Chieftaincy - Cause or matter
affecting chieftaincy -
Chieftaincy (Proceedings and
Functions) Regulations, 1972 (L.I.
798) -
Courts Act, Act 459 - Section 57
- Whether
Court of Appeal is bound by its
previous - Whether Court of
Appeal can departed from
previous decision which is null
and void - whether High Court
had exclusive jurisdiction in
chieftaincy matters to
traditional courts - Whether
judgment of a tribunal is a
nullity or was obtained by fraud
HEADNOTES
The main issue that the Court of
Appeal was confronted with in
both decisions which were,
except for one judge, by the
same panel, was whether or not
an action in the High Court
praying for a declaration that a
judgment of a chieftaincy
tribunal is a nullity is a cause
or matter affecting chieftaincy
over which the High Court
undoubtedly has no jurisdiction.
Put in another way; whether the
only jurisdiction exercisable by
the High Court to quash a
judgment of a chieftaincy
tribunal said to be a nullity is
by prerogative writ alone or the
remedy of declaration may also
be granted in an action
commenced by writ of summons?
HELD :-
Declaration as a remedy in
these circumstances does not
involve any directly enforceable
order but is effective in
resisting any enforcement of the
impugned decision. But since
misjoinder does not vitiate
proceedings in court, these
comments do not affect our
judgment in this case. In
conclusion, the appeal succeeds
and same is allowed. The
judgment of the Court of Appeal
dated 12th June, 2014 is hereby
set aside.
STATUTES REFERRED TO IN JUDGMENT
Constitution, 1992 Article
136(5)
Chieftaincy Act, 1961 (Act
81).
Chieftaincy (Proceedings
and Functions) Regulations, 1972
(L.I. 798)
Act 372 section 52 and
Act 370, Section 15(1)
Courts Act, Act 459
Section 57
High Court (Civil
Procedure Rules, 1954 (LN 140A)
High Court (Civil
Procedure) Rules, 2004 (CI 47)
L.I. 309
CASES REFERRED TO IN JUDGMENT
Republic v High Court,
Accra, Ex parte Odonkorteye
[1984-86] 2 GLR 148
Banard v National Dock
Labour Board [1953] 2 Q.B. 18.
Pyx Granite Co. Ltd v
Ministry of Housing and Local
Government [1960] AC 260
Dzaba v Tumfour [1978] 1
GLR 18
Kwagyena & Ors v Agyei
[1992] 1GLR 189
Ibenewura v Egbuna (1964)
1 WLR 219. PC.
Nana Efua Okeremah III &
Anor v Ajumako Traditional
Council & 3 Ors with Suit No.
A1/100/07 dated 14th February,
2008
Diplock L.J in Anisminic
Ltd v Foreign Compensation
Commission (1967) 3 WLR at 413
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
PWAMANG, JSC:-
COUNSEL
JOSEPH AMOWEE DAWSON FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
KWAME GYAN FOR THE
DEFENDANTS/APPELLANTS/RESPONDENTS
ญญญญญญญญญญญญญญJUDGMENT
PWAMANG, JSC:-
My Lords, this appeal
presents an interesting scenario
wherein the Court of Appeal in
the judgment on appeal
before us unanimously departed
from its own decision on a point
of law. By Article 136(5) of the
Constitution, 1992 the Court of
Appeal is bound by its previous
decisions but in this case the
court reversed itself because it
came to the conclusion that its
previous decision was a nullity.
A previous decision of the Court
of Appeal which is null and void
may certainly be departed from
but whether the previous
decision in this case was a
nullity or not, the analysis
which follows will indicate.
The main issue that the
Court of Appeal was confronted
with in both decisions which
were, except for one judge, by
the same panel, was whether or
not an action in the High Court
praying for a declaration that a
judgment of a chieftaincy
tribunal is a nullity is a cause
or matter affecting chieftaincy
over which the High Court
undoubtedly has no jurisdiction.
