By that writ the plaintiff sought:

“A declaration that the purported elevation of the 1st defendant from the status of odikro of Nkawkaw to ohene of Nkawkaw by the 2nd defendant is against customary law and practice and null and without any effect; (b) perpetual injunction restraining the defendants from putting forth the 1st defendant as ohene of Nkawkaw.”

Upon being served with the writ, the defendants entered conditional appearance, and then moved the High Court, Koforidua, to dismiss the action for want of jurisdiction. The defendants contended that the action was a matter affecting chieftaincy, and that by section 57 of the Courts Act 1993 (Act 459) the High Court had no jurisdiction. On 28 February 1994 the High Court (coram: Omari-Sasu J) dismissed the application, holding that in his view the High Court had jurisdiction in chieftaincy matters, and that the court was competent to hear the case. In this, he based himself on article 140(1) of the 1992 Constitution. From that decision the defendants have come to this court, in an application for certiorari, asking us to quash the ruling on the ground that the High Court has no jurisdiction in chieftaincy matters.

The question of the jurisdiction of the High Court in chieftaincy matters has come up from time to time, and this court has had the occasion to make certain pronouncements on it. Oddly enough, virtually all those pronouncements have proceeded on the assumption, founded on section 52 of the Courts Act 1971 (Act 372), now section 57 of Act 459, that the High Court has no jurisdiction in chieftaincy matters. Therefore what we have done in all those cases was to determine whether the subject-matter of a suit was a cause or matter affecting chieftaincy. Once we had the answers, the conclusion flowed automatically, as night follows day, and vice versa. We have not posed to ourselves the question whether those laws which seek to exclude the High Court from chieftaincy matters are themselves valid laws, and ought to be applied. This latter duty we seem to have left to the High Court to discharge. The present case is a clear example.

In 1990 the court decided Republic v Court of Appeal, ex parte Ekuntan II [1989-90] 2 GLR 168, SC. The case concerned the recovery of a stool for the use of a newly installed chief, a chieftaincy matter within the meaning of that phrase in section 66 of the Chieftaincy Act 1971 (Act 370) (now section 117(1) of Act 459). We concluded automatically that the High Court had no jurisdiction to entertain it, making reference to section 52 of the Courts Act 1971 (Act 372). Avadali v Avadali [1992-93] GBR 733, SC, like Ekuntan II was also a ruling in an application for certiorari. The plaintiff had sued in the High Court to challenge the claim of one of the defendants to be the hlotator of the Anyigbe clan, in the Volta Region. He said a hlotator was no more than the title of a head of family. The defendants disputed it, and moved the High Court to dismiss the action. The High Court ruled against them. They applied to this court for certiorari to quash the ruling. On a close study of the affidavits, together with all the exhibits filed by the parties, this court found that indeed a hlotator was a sub-chief, not just a head of family. From this position, we leapt to what seemed to us to be the obvious conclusion, that the High Court had no jurisdiction. A few excerpts from that ruling will help illustrate the point being made here. At page 737 we stated:

“The question for this court to decide therefore is whether on the face of the record the plaintiffs’ case is one properly cognizable by the High Court, ie whether it is a cause or matter affecting chieftaincy or not. The defendant says ‘yes’, the plaintiffs say ‘no’.”

At page 739:

“The issue that calls for a determination therefore is simply, who or what is a hlotator? If hlotator, on the face of the record that was then before the learned High Court judge, means a chief, then the plaintiffs were out of court, if not, not.”

At page 742:

“As I see it, on the face of the record, the matter before the High Court was a chieftaincy matter. The High Court cannot declare the 1st plaintiff a hlotator or chief; it has no jurisdiction to do so, and it must decline jurisdiction. I will grant the application.”

All these pronouncements were made by Adade JSC. His Lordship Abban JSC observed at page 746:

“In other words any person designated as hlotator has the status of “Tefia” or a sub-chief. In my opinion, this is really the decisive answer to the respondents’ argument that hlotator is just an ordinary head of family as is understood in Akan community.

Thus, as I have already stated, the High Court is precluded from trying the issue or the dispute as to whether or not the first plaintiff-respondent had been properly nominated, elected and installed as hlotator, or as a sub-chief. To do so the court would be entertaining at first instance ‘a cause or matter affecting chieftaincy’. As I said the jurisdiction of the High Court was completely ousted by section 52 of the Courts Act 1971 (Act 372) now re-enacted in section 57 of the Courts Act 1993 (Act 459). In fine, want of jurisdiction of the High Court, Denu in the matter is apparent on the face of the proceedings. The only body which is competent to make the declarations sought in the writ is the traditional council of the area.”

And by my brother Amua-Sekyi JSC stated at page 749:

“I am satisfied that the lands of the Anyigbe clan are stool lands and that the claim of Aforkpa to be hlotator or head of the clan is one that he had been nominated, elected, appointed or installed as a chief. It follows that the suit now before the High Court, Denu is a cause or matter affecting chieftaincy, which the court has no jurisdiction to try. Accordingly, the proceedings so far taken therein are null and void and ought to be set aside.”

My brother Wiredu JSC on his part opined at page 749:

“After giving a careful consideration and thought to this matter, I am satisfied that the view that the High Court does not have jurisdiction in chieftaincy matters is not disputed. In fact the history of the jurisdiction in chieftaincy matters show that it has been the exclusive preserve of the traditional courts ie the judicial committee of the traditional councils, regional and national houses of chiefs to the exclusion of the various hierarchy of the judiciary, save the Supreme Court, which under the constitution, has the final say in chieftaincy matters on appeal by leave from the National House of Chiefs or by leave of the court itself. The above jurisdiction has been preserved under the 1992 Constitution to the exclusion of the judiciary, save as stated above.”

From the opinion of Bamford-Addo JSC I pick the following at pages 752-754:

“To prove that he is a sub-chief or hlotator the 1st respondents would be required to call as witnesses the kingmakers to prove that he was the proper person to be nominated, elected, and installed as a chief and this would take the case into the realms of a chieftaincy matter as defined by section 66 of the Chieftaincy Act 1971 (Act 370). In such a case the jurisdiction of the High Court would be ousted by virtue of section 52 of the Courts Act 1971 (Act 370)…

It seems to me that the respondents’ claim is basically a cause or matter affecting chieftaincy over which the High Court had no jurisdiction, but framed under colour of a land dispute which is within that court’s jurisdiction. In such situations the court should decline jurisdiction otherwise either certiorari or prohibition would lie to prevent it from wrongly assuming jurisdiction; see the case of Hunt v North Staffordshire Rail Co (1857) 2 H&N 451.”

And lastly, by Ampiah JSC at pages 758-759:

“I think the application is properly before this court. What this court is called upon to do is to find out from the papers filed whether or not the action is in substance ‘a cause or matter affecting chieftaincy’. If it is, it would have to strike out the action at the High Court for want of jurisdiction. On the other hand if it is not ‘a cause or matter affecting chieftaincy’ then the application would have to be dismissed and the parties returned to the High Court for proceedings to continue.

I am satisfied on the evidence before the court that the issue raised in the proceedings now before the High Court, Denu, is ‘a cause or matter affecting chieftaincy’; that the court therefore has no jurisdiction to entertain the suit. I would grant the application to quash those proceedings.”

I make no apologies for referring to these extracts in extenso even though the references may appear boring. The idea is to show that none of their Lordships (I included, of course) addressed his mind to the question whether, having found that the matter was a chieftaincy matter, the laws relied on (section 52 Act 372 or section 57 of Act 459) competently took the case out of the jurisdiction of the High Court. In this, the court was not alone to blame. Counsel too had assumed, and presented their cases on the basis (as counsel had done in Ekuntan too!) that the only question in issue was whether the case before the High Court was a cause or matter affecting chieftaincy. This is what was presented as the matter in dispute, and arguments proceeded on that basis. Of course, to parry what may appear to be an accusation, counsel may justifiably argue that the law is presumed to be in the bosom of the court. May be the matter is best left where it is, and not dragged. In the instant proceedings, the focus has shifted; there is agreement on all sides that the subject of the action is a cause or matter affecting chieftaincy. But the parties disagree on whether, because of this, the High Court has no jurisdiction to try it. The plaintiff says the High Court has, the defendants say the High Court has not. This now is the dispute.

It cannot be right therefore to contend that Avadali, or Ekuntan, decided the point of law as to the jurisdiction of the High Court in chieftaincy matters. It did not, precisely because that point was never in issue, it was not raised, it was never argued, and the court did not address its mind to it. I am not surprised that the learned justice of the High Court in Republic v High Court Kumasi, ex parte Nsiah [1994-95] GBR 578 observed that Avadali was decided per incuriam. What I understand him to mean is that Avadali did not decide the question of law at all, and therefore there was nothing in Avadali to bind him. I agree with him.

Attention may here be drawn to article 129(3) of the Constitution 1992:

“The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law. (Emphasis supplied.)

