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Practice and procedure -
Judgment - Review - State
Council reviewing its judgment
suo motu without notice to
parties - High Court has
inherent jurisdiction to set
aside order ex debito justiciae.
In their originating summons,
the plaintiff claimed for a
declaration that the decision of
the Akim Kotoku State Council in
the matter between Obaapanin
Donkor and Amoah concerning the
eligibility of the Aduana and
Asona clans to the office of
Krontihene of Akim Kotoku was
contrary to the principles of
natural justice and a nullity.
In the supporting affidavit, the
plaintiffs deposed that the
office of Krontihene had at all
material times belonged to and
was occupied by the Aduana clan.
In 1943, the incumbent
Krontihene was deposed by the
Omanhene and the Aduana house
elected one of its members,
Hemeng, to the office but the
Asona house also elected one
Amoah. Both candidates were
presented to the Omanhene and
this resulted in a chieftaincy
dispute that went before the
State Council of Akim Kotoku
under the Native Authority
(Colony) Ordinance 1944. On 25
July 1947, the council gave
judgment in favour of the
defendant’s family and ordered
that Amoah be recognised as the
Krontihene; that the two clans
were eligible to the office of
the Krontihene but for the time
being the Aduana stool was to be
subservient to the Asona stool.
The next day, i.e., 26 July
1947, the council, without
hearing either party, reviewed
its decision and directed that
the Asona clan only would be
eligible to the office of
Krontihene and that copies of
the variation be served on all
parties affected. On the
strength of the variation, Amoah
became the Krontihene and was
succeeded by two other members
of the Asona clan. Thereafter
the office of Krontihene became
vacant with the abdication of
Nana Antwi of the Asona house.
Fearing that the Asona clan
would install a candidate from
its membership the plaintiff
filed the summons in the High
Court. The defendant entered an
unconditional appearance and
filed a motion for an order to
strike out the action on the
ground, inter alia, that
the matter in issue was a
chieftaincy matter and that the
court had no jurisdiction. The
defendant averred further that
the plaintiff’s family had
appealed against the judgment,
as reviewed, to the Commissioner
of the Eastern Province who
upheld the review; that the
plaintiff’s family again
petitioned the Governor of the
Gold Coast through the Chief
Commissioner for the Colony who
advised the Governor not to
intervene. The defendant
contended that the plaintiff’s
family could not, almost forty
years thereafter, apply that the
judgment be set aside. The High
Court judge granted the motion
and dismissed the action and the
plaintiffs appealed to the Court
of Appeal.
They contended on appeal that
the Native Authority (Colony)
Ordinance 1944 did not confer
the power of review on state
councils and therefore the Akim
Kotoku State Council had no
jurisdiction to review its
decision; even if it had it
could not do so on its own
motion and in the absence of the
parties. It was contended on
behalf of the defendant that
chiefs had an inherent customary
power of review and that this
power remained intact unless
expressly taken away by statute.
Held -
Even if it could be said that
the council could review its
previous decisions it ought to
have done so upon application by
one of the parties and in the
presence of both parties after
due notice had been given them.
The procedure adopted was not
warranted under the Native
Authority (Colony) Ordinance
1944 and unless there was a
clear authority to the contrary
the council was functus
officio and the judgment of
26 July 1947 was a nullity. It
was unreasonable for an
adjudicating body to change a
decision it had pronounced after
the parties had departed and
without any application to that
effect by any of the parties. It
was too dangerous for such
practice to be endorsed by the
court in the absence of clear
legal provisions warranting such
a procedure. Mosi v Bagyina
[1963] I GLR 337 applied. Otu
X v Owuodzi [1987-88] 1 GLR
196 mentioned.
James Ahenkorah
(with him Hackman) for
the appellant.
W A N Adumua-Bossman
(with him Asafu-Adjaye)
for the respondent.
Cases referred to:
Mosi v Bagyina
[1963] 1 GLR 337, CA.
Otu X v Owuodzi
[1987-88] 1 GLR 196, SC.
APPEAL from the ruling of the
High Court.
ESSIEM JA.
This is an appeal from the
decision of the High Court,
Koforidua, constituted by J S
Williams J. The said court on
15th day of October 1987,
“struck off” the
plaintiff-appellant’s action
upon a preliminary objection
raised by the respondent before
that court. Before I deal with
the grounds of appeal I propose
to give the facts of the case
and the circumstances leading to
the instant appeal.
