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Chieftaincy – Enstoolment -
Causes of matter affecting
chieftaincy - Traditional
Council - Judicial Committee -
not conforming
to tradition and custom
-
On what grounds ought an appeal
against the exercise of judicial
discretion by a lower court to
succeed - Nomination and
ascending to Stool -
Non-compliance
with the rules -
Order 81
-
High Court (Civil Procedure)
Rules, 2004 (C.I.47)
-
Whether failure to strictly
comply with the manner for
commencing proceedings under the
procedure rules of the
Traditional Councils established
under the Chieftaincy Act
automatically renders the
proceedings of a Judicial
Committee void – Whether or not
the Judicial Committee otherwise
has jurisdiction over the cause
or matter
HEADNOTES
The
applicant / appellant /
respondent (the applicant) and
the interested party /
respondent / appellant (the
interested party) are heads of
family representing two factions
both claiming to be the true
Mbraye line of the Kokodo
Ebiradzie Stool Family of Fijai
in the Sekondi Traditional Area.
They are disputing over who has
the right to
nominate
an occupant to
ascend
the Fijai Stool, a
Divisional Stool, which has been
vacant since 2004. When the
Stool fell vacant, the
interested party selected one
Amo and enstooled him as the
chief of Fijai but the applicant
and his branch of the family
disagreed. They accordingly also
selected one Alfred Kwofie who
they confined to be enstooled as
the rightful chief of Fijai. It
appears the interested party
made preparations to outdoor
their chief so the applicant’s
family filed a case in the
Judicial Committee of the
Sekondi Traditional Council and
prayed for declaration that the
selection of Amo by the
interested party as chief of
Fijai was contrary to custom and
for an injunction against his
outdooring. They also prayed for
a declaration that Alfred Kwofie
was validly nominated, selected
and confined as the chief of
Fijai. After a trial at which
both sides were heard the
Committee
HELD
MAJORITY OPINION
I very much align myself with
this view and must say that the
facts leading to the impugned
ruling of the Judicial Committee
of the Sekondi Traditional
Council, as I have outlined
above is a clear demonstration
of the Committee’s disrespect
for fair and orderly
administration of justice. There
is no doubt from the facts on
record that the Committee acted
without jurisdiction. The
appropriate remedy available to
the respondent is an order of
certiorari to quash the 13
November ruling of the
Committee. The Court of Appeal
committed no error in quashing
the said ruling. This appeal in
my view has no merit and ought
to be dismissed.
DISSENTING OPINION
So if one does not hail from the
appropriate lineage even if he
hails from the right family one
does not qualify to become a
chief. The case on the merits
against the applicant’s branch
is that they do not hail from
the appropriate lineage to mount
the Fijai Stool under Sekondi as
their roots are at Essikado. If
the applicant felt aggrieved by
this formidable finding of fact
against him he was not without
remedy since he could appeal
against the decision on the
merits to the Regional House of
Chiefs. This recourse to
technicism without alleging and
proving any miscarriage of
justice suffered by him from the
proceedings ought not to be
endorsed by the court.
For the above reasons I allow
the appeal against the decision
of the Court of Appeal dated 29th
May, 2019 and set aside same.
The ruling of the High Court
dated 19th May, 2014
is hereby restored.
STATUTES
REFERRED TO IN JUDGMENT
Constitution
of Ghana, 1992
Courts
Act, 1993 Act 459
Chieftaincy
Act, 2008 (Act 759)
Chieftaincy
(Proceedings and
Functions)(Traditional Councils)
Regulations, 1972 (L.I.798)
High Court (Civil Procedure)
Rules, 2004 (C.I.47)
CASES REFERRED TO IN JUDGMENT
Republic
v High Court, Accra, Ex-Parte
Industrialization Fund for
Development Countries & Another
[2003-2004] 1 SCGLR 348
R
v Sonje and another [2005] 4 All
ER 321. HL
Pomaa v Fosuhene [1987-88] 1
GLR 244
Kyereh v. Kangah [1978] 1 G.L.R.
83, C.A.,
Nyamekye v. Tawiah [1979] G.L.R.
265
Darko V Amoah [1989-90] 2 GLR
214
Republic
v Nii Adama Thompson & 10 Ors
[2014] 73 GMJ 1
Quist vrs Kwarteng and Others
[1961] GLR 605
Republic vrs Court of Appeal;
Ex parte Bediako IV [1994-95]
GBR 566
Ex parte Tsatsu Tsikata
[[2005-2006] SCGLR 612
Republic v High Court, Accra;
Ex Parte Tetteh Apain
[2007-2008] SCGLR 72
Ballmoos v Mensah [1984-86] 1
GLR 724
Crentsil v Crentsil [1962] 2
GLR 171 SC
Blunt v Blunt [1943] AC 517
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DORDZIE,
JSC (MRS.):-
DISSENTING
OPINION
PWAMANG, JSC:-
COUNSEL
BAFFOUR
DWUMAH FOR THE
APPLICANT/APPELLANT/RESPONDENT.
JOHN MERCER FOR THE RESPONDENT/RESPONDENT/APPPELLANT.
NANA CONDUAH FOR THE INTERESTED
PARTY/RESPONDENT/APPPELLANT
___________________________________________________________________________________
MAJORITY OPINION
DORDZIE, JSC (MRS.):-
In order to make the conclusions
I would come to in this appeal
clear, I find it necessary to
carefully outline the sequence
of how events unfolded in this
matter from the
Judicial
Committee of the Sekondi
Traditional Council through
the High Court to the Court of
Appeal and finally to this
Court, the apex court.
Particularly because I find some
of the facts as laid out in the
submissions of both sides in
this appeal a bit distorted.
By a writ of summons dated 15th
day of June 2005 The respondent
in this court Ebusuapanyin
Kwamina Essa (described as the
head of family of the Kokodo
Ebiradze Royal family of Fijai
Kweikuma) per an attorney, Kofi
Susu and 3 others instituted an
action in the Sekondi
Traditional Council against
Opanyin Kwesi Musu the
interested party herein and
another.
