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GHANA BAR REPORT 1993 -94 VOL 1

Fosuhene v Akore II and others

SUPREME COURT

WUAKU, AMUA-SEKYI, OSEI-HWERE, BAMFORD-ADDO, HAYFRON-BENJAMIN JJSC

2 JUNE 1992

Judicial precedent - Stare decisis - High Court - Decisions of High Court binding on National House of Chiefs - National House of Chiefs an inferior court not competent to re-open matter decided by High Court.

Natural justice - Bias - Necessity - Chieftaincy tribunal - Panel members previously expressing an opinion that prejudged chieftaincy matter before tribunal - Members disqualified on ground of real likelihood of bias - Appellant failing to apply for transfer of case under Article 179(5) of 1979 Constitution - Chieftaincy tribunal a tribunal of necessity in circumstances - Article 179(5) of 1979 Constitution.

Practice and procedure - Power of transfer - Supreme Court - Whether has power to order transfer of chieftaincy matter from a Regional House of Chiefs to the National House of Chiefs - 1979 Constitution article 179(5)(c) - Courts Act 1971 (Act 372) s 99.

Judgment - Per incuriam - Meaning of, - When judgment may be said to be per incuriam.

The appellant, who claimed to be the Adansihene in Ashanti, filed a petition in the Ashanti Regional House of Chiefs. When a judicial committee was appointed to determine his petition, he objected to two members of the panel on the ground that the Asanteman Council, a non-statutory body with no jurisdiction in causes or matters affecting chieftaincy of which all members of the Regional House were members, had, at a meeting, declared his enstoolment as Adansihene improper. The two members withdrew and the committee was re-constituted but the appellant repeated the objection and was overruled. He appealed to the National House of Chiefs and applied simultaneously to the High Court for an order of prohibition. The High Court dismissed the application on the grounds, inter alia, that even though the 2nd, 3rd and 4th respondents-chiefs, were members of the Asanteman Council they claimed to have been absent at that meeting and were therefore not likely to be biased and that the Regional House was a tribunal of necessity and had to adjudicate upon the matter. The applicant did not appeal against the ruling but appealed to the National House of Chiefs against the decision of the Regional House of Chiefs. At the hearing of the appeal in the National House of Chiefs the appellant’s counsel again raised the objection against the appeal panel on the ground that one of its members was a member of the Asanteman Council. The panel overruled the objection on the ground that a decision thereon would prejudice the pending appeal; besides the matter in issue was distinct from the issue whether or not the appellant was properly enstooled and lastly, that it was bound by the decision of the High Court on the matter. He appealed to the Supreme Court against the decision of the National House of Chiefs on three main grounds namely, (1) that the House erred in holding itself bound by the ruling of the High Court, (2) that the House erred in not considering article 179(5) of the 1979 Constitution in rebuttal of the decision of the High Court on the forum of necessity and (3) that the House failed to take into consideration the applicable rules on the disqualifying interests of its presiding member or chiefs. Among the reliefs sought in the appeal by the appellant was an order that the Supreme Court should order a transfer of the matter pending in the Ashanti Regional House of Chiefs to the National House of Chiefs under article 179(5)(c) of the 1979 Constitution.

Held - (1) The National House of Chiefs, being an inferior tribunal under section 27 of the Courts Act 1971 (Act 372), was bound by the ruling of the High Court. It could not re-open the matter either by way of appeal or review or make any pronouncement on the said ruling. If aggrieved by the ruling the appellant should have appealed properly and not used the National House as an indirect forum of appeal.

(2) It was a cardinal principle of our laws that no one could act in a judicial capacity if his previous conduct gave ground for suspicion that he could not act with an open mind and or decide fairly. Such a person would be prohibited from taking part in any such enquiry. On these principles all the members of the Ashanti Regional House of Chiefs would be disqualified from adjudicating upon the appellant’s petition. The appellant, however, played his game simultaneously in the High Court and the Ashanti Regional Houses of Chiefs. At the time that he applied to the panel members in the Ashanti Regional House of Chiefs to disqualify themselves from adjudicating upon his petition, the High Court judge had ruled that the 2nd, 3rd and 4th respondents who were members of the Asanteman Council, claimed to have been absent at that meeting and were therefore not likely to be biased. That ruling was a valid exercise of jurisdiction. The appellant failed to appeal against it and both Houses were bound by it.

