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J U D G M E N T
ATUGUBA, J.S.C:
The Osu Stool, the appellant
herein purportedly acting
through its lawful attorney, Nii
Ako Nortei II, the Mankralo of
Osu brought an action in the
High Court Accra in respect of
some Lands in Accra. However,
Nii Nortey Owuo III intervened
in the said suit by motion
praying to be substituted as the
sole person who can represent
the Osu Stool in that litigation
on the ground that he is the Osu
Mantse. The High Court
dismissed his application. When
his application for Review
failed he successfully appealed
to the Court of Appeal. The
Mankralo has appealed to this
court.
The Mankralo’s counsel submits
that the
applicant/respondent/respondent’s
application for substitution, in
his stead, as the sole and
proper person to represent the
Osu Stool in the aforementioned
suit in the High Court was
fought on affidavit evidence,
which showed that the
intervener’s claim to be the Osu
Mantse (Chief of Osu) was
challenged by him. In the
circumstances, so the argument
goes, this was a cause or matter
affecting chieftaincy over which
the High Court has no
jurisdiction to determine.
On the facts of this case no
real or genuine question arose
concerning chieftaincy. The
intervener attached to his
motion, exhibit NNOI from the
National Register of Chiefs
evidencing his status as the Osu
Mantse. Under Section 50(8) of
the Chieftaincy Act, 1970 (Act
370) such an extract being
evidence of “The contents
of the Register shall be prima
facie evidence of any facts or
particulars stated therein.”
The appellant sought to nullify
the effect of exhibit NNOI by
resort to exhibit JKI and a
publication in the Local
Government Bulletin No.158 dated
15th August 1986.
Exhibit JKI is a letter from the
Greater Accra Regional
Administrative Officer, dated 5th
August 1986 stating inter alia
that in accordance with
“Government directive as
announced on Friday 1st
August, 1986 regarding the above
subject,” government
had withdrawn recognition from
the intervener as Osu Mantse and
that all processes leading to
the acquisition of his status as
a chief had been utterly
nullified. In the court of
Appeal the appellant’s counsel
fastened on this and with
ingenuity contended that as this
was an act of the PNDC
government the same is rendered
inviolable by the transitional
provisions of the 1992
Constitution. It is noticeable
however that the publication in
the Local Government Bulletin,
No. 158 dated 15th
August 1986, though subsequent
in time to the said letter of
the Regional Administrative
Officer, merely relates to
withdrawal of recognition.
Indeed exhibit JKI itself is
headed “GOVERNMENT WITHDRAWAL
OF RECOGNITION OF NII NORTEY
OWUO III (KNOWN IN PRIVATE LIFE
AS DAVIT NORTEY ASHONG) AS OSU
MANTSE”
It is common knowledge that the
PNDC did not alter the
substantive positions of chiefs
in the manner claimed for the
Letter of the Regional
Administrative Officer. The
PNDC did so through enactments.
The Regional Administrative
Officer’s letter merely recited
an alleged governmental
directive without setting the
same out. Against the known
legal framework within which the
PNDC and past governments dealt
substantively with chieftancy in
this country, namely by
legislation, it cannot be said
that the RAO’s letter has raised
any real presumption of
regularity of official acts. It
is too erratic. It is inherent
in exhibit JKI that the RAO
misunderstood the legal import
of withdrawal of governmental
recognition of a chief.
In the circumstance the
appellant should have provided
the factual proof upon which the
transitional provisions
shielding the acts of the PNDC
can be invoked, see REPUBLIC
V. DIRECTOR OF PRISONS; Ex-parte
SCHACKLEFORD (1981) GLR 554 and
KWAKYE V. ATTORNEY GENERAL
(1981) GLR 9 S.C. The
appellant did not do so. The
Court of Appeal therefore held
that exhibit JKI had no value as
to the customary status of the
respondent. It is trite
learning that mere governmental
withdrawal of recognition as it
obtained before the 1979 – 92
constitutions of Ghana, operated
to deprive the affected chief
not of his customary status and
functions as a chief but only
his statutory functions.
