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Chieftaincy - National House of Chiefs
- Traditional Council
- Elevation of a divisional
stool to the status of
paramountcy – Causes of matter
affecting chieftaincy
–
Whether a commission of enquiry
can cause any
investigation or enquiry into
any matter related to or
affecting chieftaincy. -
HEADNOTES
The 1st
Respondent on its own volition
cause an enquiry or
investigation a matter relating
to or affecting chieftaincy
which authority or
responsibility was under the
1992 Constitution or statute
that deal with chieftaincy. It
is the submission of the
Appellant that short of this,
any steps as in the petition by
the Interested Party to the 1st
Respondent and the referral to
the 2nd Respondent as
well as the subsequent setting
up of the 3rd
Respondent committee of enquiry
were all wrongful in law. The
application as expected was
strongly opposed by the
Interested Party and the
Respondents.In its judgment the
High Court, upheld the
application of the Appellant and
ruled that the Interested Party
is not one of those authorities
contemplated by the Constitution
and the Chieftaincy Act to
invoke the constitutional
function of the 1st
Respondent, and therefore, the
setting up of the 3rd
Respondent committee of enquiry
by the 2nd Respondent
was improper and not mandated by
any law. The High Court, then,
granted an order prohibiting the
3rd Respondent from
carrying out the duties for
which it was set up.
Dissatisfied with the decision
of the High Court, the
Interested Party appealed to the
Court of Appeal. The Court of
Appeal allowed the appeal and
set aside the order of
prohibition against the 3rd
Respondent. It is from the Court
of Appeal’s judgment that the
Appellant has appealed to this
court to restore the order of
prohibition restraining the 3rd
Respondent
.
HELD
(1) In
sum, the Interested Party did
not breach the law in writing
Exhibit NBB1 to the National
House of Chiefs. Equally so, the
National House of Chiefs did not
err in receiving the petition
exhibit NBB1 from the Interested
Party.
(2)
In our view, the Court of Appeal
rightly applied the provisions
of the Constitution and
interpreted rightly the relevant
sections of the Chieftaincy Act
based on the facts in this case.
We also endorse the reasoning of
the Court of Appeal on ground
‘e’ on the consideration of the
additional grounds filed by the
Respondents and wholly adopt the
said reasoning. We find no basis
to disturb the conclusions
reached by the Court of
Appeal.In the results, we find
no merit in the appeal and same
is dismissed.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Chieftaincy Act of
2008 (Act 759)
Chieftaincy Act, 1971 (Act 370)
Interpretations Act
2009, (Act 792)
Chieftaincy (Members of Regional
House of Chiefs) Instrument,
2008, L.I.
CASES REFERRED TO IN JUDGMENT
New Patriotic Party v
Attorney-General [1997-98] 1 GLR
378 – 461
In re
London Marine Insurance
Association [1869] LR Ch. App
611
BOOKS REFERRED TO IN JUDGMENT
Black’s Law
Dictionary 8ed
John Salmond,
Jurisprudence 318 (Glanville L.
Williams ed., 10th ed. 1947)
Osborn’s Concise Law
Dictionary, 7th
Edition by Roger Bird.
Oxford Dictionary of
Law, Fourth Edition, 1997
Report of the Committee of Experts on
Proposals for a Draft
Constitution of Ghana, July 31,
1991
DELIVERING THE LEADING JUDGMENT
AMEGATCHER, JSC: -
COUNSEL
VICTOR OWUSU FOR THE
APPLICANTS/APPELLANTS.
PHILIP NKRUMAH FOR
THE 1ST, 2ND,
3RD RESPONDENTS AND
INTERESTED PARTY.
---------------------------------------------------------------------------------------------------------------------
AMEGATCHER, JSC:-
This appeal is about the
elevation of a divisional stool
to the status of paramountcy in
the Western Region of the
Republic of Ghana. The
distinguished retired justice of
the Supreme Court of Ghana and
jurist Justice Stephen Alan
Brobbey in his book: The Law of
Chieftaincy in Ghana, 1st
edition, 2008 researched into
how paramountcy is created and
concluded at page 15 as follows:
‘It would appear that the
paramount status comes into
being by about three methods:
The first is by the traditional
process of installation; the
second is elevation by an
overlord and the third is by a
legislative instrument elevating
the chief below paramount status
to the status of a paramount
chief’.