 (3) Article 179(5) of the 1979 Constitution was not raised nor could it have been properly raised, for under section 9 of Act 370 the forum for the dispute was the Regional House and not the National House under article 179(5)(c) of the 1979 Constitution. To invoke the extraordinary jurisdiction under article 179 an applicant must have demonstrated to the National House of Chiefs that the case could not be heard in the normal forum of a Regional House. The High Court could not assume that the National House of Chiefs was a forum open to the appellant since he had not raised the issue. The court therefore held rightly that the Regional House, in the circumstances of the case, was a forum of necessity. Armah v Government of Ghana [1968] AC 192 cited.

Per Hayfron-Benjamin JSC. The High Court judge’s ruling was not per incuriam. For a decision of a court to be deemed to have been delivered per incuriam it is necessary that the statute or superior court decision complained of should be relevant to a consideration of the matter for decision by the court, and that the failure of the court so to apply the statute or decision has denuded the decision of any legal efficiency as a precedent. In my respectful opinion article 179(5) was not necessary for the determination of the issue whether there was a real likelihood of bias in the members of the tribunal who were under attack. The judge’s ruling was therefore not made per incuriam.

(4) The relief that the Supreme Court should order a transfer of the matter pending in the Ashanti Regional House of Chiefs to the National House of Chiefs under article 179(5)(c) of the 1979 Constitution ought to be refused as the Constitution gave exclusive jurisdiction in chieftaincy matters to the chieftaincy tribunal under Act 370, in this case the Ashanti Regional House of Chiefs. Where the original jurisdiction of the National House of Chiefs was sought to be invoked it was that House alone which could decide whether to or not to assume jurisdiction under article 179(5)(c) of 1979 Constitution after satisfying itself that the matter could not be otherwise dealt with at the Regional House. Furthermore under section 99 of the Courts Act 1971 (Act 372), only the Chief Justice had power to transfer a case from one court to another and even then the section applied only to courts established under the Courts Act 1971 (Act 372).

Cases referred to:

Armah v Government of Ghana [1968] AC 192; [1966] 3 WLR 828; [1966] 3 All ER 177; 131 JP 43; 110 SJ 890, HL.

Hannam v Bradford City Council [1970] 2 All ER 690, [1970] 1 WLR 937, 134 JP 588, 114 Sol Jo 414, 68 LGR 498, CA.

Judges v Attorney-General for Saskatchewan (1937) 53 TLR 464, 81 Sol Jo 196.

Metropolitan Properties Co (FGC) Ltd v Lannon & Others [1968] 1 WLR 815, [1968] 1 All ER 354, DC, [1969] 1 QB 577, [1968] 3 WLR 694, [1968] 3 All ER 304, CA.

Regina v Altrincham Justice, ex parte Pennington [1975] QB 549, [1975] 2 All ER 78, [1975] 2 WLR 450, 139 JP 434, 119 Sol Jo 64, 73 LGR 109.

APPEAL from the decision of the National House of Chiefs to the Supreme Court.

W A N Adumua-Bossman for the appellant.

AMUA-SEKYI JSC. The facts of the case are straightforward. The appellant, who claims to be Adansihene in Ashanti, lodged a petition with the Regional House of Chiefs. When a judicial committee was appointed to go into the matter, he objected to two members of the panel on the ground that the Asanteman Council, a non-statutory body with no jurisdiction in causes or matters affecting chieftaincy, of which all members of the Regional House are members had, at a meeting, declared the appellant’s alleged enstoolment as Adansihene to be improper. When the two withdrew and the committee was re-constituted he raised the same objection. This time, he was overruled. He lodged an appeal with the National House of Chiefs and, as it appears, simultaneously applied to the High Court, Kumasi, for an order of prohibition. He failed in both the High Court, and before the National House. This appeal is from the decision of the latter.

We have read with the utmost care the record of proceedings submitted to us as well as the written submissions of counsel for the appellant. We have found nothing to support the appellant’s contention of a real likelihood of bias. We consider the appeal as being without merit and accordingly dismiss it.

BAMFORD-ADDO JSC. I have had the privilege of reading the opinions of my brothers Amua-Sekyi JSC, and Hayfron-Benjamin, JSC, which discuss the facts and the law of this case and their conclusions. I agree that there is no merit in the appeal and would state my reasons in support of their conclusions.

