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Courts – Jurisdiction – High
Court – Matter affecting
chieftaincy – High Court has no
jurisdiction – Constitution
1992, art 140(1).
State proceedings – Certiorari –
Judicial acts – Whether
installation of chief amenable
to certiorari.
State proceedings – Prohibition
– Judicial acts – Whether
installation of chief amenable
to prohibition.
The respondents applied to the
High Court, Cape Coast for
certiorari and prohibition on
the ground that the 3rd
applicant was not properly
enstooled as a paramount chief.
The court ruled that the matter
did not affect chieftaincy and
prohibited the applicants from
holding out the third applicant
as a chief. The applicants
invoked the supervisory
jurisdiction of the Supreme
Court.
Held:
(1) the trial judge was clearly
wrong since the question before
her was whether the 3rd
applicant had been properly
installed as a chief. The
provision in article 140(1) of
the Constitution 1992 conferring
jurisdiction on the High Court
in all matters was subject to
such limitations within the
constitution such as articles 2,
130(1), 273(5), 274(3)(d) and
270(1). The matter in issue
before the High Court was
cognisable only by the judicial
committee of the Central Region
House of Chiefs in the exercise
of its original jurisdiction.
(2) Article 141 gave the High
Court supervisory jurisdiction
over all lower courts and any
lower adjudicating authority.
Like certiorari, prohibition lay
only to judicial or
quasi-judicial bodies in respect
of judicial acts. 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. The order of the
High Court was without
jurisdiction and a nullity and
would be set aside.
Case referred to:
Rep v High Court, Koforidua, ex
p Nyame
20 December 1994, SC.
APPLICATION for an order of
certiorari to quash the decision
of the High Court, Cape Coast.
Brodie Mends
for the applicant.
Asumadu Mensah
for the 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 Adakwei 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 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 said
that the decision of this court
in Republic v High Court
Koforidua ex parte Nyame 20
December 1994, SC 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.
Among the provisions, which
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 when 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 Breku.
The High Court dealt 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 the
High Court 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 at 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, Vol 11, 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
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