Courts – Jurisdiction  – Matter affecting chieftaincy  – Action for declaration that plaintiff as clan head entitled to manage clan properties – Plaintiff’s clan headship disputed – Whether action a matter affecting chieftaincy – Whether High Court has jurisdiction - Courts Act 1971 (Act 372) ss 52 and 113  – Courts Act 1993 (Act 459) ss 57 and 117 – Courts (Amendment) Decree 1972 (NRCD 101) s 3 – Chieftaincy Act 1971 (Act 370) ss 15(1) and 66.

Practice and procedure – Certiorari – Application for, – Whether applicant may annex papers not filed in court below.

Practice and procedure – Jurisdiction – Objection to, – Procedure for raising objection to jurisdiction – Whether proper to raise objection without filing defence – High Court (Civil Procedure) Rules 1954  (LN 140A) Or 12 r 24.

On 16/11/92 the plaintiffs instituted an action in the High Court, Denu for a declaration that the 1st plaintiff was the incumbent Head i.e. Hlotator of the Anyigbe clan and therefore entitled to manage the clan properties. Plaintiffs claimed also, perpetual injunction to restrain the defendant from posing as the Head of the Anyigbe clan or dealing with the properties. The defendant entered conditional appearance and applied to strike off the writ and statement of claim on the ground that the action was a chieftaincy matter and that the court had no jurisdiction. The motion was accompanied by an affidavit to which the defendant-applicant exhibited several documents including letters, an arbitration award by the Agave Traditional Council and an extract from the Gold Coast Chiefs’ List. It was evident from those documents, the authenticity of which the plaintiffs did not dispute, that sometime in 1992 the 1st plaintiff was enstooled with the royal name “Avadali II”; that the defendant-applicant challenged the enstoolment and sent a protest letter to the Mankrado of the Agave Traditional Area; the dispute went before arbitrators who annulled the enstoolment. Notwithstanding those documents, the trial judge held that the matter was not a matter affecting chieftaincy and dismissed the application. The defendant therefore applied to the Supreme Court for an order in the nature of certiorari to quash the ruling of the High Court.

Held: (1) Under the Courts Act 1971 (Act 372) s 52 (as amended by the Courts (Amendment) Decree 1972 (NRCD 101) s 3) and also s 113, re-enacted in the Courts Act 1993 (Act 459) ss 57 and 117, the High Court did not have jurisdiction over a matter affecting chieftaincy i.e. a dispute relating to the nomination, election or installation of any person as a chief or the claim of any person to be nominated, elected or appointed as such. On the facts the plaintiffs’ claim for declaration and the other subsidiary or ancillary reliefs were matters affecting chieftaincy and the High Court lacked jurisdiction. The application would therefore be granted. Rep v Court of Appeal, ex parte Ekuntan II [1989-90] 2 GLR 169, SC, R v Northumberland Compensation Appeal Tribunal, ex parte Shaw [1952] 1 All ER 122, R v City of London Rent Tribunal, ex parte Honig [1951] 1 All ER 195, Hunt v North Staffordshire Rail Co (1857) 2 H&N 451 mentioned; Hervie v Tamakloe (1958) 3 WALR 342 distinguished.

Per Adade, Hayfron-Benjamin JJSC: Quite apart from the general law that objections to jurisdiction may be taken at any time, there are at least two ways of presenting such a situation to the court; a defendant may appear unconditionally and raise the issue of jurisdiction in his statement of defence as a defence and at the appropriate time ask the court to take that issue and try it in limine or he may file a conditional appearance and move the court to set aside the writ of summons and statement of claim. If he chooses the latter course, his reasons for contending that the court has no jurisdiction can only be stated in the affidavit accompanying the motion, since there will be no statement of defence at that stage.

Per Adade, Hayfron-Benjamin JJSC: It has been said that as these are certiorari proceedings this court can look only at the material that was put before the court below, in determining whether there was an error on the face of the record or not. In other words, record for purposes of certiorari cannot include any material which was not before the court below. In my view, the defendant was entitled, having regard to the writ of summons and statement of claim to attach to their affidavit any material which, in their view, will help them persuade the court that their protest to the jurisdiction of the court is well-founded. This material may include letters, previous decisions and awards, maps, archival material, even extracts from statutes etc.

Per Wiredu JSC contra: To avoid any doubt as to the authenticity of exhibits annexed to applications of this nature in this court such documents must be certified as forming part of the record from the trial court to ensure that the trial court is afforded an opportunity of seeing the material being presented in this court. Parties must be discouraged from annexing documents which were not made available to the trial court in such applications.

Cases referred to:

Hervie v Tamakloe (1958) 3 WALR 342.

Hunt v North Staffordshire Rly Co (1857) 2 H & N 451, Saund & M 203, 29 LTOS 204, 5 WR 731, 13 Digest (Repl) 380.

R v City of London Rent Tribunal, ex parte Honig [1951] 1 All ER 195.

R v Northumberland Compensation Appeal Tribunal, ex parte Shaw [1952] 1 All ER 122, [1952] 2 KB 338, 116 JP 54, [1952] 1 TLR 161, 96 Sol Jo 29, 50 LGR 193, 2 P & CR 361, CA.

Rep v Court of Appeal, ex parte Ekuntan II [1989-90] 2 GLR 168, SC.

Togbe Kanda v Tobge Dompre V [1978] 1 GLR 354, CA.

Wilkinson v Barking Corporation [1948] 1 KB 721, [1948] 1 All ER 564, [1948] LJR 1164, 112 JP 215, 64 TLR 230, 92 Sol Jo 205, 46 LGR 169, CA, 39 Digest (Repl) 370.

APPLICATION to the Supreme Court for an order in the nature of certiorari to quash the ruling of the High Court.

Eric Homadi, with him F A Bekoe and S M Akron, for the applicant.

S A X Tsegah for the respondents.

ADADE JSC. On 16/11/92, an action was commenced in the High Court, Denu, titled as follows:

“(1) Hlotator Adigbli Avadali II of Afegame, Head of Anyigbe Clan/Family     (2) Togbe Awafiaga Abordor VII, Principal Member of Anyigbe Clan and Divisional Chief of Anyigbe Afegame versus	Plaintiffs
Togbe Lugu Avadali IV, alias Awafia Lugu Ahiaku, Sub-chief of Anyigbe Afevime Adutor	Defendant”

By their writ of summons, the plaintiffs sought three reliefs:

“(a) A declaration that 1st plaintiff is the present Head/Hlotator of the whole Anyigbe Clan/Family comprising Anyigbe Afegame, Anyigbe Afevime and Agbofeme of Anyigbe Clan and is entitled to manage all the lands and other properties of the Anyigbe Clan/Family.