Avadali did not decide a question of law; it merely applied a law, ie section 57 Act 459, even if sub silentio. That question of law has now fallen to be decided by us. The finding in Avadali that among the Anyigbe people, a hlotator is a chief, is a finding of fact, which creates no binding precedent on a lower court. It may well be that in another community in the same Volta Region the word hlotator means a farmer. So the simple issue for determination in this case is the straightforward question of law: Has the High Court jurisdiction, original, appellate, or both in causes and matters affecting chieftaincy? The facts of the case, as earlier narrated are therefore strictly not relevant, except in one particular, that the 1st defendant, Nana Bonsu Nyame is not a paramount chief, either in his original status as odikro of Nkawkaw or in his elevated position as ohene of Nkawkaw. The 1960 Constitution had interesting provisions worth noting:

“41(1) There shall be a Supreme Court and a High Court, which shall be the superior court of Ghana

(2) Subject to the provisions of the Constitution the judicial power of the State is conferred on the Supreme Court and the High Court, and on such inferior courts as may be provided for by law.

42(1) The Supreme Court shall be the final court of appeal, with such appellate and other jurisdiction as may be provided for by law.

(2) The Supreme Court shall have original jurisdiction in all matters where a question arises whether an enactment was made in excess of the powers conferred on Parliament by or under the Constitution, and if any such question arises in High Court or an inferior court the hearing shall be adjourned and the question referred to the Supreme Court for decision.

(3) Subject to section (2) of this Article, the High Court shall have such original and appellate jurisdiction as may be provided for by law.”

These were provisions in the 1960 Constitution of Ghana. Article 42(3) is particularly significant. The jurisdiction of the High Court, original and appellate, was left to be decided by law, by Parliament, subject only to the reservation in article 42(2) in favour of the Supreme Court. So that by a law outside the constitution, Parliament was free to determine the extent of the original jurisdiction of the High Court and could in the process, distribute powers among any number of courts, superior and inferior, which may exercise those powers either exclusively or concurrently with one another (see article 41(2) 1960). We have come a long way from the 1960 position. At present, as in the past, the judicial power in the State is vested in the judiciary (see article 125(3) of the Constitution 1992), which has jurisdiction “in all matters civil and criminal, including matters relating to this Constitution, and such other jurisdiction as Parliament may, by law confer on it.” (See article 125(5) of the Constitution 1992).

The jurisdiction that concerns us is original jurisdiction, viz taking and dealing with a matter at first instance. The judiciary which enjoys this total power consists of two groups of courts namely:

“(a) the Superior Courts of Judicature comprising:

(i) the Supreme Court,

(ii) the Court of Appeal,

(iii) the High Court and Regional Tribunals.

(b) such lower Courts or Tribunals as Parliament may by law establish.” (article 126(1) of the Constitution 1992).

The constitution reserves certain matters to the Supreme Court to be taken at first instance: See article 130(1) and 135(1) among others. The Court of Appeal has no original jurisdiction. Therefore outside what the Supreme Court has taken, the residue of the original jurisdiction of the judiciary is by article 140(1), left with the High Court. The said article reads:

“140(1) The High Court shall, subject to the provisions of this Constitution, have jurisdiction in all matters and in particular, in civil and criminal matters and such original, appellate and other jurisdiction as may be conferred on it by this Constitution or any other law.”

Notice that although in article 126(1)(a)(iii) the High Court and the regional tribunals are in the same group, and will appear to be equal on status, article 140(1) reserves what I term the residuary jurisdiction to the High Court only, implying that the regional tribunals are not intended to enjoy jurisdiction in all matters. This is made abundantly clear in article 143(1):

“143(1) A regional tribunal shall have jurisdiction to try all offences against the State and the public interest as Parliament may, by law, prescribe.”

The regional tribunal is not a lower court. It is part of the superior court system. Yet the jurisdiction given to it by Parliament cannot be exclusive to it. It can only be enjoyed concurrently with the High Court, because of article 140(1). This is acknowledged by parliament hence the provision in section 24(1) of Act 459 that “a regional tribunal shall have concurrent original jurisdiction with the High Court in all criminal matters.” However, notwithstanding the phrase “shall have jurisdiction in all matters” used in article 140(1) the residuary jurisdiction devolved on the High Court is not exclusive to the High Court; it cannot be, for the simple reason that the lower courts to be established by parliament under article 126(1)(b) must also exercise some powers (otherwise they cannot function), and those powers must of necessity be parts of the residuary jurisdiction of the High Court. In the nature of things, because of article 140(1) the crumbs of power given to the lower courts (called inferior courts in the 1960 Constitution) cannot be exclusive to them either, otherwise the High Court will not have jurisdiction in all matters, and parliament will have been suffered to have amended the constitution sub silentio, by an ordinary piece of legislation, by changing article 140(1) to read: “the High Court shall not have jurisdiction in all matters.” This cannot be tolerated. Therefore the lower courts can only exercise whatever power is given to them, without prejudice to the High Court; which is another way of saying that both courts will exercise that particular power concurrently.

This position, as already observed, is recognised expressly by parliament in section 24(1) of Act 459 (re regional tribunals). The same cannot be said of the powers of the circuit courts and the circuit and community tribunals. Parliament has not said in Act 459 that the powers of those courts were to be exercised concurrently with the High Court. This omission notwithstanding, it seems to me plain that the High Court has concurrent jurisdiction with all lower courts in the powers given them by Act 459 in, inter alia, section 41 (circuit courts); section 44 (circuit tribunal); and sections 47 and 48 (community tribunals). Section 39 of Act 459 says:

“39 The following are by this Act established as the Lower Courts and Tribunals of Ghana: (a) Circuit Court and Circuit Tribunal; (b) Community Tribunal; (c) The National House of Chiefs, Regional House of chiefs and every Traditional Council, in respect of the jurisdiction of any such House or Council to adjudicate over any cause or matter affecting chieftaincy; and (d) such other lower courts or tribunals as Parliament may by law establish.”

These lower courts have been established under the power conferred by article 126(1)(b) under the Constitution 1992. It would seem from section 6 of the Transitional Provisions that the continued existence of the erstwhile chieftaincy courts was to last no more than six months after January 1993.

Section 24 of the transitional provisions provides that:

“24 The National House of Chiefs, the Regional Houses of Chiefs, the Traditional Councils and all Judicial Committees of those bodies in existence immediately before the coming into force of this Constitution shall, on the coming into force of this Constitution, continue in existence subject to this Constitution.” (Emphasis supplied.)

This implies that the section is subject, inter alia, to article 126(1)(b) and section 6 of the transitional provisions which latter section says:

“6 Parliament shall, within six months after the coming into force of this Constitution

(a) prescribe by law the jurisdiction of Regional Tribunals for the purposes of article 143 of this Constitution;

(b) and (b) establish lower courts or tribunals for the purposes of article 126 of this Constitution.” (Emphasis supplied.)

Parliament has taken the steps required of it under section 6 of the transitional provisions and has established the lower courts and tribunals among which are the National House of Chiefs, regional houses of chiefs and the traditional councils mentioned in section 24 of the transitional provisions). It is my view that with the passage of Act 459, section 24 the transitional provisions has ceased to have any effect, and has become spent.

It must be remembered that the transitional provisions are indeed transitional: they are not permanent provisions, and as and when appropriate steps are taken to cater for any matter under them, the relative transitional provision transits out of the constitution, if not in letter, at least in spirit, and becomes spent.

Section 24 is not different from any of the other continuity sections of the transitional provisions, intended to make for a smooth transition from the old pre-January 1993 order to the new post-January 1993 order. See for example section 3 (the judiciary); section 8 (existing offices); and section 11 (the Ombudsman). It would seem that section 31 (continuation of effect of matters prescribed by existing laws) serves the same ends as are contemplated in section 24, among others. Section 24 achieved its purposes with the coming into force of Act 459 on 6 July 1993, and is now completely irrelevant to the debate. (Remember that the writ in this case was filed in December 1993). The only relevant laws to consider therefore are the constitution (without section 24 of the transitional provisions) and Act 459.

I must say in parenthesis that 6 July 1993 is the date of assent, not the date of notification of the Act in the Gazette. Unless Parliament decides to postpone the effective date, our laws come into force on the latter date, not on the former (article 106(11) of the Constitution 1992). Parliament may do well to incorporate in every Act not only the date of assent, but more importantly the date of gazetting, to make it easy for the public to know readily when a particular Act came into force, since the Gazette is usually not easily available. On this occasion, given that the Act was to be passed within six months from 7 January 1993 ie by 6 July 1993 (section 6 of the transitional provisions), and on the basis of the maxim omnia praesumuntur rite esse acta it is safe to assume that the Act signed by the President on 6 July 1993, was published not later than the 6 July 1993, and that it came into force on the same date, 6 July 1993. Article 11(1) of the Constitution 1992 distinguishes between the constitution and other laws. It says:

“11(1) The laws of Ghana shall comprise -

(a) this Constitution;

(b) enactment’s made by or under the authority of the Parliament established by this Constitution;

(d) the existing law; and

(e) (e) the common law.”

Whenever it is found necessary or expedient to permit recourse to any law other than the constitution, the constitution itself says so. The phrase employed to achieve this purpose is “this constitution or any other law,” or an expression to the like effect. Examples are legion; see the following articles picked at random: 57(4), 88(2), 104(4), 126(4) and (7), 129(1) and (4), 137(1) and (3), and 143, among others. Similarly, where it is intended that no other law shall be let in to disturb the undiluted application of the constitution, again the constitution sufficiently indicates it. See, eg articles 58(1) and (2), 92(1), 93(2), 120, 125(1) and (4) 127(2) and 137(2). Article 140(1) 1992 already quoted can bear repetition at this juncture:

“The High Court shall, subject to the provisions of this Constitution, have jurisdiction in all matters and in particular, in civil and criminal matters and such original, appellate or other jurisdiction as may be conferred on it by this Constitution or any other law.” (Emphasis supplied.)