This dispute relates to the
office of the Krontihene of Akim
Kotoku. The action herein was
commenced by an originating
summons by which the
plaintiff-appellant sought the
following relief from the High
Court:
“(1) declaration that the
decision of the then Akim Kotoku
State Council between Obaapanin
Afua Donkor as plaintiff and F B
Amoah alias Abrokwa Gyampim, as
defendant, concerning the rival
claims of the Aduana and Asona
clans to be eligible to the
office of Krontihene of Akim
Kotoku, was a nullity as being
contrary to the principles of
natural justice.”
The supporting affidavit of the
plaintiff, Amma Samanpa, spells
out the events leading to the
action in some detail and I
reproduce the same hereunder:
“1. That I am the plaintiff
herein and institute this action
as the head of and representing
the royal Aduana clan attached
to the Kronti stool of Akim
Kotoku. The defendant who is the
Abusuapanin of the Asona clan
attached to the said stool is
sued as such.
2. That from the beginning of
the founding of the state of
Akim Kotoku the office of
Krontihene of the state had
belonged to and been occupied by
a royal of the Aduana clan of
which I am the present head.
3. That in or about 1943 Nana
Darko Gyimah III, then holder of
that office from the Aduana
clan, was deposed by the
Omanhene thereby rendering the
office vacant; consequently in
or about 1947 it became
necessary to elect another
candidate to fill the vacancy.
4. That the Aduana clan elected
one of its members by name Kwame
Hemeng to the office but rather
surprisingly one F B Amoah,
alias Abrokwa Gyampim from the
Asona clan, was also elected to
the office and both candidates
were presented to the then
Omanhene, Nana Frempong Manso
II.
5. That the election of these
two candidates resulted in a
chieftaincy dispute between the
Aduana clan and the Asona clan
with Aduana clan claiming to be
exclusively entitled to the
office while the Asona clan
claimed to be entitled to share
in it.
6. That this dispute went for
determination to the then State
Council of Akim Kotoku under the
provisions of the Native
Authority (Colony) Ordinance
1944, with Obaapanin Afua
Donkor, my immediate predecessor
in office, as plaintiff and the
said F B Amoah alias Abrokwa
Gyampim and others as
defendants.
7. That on 25th July 1947 the
council gave judgment in favour
of the defendants and ordered as
follows:
“That Amoah be recognised as
the Krontihene. That the two
houses (Asona and Aduana) become
eligible to the office of the
Krontihene from that date hereof
but that for the time being the
Aduana stool be made subservient
to the Asona stool which now
holds the office.”
8. That the said decision was
very distasteful to the Aduana
clan; whatever be the case, I am
advised by counsel and I verily
believe the same to be true that
after delivering judgment as
aforesaid the matter became
closed before the council which
became functus officio.
9. That rather surprisingly, the
next day, that is 26 July 1947,
the council without hearing both
sides afresh or, at any rate,
without hearing or giving the
Aduana clan the opportunity to
be heard, purported to vary or
review the decision of 25 July
1947 to the following:
“That the Asona family only
shall henceforth be eligible to
the office of the Krontihene.
That the Aduana house formerly
Krontihene now owes allegiance
to the Omanhene as Aduanahene
under the present Krontihene’s
house and further that copies of
this variation be served on all
parties affected by this order.”
10. That on the strength of the
said judgment varied as
aforesaid, the said F B Amoah,
alias Abrokwa Gyampim, became
the Krontihene and was after his
death succeeded in that office
by two other members of the
Asona clan which does not
recognise the eligibility of
members of the Aduana clan to
the office of Krontihene.
11. That the office of
Krontihene having become vacant
since last year with the
abdication of Nana Amponsah
Antwi of the Asona house as
Krontihene. I am reliably
informed and I verily believe
the same to be true that the
Asona clan is making
preparations to install a
candidate from its membership.
12. That unless and until the
so-called variation order of the
state council given on 26th day
of July 1947 is declared or held
to be a nullity the Aduana clan
will forever be held barred from
holding the office of Krontihene
which it had held from time
immemorial until it was
interrupted in 1947 as
hereinbefore stated.”
The respondent entered an
unconditional appearance to the
originating summons on 12/3/86.
