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Chieftaincy - Cause or matter
affecting chieftaincy -
Jurisdiction- Section 76 and 26
of the Chieftaincy Act2008,
Act759 and Section 57 of the
Courts Act1993 Act 259 -Whether
purported decision
taken at an alleged Council
meeting procuring to have
inserted the name of the
defendant as the Osu Mantse in
the National Register of chiefs
was obtained by the fraud -
Whether matter was a cause or
matter affecting chieftaincy
HEADNOTES
The
plaintiff/appellant/appellant,
hereafter described as
plaintiff, issued a writ of
summons against the 5 defendants,
A declaration firstly, that the
purported decision of the 1st defendant
taken on or about 23rd August
2010 at an alleged Council
meeting presided over by the 2nd defendant
(concerning the forwarding to
the 3rd defendant of
the Chieftaincy Declaration
Forms of the 5th Defendant
for the purposes of procuring
the insertion of the name of the
5th defendant as the
Osu Mantse in the National
Register of chiefs by the 4th Defendant,
was a decision obtained by the
fraud and collusion of the 2nddefendant
and 5th defendant OR
ALTERNATIVELY by the fraud and
misrepresentation of the 2nd defendant
alone. An order upon the 4th defendant
forthwith to restore the name of
the plaintiff back into the
National Register of chiefs as
the incumbent, undestooled Osu
Mantse; and A perpetual
injunction restraining the
defendants and each of them,
whether by themselves, their
servants, agents, privies
whomsoever or otherwise
howsoever, from holding out the
5th defendant in any
manner whatsoever as ever having
been properly installed as the
Osu Mantse. -
HELD :-
The issues in this case are
clearly matters that cannot be
resolved without going into
whether the plaintiff was ever a
chief and whether he has ever
been properly destooled, and
whether the 5th defendant
is a person legitimately
installed as Osu Mantse. These
are questions that can only be
appropriately asked and answered
in the Greater Accra House of
Chiefs. It is therefore our
considered view that both the
High Court and the Court of
Appeal were right and so the
appeal is dismissed.
STATUTES REFERRED TO IN JUDGMENT
Courts Ordinance, cap 4
(1951Rev) section 88
Chieftaincy Act (Act 370),
section 15(1)
Chieftaincy Act 2008, Act 759
Section 76
1992 constitution article 270(3)
CASES REFERRED TO IN JUDGMENT
Oda Ayiku IV vrs Attorney
General (Borketey Laweh XIV
Applicant in [2010] SCGLR 413
Anim vrs Ababio [1973] 1 GLR 509
Osu Stool v Unilever Ghana ltd
(Nii Nortey Owuo III,
Intervening) (2006)1 MLRG218,
In Re Osu Stool (2005-2006)
SCGLR 628
In re WaNa Republic v Fijoli Na
Ex parte Yakubu 1987-88, 1GLR,50
CA
The Rep. v Court of Appeal Ex
parte Ekunten (1989-90) 2 GLR
168 SC.
The Rep vs High Court, Koforidua
Exparte Nyame (1994-95) GBR,513
SC,
Dam v Addo (1962) 2 G.L.R. 200,
S.C
Rep. v. High Court, Accra; Ex
Parte: Odonkorteye (1984-86) 2
GLR 148, SC
Kwagyane & Ors v. Agyei & Ors.
( 1992)) 1 GLR 189, CA holdings
(3) & (4)
BOOKS REFERRED TO IN JUDGMENT
The Law of Chieftaincy in Ghana
[2008]
DELIVERING THE LEADING JUDGMENT
BAFFOE-BONNIE JSC:-
COUNSEL.
W. A. N. ADUMUA - BOSSMAN WITH
HIM NII BI AYIBONTEY FOR THE
PLAINTIFF/ APPELLANT/ APPELLANT.
KWAME FOSU GYEABOUR FOR THE 5TH DEFENDANT/
RESPONDENT /RESPONDENT.
JUDGMENT
BAFFOE-BONNIE JSC:-
This is an appeal against
the ruling of the Court of
Appeal delivered on the 25th
day of June 2015. For a better
appreciation of the main issues
in this appeal let me attempt to
set down in detail the facts
giving rise to this appeal.
