State proceedings – Prerogative
writs – Traditional court -
Whether traditional courts
amenable to orders in the nature
of certiorari and prohibition.
The
appellant, Kpakpo Brown, applied
for an order of prohibition to
restrain the respondents from
proceeding further with the
proceedings pending before the
Ga Mantse’s Customary
Arbitration Tribunal, the 1st
respondent tribunal set up as an
adjudicating body by the Ga
Mantse, to settle disputes among
his subjects. The 2nd
respondent, the Anyaa Mantse had
referred to the said tribunal, a
dispute between him and the
appellant regarding the right to
control, administer and alienate
lands at Anyaa. In the course of
the proceedings the appellant,
fearing a real likelihood of
bias applied for an order of
prohibition against the
respondent tribunal. At the
hearing of the application the
respondents’ counsel submitted
that the High Court had no
supervisory jurisdiction over
the respondent tribunal, as it
was not set up by statute. The
High Court upheld the submission
and on appeal to the Court of
Appeal,
Held:
(1) The remedy of prohibition,
in its very inception was
applicable to inferior judicial
tribunals that derived their
authority from sources other
than statute. Thus, if by custom
a body was vested with
adjudicating authority, the fact
that in modern times conferment
of judicial authority by statute
had become the rule, did not
deny recognition to such
adjudicating body of customary
origin. The laws of Ghana, as
provided by the 1979 and 1992
constitutions, included rules of
customary law, being the rules
of law which, by custom were
applicable to particular
communities in Ghana. The
preservation of chieftaincy
obviously included the
recognition of such judicial
bodies as were recognised by
customary law as the prerogative
of chiefs to establish for the
maintenance of peace and order
and to which persons subject to
customary law could repair to
vindicate their rights. The
traditional customary courts, by
whatever name called, and whose
jurisdiction had not expressly
been taken away by statute, were
such judicial bodies that were
equally amenable to the writs of
certiorari and prohibition. The
emergence of statute law upon
the legal scene had not swept
away the rudimentary judicial
authority of the chief nor that
of any body through which that
authority was exercised. The
respondent tribunal, which
traced its source to the custom
of the indigenes of the Ga
Traditional Area, was a public
adjudicating body and amenable
to the supervisory jurisdiction
of the High Court. The appeal
would be allowed and the case
remitted to the High Court to
determine the merits of the
motion for prohibition. R v
Criminal Injuries Compensation
Board, ex parte Lain [1967]
2 QB 864 followed.
Cases referred to:
R v Electricity Commissioners,
ex parte London Electricity
Joint Committee Company (1920)
Ltd
[1924] 1 KB 171, 93 LJKB 390,
130 LT 164, 88 JP 13, 39 TLR
715, 68 SJ 188, [1923] All ER
150, CA.
R v Criminal Injuries
Compensation Board, ex parte
Lain
[1967] 2 QB 864, 3 WLR 348, 111
SJ 331, [1967] 2 All ER 770, CA.
APPEAL from the ruling of the
High Court.
FORSTER JA.
This appeal is
from the ruling of Lutterodt J
sitting at the High Court,
Accra, on 15/2/90. The
appellant, in an ex parte
motion sought leave of the court
to issue an order of prohibition
to restrain the respondents from
proceeding further with the
proceedings before the 1st
respondent-tribunal, in the case
of Nii Charbukwei II, Chief
of Anyah v Augustus Kpakpo Brown.
At
the hearing of the substantive
motion the respondents’ counsel
raised a preliminary objection
contending that the High Court
had no jurisdiction in as much
as the Ga Mantse's Customary
Arbitration Tribunal
(hereinafter called ‘the
tribunal’) was not set up by
statute and therefore was not
amenable to the supervisory
jurisdiction of the High Court.
In her ruling dated 15 February
1990, the judge held that the
respondent-tribunal was not an
adjudicating authority and
therefore outside the scope of
the writ of prohibition. She
therefore dismissed the
application.
The tribunal is an adjudicating
body set up by the Ga Mantse to
which he had delegated his
customary function of settling
disputes among his subjects.
In the instant case, Nii
Charbukwei II, the Anyah Mantse,
commenced action against the
respondent, Augustus Kpakpo
Brown by a “Statement of
Plaintiff's case”. The issue in
dispute concerned the right to
administer, control and alienate
family lands at Anyah. In the
course of the proceedings before
the tribunal, the respondent
apprehending that there was real
likelihood of bias against him
by the chairman of the tribunal,
sought the writ of prohibition
to restrain the tribunal from
proceeding further with the
proceedings.
