|
CORAM
ATUGUBA, JSC.
(PRESIDING) ANSAH, JSC OWUSU
(MS), JSC GBADEGBE, JSC
AKOTO-BAMFO (MRS), JSC
Chieftaincy
- Installation - Chieftaincy
Declaration (CD) Forms were duly
processed - Ga Traditional
Council - Greater-Accra
Regional House of Chiefs -
National House of Chiefs -
National Register of Chiefs –
Name inserted in the National
Register of Chiefs - Application
for Judicial Review – Mandamus
for removal of name from the
mandamus - judgment of the
Judicial Committee of the Ga
Traditional Council - article 23
of the 1992 Constitution
HEADNOTES
The Appellant
herein known in private life as
Francis Nii Aryee Addoquaye was
enstooled Ablekuma Mantse and
Sempe Atofo under the Stool name
of Nii Larbie Mensah IV. There
was no writ/petition against his
installation. As a result,
his
Chieftaincy Declaration (CD)
Forms were duly processed by
the Ga
Traditional Council and
forwarded to the
National
House of Chiefs through the
Greater-Accra Regional House of
Chiefs for his name to be
inserted in the
National
Register of Chiefs. The
name of the Appellant was
inserted in the
national
Register of Chiefs on the 23rd
day of May 2006 as having been
enstooled on the 14th
day of April 2000. Sometime in
or about September 2006, Adjin
Tettey who also claimed that he
had been installed as Ablekuma
Mantse and Sempe Atofotse under
the Stool name of Nii Larbi
Mensah IV filed an
application for Judicial Review
in the nature of
mandamus
directed at the National House
of Chiefs to remove the name of
the Appellant from the National
Register of Chiefs and insert
his name following his
recognition by a
judgment
of the Judicial Committee of the
Ga Traditional Council in
October 1997. When the
Application came on for hearing
the Learned Trial Judge ordered
the Interested
Party/Appellant/Appellant herein
to be joined to the action.
After all processes had been
filed the matter was heard. The
High Court, Kumasi, presided
over by His Lordship K.
Ansu-Gyeabour granted the
Application. Being aggrieved
and dissatisfied with the said
Ruling, the Interested
Party/Appellant appealed to the
Court of Appeal. On 12th
June 2009, the Court of Appeal
dismissed the appeal but varied
the costs of GH¢2,000.00 awarded
against the National House of
Chiefs to GH¢500.00. Being
dissatisfied and aggrieved with
the said judgment, the
Interested
Party/Appellant/Appellant lodged
the current appeal.
HELD
Accordingly
there is no miscarriage of
justice and under O. 81 of the
High Court (Civil Procedure)
Rules, 2004 the proceedings and
the pursuant judgments of the
courts below in this case hold
good. For all the foregoing
reasons the appeal is
dismissed.
STATUTES
REFERRED TO IN JUDGMENT
Chieftaincy
Act, 1971 (Act 370)
1992
Constitution
State
Proceedings (Amendment) Decree,
1969 (N.L.C.D. 352)
1979
Constitution
CASES
REFERRED TO IN JUDGMENT
Republic (No.
2) v. National House of Chiefs.
Ex parte Akrofa Krukoko II
(Enimil VI Interested Party)
(No. 2) [2010] SCGLR 134.
Republic v
The President National House of
Chiefs. Ex parte Akyeamfour II
(1982-83) GLR 10 C.A
Donkor v. Wih
(1989-90)1 GLR 178 C.A.
Kwakye v.
Attorney-General (1981) GLR 9
S.C
Boyefio v
N.T.H.C Properties Ltd.
(1997-1998)1GLR 768
In re Maude
and Michelin (1970) 2 G&G 38
Accra
Regional Complex Ltd. v. Lands
Commission (2007-2008) SCGLR
108,
In re
Appenteng (Decd). Republic v.
High Court, Accra; Ex parte
Appenteng and Another
(2005-2006) SCGLR 18
See Hanna
Assi (No. 2) v. Gihoc
Refrigeration & Household
Products Ltd. (No. 2)
(2007-2008)I SCGLR 16,
Boakye v.
Tutuyehene (2007-2008) SCGLR
970,
Ackah v.
Pergah Transport Ltd (2010)
SCGLR 728
Republic v.
High Court, (Human Rights
Division) Accra Ex parte
Akita(Mancell-Egala &
Attorney-General Interested
Parties) (2010) SCGLR 374
BOOKS
REFERRED TO IN JUDGMENT
Halsbury’s
Laws of England (4th
ed) para, 156
House of
Chiefs Standing Orders (Revised)
1991
DELIVERING
THE LEADING JUDGMENT
ATUGUBA,
J.S.C:
COUNSEL
AYIKOI OTOO
FOR THE INTERESTED
PARTY/APPELLANT.