The
plaintiff/appellant/appellant,
hereafter described as
plaintiff, issued a writ of
summons against the 5
defendants, including Nii Okwei
Kinka Dowuona VI, hereafter
described as 5th
defendant/ respondent, praying
for
1 A declaration firstly, that
the purported decision of the 1st
defendant taken on or about 23rd
August 2010 at an alleged
Council meeting presided over by
the 2nd defendant
(concerning the forwarding to
the 3rd defendant of
the Chieftaincy Declaration
Forms of the 5th
Defendant for the purposes of
procuring the insertion of the
name of the 5th
defendant as the Osu Mantse in
the National Register of chiefs
by the 4th Defendant,
was a decision obtained by the
fraud and collusion of the 2nd
defendant and 5th
defendant OR ALTERNATIVELY by
the fraud and misrepresentation
of the 2nd defendant
alone.
2 A declaration secondly, that
all steps taken by the 3rd
defendant pursuant to its
reception and approval of the
said decision forwarded to it by
the 1st defendant,
and the consequential forwarding
of the said Chieftaincy
Declaration Forms of the 5th
defendant by the 3rd
defendant to the 4th
defendant for the said purposes,
were similarly null and void as
tainted by the said fraud and
collusion OR the said fraud and
misrepresentation of the 2nd
defendant and/or by the similar
fraud and collusion of the 3rd
defendant and 5th
defendant.
3 A declaration thirdly, that
all steps taken by the 4th
defendant pursuant to its
reception and approval of the
said decision of the 1st
defendant, forwarded to it by
the 3rd defendant and
the consequential recognition of
the 5th defendant as
Osu Mantse by the 4th
defendant’s unlawful insertion
of his name as Osu Mantse in
the National Register of Chiefs
and/or otherwise unlawfully
holding him out as Osu Mantse in
the absence of any proof that
the plaintiff has been destooled
and the Osu Stool thereby made
vacant to be filled by a
successor Osu Mantse, are steps
which are null and void, and of
no legal effect whatsoever.
4 A declaration fourthly, that
the respective approvals and
pursuant steps taken by the 1st
defendant and the 3rd
defendant concerning the
forwarding of the Chieftaincy
Declaration Forms, and all
pursuant steps whatsoever, taken
by the 4th defendant
to hold out the 5th
defendant as the Osu Mantse ,
are null and void and of no
legal effect by reason that the
deletion of the plaintiff’s name
from the National Register of
Chiefs by the 4th
defendant is not only void by
also does not amount to
destoolment of the plaintiff in
any event.
5 A declaration fifthly, that
the said respective approving
decisions and pursuant steps
taken by the 1st ,3rd
and 4th defendants
were taken at each level
contrary to the respective
standing orders and/or relevant
laid down procedures of the 1st
,3rd and 4th
defendants.
6 Exemplary damages for the said
collusive fraud and
misrepresentations on the part
of the defendants.
7 Further or other relief as in
the circumstances may be just or
proper, including, in
particular:
a An order upon the 4th
defendant forthwith to restore
the name of the plaintiff back
into the National Register of
chiefs as the incumbent,
undestooled Osu Mantse; and
b A perpetual injunction
restraining the defendants and
each of them, whether by
themselves, their servants,
agents, privies whomsoever or
otherwise howsoever, from
holding out the 5th
defendant in any manner
whatsoever as ever having been
properly installed as the Osu
Mantse.
The writ was attached
with a statement of claim the 4th
paragraph of which read as
follows;
“4. The 5th Defendant
is the Pretender Osu Mantse who
was unlawfully installed as Osu
Mantse on 4th May
2007, when the Osu Stool was NOT
vacant, since the plaintiff then
as still now, was in occupation
of the same, thereby rendering
the 5th Defendant’s
status null and void up to now……”
The plaintiff followed
this writ with an application on
notice for an order of
interlocutory injunction praying
for an order “restraining the
defendants and each of them,
whether by themselves, their
servants, agents, privies
whomsoever, or otherwise
howsoever, from holding out the
5th defendant in any
manner whatsoever as the Osu
Mantse, entitled in any manner
whatsoever to perform or
exercise the function or office,
(customary and/or statutory), of
the Osu Mantse pending the
determination of this action…..”
The 4th
defendant filed an appearance
per counsel and followed it up
with an application to dismiss
the writ on the ground of want
of jurisdiction since this is a
cause or matter affecting
chieftaincy and therefore
cognisable only in the
appropriate chieftaincy forum.
At the hearing of the
application for injunction, the
respondent raised his objection
to the jurisdiction of the Court
again. In his ruling the learned
judge stated the principles
governing the grant or refusal
of injunctive reliefs as follows
a.