(b) Perpetual and prohibitive injunction restraining the defendant from posing or claiming to be the Head/Hlotator of the Anyigbe Clan and dealing with the properties of the clan in the said false capacity.

(c) General damages suffered by plaintiffs as a result of the false claims of defendant as Head/Hlotator of the whole Anyigbe Clan.”

The writ was accompanied by a statement of claim running into 15 paragraphs.

On receiving the writ and the statement of claim the defendant, by his solicitor, entered a conditional appearance, and then moved the court “to strike off the writ of summons and the statement of claim” on the ground, as stated in paragraph 4 of his affidavit of 7/12/92:

“that though the action has been cleverly couched in words to sound like a land case, it is not a land case. The action is purely a chieftaincy matter and this Honourable Court has no jurisdiction to entertain it.”

After hearing arguments on the motion, the Denu High Court, presided over by O K Sampson J, on 26/2/93 decided that the matter before him was not a cause or matter affecting chieftaincy, and accordingly the High Court had jurisdiction to hear it. He dismissed the motion.

From this ruling the defendant has applied to this court for an order of certiorari to bring up and quash the said decision of 26/2/93.

May I, at the outset, make a comment on an issue which was drawn across the trail in these proceedings. In the court below, counsel for the plaintiffs-respondents made the point several times over that, not having filed a statement of defence, it was not open to the defendant-applicant to make use and or take advantage of the contents of any of the several exhibits which he attached to his affidavit in support of the application both in the court below and in this court; and further that in the absence of a statement of defence he could not be heard on a motion to set aside the writ and the statement of claim. These notions appeared to have found favour in some quarters when the matter came up for hearing in this court.

In other words, upon entering  conditional appearance a defendant must first file a defence pleading the facts on which he intends to rely before he can properly move the court to set aside the writ.

No authority was cited for this interesting proposition, and I do not know of any. Speaking for myself, I have no hesitation in pronouncing this contention completely erroneous.

Order 12 r 24 of the High Court (Civil Procedure) Rules 1954 (LN 140A) which regulates the filing of a conditional appearance (at times referred to as “appearance under protest”) contains no such requirement.

Order 12 rule 24 states:

“24. A defendant before appearing shall be at liberty, without obtaining an order to enter or entering a conditional appearance, to take out a summons or serve notice of motion to set aside the service upon him of the writ, or of notice of the writ, or to discharge the order authorising such service.”

The note on this rule in the Annual Practice, 1956 ed p 114 says:

“The term ‘conditional appearance’ means an appearance in qualified terms, reserving to the appearing defendant the right to apply to the Court to set aside the writ, or service thereof, for an alleged informality or irregularity which renders either the writ or a service invalid, or for lack of jurisdiction. There is no real distinction between ‘conditional appearance’ and ‘appearance under protest’. The latter term is more usually applied to an appearance by a person served as a partner... but who denies that he is a partner...”

The whole purpose of a conditional appearance is to stop the case in its tracks; stop it from being gone into at all, on this occasion, for the reason that the court has no jurisdiction to hear it.

Quite apart from the general law that objections to jurisdiction may be taken at any time, there are at least two ways of presenting such a situation to the court; a defendant may appear unconditionally, and raise the issue of jurisdiction in his statement of defence, as a defence, and, at the appropriate time, ask the court, if so advised, to take that issue and try it in limine: Wilkinson v Barking Corporation [1948] 1KB 721 (holding 1 and at p 725); or he may file a conditional appearance and move the court to set aside the writ of summons and statement of claim.

If he chooses the latter course, his reasons for contending that the court has no jurisdiction can only be stated in the affidavit accompanying the motion, since there will be no statement of defence at that stage. The issue of a statement of defence will arise only after the motion to set aside has been dismissed and the conditional appearance treated as an unconditional appearance. It cannot be right to contend that having filed a conditional appearance the defendant must raise their grounds of objection in a statement of defence.

Of course, it is perfectly open to the plaintiff to argue that the reasons stated in the defendant’s affidavit are not sufficient to establish that the court has no jurisdiction. But that is a different proposition from saying that the defendant ought to have filed a statement of defence first.

The question for this court to decide therefore is whether, on the face of the record, the plaintiffs’ case is one properly cognisable by the High Court, i.e. whether it is a cause or matter affecting chieftaincy or not. The defendant says “yes”, the plaintiffs say “no”.

The motion in the High Court was filed on 7/12/92. That motion was accompanied by an affidavit to which was exhibited a number of documents, exhibits A - E. Exhibits A, B and C were letters; exhibit D was an arbitration award given by the Agave Traditional Council and exhibit E was an extract from the Gold Coast Chiefs’ List 1934/35. The writ of summons and the statement of claim were already on the court’s docket, and before the learned judge.

On 4/1/93 the plaintiffs filed an affidavit in opposition to the motion. That affidavit denied generally that the suit was a chieftaincy matter as alleged, and then contended:

“12. That I deny all the paragraphs of the affidavit in support of this frivolous application and state that the defendant is not permitted at this stage of the trial to raise evidence by affidavit to deny the averments in our statement of claim.

13. That the trial of this case is by pleadings and the defendant is not permitted to exhibit useless letters and document to show that the court has no jurisdiction to entertain this case.

18. That all the matters stated in the affidavit of the defendant and the exhibits attached are matters which could only be considered if pleaded in the statement of defence by the defendant.” (Emphasis supplied.)

Having adopted this attitude, the plaintiffs decided to have nothing to do with the “useless letters and documents” exhibited by the defendant, thus denying themselves the opportunity to challenge or impugn any of those “ useless letters and documents”.

In this, I think the plaintiffs were wrong. The defendant was entitled, having regard to the writ of summons and statement of claim, to attach to their affidavit any material which, in their view, would help them persuade the court that their protest to the jurisdiction of the court was well founded. Such material might include letters, previous decisions and awards, maps, archival material, even extracts from statutes, etc. It was for the court to decide whether to terminate the proceedings at that stage, or dismiss the motion, and allow the case to take its normal course.