Then on 21 March 1986 the
respondent filed a motion on
notice “for an order striking
out the plaintiff’s action”. The
grounds stated were:
“(i) That it is a chieftaincy
matter and therefore that this
court has no jurisdiction to
entertain it;
(ii) That it is frivolous and
vexatious;
(iii) That this is not an action
which can properly be commenced
by originating summons.”
The respondent then filed an
affidavit “in opposition” in
which he set out his defence to
the originating summons. I
reproduce the relevant
paragraphs of the said
affidavit:
“2. That I have been served with
an originating summons taken out
on behalf of the plaintiff.
3. That the plaintiff on the
summons claims to be eligible to
the office of Krontihene of Akim
Kotoku and to bring the action
on behalf of the Aduana stool.
4. That the Kronti stool is now
vacant and the plaintiff and her
family want to claim the right
to choose a candidate for the
stool; a right which is disputed
by the defendant and his family.
5. That I am advised and verily
believe that the real
controversy between the parties
herein is a chieftaincy matter
within the meaning of s 66 of
the Chieftaincy Act 1971 (Act
370) and that therefore this
honourable court has no
jurisdiction to entertain it by
virtue of section 52 of the
Courts Act 1971 (Act 372).
6. That I am also advised and
verily believe that this action
is frivolous and vexatious and
ought not in any case be
entertained even if this
honourable court has
jurisdiction.
7. That in 1947 there was a
dispute between the plaintiff’s
family and the defendant’s
family over the choice of a
candidate for the Kronti stool.
8. That on the 25th July 1947
the Akim Kotoku State Council
gave judgment in favour of the
defendant’s family in the
following terms:
“That Amoah be recognised as
the Krontihene. That the two
houses (Asona and Aduana) become
eligible to the office of the
Krontihene from that date hereof
but that for the time being the
Aduana stool be made subservient
to the Asona stool which now
holds the office.”
9. That the next day the state
council varied or reviewed its
judgment in the following terms:
“That the Asona family only
shall henceforth be eligible to
the office of the Krontihene.
That the Aduana house formerly
Krontihene now owes allegiance
to the Omanhene as Aduanahene
under the present Krontihene’s
house and further that copies of
this variation be served on all
parties affected by this order.”
10. That the plaintiff’s family
appealed against the said
judgment as reviewed.
11. That the appeal was
considered by the Commissioner
of the Eastern Province which
upheld the judgment of the Akim
Kotoku State Council as
reviewed. A certified copy of
the ruling of the Acting
Commissioner of the Eastern
Region is annexed hereto and
marked “A”.
12. That the plaintiff’s family
again petitioned the Governor of
the Gold Coast through the Chief
Commissioner for the Colony who
advised the Governor not to
intervene. A certified copy of
the Memorandum of the Chief
Commissioner to the Governor is
annexed hereto marked “B”.
13. That I am advised and verily
believe that the judgment of the
state council as varied on the
26th July 1947 having been
affirmed on appeal and petition
by the plaintiff’s family
against the said judgment having
been rejected by the Governor of
the Gold Coast the plaintiff’s
family cannot now almost forty
years after the event ask the
said judgment to be set aside.
14. That variation made by the
state council was perfectly in
accord with custom and did not
constitute any breach of natural
justice.
15. That I am further advised
and verily believe this is not
an action which can properly be
initiated by originating
summons.
16. That this action is
frivolous and vexatious having
been brought merely to prevent
the installation of a new
Krontihene who has been
nominated and elected by the
king-makers of the Kronti
stool.”
It will be seen from the
affidavit in opposition,
paragraphs 8 - 9, that after the
Akim Kotoku State Council had
given a decision in the matter
on 25th July 1947 that same
council re-assembled the
following day and reviewed its
judgment in the absence of the
parties apparently on its own
motion.
The original judgment of 25 July
1947 was:
“That Amoah be recognised as the
Krontihene. That the two houses
(Asona and Aduana) become
eligible to the office of the
Krontihene from that date hereof
but that for the time being the
Aduana stool be made subservient
to the Asona stool which now
holds the office.”
Then on the following day, i.e.
26 July 1947, the same council
in the absence of the parties,
“reviewed” its decision and
substituted a new decision as
follows:
“That the Asona family only
shall henceforth be eligible to
the office of the Krontihene.
That the Aduana house formerly
Krontihene now owes allegiance
to the Omanhene as Aduanahene
under the present Krontihene’s
house and further that copies of
this variation be served on all
parties affected by this order.”