The applicant must demonstrate
that unless an injunction is
granted, his or her own rights
would be nullified or impaired
by the time the trial is over
and that
b.
Neither the determination nor an
order by way of an injunction
would constitute a declaration
of the rights of the parties on
the merits of the main action.
After this reminder, the learned
Judge ruled as follows;’
“On the material and
evidence before me, I am of the
view that granting the remedy
that the plaintiff seeks, an
injunction pending trial, would
be close to granting an ultimate
remedy. It seems to me that the
plaintiff is inviting this court
to find that the plaintiff has
the right to occupy the Osu
stool, such an order will
compromise the fair
determination of the issues as
to who has the right to occupy
the stool by the Ga Traditional
Council and The Greater Accra
Regional House of Chiefs.”
The learned trial Judge then
dealt with the preliminary
objection to its jurisdiction
and concluded as follows;
“Having perused the
statement of claim and the
motion paper, I am left with a
stronger impression that counsel
for the plaintiff has presented
a cause or matter affecting
chieftaincy and this is not a
case which the High Court should
exercise jurisdiction. I find
that the judicial committee of
the House of Chiefs is clearly
the more convenient and
appropriate forum, no harm would
be done if this application is
commenced at the House of
Chiefs. In the circumstances
this court is declining
jurisdiction over the claims,
the writ and motion is(sic)
dismissed…”
Feeling aggrieved by this ruling
the plaintiff appealed to the
Court of Appeal on the following
grounds.
i The Ruling is against the
weight of the affidavit
evidence.
ii The Ruling erred by declining
jurisdiction on the patently
untenable ground that fraud in
procuring an imposter’s name to
be inserted in the National
Register of Chiefs falls within
the statutory definition of a
cause or matter affecting
chieftaincy under section 117(1)
of the Courts Act, 1993 (Act
459) or section 76 of the
Chieftaincy Act, 2008 (Act 759)
iii FURTHER OR IN THE
ALTERNATIVE the learned judge
misdirected himself by failing
to appreciate the binding effect
on him of superior decided
authorities such as
a Kwagyane & Ors v. Agyei & Ors.
( 1992)) 1 GLR 189, CA holdings
(3) & (4)
b Rep. v. High Court, Accra; Ex
Parte: Odonkorteye (1984-86) 2
GLR 148, SC holding (2) and per
Adade JSC dessentiente; and
holding (3) (ii) per Adade JSC
further dissentiente.
i The Ruling offends or
breaches the rule in Dam v Addo
(1962) 2 G.L.R. 200, S.C
ii The Ruling was perverse and
only calculated to protect and
provide a cover-up for the 4th
& 5th defendants
(shielding them from having to
answer the fraud and particulars
of fraud pleaded and in some
cases attested by pleaded
documentation in the plaintiff’s
Statement of Claim) with the
predictable result of
frustrating a fair trial,
investigation and exposure of
scandalous wrongdoing pleaded in
the Statement of Claim as
affecting all three established
levels of institution of
chieftaincy, namely at
Traditional council level,
Regional House of chiefs level
and National House of chiefs
level.
After reviewing the decision and
the submissions of both
counsels, the Court of Appeal
came to a conclusion that the
Trial judge was right in
dismissing the writ on the
grounds that the matter was a
cause or matter affecting
chieftaincy. The plaintiff has
appealed to us.
There is a small point of law
which we will like to briefly
comment on. It will be seen that
the trial judge dismissed the
application for injunctive
relief on one ground before
upholding the preliminary
objection on the grounds of
jurisdiction. Even though it is
not a ground of appeal before us
and it really did not affect his
overall reasoning on the issues
before him, it is worth pointing
out, as the apex court that,
since by his reasoning the writ
was not before the appropriate
forum, he was not vested with
jurisdiction to rule on the
application for injunction. May
be he felt obliged to rule on it
since that was the main
application before him. But this
court has stated time without
number that jurisdiction has to
be determined first before
anything else. If a court has no
jurisdiction to entertain any
writ then an application
subsequent to the writ cannot be
entertained either.
The present appeal before us is
premised on two main grounds
filed on 26th June
2015
(1)The Court of Appeal
overlooked the critical issue as
to the 5th
defendant/Respondent’s alleged
capacity as Osu Mantse
purportedly installed on the
non-vacant Osu Stool on 4th
May 2007 notwithstanding the
total inability of the said
Respondent to prove that the
said Appellant had ever been
destooled.
