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Chieftaincy
- Judicial review – Mandamus
–Traditional Council - Regional
House of Chiefs - National House
of Chiefs – Whether or not an
application for mandamus can be
refused, if the public body had
good cause for refusing to
perform that duty -
HEADNOTES
On the 12th
January 2011, His Lordship Kaglo
J, sitting in the High Court,
Koforidua, granted an order of
mandamus against the
Registrar of the Eastern Region
House of Chiefs to transmit
forthwith to the National House
of Chiefs the forms that the
First Interested Party in the
present suit had lodged with
him. The Applicant in this
suit, being aggrieved by that
ruling, brought an application
before the same judge for the
order of mandamus to be
set aside. The grounds of this
application were that the order
adversely affected the interests
of his family and himself, but
he had not been given notice of
the application and that it had
not been brought in good faith.
The Applicant contended that the
mandamus application
amounted to deceiving the court
since the applicant for
mandamus was aware that
there was a chieftaincy petition
pending which sought to nullify
the purported enstoolment of the
applicant for mandamus,
namely, the First Interested
Party in the current suit..The
court refused to set aside the
order of mandamus,
holding that the pendency of a
petition challenging the First
Interested Party’s installation
was not a bar to the
forwarding of his Chieftaincy
Declaration Forms to the
National House of Chiefs.
Having failed to secure redress
before the High Court, the
Applicant has now applied to
this Court to invoke its
supervisory jurisdiction to
quash the order of mandamus
granted by Kaglo J. The
original Applicant died before
the hearing of this application
by this Court and was
substituted with the current
Applicant by an order of this
Court granted.
HELD
MAJORITY OPINION
In any case,
article 23 of the 1992
Constitution imposes a duty on
administrative bodies and
administrative officials to act
fairly and reasonably. This
constitutional provision must
necessarily overtake any
interpretation of the
chieftaincy registration
provisions of Act 370 which
results in an outcome contrary
to the requirement of fairness
and reasonableness. For the
above reasons, I would grant
this application.
MINORITY OPINION
To my mind,
there was no obligation to serve
the mandamus application
on the Applicant because he was
not, in terms of the civil
procedure rules, when
purposively construed, an
interested party in that
application. Accordingly, the
audi alteram partem is not
applicable to the facts of this
case. If the Applicant’s
chieftaincy petition succeeded
later, whatever had been entered
in the register by the National
House of Chiefs would be undone
by the House, pursuant to its
powers under the Chieftaincy
Act.
For the reasons
stated above, I would dismiss
the application to invoke the
supervisory jurisdiction of this
Court to quash the order of
mandamus granted by Kaglo J.
on 12th December,
2010.
STATUTES
REFERRED TO IN JUDGMENT
Chieftaincy
Act, 1961 (Act 81)
The
Chieftaincy Act, 1971 (Act 370
1992
Constitution.
Chieftaincy
Act, 1971 (Act 370) as amended
by the Chieftaincy (Amendment)
(No. 2) Decree, 1973 (N.R.C.D.
226),
High Court
(Civil Procedure) Rules, CI 47
High Court
(Civil Procedure) Rules, 1954 (LN
140A)
CASES
REFERRED TO IN JUDGMENT
Republic v.
Chieftaincy Secretariat & Anor;
Ex parte Adansi Traditional
Council (1968) GLR 736
Republic v.
National House of Chiefs, Ex
Parte Krukoko II (2010) SCGLR
134.
Ghana Railway
Administration v. Ansah (1974) 1
GLR 47
Republic v.
Lands Commission; Ex parte
Vanderpuye Orgle Estates Ltd
(1998-99) SCGLR 677
R v. Home
Secretary; Ex parte Phansopkar
[1975] QB 603
R v. Governor
of Durham Prison, Ex parte Singh
[1984] 1 All ER 983
Republic v.
Controller and
Accountant-General, Ex parte
Dizengoff (W. A) Ltd (1974) 1
GLR 337
Republic v.
National House of Chiefs, Kumasi
and Another, Ex parte Kusi-Apea
(1984-86) 2 GLR 90
Republic v.
Gbi Traditional Council; Ex
parte Abaka VII (1995-96) 1 GLR
702
The Republic
v. National House of Chiefs,
Kumasi, Ex parte Nii Larbie
Mensah IV and Others J4/37/2010
SC, delivered on 1/6/2011.
In re Oguaa
Paramount Stool; Garbrah & Ors
v. Central Regional House of
Chiefs & Haizel (2005-2006)
SCGLR 193
In re the
Election of First President,
Appiah v. Attorney-General
(1970) 2 G&G 530, C.A
Kwakye v.
Attorney-General (1981) GLR 39
Boyefio v.
NTHC Properties Ltd. (1996-97)
SCGLR 531
Brown v.
Attorney-General (2010) SCGLR
183
Republic v.
Akuaku II; Ex parte Chayi II
(1991) 2 GLR 163
Republic v.
Volta Regional House of Chiefs;
Ex parte Kanya II (1975) 1 GLR
448
Republic v
High Court (Commercial Division)
Ex Parte The Trust Bank (Ampomah
Photo Lab and 3 ors, Interested
Parties) [2009] SCGLR 164,
Republic v
High Court Accra, Ex Parte CHRAJ
[2003-2004] SCGLR 1
Republic v
Court of Appeal, Ex Parte Tsatsu
Tsikata [2005-2006] SCGLR 612
Council of
Civil Service Unions v Minister
for the Civil Service [1985] AC
374
Republic v
Volta Region House of Chiefs, Ex
parte Kanya II [1975] 1 GLR 448,
Republic v
National House of Chiefs & Ors,
Ex Parte Faibil III & Ors
[1984-86] 2 GLR 731
Republic v
National House of Chiefs, Ex
Parte Krukoko II [2010] SCGLR
134
Republic v
National House of Chiefs and
Others; Ex parte Faibil III and
Others [1984-86] 2 GLR 731
Republic v
Chieftaincy Secretariat & Anor;
Ex Parte Adansi Traditional
Council [1968] GLR 736,
The Republic
v National House of Chiefs; Ex
Parte Odeneho A. Krukoko II (Osagyefo
Kwamena Enimil VI, Interested
Party), C.A. 11th
November, 2005
State (Modern
Homes Ltd) v Dublin Corporation
1953 IR 202
R v Hunley
Revising Barrister [1912] 3 KB
518,
BOOKS
REFERRED TO IN JUDGMENT
Encarta
English Dictionary
Administrative Law’, Eighth
Edition by Sir William Wade
DELIVERING
THE LEADING JUDGMENT
ATUGUBA,
J.S.C:
DESSENTING
DR. DATE-BAH
JSC:
COUNSEL
K. AMOAKO
ADJEI FOR THE APPLICANT.
ACE ANKOMAH
FOR 1ST INTERESTED
PARTY
_____________________________________________________________________________________
R U L I N G
________________________________________________________________________________________________
ATUGUBA, J.S.C:
I have had the advantage of
reading the encyclopaedic ruling
of my masterly brother Dr.