Armed with the benefit of this
research, we proceed to deal
with this appeal on this
traditional time-honoured but
evolving institution in Ghana.
Osahene Katakyi Busumakura III,
hereafter called the Interested
Party is the Chief of Takoradi.
The stool of Takoradi is a
divisional stool under the
Ahanta Traditional Council, the
Appellant in this case. On 16th
April 2009, the Interested Party
wrote a petition to the
President of the National House
of Chiefs, the 1st
Respondent herein, to restore
Takoradiman Divisional Stool to
the status of Paramountcy. On
receipt of the petition, the 1st
Respondent wrote to the Western
Regional House of Chiefs, the 2nd
Respondent in this appeal,
referring the petition to it for
its comments and advice since
Takoradi falls within the
jurisdiction of that regional
house. The 2nd
Respondent also on receipt of
the reference from the1st
Respondent set up a committee of
enquiry, the 3rd
Respondent, to consider the
petition and advise it.
The Appellant was not
happy with the petition,
referred by the 1st
Respondent to the 2nd
Respondent and the subsequent
setting up of the 3rd
Respondent. On 11th
April 2012, the Appellant
brought at application before
the High Court, Sekondi for the
following reliefs:
i.)
A declaration that the 1st
Respondent without any reference
to it for advice by a person or
authority charged with
responsibility to deal with any
matter relating to or affecting
chieftaincy under the 1992
Constitution or by statute;
cannot of its own [volition]
cause any investigation or
enquiry into any matter related
to or affecting chieftaincy.
ii.)
A declaration that the 1st
Respondent’s referral of the
Interested Party’s application
for elevation from a Divisional
stool to a Paramount stool to
the 2nd Respondent
for its comments and advise is
wrongful in law in that no
person or authority charged with
responsibility under the 1992
Constitution or any statute to
deal [with] any matter related
to or affecting chieftaincy had
requested for advice on the
Interested Party’s application.
iii.)
An order prohibiting the 3rd
Respondent from embarking upon
the enquiry regarding the
Interested Party’s application
praying for elevation from a
Divisional stool to that of a
paramountcy.
The application was supported by
a 15-paragraph affidavit, the
summary of which deposed to the
fact that the 1st
Respondent on its own volition
could not cause any enquiry or
investigation into any matter
relating to or affecting
chieftaincy unless a person or
authority charged with
responsibility under the 1992
Constitution or statute to deal
with chieftaincy had requested
for advice on the matter. It is
the submission of the Appellant
that short of this, any steps as
in the petition by the
Interested Party to the 1st
Respondent and the referral to
the 2nd Respondent as
well as the subsequent setting
up of the 3rd
Respondent committee of enquiry
were all wrongful in law. The
application as expected was
strongly opposed by the
Interested Party and the
Respondents.
In its judgment dated 29th
May 2015, the High Court,
Sekondi presided over by Amoako
Asante, J., upheld the
application of the Appellant and
ruled that the Interested Party
is not one of those authorities
contemplated by the Constitution
and the Chieftaincy Act to
invoke the constitutional
function of the 1st
Respondent, and therefore, the
setting up of the 3rd
Respondent committee of enquiry
by the 2nd Respondent
was improper and not mandated by
any law. The High Court, then,
granted an order prohibiting the
3rd Respondent from
carrying out the duties for
which it was set up.
Dissatisfied with the decision
of the High Court, the
Interested Party on 24th
June 2015 appealed to the Court
of Appeal. The Court of Appeal
sitting at Cape Coast in its
judgment of 27th
March 2017 allowed the appeal
and set aside the order of
prohibition against the 3rd
Respondent. It is from the Court
of Appeal’s judgment that the
Appellant has appealed to this
court to restore the order of
prohibition restraining the 3rd
Respondent from considering (on
behalf of the 2nd
Respondent) the petition of the
Interested Party referred to it
by the 1st Respondent
to give its comments and advice.
The Appellant filed six grounds
of appeal which are reproduced
below:
a.)
The Court of Appeal erred in law
by holding that the 1st
Respondent/Appellant/Respondent
under Article 272 (a) of the
1992 Constitution and Section 3
(1) (a) of the Chieftaincy Act
of 2008 (Act 259) did not need
an instigation of a person or
authority charged with the
responsibility of any matter
relating to or affecting
chieftaincy.
b.)