Put in another way; whether the
only jurisdiction exercisable by
the High Court to quash a
judgment of a chieftaincy
tribunal said to be a nullity is
by prerogative writ alone or the
remedy of declaration may also
be granted in an action
commenced by writ of summons?
The background to the case
is that the Ahanta Traditional
Council on 30th December, 1998
gave judgment against the
appellant in a chieftaincy
matter filed by the 2nd
respondent. After his appeal
against that judgment was
dismissed by the Judicial
Committee of the Western
Regional House of Chiefs, he
commenced an action by writ in
the High Court, Sekondi praying
for only one relief; "
Declaration that the judgement
of the Ahanta Traditional
Council in the case of...is
null, void and of no effect for
breaches of the provisions of LI
798 as well as the judgment of
the Western Region House of
Chiefs dated 9th day of
December, 2002." The respondents
filed their defence to the
action together with a motion to
dismiss the suit on the ground
that it was a cause or matter
affecting chieftaincy over which
the High Court has no
jurisdiction. The High Court
refused the motion to dismiss
and respondents appelled to the
Court of Appeal. In its judgment
on the interlocutory appeal
dated 15th March, 2012, the
Court of Appeal held that the
High Court had jurisdiction in
the matter and that it was not a
cause or matter affecting
chieftaincy. They remitted the
case to the High Court for
trial. After a trial the High
Court granted the prayer sought
by the appellant. In his
judgment dated 11th April, 2013,
Nicholas C. A. Agbevor J (as he
then was) held that the Ahanta
Traditional Council committed an
error of law by proceeding to
determine the chieftaincy cause
when the provisions of the
Chieftaincy (Proceedings and
Functions) Regulations, 1972
(L.I. 798) had not been
complied with and that the
error went to the jurisdiction
of the tribunal so the appellant
was entitled to the declaration
he sought.
The respondents appealed
against the judgment of the High
Court to the Court of Appeal and
in their judgment dated 12th
June, 2014 they allowed the
appeal on the ground that the
High Court had no jurisdiction
in the case to begin with and
that their earlier ruling that
it had jurisdiction was a
nullity. In their judgment the
court referred to the Supreme
Court case of Republic v High
Court, Accra, Ex parte
Odonkorteye [1984-86] 2 GLR 148
and made a number of
pronouncements on the position
of the law on the jurisdiction
of the High Court in relation to
chieftaincy tribunals. However,
the contention of the appellant
in this appeal is that those
statements were made in error
and that the Court of Appeal
misstated the law. In the
circumstances, it is necessary
to quote the Court of Appeal at
length. At pages 8 to 9 of their
judgment they delivered
themselves as follows;
"The majority decision of 4-1(in
Ex parte Odonkorteye)(sic) was
made up of Sowah C.J., Francois,
Taylor J. J.SC and Amua-Sakyi JA
was that apart from the High
Court’s supervisory jurisdiction
over all the lower courts and
all the lower adjudicating
bodies, the High Court cannot
entertain an action initiated by
a writ to set aside a decision
given by a judicial committee in
a cause or matter affecting
chieftaincy (emphasis
supplied). The court per
Amua-sakyi JA held thus:
“The action brought by the
respondents in the High Court
was nothing more or less than an
attempt to circumvent the law.
It was couched as an option for
a declaration that the articles
of agreement were a forgery or
otherwise illegal, but was, in
fact, an invitation to the Court
to exercise an appellate
jurisdiction which it had not.
Counsel for the applicant was
right that by the express
provision of section 52 of Act
372 and Section 15(1) of Act
370, the learned Judge was
forbidden from entertaining the
action brought before him. The
proceedings were a nullity and
ought to be quashed.”
Going by this decision, the two
aforesaid decisions by the Court
of Appeal were nullity as they
allowed the High Court to
entertain decisions rendered by
Judicial Committees not in its
supervisory jurisdiction but
other jurisdiction which is
equivalent or analogues to the
High Court’s appellate
jurisdiction.