Date-Bah JSC. As I find myself,
with all the respect, unable to
agree with everything in his
formidable and fulsome judgment
I proceed to state my opinion
briefly.
As the facts have been fully set
out by him I would only refer to
them where necessary.
The Accrual of the Applicant’s
right to apply for Mandamus
0.55 r. 3, as far as relevant to
this case, provides as follows:
“3. Time for
making application
(1)
An application for judicial
review shall be made not later
than six months from the
date of the occurrence of the
event giving grounds for making
the application.”
What then in this case would
constitute “the date of the
occurrence of the event giving
grounds” for making the
application for mandamus? The
operative date for the
application would be the date on
which the Registrar of the
Eastern Regional House of Chiefs
refused to transmit to the
National House of Chiefs the
chieftaincy forms of the First
Interested party submitted on
his behalf by the Traditional
Council.
It is important to set out in
this connection the relevant
occurrences. The first
interested party submitted his
Chieftaincy forms and necessary
fees to the Akyem Kotoku
Traditional Council on
7/6/1999 for onward
transmission to the Eastern
Regional House of Chiefs for
further transmission to the
National House of Chiefs for
“gazette notification”. In a
letter (Exh. AKS4) from his
solicitors purportedly dated
2/12/2010 but said (Exh.
AKS5) to have been dated
4/11/2010 the 1st
interested party enquired
whether his said chieftaincy
forms had been transmitted to
the Eastern Regional House of
Chiefs. Exhibit AKS5 dated
9/11/2010 from the
traditional Council replied that
the said chieftaincy forms had
been forwarded to the Eastern
Regional House of Chiefs on
7/6/1999. This assertion is
confirmed by Exh. AKS 3.
On 16/12/2010 the 1st
interested party, per his
solicitors wrote (Exh. AKS6) to
the Eastern Regional House of
Chiefs enquiring whether the
said chieftaincy forms had been
transmitted to the National
House of Chiefs. On the same
16/12/2010 the Eastern
Regional House of Chiefs,
replied (exh. AKS 7) that the
said forms had not been so
transmitted.
The first interested party then
filed his mandamus application
in the High Court, Koforidua on
17/12/2010. It is said
that time began to run for the
purposes of 0.55 r.3(1) of C147
as from the said 16/12/2010,
namely the date on which the 1st
interested party was thus
informed of the refusal by the 2nd
interested party to transmit the
1st interested
party’s said chieftaincy forms
to the National House of
Chiefs. If that be right then
the 1st interested
party has probably set a record
in compliance with 0.55 r.3 (1)
of C.147 since he filed his
mandamus application the very
next day, 17/12/2010.
Mode of Refusal to Act.
If a refusal to act on a request
to perform a compellable duty
can only be established by
express form the situation in
this case would begin to be
different. However in
Republic v. Chieftaincy
Secretariat & Anor; Ex parte
Adansi Traditional Council
(1968) GLR 736 at 742 Annan J
(as he then was) said, in
construing s.1(2) (a) of the
Chieftaincy Act, 1961 (Act 81)
as follows:
“Having regard to the clear
language of section 1(2) (a) and
in the light of exhibit 4, I am
compelled to say that there has
been no positive refusal or
conduct amounting to a refusal,
on the part of the second
respondent to perform the duty
cast on him by section 1(2) (a)
to take a decision one way or
the other. It is clear law that
the court will not order
mandamus to go where there has
been no demand and refusal to
perform the public duty enjoined
by statute.” (e.s)
As depicted by my able brother
Dr. Date-Bah JSC in his judgment
in this case this court approved
this statement of the law in
Republic v. National House of
Chiefs, Ex Parte Krukoko II
(2010) SCGLR 134. Indeed holding
(4) of the headnote to that
decision reads thus:
“(4) … Ordinarily, time within
which to apply for mandamus
should begin to run only
after a demand to perform duty
had been met with refusal. Where
the demand made for the
performance of the duty had been
found to be premature,
mandamus would not lie. And
the mere fact of non-compliance
with a duty would be sufficient
ground for the award of
mandamus, where the
applicant had been substantially
prejudiced by the respondent’s
procrastination. On the facts of
the instant case, the appellant
had more than satisfied the
demand and refusal criteria to
maintain the application for
mandamus. Indeed, the
conduct of the respondent in
delaying to comply with the
demand of the appellant and
failing to give a direct answer
on the demand, was tantamount to
a refusal. …”
Constructive notice of Refusal
It is a well-accepted principle
of law that refusal to act or do
a thing may be express, but can
also be constructive, in the
form of conduct. A case in point
is Ghana Railway
Administration v. Ansah
(1974) 1 GLR 47. In that case
the plaintiff had obtained
judgment against the defendants
and applied to the
Attorney-General for a fiat, as
required by law, to proceed to
execution. After a month, when
the fiat was not forthcoming,
the plaintiff’s solicitor
reminded the defendants of the
judgment debt. After another
bout of silence on the part of
the defendants, the plaintiff
proceeded to levy execution
against the property of the
defendant who applied for stay
of execution. Edusei J, in
holding (1) stated as follows:
“no execution could proceed
against a statutory corporation
under section 6A (1) of Act 232
as inserted by N.R.C.D. 120, s.
1 unless full steps had been
taken to obtain the
Attorney-General's fiat and
the fiat had either been granted
or refused. The fiat
might be refused either
expressly or by implication.
Express refusal was where the
Attorney-General wrote to the
applicant indicating that he had
refused to issue the fiat,
but where one month had passed
and the Attorney-General had not
issued the fiat or written to
refuse it, as in the instant
case, then it was presumed that
he had impliedly refused it.
…”(e.s)
Similarly, in Republic v.
Lands Commission; Ex parte
Vanderpuye Orgle Estates Ltd
(1998-99) SCGLR 677 at 727,
Acquah JSC (as he then was) held
thus:
“ Indeed, the unreasonable delay
by the Lands Commission in the
way they dealt with the problem
created by themselves makes it
imperative to take legal action
to compel them to sit up to
their public duty. For a
statutory duty must be performed
without unreasonable delay, and
if any such delay occurs,
mandamus may be employed to
enforce the performance of such
duty. Accordingly in R v.
Home Secretary; Ex parte
Phansopkar [1975] QB 603,
mandamus was granted on this
ground against the Home
Secretary, when the Home Office
insisted that a would-be
immigrant, who was legally
entitled to enter England
without let or hindrance, should
wait for over a year in the
queue of applicants for an entry
certificate: see also R v.
Governor of Durham Prison, Ex
parte Singh [1984] 1 All ER
983.” (e.s)
This principle was approved in
the Ex parte Akrofa Krukoko II
case, supra. However at page 178
Dotse JSC said :
“Thus, if … the applicant’s
right has accrued several years
ago, and he had been demanding
performance of that duty and
only recently had a response,
time would begin to run from the
date of the response. Even then,
the type of response received
would determine whether time
should begin to run immediately
or from a reasonable time
thereafter. If the learned
Justices of the Court of Appeal
had critically considered this
demand and refusal criteria and
how it was in issue in the case
before them, they would have
come to a different conclusion.”