The holding by the Court of
Appeal that whatever the 1st
and 2nd
Respondents/Appellants/Respondents
did, based on Exhibits NBB1 and
NBB2 and the decision of the 2nd
Appellant to set up the 3rd
Appellant were all done in
compliance with the law.
c.)
The decision of the Court of
Appeal that 3rd
Respondent was not set up to act
judicially was wrong in law.
d.)
The Court of Appeal erred in law
by holding that the grant of the
order for prohibition issued
against the 3rd
Respondent/Appellant/Respondent
amounted to preventing the 1st
and 2nd
Respondent/Appellant/Respondent
from performing their statutory
duties.
e.)
The Court of Appeal erred in law
by considering the additional
grounds of appeal filed by the 1st,
2nd and 3rd
Respondent/Appellant/Respondent
and the Interested Party
Appellant/Respondent.
We have carefully
reviewed the judgment of the
Court of Appeal, the grounds of
appeal filed to this Court and
the statement of case filed by
the parties. In our view, the
main issue in this appeal is
whether the 1st
Respondent is clothed with
jurisdiction to receive a
petition from persons like the
Interested Party and refer same
to the 2nd Respondent
for advice within the provisions
of Article 272(a) of the 1992
Constitution and Section 3(1)(a)
of the Chieftaincy Act, 2008
(Act 759). Conversely, whether
the 2nd Respondent
could set up the 3rd Respondent
committee of enquiry to advise
it on the petition referred to
it by the 1st
Respondent.
The Appellant has
argued in its statement of case
that neither Article 272(a) of
the 1992 Constitution nor
Section 3(1)(a) of the
Chieftaincy Act, 2008 (Act 759)
expressly or by necessary
implication clothed the 1st
Respondent with jurisdiction to
receive such a petition. They
further, submitted that the 2nd
Respondent was also not clothed
with jurisdiction to receive and
consider the petition by the
Interested Party. In the view of
the Appellant, the Interested
Party is not the proper person
to ask for the restoration or
elevation of his stool to the
status of a paramount stool
without a referral by the
persons and authorities named in
Section 9(3) of the Chieftaincy
Act. It is the submission of the
Appellant that Exhibit NBB1 was
not addressed to any person or
authority as contemplated by
Article 272(a) and Section
9(2)(a) and (3) of the
Chieftaincy Act, 2008 (Act 759)
but rather to the President of
the National House of Chiefs. In
the eyes of the Appellant, the
phrase “person or an authority
charged with the responsibility
under this Constitution or any
other law for any matter
relating to or affecting
chieftaincy” that could refer a
matter relating to chieftaincy
for advice should be limited to
the sector Minister responsible
for Chieftaincy, Parliament, the
President and certain statutory
bodies. The Appellant, further,
submitted that the creation of a
paramount stool can neither be
the preserve and prerogative of
the National House of Chiefs, 1st
Respondent nor the Regional
House of Chiefs, the 2nd
Respondent. The Appellant
concluded that the creation or
elevation to paramountcy must
come from the top and not the
bottom because paramountcy goes
along with the provision of an
office and staff which are all
borne by the Central Government.
The Court of Appeal
reviewed the law and the phrase
“person or authority” quoted
above and concluded that under
the law, the 1st
Respondent’s duty will come to
play when someone or an
organisation makes a complaint
or sends a petition to it on a
matter related to or affecting
chieftaincy. The Court of Appeal
identified the Interested Party
as one of such persons who could
send a petition because of the
title he holds as a traditional
ruler. According to the Court of
Appeal, the petition of the
Interested Party which is
seeking consideration for
restoration to its former status
was a call on the 1st
Respondent to perform its
functions under law. In the
words of the Court of Appeal,
the meaning being put on Article
272(a) and section 3(1)(a) of
the Chieftaincy Act, 2008 (Act
759)
“ by the trial court, is not only incorrect, but
will amount to stretching the
words in those provisions beyond
breaking limits”.