DR. JOSIAH
ARYEH FOR THE RESPONDENT
J U D G E M E
N T.
ATUGUBA,
J.S.C:
Facts of the
Case
The Appellant
herein known in private life as
Francis Nii Aryee Addoquaye was
enstooled Ablekuma Mantse and
Sempe Atofo under the Stool name
of Nii Larbie Mensah IV. There
was no writ/petition against his
installation. As a result, his
Chieftaincy Declaration (CD)
Forms were duly processed by the
Ga Traditional Council and
forwarded to the National House
of Chiefs through the
Greater-Accra Regional House of
Chiefs for his name to be
inserted in the National
Register of Chiefs. The name of
the Appellant was inserted in
the national Register of Chiefs
on the 23rd day of
May 2006 as having been
enstooled on the 14th
day of April 2000. Sometime in
or about September 2006, Adjin
Tettey who also claimed that he
had been installed as Ablekuma
Mantse and Sempe Atofotse under
the Stool name of Nii Larbi
Mensah IV filed an application
for Judicial Review in the
nature of mandamus directed at
the National House of Chiefs to
remove the name of the Appellant
from the National Register of
Chiefs and insert his name
following his recognition by a
judgment of the Judicial
Committee of the Ga Traditional
Council in October 1997.
When the
Application came on for hearing
the Learned Trial Judge ordered
the Interested
Party/Appellant/Appellant herein
to be joined to the action.
After all processes had been
filed the matter was heard. The
High Court, Kumasi, presided
over by His Lordship K.
Ansu-Gyeabour granted the
Application. Being aggrieved
and dissatisfied with the said
Ruling, the Interested
Party/Appellant appealed to the
Court of Appeal. On 12th
June 2009, the Court of Appeal
dismissed the appeal but varied
the costs of GH¢2,000.00 awarded
against the National House of
Chiefs to GH¢500.00. Being
dissatisfied and aggrieved with
the said judgment, the
Interested
Party/Appellant/Appellant lodged
the current appeal.
Grounds of
Appeal:
Following the
grant of an application for
Extension of Time within which
to file an Appeal, the
Interested
Party/Appellant/Appellant filed
his Notice of Appeal and set
down the following Grounds of
Appeal:
“a) Their
Lordships in the Court of Appeal
erred when they rested their
decision on a ground not set out
by the Appellant before them and
failed to
offer
the parties opportunity of
contesting the case on that
ground.
b)
Having found from the available
evidence on record as a fact
that Exhibits 1 & 2 being the
Chieftaincy Declaration (C.D.)
forms and Letter from the
National House of Chiefs were
not false because there was no
case pending against the
Appellant at any forum, which
was the gravamen of the
Applicant’s case before the High
Court, Kumasi, their Lordships
should have ended the matter,
and not to have formulated a
ground which was not before
their Lordships and proceed to
rest their decision thereon
without offering the parties any
opportunity to contest the case
on that ground.
c)
There was no ground stated by
the Applicant for Order of
Mandamus before the High Court
Kumasi, that because Appellant
herein had a case pending
against him before the Judicial
Committee of the Ga Traditional
Council, the insertion of
Appellant’s name in the National
Register of Chiefs by the
National House of Chiefs ought
to have been stayed until the
petition was disposed of.
d)
Having found that there was no
legal impediment in the way of
Appellant herein, their
Lordships ought to have
dismissed the
Applicant/Respondent’s case.”
The sum total
of the appellant’s submissions
in this appeal is succinctly
summarised in the concluding
paragraph of his statement of
case filed on 26/4/2010 as
follows:
“It is ....
submitted that since the
Applicant/Respondent was unable
to clear a fundamental hurdle of
“demand and Refusal” his
application for Mandamus was in
the first place not properly
before the Court and since he
was not able to sustain his
claim on the grounds as put
forward by him in his supporting
Affidavits, both the High Court
and the Court of Appeal erred
when they substituted a
different case from that pleaded
by the Applicant/Respondent and
proceeded to grant and affirm
the Ruling. How did they expect
the Respondent and Interested
Party/Appellant in our adversary
system to answer charges not
contained in the grounds for
which the relief or remedy was
sought?” (e.s)
Prior Demand
On the issue
of prior demand before the
pursuit of the remedy of
mandamus, the relevant law has
been stated in the recent
decision of this court in
Republic
(No. 2) v. National House of
Chiefs. Ex parte Akrofa Krukoko
II (Enimil VI Interested Party)
(No. 2) [2010] SCGLR 134.
That case
plainly approved the exception
stated in
Halsbury’s Laws of England (4th
ed) para, 156 at 259 as
follows:
“156.