The express mention of civil and criminal matters in particular in the article does not in any way derogate from the effect of the phrase “jurisdiction in all matters”. Accordingly, it seems to me a complete waste of time to attempt to find out whether chieftaincy matters are civil or constitutional, or traditional, or customary, or other.

Secondly, it must be observed that the all embracing jurisdiction given by this article is subject only to the provisions of the constitution, implying, in my view, that a limitation of jurisdiction contained in any other law cannot be of any assistance in determining the question in issue. Prima facie therefore the jurisdiction conferred by article 140(1) in all matters must include a jurisdiction in chieftaincy matter too.

The next step in the argument is to find out whether there are any provisions in any part of the constitution, which exclude chieftaincy matters, or any aspect of such matters, from the jurisdiction of the High Court. For this, we turn to Chapter 22 of the constitution, captioned “Chieftaincy.” Article 273(1) discusses the appellate jurisdiction of the National House of Chiefs, and by article 273(5) and 6:

“(5) A Judicial Committee of the National House of Chiefs shall have original jurisdiction in any cause or matter affecting chieftaincy -

(a) which lies within the competence of two or more Regional Houses of Chiefs; or

(b) (b) which is not properly within the jurisdiction of a Regional House of Chiefs; or

(6) An appeal shall lie as of right in respect of any cause or matter dealt with by a judicial committee of the National House of Chiefs under clause 5 of this article to the Supreme Court.” (Emphasis supplied.)

As far as Regional Houses of Chiefs are concerned the relevant provisions are contained in article 274(3)(c) and (d) which read:

“274(3) A Regional House of Chiefs shall -

(c) hear and determine appeals from the traditional councils within the region in respect of the nomination, election, selection, installation, deposition of any person as a chief;

(d) have original jurisdiction in all matters relating to a paramount stool or skin or the occupant of a paramount stool or skin, including a queenmother to a paramount stool or skin;” (Emphasis supplied.)

It is argued that these articles give the chieftaincy courts exclusive jurisdiction in chieftaincy matters. I do not see it that way. The two articles, 273(5) and 274(3)(d) merely say that these bodies shall have original jurisdiction. They do not give them exclusive original jurisdiction in those matters, and it cannot be permissible that we import the word exclusive into those articles. The language used here is the same as the one used in article 143(1) that: “A Regional Tribunal shall have jurisdiction to try such offences …”

But this provision has not, as demonstrated earlier, succeeded in giving the regional tribunals exclusive “trying” (ie original) jurisdiction in criminal matters assigned to them by Parliament. In the constitution exclusive jurisdiction is not given except by express word or by necessary implication. See for example:

(i) Article 130(1): “the Supreme Court shall have exclusive original jurisdiction” in matters coming under article 2; and article 130(2), using words which necessarily implies that no court can share in that jurisdiction, viz that court shall stay the proceedings and refer the question of law involved to the Supreme Court….”

(ii) Article 135(1): “The Supreme Court shall have exclusive jurisdiction to determine whether an official document shall not be produced in Court….”

(iii) Article 121(3), that in the case of documents of security significance, the Speaker shall refer the matter to the Supreme Court for determination.

(iv) Article 64, challenging the validity of the election of the President or the Vice President;

(v) Article 69, proceedings to remove the President, or the Vice President (article 60(14)).

In all these cases, among others, the constitution confers on the Supreme Court exclusive jurisdiction by expressly saying so, or else by using words which admit of no doubt that that is the intention. Articles 273 and 274 are not in that category, and I do not share the view that they confer exclusive original jurisdiction in chieftaincy matters on the chieftaincy courts and tribunals. It has been contended in some circles that article 270 of the Constitution 1992 justifies the appropriation of exclusive original jurisdiction in chieftaincy matters to chieftaincy tribunals. I fail to see the warrant for this argument. Article 270 reads:

“(1) The institution of chieftaincy, together with its traditional councils as established by customary law and usage, is hereby guaranteed.

(2) Parliament shall have no power to enact any law which –

(a) confers on any person or authority the right to accord or withdraw recognition to or from a chief for any purpose whatsoever; or

(b) in any way detracts or derogates from the honour and dignity of the institution of chieftaincy.

(3) Nothing in or done under the authority of any law shall be held to be inconsistent with, or in contravention of, clause (1) or (2) of this article if the law makes provisions for:

(a) the determination, in accordance with the appropriate customary law and usage, by a Traditional Council, a Regional House of Chiefs or the National House of Chiefs or a Chieftaincy Committee of any of them, of the validity of the nomination, election, selection, installation or deposition of a person as a chief;

(b) a Traditional Council or a Regional House of Chiefs or the National House of Chiefs to establish and operate a procedure for the registration of chiefs and the public notification in the Gazette or otherwise of the status of persons as chiefs in Ghana.”

Section 1 merely guarantees the institution of chieftaincy. The idea behind article 270(2) is plain enough to require any detailed discussion: that we should not repeat the experience in not-too-distant past when chiefs were made and unmade through the Gazette. Section 3 simply gives the assurance, if an assurance is necessary, that certain bodies or authorities may be required by law to do or discharge certain functions in relation to chieftaincy, and says that a law which makes provisions for the matters stated in article 270(3)(a) and (b) should not be taken as derogating from the guarantee given in article 270(1). Nothing in article 270 comes anywhere near lending support to the view that chieftaincy institutions alone can deal with all chieftaincy matters, or that the High Court cannot handle such matters, or any of them. If anything, the article rather indicates the contrary. I reject the argument based on article 270.

By necessary implication, the constitution by article 274(3)(c), intends that traditional councils shall have jurisdiction over non-paramount chiefs ie those chiefs whose cases are not cognizable by the regional houses of chiefs and National House of Chiefs. But it does not contemplate in their favour exclusive jurisdiction, and does not affect the general conclusion that given the structure of the courts in the constitution, and the distribution of powers to them, no lower court is intended to have exclusive original jurisdiction in any matter. These lower courts can only share in that jurisdiction. They cannot appropriate any part of it to themselves, and exercise it to the total exclusion of the High Court.

Section 57 of Act 459 enacts:

“Subject to the provisions of the constitution, the Court of Appeal, the High Court, Regional Tribunal, a Circuit and Community Tribunal shall not have jurisdiction to entertain either at first instance or on appeal any cause or matter affecting chieftaincy.” (Emphasis supplied.)

The exclusiveness of the original jurisdiction of the Court of Appeal, regional tribunal, and circuit and community tribunals is justified, in view of article 137(1) (jurisdiction of Court of Appeal), the combined effect of article 143(1) and section 24 of Act 459 (regional tribunals), article 126(1)(b) and section 41, 44, 47, 48 of Act 459 (circuit courts, and circuit and community tribunals). But the exclusiveness of the original jurisdiction of the High Court cannot be so justified; see article 140(1).

If, as I have sought to argue, the High Court has original jurisdiction concurrent with the chieftaincy courts in causes or matters affecting chieftaincy then appeals from its decisions lie to the Court of Appeal (article 137 1992), and to that extent the exclusiveness of the appellate jurisdiction of the Court of Appeal in section 57 of Act 459 will seem unconstitutional and irregular. Fortunately, article 57 of Act 459 is subject to the provisions of the constitution. Even without this caveat, the section, like all other laws, will nonetheless have to pass the test of consistency in article 1(2).

It is apparent from the little I have said so far that I am sympathetic to the views expressed by His Lordship Mr Robert Hayfron-Benjamin J in ex parte Gyamfi [1972] 1 GLR 317, which views were applied by Quashie Sam J in Moosi v Boateng [1975] 2 GLR 306. Those views have found favour with the learned High Court judge in this case at Koforidua on 28 February 1994, and in ex parte Nsiah in the High Court, Kumasi on 11 July 1994. There is good reason for not excluding the High Court from chieftaincy matters, or from area covered by lower courts.

The High Court is a more stable institution than any lower court, the traditional councils included. The High Court is established by the constitution; the lower courts are established by parliament, and any of them can, at any time, for good reason, be de-established, or have its jurisdiction changed, by parliament. A traditional council operates within a limited geographical area. The High Court has no such territorial limitations: there is only one High Court, with jurisdiction throughout the country. External stimuli, such as ethnic conflicts or secession bids (remember the Akropong/Okere tussle) may render a traditional tribunal inoperative for considerable lengths of time. It is not in the public interest that chieftaincy litigation be made to wait indefinitely on such social phenomena.

Fears have been expressed that interpreting the constitution the way I have done is inviting chaos and confusion. I do not think so. We have enough controlling mechanisms in the system to regulate the functioning of any court. Procedural conflicts arising out of the exercise of concurrent jurisdictions can be taken care of by the Rules of Court. Article 157(2) empowers the Rules of Court Committee to “make rules and regulations for regulating the practice and procedure of all courts in Ghana.” (Emphasis supplied.)

Rules made under this article may require that where two or more courts have concurrent jurisdiction in any matter, a litigant seeking redress must commence his action in the lowest of those courts. We already have such a rule in connection with certain interlocutory matters, eg applications for bail, leave to appeal, etc. Besides, a judicious use of the powers of transfer contained in sections 104, 105 and 106 of Act 459 should be enough to contain any stubborn situations that may arise in the exercise of concurrent powers.