Dotse JSC had however earlier
stated at page 177 thus:
“ From the appeal record, it is
clear that the letter dated 6
February 2004 (on page 25 of the
record of appeal) from the lead
counsel for the appellant
herein, Mr. Adumua-Bossman, to
the respondent herein was the
letter that was eventually
replied by the respondent after
so many other failed attempts.
This letter, in my estimation,
sums up the demands of the
appellant that he had repeatedly
made to the respondent. The
reply by the respondent dated 20
February 2004 (which is on page
27 of the record of appeal) is
an acknowledgement. The said
letter cannot be described as a
refusal of the demand of the
appellant, because in it, the
respondent stated thus:
“I am directed by the Research
Committee of the National House
of Chiefs to acknowledge the
receipt of your letter date 6
February 2006 on the above
subject as well as the letters
mentioned therein and to inform
you that the matter is receiving
the consideration of the house.
I am to inform you that the
outcome of the deliberations on
the matter will be communicated
to you as soon as it is
concluded.”
The appellant, thereafter waited
from 20 February 2004 until 30
August 2004, when he applied for
leave for the order of
mandamus. So far as I am
concerned, the period during
which the appellant waited
unsuccessfully for either the
positive or negative response
from the respondent was long
enough to convince him that the
respondent National House of
Chiefs did not intend to give
any further response. The
inability of the respondent to
give any further reply to the
appellant’s demand letter,
coupled with the stance taken by
the respondent during the
pendency of the application in
the High Court (reference pages
63-65 of the record of appeal)
are enough testimony that the
respondent had refused the
demand of the appellant.”
In my humble view there cannot
be two dates of accrual of an
actio pro eadem causa.
Once the refusal of the demand
was ascertained from the conduct
of inaction the actio oritur
and the period for bringing the
mandamus application begun to
run. The subsequent express
communication of that refusal
merely entrenched the refusal
but could not regenerate eadem
actio.
The import of the above cases
goes to show that the law has
long recognized conduct as a
mode of demonstrating an
agreement or refusal to do an
act required by law. That being
the case, could it be said that
the Regional House of Chiefs
communicated their refusal to
forward the applicant’s
documents to the National House
of Chiefs, solely through the
letter dated 16/12/2010?
I think not. The Regional House
of Chiefs had communicated their
refusal to act long before
6/12/2010, by their conduct.
The Chieftaincy Act, 1971 (Act
370), section 14 (3) provides
thus:
“Section 14 – Membership.
(3) As soon as practicable
after any change occurs in the
membership of a Traditional
Council the Council shall notify
the Regional House of Chiefs
thereof which shall in turn
notify the National House of
Chiefs and, subject to the
following subsection, the
National House of Chiefs shall
cause the said Register to be
altered accordingly.” (e.s)
“Practicable” according to the
Encarta English Dictionary means
capable of being carried out or
put into effect.
To put this in proper context,
the Traditional Council is
required, as soon as it is
capable of being done, to
forward the applicant’s
chieftaincy documents to the
Regional House of Chiefs. Exh.
OFM3 shows clearly that the
Traditional Council indeed
forwarded the applicant’s forms
the very day the applicant had
submitted same. It follows then
that the Regional House of
Chiefs was expected to act in
like manner and forward the
applicant’s forms to the
National House of Chiefs as soon
as it was capable of doing so.
In this light, I find it hard to
subscribe to my learned
brother’s view that time began
to run when the refusal to act
was brought to the knowledge of
the applicant by the letter
dated 16/12/2010. The
applicant must be deemed to have
been put on constructive notice
of the refusal by the conduct of
the Regional House of Chiefs.
After at most a month of
waiting, it should have become
apparent to the applicant that a
failure to forward his forms had
taken place and time should be
deemed to have begun to run from
then. In my view, time could
not be said to have been lying
down, waiting for 10 years and
over for the Regional House of
Chiefs to expressly communicate
their refusal. That would set a
new record for compliance with
time limits. It would mean that
applicants can go to sleep on
their rights and then suddenly
awake from their slumber years
after to claim these rights,
merely because there was no
express communication of a
refusal to act. That would be
stretching the time limits to
their breaking point.
For the above reason, the
application for mandamus in the
High Court could have failed as
it was filed out of time, having
been filed more than six months
after the occurrence of the
refusal on the part of the
Regional House of Chiefs. In
saying this I do not, in view of
O. 81 r. 1 of the High Court
(Civil Procedure) Rules, 2004
(C.I. 47) base myself on
jurisdictional error but error
on the face of the record. As
Kaglo J in his ruling took the
view that time under O. 55 r. 3
could only run when the
interested party had actual or
express notice of the refusal of
his demand to forward his
Chieftaincy Declaration Forms to
the National House of Chiefs, he
was clearly in error of law for
the reasons aforegiven in this
Ruling. It stands to reason that
the foundation of that decision
is infected by the said error
and it must therefore be quashed
by certiorari.
Good reason for refusal to act
It must be noted here that
mandamus is a discretionary
remedy. A court may exercise its
discretion to deny the grant,
even more so when it is found
that there was a good reason
behind the refusal to act on the
part of whichever public body
that had the duty to act.
In Republic v. Controller and
Accountant-General, Ex parte
Dizengoff (W. A) Ltd (1974)
1 GLR 337, the court at page 345
held that even if it is found
that the public body had a
statutory duty to perform, an
application for mandamus can be
refused, if the public body had
good cause for refusing to
perform that duty.
Again in Republic v. National
House of Chiefs, Kumasi and
Another, Ex parte Kusi-Apea
(1984-86) 2 GLR 90 C.A., the
appellant had issued a writ of
mandamus to compel the National
House of Chiefs to insert his
name in the Register of Chiefs
when his status as a chief was
still in question. Holding (4)
of the Court’s judgment stated
inter alia that:
“A recourse to mandamus when the
appellant's status was so
dubious and had not been
judicially settled or
statutorily recognised was a
clearly misconceived strategy
and the High Court was therefore
right in refusing the remedy of
an order of mandamus which was a
discretionary remedy
given when an applicant's
entitlement was unquestionable
and the only way in the
circumstance of doing justice to
him.” (e.s) See also Republic
v. Gbi Traditional Council; Ex
parte Abaka VII (1995-96) 1
GLR 702
This court indorsed this view in
The Republic v. National
House of Chiefs, Kumasi, Ex
parte Nii Larbie Mensah IV and
Others J4/37/2010 SC,
delivered on 1/6/2011. This
court’s decision in In re
Oguaa Paramount Stool; Garbrah &
Ors v. Central Regional House of
Chiefs & Haizel (2005-2006)
SCGLR 193 further confirms this
view.