Their claims, per the record are
as follows:-
a.
A declaration that the
nomination and selection of one
Amo as the chief of Fijai by the
defendants is contrary to the
custom and tradition of Fijai
and therefore null and void.
b.
A declaration that the 3rd
plaintiff was validly nominated,
selected confirmed, and
outdoored as the
chief
of Fijai.
In the statement of claim
accompanying the writ, the
plaintiffs alleged the 3rd
plaintiff Nana Agyeman Gyesa
alias Alfred Kwofie was lawfully
installed by the kingmakers of
the royal family with the
approval of the 2nd
defendant, the Queen mother of
the said royal family. Not long
after the installation, the 1st
defendant with the collaboration
of the 2nd defendant
have installed another person,
one Amo, as chief of Fijai
thereby creating confusion in
the community.
The defendants responded to the
writ by filing a motion to
dismiss it. On the 21st
of December 2005 the Judicial
Committee dismissed the motion
and gave the case a full
hearing. In an undated judgment
marked as exhibit EKS5 at page
22 of the record, the Committee
gave its decision as follows: “Considering
the nature of the case brought
before the Judicial Committee of
Sekondi Traditional Council and
how both nominations,
confinements and installations
took place by the Plaintiffs and
Defendants at Fijai, the
committee is of the opinion that
the claim of the Plaintiffs
ought to be dismissed and it is
hereby dismissed accordingly and
at the same time declare both
installations by Plaintiffs and
Defendant null and void and have
no custom and legal effect. No
order as to costs. “
From the claims placed before
the Judicial Committee as quoted
above the issues in my view the
Committee had to decide were
two:
a)
Whether the nomination and
selection of one Amo as chief of
Fijai by the defendants was
contrary to custom and tradition
of Fijai.
b)
Whether the nomination,
selection, confirmation and
outdooring of 3rd
plaintiff as the chief of Fijai
was done according to custom and
tradition of Fijai and therefore
valid.
The decision of the Judicial
Committee in my opinion aptly
determined these issues, that,
custom and tradition were not
followed in making the two
candidates i. e. Amo and the 3rd
plaintiff chiefs of Fajai
therefore; the plaintiff’s suit
was dismissed. In effect, the
rights of the parties had been
determined by the judgment
therefore, the committee became
functus officio so far as that
suit is concerned. The Court of
Appeal, in my view rightly found
so.
The Committee made a remark
after delivering its judgment
which is entitled ‘Order’ It
reads: “Both Plaintiffs and
Defendants, their Agents or
Servants, etc. are hereby
ordered to unite as one family
and elect one overall head of
family (Ebusuapanyin) in place
of the late Ebusuapanyin Kweku
Abuna from the royal family who
shall in consultation with the
principal elders and the queen
mother of Fijai black stool
nominate eligible candidate from
the Royal family to occupy the
Fijai black stool for peace and
tranquility to prevail in Fijai.
Nana Agyeman Gyesa alias Alfred
Kwofie who is the 3rd
Plaintiff, herein and spokesman
for the Plaintiffs and Amo who
was installed by the Ag.
Ebusuapanyin Musu are hereby
restrained from functioning as
chiefs of Fijai until a
substantive overall ebusuapayin
(head of family) has been
elected by the whole family with
its branches of sectional heads
to empower and support him to
nominate and appoint either
of the two candidates or any
eligible person from the royal
family and present same to the
Oman for consideration and
installation to occupy the black
stool.” (Emphasis mine)
The emphasized portion of the
remark of the Committee confirms
that eligibility to ascend the
Fijai stool was not an issue
that arose before the Committee.
It rather implies that either of
the two were eligible but the
procedure followed in installing
them did
not conform to tradition and
custom.
This ‘order’ at best is an
obiter dictum; it can be
described as advice to the
parties. The Court of Appeal
took time to consider the nature
of the ‘order’ and held the same
view, which view I do endorse.
Counsel for all the parties in
this appeal in their respective
statements of case filed before
us, described this ‘order’ as
judgment of the court; counsel
for the appellant further
described it as consequential
orders. In my view, this ‘order’
is nothing more than a remark by
the panel, counseling the
parties to take steps to keep
the peace.
It is part of the appellant’s
argument, justifying the
Judicial Committee’s acts of
reopening the matter that, the
‘order’ was not executed and
could not be left in abeyance.
In the face of exhibit EKS7
(page 25 of the record of
appeal) I can safely say this
argument was not made in good
faith. Exhibit EKS7 demonstrates
that the parties heeded the
advice in the ‘order’ and made
attempts at settlement. Exhibit
EKS7 on the face of it is a
settlement reached by the
parties on 28th
December 2006 signed by
representatives of 10 out of 12
branches of the Kokodo Royal
Ebiradze Stool family and
addressed to the Registrar of
the Sekondi Traditional Council.
Exhibit EKS7 reads:
“NOMINATION OF CANDIDATE
We are pleased to inform you
that acting on the order of the
Judicial Committee of August 3,
2006, ten (10) of the family’s
Branches out of the Twelve (12),
held a meeting at Fijai in the
Family House under the auspices
of the overall Head of family
(Ebusuapanyin) – KWAMENA ESSAH –
on December 26, 2006.
The outcome of this meeting was
the nomination of ALFRED JUSTICE
KWOFIE as a suitable candidate
acceptable to all the Sectional
Heads to occupy the Fijai black
stool.
We are, therefore, bringing this
to your information for entry
into your register that ALFRED
JUSTICE KWOFIE alias MENSAH
TAWIAH is the unanimous choice
of the Kokodo Royal Ebiradze
Stool family of Fijai. The
appropriate customary processes
would be followed properly for
his
enstoolment.”