This new decision is really the
reason for the declaration
sought from the court below. It
is important to point out that
the applicants appealed to the
Commissioner Eastern Region
under section 26 of the Native
Authority (Colony) Ordinance
1944 against the decision of the
Akim Kotoku State Council.
In his “finding” the Acting
Commissioner Eastern Region
dealt with the change of
judgment of the Akim Kotoku
State Council thus:
“That state council recorded its
judgment and order on 25th July
1947 and reviewed its order on
the following day. This rapid
volte face is hard to
understand but I am of the
opinion that the order made on
the second day was done in order
to simplify the situation and to
discourage expensive
litigation.”
Thus the appeal was dismissed.
There is no explanation why the
applicant waited all those years
before filing the instant
application. The respondent then
on 21 March 1986 filed a motion
“for an order striking out the
plaintiff’s action on the
grounds:
“(i) That it is a chieftaincy
matter and therefore that this
court has no jurisdiction to
entertain it.
(ii) That it is frivolous and
vexatious.
(iii) That this is not an action
which can properly be commenced
by originating summons.”
The court dealt with these
points after hearing arguments
from counsel on both sides. It
upheld the objection and
dismissed the action for a
number of reasons. It is against
that decision that this appeal
has been brought.
The main point raised before us
in support of the appeal was
that the Native Authority
(Colony) Ordinance 1944 did not
confer the power of review on
state councils and therefore the
Akim Kotoku State Council had no
jurisdiction to review its
previous decision. Even if the
state council had power of
review, it was argued, it could
not do so on its own motion and
in the absence of the parties.
It was contended on behalf of
the respondents that chiefs
exercised a power of review in
all cases and that the power to
appeal was in addition to the
inherent customary power of
review and that the power of
review remained intact unless
expressly taken away by statute.
In Otu X v Owuodzi
[1987-88] 1 GLR 196 the Supreme
Court dealt with “the review
jurisdiction of an adjudicating
tribunal”. In that case the
National House of Chiefs gave a
decision in a chieftaincy matter
on 23/10/85. On 8/11/85, the
National House of Chiefs “at the
invitation of the defendants”
reviewed its ruling of the
23/10/85, “set it aside, and
proceeded to dismiss the
plaintiffs petition altogether”.
On appeal to the Supreme Court,
the court expressed the
following opinion in the course
of its judgment:
“The review jurisdiction of an
adjudicating tribunal is not one
that is usually conferred by
statute. It is inherent in the
tribunal; it is part of its very
nature as a tribunal whose
raison d’etre is to do
justice as between parties to a
case before it. But in order not
to appear to be taking sides in
the matter, the jurisdiction is
not usually invoked on the
tribunal’s own motion, except in
situations where the tribunal is
satisfied that the decision
sought to be reviewed is void.
... Where the decision is merely
voidable, then it were better
that the tribunal left it to the
parties themselves to initiate
the review proceedings, if so
advised, care always being taken
to ensure that the tribunal does
not allow itself to be coaxed
into sitting on appeal over its
own decision...”
That court concluded that “the
judicial committee of the House
of Chiefs had power to review
their own decisions in
appropriate circumstances”. In
the instant case the Akim Kotoku
State Council in what it called
“review”, on its own motion and
in the absence of the parties,
substituted an entirely new
decision for the one it had
delivered the previous day
before the parties. Unless there
is clear legal authority for
this, the council, after
delivering its decision in the
matter, would have become
functus officio. In
that case the “judgment” of 26
July 1947 would be a nullity
because the Akim Kotoku State
Council would have acted without
jurisdiction since it had by
then become functus
officio in the matter.
However the matter is a little
more complicated than this. The
applicants appealed to the then
Acting Commissioner, Eastern
Region who affirmed the
decisions “of the State Council
given on the 25th and 26th days
of July 1947”.
In my opinion the two judgments
are inconsistent for while the
first made members of both the
Aduana clan and the Asona clan
eligible to ascend the Kronti
Stool of Akim Kotoku, the second
judgment limited the holding of
that office to members of the
Asona clan. Thus the judgment of
the 26 July 1947 completely
changed the decision of the
tribunal given the previous day.
It denied members of the Aduana
clan any right to ascend the
Kronti stool. It was therefore a
new judgment given by the Akim
Kotoku State Council and it did
this of its own motion in the
absence of the parties. In my
opinion even if it can be said
that the council could review
its previous decisions this
should be done upon application
by one of the parties and in the
presence of both parties after
due notice had been given them
for the purpose.