The appellant filed three main grounds of appeal: (1) that the judicial committee of the National House of Chiefs erred in law in holding itself bound by the ruling of Lartey J dated 31st May 1989; (2) that the said judicial tribunal erred in law in failing or refusing to take into consideration article 179(5) of the 1979 Constitution in rebuttal of the finding of Lartey J as to the forum of necessity; (3) that the judicial tribunal erred in law by failing or refusing to take into consideration the applicable rules concerning the disqualifying interest of its own presiding member-chiefs as were enunciated in the authorities cited in the submission of appellant’s counsel.

He further sought an order of this court directing that the chieftaincy suit pending before the Ashanti Regional House of Chiefs be tried and determined by the National House of Chiefs pursuant to article 179(5) of the 1979 Constitution.

The appellant presented a chieftaincy petition before the Regional House which, under article 180 of the 1979 Constitution and section 9 of Act 370, was the proper forum. When the Regional House met to hear the case the applicant raised an objection to the members of the panel hearing the case on the ground of bias. He argued that since they were members of the Asanteman Council, which had purported to nullify his enstoolment - the subject-matter of the dispute - they could not give an unbiased hearing. But the tribunal dismissed this application. Aggrieved by this decision the appellant filed an appeal to the National House of Chiefs and, while this appeal was yet pending, also applied to the Kumasi High Court for an order to prohibit the respondents from the further hearing of the Adansi chieftaincy suit, pending before the Regional House, on the same ground of bias.

The High Court heard the prohibition case and in my opinion gave a well-reasoned judgment thus:

“In the circumstance there is no good ground to support a finding that 2nd, 3rd and 4th respondents are biased or likely to be biased by virtue of the facts alluded to.”

He went on to discuss the principle of “doctrine of necessity” as enunciated in the case of Judges v Attorney-General for Saskatchewan (1937) 53 TLR 464 and said that even if the application could be granted the Regional House was a tribunal of necessity and would have had to adjudicate upon the matter. The applicant did not appeal against this ruling of the High Court dated 31st May 1989 which he could have done, if he was aggrieved by it. Instead he appealed to the National House against the decision of the Regional House given sometime earlier on the 6th July 1988. The ground of appeal was that the said decision was wrong in law. On the hearing of the appeal at the National House, the appellant’s counsel again raised the allegation of bias against members of the appeal panel on the ground that one of their members was a member of the Asanteman Council. The National House overruled this objection saying that it was based on similar ground as the present appeal before the House and it would prejudice the merits of that appeal if the objection was upheld. Also that the decision on which they were called upon to resolve was different from the issue whether or not appellant was properly enstooled.

Having considered and given reasons for overruling the objection it cannot be said by the appellant, as contained in ground 3, that the House failed or refused to consider the submission of appellant’s counsel on this point. Consequently this ground fails.

In respect of ground 1, the National House of Chiefs being an inferior tribunal under section 27 of the Courts Act 1971 (Act 372) was bound by Lartey J’s ruling and the House was right in holding that it was so bound. It could not re-open the matter either by way of appeal or review or make any pronouncement on the said ruling. If aggrieved by the ruling the appellant should have appealed properly and not used the National House as an indirect forum of appeal. This ground also fails.

Ground 2 states that the National House should have considered article 179(5) of 1979 Constitution in rebuttal of the finding as to the forum of necessity in Lartey J’s ruling. Quite apart from the fact that the National House could not re-open or review the ruling, there is no evidence on the record that it was even raised before the High Court nor in my opinion could it have been properly raised. The reason is that the normal forum for such a dispute is the Regional House (see section 9 of Act 370) and not the National House under article 179(5)(c) of the 1979 Constitution. To invoke the extra-ordinary jurisdiction under article 179 it seems to me that an applicant must bring himself under that provision by demonstrating to the National House that the case cannot be heard in the normal forum of a Regional House. The National House, if satisfied, would then assume jurisdiction. The High Court cannot assume that the National House was a forum open to appellant. The High Court was therefore right in saying that the Regional House, in the circumstances of this case, was a forum of necessity as it was, at that time, the only normal and proper forum, since appellant had not even raised the issue that he qualified to use the alternate forum. In any case His Lordship ruled specifically that there was no likelihood of bias which was the main issue in the prohibition proceeding. In my opinion his application of the principle of the “doctrine of necessity” to the case in his ruling cannot be said to have been given per incuriam for the above reasons. This ground also fails.