Irrespective of the contents of
exhibit EKS7, counsel for the
appellant in his statement of
case maintain the ‘order’ was
not implemented therefore, the
respondent took a step and
brought this to the attention of
the Traditional Council per
exhibit EKS6. According to
counsel, exhibit EKS6 prompted
the Traditional Council to
invite the parties per exhibits
EKS8, EKS9 and EKS10. (See page
3 paragraph 4 of the appellant’s
statement of case) This
submission by counsel for the
appellant is very misleading and
does not represent the true
statement of facts as disclosed
by the record of appeal. The
date on exhibit EKS6 shows that
that document was made before
the writ of summons resulting in
the judgment of the Judicial
Committee of the Council was
made. What is more, exhibit EKS6
was not addressed to the
Judicial Committee of the
Sekondi Traditional Council; it
was addressed to the Secretary,
Standing Committee of the
Traditional Council. Therefore,
it could not possibly be the
document that prompted the
reopening of the case by the
Judicial Committee.
The writ of summons which
originated the action before the
Judicial Committee, exhibit EKS1
is dated 15th day of
June 2005, it was filed on the
following day 16th
day of June 2005. The resultant
judgment of the Judicial
Committee was delivered on 3rd
of August 2006. (The judgment on
the face of it is not dated but
the Committee’s subsequent
ruling which is the subject
matter of the certiorari
application disclosed the date
of the judgment as 3rd
August 2006).
Exhibit EKS6 is dated 18th
of April 2005. The contents of
the document gave various dates
in April 2005, when attempts
were made to mediate on the
differences between the parties;
these dates are April 9th
2005, April 10th 2005
and April 11th 2005.
These dates are confirmation
that the date of exhibit EKS6 is
accurate. !8th April
2005 obviously precedes 16th
day of June 2005 when the
respondent filed his writ and 3rd
of August 2006 when the
Committee delivered its
judgment. Exhibit EKS6 therefore
is nothing but a red herring
meant to throw dust in the eyes
of the court.
Seven years after the 3rd
of August judgment of the
Judicial Committee of the
Sekondi Traditional Council, the
Council wrote exhibit EKS8
summoning Ebusuapanyin Kwesi
Musu and Ebusuapanyin Kofi Susu,
the parties in the 3rd
August 2006 judgment to appear
before the Committee ‘to present
relevant document which will
permit you to ascend to the
stool of Fijai.’ The parties
complied with the invitation.
The Judicial Committee gave the
following title to the case in
its ruling dated 13th
November 2013
“Ebusuapanyin Kofi Susu
and Ebusuapanyin Kwesi Musu
Applicant Eligible to Nominate a
Candidate to be Chief of Fijai
The two heads of family having
failed to unite and elect head
of family (Ebusuapayin) to
nominate a chief as ordered in
the judgment of chieftancy
dispute on 3rd August
2006 has culminated in the
presentation of documents as
stated below.”
This title of the ruling is very
confusing, underscoring the
doubtful nature of the acts of
the Judicial Committee.
The 13th November2013
ruling declared Kwesi Musu the
rightful person eligible to
ascend the Fijai stool.
Ebusuapanyin Kofi Susu aggrieved
by the decision applied to the
High Court, Sekondi for Judicial
review by way of certiorari to
quash the decision of the
Judicial Committee of the
Sekondi Traditional Council. The
main grounds of the application
were that
1.
The Jurisdiction of the Judicial
Committee was wrongly evoked,
the Committee therefore lacked
jurisdiction to make the
decision the subject matter of
the application.
2.
The parties were not given a
hearing.
The High Court dismissed the
application. Ebusuapanyin Kofi
Susu appealed to the Court of
Appeal. The Court of Appeal held
the view that the Judicial
Committee lacked the
jurisdiction to suo motu
initiate the determination of a
matter that was not pending
before it and concluded thus:
“Under the circumstances and in
our view there is a clear error
that goes to the wrong
assumption of jurisdiction which
is such that it makes the
decision of the Judicial
Committee a nullity and same
ought to be quashed”. The
decision of the High Court was
overturned and the ruling of the
Judicial Committee dated 13th
November 2013 was quashed.
The Judicial Committee of the
Sekondi Traditional Council and
the interested party are in this
court praying that the decision
of the Court of Appeal be
reversed.
The appellants filed separate
notices of Appeal in which they
stated different grounds of
appeal. The Judicial Committee
of the Sekondi Traditional
Council has the following as its
grounds of Appeal:
a.
The Court Of Appeal held wrongly
that the jurisdiction of the
Judicial Committee of the
Respondent Council was
improperly invoked.
b.
The Court of Appeal further held
wrongly that the matter was suo
motu initiated by the Judicial
Committee of the Sekondi
Traditional Council.
c.
There was no error apparent on
the face of the record such as
occasioned a miscarriage of
justice to the
Applicant/Appellant/Respondent,
and the court below erred in
quashing the decision of the
Judicial Committee of the
Sekondi Traditional Council.
d.
The remedy of certiorari was not
open to the
Applicant/Appellant/Respondent
in the circumstances of the
suit.
e.
The Court of Appeal erred in
setting aside the judgment of
the High Court, Sekondi
f.
The judgment is against the
weight of the evidence on
record.
g.
Additional grounds may be filed.
The Interested party on the
other hand has the following
grounds of appeal:
(i)
The holding by the Court of
Appeal, Cape Coast, that the
Judicial Committee suo motu
initiated the matter when none
of the parties had invoked its
jurisdiction on the matter was
contrary to the Chieftaincy
Proceedings and Functions
Traditional Councils Regulations
(1972) (L.I. 798) Regulation
4(I) (c) which provided that
customary law processes could be
used to initiate action at the
Judicial Committee and the
holding of the Court of Appeal
was therefore erroneously made.
(ii)
The holding of the Court of
Appeal that the Judicial
Committee initiated and made a
determination on the matter was
erroneously made since it is not
supported by the evidence
adduced at the trial.
(iii)
The decision of the Court of
Appeal setting aside the
decision of the High Court,
Sekondi was made in error.
(iv)
The decision of the Court of
Appeal quashing the decision of
the Judicial Committee of the
Sekondi Traditional Council
dated 13th November
2013 on grounds of nullity was
made in error.