Demand for performance must
precede application. As a
general rule the order will not
be granted unless the party
complained of has known what it
was he required to do, so that
he had the means of considering
whether or not he should comply,
and it must be shown by evidence
that there was a distinct demand
of that which the party seeking
the mandamus desires to enforce,
and that that demand was met by
a refusal. The requirement,
however, that before the court
will issue a mandamus there must
be a demand to perform the act
sought to be enforced and a
refusal to perform it cannot be
applicable in all possible
cases, and does not apply where
a person has by inadvertence
omitted to do some act which he
was under a duty to do, and
where the time within which he
can do it has passed.” (e.s)
Duty to act
fairly and reasonably
In
Republic
v The President National House
of Chiefs. Ex parte Akyeamfour
II (1982-83) GLR 10 C.A it
was stated and held as in the
headnote thereof as follows:
“The
appellant and the respondent
were rival claimants to the
Asokore stool. The appellant,
claiming to be the rightful
Asokorehene, paid his customary
fees, swore the customary oath
of allegiance before the
Omanhene of the New Juaben
Traditional Area and
subsequently had his name
registered in the register of
the National House of Chiefs as
well as published in the Local
Government Bulletin in 1971.
The respondent, also claiming to
be the rightful occupant of the
same stool, later instituted
proceedings to stop the further
publication of the appellant’s
name in the Gazette. During the
pendency of the respondent’s
action, the appellant’s name was
re-submitted for publication but
was struck out. Meanwhile, the
respondent’s name had been
published and gazetted in 1975.
Consequently, the appellant
brought an application in the
High Court seeking an order of
certiorari to remove the name of
the respondent from the National
Register of Chiefs as well as
the Local Government Bulletin of
20 June 1975 for the purpose of
quashing same. The High Court
refused the application. On
appeal,
Held,
dismissing the appeal: the duty
to maintain a register as laid
down in section 50 (1) of the
Chieftaincy Act, 1971 (Act 370)
and the discretion given by
section 50(2) to the national
House of Chiefs (N.H.C.) to
insert in the register certain
information relating to
chieftaincy which it might
consider necessary or which
might be considered desirable by
the Act or other legislation
such as the insertion of the
name of a chief under section
48(3) were all purely
administrative functions. The
act made no provision for
hearing objections to the
registration functions of the
N.H.C. The N.H.C., in the
exercise of its registration
functions, did not act
judicially since there was no
obligation on it to hear
evidence from both sides in the
event of a dispute, and come to
a judicial decision. All its
functions, were associated with
factual recording and did not
extend to adjudicating on the
merits. Thus, although the
N.H.C. had a duty to act
honestly and fairly, it was a
moral rather than a legal duty.
Per Francois
J.A. [T]he houses of chiefs have
their judicial functions through
their judicial committees in the
determination of constitutional
issues regarding chieftaincy –
in fact they possess exclusive
jurisdiction. The need to keep
the two functions, judicial and
administrative, separate and
distinct cannot therefore be
over-emphasised. It would be
invidious for the house to
assume an investigative and
inquisitorial role in the
exercise of purely collating
information for the register
when it may be called upon in
its judicial capacity to
determine the merits of issues
affecting the same contesting
chiefs. This would be the
surest way to stultify the Act.
”
In this case
at the time of the insertion of
the appellant’s name in the
national register of chiefs,
article
23 of the 1992 Constitution
bound the National House of
Chiefs in its administrative
capacity as follows:
“23. Administrative justice
Administrative bodies and
administrative officials shall
act fairly and reasonably and
comply with the requirements
imposed on them by law and
persons aggrieved by the
exercise of such acts and
decisions shall have the right
to seek redress before a court
or other tribunal.”(e.s)
The 2nd
respondent’s reliance on article
23 of the Constitution clearly
arises from the facts pleaded by
him. See
Donkor v. Wih (1989-90)1 GLR 178
C.A.
In the face
of this intervening
constitutional provision it is
doubtful whether the 2nd
respondent (originally the
applicant) in this case would
still be bound by the common law
precondition of making a prior
demand before applying for
mandamus, see by analogy
Kwakye v.
Attorney-General (1981) GLR 9
S.C wherein this court
invalidated the condition of
prior one month’s notice to the
Attorney-General before suing
the Republic under the
State
Proceedings (Amendment) Decree,
1969 (N.L.C.D. 352) as being
contrary to the plaintiff’s
right to proceed as of right
under article 2(1) of the
1979
Constitution. It must be
borne in mind also that article
11(6) of the Constitution
requires the existing law,
inclusive of course of the
common law under article 11(1)
(e), to be “construed with any
modifications, adaptations,
qualifications and exceptions
necessary to bring it into
conformity with the provisions
of this Constitution, or
otherwise to give effect to, or
enable effect to be given to,
any changes effected by this
Constitution.” In view of
article 11(6) of the
constitution the law as stated
in Ex parte Akyeamfour II,
supra, will have to be read
mutatis mutandis so as to
give way to article 23. Certain
situations of postponed
invocation of the court’s
jurisdiction however are
compatible with the
constitution, see
Boyefio v
N.T.H.C Properties Ltd.