The Court of Appeal
also found that the reasons
given by the trial judge in
granting the prohibition against
the 3rd Respondent
was based on his lack of
appreciation of the law as far
as the function of the 1st
and 2nd Respondents
were concerned. The Court of
Appeal then concluded:
“the National House
of Chiefs, before it can amend
the Register of Chiefs under
section 14(3) of Act 759 or
issue a legislative instrument
under section 6(1) of the
Chieftaincy Act 2008 (Act 759),
is required under section 14(3)
of the Act to consult the
appropriate Regional House. It
was, therefore, in accordance
with these provisions that, upon
receipt of exhibit “NBB1”, it
referred it to the Western
Regional House of Chiefs, the 2nd
appellant in this case, who
under section 9(3) of the
Chieftaincy Act 2008 (Act 759),
was duty bound to consider it
and submit a report……..Whatever
the 1st and 2nd
appellants did, based on exhibit
“NBB1” and “NBB2”, and the
decision of the 2nd
appellant to set up the 3rd
appellant , were all done in
compliance with the law…….The 3rd
appellant was not called upon to
decide on questions of law or
fact but only to deliberate on
the petition of the interested
party/appellant and offer its
comments and advice…..The order
of prohibition issued against
the 3rd appellant
also amounted to preventing the
1st and 2nd
appellants from performing their
statutory duties. The appellants
have, therefore, amply
demonstrated why the judgment
cannot be allowed to stand. The
appeal, therefore, succeeds and
the judgment of the High Court,
Sekondi, dated 29th
May 2015 is hereby set aside.”
The Court of Appeal,
however, did not define the
scope of Article 272(a) and
sections 3(1)(a) and 9(3) of the
Chieftaincy Act. It is therefore
the responsibility of this court
to define the scope of the
relevant words used in the
Constitution and the statute to
bring to the fore the real
intention of the framers of the
Constitution and law-makers. The
meaning and scope of the words
“person” and “authority” will
settle this dispute in terms of
the merit or otherwise of the
appeal before us.
Article 272(a) provides as
follows:
272(a) The National House of
Chiefs shall -
(a)
advise any person or authority
charged with any responsibility
under this Constitution or any
other law for any matter
relating to or affecting
chieftaincy;
Sections 3(1)(a) of the
Chieftaincy Act provides that
3(1)(a) The National House shall
(a) advise a person or an
authority charged with a
responsibility under the
Constitution or any other law
for any matter related to or
affecting chieftaincy,
Both the Constitution and the
Act mentions ‘person’ and
‘authority’ charged with
responsibility under the
Constitution or any other law
for any matter related to or
affecting chieftaincy. When it
comes to the provision of the
Act relating to Regional House,
section 9(a) repeats almost
verbatim the same provision in
Article 272(a) and section 3(1)
(a) as follows:
9(1) Each Regional House shall,
(a)
advise a person or authority
charged under the Constitution
or any other law with
responsibility for a matter
relating to or affecting
chieftaincy in the region.
However, section 9(3) gave
further responsibility to the
Regional House which was not
given to the National House as
follows:
(3) Where a matter is referred
to a Regional House by the
President, Parliament, or an
authority in respect of a matter
relating to chieftaincy, the
Regional House shall give
consideration to the matter and
report on it as required.
It is this provision in section
9(3) which emboldened counsel
for the Appellant to submit
before this court that the
‘person’ or ‘authority’
specified in the provisions
referred to above in the
Constitution and the Chieftaincy
Act should be limited to the
President, Parliament and the
Minister responsible for
Chieftaincy.
It is a basic rule of statutory
construction that statutes must
be read and construed as a whole
in order to ascertain the true
intention of the legislation and
the mind of the law-maker. It
therefore behoves on the judge
to read each section,
subsection, and clause of the
parent Act and any instrument
passed pursuant to the Act as a
whole to understand and
appreciate the true intention of
the legislation. In this case,
the responsibility assigned to
the National and Regional Houses
of Chiefs under Article 272(a)
of the Constitution, Section
3(1)(a) and Section 9(1)(a) of
the Chieftaincy Act is first, to
‘advise a person’ and secondly, ‘advise an authority’. The person or
authority must be ‘charged with
a responsibility under the
Constitution or any other law’
and the subject of the charge
must relate to any matter
relating to and affecting
chieftaincy.
Section 76 of the Chieftaincy
Act did not define ‘a person’,
and ‘an authority’. How then do
we prevent conflicting meanings
put on the words by parties who
appear before the courts? This
can be achieved by delving into
the meaning of those words for
the guidance of parties and
courts.