(v)
The judgment of the Court of
Appeal was against the weight of
evidence
(vi)
Additional grounds would be
filed upon receipt of the record
of Appeal.
Both parties filed no additional
grounds. The grounds in both
notices of appeal are similar I
therefore consider it
appropriate to subsume them
under two main grounds the
determination of which would
take care of the rest.
a)
The remedy of certiorari was not
open to the
Applicant/Appellant/Respondent
in the circumstances, the Court
of Appeal therefore erred in
granting same.
b)
The judgment of the Court of
Appeal was against the weight of
evidence
Arguments supporting these
grounds, as I have already
stated earlier, are based on
exhibit EKS6, a document which
was not addressed to the
Judicial Committee of the
Sekondi Traditional Council;
moreover, it was a document
written about two months before
the writ exhibit EKS1 was issued
and two years before the
Judicial Committee gave its
judgment. It therefore could not
be a document that justified the
reopening of the case by the
Judicial Committee.
The obvious conclusion of these
facts is that the Judicial
Committee suo motu reopened a
matter it had adjudicated on and
determined seven years earlier.
The Court of Appeal cannot be
faulted for saying so.
I must say that the trial court
was grievously misled by exhibit
EKS6; for, his reasoning in the
ruling dismissing the certiorari
application was that, the
respondent in this appeal
initiated the reopening of the
matter by writing exhibit EKS6.
At page 7 of his judgment page
234 of the record, the reasoning
of the learned trial judge goes
this way: “I wonder what the
applicant was purporting to do
with his letter exhibit EKS6, or
for whatever purpose he was
inviting the committee to do
with such a letter after the
initial decision of the
committee (exb 5) whether or not
the Committee did finally and
conclusively determine the
matter. Indeed the applicant
did not explain to the court the
motive or any other
justification other than to
initiate or resurrect an action,
and also in essence submit
himself to the jurisdiction of
the Committee ostensibly to have
the matter either determined or
conclusively determined.
Besides, my view appears to be
firmed that by Exhibit 6 in
particular, it was the applicant
who initiated the whole process
after the initial decision of
the Committee. He knew or
ought to know that this mode is
neither an oath nor writ of
summons that legitimately in law
founds an action before the
council.” (Emphasis mine)
Counsel for the respondent in
his viva voce submission in
reply to his opponent’s
submissions in the trial court
made it clear that exhibit EKS6
was not addressed to the
Judicial Committee but to the
Standing Committee of the
Traditional Council. With this
and the date of the said
exhibit, it was a grievous error
on the part of the trial court
to hold the view quoted above.
It is therefore clear from my
analysis so far that the
documentary evidence on record
does not support the assertion
that the respondent per EKS6
evoked the jurisdiction of the
Judicial Committee.
As I have earlier stated, the
issue determined by the Judicial
Committee in its judgment
exhibit EKS5 was on the
customary law and procedure the
parties followed in installing
their respective chiefs which
the Committee found to be wrong
and therefore declared the
nominations and installments
null and void. The rights of the
parties were determined; the
Council became fanctus officio
so far as that suit is concerned
in my view. Exhibit 7 which by
its contents complied with the
advice given by the Committee
further affirms the end to that
dispute. There is no
justification for the argument
by the appellants that the
orders of the Committee were not
complied with; the arguments
justifying the acts of the
Judicial Committee culminating
in their ruling of 13th
November 2013 in my view are
made in bad faith.
Statue
prescribes the mode by which
actions could be commenced
before the Judicial Committee of
Traditional Councils.
Regulation 4 (1) of Chieftaincy
Proceedings and Functions
Traditional Councils Regulations
1972 (L. I. 798) prescribes
the mode thus:
“(a) by swearing a chief’s oath
or any oath recognized within a
Traditional Council,
(b) by writ in the form set out
in the second schedule to these
Regulations to which the
plaintiff shall append his
signature or affix his thumb
print;
(c) by any other means
recognized by customary law of a
particular locality.”
Regulation 4 (1) (c) no doubt
makes room for a flexible mode
of evoking the jurisdiction of
the Judicial Committee. However,
could the step the Sekondi
Traditional Council took, that
is, writing to the parties to
submit documents to reopen a
matter they had already dealt
with seven years earlier be
described as ‘recognized
customary law practice’ in that
locality? Obviously no. The
Judicial Committee is a lower
adjudicating authority whose
jurisdiction is prescribed by
law. In all cases, therefore the
Committee is expected to operate
within the prescribed law. The
Committee could not lawfully
arrogate jurisdiction to itself
in the way it did in this
particular case. Article 141 of
the 1992 Constitution gives the
High Court supervisory
jurisdiction over lower Courts
and adjudicating authorities. It
is the respondent herein’s quest
for the High Court, Sekondi to
exercise its supervisory
jurisdiction over the Judicial
Committee of the Sekondi
Traditional Council, by way of
certiorari to quash the
Committee’s decision of 13th
November 2013 that had
culminated in the appeal before
this court.
Considering the grounds of
Appeal the essential issues for
our determination are:
a) Whether in the circumstances
the appropriate remedy open to
the respondent was certiorari
and
b) Whether the facts on record
sufficiently support the
decision of the Court of Appeal
to quash the 13 November 2013
ruling of the Judicial Committee
of the Sekondi Traditional
Council.
The submissions of the
appellants before us in support
of their grounds of appeal, as I
have stated earlier are based on
facts that are misleading. These
facts are:
1.
The Judicial Committee made
orders in its 3 August 2006
judgment that needed to be
executed (The record per Exhibit
7 demonstrates that the
purported orders were executed,
there is no other evidence
showing the contrary)
2.
The suit originated by the writ
of summons exhibit EKS1 was
still pending before the
Judicial Committee, the
respondent resurrected same per
exhibit EKS6. (I have amply
demonstrated above that this is
not true, exhibit EKS6 was not
even addressed to the Judicial
Committee and it was written
before the writ was issued.