On this occasion, the High Court had before it, in particular, the writ of summons and exhibit D, the arbitration award attached to defendant’s affidavit. The first claim of the plaintiffs was for:

 “A declaration that 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.”

The second limb of the claim is dependent entirely on the first. Therefore the substantive claim is the declaratory one, viz. that 1st plaintiff is the Head/Hlotator. By linking Head and Hlotator with a mere stroke, I form the impression that in the view of the plaintiffs, the two terms mean the same thing, so that even where, on some rare occasions, they write “Hlotator or Head” as in paragraph 5 of the statement of claim, they still mean “Hlotator/Head” or “Head/Hlotator”.

The issue 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.

The defendant says in paragraph 6 of his affidavit:

 “6. That it was in or about August 1992 when my attention was drawn to the fact that one Kumah Akorli Aforkpa who is the 1st plaintiff herein was enstooled with my royal name “Avadali”.

This averment was not denied specifically by the plaintiffs, save the general traverse contained in paragraph 12 of their affidavit, already quoted. I take it therefore that the 1st plaintiff admits that he is otherwise known and called Kumah Akorli Aforkpa.

Exhibit D in the High Court, is a record of arbitration proceedings held by the Agave Traditional Council at Dabala on 30/8/92. The panel comprised six chiefs, viz: Togbe Vigbedor Agah V, Right Wing Chief and Acting Paramount Chief of Agave, Togbe Boatri V, Central Wing Chief of Agave, Regent Aguadze II, Divisional Chief of Agave, Togbe Adusu V, Gyasehene of Agave, Togbe Adzomani IV, Atamukafia of Agave and Togbe Amusu IV, Left Wing Chief of Agave.

Paragraph 4 of the proceedings states:

 “Quite apart from the six chiefs named above who presided over the arbitration, the following people were also present: Stool father Agbogah Degenu, Dzamesi Egblor Hodanu, Adigbli Adonu, Ketokpoe Yormesro, Atsu Aguzey, Okyeame Okumi, E W K Aklorbortu, Mark Abotchie, Robert Awuku Dey, John Vigbedor, L  S Adjin, Togbe Amemornu II and Mama Amenyenu I.”

The arbitration was to investigate a complaint by Togbe Lugu Avadali IV, the defendant-applicant herein, against Togbe Adzove VI for, purportedly with others, enstooling Kumah Akorli Aforkpa, the 1st plaintiff-respondent herein, and giving him the royal name “Avadali II”.

After due enquiry, the arbitrators found as follows:

“(1) That the introduction and acceptance of Kuma Akorli Aforkpa as the Head (Tator or Hlotator) of Anyigbe Clan is null and void since Togbe Adzove VI has no legal or customary right to accept and give recognition to a newly enstooled chief of Agave without the consent and concurrence of the other chiefs of this arbitration panel.

(2) That the purported enstoolment of Kuma Akorli Aforkpa was null and void ab initio since there is already an accredited and well recognised name Avadali IV of the Anyigbe Clan of Agave in the person of Togbe Lugu Avadali IV.

(3) That in the absence of Awormefia, the proper body to accept and give recognition to a newly enstooled chief should be Togbe Adzove VI together with the chiefs of this arbitration panel.

(4) That a copy of this judgment is ordered to be served on Kuma Aforkpa for him to comply by not pretending to be a chief to avoid embarrassment to himself.” (Emphasis supplied.)

It is plain to me from this decision that:

(i) The Head (Tator or Hlotator) of Anyigbe Clan is an “enstooled chief” (Holding 1);

(ii) That what was being declared null and void in holding (2) was the “purported enstoolment of Kuma Akorli Aforkpa” as a chief/Hlotator; and following from this,

 (iii) That in both holdings (3) and (4) the word “chief” may legitimately be conjoined with “Hlotator”, and written “chief/Hlotator”, implying that the term “Head/Hlotator” in the plaintiffs’ writ may equally be rendered “Head/Hlotator/Chief”.

I must caution that in the above observations I am not concerned with whether the arbitration was proper or improper, binding or not binding, nor even whether the findings were justified or not justified. I am using the document only as an aid to finding out what Hlotator means among the Anyigbe people; so that even if all the names of the parties were changed or scratched from exhibit D, we shall still be left with the pronouncement by the Agave Chiefs and people that a Hlotator is a chief. A claim to be declared a Hlotator is therefore a claim to be declared a chief.

The plaintiff’s substantive claim then reduces itself to:

 “A declaration that 1st plaintiff is the present Head/Hlotator/Chief of the whole Anyigbe Clan.”

If such a claim is not a chieftaincy matter, I do not know what else is. The High Court was obviously wrong in coming to a contrary conclusion.

In this court, in addition to the record coming from below, the defendant-applicant has filed an entirely fresh exhibit, also marked exhibit E. This is an extract from a published History of Agave. It states at the foot of the title page: “Published by the Agave Traditional Council, Dabala, Volta Region”.

This is a book on the subject of the history of the peoples of a particular area, published by the traditional authority responsible for that particular area. If any one is expected to know this history, it must be this authority, in particular, as regards the significance of terms and titles used by or attaching to traditional personages. Any court will readily accept the Agave Traditional Council as an authority in this field, and in the absence of any material to the contrary I am prepared to take judicial notice of that fact.

At p 37 of the book we read:

 “Each of the clans is headed by an appointed ‘Hlotator’ or ’Tator’ for short. His status in the entire Agave traditional political set-up is ‘Tefia’  or ‘Sub-chief’.” (Emphasis supplied.)

So we know also from this book that Hlotator is a chiefly status.

It has been said that as these are certiorari proceedings this court can look only at the material that was put before the court below, in determining whether there was an error on the face of the record or not. In other words, record for purposes of certiorari cannot include any material which was not before the court below. Accordingly this court cannot use exhibit E, the History of Agave to fault the High Court, since that exhibit, as it were, came into being after the decision of the High Court. It was not before the learned judge.

Without seeking to discuss this query, which obviously may be of some significance in some other cases, I wish only to comment briefly as follows: (1) I have not used exhibit E to arrive at my conclusion. I have relied on the material that was before the High Court, in particular exhibit D, the arbitration proceedings and (2) exhibit E, The History of Agave, a published work.

A court is not precluded from seeking help from any published work. The applicant did not need to file this published work; he could have brought the book along with him to court and referred to it in his argument or, as is the practice in this court, filed the title and the page, along with his list of cases. Indeed, if there were a dictionary of terms, he could simply have read the definition from the dictionary in open court.