The appellant also contends that
the Court of Appeal’s reliance
on exhibit NNO3, a ruling of the
Ga Traditional Council dated the
28th day of March
2002 in Suit No.G TC/JC.2/99
entitled Solomon Nortey Owuo
vs. Emmanuel Quarshie Nortey &
another dismissing the
Plaintiff’s action, apparently
seeking to impeach the chiefly
status of the respondent is
erroneous. It is said that
because of the pendency of an
appeal therefrom to the Greater
Accra Regional House of Chiefs
it is a cause or matter
affecting chieftaincy, over
which the ordinary courts have
no jurisdiction. It is
difficult to appreciate this
contention. The pendency of an
appeal does not mean that there
is no subsisting judgment on the
subject matter of the appeal,
which can be used for legal
purposes.
The mere incidence of an issue
relating to chieftaincy in
proceedings in the ordinary
courts does not constitute it as
a cause or matter affecting
chieftaincy. Whether it is so
or not depends on whether on the
facts of the particular case a
genuine cause or matter
affecting chieftaincy has
arisen, see REPUBLIC V.
HIGH COURT, KOFORIDUA; EX PARTE
BEDIAKO II (1998-99) SCGLR91.
It must be stresses that the
action in the High Court, ab
initio, concerned ordinary
landlord and tenant and not
chieftaincy.
In NYAMEKYE V. TAWIAH
(1979) GLR 265 C.A (Full
Bench) at 269 Apaloo C.J
delivering the judgment of the
court said: “The policy reason
underlying the statutory
conferment of both original and
appellate jurisdiction in
chieftaincy disputes on
traditional tribunals, is
that the personnel of those
courts are, by reason of their
background and training,
knowledgeable in indigenous Law
and custom to competently
determine these matters.”
In this case the Court of Appeal
did not purport to determine
anything relating to indigenous
law and custom relating to
chieftaincy. The Court of
Appeal had to consider the legal
effect of an extract from the
National Register of Chiefs.
The effect of such an extract is
statutory and is not limited to
the traditional Houses of
Chiefs. The judgment of the Ga
Traditional Council exhibit
NNO3, which strengthens the
Respondent’s case though pending
on appeal is still a subsisting
judgment which any court can act
on. Indeed in OTU V.
OWUODZI (1987-88)1 GLR 156 S.C
at 204 – 205 Adade J.S.C,
delivering the judgment of the
Supreme Court held that it is
competent for even a traditional
House of Chiefs to take notice
of the effect of a judgment of
the ordinary courts relating to
land even though it has no
jurisdiction in land matters
because the judgment of a, court
can be applied by any other
court.
The consideration of the effect
of the withdrawal of
governmental recognition of a
chief is equally a matter of
pure ordinary Law and not a
matter of indigenous law and
custom and property cognisable
by the ordinary courts. In the
result all that the Court of
Appeal decided is that since the
intervener, the Osu Mantse had
produced prima facie proof of
his status as a chief by means,
inter alia, of an extract from
the National Register of Chiefs
and since the only attacks
mounted against it by the
appellant were purely ordinary
legal issues, as herein before
set out supra, which were
clearly misconceived, no genuine
or real question relating to a
cause or matter affecting
chieftaincy was involved in the
intervener’s application for
substitution in the High Court
of Justice, Accra. In the
circumstances counsel’s reliance
on AVADALI & ANOR V.
AVADALI II (1992 – 93) GBR 733
S.C, is misconceived.
The first ground of appeal to
the effect that on the strength
of the evidence there are other
persons such as the Mankralo who
can represent the Osu Stool in
litigation and therefore the
judgment of the Court of Appeal
is against the weight of
evidence in startling. The
question whether the Osu Mantse
is the proper person to
represent the Osu Stool in
litigation is not a question of
fact but of customary law.
