|
Chieftaincy - Judicial
Committee - National House Of
Chiefs -
Destoolment -
Procedure
- Effect of signed
by document of withdrawal from
case not accompanied by any
motion - Whether or not case
will still go on if the first
plaintiff is struck off the
list - Whether or not the court
has jurisdiction to strike out
the case or his name off the
case without leave of court.
HEADNOTES
The facts in this case are
fairly simple and
uncontroverted. The appellant in
this case, Nana Boakye Ansah, is
the chief of Abedwim, while all
the respondents are sub chiefs
of the said stool. The
respondents brought some
destoolment charges against the
appellant before the JCATC.
According to the appellant he
prayed the JCATC for an earlier
petition he had filed to be
heard first, since the outcome
of that would have a significant
impact on the petition against
him. This prayer did not find
favour with the committee which
went ahead and heard the matter
and a decision published which
went against him According to
him he made several attempts to
procure a copy of the decision
of the committee to enable him
to appeal but he only received
it after the time for appeal had
lapsed. His attempt to file an
appeal out of time also met the
same fate with the reason that
the registrar was always not on
duty and that there was nobody
to receive his documents. When
time to appeal had lapsed the
appellant then filed an
application before the Judicial
Committee of the Ashanti
Regional House of Chiefs
(JCARHC) for extension of time
within which to appeal the
decision of the JCATC. His main
reason for his application was
that the registrar of the
Traditional Council was sick and
other personnel on duty had
refused to accept his notice of
appeal and file same.In an
affidavit in opposition sworn to
by the registrar E. A. Boadu, he
confirmed that he was posted to
the Council on 27th November
1999 at the time when the
previous registrar was sick. But
he denied all the averments of
the appellant regarding the
efforts he had made to file the
documents
HELD
A
registrar has specific functions
assigned to him to perform. If
he is sick or absent and a clerk
is assigned to act as the
registrar he becomes the “proper
officer’ because for that moment
he is performing the functions
of the registrar. The normal
thing is for somebody to be made
to take over the
responsibilities of a registrar
in his forced absence through
ill health or for whatever
reason. Such a person acts and
is the proper officer until the
registrar returns. If his
absence will be for a longer
period, a new person is
transferred from another station
to hold the fort on relieving
duties or permanently. So
whether a person acts
temporarily or permanently takes
over, there is always a proper
officer. We believe that there
is absolutely no merit in the
appeal before us and the same is
dismissed.
STATUTES REFERRED TO IN JUDGMENT
Chieftaincy (National and
Regional Houses of Chiefs)
Procedure Rules, 1972
CASES REFERRED TO IN JUDGMENT
DOKU V PRESBYTERRIAN CHURCH OF
GHANA 2005-2006 SCGLR 200
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
BAFFOE-BONNIE JSC
COUNSEL
OBENG MANU JNR, ESQ. FOR THE
DEFENDANT/APPELLANT /APPELLANT.
P. ADU – GYAMFI ESQ. FOR THE
PLAINTIFFS/RESPONDENTS
/RESPONDENTS.
JUDGMENT
BAFFOE-BONNIE JSC
This is an appeal against the
decision of the Judicial
Committee of the National House
Of Chiefs (JCNHC) refusing to
enlarge time within which to
appeal against the decision of
the Judicial Committee of the
Adansi Traditional Council
(JCATC) This appeal is pursuant
to leave granted by this court
on 3rd May 2013.
While preparing to write this
decision we were served with a
process titled AFFIDAVIT TO PULL
OUT FROM THE CASE sworn to by
Nana Nifa Abankro the first
plaintiff /respondent in this
case.. The 10 paragraph
affidavit recounted the effect
the suit has had on the
development of the traditional
area and concluded as follows;
8/
That, having thought about the
bad effect the court case is
having bad effect (sic) on the
township I have decided to pull
out from this case as the leader
of the plaintiffs.
9/
That, I am therefore praying
with the honourable Supreme
Court Accra to strike my name
from the case as the leader of
the plaintiffs.
10/ That, I make this
declaration to testify and
certify that I am no more
interested to pursue the case
any further and that I have pull
out from it absolutely for good.
This document signed by the
first plaintiff personally was
not accompanied by any motion
and we do not know whether his
counsel saw it and approves of
it.