On this occasion he took the trouble to file the back sheet containing the title of the exhibit, and a photostat of the relevant page on which he was relying. It was for the plaintiffs, having seen this, to produce other material or authority, be it books, dictionaries, statutes, etc to counter the statements in the exhibit. They produced none, either because there indeed is none or, as is more probable, they regarded the exhibit as “useless”.

For, consistently with the attitude they adopted in the High Court, they charge in paragraph 12 of their affidavit in this court too:

 “That the applicant filed no defence to our claim but exhibits letters, the judgment of the Agave Traditional Council, which he did not plead at all, excerpts from history books and other documents to his affidavit accompanying his motion and called upon the court to infer from the said unpleaded documents and judgments that the case is a chieftaincy case.”

It is to be regretted that by taking this line the plaintiffs threw away the opportunity to produce any material to challenge the defendant in any meaningful way; they must have themselves to blame.

As I see it on the face of the record, the matter before the High Court was a chieftaincy matter. The High Court cannot declare the 1st plaintiff a Hlotator or chief; it has no jurisdiction to do so, and it must decline jurisdiction. I will grant the application.

ABBAN JSC. The applicant is a defendant in suit No 4/92 now pending before the High Court, Denu. The suit is entitled:

“1. Hlotator Adigbli Avadali II of Afegame Head of Anyigbe Clan/Family.

2. Togbe Awafiaga Abordor VII, Principlal Member of Anyigbe Clan and Divisional Chief of Anyigbe Afegame

versus

Togbe Lugu Avadali IV alias Awafia Lugu Ahiaku Sub-Chief of Anyibge Afevime Adutor.”

The respondents herein are the plaintiffs in the said suit.

When the writ of summons, accompanied by the statement of claim, was served on the defendant-applicant, he entered conditional appearance on 23 November 1992. He subsequently filed a motion to set aside the writ of summons and to strike out that statement of claim under Order 12 rule 24.

The applicant’s main grounds were that the declaration being sought by the first plaintiff-respondent that he was the present Head/Hlotator (or Tator) of the whole Anyigbe Clan was “a cause or matter affecting chieftaincy” because the office of Hlotator, meaning Head of Clan was a chiefly office”; so the High Court had no jurisdiction to entertain the action.

The motion was resisted by the respondents and on 26 February 1993 the High Court, in its considered ruling, dismissed the motion holding, inter alia, that “the respondents’ claim does not relate to any of the matters as defined under section 66 of Act 370… I am satisfied that the reliefs being sought by the respondents in this case do not affect a ‘cause or matter affecting chieftaincy’ as defined by sections 36 and 66 of Act 370… This court therefore has jurisdiction to entertain the action”.

The applicant in this court prayed for an order in the nature of a writ of certiorari to remove the proceedings and the ruling of the Denu High Court to the Supreme Court for the purpose of quashing them.

The applicant gave details of his grounds and set them out as if they were meant to be grounds of appeal; that is, they were framed as if the ruling of the High Court was being appealed against: see the motion paper. But I took it that the applicant’s contention was

 that there was an error on the face of the proceedings and that those grounds were his reasons for so contending.

In this court counsel for the parties virtually rehashed their arguments which they presented before the Denu High Court. But it seemed that before this court the applicant filed a more detailed supporting affidavit and he also relied extensively on the exhibits attached to his affidavit to press home the point that the claims before the High Court would involve the resolution of chieftaincy matters.

What were the claims which the respondents endorsed on their writ of summons? I will quote them verbatim:

“ The plaintiff claims:

(a) A declaration that the 1st plaintiff is the present Head/Hlotator of the whole Anyigbe Clan/Family comprising Anyigbe Afegame, Anyigbe Afevime and Agbofeme of Anyigbe Clan and is entitled to manage all the lands and other properties of Anyigbe Clan/Family.

(b) Perpetual and prohibitive injunction restraining defendant from posing or claiming to be Head/Hlotator of the Anyigbe clan and dealing with the properties of the Anyigbe clan in the said false capacity.

 (c) General damages suffered by the plaintiffs as a result of the false claims of the defendant as Head/Hlotator of the whole Anyigbe Clan.”

It was obvious that in relief (a) above the first plaintiff wanted the High Court to declare him Hlotator of the whole Anyigbe clan. In relief (b) the plaintiffs wanted the High Court to make an order to restrain the defendant from using the title Hlotator and from managing the Anyigbe clan lands in his false capacity as Hlotator. In relief (c) the plaintiffs were contending that they had suffered some damages because of the defendant’s conduct of falsely masquerading as Hlotator and so the court should award damages against him.

However, in the accompanying statement of claim the plaintiffs gave brief facts about the whole Anyigbe clan and concluded in paragraphs 10, 11, 12 and 13 as follows:

10. Plaintiffs aver that defendant embarked on various subversive acts in order to create trouble and confusion within the whole Anyigbe clan.

11. Plaintiffs aver that defendant summoned a meeting at Dabala as Head of the Anyigbe clan and labelled the said meeting, Anyigbe Clan Committee of Agave and arrogated to himself the title of Chairman at the said meeting without the

 authority of plaintiffs and other principal members of the Anyigbe clan/family.

12. Defendant also started granting Anyigbe clan/family lands at various places as Head of Anyigbe clan without the leave and licence of plaintiffs and other principal members of the Anyigbe clan/family.

13. Notwithstanding repeated warnings, defendant persisted in his false claim to the Headship of the whole Anyigbe clan.

Learned counsel for the respondents did not think that a dispute of this kind concerning family lands should be thrown out of the High Court simply because the headship of a family was in issue. Counsel submitted that the first plaintiff sued as a principal member and a chief and the High Court had jurisdiction to determine headship of a family if the question arose in a land case of this nature. Counsel also contended that the headship of the Anyigbe clan never had chiefly status.

The applicant on the other hand argued that the very first issue to determine was the capacity of the plaintiffs i.e. to determine whether the respondents possessed the capacities in which they brought the action. This would lead to probing into chieftaincy matters of Agave because “the office of Hlotator, meaning Head of a clan, was a chiefly office and the court by probing in order to decide whether or not the first plaintiff is Hlotator would be exercising jurisdiction in chieftaincy affairs”.

The whole issue as I see it, depends upon whether the office of Hlotator is equivalent to that of a chief and if it is, then the High Court had no jurisdiction to make the declarations which the plaintiffs have spelt out in their writ of summons.