In my opinion, the High Court Koforidua has concurrent jurisdiction with the traditional councils, and is competent to adjudicate on the matter before it. I will dismiss the application for certiorari.

WIREDU JSC. I have not succeeded in my effort in persuading myself into accepting the opinion of my brother Adade JSC which has just been read. As a result, I have been compelled to take a diametrically different stand. This is the fourth time that I have had the opportunity to consider causes or matters affecting chieftaincy in an overall appraisal of jurisdiction. The first opportunity was in Avadali v Avadali [1992-93] GBR 733, Supreme Court. The second time was at the first workshop of continuing judicial education organised some time this year for Supreme Court and Appeal Court Justices. On the latter occasion, I had the opportunity to nutshell in a paper the salient points on the topic: Chieftaincy Matters, Jurisdiction and Appeal. On both occasions mentioned above, the presiding judge and the chairman was no other person than my respected and learned brother Adade JSC who is also the presiding judge in this case. The conclusion in the

Avadali case that jurisdiction in causes or matters affecting chieftaincy was the exclusive preserve of the chieftaincy tribunals, ie the judicial committees of traditional councils, regional houses of chiefs and the National House of Chiefs, with final appeal by leave to the Supreme Court was affirmed. The Avadali case supra seemed to have closed the matter regarding the High Court jurisdiction in chieftaincy matters, even with the advent of the 1992 Constitution.

The third occasion was at a workshop organised for High Court judges and chairmen of regional tribunals from 1 - 5 August 1994. The chairman on this occasion was Mr Justice Lamptey of the Court of Appeal. At this workshop also, the conclusion in the Avadali case was affirmed.

The fourth and the last occasion is the present application which has provoked consideration of the extent and scope of the language of article 140(1) of the 1992 Constitution.

On all the above occasions, I had the privilege to research into the history of chieftaincy matters and the issue of jurisdiction. I came to the conclusion that historically and procedurally the regional judicial divisions of “causes or matters affecting chieftaincy” are recognised in the hierarchy of the chieftaincy tribunals, and negate any idea or thinking that seeks to vest the High Court with original jurisdiction concurrently with the chieftaincy tribunals in causes or matters affecting chieftaincy within the language of the Chieftaincy Act 1971 (Act 370) and the Courts Act 1993 (Act 459). In the constitution there is only one High Court without any regional divisions.

Section 24 of the transitional provisions of the 1992 Constitution ensures the continued existence of all the chieftaincy tribunals as they existed prior to the coming into force of the constitution and by article 270 of the constitution the institution of chieftaincy and the traditional councils as established by customary law and usage are guaranteed. Chapter 22 of the 1992 Constitution (headed: Chieftaincy), read with article 11(1)(d)(4) and (5) close in my respectful view any thought of vesting the High Court with original jurisdiction in chieftaincy matters.

To read the words in article 140(1) and decide the issue raised for determination without reference to the existing laws referred to above with references to section 24 of the transitional provisions and article 299 (which clothes the transitional provisions with supremacy and precedence over article 140(1)) would be doing violent injustice to the language and phrase “subject to the constitution” prefacing article 140(1). The phrase is a limitation on the civil jurisdiction of the High Court. Section 24 of the transitional provision is contained in the First Schedule to the constitution and is therefore part of the constitution itself and by the language of article 299 it takes precedence over 140(1) of the constitution. As I have already stated, at the workshop organised for the High Court judges, I read the paper on this very subject. I intend therefore to reproduce what I said then in so far as it is relevant to the determination of the present application before us.

“CHIEFTAINCY MATTERS

Jurisdiction and Appeals

Chieftaincy as an institution stands out foremost among our cultural heritage. The history of chieftaincy matters reveals that it is purely customary and its practice and usage are unique and reside peculiarly in the exclusive domain of chiefs. Chieftaincy matters are statutorily governed by the Chieftaincy Act 1971 (Act 370). Jurisdiction in causes and matters affecting chieftaincy within the language of Act 371 of 1971 has for long been the exclusive preserve of what are known and statutorily called the chieftaincy tribunals.

Chieftaincy as an institution has been recognised and guaranteed under our various constitutions, and this is continued in the 1992 Constitution. See section 24 of the transitional provisions of the constitution. Article 270(1) of the 1992 Constitution provides as follows:

“The institution of chieftaincy, together with its traditional councils as established by customary law and usage, is hereby guaranteed.”

Other statutory provisions outside the constitution which deal with chieftaincy matters as far as judicial proceedings are concerned include the Chieftaincy Act of 1971 (Act 370), Chieftaincy (Proceedings Functions) (Traditional Councils) Regulations 1973 (LI 798), Courts Act 1971 (Act 372), etc. Section 15(1) of the Chieftaincy Act supra gives traditional councils exclusive jurisdiction in chieftaincy matters arising within their areas of authority not involving paramount chiefs and LI 798, by regulation 2, states that the jurisdiction conferred on a traditional council shall be exercised by a judicial committee. Section 22(1)(a) of the Act confers on a regional house of chiefs original jurisdiction in all matters relating to a paramount stool or occupant of a paramount stool. See also section 23(2) and (6) conferring on the judicial committee of regional house of chiefs appellate jurisdiction over cases from traditional councils. Section 52 of the Court Act 1971 provides:

“Notwithstanding anything to the contrary in this Act or any other enactment the Court of Appeal, the High Court, the Circuit Court and the District Court shall not have jurisdiction to entertain either at first instance or on appeal any cause or matter affecting chieftaincy.”

Similar provisions in the Courts Act 1993 (Act 459) are sections 15(1) and 57. These sections are in identical language with section 14(1) and 52 respectively of Courts Act 1971 (Act 370).

Existing High Court Jurisdiction before 1992

Article 125(1) of the 1979 Constitution provides as follows:

“The High Court of Justice shall have jurisdiction in civil and criminal matters and such other original, appellate and other jurisdiction as may be conferred upon it by this Constitution or any other law.”

The case of Tobah v Kweikumah [1981] GLR 648, CA settled the issue whether the High Court had concurrent jurisdiction with the judicial committees of the traditional councils, regional houses of chiefs and the National House of Chiefs in determining causes or matters affecting chieftaincy within the language of the Chieftaincy Act 1970 (Act 370).

As time is not on our side I will just give in a nutshell, cases dealt with at the High Court which later culminated in the decision in Tobah’s case supra. All the cases referred to were decided under the existing statutory provisions under the 1969 and 1979 constitutions and the Chieftaincy Acts, Act 81 and Act 370, ie R v Boateng, ex parte Gyamfi [1972] 1 GLR 317, Republic v Tekperbiave Divisional Council, ex parte Korle II [1972] 1 GLR 199.

With the above conflicting views, no judge of the High Court was bound by any of the above decisions and had the option to prefer one to the other. The situation thus became uncertain. It was in that state of affairs that the Tobah case, supra resolved the issue in favour of the school of thought that held the view that chieftaincy matters were within the exclusive preserve of the traditional tribunals.

The Law After 1992

With the advent of the 1992 Constitution, the obvious dead and buried doubt in this area of our law appeared to have been resurrected. Some leading members of the Ghana Bar Association, (and as a matter of fact the Bar I understand), have presented a memorandum to parliament urging the view that the High Court by article 140(1) had concurrent jurisdiction in chieftaincy matters with the chieftaincy tribunals. A paper read by Mr Kom at the general conference of the Bar Association in 1992-93 commenting on the civil jurisdiction of the High Court under the Courts Act (Act 459) stated that under the 1992 Constitution the existing law conferring exclusive jurisdiction in chieftaincy matters on the traditional councils, regional houses of chiefs, etc was of no effect in view of article 140(1) of the 1992 Constitution and that section 57 of the Courts Act which denies the High Court this jurisdiction was inconsistent with the above article of the constitution, therefore null and void.

Mr Justice Omari-Sasu sitting on this matter at the High Court, Koforidua, on February 28 1994 in Akrofi versus Nyame and Kwahu Traditional Council endorsed Kom’s view as above. It is

the validity of this decision which is being challenged in the instant application before us for an order of certiorari to quash under the supervisory jurisdiction of this court. Mr Justice Owusu-Sekyere sitting at the High Court, Kumasi on July 2 1992 had earlier held in Republic v Sekyere II, ex parte Adarkwah II that the High Court did not have such jurisdiction. It may be safely concluded from the decision of Omari Sasu J that his decision was given without prior knowledge of the earlier decision of his brother Mr Justice Owusu-Sekyere supra. It is also clear that Omari Sasu J’s decision was also given without the benefit of the decision of the Supreme Court in Avadali v Avadali [1992-93] GBR 733.

The question then is: can the Avadali decision be justified? In other words is it in conformity with the true intent of the provisions of article 140(1) of the 1992 Constitution? I will in this paper attempt to answer the above question without prejudice to the Supreme Court itself making an appropriate pronouncement on this all-important issue when the opportunity arises to determine the true intent of article 140(1) of the constitution. I am satisfied however that the Avadali case decided the issue of the High Court jurisdiction in chieftaincy matters under the 1992 Constitution. It is my considered view that merely to look at the words of a particular provision in the constitution without more and give a literal meaning to the words used would be ignoring the spirit of the constitution. To my mind, such an approach would violate a fundamental principle of approach to constitutional interpretation. Such an approach has a limited and narrow scope and would defeat the true intent of the framers of the constitution. Such an approach would also be too conservative. A more liberal and benevolent approach, as opposed to the conservative thinking, will in my respectful view be the proper way to determining the issue at stake. I intend to approach the resolution of the issue raised by adopting the latter approach.