(2)The judgment was
against the weight of evidence
on record
(3) Additional grounds
will be filed. (none was filed)
The appellant argued his
case extensively in a 24-page
written submissions and
concluded as follows
“it is respectfully
submitted that all the foregoing
matters show without dobt that
great injustice has been visited
upon Nii Nortey Owuo III, the
true Osu Mantse and the instant
Applicant herein. In fairness
therefore it is hereby prayed on
his behalf that their Lordships
may be pleased to allow the
appeal, award damages for fraud
and substantial costs here and
in the two Courts below, and
furthermore to grant an
injunctive relief sought by the
notice of appeal.”
We must state from the very
onset that after reviewing the
evidence on record we believe
that both the High Court and the
Court of Appeal were right in
their conclusion that, despite
the claim and the deliberate
attempt to argue otherwise, this
is clearly a cause or matter
affecting chieftaincy, and
therefore the appropriate forum
to vindicate his claim in this
case should be the Judicial
Committee of the Greater Accra
House of Chiefs! It is not how
the plaintiff has couched his
claim, which in this case is a
claim of fraud et al, but the
substance of the claim, that
should determine the appropriate
forum.
Section 26 of
the Chieftaincy Act2008, Act759
provides as follows;
Subject to section 22, a
regional house has original
jurisdiction in matters relating
to a paramount stool or skin or
the occupant of a paramount
stool or skin including
queenmothers to a paramount
stool or skin.
Section 57 of the Courts
Act1993 Act 259 provides as
follows
“Subject to the Constitution,
the Court of Appeal, the High
Court, a Regional Tribunal, a
Circuit Court and a District
Court shall not entertain either
at first instance or on appeal a
cause or matter affecting
chieftaincy’’
Section 76 of the Chieftaincy
Act 2008, Act 759 on the other
hand provides that
“cause or matter affecting
chieftaincy” means a cause,
matter, question or dispute
relating to any of the following
(a)
The nomination, election,
selection, or installation of a
person as a chief or the claim
of a person to be nominated,
elected, selected or installed
as a chief
(b)
The deposition of a chief.
In his book; The Law of
Chieftaincy in Ghana [2008]
Advanced Legal Publications,
Accra Justice Brobbey at page
232 wrote “if evidence on how
the party was nominated,
elected, selected, enstooled or
enskinned, deposed or abdication
is to be adduced before the
issue raised in the case can be
determined, then the case is
almost certainly a cause or
matter affecting chieftaincy”
These provisions have been
given judicial interpretation in
a number of cases including
In re WaNa Republic v Fijoli Na
Ex parte Yakubu 1987-88, 1GLR,50
CA
The Rep. v Court of Appeal Ex
parte Ekunten (1989-90) 2 GLR
168 SC.
In the cases of The Rep vs
High Court, Koforidua Exparte
Nyame (1994-95) GBR,513 SC,
the Supreme Court held as
follows:
“The intention of the
legislator over time as in the
courts Ordinance, cap 4
(1951Rev) section 88……….and
Chieftaincy Act (Act 370),
section 15(1) had been to
entrust the adjudication of
matters affecting chieftaincy
exclusively to the chieftaincy
tribunals, now judicial
committees of traditional
councils, regional and national
houses of chiefs. The language
of article 270(3) of the 1992
constitution show that the
framers of the constitution were
aware of the existing
legislative provisions governing
the institution of chieftaincy
and the practice of the courts.
The ambit of the provision was
wide to accommodate section
15(1) of the Chieftaincy Act
(act 370) as an existing law
which gave exclusive
jurisdiction to traditional
councils in causes or matters
affecting chieftaincy in their
areas of authority, thus
limiting the ostensibly
all-embracing jurisdiction of
the high court in all matters
under article 140(1) of the
Constitution. A definite
intention was discernible on the
part of the framers of the
Constitution to create a
hierarchy of chieftaincy
tribunals, with the Supreme
Court at the apex to handle
disputes touching the
institution.”
From the totality of the
evidence gleaned from his writ
of summons, statement of claim
and other processes, this court
is left in no doubt that the
plaintiff is asking the court to
recognize him as the lawful
occupant of the Osu stool while
declaring the 5th
defendant as an usurper to the
stool and therefore should not
be accorded any legitimacy.