The statute which was in operation at the time the applicant filed his motion was the Courts Act 1971 (Act 372). Section 52 of the Act, as amended by the Courts (Amendment) Decree 1972 (NRCD 101), provided that:

“Notwithstanding anything to the contrary in this Act or any other enactment the High Court, a Circuit Court and a District Court shall not have jurisdiction to entertain either at first instance or on appeal any cause or matter affecting chieftaincy.”

Section 113(1) of that Act defined “cause or matter affecting chieftaincy” as “any cause or 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 a Chief”.

For this particular case, I do not think the definitions given by the Act in section 113 (b), (c), (d) and (e) are relevant. These provisions have been re-enacted in the Courts Act 1993 (Act 459), sections 57 and 117.

Provisions to the same effect have been made in sections 15 (1) and 66 of the Chieftaincy Act 1971 (Act 370).

I must remark that although learned counsel for the respondents was not happy about the manner in which the applicant exhibited all kinds of documents in this matter, he did not really challenge or dispute the authenticity of those exhibits. Those exhibits included various correspondence, exhibits A, B and C, which had been exchanged between solicitors of the parties a few months before the suit was launched in the High Court.

Those letters were very revealing and threw more light on the issue at stake. For they showed that about August 1992, the first plaintiff-respondent was supposed to have been enstooled with the royal name “Avadali II”. This was quickly challenged by the applicant who caused a protest letter to be written by his solicitor to the first plaintiff-respondent and one Togbe Adzove VI, Mankralo of Agave Traditional Area who had given recognition to the first plaintiff-respondent’s enstoolment.

The dispute eventually went before arbitrators who found Togbe Adzove VI liable. The arbitrators also annulled the purported enstoolment of Kuma Akorli Aforkpa, that is, the first plaintiff-respondent and held that “the proper body to accept and give recognition to a newly enstooled chief shall be the Togbe Adzove together with the chiefs of this arbitration panel”. See exhibit D.

This exhibit was signed by all the arbitrators composed of Right Wing Chief and Acting paramount chief of Agave, Central Wing Chief, Left Wing Chief, Gyasehene, a Divisional Chief and Atamukafia all of Agave.

It can therefore be seen that all the events which preceded the filing of the writ of summons centred around the disputed enstoolment of the first plaintiff-respondent as Hlotator with the title of Avadali II, a clear indication that the office of Hlotator in the Agave political set-up is recognised as a chiefly status.

It therefore seemed that it was his attempt to get recognition for this status that the first plaintiff-respondent sought the declaration in relief (a) of the writ of summons.

Again, there is no doubt, having regard to all those exhibits, that “Avadali” is also a recognised royal title given to an occupant of a stool after that occupant has been properly enstooled as a chief. Incidentally the first plaintiff-respondent in the title of the suit styled himself as Avadali II.

In the circumstances it is not difficult to conclude that, the first plaintiff-respondent in the writ of summons was seeking a declaration as to a chiefly status and, that being the case, he would be obliged to prove that he was properly nominated or appointed and duly installed as such.

Another exhibit of importance is exhibit E, which is an extract from the Gold Coast Chiefs’ List 1934-1935. This exhibit was obtained from the National Archives and, attached to it is a certificate of authentication signed by the Director of Archives. Included in this exhibit, E, is a document entitled: The History of Agave published by Agave Traditional Council. Of course, there is

no dispute that Anyigbe clan is within the territorial limits of Agave Traditional Area.

This exhibit also revealed in no uncertain terms that “Hlotator” is not a mere head of family as contended by the respondents but a sub-chief. The relevant passage from exhibit E is as follows:

“Appendix A.

The clans of Agave

1. The 15 clans.

The indigenous population of Agave is composed of various clans, each of which is a collection of families supposed to have a common ancestor… Each of the clans is headed by an appointed “Hlotator” or “Tator” for short. His status in the entire Agave Traditional political set-up is “Tefia” or “Sub-chief.” (Emphasis supplied.)

In other words any person designated as Hlotator has the status of Tefia or a sub-chief.

In my opinion, this is really the decisive answer to the respondents’ argument that Hlotator is just an ordinary head of family as is understood in Akan community.

Thus, as I have already stated, the High Court is precluded from trying the issue or the dispute as to whether or not the first plaintiff-respondent had been properly nominated, elected and installed as Hlotator, or as a sub-chief. To do so the court would be entertaining at first instance “a cause or matter affecting chieftaincy”.

As I said the jurisdiction of the High Court was completely ousted by section 52 of the Courts Act 1971 (Act 372) now re-enacted in section 57 of the Courts Act 1993 (Act 459). In fine, want of jurisdiction of the High Court, Denu in the matter is apparent on the face of the proceedings. The only body which is competent to make the declarations sought in the writ is the traditional council of the area.

It must also be observed that the other claims in the summons were subsidiary or ancillary reliefs, and they depended on the status for which the plaintiffs sought declaration.

In my view the applicant has shown or given sufficient grounds or satisfactory reasons why the writ should be granted.

Accordingly an order in the nature of certiorari ought to issue to bring up to be quashed the proceedings in suit No L4/92 together with the ruling of the High Court dated 26 February 1993.

AMUA-SEKYI JSC. On 24 September 1992 the Agave Traditional Council gave their decision in certain proceedings described as an arbitration. The parties to the dispute were the present applicant, Togbe Lugu Avadali IV and Togbe Adzove VI. The decision was that Togbe Adzove VI had no right to recognise Kuma Akorli Aforkpa as Hlotator or Head of the Anyigbe Clan without the consent of the Council.

The arbitrators proceeded to pronounce the purported enstoolment of Aforkpa as Hlotator under the name Adigbli Avadali II as null and void. On 16 November 1992 Aforkpa took out a writ in the High Court, Denu against the applicant claiming the following reliefs:

(a) A declaration that 1st plaintiff is the present Head/Hlotator of the whole Anyigbe clan/family comprising Anyigbe Afegame, Anyigbe Afevime and Agbofeme of Anyigbe clan and is entitled to manage all the lands and other properties of the Anyigbe clan/family;

 (b) Perpetual and prohibitive injunction restraining the defendant from posing or claiming to be the Head/Hlotator of the Anyigbe clan and dealing with the properties of the Anyigbe clan in the said false capacity.

 (c) General damages suffered by plaintiffs as a result of the false claims of the defendant as Head/Hlotator of the whole Anyigbe clan.