Finally the relief sought namely, that this court should order a transfer of the suit pending at the Ashanti Regional House of Chiefs to the National House of Chiefs under article 179(5)(c) of the 1979 Constitution, must be refused. The Constitution gives exclusive jurisdiction in chieftaincy matters to the chieftaincy tribunals under Act 370, in this case the Regional House of Chiefs. But where the original jurisdiction of the National House is sought to be invoked it is that House alone which can decide whether to or not to assume jurisdiction under article 179(5)(c) of the 1979 Constitution after satisfying itself that the matter cannot be otherwise dealt with at the Regional House. Furthermore, under section 99 of the Courts Act 1971 (Act 372), only the Chief Justice has power to transfer a case from one court to another and even then the section refers only to courts established under the Courts Act 1971 (Act 372).

For the above reasons I also would, like my brothers, dismiss the appeal.

HAYFRON-BENJAMIN JSC. This is a second appeal by the appellant from a decision of the chieftaincy tribunal of the National House of Chiefs affirming the decision of the judicial committee of the Ashanti Regional House of Chiefs.

The appellant who claims that he had been “installed and/or enstooled Adansihene on 2nd December 1985, having been properly nominated and elected in accordance with Fomena custom” presented a petition before the judicial committee of the Ashanti Regional House of Chiefs against ten chiefs of Adansi including the Adansihemaa praying for certain reliefs which are not here disclosed by the record presented to us. It was obvious that the appellant, if he possessed that capacity, was a paramount chief and as such he was by the terms of section 15 of the Chieftaincy Act 1971, properly before the judicial committee of the Ashanti Regional House of Chiefs, a statutory body, like other Regional Houses of Chiefs, created under the Chieftaincy Act 1971. Its judicial committee is by law exclusively invested with jurisdiction to hear and determine any and all causes or matters affecting chieftaincy which may arise in the Ashanti Region. To buttress this exclusive nature of the jurisdiction and the form in which such grievances as relate to chieftaincy matters may be ventilated, section 52 of the Courts Act 1971 (Act 372), as amended by NRCD 101, provides 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.”

Thus, barring any objections that could be taken to the nature and quality of his petition, the appellant, as petitioner, was properly before the judicial committee of the Ashanti Regional House of Chiefs.

As I have said the appellant’s petition to the judicial committee of the Ashanti Regional House of Chiefs is not before us. But I observe from the record that it is petition No 1/1985 entitled: Samuel Asante Fosuhene (Adansihene elect) v Bafour Asare II (Krontihene) and 9 others. It appears that barely a month after the appellant’s claimed installation or enstoolment and six months after the presentation of his petition to the judicial committee of the Ashanti Regional House of Chiefs, the Asanteman Council met at the Manhyia Palace in Kumasi and purported to declare the appellant’s enstoolment a nullity. The Asanteman Council, like some other traditional tribal councils, is not a statutory body and therefore performs no statutory judicial function. In the words of Lartey J in his ruling on an application for prohibition with reference to the present matter brought before him, the members of this council are “individual members of the Ashanti Regional House of Chiefs and the Abirempong”.

With his petition still pending before the judicial committee of the Ashanti Regional House of Chiefs, the publication of the decision of the Asanteman Council in The Pioneer, a national newspaper published in Kumasi and dated the 29th January 1986, impelled the appellant to take action in defence of his rights to a fair hearing. In the appellant ‘s view the members or almost all the members of the Asanteman Council were also members of the statutory body known as the Ashanti Regional House of Chiefs in different clothing. The appellant concluded that if in their own capacity as members of the Asanteman Council they had decided that his enstoolment was a nullity according to “Asante customary practices and usages”, then it was impossible for the same members differently placed to come to a different conclusion. There was therefore the real likelihood of bias. An application to the High Court in the exercise of its prerogative powers to grant an order or writ of prohibition to restrain Nananom of the judicial committee from dealing with his petition was clearly indicated.