In this case, Kaglo J in his
ruling acknowledges that there
is still a petition pending
before the Eastern Regional
House of Chiefs which relates to
the legitimacy of the
applicant’s enstoolment. In such
circumstances, the Regional
House of Chiefs had good cause
for refusal to forward the
applicant’s name to the National
House of Chiefs, pending the
resolution of that petition. The
courts, particularly in view of
the purposive approach not only
to the interpretation but the
application of statutes, are not
adverse to reasonable
supplements to the literal
provisions of a statute. Thus,
even in constitutional matters,
it has been held in In re the
Election of First President,
Appiah v. Attorney-General
(1970) 2 G&G 530, C.A. that the
Interim Electoral Commissioner
rightly imposed a deposit fee of
500 cedis for candidates for the
presidential election in order
to ward off the intrusion of
frivolous persons even though
there was no constitutional
provision requiring the same.
Again even though this court
laid down in Kwakye v.
Attorney-General (1981) GLR
39 that the jurisdiction of a
court can be invoked
straightaway, as soon as the
cause of action arose or was
threatened this court has also
held in Boyefio v. NTHC
Properties Ltd. (1996-97)
SCGLR 531 that a statutory
provision barring resort to the
High Court pending the
resolution of disputes of title
by the Land Title Registration
Committee, is not violative of
the High Court’s jurisdiction
under article 140 of the 1992
Constitution. Very recently, in
the celebrated decision of this
court in Brown v.
Attorney-General (2010)
SCGLR 183 this court held as per
Holding (2) of the headnote that
even though there is no
constitutional provision to that
effect, Parliament still has the
right to reject the budgetary
estimates of the Audit Service
if the same contain fundamental
errors or are inordinately
excessive.
It is clear therefore that since
Kaglo J in his decision reasoned
that “After all the Registrar of
the Eastern Regional House of
Chiefs in his affidavit in
opposition to the application
for Mandamus has informed the
court that there was a
petition challenging the
enstoolment of the Respondent in
his application for the Order of
Mandamus. But because as I have
held already in this ruling,
petition challenging
installation was not a bar to
forwarding the Chieftaincy
Declaration Forms (C.D. F.) of
the Respondent to the National
House of Chiefs, the court
granted the application”,
that is an error of law on the
face of the record which clearly
deprives the parties concerned
of a legitimate defence to a
mandamus application, earlier
stated supra, and this also
infects the said decision. I
need not further multiply the
reasons for the success of this
application.
Section 27 of the same Act makes
an appeal in a chieftaincy
matter a stay of execution of
the judgment pending the
determination of the appeal,
unless otherwise ordered.
In the construction of a
statute, the entire statute must
be read as a whole to give real
meaning to the Act. Therefore
the spirit or policy of Act 370
must influence the construction
of section 14(3) of the same
Act. While the National House of
Chiefs is required upon
notification by the Regional
House of Chiefs, to alter the
Register of Chiefs, such
alteration cannot be done,
pursuant to section 27, when
there is a pending appeal
involving a chieftaincy case. By
logical reasoning, the Regional
House of Chiefs must stay any
steps towards alteration in the
Register until the appeal has
been determined.
In the case of Republic v.
Akuaku II; Ex parte Chayi II
(1991) 2 GLR 163, the
combined effect of sections
14(3) and 27 were visibly at
work. The facts as set out in
the headnotes provide thus:
“The applicant claimed to be the
chief or Wetsoyi of the
Tekperbiawe Division of the Ada
Traditional Area. The
respondent was the paramount
chief of the said traditional
area and president of the Ada
Traditional Council (A.T.C.).
The applicant’s case was that he
was duly nominated and elected
as chief of Tekperbiawe in
1984. Shortly after his
installation, one A. started
passing himself off as Wetsoyi
of Tekperbiawe. Following an
action by the elders who
installed the applicant, the
judicial committee of the A.T.C.
declared the applicant the
lawful chief of Tekperbiawe and
granted an injunction against A.
from holding himself out as
Wetsoyi. A. and others appealed
to the Greater Accra Regional
House of Chiefs against that
decision. Whilst the appeal
was still pending, the applicant
was in 1987 recognised by the
government as Wetsoyi of
Tekperbiawe by a Gazette notice.
The applicant contending that as
a newly installed and recognised
chief he was entitled to be
invited by the registrar of the
A.T.C. on the instructions of
the respondent to take his seat
in the said council but that the
respondent had failed, neglected
and refused to have him so
invited, applied to the High
Court for an order of mandamus
to compel the respondent to
ensure the assertion of his
rights as a member of the A.T.C.
The respondent resisted the
application on the grounds that
by section 27 of the Chieftaincy
Act, 1971 (Act 370) as amended
by the Chieftaincy (Amendment)
(No. 2) Decree, 1973 (N.R.C.D.
226), an appeal to the National
House of Chiefs or the Regional
House of Chiefs against a final
judgment or order "shall operate
as a stay of execution of the
judgment or order appealed
against... Therefore pending the
outcome of the appeal, he was
precluded from inviting the
applicant to the meetings of the
council.” (e.s)
Holding (1) considered the
effect of section 14 among
others:
“(1) the combined effect of
sections 13, 14 and 16 of the
Chieftaincy Act, 1971 (Act 370)
would seem to place on the
respondent in his capacity as
the president the duty of
summoning members of the Ada
Traditional Council (A.T.C.) to
its meetings, and also notifying
the Greater Accra Regional House
of Chiefs (G.A.R.H.C.) of any
changes that might occur in the
membership of the council.
Accordingly, if the applicant
was qualified to be a member of
the A.T.C. it was the respondent
who should set in motion the
administrative procedures which
would be gone through before the
applicant could exercise his
rights as such member.
Consequently, if the
applicant was without dispute
duly installed as the chief
and he also notified the
respondent as the president of
the A.T.C. of his installation
as such chief of Wetsoyi of
Tekperbiawe, who it was
undisputed should be a member of
the council, then it would be
the duty of the council under
the direction of its president
to notify the G.A.R.H.C. of the
applicant's installation in
accordance with section 14(3) of
Act 370. That duty was
mandatory. Such a
notification would set the
machinery in motion to enable
the National House of Chiefs
amend the national register of
chiefs and thus put the name of
the applicant on it. Therefore
if there was no dispute about
the status of the applicant
and the respondent had refused
to set the machinery in motion,
the applicant would, in those
circumstances, be entitled to
the court's assistance in the
nature of an order of mandamus
to enable him exercise his
rights under Act 370.
Republic v. Volta Regional House
of Chiefs; Ex parte Kanya II
(1975) 1 GLR 448 cited.” (e.s)
Holding (4) then considered the
effect of section 27 of Act 370,
vis-à-vis the requirement to
enter a chief’s name in the
Register:
“(4) There was no doubt that
there was something in the
appeal pending before the
Greater Accra Regional House of
Chiefs to be stayed because an
order of injunction was made
against A, one of the opponents
of the applicant, who had
appealed against that order of
injunction. It was obvious that
by section 27 of Act 370 as
amended, that order was
automatically stayed in the
appeal. The trial judge was
therefore right in refusing the
application, although one would
disagree with his reasons for
the refusal. The applicant
could therefore not act in
respect of the instant
chieftaincy matter until the
appeal pending at the Greater
Accra Regional House of Chiefs
had been determined.”(e.s)
It is clear then, that while the
law imposes a duty on the
Traditional Council and the
Regional House of Chiefs to
ensure the prompt forwarding of
a chief’s forms to the National
House of Chiefs, this process
must stop in its tracks if an
appeal which affects an
applicant’s enstoolment exists.