The Courts Act, Act 459 forbids
the High Court from entertaining
any cause or matter affecting
chieftaincy at first instance or
on appeal. Section 57 of the
Courts Act, Act 459 provides as
follows;
“Subject to the Constitution,
the Court of Appeal, the High
Court, Circuit Court and a
District Court shall not
entertain either at first
instance or on appeal a cause or
matter affecting chieftaincy.”
The exception to the above ratio
is that the court could set
aside void judgment that comes
to its notice through an appeal
but it does not include a
judgment of the Judicial
Committees in a cause or matter
affecting chieftaincy, which the
jurisdiction of the Traditional
Courts have been completely
ousted apart from the exercise
of supervisory jurisdiction of
the High Court.
It must be stated that a void
judgment of judicial committees
could be set aside by an
appellate Judicial Committee no
matter how and in what shape or
form it comes to it on appeal.
The void judgment of the
Judicial Committee could be set
aside on appeal, review, or a
writ or an application but it
must be in the Judicial
Committee. The only exception is
the High Court’s supervisory
jurisdiction in the nature of
certiorari or prohibition
(emphasis supplied). The Courts
would be astute enough to see
through and thwart attempts by
litigants such as the
Plaintiff/Respondent to
circumvent the law by using the
High Court to interfere in cases
determined by the Judicial
Committees, which its
jurisdiction has been ousted
apart from its supervisory
jurisdiction."
From the above quotation,
the Court of Appeal rested its
judgment on the majority
decision of this court in Ex
parte Odonkorteye (Supra).
Though that case was not cited
by any of the parties in their
submissions, the Court of Appeal
considered it determinative of
the case before it. It is
obvious that the court became
aware of that decision only
after the delivery of their
judgment in the interlocutory
appeal. But learned Counsel for
the appellant, Joseph. A. Dawson
(of blessed memory), argued
forcefully in the appellant's
statement of case that the
majority decision in Ex parte
Odonkorteye ought to be
understood within the confines
of the facts of that case. The
facts of that case as narrated
in the Headnote of the Report
are as follows;
On the death of Nene Korle
II, the stool occupant of the
Tekperbiawe Division of Ada, a
dispute arose between the second
applicant and the second
respondent as to which of them
had been duly nominated, elected
and installed as chief in
succession to the deceased.
Relying on a document described
as "articles of agreement", the
judicial committee of the Ada
Traditional Council which
adjudicated upon the matter
found in favour of the second
applicant. Having lost the
case, the second respondent
sought a remedy in the High
Court, Accra. He prayed for a
declaration that the "articles
of agreement" were a forgery or
otherwise illegal and
consequently the judgment of the
Ada Traditional Council founded
on it was null and void.
Counsel for the applicant raised
a preliminary objection that
having regard to section 52 of
the Courts Act, 1971 (Act 372),
and section 15 (1) of the
Chieftaincy Act, 1971 (Act 370)
which had accorded exclusive
jurisdiction in chieftaincy
matters to traditional courts,
the trial judge had no
jurisdiction to entertain the
matter. The trial judge ruled,
however, that he was exercising
the supervisory powers of the
High Court and that the suit was
not a call for the determination
of a cause or matter affecting
chieftaincy; that it was only a
call to determine whether the
judgment obtained at the
traditional council was regular
and untainted or otherwise; and
whether or not the alleged
document upon which the judgment
was said to have been made was a
forgery; and whether or not any
fraud had been perpetrated on
the traditional council. He
therefore heard the suit and
entered judgment for the
respondent. The applicant
applied in the Supreme Court for
certiorari to quash the judgment
of the High Court on the main
ground that it acted without
jurisdiction.