We
do not know exactly the prayer
that the deponent of the
affidavit wants to convey. He
recalls the negative effects
that this suit is having on the
traditional area and the need to
discontinue with the action to
heal wounds. If this is a
sentiment shared by all the
plaintiffs, then we think that
the affidavit should be deposed
to by all the plaintiffs or on
their behalf, and they should be
seeking to discontinue with the
suit altogether. But the
deponent assumes that being the
first plaintiff he is the leader
of the plaintiffs and therefore
his prayer affects them.
Unfortunately, even if he is the
ring leader or leader of the
malcontents, the law recognizes
the other plaintiffs as
plaintiffs in their individual
rights. So, even if he is struck
off the list the case will still
go on.
But looking at the bigger
picture we believe that the
procedure adopted by the first
plaintiff to have his name
struck off is wrong. At this
stage in the proceedings if a
party wants to opt out it can
only be done with the leave of
the court. Leave of the court is
sought through a motion paper
supported by an affidavit.
Merely filing an affidavit and
saying that he has pulled out of
the case for good does not cloth
this court with the jurisdiction
to strike out the case or his
name off the case.
The facts in this case are
fairly simple and
uncontroverted. The appellant in
this case, Nana Boakye Ansah, is
the chief of Abedwim, while all
the respondents are sub chiefs
of the said stool. The
respondents brought some
destoolment charges against the
appellant before the JCATC.
According to the appellant he
prayed the JCATC for an earlier
petition he had filed to be
heard first, since the outcome
of that would have a significant
impact on the petition against
him.
This prayer did not find favour
with the committee which went
ahead and heard the matter and a
decision published which went
against him.
According to him he made
several attempts to procure a
copy of the decision of the
committee to enable him to
appeal but he only received it
after the time for appeal had
lapsed. His attempt to file an
appeal out of time also met the
same fate with the reason that
the registrar was always not on
duty and that there was nobody
to receive his documents. When
time to appeal had lapsed the
appellant then filed an
application before the Judicial
Committee of the Ashanti
Regional House of Chiefs
(JCARHC) for extension of time
within which to appeal the
decision of the JCATC.
His main reason for his
application was that the
registrar of the Traditional
Council was sick and other
personnel on duty had refused to
accept his notice of appeal and
file same.
In
an affidavit in opposition sworn
to by the registrar E. A. Boadu,
he confirmed that he was posted
to the Council on 27th
November 1999 at the time when
the previous registrar was sick.
But he denied all the averments
of the appellant regarding the
efforts he had made to file the
documents. He said;
3. that I was posted
to the Adansi Traditional
Council at the time when the
substantive registrar was sick
4. That throughout
the period that I was in charge
of the office nobody came to
file any document on behalf of
the Defendant(appellant herein).
5. That when the
solicitor for the Defendant
complained about the fact that
the defendant’s notice of appeal
had not been filed by the
registry I wrote to Lawyer F.K
Amoah and indicated to him that
nobody had come to file any such
papers
6. That at all times
material the registry of the
Traditional Council was open and
that other staff could have
acted on the defendant’s said
papers.
The JCARHC dismissed the
application for extension of
time within which to appeal on
the grounds that
a/ the affidavit of the
registrar had debunked all the
allegations of impropriety on
the part of the registry staff
regarding the failure to file
the notice of appeal within time
and at the appropriate forum
i.e. the JCATC and
b/ the application for extension
of time had been filed after 7
months, which is 5 months, after
the allowable 2 months.
The appellant appealed against
this decision of the Regional
House of Chiefs to the National
House of chiefs.
The appeal before the National
House was also dismissed on
similar grounds. The National
House reiterated the fact that
with the affidavit sworn to by
the registrar putting spokes
in the wheel of his case, the
appellant’s failure to rebut
some of the positive averments
in the said affidavit was fatal
to his case. Further, the NHC
noted that even his application
for extension of time which was
filed in the first instance at
the Regional House of Chiefs was
procedurally wrong as same
should have been filed at the
court of first instance i.e. the
Adansi Traditional Council. And
finally, the Regional House of
Chiefs’ reasoning that the
application was hopelessly out
of time was sound.