Upon objection being taken that the suit before the court was a cause or matter affecting chieftaincy, which the High Court had no jurisdiction to try, the court, presided over by Sampson J, held that the dispute was over the headship of a family and was not a chieftaincy suit. The question is whether he was right.

The matter seems plain enough. Exhibit E which is published by the Agave Traditional Council, gives the history of the Agave people. It states in part:

 “The indigenous population of Agave is composed of various clans (hlowo), each of which is a collection of families supposed to have a common ancestor… Each of the clans is headed by an appointed “Hlotator” or “Tator” for short. His status in the entire Agave traditional political set-up is “Tefia” or “Sub-chief”.

Furthermore, the findings of the arbitrators show that they had no doubt in their minds that they were dealing with a chieftaincy dispute. The findings are:

(1) That the introduction and acceptance of Kuma Akorli Aforkpa as the Head (Tator or Hlotator) of Anyigbe Clan is null and void since Togbe Adzove VI has no legal or customary right to accept and give recognition to a newly enstooled chief of Agave without the concurrence of the other chiefs of this arbitration panel.

(2) That the purported enstoolment of Kuma Akorli Aforkpa was null and void ab initio since there is already an accredited and well recognised name Avadali IV of the Anyigbe Clan of Agave in the person of Togbe Lugu Avadali IV.

(3) That in the absence of Awormefia, the proper body to accept and give recognition to a newly enstooled chief should be Togbe Adzove VI together with the chiefs of this arbitration panel.

 (4) That a copy of this judgement is ordered to be served on Kuma Akorli Aforkpa for him to comply by not pretending to be a chief to avoid embarrassment to himself.

However, since Aforkpa persists in the views that the position of Hlotator is not that of a chief, but that of a head of family, it is necessary to examine the relevant statutes to see if he is right.

Exhibit B is the statement of claim filed by counsel in the High Court on behalf of Aforkpa. In paragraphs 1- 6 he averred as follows:

(1) 1st plaintiff who hails from Anyigbe Afegame is the present Head of the whole Anyigbe clan/family.

(2) The whole Anyigbe clan comprises Anyigbe Afegame, Anyigbe Afevime and Anyigbe Agbofeme.

(3) 2nd plaintiff is the Divisional Chief of the whole Anyigbe clan and a principal member of the Anyigbe clan/family.

(4) Defendant is a member of the Gakpetor family of the Anyigbe Afevime and is not a member of the plaintiffs’ Avadali family.

 (5) The great grandfather of plaintiffs called Avadali was the founder of all Anyigbe lands and was the Hlotator/or Head of the whole Anyigbe clan.

(6) By custom and tradition of the Anyigbe clan the stool father of the whole Anyigbe clan is always elected from Anyigbe Afegame section of the Anyigbe clan and is also the Hlotator/Head of the whole Anyigbe clan.

From the pleadings, therefore, it can be seen that the Anyigbe clan is divided into at least three sections each comprising a number of families. Although the members of the clan claim a common ancestry, rather like the Akan ebusua, they do not belong to the same family.

The position of the Hlotator or Head of clan is therefore more akin to that of a chief than to that of a head of family. Consequently, the case of Hervie v Tamakloe (1958) 3 WALR 342 on which counsel relied had no application.

On the writ Aforkpa linked his claim to be Hlotator or Head of the Anyigbe clan to a right to exercise control over the lands of the clan.

In section 14 of the Stool Lands Boundaries Settlement Decree 1973 (NRCD 172) the word “stool” is defined as including “a Skin and the person or body of persons having control over stool land” and “stool land” as including “any land or interest in, or right over, any land controlled by a Stool or Skin, the head of a particular community or the captain of a company for the benefit of the subjects of that Stool or the members of that community or company”.

The Administration of Lands Act 1962 (Act 123) s 31 is even more specific. It defines “stool land” as including “land controlled by any person for the benefit of the subjects or members of a Stool, clan, company or community, as the case may be” and “stool” as the person exercising such control.

If there were any doubts that clan lands of the Ewe-speaking people are stool lands and those controlling them chiefs, those doubts were removed by the decision of the Court of Appeal in Togbe Kanda v Togbe Dompre V  [1978] 1 GLR 354.

I am satisfied that the lands of the Anyigbe clan are stool lands and that the claim of Aforkpa to be Hlotator or Head of the clan is one that he had been nominated, elected, appointed or installed as a chief. It follows that the suit now before the High Court, Denu is a cause or matter affecting chieftaincy, which the court has no jurisdiction to try. Accordingly, the proceedings so far taken therein are null and void and ought to be set aside.

WIREDU JSC. After giving a careful consideration and thought to this matter, I am satisfied that the view that the High Court does not have jurisdiction in chieftaincy matters is not disputed.

In fact the history of the jurisdiction in chieftaincy matters shows that it has been the exclusive preserve of the traditional courts i.e. the judicial committees of the traditional councils, regional and national houses of chiefs, to the exclusion of the hierarchy of the judiciary, save the Supreme Court, which under the constitution, has the final say in chieftaincy matters on appeal, by leave of the National House of Chiefs or the court itself.

The above jurisdiction has been preserved under the 1992 Constitution to the exclusion of the judiciary, save as stated above. The original civil jurisdiction of the High Court is subject to the 1992 Constitution, article 11(4) which preserves chieftaincy matters under the existing law to the chieftaincy tribunals. See article 140(5) of the 1992 Constitution and the Courts Act 1971, section 52, the law existing immediately before the coming into force of the 1992 Constitution.

After a careful consideration, I have come to the conclusion, though not without some difficulty, that on the particular facts of this case, the title “Hlotator” claimed in the respondents writ, on the available documents before the court is a chieftaincy title within the exclusive jurisdiction of the chieftaincy tribunals so to declare. The High Court therefore, in my view, has no jurisdiction to make any such declaration. Relief (a) sought by the first respondent to be declared “Hlotator” by the High Court is misconceived.

For the above reasons, I am also of the view that the application ought to succeed.

I will, before ending, comment on the absence of an accepted and proper procedure in our Rules for invoking the supervisory jurisdiction of this court.

I am of the view that to avoid any doubt as to the authenticity of exhibits annexed to applications of this nature, such documents must be certified as forming part of the record from the trial court to ensure that the court was afforded the opportunity of seeing the material being presented before this court. Parties should be discouraged from annexing documents which were not made available to the trial court in such applications.