The only issue in this appeal is
whether the trial judge erred in
holding that the tribunal, not
having been set up under a
statute, was not subject to the
supervisory jurisdiction of the
High Court.
In Rex v Electrictity
Commissioners, ex parte London
Electricity Joint Committee
Company (1920) Ltd [1924] 1
KB 171 at p 205, Atkin LJ,
defining the supervisory
jurisdiction in these matters,
said:
“Whenever any body of persons
having legal authority to
determine questions affecting
the rights of subjects, and
having the duty to act
judicially, act in excess of
their legal authority, they are
subject to the controlling
jurisdiction of the King's Bench
Division exercised in these
writs.”
It is the contention of counsel
that the writ of prohibition
lies only in respect of a
tribunal or body whose judicial
or quasi-judicial authority is
conferred by statute.
My researches have discovered
that the remedy in its very
inception was applicable, among
other bodies, to such inferior
judicial tribunals that derived
their authority from sources
other than statute. Admittedly
statutory sources have
overwhelmed the sources of
judicial authority, but that is
because in these modern times it
is largely the legislature that
constitutionally has become the
creator of bodies vested with
judicial authority. It is
nonetheless recognised that
statute is not the only source
of judicial authority.
In R v Criminal Injuries
Compensation Board, ex parte
Lain [1967] 2 QB 864,
Diplock LJ reacting to the
contention that it is only
bodies vested with statutory
judicial authority that were
amenable to the writ of
certiorari and ipso facto,
prohibition, said at page 884:
“The earlier history of the writ
of certiorari shows that it was
issued to courts whose authority
was derived from… franchise or
custom as well as from
Act of Parliament… True, since
the victory of Parliament in
Constitutional struggles of the
17th Century, authority has been
generally if not invariably,
conferred upon new kinds of
tribunals by or under an Act of
Parliament and there has been no
recent occasion for the High
Court to exercise supervisory
jurisdiction over persons whose
ultimate authority to decide
matters is derived from any
other source. But I see no
reason for holding that the
current jurisdiction of the
court of Queen's Bench has been
narrowed merely because there
has been no occasion to exercise
it."
(Emphasis mine.)
Thus, if by the custom of the
people a body had been vested
with adjudicating authority, the
fact that in modern times
conferment of judicial authority
by statute has become the rule,
does not deny recognition to
such adjudicating bodies of
customary origin.
The laws of Ghana as provided by
the 1979 and 1992 constitutions
include rules of customary law,
being the rules of law which by
custom are applicable to
particular communities in Ghana.
The preservation of chieftaincy
obviously includes the
recognition of such judicial
bodies as are recognised by
customary law as the prerogative
of chiefs to establish for the
maintenance of peace and order
and to which persons subject to
customary law may repair to
vindicate their rights.
The traditional customary
courts, by whatever name they
may be called, and whose
jurisdiction have not expressly
been taken away by statute, are
to my mind, such judicial bodies
that are equally amenable to the
writs of certiorari and
prohibition.
The emergence of statute law
upon the legal scene has not
swept away the rudimentary
judicial authority of the chief
nor that of any body through
which that authority is
exercised.
Counsel for the respondent has
contended that the submission to
the arbitral proceedings of the
tribunal is entirely at the
election of a party and not
compulsory. So also is
submission to the jurisdiction
of any court, except, of course,
that in default thereof by a
party – a defendant - judgment
may be decreed against him.
I do not find any procedural
difference regulating
proceedings of the two
adjudicating authorities (by
custom and by statute) decisive
in determining whether one or
the other is amenable to the
determining supervisory
jurisdiction of the High Court.
Our tribunals of yesterday
operated under different rules
from the courts yet they were
adjudicating bodies.
I hold therefore that the
tribunal in the instant case
which traces its source to the
custom of the indigenes of the
Ga Traditional Area is a public
adjudicating body and thus
amenable to the supervisory
jurisdiction of the High Court.
The appeal therefore succeeds
and the case is remanded for the
High Court to determine the
merits of the motion for
prohibition.
ESSIEM JA.
I agree.
BROBBEY JA.
I also agree.
Appeal allowed. Application
remitted to the High Court for
determination.
Justin Amenuvor, Legal
Practitioner. |