Article 140(1) of the 1992 Constitution reads as follows:

“The High Court shall, subject to the provisions of this Constitution, have jurisdiction in all matters and in particular, in civil and criminal matters and such original, appellate and other jurisdiction as may be conferred on it by this Constitution or may other law.”

The phrase “subject to the provisions of this Constitution” is a caveat on the jurisdiction of the High Court. It enjoins us to read other relevant provisions of the constitution in order to give meaningful interpretation to the true language of article 140(1). In other words 140(1) must be read along with other relevant provisions of the constitution and other laws passed thereunder to regulate the operations envisaged under Chapter 22 such as the Chieftaincy Act 1970, section 24 of the transitional provisions, the Courts Act 1993, etc in order to give uniformity to the meaning and operation of the constitution. Any interpretation that falls short of this approach or leads to absurdity ought to be rejected.

Chapter 22 of the constitution (which deals with chieftaincy matters) positively recognises the exiting historical uniqueness of this area of our jurisprudence in identical or similar language reproduced in the 1969 and 1979 Constitutions and provisions of the Courts Act ie sections 14(1) and 15(1) of Act 372 sections 52 and 57 of Act 459 respectively. The jurisdiction of the Supreme Court in chieftaincy matters is also contained in Chapter 11 of the 1992 Constitution. The High Court and the Court of Appeal are not mentioned in Chapter 22 of the constitution. This also shows that all the courts with jurisdiction in chieftaincy matters are those clearly set out in Chapter 22 of the constitution.

This is to buttress the view held about the uniqueness of this area of our jurisprudence. In fact the provisions of Chapter 22 of the 1992 Constitution have advanced the sanctity of chieftaincy matters by excluding chiefs from engaging actively or participating in party politics. It has also preserved the recognition of regional divisions in causes or matters affecting chieftaincy as contained in previous constitutions. See article 274.

The jurisdiction of the High Court under article 140(1) is subject to the provisions of Chapter 22 and all the relevant existing laws which are consistent with the provisions of 1992 Constitution and section 24 of the transitional provisions. The hierarchy of courts with jurisdiction in chieftaincy matters as are contained in Chapter 22 of the constitution exclude the superior courts of judicature save the Supreme Court as the final court of appeal in Ghana. Existing laws as recognised in Chapter 4 of the 1992 Constitution include the Chieftaincy Act 370 and the Courts Act 1970 (Act 372); all these are in conformity with the provisions of Chapter 22. As stated above Chapter 19 of the 1979 Constitution relating to jurisdiction of the chieftaincy tribunals, ie article 178(6) and 180(2)(a) and (d) are in identical language as contained in article 273(1) and (2) and 274(c) and (d) of the 1992 Constitution.

There can therefore be no difference in interpreting the above provisions as they existed prior to and with the advent of the 1992 Constitution. It is beyond doubt that exclusive jurisdiction of these courts in chieftaincy matters has been settled by the Tobah case supra. In fact the Court of Appeal decision in the Tobah case was binding on the High Court sitting at Koforidua; see article 136(5). Had the learned High Court judge directed his mind to this article he would have had no alternative than to have declined jurisdiction.

The question now is: is the view being urged now that article 140(1) in its true interpretation confers a concurrent jurisdiction on the High Court in causes and matters affecting chieftaincy with the chieftaincy tribunal right? That will obviously mean a complete departure from what the situation was prior to 1992. In that regard one must look for precise and express words to justify this view. Any ambiguity would justify adopting the most innocuous interpretation. I must say that on its face the drafting creates some difficulty by admitting on its face a possible interpretation in favour of the High Court but this approach will be deceptive. In order to find the true construction of the language of article 140(1) it is my considered view to have regard to the following: (a) resort to recent past history of the courts’ attitude to chieftaincy matters; (b) whether there are precise and express words in the language of 140(1) which show an intention diametrically different from existing laws as have judicially interpreted.

In order to resolve issue (a) above, resort must be had to such materials as were placed before the framers of the 1957, 1960, 1969 and 1979 Constitutions, the draft proposals by the Committee of Experts and the debate on this particular issue in the Consultative Assembly. This is to find out whether there was an intention on the part of the Consultative Assembly to expand or enlarge the existing jurisdiction of the High Court under the 1992 Constitution by including causes and matters affecting chieftaincy which historically has been the exclusive preserve of the chieftaincy tribunal.

My research has proved futile in this regard. To me to interpret 140(1) as vesting jurisdiction in the High Court concurrent with the chieftaincy tribunals would lead to absurdity and it would be doing great violence to the clear recognition of: (a) the regional judicial division in chieftaincy matters since this same constitution recognises only one High Court of Justice; (b) this will also be to disregard the special procedure, regulations or forms recognised peculiarly for commencing actions in chieftaincy matters as opposed to the mode of commencement of actions in the High Courts by issuing out writs; (c) the laxity of the permissible admission of hearsay evidence in chieftaincy courts; (d) by introducing the Court of Appeal as one of the fora within the appellate jurisdiction in chieftaincy matters; (e) it would also destroy the hierarchy of the courts recognised under Chapter 22 with competence to handle causes or matters affecting chieftaincy by now being in the Court of Appeal.

It must also be mentioned that article 140(1) does not by express words confer original jurisdiction in all matters in the High Court. Article 140(1) in my respectful view deals with the general jurisdiction of the High Court just as article 129 and 137(a) refers to the general jurisdiction of the Supreme Court and the Court of Appeal respectively.

Original jurisdiction in all matters is conferred expressly by section 15(1) of Act 459 (section 14(a) of Act 372). This jurisdiction conflicts with the later provision of section 57 of Act 459 (section

which the High Court judge held was given per incuriam.”

This court then quashed the order by which the High Court judge purported to assume jurisdiction in chieftaincy matters. The Avadali case itself illustrates the absurd situation which would arise if the problem were allowed to simmer for final decision by a future court. Seven of my learned sister and brethren who sat on that application were unanimous in the conclusion that the High Court had no jurisdiction in chieftaincy matters.

The Avadali case was not a matter of great moment. But the issue clearly called for a pronouncement of this court as to whether the High Court had jurisdiction in chieftaincy matters. The controversy was whether a ‘hlotator’ was a chief within the intendment of the Chieftaincy Act and if so whether an action had properly been instituted in the High Court with respect to his chiefly status. I think my learned and respected brother Adade JSC presiding, summed up the view of this court when he wrote at page 571 thus:

“As I see it, on the face of the record the matter before the High Court was a chieftaincy matter. The High Court cannot declare the 1st plaintiff a hlotator or chief, it has no jurisdiction to do so, and it must decline jurisdiction.” (Emphasis mine.)

In the same Avadali case, supra my learned and respected brother Wiredu JSC demonstrated quite clearly that the position had not changed by reason of any provision in the 1992 Constitution. He said in reference to the jurisdiction in chieftaincy matters at page 580 that:

“The above jurisdiction has been preserved also under the 1992 Constitution to the exclusion of the judiciary save as stated above. The original civil jurisdiction of the High Court is subject to the provisions of the 1992 Constitution which provisions include the preservation of cheftaincy matters as existed under the existing law by article 11(4) to the chieftaincy tribunals supra: see article 140(5) of the constitution. See also the Courts Act 1971, section 52, the law existing before the coming into force of the 1992 Constitution.” (Emphasis mine.)

The Avadali case therefore, with all due deference to the High Court judge, was not decided per incuriam. Certainly, a careful examination of the judgment of the High Court under consideration shows that the learned High Court judge misplaced the emphasis on what was really the operative part of article 140(1). He failed to consider the effect of the provision which due to drafting technique had been placed in parenthesis in that article namely subject to the provisions of this constitution. The meaning of this phrase was expounded by the Court of Appeal in the Tobah case supra. In (1981 & 1982) 13 & 14 Review of Ghana Law, the learned Editor has discussed the Tobah case and I am in agreement with the views he has expressed. For the sake of brevity I will cite part of his contribution at page 213 of the Review. Writing that the decision in the Tobah case was disaffirmed on appeal, by the Court of Appeal, the learned Editor continued:

“It [that is, the Court of Appeal] held that since the plaintiffs’ claim before the High Court related to the right to appoint a chief that was “a cause or matter affecting chieftaincy” within the meaning of section 113(1)(c) of Act 372 and that under the Chieftaincy Act 1971, and Chieftaincy (Proceedings and Functions) (Traditional Councils) Regulations 1972 reg 2, the judicial committee of the Ahanta Traditional Council had the exclusive jurisdiction to hear the matter. It also held there was no conflict whatsoever between the provisions of sections 14(1)(a) and 52 of Act 372; that the trial judge had misled himself by ignoring the first part of section 14(a) which made the original jurisdiction of the High Court “subject to the provisions of the Constitution and any other enactment.” It held therefore that the “all matters” in section 14(a) was subject to the provisions of the constitution and any other enactment such as section 52 of Act 372 and section 15 of Act 370.” (Emphasis mine.)

In the Tobah case supra, Jiagge JA said in part:

“The claim before the High Court was one in which the law provided the traditional court should have exclusive jurisdiction to deal with the matter.”

