the nomination, election and installation of Ansu-Agyei (1st respondent herein) as Krontihene of Wamfie in the Dormaa Traditional Area by the 2nd, 3rd 4th 5th 6th 7th and 8th respondents is null and void and of no effect as the same is contrary to custom and usage of Dormaa traditional area.

(ii) A declaration that the decision of the 9th respondent herein (as evidenced in letters dated 23rd and 24th August 1982) not to allow Nana Peprah of Wamfie to swear the oath of allegiance to the Dormaa Traditional Council is null and void as same is contrary to Dormaa customary law and usage.

(iii) A declaration that the respondents herein are bound by the decision/recommendation of the Brong-Ahafo Regional House of Chiefs in the matter of Nana Abena Fima and Eleven others v Nana Kwesi Owusu and Six others dated 29 June 1982 and that the 1st respondent herein not being a member of the Amma Kuma royal house of Wamfie his purported nomination, election by the respondents herein is null and void and of no effect.

(iv) An order of the judicial committee to nullify the said nomination, election and installation of Ansu-Agyei (1st respondent) as Krontihene of Wamfie in the Dormaa traditional area.

(v) Perpetual injunction to restrain the 1st respondent herein from acting in any way as Krontihene of Wamfie or from performing functions in the Dormaa traditional area.

(vi) An order of perpetual injunction to restrain the 9th

respondent from recognising the 1st respondent as chief of Wamfie or admitting him to any meeting of the 9th respondent Council.”

The Dormaa Traditional Council (the 9th respondent herein) had been joined in the action for the refusal of the Omanhene of the Dormaa traditional area and the president of the 9th respondent to allow the 2nd petitioner to swear the oath of allegiance to him and to restrain the 9th respondent from recognising the 1st respondent as the chief of Wamfie and krontihene of the Dormaa traditional area. It is obvious that the 9th respondent had been joined to enable the petitioners take their action away from that council.

This action was commenced in 1984. The relevant constitution is therefore the 1979 Constitution as saved. Article 180(2) of the constitution provides:

(a) have original jurisdiction in all matters relating to a paramount stool or the occupant of a paramount stool, including a queen-mother to a paramount a stool.”

See also section 23(1) of the Chieftaincy Act 1971 (Act 370). The reliefs sought by the petitioners have no direct reference to a paramount stool or the occupant of a paramount stool or the queen-mother stool. The only reference to the paramount stool is contained in paragraph 12 of the petitioners’ statement of the facts and particulars upon which they seek to rely for the reliefs sought. It states:

“(12) That the petitioners presented Nana Peprah (installed under the stool name of Nana Kojo Peprah) to Nana Agyemang Badu, Omanhene of Dormaa traditional area to swear the oath of allegiance to him but the Dormaahene for no reason objected to Nana Peprah’s candidature and prevented him from the swearing the oath of allegiance.”

The Omanhene is also the president of the traditional council. Though customary activities may be carried out at the council premises using some of the staff, the swearing of the oath of allegiance is purely customary and is the responsibility of the Omanhene qua Omanhene and not as the president of the council. References were made to certain letters issued from the council but the source of those letters is the Omanhene. The substance of the petitioner’s complaint is the refusal of the Omanhene to allow the 1st petitioner to swear the oath of allegation to him. The Omanhene of the traditional area may have been the proper party to the action and not the traditional council. It was therefore wrong to have joined the traditional council only to plead bias and use that as a ground for taking the matter to the regional house.

The two tribunals found that the refusal to allow an oath of allegiance to be sworn, was not “a cause or matter affecting chieftaincy” as defined by law; see section 66 of the Chieftaincy Act 1971 (Act 370). There was no dispute as to the relationship between the paramount stool and the kronti stool. It is not in dispute that once a person has been properly nominated, elected and installed as Krontihene, the oath of allegiance must be sworn to the Omanhene.

In its reasons for its ruling, the chieftaincy tribunal of the regional house said:

“A careful reading of the evidence deposed in the affidavits and other documents before the committee make clear the fact that the paramount chief of the traditional area has shown such personal interest in this matter, thus making the Dormaa Traditional Council to adjudicate on this case an outrage to justice in its ramification and its essential particulars. It would be worse than asking a man to act as the prosecutor, the investigator and the judge and it should be added, the jailor as well. From these facts, therefore, we are comfortable in our conviction that this forum and not the Dormaa Traditional Council, is the forum best suited to hear and adjudicated on this cause.”

This was not, with respect to the tribunal, a good ground for assuming jurisdiction in a matter which fell out of their province. Once the paramount stool or the occupant of the paramount stool was not made a party, the regional house had no jurisdiction in the matter. The regional house failed to determine the issue at stake. The respondents were therefore right in appealing to the National House of Chiefs for the issue to be properly determined.