The record, however, shows that the appellant did not take this course of procedure which was open to him. Instead, as Lartey J expressed it in his ruling, the appellant pursued another aspect of his petition even to this court. This court sent the petition “back for further hearing of the chieftaincy dispute before the Ashanti Regional House of Chiefs”. Pursuant to the order of this court, the judicial committee of the Ashanti Regional House of Chiefs assembled on the 10th December 1987, to hear the petition - a full two and a half years after the presentation of the appellant’s petition. On that date the appellant objected to two members of the three-member panel of the judicial committee. These two chiefs withdrew from further participation in the hearing and determination of the petition. A second panel constituted on the 6th July 1988 to hear the petition was met with similar objections by the appellant.

The appellant had on the 4th July 1988, filed a motion before the judicial committee of the Ashanti Regional House of Chiefs captioned “Motion On Notice For Disqualifying Members Of The Tribunal - Real Likelihood Of Bias”. (Emphasis mine.) In the body of the motion paper itself the appellant prayed “for an order that the members of the panel constituting the judicial tribunal of the Ashanti Regional House of Chiefs hearing the Adansi chieftaincy dispute withdraw from further sitting on that case on grounds of a breach of the rules of natural justice”. (Emphasis mine.) On the 6th July 1988 aforesaid, the panel heard the arguments of the appellant in support of his motion. It must be said that nothing he said supported either the caption of his motion paper or the prayer he sought.

On the same day the judicial committee in a short and concise ruling dismissed the application and concluded that the committee “as presently constituted therefore has exclusive jurisdiction to determine the substantive issue and we do not see why our membership of any customary groupings (i.e. Asanteman Council) should affect the exercise of this jurisdiction”.

The appellant appealed against this ruling to the National House of Chiefs. He also filed a motion before the High Court seeking to prohibit the judicial committee of the Ashanti Regional House of Chiefs and the members of the panel which had rejected his application - Nana Otuo Siriboe II, Juabenhene, Nana Owusu Asiamah, Oboguhene and Akyanfuo Gyamaning Awere Asare II, Akwamuhene of Kumasi - from hearing his petition.

On the 31st May 1989, Lartey J in a reasoned and considered ruling dismissed the application. He conceded that the Asanteman Council may have made pronouncements which purported to nullify the applicant’s enstoolment as Adansihene. The learned High Court judge further conceded that the respondents were on their own admission members of the Asanteman Council. But he opined that “mere membership of that council which raises a mere suspicion of bias, however reasoned it might be, is not sufficient”. In the learned judge’s view the burden lay squarely on the appellant to establish a link by the respondents with that meeting of the Asanteman Council at which the offending decision was made. The 2nd, 3rd and 4th respondents had denied being present at that meeting and since this was the crucial issue the applicant had to discharge the burden which lay on him to prove the contrary by “cogent and credible evidence”. There was, in the learned High Court judge’s view, nothing to lend independent support for the appellant’s claim. The learned High Court judge therefore concluded that on the evidence before him the charge of a real likelihood of bias on the part of the 2nd, 3rd and 4th respondents had not been made out.

But the nature of special forum which was under attack by the appellant i.e. the judicial committee of the Ashanti Regional House of Chiefs, required that the learned High Court judge consider the import of the conclusion to which he had arrived. The law vested exclusive jurisdiction in cases or matters affecting chieftaincy in the hierarchy of tribunals constituted under the Chieftaincy Act 1971. The learned High Court judge considered the matter and, relying on the Canadian case of Judges v Attorney-General for Saskatchewan (1937) 53 TLR 464 which went to the Privy Council, held that the application must be refused by reason of the rule of necessity. In the learned High Court judge’s view the rule known “as the doctrine of necessity applied to prevent a failure of justice”. In more straight-forward language, the courts ought not to permit a failure of justice for want of a judge, or in the present appeal, for want of a court. The Ashanti Regional House of Chiefs was the proper forum and there the petition had to be heard and determined. Lartey J therefore dismissed the application for the order of prohibition and stated that “the respondents should feel free to hear and determine the dispute in a judicial manner”.

Thus not only was appellant bound by the order of this court that the petition be proceeded with by the judicial committee of the Ashanti Regional House of Chiefs, but also Lartey J had inferentially made a similar order against him.