By majority decision the
Supreme Court granted the
application. The reason the
majority held that the High
Court acted without jurisdiction
was that, and this is evident
from the portion of Amua-Sakyi
JA's judgment quoted by the
Court of Appeal, the High Court
reviewed the evidence that had
been led before the Ada
Traditional Council in proof of
the allegation of forgery and
came to a conclusion that there
was forgery whereas the
allegation of forgery had been
made in the proceedings before
the Traditional Council which
evaluated the evidence and
concluded that there was no
forgery. That exercise, the
majority of the Supreme Court
held, was in the nature of
appellate jurisdiction being
exercised by the High Court over
the judgment of the Ada
Traditional Council and since it
had no such appellate
jurisdiction the proceedings
were a nullity.
With due respect to the
judges of the Court of Appeal,
in Ex parte Odonkorteye
the majority of the Supreme
Court never decided that apart
from the prerogative writs, the
High Court has no original
jurisdiction to grant, upon an
action commenced by writ of
summons, a declaration that a
judgment of a chieftaincy
tribunal is fraudulent or a
nullity. Furthermore, though in
the judgment of Amua-Sakyi JA
for the majority, he stated that
it was within the competence of
the Ada Traditional Council to
set aside its own judgment on
grounds of fraud and nullity, he
did not say that it was only the
inferior tribunal that gave a
judgment that had jurisdiction
to set such judgment aside on
grounds of fraud or nullity and
that the High Court has no such
jurisdiction. Those opinions
appear to be the Court of
Appeal's own views but, with
great deference to them, those
statements are contrary to the
provisions of the rules of the
High Court and well-established
judicial authorities on the
common law jurisdiction of the
High Court to grant declaratory
relief in any matter that is
justiciable. See Banard v
National Dock Labour Board
[1953] 2 Q.B. 18. In the
House of Lords case of Pyx
Granite Co. Ltd v Ministry of
Housing and Local Government
[1960] AC 260, the appellant
argued that if there was any
remedy obtainable by the
respondent from the High Court
then it must be by way of
certiorari. Lord Goddard
answered that argument as
follows at page 290 of the
Report;
" I know of no authority
for saying that if an order or
decision can be attacked by
certiorari the court is debarred
from granting a declaration in
an appropriate case. The
remedies are not mutually
exclusive."
In fact, the Court of
Appeal in the cases of Dzaba
v Tumfour [1978] 1 GLR 18
and Kwagyena & Ors v Agyei
[1992] 1GLR 189 considered
in some detail the issue of the
jurisdiction of the High Court
to grant declaratory relief in
respect of void and fraudulent
judgments of chieftaincy
tribunals but unfortunately
those decisions which were
binding on the lower court were
not referred to by the lawyers
and the court too did not
consider those cases. In
Kwagyena v Agyei (supra) Ex
parte Odonkorteye was relied
upon by the appellants who
argued that the High Court had
no jurisdiction to declare a
judgment of the Benkumhene of
Kwahu given in 1931 in a
chieftaincy matter fraudulent
and a nullity as doing so
amounted to hearing a cause or
matter affecting chieftaincy. In
rejecting that submission of the
appellant, Ampiah JA in the lead
judgment of the unanimous
decision of the court said as
follows at pages 198/199 of the
Report;
" I must however clear the
question as to whether or not an
action for a declaration could
be one of the High Court's
supervisory powers over
decisions of the inferior
courts, exercisable to the same
purpose as the prerogative
writs. Our rules of court, i.e.
L.N. 140A, empowers the court to
make declaratory judgments and
orders in appropriate cases. It
states in Order 25, r. 5 that:
"5. No action or
proceeding shall be open to
objection, on the ground that a
merely declaratory judgment or
order is sought thereby, and the
Court may make binding
declarations of right whether
any consequential relief is or
could be claimed, or not."
Order 25 Rule 4 in the
High Court (Civil Procedure
Rules, 1954 (LN 140A) has
been repeated at Order 41 Rule 1
of High Court (Civil
Procedure) Rules, 2004 (CI 47)
which are our current rules.