The procedure they adopted is
not warranted by any procedure
known to the applicable law. It
is my opinion that the state
council had no jurisdiction
suo motu to amend its
judgment after it had been read
in open court , and especially,
in the absence of the parties.
There is no provision in the
Native Authority (Colony)
Ordinance 1944 which permits
what the council did. Learned
counsel for the respondent, Mr
Bossman, had argued that there
was an inherent power of review
by the chief in all cases and
that this inherent power of
review had not been expressly
taken away by statute and that
the power to appeal was in
addition to the customary power
of review.
It is too well settled that
customary law does that which is
reasonable. To my mind it is
unreasonable for any
adjudicating body to change a
decision it had pronounced in
open court after the parties had
left the court and without any
application to that effect by
any of the parties. It is too
dangerous for such practice to
be endorsed by the court in the
absence of clear legal
provisions warranting such a
procedure. Even if the
traditional council is said to
have jurisdiction to review its
own decision, it can only be so
before the parties after due
notice had been given to them.
As Adade, JSC said in Otu’s
case (supra):
“... In order not to appear to
be taking sides in the matter,
the jurisdiction is not usually
invoked on the tribunal’s own
motion, except in situations
where the tribunal is satisfied
that the decision sought to be
reviewed is void.”
What the traditional council did
in this case was not to review a
void decision; it was to
substitute a new one for the one
read previously in open court .
The traditional council had no
jurisdiction in my opinion to do
that and it consequently acted
without jurisdiction. The second
judgment is therefore, in my
opinion, a nullity, having been
given without jurisdiction.
However this judgment was
affirmed by the Governor in
exercise of his appellate
jurisdiction under the then
existing law namely the Native
Authority (Colony) Ordinance
1944 (No 21 of 1944).
I have looked at the Native
Authority (Colony) Ordinance
1944 (No 21 of 1944) and I am of
the view that the Governor can
only affirm a decision of a
state council which has been
duly given after adjudication.
The record in this case shows
that the second judgment was not
given after any hearing and as I
have already said there is no
provision under the ordinance
which empowers the state council
to do that. It is my view that
when the matter went to the
Eastern Regional Provincial
Commissioner and subsequently to
the Governor, the two officials
could only deal with the
original decision of the
council.
It is therefore my view that
both the Provincial Commissioner
and the Governor had no
jurisdiction to deal with the
second judgment in any way since
that was not given in accordance
with the provisions of the
relevant law namely, Ordinance
No 21 of 1944. Thus the
purported confirmation of the
said judgment is itself a
nullity.
In Mosi v Bagyina [1963]
1 GLR 337 holding (4) it is
stated:
“Where a judgment or an order is
void either because it was given
or made without jurisdiction or
because it is not warranted by
any law or rule of procedure,
the party affected is entitled
ex debito justiciae to
have it set aside, and the court
or a judge is under a legal
obligation to set it aside,
either suo motu or on the
application of the party
affected. No judicial discretion
arises here. The power of the
court or a judge to set aside
any such judgment or order is
derived from the inherent
jurisdiction of the court to set
aside its own void orders and it
is irrespective of any expressed
power of review vested in the
court or a judge; and the
constitution of the court is for
this purpose immaterial.
Further, there is no time limit
in which the party affected by a
void order or judgment may apply
to have it set aside.”
Thus the purported judgment of
the Akim Kotoku State Council
delivered on 26 July 1947 and
purported to be a review of the
council’s decision given on 25
July 1947 is hereby set aside as
the same was given without
jurisdiction and is consequently
a nullity.
The confirmation of that
council’s decision by the
Governor should be limited to
the council’s decision of 25
July 1947 namely:
“That Amoah be recognised as the
Krontihene. That the two houses
(Asona and Aduana) became
eligible to the office of the
Krontihene from the date hereof
(i.e. 25th July 1947) but that
for the time being the Aduana
stool be made subservient to the
Asona Stool which now holds the
office.”
I shall therefore allow the
appeal and remit the case to the
High Court, Koforidua to deal
with the case before it.
LAMPTEY JA.
I agree.
OFORI-BOATENG JA.
I agree.
Appeal allowed; case remitted to
the High Court.
S Kwami Tetteh, Legal
Practitioner. |