It stands to reason that the
Register of the National House
of Chiefs must be kept sacred
and free of persons whose
enstoolment might not have been
legitimate. Section 27 ensures
that this sanctity is
safeguarded.
In any case, article 23 of the
1992 Constitution imposes a duty
on administrative bodies and
administrative officials to act
fairly and reasonably. This
constitutional provision must
necessarily overtake any
interpretation of the
chieftaincy registration
provisions of Act 370 which
results in an outcome contrary
to the requirement of fairness
and reasonableness.
For the above reasons, I would
grant this application.
[SGD] W.
A. ATUGUBA
[JUSTICE OF THE SUPREME COURT]
DR. DATE-BAH JSC:
On the 12th January
2011, His Lordship Kaglo J,
sitting in the High Court,
Koforidua, granted an order of
mandamus against the
Registrar of the Eastern Region
House of Chiefs to transmit
forthwith to the National House
of Chiefs the forms that the
First Interested Party in the
present suit had lodged with
him. The Applicant in this
suit, being aggrieved by that
ruling, brought an application
before the same judge for the
order of mandamus to be
set aside. The grounds of this
application were that the order
adversely affected the interests
of his family and himself, but
he had not been given notice of
the application and that it had
not been brought in good faith.
The Applicant contended that the
mandamus application
amounted to deceiving the court
since the applicant for
mandamus was aware that
there was a chieftaincy petition
pending which sought to nullify
the purported enstoolment of the
applicant for mandamus,
namely, the First Interested
Party in the current suit..
Kaglo J refused to set aside the
order of mandamus,
holding that the pendency of a
petition challenging the First
Interested Party’s installation
was not a bar to the
forwarding of his Chieftaincy
Declaration Forms to the
National House of Chiefs.
Having failed to secure redress
before the High Court, the
Applicant has now applied to
this Court to invoke its
supervisory jurisdiction to
quash the order of mandamus
granted by Kaglo J. The
original Applicant died before
the hearing of this application
by this Court and was
substituted with the current
Applicant by an order of this
Court granted on 20th
May 2011.
A significant fact in this case
is that the First Interested
Party in this case submitted his
Chieftanincy Declaration Forms
to his Traditional Council as
far back as 1999, more than 10
years before the date of the
grant of the order of
mandamus.
It is to be remembered that the
suit before us is not an appeal
but an application for
certiorari. Accordingly,
for the Applicant to succeed, he
needs to demonstrate more than a
mere error of law
simpliciter. The principles
governing this Court’s approach
to such applications were
summarised as follows in
Republic v High Court
(Commercial Division) Ex Parte
The Trust Bank (Ampomah Photo
Lab and 3 ors, Interested
Parties) [2009] SCGLR 164,
at p.169-171:
“The current law on when the
prerogative writs will be
available from the Supreme Court
to supervise the superior courts
in respect of their errors of
law was restated and then
fine-tuned in the Republic v
High Court Accra, Ex Parte CHRAJ
[2003-2004] SCGLR 1 and
Republic v Court of Appeal,
Ex Parte Tsatsu Tsikata
[2005-2006] SCGLR 612,
respectively. In my view, the
combined effect of these two
authorities results in a
statement of the law which is
desirable and should be
re-affirmed. This Court should
endeavour not to backslide into
excessive supervisory
intervention over the High Court
in relation to its errors of
law. Appeals are better suited
for resolving errors of law. In
the Ex Parte CHRAJ case,
this Court, speaking through me,
sought to reset the clock on
this aspect of the law (as
stated at pages 345-346) as
follows:
“The Ruling of this Court in
this case, it is hoped, provides
a response to the above
invitation to restate the law on
this matter. The restatement of
the law may be summarised as
follows: where the High Court
(or for that matter the Court of
Appeal) makes a
non-jurisdictional error of law
which is not patent on the face
of the record (within the
meaning already discussed), the
avenue for redress open to an
aggrieved party is an appeal,
not judicial review. In this
regard, an error of law made by
the High Court or the Court of
Appeal is not to be regarded as
taking the judge outside the
court’s jurisdiction, unless the
court has acted ultra vires the
Constitution or an express
statutory restriction validly
imposed on it. To the extent
that this restatement of the law
is inconsistent with any
previous decision of this
Supreme Court, this Court should
be regarded as departing from
its previous decision or
decisions concerned, pursuant to
Article 129(3) of the 1992
Constitution. Any previous
decisions of other courts
inconsistent with this
restatement are overruled.”
In the the Ex Parte Tsatsu
Tsikata case, Wood JSC, as
she then was, said (at p. 619 of
the Report):
“The clear thinking of this
court is that, our supervisory
jurisdiction under article 132
of the 1992 Constitution, should
be exercised only in those
manifestly plain and obvious
cases, where there are patent
errors of law on the face of the
record, which errors either go
to jurisdiction or are so plain
as to make the impugned decision
a complete nullity. It stands
to reason then, that the
error(s) of law alleged must be
fundamental, substantial,
material, grave or so serious as
to go to the root of the
matter. The error of law must
be one on which the decision
depends. A minor, trifling,
inconsequential or unimportant
error, or for that matter an
error which does not go to the
core or root of the decision
complained of; or stated
differently, on which the
decision does not turn, would
not attract the court’s
supervisory jurisdiction.”
The combined effect of these two
authorities, it seems to me, is
that even where a High Court
makes a non-jurisdictional error
which is patent on the face of
the record, it will not be a
ground for the exercise of the
supervisory jurisdiction of this
court unless the error is
fundamental. Only fundamental
non-jurisdictional error can
found the exercise of this
court’s supervisory
jurisdiction. “
Mandamus
lies to compel a respondent to
perform a specified duty in
public law. As Lord Diplock
said in the celebrated case of
Council of Civil Service
Unions v Minister for the Civil
Service [1985] AC 374 at p.
409, in relation to judicial
review in general:
“For a decision to be
susceptible to judicial review
the decision-maker must be
empowered by public law (and not
merely, as in arbitration, by
agreement between private
parties) to take decisions that,
if validly made, will lead to
administrative action or
abstention from action by an
authority endowed by law with
executive powers which have one
or another of the consequences”
earlier mentioned by his
Lordship.
On the facts of this case, the
duty in public law which is
sought to be enforced is that of
the Registrar of the Eastern
Region House of Chiefs, the
Second Interested Party in this
case, under the Chieftaincy Act,
1971 (Act 370) to transmit
Chieftaincy Declaration Forms to
the National House of Chiefs.