The appellant did not appeal against Lartey J’s ruling. Instead the appellant returned to pursue the appeal before the National House of Chiefs. Before the judicial committee of the Ashanti Regional House of Chiefs, the appellant had briefly mentioned article 179 of the 1979 Constitution as saved by PNDCL 42. But there is no argument in support of this article on record as presented to this court. Again, even though article 179(5) of the 1979 Constitution was not either in the original or the additional grounds of appeal before the National House of Chiefs, learned counsel for the appellant also referred to it but advanced no arguments in support of same. Both the original and additional grounds filed on behalf of the appellant were nebulous and incomprehensible. The relief sought from Nananom was equally incomprehensible. Nananom having heard counsel on both sides had no difficulty arriving at the conclusion that the appeal before them failed. Nananom put their view briefly and with characteristic clarity:

“We feel bound by the decision of the High Court. We are precluded from re-opening the matter.”

The decision of the High Court referred to was the judgment of Lartey J dated 31st May 1989. By leave of this court the appellant now appeals to us seeking certain reliefs. In further elucidation of the appellant’s case before us, Mr Adumua-Bossman, learned counsel, pleads with us that we should allow the appeal and apply article 179(5) of the 1979 Constitution and invoke the original jurisdiction of the National House of Chiefs. Counsel submits that in view of the attitude and conduct of the members of the Ashanti Regional House of Chiefs by exhibiting animosity towards his client, the only convenient forum was the chieftaincy tribunal of the National House of Chiefs.

The appellant’s notice of appeal contains 5 grounds. But in his statement of case the appellant has chosen to press only three of the grounds. Of these, two were argued together. It must be noted that the respondents have not filed any statement of case nor are they being represented. They have also not appeared before us.

The appellant urges upon us that the National House of Chiefs erred in law in holding that it was bound by the ruling of Lartey J dated the 31st May 1989. Learned counsel contends that Lartey J was bound to apply article 179(5) of the 1979 Constitution; that his ruling was given per incuriam and Nananom of the National House should have refused to follow it. Now article 179(5) of the 1979 Constitution reads thus:

“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

(b) which is not properly cognizable by a Regional House of Chiefs, or

(c) which cannot otherwise be dealt with by a Regional House of Chiefs.” (Emphasis mine.)

As I understand it, the appellant considers that his case comes within the ambit of sub-paragraph (c) of clause (5) above. In my respectful view he cannot be correct. First, the appellant by this argument is inferentially appealing against the ruling of Lartey J - a step which he failed to take after 31st May 1989, the date on which the ruling was made. Next, article 179(5) above was not cited to the learned High Court judge. In any case the appellant had approached the High Court for the exercise of its prerogative powers to grant a prohibition against certain named members from hearing the case. In my view the use of the prerogative writs by the superior courts is to enable such courts supervise the proper exercise of jurisdiction by inferior courts and administrative tribunals; to correct errors of law and to ensure fair play in the administration of justice. An application for the grant of a prerogative writ is therefore not generally concerned with the facts or evidence in the substantive case, except perhaps in the grey area of an error of law appearing on the face of the record.

In the application before Lartey J, the appellant was seeking to restrain certain chiefs from hearing and determining his petition. In his ruling, the learned judge pointed out that the first respondent, the Ashanti Regional House of Chiefs, was only a nominal respondent. The real application was against the panel of three chiefs so named. If these chiefs were disqualified it was open to the 1st respondent to choose a new panel. In any case I do not agree that Lartey J’s ruling was per incuriam. For a decision of a court to be deemed to have been delivered per incuriam it is necessary that the statute or a superior court decision complained of should be relevant to a consideration of the matter for decision by the court, and that the failure of the court so to apply the statute or decision has denuded the decision of any legal efficiency as a precedent. In my respectful opinion article 179(5) was not necessary for the determination of the issue whether there was a real likelihood of bias in the members of the tribunal who were under attack. Lartey J’s ruling was therefore not made per incuriam.