In the 1992 Constitution the draftsman has been content to state the matter simply as subject to the provisions of the constitution. In my respectful opinion notwithstanding the all embracing coverage given by the phrase in section 14(a) of Act 372 the true meaning of the clause is in pari materia with the phrase in article 140(1) of the 1992 Constitution and must be construed as such. Thus the jurisdiction in all matters in the said articles must be subject to the provisions in the constitution. Wiredu JSC reached that conclusion in the Avadali case supra, and in this case my learned and respected brother Kpegah JSC has amplified the meaning of the said phrase by reference to the history of this exclusive jurisdiction and to other articles of the constitution and rendered the unanimous view of this court in the Avadali case, supra, more complete.

It is necessary for a court when a statute or constitution says that what is required to be done must be subject to the statute or the constitution for the court to examine the statute or the constitution as a whole and not indulge in semantics in the construction or interpretation of any such section or article.

The jurisdiction conferred on the National House of Chiefs and the regional houses of chiefs are clearly set out in article 273(1), 274(1)(f) and 274(1)(d). The seeming difficulty which arises, is that even though article 274(1)(c) vests jurisdiction in the regional house of chiefs to hear and determine appeals from the traditional councils within the region the complaint is that while the National House of Chiefs and the regional houses of chiefs are within the said article provided with the respective fora for aggrieved parties to ventilate their grievances, no such forum is provided for the traditional councils from whose decisions appeal may proceed to the regional houses. It is on this basis that it is suggested that the matter of a final determination of the issue whether the High Court has concurrent jurisdiction with the houses of chiefs should be allowed to simmer for a determination by a future court. I have already said I do not subscribe to this view.

The 1992 Constitution has a set of schedules commonly denominated as transitional provisions. There is every reason therefore to look at the transitional provisions to find out if we cannot derive assistance therefrom. In Attorney-General v Lamplough (1878) 3 Exh 214 it was held that:

“The Schedule is as much a part of the statute and as much an enactment as any other part.”

Thus the force of any provision in the Schedule is not diminished by its being placed in the schedule rather than in the statute or constitution. In the instant application section 24 of the 1st Schedule to the 1992 Constitution provides as follows:

“The National House of Chiefs, the Regional Houses of Chiefs, the Traditional Councils and all Judicial Committees of those bodies in existence immediately before the coming into force of this Constitution shall, continue in existence subject to this Constitution.”

Section 24 must be distinguished from section 6 of the transitional provisions, which does not affect the chieftaincy tribunals but is meant to affect the transition of only the public tribunals and their subsequent integration into the judiciary in terms of articles 143 and 126 of the 1992 Constitution. Section 24, however, contains an imperative expression “shall continue in existence” so that there is absolutely no need to establish or re-established those bodies. To buttress my argument I will refer to article 299 of the constitution. It reads:

“The Transitional Provisions specified in the First Schedule to this Constitution shall have effect notwithstanding anything to the contrary in this Constitution.”

This court had the opportunity of considering the effect of the transitional provisions on the substantive part of the 1992 Constitution in Kuenyehia v Archer [1992-93] GBR 1094, SC. Aikins JSC interpreting article 299 expressed himself succinctly thus:

“[By article 299 of the Constitution] the said Transitional Provisions take precedence over the constitution and are superior to the body of the constitution. The language (article 299) is plain and leads to no controversy. It implies therefore that if by normal rules of construction there is a conflict between any article of the constitution and a section of the said transitional provisions, the latter will prevail over the former.”

Yet again in the same case Bamford-Addo JSC with characteristic clarity expressed herself on article 299 thus:

“This article means that irrespective of anything to the contrary in the constitution, the Transitional Provisions are to apply and be made operative.”

As with article 140(1) so also it is with section 24 of the First Schedule of the transitional provisions to the 1992 Constitution that the article and the section shall be subject to the provisions of the constitution. I therefore understand it as incorporating into the article and the section all relevant articles of the constitution which either confer or are precedent to the exercise of any jurisdiction. Since section 24 of the First Schedule to the constitution is to the extent that it is a part of the constitution and affects chieftaincy and also it is to that extent superior in force to article 140(1), it necessarily follows that Tobah v Kweikumah supra is still good law and by the combined effect of section 15 of the Chieftaincy Act (Act 370) and section 57 of the Courts Act (Act 459) both existing laws, the High Court has no jurisdiction in chieftaincy matters.

I do not think the learned High Court judge can be seriously faulted for the attitude he adopted and the erroneous conclusion to which he arrived. He derived no assistance from counsel. The two important cases of Tobah v Kweikumah supra and Avadali supra were not cited to him. He was clearly wrong in thinking he could rely on this court’s Practice Directions in the Republic v Maikankan [1971] 2 GLR 473, SC and assume the role of this court in matters of the interpretation of the 1992 Constitution. In my respectful opinion I think the High Court now would do well to heed the admonition of Francois JSC in the Kuenyehia v Archer case, supra, when he concluded his opinion thus:

“It seems to me that where the constitution gives the Supreme Court the final say in the interpretation of its provisions, some measure of discourtesy is demonstrated when far from seeking the court’s interpretation, a partisan view is proclaimed whose objective is to fuel disenchantment and project an impression that a contrary view is at odds with constitutional proprieties.”

All other courts within our municipality should be mindful of the provisions of article 130(2) of the 1992 Constitution and desist from indulging in fruitless academic exercises in the matter of interpreting the constitution. I refrain from commenting on the Practice Direction in the Maikankan case, supra, but I have my serious doubts about the correctness or validity of that direction vis-a-vis article 130(2) of the 1992 Constitution. I will also allow the application.

be referred to the Supreme Court as the court vested with exclusive jurisdiction to interpret and enforce the constitution.

The learned High Court judge, Omari-Sasu J noted that by virtue of article 140(1) of the 1992 Constitution the High Court was the don of jurisdiction in matters civil and criminal, and that the jurisdiction encompassed chieftaincy disputes. And, since the jurisdiction of the High Court was subject only to the constitution, no law outside the constitution could derogate from the jurisdiction of the High Court.

In the same ruling Omari-Sasu J declined to refer the matter to the Supreme Court and, relying on the case Republic v Maikankan [1971] 2 GLR 473 held that the language employed in the constitution was clear and unambiguous enough and that no question of interpretation was involved. He therefore dismissed the application and held the High Court has jurisdiction in matters affecting chieftaincy.

This implied that section 15(1) of the Chieftaincy Act 1971 (Act 370), which created and conferred on traditional councils exclusive jurisdiction to hear and determine any cause or matter affecting chieftaincy which arises within their areas and to which neither the Asantehene nor a paramount chief was a party, being an existing enactment must be read with such modifications, adaptations as to make it consistent with article 140(1) of the 1992 Constitution; secondly section 57 of the Courts Act 1993 (Act 459) being an enactment made under the said constitution which tends to divest the High Court of jurisdiction in chieftaincy matters is inconsistent with the said article 140(1) and therefore null and void.

In the proceedings before the High Court it was common ground that the issue in respect of which the jurisdiction of the High Court was being invoked was a chieftaincy dispute within the context of the definition offered by section 66 of the Chieftaincy Act 1971 (Act 370), and section 117(1) of the Courts Act 1993 (Act 459). The question whether the High Court is bereft of jurisdiction in chieftaincy matters or has concurrent jurisdiction with the judicial committees of traditional councils and regional houses of chiefs has been a vexed question and divergent views have been expressed in judicial pronouncements.

The rule on jurisdiction is that in respect of superior courts, nothing is to be presumed to be outside their jurisdiction unless it is so expressly stated while in the case of inferior courts nothing can be presumed to be within jurisdiction unless specifically stated. In Timitimi v Amabebe (1953) 14 WACA 374 at 376 Coussey JA stated the principle as follows:

“In the first place want of jurisdiction is not to be presumed as to a court of superior jurisdiction nothing; is out of its jurisdiction but that which specially appears to be so. On the other hand an inferior court, such as a Native Court, is not presumed to have any jurisdiction but that which is expressly provided.”

When therefore one is considering various legislation in relation to the jurisdiction of a superior court, one must not take away any aspect of the jurisdiction but that which is expressly, or by necessary implication intended to be taken away.

I have already stated that there are two schools of thought in legal circles as to whether the High Court has concurrent jurisdiction with traditional councils and regional houses of chiefs in chieftaincy matters. The prevalent view, and this appeared to have gained acceptance until the coming into force of the 1992 Constitution, was the view in favour of the ouster of the jurisdiction of the High Court. But with the coming into force of the 1992 Constitution the arguments of the protagonists against ouster of the jurisdiction of the High Court appear to have received some fillip and they submit that the said constitution has effected a change in the jurisdictional landscape of the High Court by granting it an all embracing jurisdiction in civil matters.

To determine whether it is the intention of the framers of our constitution to leave the law as to jurisdiction in chieftaincy matters substantially unaltered or not, one must examine the legislative history on the point since the framers of the constitution are presumed to know the existing legal position; that is, legislative and judicial pronouncements. It has often been said by anthropologists and lawyers alike that the institution of chieftaincy is the embodiment of our cultural heritage; and that it is an institution which is regulated primarily, if not solely, by customary law. The legislative history on the institution of chieftaincy shows an appreciation of this fact by the legislature. Therefore the power to hear and determine chieftaincy disputes has been the preserve of the custodians of our customary practices - the chiefs.