Section 14(3) of the Act
provides that:
“As soon as practicable after a
change occurs in the membership
of a traditional council, the
council shall notify the
Regional House of Chiefs which
shall in turn notify the
National House of Chiefs and,
subject to subsection (4), the
National House of Chiefs shall
cause the Register to be altered
accordingly.”
Anterkyi J., sitting at the High
Court, Ho, held, in Republic
v Volta Region House of Chiefs,
Ex parte Kanya II [1975] 1
GLR 448, that in consequence of
this provision and others in the
Chieftaincy Act 1971, the
Regional House of Chiefs was
under a statutory obligation to
forward a chief’s registration
details to the National House of
Chiefs. In the current case,
Kaglo J similarly held, as
already stated above, that the
Registrar of the Eastern Region
House of Chiefs owed a duty to
transmit the First Interested
Party’s forms to the National
House of Chiefs.
The grounds on which the
Applicant has based his
challenge of the order of
mandamus by the High Court
are:
1.
Lack of jurisdiction; and
2.
Error apparent on the face of
the record.
The Applicant’s submission on
the High Court’s lack of
jurisdiction is based on Order
55, r.3(1) of the High Court
(Civil Procedure) Rules, which
states that:
“(1) An application for
judicial review shall be made
not later than six months from
the date of the occurrence of
the event giving grounds for
making the application.”
The Applicant contends that
since the First Interested
Party, through his Traditional
Council, submitted his
Chieftaincy Declaration Forms on
7th June, 1999 to the
Registrar of the Regional House
of Chiefs who failed to act as
required of him, the filing of
his application for mandamus
on 7th January 2011
was eleven years and one month
out of time. The High Court,
accordingly, lacked jurisdiction
to entertain the application.
The Applicant cites Republic
v National House of Chiefs &
Ors, Ex Parte Faibil III & Ors
[1984-86] 2 GLR 731 to
buttress his contention. In
this case, Wiredu JA (as he then
was) held that the High Court
(Civil Procedure) Rules, 1954
(LN 140A) had set down a
six-month time limit within
which an application for
mandamus could be brought.
Accordingly, an application
brought seven years after the
events in question, without an
extension of time, was
statutorily out of time and
could not be entertained.
In Republic v National House
of Chiefs, Ex Parte Krukoko II
[2010] SCGLR 134, I doubted the
interpretation put by the
learned judge on the rule of
court in question and said (at
p. 163 et seq.):
“In any case, even if the
Faibil case were decided
after 1993, this Court would
have the authority to overrule
it and we hereby do so. Order
59 Rule 3 of LN 140A should not
have been interpreted to apply
to applications for mandamus.
Moreover, without necessarily
here determining this point on
time limits for mandamus
applications under the 1954
Rules conclusively, even if
there were a rule of practice or
of the common law laying down a
time limit, that time limit
should run from the date of
refusal to comply with a demand,
as I will explain next in this
judgment.
The final principle of law that
this Court needs to examine
relates to the contention by the
applicant/appellant in his
Statement of Case that the
prerogative writ of mandamus
depends on demand and refusal:
that is, a demand by an
aggrieved applicant on an
official to perform a public
duty owed to that applicant and
a distinct refusal or reluctance
to comply with the applicant’s
demand. If this Court confirms
that a demand and refusal are
generally preconditions to the
invocation of mandamus,
this would have an impact on the
time limit within which an
application for mandamus
may be made. Time would begin
to run not from the date of
occurrence of the act or
omission complained of, but
rather from the date of refusal
to comply with the demand made
by the aggrieved applicant in
relation to that act or
omission.
The facts of the leading case of
Republic v National House of
Chiefs and Others; Ex parte
Faibil III and Others
[1984-86] 2 GLR 731 illustrate
what is at stake. In this case,
two Divisional Chiefs from the
Wasa Fiase Traditional Area in
the Western Region applied to
the High Court, Accra, for
mandamus to remove the name
of their Omanhene from the
National Register of Chiefs.
Their application was brought in
1982, but their complaint
related to acts that took place
in 1975. Their Omanhene had
been enstooled in 1975. The
Western Region House of Chiefs
had transmitted a report of his
enstoolment to the National
House of Chiefs, together with a
warning letter that a petition
had been filed against his
enstoolment and installation by
the Queenmother of the
Traditional Area. The
Omanhene’s enstoolment, in spite
of the warning letter, was
published in the Local
Government Bulletin of June
1975. The applicants in the
case had supported the
enstoolment of the Omanhene, in
their capacity as kingmakers and
divisional chiefs of the
traditional area. Their
application for mandamus
in 1982 was based on the fact
the Omanhene’s enstoolment was
disputed and therefore should
not have been Gazetted.
There was no evidence that the
applicants made any demand for
the removal of the Omanhene from
the Register and that this
demand had been refused.
Although, the trial court judge
granted the applicants the
mandamus they sought, the
Court of Appeal allowed an
appeal against his decision.
The Court did not however advert
to the issue of demand and
refusal, when it decided to
dismiss their application.
In contrast, in Republic v
Chieftaincy Secretariat & Anor;
Ex Parte Adansi Traditional
Council [1968] GLR 736,
Annan J. , as he then was,
stated the law as follows (at p.
742):
“Having regard to the clear
language of section 1 (2) (a)
and in the light of exhibit 4, I
am compelled to say that there
has been no positive refusal or
conduct amounting to a refusal,
on the part of the second
respondent to perform the duty
cast on him by section 1 (2) (a)
to take a decision one way or
the other. It is clear law that
the court will not order
mandamus to go where there has
been no demand and refusal to
perform the public duty enjoined
by statute.”
To Annan J, therefore, a demand
and refusal were preconditions
to the grant of mandamus.
Similarly, Asare Korang JA in
the first judgment of the
Court of Appeal in this case of
The Republic v National House
of Chiefs; Ex Parte Odeneho A.
Krukoko II (Osagyefo Kwamena
Enimil VI, Interested Party),
a decision of the Court of
Appeal dated 11th
November, 2005 (at p. 131 of the
Record) explained his
understanding of the law on
mandamus as follows:
“In this appeal, I would
summaries the purport and scope
of the reliefs sought by the
Respondent and the Interested
Party in this manner:
“Is Mandamus a remedy available
to the Applicant in all the
circumstances of this case?”
What then are circumstances?
Before answering this question,
I would first grant that since
Mandamus requires as a
precondition a demand for the
performance of a duty and an
unequivocal refusal of one party
to not comply, the ruling of
Abrahams J. cannot be regarded
as Res Judicata since he did not
embark on an enquiry as to
whether there was a demand and a
refusal, that is to say, an
enquiry on the merits.”
This statement of the law I
consider sound.”
This passage from the Ex
Parte Krukoko case
demonstrates that, as a general
rule, admittedly with some
exceptions, mandamus lies
with effect from the date of
communication of the refusal by
an official or public body to
carry out a demand for the
discharge of his or its public
duty. On the facts of the
current case, what is
significant is not, therefore,
the date on which the First
Interested Party submitted his
Chieftaincy Declaration Forms,
but when refusal by the
Registrar to transmit them to
the National House of Chiefs
came to his knowledge.