The appellant also urges on this court that in choosing a forum of necessity, the judge should have again considered the provisions of article 179(5) of the 1979 Constitution; that the learned judge’s failure so to consider this article of the 1979 Constitution led him to choose the wrong forum of necessity because it was clear that the appellant could not get a fair hearing before the judicial committee of the Ashanti Regional House of Chiefs. As I have said, the learned judge appreciated the exclusive jurisdiction in chieftaincy matters vested in the 1st respondent council and having decided that the appellant had not proved that the 2nd, 3rd and 4th respondent were likely to be biased in the hearing and determination of the petition, that forum was the forum of necessity. If the appellant was aggrieved by this ruling, he had a right of appeal. This he failed to do. I therefore hold that Lartey J’s ruling was binding on both the judicial committee of the Ashanti Regional House of Chiefs and the chieftaincy tribunal of the National House of Chiefs. In my view Nananom of the National House of Chiefs were right in so holding. By section 27(d) of the Courts Act 1971 (Act 372), that assembly of the great paramount chiefs of our country designated the National House of Chiefs and the Regional House of Chiefs and traditional councils are all classified as “inferior courts” in respect of the jurisdiction of any such House or Council to adjudicate over any cause or matter affecting chieftaincy. Indeed on the issue of the proper choice of forum, Nananom of the National House of Chiefs put the following question to appellant’s counsel thus:

“Panel: Why was the action started at the Regional House when there was objection to them?”

to which learned counsel replied:

“Counsel: The action was taken in 1985, when Asanteman Council had not taken any decision. The decision was taken when action was pending hence this course of action.”

In my respectful opinion if ever there was an evasive answer to a simple question, this was it. The appellant was dodging the real process which in my view could lead to a fair hearing of his petition.

The appellant also urges on us the proposition that the National House of Chiefs could have assumed original jurisdiction in the matter in accordance with the provisions of article 179(5) of the 1979 Constitution. He urges further that the National House of Chiefs having failed so to do, this court is in a position to correct that error and order that his petition shall be heard by that august House.

Now the exercise of the original jurisdiction by any court or tribunal means the commencement of an action by writ of summons, petition or some originating process warranted by law. In the case of the National House of Chiefs the method of approach to its chieftaincy tribunal in the exercise of its original jurisdiction is governed by CI 27. The matter before the National House of Chiefs was an interlocutory appeal from the ruling of the judicial committee of the Ashanti Regional House of Chiefs. It was therefore not open to Nananom of that august House to assume original jurisdiction over the matter. Since the matter was on appeal before them, they had to adopt one of two alternative procedures - either to pronounce on the appeal or remit it to a lower tribunal for trial de novo. In the instant appeal the National House of Chiefs was of the view that if the appellant thought “he could avail himself of article 179(5) he could do so but certainly by invoking the original jurisdiction of the National House of Chiefs and not the appellate jurisdiction”. While the power to remit to a lower court or tribunal is conferred on the High Court and thus the regional and national houses of chiefs by Order 58 rule 17 of LN 140A and by rule 31 of LI 218 on the Court of Appeal, similar provisions do not appear in the Rules of this court, (CI 13). However, with respect to the hearing and determination of matters before us, this court “shall have all the power, authority and jurisdiction vested in any court established by this Constitution or any other law” - see article 116(4) of the 1979 Constitution. This means that whenever any matter is pending before us this court shall have the power to assume the jurisdiction of the court from which the matter emanates and make any orders or decisions warranted by law. The essential jurisdiction of this court is so to hear and determine matters presented before it with the view to putting an end to litigation. I would venture to say that it is only in the rarest of cases where this court is of the opinion that the evidence on record is so unsatisfactory as to prevent parties from properly and adequately stating and presenting their cases that it will remit such matter to any court that the same may be re-heard. In the instant appeal none of the parties has given evidence in the substantive petition and therefore there is no evidence on record which can be said to be unsatisfactory. Relying on this principle it is quite clear that this court will not remit the present appeal to the National House of Chiefs or any other tribunal to enable the same to be re-heard. On the previous occasion referred to by Lartey J in his ruling, this court ordered the Ashanti Regional House of Chiefs to proceed with the hearing of the petition on its merits. This court did not remit any matter to that tribunal to be re-heard. It was therefore a perfectly regular order.

In the present appeal the appellant is not only asking this court to remit his appeal to the National House of Chiefs - which I say we will not so remit - the appellant is also requesting that his petition No 1/1985 entitled: Samuel Asante Fosuhene (Adansihene-elect) v Bafour Akore II (Krontihene) & 9 Others be transferred from the Ashanti Regional House of Chiefs to the National House of Chiefs to be heard by the chieftaincy tribunal of that august House. This court has no jurisdiction to transfer any case from one court or tribunal to another. That jurisdiction or power is by section 99 of the Courts Act 1971 conferred on the Chief Justice. I am therefore unable to accede to the appellant’s prayer that his petition now pending before the Ashanti Regional House of Chiefs be transferred to the chieftaincy tribunal of the National House of Chiefs that the same may be heard there as an original action.