(1997-1998)1GLR 768. Where
however the clog of postponement
of access to the courts is not
very necessary, as here, the
same cannot be tolerated.
In order to
act fairly and reasonably in
this case the National House of
Chiefs before entering the
appellant’s name in the National
register of chiefs should have
diligently investigated the CD
Forms for the purpose emanating
from the Ga Traditional Council
and the Greater Accra Regional
House of Chiefs as required by
paragraph 56 of the
House of
Chiefs Standing Orders (Revised)
1991. It is an onerous duty
and though holding that there
was a default in this respect we
do not indict the National House
of Chiefs of recklessness. The
2nd respondent did
not know of the events to his
detriment culminating in the
entry of his rival’s name in the
national register of chiefs on
23/5/2006 until he saw a
publication of it in the Daily
Graphic of 24/6/2006 when his
opportunity and duty of raising
issues and in effect demanding
compliance with article 23 of
the constitution had passed. In
that sense it can be said that
the 2nd respondent
was absolved from the common law
duty of making a prior demand
and being met with a refusal,
even if that duty can still be
said in the face of article 23
of the Constitution to subsist.
In any event
it has frequently been said that
where mandamus cannot lie an
order may lie, see
In re
Maude and Michelin (1970) 2 G&G
38. Even without this
principle, this court has time
without number held that the
reliefs open to a party who
invokes the supervisory
jurisdiction of this court,
which is in pari materia
with the supervisory
jurisdiction of the High Court,
is not limited to the
traditional prerogative writs or
any particular remedies for that
matter. See
Accra
Regional Complex Ltd. v. Lands
Commission (2007-2008) SCGLR
108, and In re Appenteng
(Decd). Republic v. High Court,
Accra; Ex parte Appenteng and
Another (2005-2006) SCGLR 18.
It is clear therefore that the
courts below were right in
making an order as the justice
of this case demands.
As to the
contention that the courts below
decided this case on a ground
not pleaded by the 2nd
respondent (as applicant), the
same is misconceived. Even
though the second respondent
initially based his case on the
premise that he was the adjudged
chief of Ablekuma by dint of a
decision of the Ga Traditional
Council, he also pleaded that as
a result of the quashing of that
decision the chieftaincy
petition against him was still
pending before that Traditional
Council and since it related to
the same stool claimed by the
appellant it was unfair for the
National House of Chiefs in
those circumstances to treat the
appellant as the undisputed
chief of Ablekuma and insert his
name in the national register of
chiefs accordingly. It is
obvious that on a full reading
and construction of the
pleadings in this case the 2nd
respondent pleaded his case in
the alternative form, namely,
that he is the incumbent chief
of Ablekuma or in the
alternative that he is the chief
thereof though his position is
sub judice and that as
his enstoolment long preceeded
that of the appellant, the
scales ought to be kept even as
regards entries in the national
register of chiefs until the
dispute concerning the stool is
resolved. Certainly the rival
claim of the 2nd
respondent to the same stool
affects the status of the
appellant.
In any case
the appellant did not move to
strike out any of the
appellant’s pleadings as being
improper but litigated the same
with the 2nd
respondent. No surprise or
unfairness arises against him in
these circumstances.
Accordingly
there is no miscarriage of
justice and under O. 81 of the
High Court (Civil Procedure)
Rules, 2004 the proceedings and
the pursuant judgments of the
courts below in this case hold
good.
See
Hanna Assi (No. 2) v. Gihoc
Refrigeration & Household
Products Ltd. (No. 2)
(2007-2008)I SCGLR 16, Boakye v.
Tutuyehene (2007-2008) SCGLR
970, Ackah v. Pergah Transport
Ltd (2010) SCGLR 728 and
Republic v. High Court, (Human
Rights Division) Accra Ex parte
Akita(Mancell-Egala &
Attorney-General Interested
Parties) (2010) SCGLR 374.
Any contrary view or decision is
per incuriam or
overruled.
For all the
foregoing reasons the appeal is
dismissed.
[SGD] W. A. ATUGUBA
JUSTICE OF THE
SUPEME COURT
“” J. ANSAH
JUSTICE OF THE SUPEME COURT
“” R. C. OWUSU [MS].
JUSTICE OF THE SUPEME COURT
“” N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
“” V. AKOTO-BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL;
AYIKOI OTOO
FOR THE INTERESTED
PARTY/APPELLANT.
DR. JOSIAH
ARYEH FOR THE RESPONDENT.
|