The chieftaincy tribunal of the National House of Chiefs held that the refusal to allow an oath to be sworn was not a “cause or matter affecting chieftaincy.” It found that the matter as it stood was not one affecting a paramount stool or the occupant thereof; it found that the dispute related to the Kronti stool and the occupant thereof. It agreed with the respondents that the regional house of chiefs was not the proper forum for the adjudication of the dispute. Having allowed the appeal, it fell back into the same misconception as the regional house. Having adopted the opinion of the regional house’s tribunal, it added its own thus:

“…yet unlike the regional house we do not find our way clear to circumvent the law to confer jurisdiction on the regional house when such power does not exist. We however feel that to save a funny situation section 23(3) of CI 27 could be invoked… Armed with these provisions we order that the national chieftaincy tribunal do exercise full jurisdiction over the proceedings as if it were hearing the proceedings at first instance and that the case be heard by the National House of Chiefs.”

According to the tribunal, they were strengthened so to act by the provisions of article 179(5)(e) of the Constitution. Against this the respondents have appealed. The main ground of appeal is:

“Neither rule 23(3) of CI 27 nor article 179(5)(c) of the constitution entitled the chieftaincy tribunal of the National House of Chiefs to assume original jurisdiction to hear the dispute in the suit.”

As stated earlier, the preliminary objection which was before both chieftaincy tribunals (as they were referred to then under the 1979 Constitution) was whether the regional house of chiefs was competent to entertain the action. Having held that neither the paramount stool nor the occupant thereof was a party to the suit, and that the regional house had no jurisdiction, the National House of Chiefs should have directed the parties to the proper forum. However, like the regional house, the national house gave itself power to assume original jurisdiction in the matter.

This was wrong. Rule 23(3) of CI 27 relied on by the tribunal could not support the ruling. The relevant portions of this rule are:

“The judicial committee may at the hearing of the appeal …make any order necessary for determining the real issue or question in controversy between the parties and … shall have full jurisdiction over the whole proceedings as if it were hearing the proceedings at first instance or may rehear the whole or may remit it to the judicial committee below to rehear or to be otherwise dealt with as the judicial committee directs.”

The power to rehear a matter on appeal or sit on the matter as if the appellate tribunal is hearing the matter at first instance does not, in our opinion, confer a right to discard all the available evidence and start hearing the matter afresh. In Nkrumah v Ataa [1972] 2 GLR 13 at p 18 Osei-Hwere J observed:

“Whenever an appeal in said to be “by way of re-hearing “it means no more than that the appellate court is in the same position as if the rehearing were the original hearing, and hence may receive evidence in addition to that before the court below and may review the whole case and not merely the points as to which the appeal is brought, but evidence that was not given before the court below is not commonly received…”

We think this observation is a correct statement of the legal position. We would adopt it. The national house was therefore incompetent to discard the evidence and start the whole case afresh. Even if it had that power, it could only hear the matter which was before it, namely the preliminary objection. It could not go behind this issue and assume original jurisdiction in the substantive matter which had not come to it on appeal.

“(5) A national chieftaincy tribunal established under this article shall have original jurisdiction in any matter relating to chieftaincy -

(a) which lies within the competence of two or more Regional Houses of Chiefs, or

This provision presupposes that the matter is one justiciable before a regional house. In other words the matter must affect a paramount stool or the occupant of a paramount stool. It is only then that the national house can exercise original jurisdiction where for the reason set out in the article, no regional house can entertain the matter. Having held that the matter as it stood did not affect a paramount stool or the occupant, the national house could not, for any other reason, assume original jurisdiction in the matter.

It was clear from the argument of counsel for the petitioners that he was not convinced of the reasons given for their decision by the two tribunals. He has therefore applied to this court to amend the title of the case by substituting 9th respondent with the Omanhene of the traditional area or joining the latter to the action. We cannot do that. In the proceedings, the Omanhene was mentioned as having refused to allow the 1st petitioner to swear the oath of allegiance to him. It was also stated that the traditional council had written letters declaring null and void the nomination election and installation of the 1st petitioner. The acting president was also alleged to have been involved in the presentation of enstoolment form CDF 1B to the 1st respondent. It is for counsel to advice himself as to the parties his clients would want to sue and in what capacity he would want them sued.

In the opinion of the two tribunals they did not have jurisdiction; as matters stood, it was the traditional council which had jurisdiction to entertain the matter: The two tribunals assumed jurisdiction on grounds which we have found to be wrong. Accordingly, we would allow the appeal and set aside the decision of the chieftaincy tribunal of the National House of Chiefs.