The Black’s Law Dictionary, 8th
Edition defines a person as
follows:
“A human being- Also termed
natural person. An entity (such
as a corporation) that is
recognised by law as having the
rights and duties of a human
being. • In this sense, the term
includes partnerships and other
associations, whether
incorporated or unincorporated.
“So far as legal theory is
concerned, a person is any being
whom the law regards as capable
of rights and duties. Any being
that is so capable is a person,
whether a human being or not,
and no being that is not so
capable is a person, even though
he be a man. Persons are the
substances of which rights and
duties are the attributes. It is
only in this respect that
persons possess juridical
significance, and this is the
exclusive point of view from
which personality receives legal
recognition.” John Salmond,
Jurisprudence 318 (Glanville L.
Williams ed., 10th ed. 1947).
This definition by the Black’s
Law Dictionary is essentially to
the effect that a person in law
can include both a natural
person, i.e., a human being, and
an artificial person such as an
entity or corporate body that is
recognised by law.
This definition is consistent
with the definition given by the
Interpretations Act 2009,
(Act 792) under section 46
in the following terms;
"person" includes a body
corporate, whether corporation
aggregate or corporation sole
and an unincorporated body of
persons as well as an
individual;
Accordingly, in the Case of
New Patriotic Party v
Attorney-General
[1997-98] 1 GLR 378 – 461 (CIBA
CASE), where the meaning of
the word “person” as used under
article 2(1) of the 1992
Constitution was an issue before
the court, the Supreme Court
held in holding 1 as captured in
the headnotes as follows;
“the proper role of the
Interpretation Act, 1960 (CA 4)
was that unless the contrary
intention appeared in any
enactment, the interpretation of
words provided in CA 4 should be
applied, except where the
context in which the word was
used would not permit such an
interpretation or where the
enactment itself provided an
interpretation of any particular
words used therein. A "person"
was defined in section 32 of CA
4 to include a body corporate.
Since that meaning fitted the
context in which "person" was
used in article 2(1) of the
Constitution, 1992 there was no
necessity for applying the
canons of statutory
interpretation to determine its
meaning. Moreover, the word
"person" had been defined in
article 297 of the Constitution,
1992 to include a natural as
well as a legal person or a
corporate person such as the
plaintiff…”
For avoidance of doubt, the said
article 297 referred to by the
court in the CIBA case mentioned
above provides thus;
297(e) In this Constitution and
in any other law-
Words importing male persons
include female persons and
corporations.
Authority on the other hand is
defined in the Osborn’s
Concise Law Dictionary, 7th
Edition by Roger Bird at
page 40 in the following terms;
“(1) Delegated power; a right or
rights invested in a person or
body. An authority is a body
charged with the power and duty
of exercising prescribed
functions, e.g. a local planning
authority…” (emphasis mine)
The Oxford Dictionary of Law,
Fourth Edition, 1997 also
defines “authority” as;
“1. Power delegated to a person
or body to act in a particular
way. 2. A governing body,
such as a *local authority…” (emphasis
supplied)
The above cited legal
authorities and definitions
given by the various
dictionaries demonstrate that
the word ‘person’ is not limited
to a natural human being but
also includes a corporate body
or legal entity. Accordingly, on
the advisory role played by the
National and Regional Houses of
Chiefs, the word ‘person’ as
used in Article 272(a) of the
Constitution and sections
3(1)(a) and 9(a) of the
Chieftaincy Act can include any
individual or corporation which
is charged with a responsibility
under the Constitution or any
other law on matters affecting
chieftaincy. Consequently, an
example of such an individual
can be chiefs
whose names are on the National
Register of Chiefs, the National
House of Chiefs and the Regional
Houses of Chiefs. Others include
the Traditional Councils, the
Divisional Chiefs and Councils,
sub-divisional chiefs and
adikrofo.
Further, the word ‘authority’ as
used in article 272(a) of the
Constitution and sections
3(1)(a) and 9(2)(a) of the
Chieftaincy Act, 2008 (Act 759)
is used in the context of an
entity, body, agency or
commission which is charged with
a duty or responsibility
affecting chieftaincy matters.