Pursuant to leave granted by the
National House of Chiefs, the
appellant has filed this appeal
challenging the National House
Of Chiefs’ refusal to enlarge
time for him to appeal against
the decision of the Traditional
Council on the following
grounds;
i.
The Judicial Committee of
the National House of Chiefs
failed to appreciate the facts
as contained in the Affidavit of
E.A. Boadu the new Registrar of
the Adansi Traditional Council
which clearly stated that he was
posted to the Council on 27th
November, 1999 at a time when
the substantive Registrar was
sick, confirming the Appellant’s
assertion that the Registrar was
all along absent and was not at
post to accept the appellant’s
notice of appeal for filing.
ii.
The Judicial Committee of
the Adansi traditional council
erred in law when it failed to
construe the true meaning of
“proper officer” as contained in
Rule 13 (1) CI 27 as interpreted
in Rule 30 of CI 27 and in
consequence, wrongly ruled that
the Notice of Appeal could have
been filed by other officials of
the Council.
iii.
The Judicial Council of
the National House of Chiefs
erred when they failed to
consider the fact that the trial
Judicial Committee ignored the
respondent’s petition to the
trial committee to determine a
matter pending between himself
and Nana Guahyia Ababio, New
Edubiasehene which was pending
before the committee, was first
in time, and whose outcome was
likely to have a direct bearing
and influence on the matter.
iv.
The Judicial committee of
the National House of Chiefs
failed to exercise its
discretion judicially and thus
shut out the defendant
appellant, thus perpetually
preventing him from putting
forward his side of the case.
After studying the records of
proceedings very closely we are
of the opinion that this appeal
does not deserve any lengthy
treatment. We believe that both
the Regional and the National
Houses’ reasoning to the effect
that the failure of the
appellant to react to the rather
damning affidavit of the
registrar was fatal to his case,
cannot be impeached. Not only
did the registrar deny the
assertion of the applicant that
there was nobody on duty to
receive the applicants documents
for filing, he made a positive
and verifiable statement to the
effect that when the applicant’s
solicitor complained of the fact
that the documents had not been
filed, he (the registrar) wrote
to Lawyer F.K. Amoah (who was
counsel at the time) and
indicated that nobody had come
to file any documents.Positive
and verifiable as this statement
was the appellant did not find
it needful to deny it.
We
agree with both theRegional and
National houses that failure to
rebut this affidavit was fatal
to the case of the appellant so
the appeal fails on this
ground.
In
his 3rd ground of
appeal, the appellant emphasizes
the point that by not granting
his application for extension of
time, both the Regional and
National Houses completely shut
the door of litigation in his
face thus, permanently
preventing him from telling his
side of the case. Here again, we
believe that both the Regional
and National Houses were right
in not granting an extension of
time to appeal on the grounds
that the time lapse was too
much. In reality the Regional
and National Houses did not
exercise any discretion in this
matter. They merely threw the
book at the appellant.
Rule 13(2) of Chieftaincy
(National and Regional Houses of
Chiefs ) Procedure Rules, 1972
CI.21 provides,
“In
accordance with sections 22(5)
and 23 (6) of the Chieftaincy
Act 1971 (Act 370), any appeal
to the National House of Chiefs
against a judgment or order of a
Regional House of Chiefs, or to
a Regional House of Chiefs
against a judgment or order of a
Traditional Council, shall be
lodged within thirty days after
the judgment or order appealed
against. Provided that the
Judicial Committee to whom the
appeal is directed may, if it
appears to it to be just so to
do, extend the said period in
any particular case for a
further period expiring not
later than two months after the
date of the decision appealed
against”
The discretion of both houses to
extend time can be exercised
within two months of the
judgment and no more. So if
either the Regional or National
Houses had purported to grant an
extension when the application
was filed after 7 months such an
extension would have been a
nullity and the appeal thrown
out. This point was made more
succinctly by our very able
sister, Sophia Akuffo JSC in the
case of DOKU V PRESBYTERRIAN
CHURCH OF GHANA 2005-2006 SCGLR
200 holding 2; She said
“(2) It
is not for nothing that rules of
court procedure stipulate time
limits. Because it is in the
public interest that there shall
be an end to litigation, the
rules of the Supreme Court have
set time limits to guide
litigants with a view to
achieving certainty and
procedural integrity. Otherwise,
in the case of appeals, any
litigant may conveniently take
his or her time to decide when
to resurrect the litigation of
suits in which decisions have
been given. Thus time limits are
too important for this court to
ignore, even if it had any
discretionin the matter; and
although one might empathise
with the appellant’s prayer for
this court to take into account
the rules of equity to “prevent
the respondent from taking undue
advantage of the weakness or
necessity” of the appellant, the
court cannot craft new rules to
suit the appellant’s situation,
nor will the ends of justice and
equity be served in any attempt
on the court’s part to do so.