In my view, the facts on record
establish that:
a) The Judicial Committee in its
judgment dated 3 August 2006
disposed of the suit instituted
by the respondents and became
functus officio.
b) The letters written by the
Committee 7 years after,
summoning the parties to appear
before it and submit documents
to determine who should ascend
the Fijai Stool was an act suo
motu instituting an action; an
act that contravenes
Regulation 4 (1) of Chieftaincy
Proceedings and Functions
Traditional Councils Regulations
1972 (L. I. 798)
c) The decision by the Committee
dated 13 November 2013 was given
without jurisdiction.
This court in very many
decisions had stated the
circumstances where the remedy
of certiorari becomes available
to a party. The issues in this
case before us arose out of the
High Court Sekondi exercising
its supervisory jurisdiction
over a lower adjudicating
authority. I therefore intend
to limit my consideration of the
issues within that scope ie the
High Court’s supervisory
jurisdiction over inferior
courts and tribunals.
The High Court derives its
supervisory power from
Article 141 of the 1992
Constitution which
reads: “The
High Court shall have
supervisory jurisdiction over
all lower courts and any lower
adjudicating authority; and may,
in the exercise of that
jurisdiction, issue orders and
directions for the purpose of
enforcing or securing the
enforcement of its supervisory
powers”
Section 16 of the
Courts
Act, 1993 Act 459
which provides for the
supervisory jurisdiction of the
High Court, repeats the above
provision of the constitution
and numerates the Orders
available to the High Court in
the exercise of its supervisory
jurisdiction. It reads: “The
High Court shall have
supervisory jurisdiction over
all lower courts and any lower
adjudicating authority; and may,
in the exercise of that
jurisdiction, issue orders and
directions including orders in
the nature of habeas corpus,
certiorari, mandamus-prohibition
and quo warranto for the purpose
of enforcing or securing the
enforcement of its supervisory
powers.”
In the case of
Republic
v High Court, Accra, Ex-Parte
Industrialization Fund for
Development Countries & Another
[2003-2004] 1 SCGLR 348 at
358-359 this court per Dr. Twum
JSC emphasized the purpose of
the supervisory jurisdiction of
the High Court over inferior
courts and tribunals and
distinguished same from the
purpose of the supervisory
jurisdiction of the Supreme
Court over superior courts. The
Supreme Court expressed its view
in the following words:
“…with inferior courts or
tribunals, the superior courts
took the view that Parliament
had only conferred the
decision-making power on the
inferior courts on the basis
that it was to be exercised on
correct legal basis.
Misdirection in law, in making
the decision, therefore,
rendered the decision ultra
vires. In order words, if a
tribunal whose jurisdiction was
limited by statute or
surbodinate legislation mistook
the law applicable to the facts
as it had found them, it must
have asked itself the wrong
question, ie one into which it
was not empowered to inquire and
so had no jurisdiction to
determine. Its purported
‘determination’ not being a
determination within the meaning
of the empowering legislation,
was accordingly a nullity.
This policy of keeping all
inferior courts, tribunals and
other adjudicating authorities
within their legal bounds was a
concern of the state for the
sake of orderly administration
of justice.”
(Emphasis mine)
I very much align myself with
this view and must say that the
facts leading to the impugned
ruling of the Judicial Committee
of the Sekondi Traditional
Council, as I have outlined
above is a clear demonstration
of the Committee’s disrespect
for fair and orderly
administration of justice. There
is no doubt from the facts on
record that the Committee acted
without jurisdiction. The
appropriate remedy available to
the respondent is an order of
certiorari to quash the 13
November ruling of the
Committee. The Court of Appeal
committed no error in quashing
the said ruling.
This appeal in my view has no
merit and ought to be dismissed.
A.
M.
A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
PROF. N. A. KOTEY
(JUSTICE OF THE SUPREME
COURT)
DISSENTING OPINION
PWAMANG, JSC:-
I read in draft the opinion of
the majority to be delivered by
our noble and respected sister
Dordzie, JSC. While commending
her for a well researched
decision, I am unable to agree
with the views expressed therein
so I herewith set out my opinion
of the case. My Lords, at the
root of this appeal is the issue
whether
failure to strictly comply with
the manner for commencing
proceedings under the procedure
rules of the Traditional
Councils established under the
Chieftaincy Act automatically
renders the proceedings of a
Judicial Committee void even
though the Committee
otherwise
has jurisdiction over the cause
or matter. A second and
equally important issue that
arises from the reasons for the
ruling of the High Court is,
on what
grounds ought an appeal against
the exercise of judicial
discretion by a lower court to
succeed?
There is no controversy
whatsoever regarding the
background facts in this case.
The
applicant/appellant/respondent
(the applicant) and the
interested
party/respondent/appellant (the
interested party) are heads of
family representing two factions
both claiming to be the true
Mbraye line of the Kokodo
Ebiradzie Stool Family of Fijai
in the Sekondi Traditional Area.
They are disputing over who has
the right to
nominate
an occupant to
ascend
the Fijai Stool, a
Divisional Stool, which has been
vacant since 2004. When the
Stool fell vacant, the
interested party selected one
Amo and enstooled him as the
chief of Fijai but the applicant
and his branch of the family
disagreed. They accordingly also
selected one Alfred Kwofie who
they confined to be enstooled as
the rightful chief of Fijai. It
appears the interested party
made preparations to outdoor
their chief so the applicant’s
family filed a case in the
Judicial Committee of the
Sekondi Traditional Council and
prayed for declaration that the
selection of Amo by the
interested party as chief of
Fijai was contrary to custom and
for an injunction against his
outdooring. They also prayed for
a declaration that Alfred Kwofie
was validly nominated, selected
and confined as the chief of
Fijai. After a trial at which
both sides were heard the
Committee, on 3rd
August, 2006 rendered a decision
in the matter in the following
terms;
“Considering the nature of the
case brought before the judicial
committee of Sekondi Traditional
Council and how the nominations,
confinements and installations
took place by the plaintiffs and
the defendants at Fijai, the
committee is of the opinion that
the claim of the plaintiffs
ought to be dismissed and it is
hereby dismissed accordingly and
at the same time declare both
installations by plaintiffs and
defendant null and void and have
no custom and legal effect.”
