Courts
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High Court
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Jurisdiction
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Order to prohibit holding out
3rd respondent as paramount
chief
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Application for prohibition
essentially a matter affecting
chieftaincy
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High Court has no jurisdiction
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Constitution 1992 art 140(1).
State proceedings
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Prohibition
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Scope
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Prohibition amenable only to
judicial bodies performing
judicial acts.
State proceedings
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Certiorari
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Scope
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Certiorari amenable only to
judicial bodies performing
judicial acts.
The respondents obtained an
order of prohibition in the High
Court restraining the applicants
from holding up the 3rd
applicant as the paramount chief
of Senya Beraku. Aggrieved with
the order the respondents
invoked the supervisory
jurisdiction of the Supreme
Court.
Held:
(1) Although article 140(1) of
the 1992 Constitution conferred
on the High Court jurisdiction
in all matters, the provision
was subject to the restrictions
under the constitution. The
dispute that went before the
High Court was cognisable by the
judicial committee of the
Central Regional House of Chiefs
in the exercise of its original
jurisdiction. Only that body
could determine the dispute
whether the 3rd applicant was
the paramount chief of Senya
Beraku. The High Court could not
deal with the dispute under its
supervisory jurisdiction since
no proceeding was pending in
respect of the dispute.
(2) Article 141 gave the High
Court supervisory jurisdiction
to control or supervise the
lower courts and adjudicating
bodies. Like certiorari,
prohibition lay only against
judicial or quasi judicial
bodies for their judicial acts.
By installing the 3rd applicant
as a chief the respondents had
not performed a judicial act.
Therefore neither certiorari nor
prohibition lay to challenge
their act. The order of the High
Court was made without
jurisdiction and the application
would be granted to set it
aside. Republic v High Court
Koforidua, ex parte Nyame
[1994-95] GBR 512, SC referred
to.
Case referred to:
Republic v High Court Koforidua,
ex parte Nyame
[1994-95] GBR 513.
APPLICATION to the Supreme Court
to set aside an order of
prohibition of the High Court,
Cape Coast.
Brodie Mends
for the applicant.
Asumadu Mensah
for 2nd, 3rd and 4th
respondents.
AMUA-SEKYI JSC.
The applicants are Kow Larbie,
also known as Kobina Abaka II,
Kow Asafua and Aboagye Abbiw,
also known as Nenyi Akomdoh II.
The third applicant claims to
have been installed as Odefey or
Paramount Chief of Senya Beraku
in place of Nenyi Kweku Issiw VI
who was said to have vacated his
office. Following the
installation of the third
applicant, Nenyi Andakwei IV who
claims to be regent in the
absence of Nenyi Kweku Issiw VI
and two others sought the
assistance of the High Court,
Cape Coast. They applied for
orders of certiorari and
prohibition. The High Court
presided over by Beatrice
Agyeman-Bempah J ruled that
certiorari did not lie, but
granted the application for
prohibition. She ordered that
the present applicants be
restrained from holding up the
third applicant as a chief and
the chieftaincy authorities from
having the fact of his alleged
installation published in the
Government Gazette. In coming to
her decision, the learned judge
expressed the opinion that the
matter before her was not a
cause or matter affecting
chieftaincy and that the
decision of this court in
Republic v High Court Koforidua
ex parte Nyame [1994-95] GBR
512 to which her attention had
been drawn, was not relevant to
the case before her. In this she
was clearly wrong since the
question before her was whether
the applicant had been properly
installed as a chief.
Although article 140 clause 1 of
the Constitution 1992 confers on
the High Court jurisdiction in
all matters, this is made
subject to other provisions of
the constitution. The provisions
that restrict or limit the
jurisdiction of the High Court
are the following:
(a) Article 2 confers original
jurisdiction on the Supreme
Court in actions in which it is
alleged that an enactment or
anything contained in or done
under it or any act done or
omitted to be done by any person
is inconsistent with, or a
contravention of, a provision of
the constitution;
(b) Article 130(1) which, while
preserving the jurisdiction of
the High Court in the
enforcement of the human rights
provisions of the constitution,
confers exclusive original
jurisdiction on the Supreme
Court in all other
constitutional matters;
(c) Article 273(5) gives
judicial committees of the
National House of Chiefs
original jurisdiction in any
cause or matter affecting
chieftaincy where the cause or
matter lies within the
competence of two or more
Regional Houses of Chiefs, or is
not properly within the
jurisdiction of a Regional House
of Chiefs;
(d) Article 274(3)(d) gives
judicial committees of regional
houses of chiefs original
jurisdiction in all matters
relating to a paramount stool or
skin or the occupant or
queenmother of such a stool or
skin;
(e) Article 270(1) preserves the
power of traditional councils to
adjudicate in disputes
concerning the validity of the
nomination, election, selection,
installation or deposition of a
person as a chief.
The dispute, which the
respondents to this application
took to the High Court was
cognisable by the Central Region
House of Chiefs in the exercise
of its original jurisdiction.
Only a judicial committee of
that body could deal with the
dispute as to whether the third
applicant had been properly
elected and installed as
paramount chief of Senya Beraku,
neither could the High Court
deal with the dispute under the
supervisory jurisdiction
conferred on it by article 141
since there were no proceedings
in respect of the dispute before
any court or tribunal. Article
141 gives the High Court
supervisory jurisdiction over
all lower courts and any lower
adjudicating authority. In
exercising this jurisdiction,
the High Court may issue orders
or directions to such bodies.
Thus, the High Court may order
that the proceedings of any such
lower court or adjudicating
authority be brought before it
for the purpose of being set
aside, or it may order it not to
proceed with the hearing and
determination of a dispute
brought before it. The power is
for controlling or otherwise
supervising the work of such
lower courts and adjudicating
authorities; it is not for
taking over and determining
matters peculiarly within their
jurisdiction.
In the case of the chieftaincy
tribunals, while such orders may
be directed to them if they act
without or in excess of
jurisdiction or if they fail to
observe the rules of natural
justice, the High Court cannot
exercise original jurisdiction
in such matters. Like
certiorari, prohibition lies
only to judicial or quasi
judicial bodies and in respect
of judicial acts: see
Halsbury’s Laws of England
3rd edition para 114 at page 55
under the heading “Certiorari
and prohibition lie only in
respect of judicial acts”,
and paragraph 211 at page 113
where the order of prohibition
is defined as “an order, issuing
out of the High Court of
justice, directed to an
ecclesiastical or inferior
temporal court, which forbids
that court to continue
proceedings therein in excess of
its jurisdiction or in
contravention of the laws of the
land.”
By installing the third
applicant as a chief the
respondents were not exercising
any judicial function.
Therefore, neither certiorari
nor prohibition lay to challenge
their action. We are satisfied
that the order made by the
learned judge of the High Court
was a nullity as having been
made without jurisdiction. We
therefore grant the application
and set it aside.
(Sgd) BAMFORD-ADDO JSC
(Sgd) AMPIAH
JSC
(Sgd) KPEGAH
JSC
(Sgd) ADJABENG JSC
Application granted.
S Kwami Tetteh, Legal
Practitioner |