On this issue, the First
Interested Party in his
Affidavit in Opposition to this
motion deposed to the following
facts: after his installation,
he caused to be submitted to his
Traditional Council, on 7th
June 1999, the requisite forms
and fees for transmission to the
Regional House of Chiefs and
through it to the National House
of Chiefs. The said forms were
duly forwarded to the Regional
House of Chiefs on the same
day. After waiting for a very
long time to receive his copy of
the Gazette notification, he
caused his lawyers to write to
his Traditional Council to
inquire about the status of his
documents. The Registrar of his
Traditional Council informed him
by letter addressed to his
lawyers that he had duly
transmitted the First Interested
Party’s forms to the Regional
House of Chiefs. His lawyers
accordingly wrote to the Second
Interested Party to inquire
about the status of his
documents. The Second
Interested Party by a letter
dated 16th December
2010 informed him for the first
time of the former’s decision
not to transmit the documents to
the National House of Chiefs.
The First Interested Party
deposed to his surprise that
such a decision had been taken
by the Second Interested Party
without it being communicated to
either his Traditional Council
or to him. No reasons having
been stated in the letter of 16th
December for this decision, he
instructed his solicitors to
apply for an order of
mandamus to compel the
transmission of his forms to the
National House of Chiefs.
In his Statement of Case in
support of his Affidavit in
Opposition to this application,
the First Interested Party
points to the fact that since
the decision in Ex Parte
Faibil III case (supra),
the language governing time
limits in applications for
mandamus under the High
Court Rules has changed from
“the date of the proceeding”
sought to be challenged (under
Order 59 of the repealed High
Court (Civil Procedure)
Rules, 1954) to the “date of the
occurrence of the event giving
grounds for making the
application” in the current
Order 55 r 3(1) of the High
Court (Civil Procedure) Rules
2004 (CI 47). He contends
that, on the basis of the new
language, the time for the
filing of a mandamus
application does not begin to
run from when the impugned
decision is made, but from when
the relevant party has notice of
the decision.
I think that this is a
reasonable interpretation to put
on the language of Order 55 rule
3(1). Thus I hold that, until
the Second Interested Party’s
letter of 16th
December 2010, the event giving
grounds for the making of the
application for mandamus
had not yet occurred.
Accordingly, the mandamus
application of the First
Interested Party was not made
out of time. It follows, then,
that the Applicant’s challenge
to the jurisdiction of the Kaglo
J., the learned High Court
Judge, is flawed and it is
dismissed.
What needs to be considered
next, though, is whether the
excessive delay by the First
Interested Party before
inquiring about the fate of his
forms is a factor that the
learned High Court Judge should
have considered before
exercising his discretion in his
favour. This Court has always
stressed that mandamus
and the other prerogative orders
are discretionary and that among
the factors that may be
considered in denying the remedy
is the tardiness of the
applicant. However, what is
before this Court is not an
application for mandamus,
but rather for certiorari
directed at the outcome of the
exercise by the learned High
Court Judge of his discretion
whether or not to grant the
order of mandamus. This
Court cannot, and should not,
quash that order merely because
it would have exercised that
discretion differently. A
higher standard is required.
That order can only be quashed,
as already explained above, if
the High Court judge had no
jurisdiction, or if he committed
a fundamental error of law
patent on the face of the
record.
I do not consider that the
learned High Court judge’s
failure to advert to the
tardiness of the First
Interested Party in inquiring
about the fate of his forms
comes within the category of a
fundamental error of law on the
face of the record. Indeed, the
Applicant did not make any such
argument. It was rather the
Court, suo motu, which
pressed the Applicant on the
significance of the tardiness in
this regard.
However, in fairness, it is
acknowledged that the Applicant
did formulate some arguments
relating to the First Interested
Party’s excessive delay, which
were, however, not expressed to
be based on either of the
stipulated grounds of the
application. In his Statement
of Case, he had this passage:
“Respectfully, I also wish to
state that the learned judge
failed or ignored the guidelines
and warnings given to judges
called upon to issue prerogative
writs contained in a long line
of cases. It has often been
advised by this Court that
mandamus being a discretionary
remedy, a judge should consider
the equities involved and if
necessary make some
inquisition. In the case of
REPUBLIC V NATIONAL HOUSE OF
CHIEFS AND OTHERS, EX PARTE
FAIBIL III AND OTHERS [1984-86]
2 GLT 731-762 holding 3 states
as follows:
(3)The trial judge had failed to
consider the discretionary
nature of the application for
mandamus. He ought to have
weighed the equities in the case
before deciding either to
exercise the court’s discretion
in favour of granting or
refusing the application. Two
matters militated against the
exercise of that discretion:
The first was the tardy nature
of the application and second
the bad faith shown by the
conduct of the respondents.”
The Supreme Court in In Re
Oguaa Paramount Stool, Garbrah v
Central Regional House of Chiefs
[2005-2006] SCGLR 193 also
stressed the discretionary
nature of mandamus and
the need to weigh up the
equities of a case, including
tardiness. Whilst the
principle of law articulated
above in the Ex Parte Faibil
III and the In Re Oguaa
Paramount Stool cases (supra)
is correct, it should be
stressed that that case was an
appeal from the High Court, and
not, as here, an application to
invoke the supervisory
jurisdiction of this Court. A
lower court’s failure to advert
to and apply the right principle
of law in exercising a
discretion may serve as a
successful ground of appeal for
its decision to be overturned on
appeal, but that same ground may
not necessarily qualify as the
kind of fundamental error on the
face of the record that is
necessary to invoke successfully
this Court’s supervisory
jurisdiction, apart from cases
of lack of jurisdiction. On the
facts of this case, I do not
consider that the learned High
Court judge’s failure to
indicate that he had taken the
First Interested Party’s
tardiness into account in
exercising his discretion
amounted to a sufficient ground
for the quashing of his decision
by certiorari.
Besides his ground on the High
Court’s lack of jurisdiction,
which has been held above not to
be justified, the Applicant also
made an argument that the
learned judge had made an error
of law apparent on the face of
the record. However, the
contention was merely a
re-packaging of the first ground
as follows in his Statement of
Case:
“The second ground for this
application is that the error of
law complained of is apparent on
the face of the record. In the
case of REPUBLIC VRS COURT OF
APPEAL, ACCRA; EX PARTE TSATSU
TSIKATA [2005-2006] SCGLR 612
your Lordships gave guidelines
as to the meaning of errors on
the face of the record which
would attract the intervention
of judicial review.
Respectfully, I submit that from
the 1st interested
party’s own affidavit and his
supporting documents vis a vis
the ruling of the court granting
the application, it is apparent
that the application had been
brought over 11 years after the
statutory period required and
therefore the court ought to
have declined the prayer.”
This argument is no different
from the one that I rejected
above in connection with the
ground on lack of
jurisdiction. It is
accordingly also dismissed.