Such authorities may include a
Commission of Enquiry set up to
address matters affecting
Chieftaincy, the
Presidency, Parliament, the
Minister responsible for
Chieftaincy and Culture and the
Judicial Committees of the
National and Regional Houses of
Chiefs and Traditional Councils.
Others include the
Council of State when it is
deliberating on issues affecting
chieftaincy in Ghana and local
government bodies. Such an
interpretation accords with the
observation on the integration
of chieftaincy in the
Constitution as made in the
Report of the Committee of
Experts on Proposals for a Draft
Constitution of Ghana, July 31,
1991 at page 156 thus;
“339. It is worth recalling that
Akuffo Addo Report recommended
the integration of chieftaincy
with the local government
system. While the Committee
would not go so far as to
recommend such a radical step,
it would nevertheless draw
attention to the following:
1.
Chieftaincy constitutes a major
resource that could be
officially tapped in reinforcing
the modern governmental
structure.
2.
Having regard to the high
intellectual and professional
calibre that the institution of
chieftaincy attracts these days,
chiefs may now be regarded as a
significant source of talent for
the modern sector.
The related matters affecting
chieftaincy appears not to be in
dispute as same has been defined
under section 76 of the
Chieftaincy Act to include
cause, matter, question or
dispute relating to any of the
following:
(a) the nomination, election,
selection or installation of a
person as a chief or the claim
of a person to be nominated,
elected, selected or installed
as a chief,
(b) the deposition or abdication
of a chief,
(c)
the right of a person to take
part in the nomination,
election, selection or
installation of a person as a
chief or in the deposition of a
chief,
(d)
the recovery or delivery of
stool property in connection
with the nomination, election,
selection, installation,
deposition or abdication of a
chief, and
(e) the constitutional relations
under customary law between
chiefs;
It is very clear from the
intention of the framers of the
Constitution and the law-makers
that the responsibility given to
the National and Regional Houses
of Chiefs is to do everything
within its power to preserve the
customary practices of this
revered institution in our
culture. This is to be done by
advising the individuals,
bodies, and groups vested with
the authority of state mentioned
above whenever any cause,
matter, question or dispute
relating to (among others) the
claim of a person to be
nominated, elected, selected or
installed as a chief or the
constitutional relations under
customary law between chiefs.
Section 9(a) of the Chieftaincy
Act, 2008 (Act 759), which
specifically mentions referral
of matters to a Regional House
by the President, Parliament or
an authority only charged the
Regional Houses to give
consideration to the reference
by these authorities and report
on it as required. This specific
provision could be attributed to
the important role these
authorities play in the country.
They are the first and second
arms of state. The Presidency
and Parliament should be
furnished with information
required expeditiously for
decision-making processes and
the making of relevant laws. In
our view, the specific
mentioning of the President and
Parliament in section 9(3) will
not take away the
responsibilities assigned to the
National and Regional Houses of
Chiefs to advise other persons
and authorities provided for in
Article 272(a) of the
Constitution and Section 3(1)(a)
of the Chieftaincy Act explained
above.
On the strength of the
definition and scope of the
various provisions explained
above, it is our conclusion that
the Stool of Takoradi
represented by Osahene Katakyi
Busumakura III, the Interested
Party is one of the persons
contemplated by Article 272(a)
of the Constitution and section
3(1)(a) of the Chieftaincy Act
with responsibility on a matter
related to Chieftaincy. This
conclusion is based on the fact
that the Interested Party is a
divisional chief in the Western
Region and has responsibility
under the Constitution and the
Chieftaincy Act to act on
matters relating to or affecting
chieftaincy. Further, the stool
of Takoradi occupied by the
Interested Party is a divisional
stool under the Ahanta
Traditional Council and as such
handles matters relating to or
affecting chieftaincy in the
divisional area.
The petition written by the
Interested Party, Exhibit NBB1
to the President of the National
House of Chiefs, the 1st
Respondent to restore the stool
of Takoradi to the status of
paramountcy is a call on the 1st
Respondent to advise it on the
request for the elevation of the
stool to paramountcy i.e.,
whether the request is in
consonance with customary
practices in the region and
should be granted or declined.
If the request is granted, the
National House of Chiefs in the
exercise of the powers vested in
it by section 6 of the
Chieftaincy Act has to specify
in a Legislative Instrument the
membership of the Western
Regional House of Chiefs.