In section 88 of the Courts Ordinance, Cap 4 (1951 Rev) it was provided that the Supreme [High] Court and magistrate courts had no jurisdiction to entertain either at first instance or on appeal any civil matter which involved the determination of any question relating to the election, installation, deposition etc of any chief, be he a paramount chief, head chief or an ordinary chief. This limitation also covered matters touching on the political or constitutional relation under customary law between chiefs in a traditional area. Similar provisions were also enacted in paragraph 66 of the Courts Decree 1966 (NLCD 84) to the effect that notwithstanding anything to the contrary in the said Decree or any other law, the High Court, circuit and district courts had no jurisdiction in chieftaincy matters either at first instance or on appeal. Earlier in time was the Courts Act 1960 (CA 9). The Courts Decree 1966 (NLCD 84) was repealed by the Courts Act 1971 (Act 372) but section 52 thereof substantially re-enacted paragraph 66 of NLCD 84 in these words:

“Notwithstanding anything to the contrary in this Act or any other enactment the Court shall not have jurisdiction to entertain either at first instance or an appeal any cause or matter affecting chieftaincy.”

The present Chieftaincy Act 1971 (Act 370) repealed the Chieftaincy Act 1961 (Act 81) and established traditional councils. In section 15(1) of Act 370, the traditional councils are clothed with exclusive jurisdiction to hear and determine any cause or matter affecting chieftaincy which arises within its area not being one to which the Asantehene or paramount chief is a party. These statutory provisions, in my humble opinion, demonstrate the intention of the legislature always to leave the determination of chieftaincy matters to the chiefs themselves as the custodians of the customs of their peoples.

However, on the other side of the legal divide are those holding the persuasion that in view of certain constitutional provisions relating to the general jurisdiction of the High Court, it cannot be divested of jurisdiction in chieftaincy matters. On behalf of those with this persuasion came the first judicial salvo from the pen of Hayfron-Benjamin J in the case of R v Boateng ex parte Gyamfi II [1972] 1 GLR 317. The provisions in the 1969 Constitution relied on for the decision in ex parte Gyamfi II supra are articles 102(2) and 113(1) article 102(2) which provide as follows:

“102(2) The Judiciary shall have jurisdiction in all matters civil and criminal including matters related to this Constitution, and such other matters in respect of which Parliament may by or under an Act of Parliament confer jurisdiction on the Judiciary.”

The jurisdiction of the High Court as established under the said 1969 Constitution is contained in article 113(1) which provides thus:

“113(1) The High Court of Justice shall have jurisdiction in civil and criminal matters and such other original, appellate and other jurisdiction as may be conferred upon it by this Constitution or any other law.”

Relying on these provisions (article 102(2) and 113(1), particularly on article 102 clause 2) Hayfron-Benjamin J held that the High Court was vested with original jurisdiction in all matters, and that parliament could only add to but not derogate from the jurisdiction which had been conferred by the constitution. Consequently, he argued, the provisions of section 52 of the Courts Act 1971 (Act 372) could not operate to oust the jurisdiction of the High Court in chieftaincy matters. He further held that there was nothing under articles 154, 155 and 161 which established and conferred jurisdiction on the regional and national houses of chiefs, to indicate that the High Court had been deprived of jurisdiction in chieftaincy matters. He reasoned that where such a dispute was commenced in the appropriate traditional council or regional house of chiefs, further proceedings by way of appeal laid therefrom ultimately to the Supreme Court through the National House of Chiefs. But where the proceedings were initiated in the High Court, appeal proceedings laid from that court to the Court of Appeal and thereafter to the Supreme Court as in all other cases. This reasoning led Hayfron-Benjamin J to his ultimate conclusion that the High Court had concurrent jurisdiction with traditional councils and regional houses of chiefs in chieftaincy matters.

This view found favour with Quarshie-Sam J in the case of Moosi v Boateng [1975] 2 GLR 396 where the learned judge held that the provisions of article 113(1) of the 1969 Constitution had conferred jurisdiction in the High Court in civil and criminal matters and as such parliament could only add to but not take away from the jurisdiction, and that both sections 52 of Act 372 and 15 of Act 370 sinned against the constitution in so far as those provisions sought to oust the jurisdiction of the High Court in chieftaincy matters. Abban J (as he then was) had earlier expressed a contrary opinion in the case of Republic v Tekperbiawe Divisional Council, ex parte Korle II [1972] 1 GLR 199. The issue was finally settled by the Court of Appeal in the case of Tobah v Kweikumah [1981] GLR 648. The court held that the Chieftaincy Act 1971 (Act 370) clothed a traditional council with exclusive jurisdiction in chieftaincy matters and that the claim before the High Court was one of a cause or matter affecting chieftaincy and since the law had provided that traditional councils should have exclusive jurisdiction in such matters, the High Court had no concurrent jurisdiction in the matter.

In Tobah v Kweikumah, supra the plaintiffs brought an action in the High Court seeking a declaration that the defendants had no right to nominate, select or appoint or install or outdoor the chief of Agona Division in the Ahanta Traditional Area without their consent. The plaintiffs obtained a default judgment and the defendants initiated proceedings to set aside the default judgment. It was contended on behalf of the defendants that the matter being a chieftaincy matter the High Court was not the proper forum for the ventilation and adjudication of such grievances. The learned judge ruled that since by section 14(1)(a) of the Courts Act 1971 (Act 372), the High Court had jurisdiction in all matters he was properly seised of the matter and therefore dismissed the application. In concurring that the appeal be allowed, Edusei JA said:

“I have no doubt whatsoever in my mind that this appeal should succeed. The determination of chieftaincy disputes is exclusively reserved to traditional tribunals; the judicial committees of traditional councils, of regional houses of chiefs and of the National House of Chiefs. The jurisdiction of the High Court is ousted except when it is dealing with prerogative writs connected therewith.”

Thus the decision in Tobah v Kweikumah supra settled the dispute in favour of those who held the view that the High Court had no jurisdiction in chieftaincy matters.

But the controversy erupted again with the coming into force of the 1992 Constitution and the subsequent enactment by parliament of the new Courts Act 1993 (Act 459). This Act repealed the Courts Act 1971 (Act 372) but substantially re-enacted section 52 of Act 372 in section 57 of Act 459. It states:

“57 Subject to the provisions of the Constitution, the Court of Appeal, the High Court, the Regional Tribunal, a Circuit and Community Tribunal shall not have jurisdiction to entertain either at first instance or on appeal any cause or matter affecting chieftaincy.”

The above provision has come under severe criticism anchored on article 140(1) of the 1992 Constitution which states as follows:

“140(1) The High Court shall, subject to the provisions of this constitution, have jurisdiction in all matters and in particular, in civil and criminal matters and such original, appellate and other jurisdiction as may be conferred on it by this Constitution or any other law.”

Those who favour the views expressed in Republlic v Boateng, ex parte Gyamfi II and Moosi v Boateng, supra feel even more emboldened and secure in their persuasion because of the word “all” which comes before “matters” in the above quoted provisions. This word, admittedly, did not appear in the corresponding provisions of the 1969 Constitution which were considered in Moosi v Boateng and ex parte Gyamfi cases. The word “all” rather appeared in section 14(1)(a) of Act 372 (now repealed) and was considered in Tobah v Kweikumah, supra.

In the High Court, the judge ruled that there was a conflict between section 14(1)(a) and section 52 of the Courts Act 1971 (Act 372), and under section 14(1)(a), the High Court had original jurisdiction in all matters and this encompassed jurisdiction over causes or matters affecting chieftaincy. However on appeal, the Court of Appeal held that there was conflict between the two provisions and that the trial judge misled himself by ignoring that part of section 14(1)(a) which made the original jurisdiction of the High Court subject to the provisions of the constitution and any other enactment. This was a caveat on the jurisdiction of the High Court in all matters.

The position after Tobah v Kweikumah therefore was that the traditional councils, regional and national houses of chiefs had exclusive jurisdiction in chieftaincy matters from which appeal lay to the National House of Chiefs before terminating in the Supreme Court. It is this position which is preserved by section 24 of the transitional provisions in the 1992 Constitution. It states:

“24 The National House of Chiefs the Regional Houses of Chiefs, the Traditional councils and all Judicial Committees of those bodies in existence immediately before the coming into force of this Constitution shall, on the coming into force of this Constitution, continue in existence subject to this Constitution.”

My noble and respected brother Hayfron-Benjamin JSC has adequately dealt with this aspect in his opinion so I do not find the need to dilate on the effects of this provision. So intense has the criticism of the ouster view become that the High Court, Kumasi, presided over by Piesare J found enough courage to declare the solemn decision of this court in the case of Avadali v Avadali [1992-93] GBR 733 as having been given per incuriam and refused to follow it. See Ameyaw II v Nsiah High Court, Kumasi dated 11 July 1994, unreported.

I would like to digress a little and say, speaking for myself, that the principle of stare decisis is a very valuable concept in the administration of justice. It makes judicial interpretation of the law fairly certain and predictable so that parties can fairly judge in advance how similar cases would be dealt with so as to enable them regulate their conduct and actions accordingly. If, however, a lower court were indulged to refuse to follow a binding decision of a higher court because it felt that decision was given per incuriam, this would be an expensive indulgence; for chaos would be the inevitable result and a valuable concept in our jurisprudence would have been whittled away. I have always held the view that a lower court can decline to follow a binding decision if only it could distinguish the said decision.