Indeed if counsel were to read
even the passage he had quoted
from the case of OFORI
ATTA II & ORS VS. BOATENG
(1957) 3 WALR 38 more
closely he would not have had
any difficulty. The alleged
passage at pages 38 – 40 of the
Report as quoted by counsel for
the appellant is as follows:
“by native
custom there is a class of
persons who, together with the
occupant of the Stool, are its
natural representatives. This
class includes the Linguist and
other office holders and, save
in exceptional circumstances,
the person representing the
Stool in litigation will be
drawn from it. if a person,
claiming to represent a stool,
establishes that he is a holder
of an office within the class,
this will be sufficient …………..
to establish his authority to
represent the Stool. It is
undesirable that a Native Court
should insist upon an express
authority given by the Stool
occupant since this might result
in persons other than the
natural representatives
representing the Stool”.
The sentence: “It is
undesirable that a Native Court
should insist upon an express
authority given by the Stool
occupant since this might result
in persons other than the
natural representatives
representing the Stool”
shows that the chief is the
primus inter pares and therefore
has the primary function of
representing the stool in
litigation. It could not be
otherwise since it is notorious
that customary law consists, in
the absence of rigid rules,
largely in the performance of
the reasonable in the particular
circumstances of a case, see
YERENCHI VS. AKUFFO (1905)
IREN. 362 at 367.
Indeed the full text of what
OIIennu J. said in that case at
page 40 is as follows:
“One small but very important
point in this case also calls
for comment. It is the
interpretation which the Native
Court seemed to place upon the
Native Courts (Southern Ghana)
Ordinance, s. 22. The Native
Court appeared under this
section to insist upon authority
being given in
writing by Nana Ofori Atta,
Okyenhene, and Barima Osei
Agyeman, Ohene of Asafo Akyem,
to their respective linguists,
to represent them in the suit.
Now a stool institutes or
defends a suit in the name of
the occupant. By native
custom there is a class of
persons who are “natural
representatives” of a stool,
apart from the occupant of the
stool himself. The linguist is
foremost among such “natural
representatives.”
Therefore, where a stool is a
party to a suit, all that a
Native Court requires to
permit a person, other than the
chief, to represent the
stool, is satisfaction that that
person is a recognised linguist
or holder of any of the offices
of the stool bringing him within
the class of “natural
representatives” of the stool.
If a Native Court ignores this
important principle of native
custom and insists upon a strict
interpretation of section 22 of
the Ordinance, that is, insists
upon authority being given
personally by the chief suing or
sued on behalf of the stool,
cases may arise where the chief
suing or sued may authorise a
person of his choice, within the
class of persons named in
section 22, but not within the
class of “natural
representatives,” to represent
him in the suit. The Native
Court’s acceptance of such
representation will be contrary
to native custom
and the whole proceedings may
prove to be irregular, as
happened in the case of Ofuniahu
v. Tabri Yaw and Sie Kwaku (i),
where the matter is fully
discussed.
In my opinion
the basis of
representation laid down in
section 22 of the Ordinance, and
in the other Native Courts
Ordinances, applies only to a
party appearing in a suit in his
personal capacity and not in his
capacity as chief or head of
family.”
This does not support the
truncated view of counsel. But
the matter is put beyond doubt
by the case of AKWEI V.
AWULETEY (1960) GLR 231. At
page 236 Sarkodee-Addo J.S.C (as
he then was) delivering the
judgment of the Supreme Court
said: “… we … hold that
the Osu Mantse
Co-plaintiff-appellant as
occupant of the Osu Stool is the
proper person entitled to sue
and be sued in respect of lands
title to which is vested in Osu
Stool.” (e.s)
For all these reasons the appeal
is dismissed.
W. A. ATUGUBA
JUSTICE
OF THE SUPREME COURT
G. T. WOOD(MRS.)
JUSTICE
OF THE SUPREME COURT
PROF. T. M. OCRAN
JUSTICE OF THE SUPREME COURT
J.
ANSAH
JUSTICE OF THE SUPREME COURT
R. T. ANINAKWA
JUSTICE OF THE SUPREME COURT
Mr. Francis
Achibonga Appellant.
Mr.
Adumua-Bossman for Respondent.
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