The committee accordingly
restrained both nominated
candidates from acting as chief
of Fijai.
The committee then proceeded to
make what it described as an
order to the effect that both
factions were to unite and
appoint an overall head of
family who together with the
queen mother would initiate
processes for the selection of
one person to occupy the Fijai
Stool. What is clear from the
above is that the Judicial
Committee did not decide the
dispute one way or the other and
the call for unity in appointing
an overall head of family could
only be an advice and not an
order with any binding effect.
The factions were not able to
put aside their differences and
appoint an overall head of
family so there was no agreement
on the one person who shall
occupy the stool. It was in that
state of affairs that the
applicant wrote a letter dated
December 28, 2006 to the
Registrar, Sekondi Traditional
Council claiming that their
choice of Alfred Justice Kwofie
had been endorsed by majority
branches of the Kokodo Royal
Ebiradzie Stool Family so his
name should be entered in the
register of chiefs for the
Traditional Council and that the
appropriate customary rites
would follow. It is apparent
from the record before us that
the name of the said Alfred
Justice Kwofie was not entered
in the Register of Chiefs for
the Sekondi Traditional Council
and the dispute remained
unresolved for a long time. Then
by a letter dated 18th
February, 2011 the interested
party wrote to the Acting
President of the Sekondi
Traditional Council asking him
to allow their newly installed
chief to swear the oath of
allegiance before the
Traditional Council. Following
this letter the Registrar of the
Sekondi Traditional Council
wrote on 7th August,
2013 to the parties herein to
say that the Acting President
directed him to request them to
appear before the Judicial
Committee of the Traditional
Council on 16th
August, 2013 and 2nd
October, 2013 at 10.00am in
Ahenfie Hall of the Council with
all documents which will support
their respective claims to the
Stool.
Both parties responded
accordingly and appeared before
the Judicial Committee with
documents which were received by
the Committee for study and on
the adjourned date of sitting
the Committee listened to the
testimonies of both parties. The
interested parties contended
that the applicants do not
belong to the Fijai Branch of
the Kokodo Ebiradzie Family and
produced documents that showed
that they belong to Kokodo
Abantwewa Abradzie Family of
Ngyiresia under Essikado
Paramouncy so they are not from
the right lineage to ascend the
family stool under the Sekondi
Paramouncy. Furthermore, the
interested party led evidence
that they were in possession of
the black stool of the family
and were those entitled to
nominate an occupant for the
stool. In a written judgment
dated 13th November,
2013 the Judicial Committee
stated reasons for preferring
the evidence of the interested
party over that of the applicant
and gave judgment in favour of
the interested party and granted
their prayer for their chief to
swear the oath of allegiance.
It is this judgment of the
Judicial Committee that the
applicant prayed the High Court,
Sekondi to quash by certiorari
arguing that at the time the
parties were summoned to appear
before the Judicial Committee
for the hearing of the
chieftaincy matter concerning
the rightful branch of the
family to nominate an occupant
for the Fijai Stool, there was
no case filed before the
Committee. He submitted that the
jurisdiction of the Judicial
Committee was not properly
invoked. In his affidavit in
opposition the interested party
contended that the letters
written by the two parties
following the failure of efforts
to unite and select an overall
head of family after the first
case were the basis upon which
the Judicial Committee summoned
them in accordance with custom
for a hearing on the merits. He
argued that under Reg 4(1)(c)
of the
Chieftaincy (Proceedings and
Functions)(Traditional Councils)
Regulations, 1972 (L.I.798),
any procedure for commencement
of proceedings known to
customary law could be adopted
in the Judicial Committee of the
Traditional Council. The High
Court judge dismissed the
application reasoning that the
jurisdiction of the Judicial
Committee was properly invoked
and that in any event,
certiorari was a discretionary
remedy and in the circumstances
of this case he would exercise
his discretion and refuse the
order prayed for. On appeal, the
Court of Appeal unanimously set
aside the decision of the High
Court and granted an order of
certiorari quashing the decision
of the Judicial Committee
holding that the Committee
lacked jurisdiction in the case.
The Sekondi Traditional Council
and the interested party have
appealed from the decision of
the Court of Appeal to this
court.
The Court of Appeal appear to
base their holding that the
Judicial Committee lacked
jurisdiction on the following
finding at paragraph 23 of their
judgment; “We have scrutinized
the record of appeal and do not
find that on 7th
August 2013 when the Sekondi
Traditional Council per Exhibit
‘EKS8’ informed the parties “to
appear and present relevant
documents which will permit you
to ascend to the stool of Fijai”
there was any matter with such
a claim or relief
filed by any of the parties
pending before it.”
(emphasis supplied). But before
the High Court the interested
party had argued that the
letters written to the
Traditional Council by the
parties were sufficient to
invoke the jurisdiction of the
committee under Reg 4(1)(c) of
L.I. 798 which the High Court
judge agreed with. The Court of
Appeal appear to have been
fixated with the filing
of a formal writ of summons so
they did not give any
consideration to construing the
rule and the argument of the
interested party on the diverse
modes for commencing proceedings
in the Traditional Councils.
It is provided under
Regulation 4(1) of L.I.798
as follows;
(1) An action may be
commenced in a Traditional
Council in one of the following
manner;
(a) By swearing a Chief’s
oath or any other recognized
within the area of authority of
a Traditional Council;
(b) By writ in the Form
set out in the Second Schedule
to these Regulations to which
the plaintiff shall append his
signature or affix his
thumbprint.
(c) By any other means
recognized by the customary law
of a particular locality.
In my view, the real issue on
the facts of this case is
whether indeed the Regulation
was not complied with at all,
and even if it was not strictly
complied with, then what is the
legal consequences of such
non-compliance? Is such
non-compliance an irregularity
or it vitiated the proceedings
and rendered them ipso facto
void?