For example, in his writ
he claims in relief three as
follows;
“ A declaration thirdly, that
all steps taken by the 4th
Defendant pursuant to its
reception and approval of the
said decision of the 1st
Defendant, forwarded to it by
the 3rd Defendant,
and the consequential
recognition of the 5th
Defendant as Osu Mantse by the 4th
Defendant’s unlawful insertion
of his name as Osu Mantse in the
National Register of Chiefs
and/or otherwise unlawfully
holding him out as Osu Mantse in
the absence of any proof that
the plaintiff has been destooled
and the Osu stool thereby made
vacant to be filled by a
successor Osu Mantse , are steps
which are null and void and of
no legal effect whatsoever”
Then he claims in
paragraph 4 of his attached
statement of claim follows;
“The 5th Defendant is
the pretender Osu Mantse who was
unlawfully installed as Osu
Mantse on 4th may
2007, when the Osu Stool was NOT
vacant, since the Plaintiff then
as still now, was in occupation
of the same, thereby rendering
the 5th Defendant’s
status null and void up to now.
Furthermore, the purported
installation of the 5th
Defendant was held to constitute
a contempt of both the judgement
of the Court of Appeal dated 18th
February 2005 in Osu Stool v
Unilever Ghana ltd (Nii Nortey
Owuo III, Intervening) (2006)1
MLRG218, and the judgement of
the Supreme Court dated 17th
may 2006 in Re Osu Stool
(2005-2006) SCGLR 628, thereby
rendering his purported status
as Osu Mantse doubly null and
void.’’
Clearly these two quoted
statements put together is
challenging the legitimacy of
the enstoolment of the 5th
defendant as against the
plaintiff who claims he has not
been destooled as the Osu
Mantse. And this is cause or
matter affecting chieftaincy!
Again in his writ of
summons the plaintiff claimed as
follows;
(7) Further or other relief as
in the circumstances may be just
or proper, including in
particular
(a) An order upon the 4th
defendant forthwith to restore
the name of the plaintiff back
into the National Register of
Chiefs as the incumbent Osu
Mantse.
(b) A perpetual injunction
restraining the defendants and
each of them, whether by
themselves, their servants,
agents, privies whomsoever or
otherwise howsoever, from
holding out the 5th
defendant in any manner
whatsoever as ever having been
properly installed as the Osu
Mantse.
These are repeated and
amplified in the reliefs sought
in his notice of appeal filed
before us as follows;
(2) A consequential declaration
that the said respondent cannot
be the Osu Mantse in succession
to the said appellant who has
not been proved to have been
destooled
(3) A consequential perpetual
injunction restraining the said
respondent, whether by himself,
his servants, agents, privies,
whomsoever, or otherwise
howsoever from holding himself
out in any manner whatsoever to
be the Osu Mantse including, in
particular, purporting in any
manner whatsoever, to exercise
any of the customary and/or
statutory powers or function of
the Osu Mantse.
If his long and laboured
submissions before the High
Court, the Court of Appeal and
before us, created any doubt as
to what the plaintiff is
claiming, these quoted
statements clearly expose the
real and substantive reliefs
being sought by the plaintiff.
In the case of In Re Nungua
Chieftaincy affairs; Oda
Ayiku IV vrs Attorney General (Borketey
Laweh XIV Applicant in [2010]
SCGLR 413 Ansah JSC at page
432 concurring in his decision
in the case of Anim vrs
Ababio [1973] 1 GLR 509
held;
“when the jurisdiction of
the High Court in a cause or
matter affecting chieftaincy
arose in the case of Anim vrs
Ababio, it was held that
jurisdiction was determined by
the plaintiffs’ demand and not
by a defendant’s answer, and the
court must apply the test of
what was the real issue between
the parties and not look at the
wording of the plaint”
The issues in this case
are clearly matters that cannot
be resolved without going into
whether the plaintiff was ever a
chief and whether he has ever
been properly destooled, and
whether the 5th
defendant is a person
legitimately installed as Osu
Mantse.
These are questions that
can only be appropriately asked
and answered in the Greater
Accra House of Chiefs. It is
therefore our considered view
that both the High Court and the
Court of Appeal were right and
so the appeal is dismissed.
(SGD) P. BAFFOE -
BONNIE
JUSTICE
OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) A. A. BENIN
JUSTICE OF THE SUPREME COURT
(SGD)
YAW APPAU
JUSTICE OF THE SUPREME
COURT
(SGD) G. PWAMANG
JUSTICE OF THE
SUPREME COURT
COUNSEL
W. A. N. ADUMUA - BOSSMAN WITH
HIM NII BI AYIBONTEY FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
KWAME FOSU GYEABOUR FOR THE 5TH
DEFENDANT/RESPONDENT
/RESPONDENT. |