In the proceedings before us, learned counsel for the applicants, Mr Kom, submitted that the seemingly all-embracing jurisdiction conferred on the High Court in article 140(1) is however subject to the provisions of the constitution itself. Mr Kom referred us to article 270(1) which guarantees and entrenches the institution of chieftaincy together with its traditional councils as established by customary law and usage. Clause 2 of article 270 places a limitation on the legislative powers of parliament by divesting it of the power to enact any law which grants to any person or authority the right to accord or withdraw recognition to or from a chief for any reason whatsoever. This provision is an absolute prohibition and it not only puts a stop to governmental interference in chieftaincy matters but also puts a stop to the present procedure of destooling a chief, namely through the adjudication of chieftaincy tribunals or judicial committees of the various traditional councils, and regional houses of chiefs and the National House of Chiefs.

The constitution however makes two very important exceptions to the limitation placed on the legislative powers of parliament. These provisions are so relevant that I will quote them in extenso:

“270(3) Nothing in or done under the authority of any law shall be held to be inconsistent with, or in contravention of, clause (1) or (2) of this article if the law makes provision for:-

(a) the determination, in accordance with customary law and usage, by a Traditional Council, a Regional House of Chiefs or the National House of Chiefs or a Chieftaincy Committee of any of them of the validity of the nomination, election, selection, installation or deposition of a person as a chief;

(b) a traditional council or a Regional House of Chiefs or the National House of Chiefs to establish and operate a procedure for the registration of chiefs and the public notification in the Gazette or otherwise of the status of persons as chiefs in Ghana.”

Article 270(3)(a) and (b) quite apart from the obvious, is an enhanced version of the awareness by the framers of the constitution of the legislative history on the institution of chieftaincy, and also emphasises an intention on their part to leave matters concerning the institution to the custodians of the customary practices of the people. In the case of Holme v Guy (1877) 5 Ch D 901, Jessel MR said at page 905:

“The court … is not to be oblivious … of the history of the law and legislation. Although the court is not at liberty to construe an Act of Parliament by the motives which influenced the Legislature, yet when the history of the law and legislation tells the court, and prior judgments tell this present court, what the object of the Legislature was, the court is to see whether the terms of the section are such as fairly to carry out that object and no other, and read the section with a view to finding out what it means, and not with a view to extending it to something that was not intended.”

The intention of the framers of the constitution appears to me clearly to have been to leave the procedure for adjudicating chieftaincy matters substantially unaltered. If one reads carefully the language employed in article 270(3) one comes to the conclusion that the framers of the constitution were aware of the legislative provision governing the institution of chieftaincy and the attitude of the courts in declining jurisdiction in these matters by construing the relevant enactments as divesting them of jurisdiction and thereby leaving chieftaincy matters to the traditional rulers themselves. Hence the provision in my view, that nothing in or done under the authority of any law (emphasis supplied) shall be a violation of the constitution if the law makes provision for the determination, in accordance with the appropriate customary law and usage, any cause or matter affecting chieftaincy by either a traditional council, a regional house of chiefs, or National House of Chiefs.

The word “nothing” as used in article 270(3) is very permissive and must be given its ordinary meaning. I have no doubt in my mind that the language used in article 270(3)(a) is wide enough to admit or accommodate section 15(1) of the Chieftaincy Act 1971 (Act 370) which gives exclusive jurisdiction to traditional councils in causes or matters affecting chieftaincy in their areas of authority. This will not be something which is inconsistent with the constitution; for “nothing in or done under the authority of any law”, is another way of saying that the constitution shall not be an impediment if the purpose of the law is to make provision for the determination, in accordance with the appropriate customary law and usage by a traditional council, regional house of chiefs and the National House of Chiefs or a judicial committee of any of them, of any cause or matter affecting chieftaincy.

Even if the law gives exclusive jurisdiction to any of them such a provision will not be inconsistent with the constitution. I do not think that such an interpretation will be a perversion of language. The final report on chieftaincy, with its legal formulation, by the committee on the rights of the people was presented to the Consultative Assembly for adoption on 31 January 1992, by Nana Kwame Nkyi XII, the representative of the Central Regional House of Chiefs. The report said in part:

“There was a consensus that Parliament shall have no power to enact any law which (a) confers on any person or authority the right to accord or withdraw recognition to or from a chief for any purpose whatsoever; or (b) in anyway detracts or derogates from the honour and dignity of the institution of chieftaincy. We accordingly agreed that the chiefs themselves should establish and operate a procedure for the registration of chiefs and the public notification in the Gazette or otherwise of the status of persons as chiefs in Ghana.”

The report then considered the National House of Chiefs, its composition, functions and jurisdiction in chieftaincy matters. It next considered the regional house of chiefs along those lines before touching on traditional councils. This is what the committee’s report said on the traditional councils:

“It was agreed that the traditional council should be established in each traditional area. Such councils shall have power to establish chieftaincy tribunals, to hear and determine issues in respect of the nomination, election, selection, and installation or deposition of a person as a chief.”

See Official Report of the Consultative Assembly [Col 1841] for 31 January 1992.

Article 270(3)(a) which I have already quoted, adequately provides, in my humble opinion, for achieving the recommendation contained in the committee’s report on traditional councils. The scheme intended by the framers of the constitution emerges when one relates the provisions of article 270(3)(a) to article 274(1) which establishes for each region, a regional house of chiefs and endows it with jurisdiction to “hear and determine appeals from traditional councils within the region in respect of the nomination, election, selection, installation or deposition of a person as a chief.”

Apart from this provision implying an original jurisdiction in the traditional councils, it dovetails the provisions of article 270(3)(a) of the constitution, thereby establishing a hierarchy for chieftaincy tribunals. The original jurisdiction of the regional houses of chiefs is provided for in article 274(1)(d) of the constitution and it states that a regional house of chiefs shall have original jurisdiction in all matters relating to a paramount stool or skin or the occupant of a paramount stool or skin including a queen mother to a paramount stool or skin.” (Emphasis supplied.)

This provision, in my humble opinion, limits the ostensible all-embracing jurisdiction conferred on the High Court in article 140(1) of the constitution so far as all matters relating to a paramount stool or skin or a queen mother to any of them is concerned. The picture which emerges becomes clearer when one relates the original and appellate jurisdiction of a regional house of chiefs:

“273(1) The National House of Chiefs shall have appellate jurisdiction in any cause or matter affecting chieftaincy which has been determined by the Regional Houses of Chiefs in a region, from which appellate jurisdiction there shall be an appeal to the Supreme Court, with the leave of the National House of Chiefs, or the Supreme Court.”

The only conclusion we can come to is that there is a definite intention 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. If one reads article 140(1) which confers jurisdiction on the High Court, in general terms, in isolation one could easily jump to the conclusion that the jurisdiction with which the High Court is clothed in all civil matters is infinite. It is however a basic principle of interpretation that in trying to discover the true intention of the lawgiver, one must not read provisions in isolation but the enactment as a whole.

If traditional councils or regional houses of chiefs have original jurisdiction in chieftaincy matters as I have tried to show, it does not in my view make sense that the High Court be held to have concurrent jurisdiction in chieftaincy matters nor will an interpretation that the High Court has concurrent jurisdiction with traditional councils only, since this will not fall into the scheme deliberately and carefully designed by the framers of the constitution creating a hierarchy of chieftaincy tribunals for the determination of matters affecting chieftaincy by the chiefs themselves. Any such interpretation will in my humble opinion be a violation of article 17(1) of the constitution which stipulates that all persons shall be equal before the law.

I say so because the procedure for the commencement of action before a traditional council, for example, is vastly different in section 4(1) of the Chieftaincy (Proceedings and Functions) (Traditional Councils) Regulations, 1972 (LI 798) as follows:

(c) by writ in the Form set out in the Second Schedule to these regulations to which the plaintiff shall append his signature or affix his thumbprint

(d) by any other means recognised by the customary law of particular locality.”

In the High Court, however, the only procedure by which an intended plaintiff can invoke the original jurisdiction of that court is by the issue of a writ of summons. The proceedings before chieftaincy tribunals are essentially fact finding and the strict rules of evidence are not applicable. For example, a judicial committee can receive in evidence any fact relevant to the subject-matter before the committee and where the committee is in doubt about the existence or content of a rule of customary law, it is permissible for it to hold an enquiry as to the existence or otherwise of the customary law. See section 24(1) and (7) of the Chieftaincy Act 1971 (Act 370) and regulations 7 and 10 of the Chieftaincy (Proceedings and Functions) (Traditional Councils) Regulations 1972. If the interpretation urged on this court is accepted similar cases, depending on the choice of forum, will be treated differently. This will certainly not be equality before the law.

An interpretation which will lead to a breach of the fundamental rights of the individual is a mortal sin against the constitution and I will opt for an interpretation which accords with the constitution I therefore hold the view that the High Court has original jurisdiction in all matters except causes or matters affecting chieftaincy.

Having arrived at this conclusion nothing should inhibit the success of the application for an order of certiorari. Before doing so I would like to say it was wrong for the learned High Court judge to rule that there was no issue of interpretation of the constitution involved. It was very much part of the process he had to go through before determining if he had jurisdiction. In effect what he succeeded in doing was to declare a provision of an Act of parliament, section 57 of the Courts Act 1993 (Act 459) as unconstitutional and therefore null and void. This is a jurisdiction which is the exclusive preserved of this court. In this wise also the learned High Court judge wrongly assumed jurisdiction. In conclusion, I will say that the application succeeds and will recommend that this court grant the order of certiorari as prayed.