L.I.798
unlike the
High
Court (Civil Procedure) Rules,
2004 (C.I.47) does not
contain a provision on the
effect of
non-compliance with its
provisions.
Order 81
of C.I.47 states as follows;
“EFFECT OF NON COMPLIANCE WITH
RULES
Non-compliance with Rules not to
render proceedings void
1.
(1) Where, in beginning or
purporting to begin any
proceedings or at any stage
in the course of or in
connection with any proceedings,
there has, by reason of anything
done or left undone, been a
failure to comply with the
requirements of these Rules,
whether in respect of time,
place, manner, form or content
or in any other respect, the
failure shall not be treated as
an irregularity and shall not
nullify the proceedings, any
step taken in the proceedings,
or any document, judgment or
order in it.” (emphasis
supplied).
Thus, under the High Court
rules, where there is
non-compliance with the rules as
to the manner to begin
proceedings, the non-compliance
does not automatically make the
proceedings void. The court has
discretion to waive the
non-compliance and save the
proceedings. Secondly, a party
who fails to object to breach of
a rule of procedure but takes
steps in the proceedings after
having notice of such breach is
deemed to waive the breach and
cannot complain about the breach
afterwards.
As a general principle of law,
where a statute provides that
processes are to be complied
with in the exercise of a power
without stating the legal
consequence of non-compliance
with the processes, a court
confronted with the question of
the consequences of
non-compliance is required to
construe the statute as a whole
and decide whether the law maker
intended such non-compliance to
invalidate the exercise of the
power. See
R v
Sonje and another [2005] 4 All
ER 321. HL.
To properly construe L.I.798 and
determine the intention of the
rule maker, we have to read Reg
4(1) within the context of the
whole instrument, taking into
account the words used by the
rule maker. At this point it is
instructive to compare Reg 4(1)
of L.I.798 with Oder 2 Rule 2 of
C.I.47 on commencement of
proceedings in the High Court.
It states as follows;
“Commencement of proceedings
2. Subject to any existing
enactment to the contrary all
civil proceedings shall
be commenced by the filing of a
writ of summons.” (emphasis
supplied).
When the language of Reg 4(1) of
L.I.798 is compared with that of
Or 2 Rule 2 of C.I.47 it is seen
that whereas that of C.I.47 is
rendered in mandatory words,
that of L.I.798 is in permissive
terms. In my opinion, the
language of Reg 4(1)(c) is so
loose that the apparent
intention of the rule maker was
to make the manner of
commencement of proceedings in
the Judicial Committee very
flexible. The swearing of an
oath to commence proceedings and
the open ended mode in Reg
4(1)(c) do not involve any
filing of a process yet the
Court of Appeal was looking for
a filed process. In any case,
the letters of the parties
petitioning the Traditional
Council are in the record and
they both sought reliefs from
the Council. To give Reg 4(1) a
rigid legalistic interpretation
will in my opinion defeat the
clear intention of the rule
maker. In the case of
Pomaa
v Fosuhene [1987-88] 1 GLR 244
the Supreme Court per
Francois, JSC observed as
follows at page 262 of the
Report;
“Members of judicial committees
of traditional councils have
been urged on several occasions
by this court to curb their
enthusiasm to don a legalistic
garb that is ill-fitting and
turn their genius to deciding on
customary and constitutional
matters: see
Kyereh v.
Kangah [1978] 1 G.L.R. 83, C.A.,
and Nyamekye v. Tawiah [1979]
G.L.R. 265 at 269, C.A. I
add my voice. I think it cannot
be over-emphasised that if our
revered chiefs would resist the
temptation of traipsing the maze
of legal rules and procedures
and restrict themselves to the
sphere where they tower above
everyone else, they would be
providing greater service to
Ghana and advancing the
customary law.”
Then in
Darko V Amoah [1989-90] 2 GLR
214 Francois, JSC again
in a case concerning the mode of
commencement of proceedings in
chieftaincy tribunals, said as
follows at page 220;
“Where succession to a stool is
at stake, I think the fullest
consideration must be given to
the merits. A tribunal must
resist attempts to shunt off
issues of substance, in gambits
aimed purely at avoiding the
real matters in controversy. A
court can only be party to such
manoeuvres if the law demands
strict compliance.”
Consequently, since even
non-compliance with rules of the
High Court on the commencement
of proceedings stated in
mandatory language would not
automatically make the
proceedings void, I wonder how a
court can construe Reg 4(1) of
L.I. 798 to mean that failure to
initiate proceeding by filing a
formal writ of summons, swearing
an oath or adopting a specific
pre-approved customary mode as
rendering the proceedings void.
It must be remembered that the
Judicial Committees of the
Traditional Councils are the
lowest tier of chieftaincy
tribunals and operate in less
rigid settings. Secondly, the
applicant having participated
actively in the hearing is
deemed to have waived any
perceived breach of Reg 4(1) of
L.I.798 and cannot be heard to
now complain.
On the facts of this case, the
substance and import of the
letters that were written by the
parties, which letters contained
clear reliefs prayed for from
the Traditional Council, were
sufficient, in my view, to
initiate the proceedings that
sought to resolve the issue of
who is the rightful person to
nominate an occupant of the
vacant Fijai Stool, which issue
was pending before the
Traditional Council undecided.
The summons from the Registrar
to the parties stated clearly
the nature of the dispute so the
applicant was not prejudiced in
the hearing of the case in any
way. If the first decision of
the Judicial Committee dated 3rd
August, 2006 had decided the
issue in controversy between the
parties, then it might have been
possible to talk of estoppel per
res judicata but the first
judgment did not decide
anything. In the administration
of justice, substance has to
prevail over form unless such an
approach would result in an
unjust outcome.