There is no principle of equity
that permits the court to ignore
the time limits set by the rules
so as to favour the appellant
with an undue advantage.”
This ground of appeal also
fails.
Before us the appellant has
argued for the first time
another rather strange ground of
appeal. This strange ground of
appeal reads as follows;
“The Judicial
Committee of the National House
of Chiefs erred in law when it
failed to construe the true
meaning of proper officer as
contained in Rule 13 (1) of CI
27 as interpreted in Rule 30 of
CI 27 and in consequence,
wrongly ruled that the notice of
appeal could have been filed by
other officials of the Council.”
Rule
13(1) of CI 27
reads
‘An appeal to a
judicial committee in accordance
with the chieftaincy act 1971
(Act370) shall be brought by
notice of appeal in form 2 set
out in the first schedule signed
by the appellant or his counsel
and filed with the proper
officer of the judicial
committee whatsoever decision is
appealed against’.
Proper officer has been defined
in Rule 30 of of C.I 27
as
“Proper officer means
the officer, howsoever named
performing the functions of
Registrar in relation to a
judicial Committee”.
The appellant has submitted that
the affidavit of the registrar
clearly indicated that the
registrar had been taken ill and
that he was posted there later.
So counsel submits that during
that period there was no proper
officer to receive and file his
documents.
Coming from a party who has
maintained all along that the
registrar and other personnel
deliberately avoided him and/or
refused to accept his documents
for filing, we found this ground
of appeal and the submissions
thereon very strange and rather
confusing.
Is
it the appellants case that the
registrar was not there
(deliberately or not) and the
other persons refused to accept
his documents for filing, or
that the registrar was not
around (deliberately or not) and
though other persons were around
they were not ‘proper officers’
so he could not entrust his
documents to them for filing?
If
it is his case that the
registrar and his people all
refused to accept his documents
then it is our holding that the
registrar’s undenied affidavit
jettisons his case. If his case
rests on the meaning he has
ascribed to a proper officer in
his submission, then it is our
holding that his understanding
of ‘proper officer’ is wrong.
The meaning ascribed to proper
officer in Rule 30 is
self-explanatory and needs no
further interpretation. It means
exactly what it says. A proper
officer means the officer,
howsoever named performing the
functions of Registrar in
relation to a judicial
committee.
A
registrar has specific functions
assigned to him to perform. If
he is sick or absent and a clerk
is assigned to act as the
registrar he becomes the “proper
officer’ because for that moment
he is performing the functions
of the registrar. The normal
thing is for somebody to be made
to take over the
responsibilities of a registrar
in his forced absence through
ill health or for whatever
reason. Such a person acts and
is the proper officer until the
registrar returns. If his
absence will be for a longer
period, a new person is
transferred from another station
to hold the fort on relieving
duties or permanently. So
whether a person acts
temporarily or permanently takes
over, there is always a proper
officer.
We
believe that there is absolutely
no merit in the appeal before us
and the same is dismissed.
(SGD)
P. BAFFOE- BONNIE
JUSTICE OF THE
SUPREME COURT
(SGD)
S. A. B. AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
(SGD)
V . AKOTO – BAMFO (MRS)
JUSTICE OF THE SUPREM
COURT
(SGD)
YAW APPAU
JUSTICE OF THE SUPREME COURT
(SGD)
G. PWAMANG
JUSTICE OF THE SUPREME COURT
COUNSEL:
OBENG MANU JNR, ESQ. FOR THE
DEFENDANT/APPELLANT /APPELLANT.
P. ADU – GYAMFI ESQ. FOR THE
PLAINTIFFS/RESPONDENTS
/RESPONDENTS |