BAMFORD-ADDO JSC. This is an application for an order in the nature of certiorari for the purpose of bringing up to be quashed the ruling of the High Court Denu, dated 26 February 1993 in the case entitled:

1. Hlotator Adigbli Avadali II

2. Togbe Awafiaga Abordor VII                                           Plaintiffs

versus

Togbe Awafiaga Avadali IV                                              Defendant.

The main grounds for applying for certiorari are that:

(1) The learned judge erred in holding that the relief before the court was a land case simpliciter and not a cause or matter affecting chieftaincy;

(2) The learned judge failed to find out the meaning of the word “Hlotator” and his status in the entire Agave traditional and political set-up.

The facts of the case are that on 16 November 1992 a writ of summons and statement of claim were filed by the plaintiffs-respondents claiming the following reliefs against the defendant:

(a) Declaration that 1st plaintiff is the present Head/Hlotator of the whole Anyigbe clan family comprising Anyigbe Afegame, Anyigbe Afevime and Agbofeme of Anyigbe clan and is entitled to manage all the lands and other properties of the Anyigbe clan/family.

b) Perpetual and prohibitive injunction restraining the defendant from posing or claiming to be the Head/Hlotator of the Anyigbe clan and dealing with the properties of the Anyigbe clan in the said false capacity.

(c) General damages suffered by the plaintiffs as a result of the false claims of the defendant as Head/Hlotator of the Anyigbe clan.

When the writ of summons and statement of claim were served on applicant, he entered a conditional appearance on 23 November 1992, and followed it up with a motion on notice to set aside the writ, under Order 12 rule 24, on the ground that the respondents’

 action was purely a chieftaincy matter and the High Court had no jurisdiction to entertain such a case. This application was supported by affidavit and other documents mentioned therein.

The respondents stated in their affidavit in opposition that they were not claiming reliefs under the Chieftaincy Act 1971 (Act 370) and that therefore the court had jurisdiction to hear the case which, according to them, was clearly a land case not a chieftaincy matter.

The respondents however did not deny or challenge any of the matters set out in the applicant’s affidavit which sought to show that a “Hlotator” was a sub-chief in the Agave Traditional Area. This fact was stated in exhibit  E namely, The Traditional History of Agave, attached to applicant’s affidavit, the relevant portion of which stated:

 “Each of the clans is headed by an appointed “Hlotator” or “Tator” for short. His status in the Agave traditional political set-up is “Tefia” or “Sub-Chief.”

Exhibit D is also the judgment of Agave Traditional Council dated 24 September 1992 which dealt with a dispute between 1st plaintiff and defendant i.e. applicant herein, concerning the enstoolment of the 1st plaintiff as “Hlotator of Anyigbe Clan”.

The arbitrators held as follows:

 “(1) That the introduction and acceptance of Kuma Akorli Aforkpa as Head (Tator or Hlotator) of Anyigbe Clan is null and void since Togbe Adzove VI has no legal or customary right to accept and give recognition to a newly enstooled Chief of Agave without the consent and concurrence of the other chiefs of this arbitration panel.

(2) That the purported enstoolment of Kuma Akorli Aforkpa was null and void ab initio since there is already an accredited and well recognised name Avadali IV of the Anyigbe Clan of Agave in the person of Togbe Lugu Avadali IV.

(3) That in the absence of Awormefia, the proper body to accept and give recognition to a newly enstooled chief should be Togbe Adzove VI together with the chiefs of this arbitration panel.

(4) Copy of this judgment is ordered to be served on Kuma Akorli Aforkpa for him to comply by not pretending to be a chief to avoid embarrassment to himself.”

Both exhibit D and E clearly show the status of Hlotator is a sub-chief. It was after the judgment of the arbitration of the Agave Traditional Council that the plaintiffs issued the writ against the applicant on 16 November 1992.

The respondents’ affidavit in opposition to applicant’s affidavit supporting the motion to set aside the writ of summons, did not challenge the truth of the matters alleged therein, namely, the status of Hlotator as a sub-chief, but it merely stated in paras 4, 8, 9, and 14 as follows:

“4. The plaintiffs are not claiming any relief under the Chieftaincy Act 1971 (Act 370).

8. That I am advised and verily believe that the reliefs which we claim have nothing to do with chieftaincy.

9. That our 1st claim for Headship of the clan/family and declaration that I am the proper person to manage all the lands of Anyigbe clan/family as Head or Hlotator of the Anyigbe clan has nothing to do with chieftaincy which could be tried by the traditional, regional or national house of chiefs.

14 That in paragraph 2 of the supporting affidavit the defendant is claiming the Headship of the Anyigbe Clan which 1st plaintiff is also claiming.”

If, as alleged by applicant and supported by exhibits D and E, the Head/Hlotator’s status is that of a sub-chief, who as such, becomes entitled to deal with clan lands, then this case, as I understand the claim, is not only a land case but involves a cause affecting chieftaincy. This is so because to succeed in his claim the respondent must also prove that he is the Hlotator which office is that of a sub-chief.

Indeed in respondent’s own statement of claim para 6 it is stated:

“ By custom and tradition of the Anyigbe clan the Stool Father of the whole of Anyigbe clan is always elected from Anyigbe Afegame section of the Anyigbe clan and is also the Hlotator/Head of the whole Anyigbe clan.”

The respondents’ then claimed in para 8 that the 1st plaintiff is now the Head/Hlotator of the Anyigbe clan, succeeding his late uncle Hlotator Henu Anyigbe. The respondents’ statement of claim establishes in my view, the actual status of a Hlotator/Head of the Anyigbe clan, which tends to support the applicant’s claim that Hlotator is a sub-chief.

To prove that he is a sub-chief or Hlotator the 1st respondents would be required to call as witnesses the kingmakers to prove that he was the proper person to be nominated, elected, and installed as a chief and this would take the case into the realms of a chieftaincy matter as defined by section 66 of the Chieftaincy Act 1971 (Act 370). In such a case the jurisdiction of the High Court would be ousted by virtue of section 52 of the Courts Act 1971 (Act 370).