With the dismissal of these two grounds of appeal, the appeal should ordinarily stand dismissed. However, the appellant has raised a short but fundamental point of law which needs to be addressed. The appellant contends that Nananom in the National House of Chiefs “had not in any way considered the rationale of the rule against a real likelihood of bias”. In counsel for the appellant’s view there was ample legal authority in support of his contention that given the facts leading to the presentation of his application to “disqualify” the members of the judicial committee of the Ashanti Regional House of Chiefs, Nananom should have disqualified themselves. This proposition, counsel contended, was “quite apart from the effect of article 179(5)”. Before us counsel relied on the English cases of Hannam v Bradford City Council [1970] 1 WLR 937, Metropolitan Properties Co (FGC) Ltd v Lannon & Others [1969] 1 QB 577, Regina v Altrincham Justice, ex parte Pennington [1975] QB 549 and contended that all these authorities show that a person’s connection with a group which makes a decision concerning a matter before them may be such as “to give the reasonable impression that he was biased even though there was no actual bias on his part”. Counsel therefore urges that quite apart from his arguments in support of article 179(5) of the 1979 Constitution, the present appeal should be allowed as the real likelihood of bias had been amply demonstrated. In this submission counsel is on very strong ground. It was admitted that the Asanteman Council met and nullified the enstoolment of the appellant. It was also admitted that 2nd, 3rd and 4th respondents are members of both councils. It is not in dispute that at the time of making that decision the appellant’s petition was pending before the judicial committee of the Ashanti Regional House of Chiefs. It is a cardinal principle of our laws that no one can act in a judicial capacity if his previous conduct gives ground for believing he cannot act with an open mind and/or decide fairly. Such a person must be prohibited from taking part in any such enquiry. It is my view that on the principle stated above, all the members of the Ashanti Regional House of Chiefs would be disqualified from adjudicating upon the appellant’s petition. I cannot discern from the record how the Asanteman Council came to nullify the enstoolment of the appellant. But whether such a decision was taken by vote, by show of hands, by ballot or by the traditional consensus procedure, it was obvious that they had disabled themselves from embarking on a fair adjudication of the appellant’s petition.

The appellant, however, played his game simultaneously in two courts, the High Court and the Ashanti Regional Houses of Chiefs. In so doing he did not reckon with the superior quality of the High Court ruling. At the time that the appellant approached the Ashanti Regional House of Chiefs with his application for Nananom to disqualify themselves from adjudicating upon his petition, Lartey J had in his ruling made two vital points. He had ruled that at least, the 2nd, 3rd and 4th respondents-chiefs, who even though were members of the Asanteman Council but claimed not to have been present at that historic meeting, were not likely to be biased. The learned judge had also ruled that the forum of necessity wherein the appellant could ventilate his grievance was the judicial committee of the Ashanti Regional House of Chiefs. That ruling was in my view a valid exercise of jurisdiction and the learned High Court judge was entitled to go right as he was to go wrong in his decision: R v Brixton Prison, ex parte Kwesi Armah [1968] AC 192. The appellant failed to appeal against that ruling and his fate was sealed. Rightly, Nananom in both houses were bound by the ruling of Lartey J. In this court, it is clear that as Lartey J’s ruling cannot be said to have been made without jurisdiction, we cannot ex debito justitiae vacate it. This ground of appeal also fails.

I have read the lucid factual analysis of the matters concerned with this appeal in the opinion of my learned and respected brother Amua-Sekyi JSC and I agree with his reasoning and conclusions. I made this contribution in support of his conclusion bearing in mind that there were legal tangles in which the appellant had become enmeshed and from which he had to be extricated the better to enable him appreciate clearly the position in which he is presently placed. This court has said that it will not turn itself into counsel or solicitor to advise litigants on the process or the forum by which or in which they may ventilate their grievances. The appellant is well aware of the correct process and the proper forum in which he may press his petition. He however, persists in trifling and sporting with processes of the courts and tribunals.

In the result I also agree that the appeal be dismissed.

WUAKU JSC. I agree.

OSEI-HWERE JSC. I also agree.

Appeal dismissed.