Section 6(1) of the Act provides
that:
6. (1) In accordance with
article 274 of the Constitution,
the Regional House of Chiefs
consists of members specified by
legislative instrument made by
the National House of Chiefs and
issued under the signature of
the President of the National
House of Chiefs.
Currently, the Instrument on the
membership of the Regional House
is specified in the Chieftaincy
(Members of Regional House of
Chiefs) Instrument, 2008, L.I. …
In that instrument, section
14(1) listed the paramountcies
who are members of the Western
Regional House of Chiefs. This
did not include Takoradiman. If
the Interested Party’s prayer
goes through all the processes
successfully, the National House
of Chiefs under section 14(3) of
the Act after consultations with
the Western Regional House of
Chiefs would be required by law
to amend the Regional Houses
Instrument based on the
assignments vested in it under
the Constitution and the
Chieftaincy Act. Section 14(3)
states as follows:
14. (3) Where the National House is satisfied after consultation
with the appropriate Regional
House that a chief shall, or
shall not, be a member of a
Traditional Council, the
National House shall amend the
Register accordingly.
In sum, the Interested Party did
not breach the law in writing
Exhibit NBB1 to the National
House of Chiefs. Equally so, the
National House of Chiefs did not
err in receiving the petition
exhibit NBB1 from the Interested
Party.
As we have pointed
out above, the Appellant
submitted that the National
House of Chiefs, the 1st
Respondent acted ultra vires by
receiving and forwarding the
Interested Party’s petition to
the Western Regional House of
Chiefs for its advice on the
request whether to restore
Takoradiman to paramountcy or
not. According to the Appellant,
the petition should have been
written to an authority like the
Presidency, Parliament or the
Minister responsible for
Chieftaincy and Culture who are
the proper bodies to refer the
petition to the National House
of Chiefs for its advice. The
Appellant seems to have lost
sight of the fact that the
institution of chieftaincy in
the country has been going
through dynamic changes. Under
the current laws regulating the
institution, governmental
recognition and gazetting is no
longer the requirement for the
recognition and certification of
chiefs in the country unlike the
Chieftaincy Act, 1971 (Act 370)
where section 48 provides as
follows:.
(1) A Chief is an individual who
has, in accordance with
customary law, been nominated,
elected and installed as a Chief
or as the case may be appointed
and installed as such and whose
name for the time being appears
as a Chief on the National
Register of Chiefs:
Provided that no person shall be
deemed to be a Chief for the
purposes of the exercise by him
of any function under this Act
or under any other enactment,
unless he has been recognised as
such by the Minister by notice
published in the Local
Government Bulletin.
The change from political
interference in who should or
should not be a chief is clearly
captured in Article 270 (1) and
(2) of the Constitution as
follows:
(1) The institution of
chieftaincy, together with its
traditional councils as
established by customary law and
usage, is hereby guaranteed.
(2) Parliament shall have no
power to enact any law which-
(a) confers on any person or authority the right to accord or
withdraw recognition to or from
a chief for any purpose
whatsoever; or
(b) in any way detracts or derogates from the honour and dignity of
the institution of chieftaincy.
Clause 3 of the same article
recognises the authority of the
traditional council, a National
and Regional Houses of Chiefs to
determine the validity of the
nomination, election, selection,
installation or disposition of a
person as a chief in accordance
with the appropriate customary
law and usage. The clause also
vests the Traditional Councils,
National and Regional Houses of
Chiefs with power to operate a
procedure for the registration
of chiefs and public
notification in the Gazette of
the status of a person as a
chief in Ghana. Therefore, to
argue that any advice sought
from the National or a Regional
House of Chiefs especially
relating to the elevation of a
stool to paramountcy could only
come from political or
governmental authorities will be
setting the clock backwards and
fly in the face of the very
constitutional provision that
has taken recognition of chiefs
out of political hands and
placed it squarely in the hands
of the customary bodies. These
customary bodies are well versed
in the customs and usages and
better suited to preserve this
time-honoured traditional
institution in Ghana.