In Rep v Court of Appeal, ex parte Ekuntan II [1989-90] 2 GLR 168 SC, on the application to quash the decision of the High Court and the Court of Appeal on the ground that the plaintiff’s suit was in respect of a cause or matter affecting chieftaincy and therefore the courts lacked jurisdiction to hear the case, the Supreme Court held, granting the application thus in the headnote:

“Even though in the instant case there was no dispute concerning the nomination, election or installation of the applicant as chief of Dwomo, the attempted recovery of the stool properties from the plaintiff had some connection with the installation of the applicant as a chief. On the evidence, though the applicant was not a party in the action, he owned up in open court that the defendants were acting on his instructions and that he had taken possession of the stool in his position as the chief. Conversely the applicants refusal to give up stool was connected the with his installation. So that the recovery of the stool was clearly a “cause or matter affecting chieftaincy” within the meaning of section 66 of the Chieftaincy Act, 1971 (Act 370), and by section 52 of the Courts Act, 1971 (Act 372) neither the High Court nor the Court of Appeal had jurisdiction to entertain it. Consequently the orders made by the High Court for the return of the stool properties were a nullity and so were the proceedings at the Court of Appeal.”

It is my opinion that the actual matter in controversy in this case is not simply a land case as the respondents would have this court believe, but is connected with a chieftaincy issue over which the High Court has no jurisdiction under section 52 of the Courts Act 1971 (Act 372).

This dispute clearly falls within section 66 of the Chieftaincy Act 1971 (Act 370) which defined “cause or matter affecting chieftaincy as follows:

 “…  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 a Chief;

(b) the enstoolment 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;

 (e) the constitutional relations under customary law between Chiefs…”

The finding of the High Court that: “It is crystal clear that respondents’ claim before the court does not relate to any of the matters as defined under section 66 of Act 370” is therefore clearly wrong on the face of the record. By this wrong decision the High Court was seeking to clothe itself with jurisdiction which it does not possess and this decision may be quashed by an order in the nature of certiorari.

Certiorari will lie where a tribunal states reasons for a decision, which reasons are wrong in law, as in this present case. See R v Northumberland Compensation Appeal Tribunal, ex parte Shaw [1952] 1 All ER 122 where it was held that:

 “Certiorari to quash the decision of a statutory tribunal lay, not only where the tribunal had exceeded its jurisdiction, but also where an error of law appeared on the face of the record and therefore, the application would be granted.”

Also where an inferior tribunal’s jurisdiction to decide a matter is challenged it must itself decide this matter but it cannot by a wrong decision give itself a jurisdiction which it otherwise would not possess. If it purports to do so its decision may be brought up by an order in the nature of certiorari and quashed. See R v City of London Rent Tribunal Ex parte Honig [1951] 1 All E R 195 per Lord Goddard CJ at p 197:

“I am of opinion that the tribunal had power to inquire into the collateral fact, namely, whether there was a contract, because it was only if there was a contract, that they could exercise the jurisdiction which the Act of Parliament has given them. Having decided that, it is open to the person who complains of that decision to ask this court to inquire into it by means of certiorari. In some cases, this court has been able to inquire into the matter by means of documents and other information put before it and has come to a conclusion that the tribunal decided erroneously.”

It seems to me that the respondents’ claim is basically a cause or matter affecting chieftaincy over which the High Court had no jurisdiction, but framed under the colour of a land dispute which is within that court’s jurisdiction. In such situations the court should decline jurisdiction otherwise either certiorari or prohibition would lie to prevent it from wrongly assuming jurisdiction; see Hunt v North Staffordshire Rly Co (1857) 2 H & N 451. In the matter of a plaint in the County Court of Staffordshire between Charles Hunt as plaintiff, and the North Staffordshire Railway Company as defendants, the plaintiff sought to recover in a county court “monies paid, for loss of time and attendance before the magistrates, upon a complaint and information of W on behalf of the defendants”. The plaintiff was summoned before the magistrates for riding in a railway carriage without having paid his fare and the summons was dismissed with costs. An action was brought to recover the expenses occasioned by such summons. On a motion to set aside an order of prohibition made by a judge in chambers it was held that the plaint was in substance a plaint for “malicious prosecution and that therefore the order of prohibition was properly made”.

The issue was whether the plaint disclosed a cause of action in respect of which the judge of the county court had jurisdiction. Since the plaint disclosed no cause of action except for a malicious prosecution in respect of which the county court judge had no jurisdiction under 9 & 10 Vict C 95 S 58 it was concluded per Martin B:

“The plaint is a mere evasion of the Act. The only action that could be maintained by the plaintiff is for malicious prosecution. I doubt, however, if any action lies for a mere proceeding to recover a penalty before magistrates which is in the nature of a civil proceeding.”

Per Bramwell B:

“ I concur... but I concur because on looking at the facts we can see that under colour of a plaint, on which the Court may have jurisdiction, the plaintiff is seeking to make out a case of malicious prosecution.”

It is for the above reasons that I would allow the application and grant an order in the nature of certiorari to bring up for the purpose of quashing the ruling of the High Court, Denu dated 26 February 1993 In the case entitled:

(1). Hlotator Adigbli Avadali II of Afegame, Head of Anyigbe Clan/Family. (2). Togbe Awafiaga Abordor VII, Principal member of Anyigbe Clan and Divisional Chief of Anyigbe Afegame versus	Plaintiffs
Togbe Lugu Avadali IV, alias Awafia Lugu Ahiaku, Sub-chief of Anyigbe Afevime Adutor	Defendant.

HAYFRON-BENJAMIN JSC. The ruling of the learned High Court judge on the motion to set aside the plaintiffs writ on the ground of lack of jurisdiction was based on ample material which was placed before him.

Indeed the learned judge was fully satisfied that:

“It is crystal clear that the respondents’ claim before the court does not relate to any of the maters as defined under section 66 of Act 370.”

The objection to the writ was to the effect that claims (a) and (b) indorsed on the writ of summons filed by the plaintiffs indicate quite clearly that the action was founded on the Chieftaincy Act (Act 370) and therefore the jurisdiction of the High Court was ousted and the writ ought to be set aside. It is trite learning that the learned High Court judge had jurisdiction to decide the issue of jurisdiction and to come to the conclusion, rightly or wrongly, that he had jurisdiction.

In the instant case the learned High Court judge decided that he had jurisdiction to entertain the suit. In his view:

 “The reliefs being sought by the respondents in this case do not affect a cause or matter affecting chieftaincy as defined by section 36 and 66 of Act 370.”

An aggrieved party had one of two courses open to him to ventilate his grievance. The party could either appeal against the ruling or invoke the supervisory jurisdiction of this court. The