|
Courts - Jurisdiction - Cause or
matter affecting chieftaincy -
Accused charged with offences
relating to stool property -
Objection that charge a cause or
matter affecting chieftaincy -
Judge not precluded from hearing
evidence in support of charges
to determine objection -
Chieftaincy Act 1971 (Act 370)
ss 36 and 66.
PW1, a stool father in whose
custody was the stool,
transferred it from his house to
the house of Togbe Agbi at Agate
because the stool room had been
damaged by a rainstorm. While
the stool was at Agate the
accused persons forced open the
door to the room where the stool
was kept and took it away
without the knowledge and
consent of PW1. After attempts
to retrieve the stool failed PW1
reported the matter to the
police who referred it to the
chief of Anfoega to determine
which of the parties was
entitled to keep the stool. The
chief of Anfoe found that PW1
was entitled to keep the stool
and therefore ordered that it be
returned to him. When the
accused persons refused the
police proffered charges of
unlawful entry, stealing and
failing to surrender stool
regalia contrary to Act 29 and
Act 370 respectively against
them and they were subsequently
arraigned before the circuit
court, Hohoe. In the course of
the trial, before the
prosecution had closed its case,
counsel for the accused persons
raised a preliminary objection
to the jurisdiction of the
circuit court on the grounds
that it was the judicial
committee of the traditional
council which had exclusive
jurisdiction to hear and
determine the matter, it being a
matter or cause affecting
chieftaincy. The circuit judge
overruled the objection holding
that the legal point was too
premature and that without going
into the evidence in support of
the charges against the accused
he could not decide that the
offences were causes or matters
affecting chieftaincy. He
therefore ruled that the trial
must proceed.
The accused persons applied to
the High Court for the orders of
prohibition and certiorari.
The High Court judge granted the
application. The appellant
appealed against the ruling of
the High Court to the Court of
Appeal.
Held -
Where an act gave rise to either
a civil or a criminal action, it
was for the complainant to
decide whether to institute an
action in a civil court or
proceed in a criminal court. If
he decided to institute a civil
action then in a cause or matter
affecting chieftaincy only a
chieftaincy tribunal could
entertain it. The complainant
had chosen to report the accused
persons to the police and it was
up to the prosecution to prove
its case. The trial circuit
court judge was right in
deciding to hear the evidence in
support of the charges and to
make appropriate orders at the
close of the case for the
prosecution. Republic v
Adansi Traditional Council, ex
parte Nana Akyie II [1974] 2
GLR 126, CA cited.
Case referred to:
Republic v Adansi Traditional
Council, ex parte Nana Akyie II
[1974] 2 GLR 126, CA.
APPEAL against decision of High
Court.
Johnny Hansen
for the appellant.
Nutsukpui
for the respondents.
AMUAH JA.
This is an appeal against the
decision of a High Court judge
sitting at Ho delivered on the
18th day of April 1986. By this
decision the ruling of the
circuit court in case No 104/85
was quashed and the circuit
court was prohibited from
proceeding to hear the case.
On the 26th day of March 1992
this court allowed the appeal,
set aside the decision of the
High Court and remitted the case
to the circuit court for trial
to continue. We now give reasons
for the judgment we delivered.
The case of the prosecution is
that the room in which PW1 a
stool father kept his stool was
hit by a rainstorm, which caused
considerable damage to it. He
therefore transferred the stool
from his house at Agate Agama to
the house of Togbe Agbi which is
situated at Agate Togbi. While
the stool was being kept at the
house of Togbe Agbi, the accused
persons forced open the door to
the room and took the stool away
without the knowledge and
consent of PW1 in whose custody
it was. All attempts to retrieve
it failed. He therefore reported
the matter to the police who
referred it to the chief of
Anfoega to determine which of
the parties was entitled to keep
the stool. The parties invited
were Togbe Bekate and PW1. The
Chief of Anfoega found that PW1
was entitled to keep the stool
and ordered him to return the
stool to PW1 but Togbe Bekate
refused to do so. The police
then proffered the following
charges against the accused
persons: unlawful entry contrary
to section 152 of Act 29/60,
stealing (two counts) contrary
to section 124 (1) of Act 29/60
and failing to surrender stool
regalia contrary to section 39
of Act 370.
They were arraigned before the
circuit court and pleaded not
guilty. After five witnesses had
been called and the prosecution
had not yet closed its case Mr
Dotse, learned counsel for the
accused persons, raised a
preliminary objection on a point
of law. He submitted that under
sections 36 and 66 of the
Chieftaincy Act of 1971, (Act
370) the judicial committee of
the traditional council has
exclusive jurisdiction to hear
and determine the matter before
the court as it is a matter or
cause affecting chieftaincy. The
learned circuit judge in his
wisdom overruled the objection
after considering his argument.
In his ruling he held that the
legal point was too prematurely
taken and that “without first
going into the evidence led in
support of the charges one
cannot agree to the argument
that stealing stool property by
unlawfully entering the stool
room in which it is kept and
failing or refusing after the
alleged theft to surrender the
stool stolen can be reasonably
considered as a matter or cause
affecting chieftaincy just
because the things allegedly
stolen happen to be stool
property.”
This ruling did not satisfy the
accused persons who applied to
the High Court for the orders of
prohibition and certiorari.
The High Court judge after
hearing the submission of Mr
Dotse, learned counsel for the
accused persons, held that “the
matter is a suit that is covered
by sections 36 and 66 of
Chieftaincy 1971 (Act 370)”. He
accordingly granted the
application by quashing the said
ruling. It is against this
ruling of the High Court that
the appellant has appealed on
the following grounds:
“1. that the learned High Court
judge did not take into
consideration the whole facts of
the case in making the said
orders of certiorari and
prohibition.
2. that the decision of the High
Court quashing the ruling of the
circuit court cannot be
supported legally considering
the facts before the Honourable
circuit court.”
I will now consider the grounds
of appeal. I begin by holding
that where an act gives rise to
either a civil or a criminal
action, then it is for the
complainant to decide whether to
institute his action in the
civil court or proceed in a
criminal court. If he decides to
institute a civil action then,
in a cause or matter affecting
chieftaincy, only the
chieftaincy tribunal can
entertain it. See section
66(1)(d) and 36 of the
Chieftaincy Act 1971 (Act 370).
In the present case however the
complainant has chosen to report
the accused persons to the
police who have charged them and
it is up to the prosecution to
prove its case. It is trite law
that the issue of jurisdiction
can be raised at any time; see
Republic v Adansi Traditional
Council, ex parte Nana Akyie II
[1974] 2 GLR 126. The trial
circuit court judge rightly
entertained the application and
we agree with him when he
decided to hear the evidence in
support of the charges and to
make appropriate orders at the
close of the case for the
prosecution. We do not know the
admissions made by the accused
persons in their cautioned
statements. A compromise may be
reached in the course of the
proceedings. It is too early to
anticipate what will follow. But
it is clear that the ingredients
of the offences of stealing and
unlawful entry must be proved.
Matters touching on bona fide
claim of right and the fact that
the accused persons failed to
apply to the court for
directions can be considered, if
there is need for them.
In the community in which the
parties live, we think the best
way of bringing justice to their
door steps is to leave no stone
unturned.
We endorse the course taken by
the learned circuit judge. This
was the reason why we allowed
the appeal, set aside the
judgment of the High Court and
remitted the case to the circuit
court for it to continue.
OFORI-BOATENG JA.
FORSTER JA.
Appeal allowed.
Kizito Beyuo, Legal
Practitioner. |