We now discuss whether the
remedy of prohibition will lie
against the work of a body like
the 3rd Respondent
whose work is purely
fact-finding and advisory. We
have found that the Constitution
and the chieftaincy law permits
the National House of Chiefs to
seek advice on any matter
relating to and affecting
chieftaincy from a Regional
House of Chief. We have also
found that section 9(4) of the
Chieftaincy Act permits a
Regional House of Chiefs to
appoint committees comprising
persons determined by it to
assist in the performance of its
functions, and may delegate to
any of the committees the
functions it deems fit. Will
prohibition lie in respect of
the above acts?
A committee of enquiry by its
very nature merely makes
recommendations upon facts it is
seised with. These
recommendations are non-binding
and certainly have no final
legal effect. Could one classify
the 3rd Respondent
committee of enquiry as an
inferior tribunal where
prohibition can be ordered to
prevent an enquiry into whether
or not by custom and historical
fact Takoradi was once a
paramount stool, and therefore
its stool should now be accorded
that elevation? It appears to us
that if the committee had been
allowed to complete its task and
possibly had wandered outside
its designated area or digressed
away from its allotted task or
strayed from the direct path
which it was required to tread,
then in any of those cases the
High Court would be clothed with
supervisory Jurisdiction to
intervene in the Appellant’s
favour; but not before as this
action appears to have been by
this quia timet approach.
Prohibition is one of the writs
or orders issued by the High
Court in the exercise of its
supervisory jurisdiction.
Traditionally, it is directed at
lower tribunals, administrative
bodies and public adjudicating
authorities forbidding them from
acting contrary to law or
outside their jurisdiction or in
excess of their jurisdiction.
Both the National and Regional
Houses of Chiefs are
constitutional and statutory
bodies set up by law with
clearly defined functions.
Therefore, could the 1st
Respondent in receiving the
petition from the Interested
Party for advice and forwarding
same to the 2nd
Respondent for its comments and
advice be said to be acting
contrary to law or in
contravention of or in excess of
the statutory powers assigned to
it. Conversely, could it be said
that the 2nd
Respondent in constituting the
3rd Respondent committee of
enquiry to enquire into the
petition and give its comments
and advice acted without or in
excess of its statutory powers
and in the process contravened
the law? The answers to these
questions are obviously no.
The legal position is where the
law assigns responsibility to an
administrative body, such as the
National or Regional Houses of
Chiefs in this case, to perform
a duty such as to advise or to
set up committees to assist it
in the performance of those
functions or delegate part of
those functions to the
committees, it is enjoined to
perform exactly those functions
and prohibition will not lie
against the body for so acting
according to law. Consequently,
it is our view that the High
Court, Sekondi fell into a
grievous error when it exercised
its discretion to prohibit the 3rd
Respondent from continuing with
the enquiry commissioned by the
2nd Respondent. In
the words of Selwyn LJ in In
re London Marine
Insurance Association [1869] LR
Ch. App 611 at 614 which we
fully endorse:
“it is not the duty of a court
of law to find ways in which the
object of an Act of the
Legislature may be defeated”
In our view, the
Court of Appeal rightly applied
the provisions of the
Constitution and interpreted
rightly the relevant sections of
the Chieftaincy Act based on the
facts in this case. We also
endorse the reasoning of the
Court of Appeal on ground ‘e’ on
the consideration of the
additional grounds filed by the
Respondents and wholly adopt the
said reasoning. We find no basis
to disturb the conclusions
reached by the Court of Appeal.
In the results, we find no merit
in the appeal and same is
dismissed.
N. A. AMEGATCHER
(JUSTICE OF THE SUPREME COURT)
DOTSE, JSC:-
I agree with the
conclusion and reasoning of my
brother Amegatcher, JSC.
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
BAFFOE-BONNIE, JSC:-
I agree with the
conclusion and reasoning of my
brother Amegatcher, JSC.
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
BENIN, JSC:-
I agree with the
conclusion and reasoning of my
brother Amegatcher, JSC.
A. A. BENIN
(JUSTICE OF THE SUPREME COURT)
DORDZIE, JSC:-
I agree with the
conclusion and reasoning of my
brother Amegatcher, JSC.
M. A. DORDDIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
COUNSEL
VICTOR OWUSU FOR THE
APPLICANTS/APPELLANTS.
PHILIP NKRUMAH FOR
THE 1ST, 2ND,
3RD RESPONDENTS AND
INTERESTED PARTY.
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