In his statement of case in this
court, the applicant placed
reliance on the following
statement quoted by the Court of
Appeal from the case of
Republic v Nii Adama Thompson &
10 Ors [2014] 73 GMJ 1
at 45;
“…let us state that parties
and/or their lawyers cannot
consent or by acquiescence
confer jurisdiction upon a court
where the court otherwise does
not have such jurisdiction. See;
Quist vrs
Kwarteng and Others [1961] GLR
605. And any agreement to
confer jurisdiction on a court
must equally be authorized by
legislation.”
Another passage quoted by the
Court of Appeal is from
Republic vrs Court of Appeal; Ex
parte Bediako IV [1994-95] GBR
566 as follows; “Lack
of jurisdiction might arise from
lack of authority to enter into
the inquiry or some part of it
from or from conditions
precedent to the exercise of
jurisdiction.”
These statements are not
applicable in this case. The
reference to jurisdiction in
those passages is to substantive
subject matter jurisdiction over
the dispute which the Judicial
Committee has in this case. By
the provisions of the Section
29 of the
Chieftaincy Act, 2008 (Act 759)
jurisdiction to determine a
cause or matter affecting a
Divisional Stool is conferred on
the Judicial Committee of the
Traditional Council. The issue
in this case is about the
procedure for invoking this
jurisdiction which has to be
resolved by construing the
procedure rules in L.I.798. The
type of want of jurisdiction
that is a ground for certiorari
is not present in this case so
the reference by the Court of
Appeal to
Ex parte Tsatsu Tsikata
[[2005-2006] SCGLR 612
is misplaced.
Further to the above, it is a
trite statement of law that
certiorari is a discretionary
remedy and even if the legal
grounds for its grant are
satisfied, it may nevertheless
be refused by a court where
there has been no miscarriage of
justice or no useful purpose
will be served by its grant or
for reason of some inequitable
conduct by the applicant. See
Republic v High Court, Accra; Ex
Parte Tetteh Apain [2007-2008]
SCGLR 72. The
High Court judge held that even
if the Judicial Committee was
bereft of jurisdiction he would
refuse the prayer of the
applicant because he was not
acting in good faith having
actively participated in the
hearing without complaining.
Would the applicant have
complained if the decision went
in his favour? He should
therefore be deemed to have
waive any objection and a court
of equity ought not to exercise
a discretion in his favour. In
exercising his discretion to
refuse the application, the
trial judge relied on the
principle of certiorari being
discretionary applied in the
Supreme Court in a plethora of
cases.
Considering the discretionary
nature of the jurisdiction that
was exercised by the High Court,
the approach of the Court of
Appeal to the case ought to have
been to determine whether the
discretion of the trial judge
was exercised on the right legal
principles or not. But in their
judgment the Court of Appeal
approached the case as if they
were called upon to exercise a
fresh discretion in the matter
and that is not lawful. In the
case of
Ballmoos v Mensah [1984-86] 1
GLR 724 Holding (1) of
the Headnote it the law is
stated as follows;
“1) the Court of Appeal would
not interfere with the exercise
of the trial court's discretion
save in exceptional
circumstances. An appeal against
the exercise of the court's
discretion might succeed on the
ground that the discretion was
exercised on wrong or inadequate
materials if it could be shown
that the court acted under a
misapprehension of fact in that
it either gave weight to
irrelevant or unproved matters
or omitted to take relevant
matters into account; but the
appeal was not from the
discretion of the court to the
discretion of the appellate
tribunal.
Crentsil v Crentsil [1962] 2 GLR
171 at 175, SC and Blunt v Blunt
[1943] AC 517 at 518, HL
cited.”
Unfortunately, the Court of
Appeal in this case failed to
consider the discretionary
nature of the relief of
certiorari and consequently did
not discuss that ground for the
decision of the high Court
judge. The High Court judge
exercised his discretion on
correct principles of law and
based on relevant legal grounds
so there was no justification to
reverse him.
The manner in which the
jurisdiction of the Judicial
Committee was invoked in this
case did not occasion a
miscarriage of justice against
the applicant therefore the
decision ought not to have been
quashed. The applicant had
earlier sought substantive
reliefs from the committee for a
declaration that his nominee was
the rightful person to mount the
stool and lost. In the second
proceedings which led to the
certiorari application he lost
again on the merits because the
Committee accepted the case of
the interested party that the
applicant does not hail from the
Fijai branch of the family.
Article 277 of the
Constitution of Ghana, 1992
defines a chief as;
“ a person, who, hailing from
the appropriate family
and lineage, has been
validly nominated, elected or
selected and enstooled,
enskinned or installed as a
chief or queen mother in
accordance with the relevant
customary law and usage.”
(emphasis supplied).
So if one does not hail from the
appropriate lineage even if he
hails from the right family one
does not qualify to become a
chief. The case on the merits
against the applicant’s branch
is that they do not hail from
the appropriate lineage to mount
the Fijai Stool under Sekondi as
their roots are at Essikado. If
the applicant felt aggrieved by
this formidable finding of fact
against him he was not without
remedy since he could appeal
against the decision on the
merits to the Regional House of
Chiefs. This recourse to
technicism without alleging and
proving any miscarriage of
justice suffered by him from the
proceedings ought not to be
endorsed by the court.
For the above reasons I allow
the appeal against the decision
of the Court of Appeal dated 29th
May, 2019 and set aside same.
The ruling of the High Court
dated 19th May, 2014
is hereby restored.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
APPAU, JSC:-
I have had the privilege of
reading the two opposing views
of my respected brother and
sister Pwamang, JSC and Dordzie,
JSC respectively, which are all
brilliant by all standards.
Unfortunately, however, l do not
agree with the position of my
sister Dordzie, JSC. I therefore
concur with my brother Pwamang,
JSC that the appeal be allowed
on the strength of the reasons
advanced in his judgment. I have
nothing more to add.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
BAFFOUR DWUMAH FOR THE
APPLICANT/APPELLANT/RESPONDENT.
JOHN MERCER FOR THE RESPONDENT/RESPONDENT/APPPELLANT.
NANA CONDUAH FOR THE INTERESTED
PARTY/RESPONDENT/APPPELLANT.
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