The plain meaning of the
provision is that in cases where
relief could be obtained by
prerogative writs, declaratory
remedy could be granted, meaning
the remedies are not mutually
exclusive. Order 55 of CI 47 on
Judicial Review has now by Rule
2(1)(d) expressly added the
remedy of declaration to the
orders obtainable by judicial
review but that does not affect
the general jurisdiction of the
High Court to grant declaratory
relief in an action commenced by
writ of summons which has been
preserved by Order 41 Rule 1 of
the same CI. 47. The Court of
Appeal therefore fell in error
when in their judgment on appeal
they held that any challenge to
the validity of a judgment of a
chieftaincy tribunal on grounds
that it is a nullity or was
obtained by fraud must be only
by the prerogative writs. The
High Court has jurisdiction to,
in appropriate cases, declare a
judgment of a chieftaincy
tribunal or other inferior
tribunal a nullity or to have
been obtained by fraud upon an
action commenced by writ of
summons.
Policy justification for
maintaining the jurisdiction of
the High Court to grant the
remedy of declaration of nullity
in a case where certiorari is
obtainable was given by Ampiah
J.A in Kwagyena & Ors v Agyei
& Ors at page 199 of the
Report as follows;
“There may be very good
reasons why a person may decide
to resort to an action for a
declaration instead of an
application for certiorari. For
example, where he could not have
known that he had sufficient
grounds for challenging the
tribunal's decision within the
six months' time limit
prescribed for applications for
certiorari."
We approve of this policy
since maintaining declaration as
an alternative to certiorari
enables the High Court, in
appropriate cases, to control
statutory bodies in situations
where certiorari is not
available due to the statutory
conditions for its grant. That
is not to say that the relief of
declaration is freely given by
the courts. It is discretionary
and would be granted only in
deserving cases. See
Ibenewura v Egbuna (1964) 1 WLR
219. PC.
We are not without
sympathy for the concern raised
by the Court of Appeal in this
case, which concern was also
expressed by the majority in
Ex parte Odonkoteye, that
additional jurisdiction of the
High Court to grant remedy by
declaring the judgment of a
chieftaincy tribunal a nullity
is susceptible to abuse by
litigants who, after losing a
case before a chieftaincy
tribunal, may re-litigate the
chieftaincy cause in the High
Court under the guise of seeking
a declaration of fraud or
nullity. However, that concern
is not absent from the exercise
of the High Court's acknowledged
jurisdiction to grant
prerogative writs in respect of
decisions of chieftaincy
tribunals. The law reports are
replete with cases whereby
losing litigants before
chieftaincy tribunals attempted
to re-litigate their chieftaincy
causes in the High Court under
the guise of prerogative writs.
In all cases the solution is
vigilance by the courts and not
the denial of a jurisdiction
which has been so firmly rooted
in our legal system.
The scope of the
proceedings in the High Court
wherein an order or decision of
a chieftaincy tribunal, and for
that matter of any other
inferior tribunal with exclusive
jurisdiction, is sought to be
declared a nullity or quashed by
prerogative writ ought to be
limited to the legal competence
of the tribunal and the
lawfulness of its processes with
regard to enactments binding on
it. Those proceedings ought not
to involve factual evidence led
before the tribunal except where
such evidence is really
necessary for the determination
of the issues of legal
competence and lawfulness of
processes of the tribunal. So
whatever form the proceedings
before the High Court take, the
court has a duty to ensure that
the parties walk that narrow
path.
On the facts of this case,
it has not been shown that the
High Court, Sekondi reviewed the
evidence led before the Ahanta
Traditional Council with regard
to the chieftaincy dispute. What
the High Court did was that it
looked at the processes by which
the jurisdiction of Ahanta
Traditional Council was invoked
and held that the tribunal
committed an error of law by
failing to comply with the
provisions of L.I. 798
and that the error went to the
jurisdiction of the tribunal so
it declared the judgment of the
tribunal a nullity. That, in our
respectful view, was not a cause
or matter affecting chieftaincy
as defined by Section 177 of
the Courts Act, 1993 (Act
459).
In the case of Dzaba
III v Tumfour (supra), the
Court of Appeal was faced with
facts similar to those in this
case. In that case the Akpini
Tradidional Council was
irregularly constituted in view
of the provisions of the
Chieftaincy Act, 1961 (Act 81).
It nevertheless held proceedings
against the appellant, found him
guilty of destoolment charges
and declared him destooled.
Furthermore, in the proceedings
the Traditional Council failed
to comply with statutory
regulations in L.I. 309 which
were binding on it. He brought
an action by writ of summons for
a declaration that the decision
of the Akpini Traditional
Council was a nullity for want
of jurisdiction. The High Court
dismissed the action. On appeal
the Court of Appeal gave
judgment for the appellant. They
stated that the case in the High
Court was not a cause or matter
affecting chieftaincy but
related to the competence of the
Traditional Council to hear the
case against the appellant and
declaration was available as an
alternative to certiorari.
The substantial argument
of the respondents in their
statement of case is that the
question of whether the error of
the Ahanta Traditional Council
in relation to the provisions of
LI 798 went to its jurisdiction
or was a mere irregularity had
been determined by the Judicial
Committee of the Western
Regional House of Chiefs so the
High Court by determining that
same issue waded into a cause or
matter affecting chieftaincy. By
that argument the respondents
imply that when in the course of
hearing a chieftaincy matter a
tribunal construes a statute
then that construction becomes a
chieftaincy cause or matter not
cognisable by the High Court in
its jurisdiction to exercise
control over such tribunal. If
that argument is pressed to its
logical conclusion it would mean
that if objection were taken to
the jurisdiction of a
chieftaincy tribunal on account
of provisions of an enactment
binding on it and it were to
hold that it had jurisdiction
then thereafter the High Court
would be precluded from
entertaining even a certiorari
application on ground that the
tribunal had no jurisdiction.
That argument runs counter to
the a well-settled principle of
law that one of the grounds upon
which a decision of an inferior
tribunal would be held to be a
nullity is where the tribunal
commits an error of law that
goes to its jurisdiction. We
therefore dismiss that argument
of the respondents.
Based on the above
analysis, we are of the
considered view that the Court
of Appeal erred when they held
that the High Court had no
jurisdiction in this case and
that the proceedings it embarked
on were in a cause or matter
affecting chieftaincy. It is
clear to us that the Court of
Appeal, with due regard,
misread and misapplied Ex
parte Odonkorteye. In fact,
the original position taken by
the court in the interlocutory
appeal that the case did not
involve a cause or matter
affecting chieftaincy was right.
It also means that the Court of
Appeal case of Nana Efua
Okeremah III & Anor v Ajumako
Traditional Council & 3 Ors with
Suit No. A1/100/07 dated 14th
February, 2008 which was
declared null and void by the
Court of Appeal in this case was
determined within jurisdiction
and not null and void on grounds
of jurisdiction.
Before ending this
judgment, there is one point of
procedure that we wish to draw
attention to for the benefit of
practitioners. When a party is
proceeding by writ of summons
for a declaration that a
judgment of a tribunal is a
nullity or was obtained by fraud
it is wrong to add the tribunal
as a party to the action. The
determination by the tribunal
whether valid or a nullity does
not give rise to any cause of
action against it. The action
ought to be brought against
parties who may seek to enforce
the decision being challenged.
See Diplock L.J in Anisminic
Ltd v Foreign Compensation
Commission (1967) 3 WLR at 413.
Declaration as a remedy in these
circumstances does not involve
any directly enforceable order
but is effective in resisting
any enforcement of the impugned
decision. But since misjoinder
does not vitiate proceedings in
court, these comments do not
affect our judgment in this
case.
In conclusion, the appeal
succeeds and same is allowed.
The judgment of the Court of
Appeal dated 12th June, 2014 is
hereby set aside.
G.
PWAMANG
(JUSTICE OF THE SUPREME COURT)
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
JOSEPH AMOWEE DAWSON FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
KWAME GYAN FOR THE
DEFENDANTS/APPELLANTS/RESPONDENTS.
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