Finally, I will deal with the
Applicant’s contention that the
rules of natural justice were
breached in this case. Apart
from the two express grounds on
which he based his Statement of
Case, he also makes the
following argument in his
Statement of Case:
“My Lords we also wish to state
that the court breached the
rules of natural justice in not
giving an opportunity to be
heard by the applicant knowing
that the order would affect
him. From the ruling Exhibit
KYA 3 the judge was informed in
open court that a petition had
been issued against the
enstoolment of the 1st
interested party yet the court
ignored that and peremptorily
granted the order. That clearly
is in breach of or (sic)
Order 55 rule 5 of CI 47 which
places a mandatory obligation on
a court to direct service of any
such motion on any person who
may be directly affected by the
motion.”
This argument is misconceived
and was adequately dealt with in
the learned High Court Judge’s
ruling on the Applicant’s motion
to set aside the order of
mandamus. The obligation of
the Regional House of Chiefs
under the Chieftaincy Act, 1971
to transmit Chieftaincy
Declaration Forms received from
a Traditional Council to the
National House of Chiefs is a
public duty which is quite
distinct from its obligations
under the parallel statutory and
constitutional track for dealing
with chieftaincy disputes and
therefore the two tracks need to
be kept separate. This view of
the law is supported by In Re
Oguaa Paramount Stool, Garbrah v
Central Regional House of Chiefs
[2005-2006] SCGLR 193, where
the Supreme Court held that the
act of registration or
non-registration of a chief’s
name by the National House of
Chiefs is an administrative act
of the House, distinct from its
judicial acts. To insist on a
mandamus application
relating to the duty to transmit
Chieftaincy Declaration Forms to
the National House of Chiefs
being served on the parties to a
chieftaincy dispute affecting
the declarant chief would lead
to the track of public duty
under the Chieftaincy Act 1971
being intertwined with the track
of the judicial resolution of
chieftaincy disputes, resulting
in a complicated legal situation
which would be difficult to
manage. I do not think that it
was the intention of the
Chieftaincy Act 1971 (Act 370)
to inject chieftaincy disputes
into prerogative writ
applications. The learned High
Court judge was therefore right
to hold in his Ruling of 30th
March 2011, refusing to set
aside the earlier order of
mandamus that he had made,
that a petition challenging an
installation of a chief is not a
bar to forwarding that chief’s
Chieftaincy Declaration Forms to
the National House of Chiefs.
To my mind, there was no
obligation to serve the
mandamus application on the
Applicant because he was not, in
terms of the civil procedure
rules, when purposively
construed, an interested party
in that application.
Accordingly, the audi alteram
partem is not applicable to
the facts of this case. If the
Applicant’s chieftaincy petition
succeeded later, whatever had
been entered in the register by
the National House of Chiefs
would be undone by the House,
pursuant to its powers under the
Chieftaincy Act.
For the reasons stated above, I
would dismiss the application to
invoke the supervisory
jurisdiction of this Court to
quash the order of mandamus
granted by Kaglo J. on 12th
December, 2010.
[SGD] DR. S. K.
DATE-BAH
[JUSTICE OF THE SUPREME COURT]
ANSAH JSC:
I had the opportunity to read
before hand the opinions just
delivered by my esteemed
brethren and agreed with the
facts as read by them. I most
respectfully concur with the
opinion of Atuguba JSC, and do
hereby state in brief my reasons
for doing so.
In this application for judicial
review of the order of the High
Court, Koforidua, coram Kaglo J,
one of the grounds proffered was
that the application (for
mandamus) was brought outside
the six month time limit within
which the application should
have been made, as ordained by
Order 55, 3 (1) of the High
Court (Civil Procedure) Rules,
2004, C.I. 47, and that by the
failure to comply with the time
limited for such applications
the grant was thereby vitiated;
one of the basic issues was
whether or not the conditions
for the grant was satisfied. The
condition in question is the one
constituted by a ‘refusal’
A reading of the statement of
case by the applicant reveals
that the applicant was of the
firm belief that there was a
refusal to perform a public duty
thus warranting the application
for mandamus, which in turn
vitiated the ruling by the court
to grant the order of mandamus
or refuse to set it aside later
by the court. That in turn
tended to rob the court of
jurisdiction to deal with the
application
In their learned treatise
‘Administrative Law’, Eighth
Edition by Sir
William Wade and Christopher
Forsyth, the learned authors
wrote in treating the
topic ‘Mandamus’ under the
‘Prerogative remedies’ at page
615 sub title ‘requirement of
demand and refusal’, that
“It has been said to be an
imperative rule that an
applicant for mandamus must have
first made an express demand to
the defaulting authority,
calling upon it to perform its
duty and that the authority must
have refused. But these
formalities are usually
fulfilled by the conduct of the
parties prior to the
application, and refusal to
perform the duty is readily
implied from conduct, see the
State (Modern Homes Ltd) v
Dublin Corporation 1953 IR 202”.
The authority went on to state
that:
“The court does not insist on
this condition where it is
unsuitable. As Channel J said:
The requirement 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 is a very useful one,
but it cannot be applicable to
all possible cases. Obviously it
cannot apply where a person has
by inadvertence omitted to do
some act which he has a duty to
do and where the time within
which he can do it has passed.”
See R v Hunley Revising
Barrister [1912] 3 KB 518, at
531.
The most important consideration
is that a refusal may
legitimately be inferred from
the conduct of the person who
has to perform the legal duty.
As the facts of this case show
there was a time lapse of a
whole ten years (from 1999 to
sometime in 2010) within which
the Registrar maintained a total
inactivity or silence
constituted by neither refusing
nor transmitting the CDF forms
onward to the National House of
Chiefs for registration. In
those circumstances, it will be
reasonable to infer a refusal to
comply with the duty to transmit
the forms in discharge of the
legal duty to do so, from his
conduct.
My views in this wise concur
with those of Atuguba JSC and I
am also in agreement with his
conclusion that the application
for certiorari to quash the
decision of the High Court
should be granted for the
reasons given.
[SGD]
J. ANSAH
[JUSTICE OF THE SUPREME COURT]
BONNIE J.S.C.
I have had benefit of reading
the opinions of my eminent
brothers Atuguba,JSC and Dr.
Date-Bah, JSC. I wish to
associate myself with the
reasons given by the president
Atuguba, JSC in his opinion and
say that the application should
be granted.
[SGD]
P. BAFFOE-BONNIE
[JUSTICE OF THE SUPREME COURT]
AKOTO- BAMFO, (MRS.) J.S.C.
I have read the opportunity of
reading beforehand the opinions
delivered by my esteemed
brothers, Atuguba and Prof.
Date-Bah JJSC.
I am in agreement with the
opinion of my brother Atuguba
JSC and would accordingly grant
the application.
[SGD] V. AKOTO –
BAMFO [MRS.]
[JUSTICE OF THE SUPREME
COURT]
COUNSEL;
K. AMOAKO ADJEI FOR THE
APPLICANT.
ACE ANKOMAH FOR 1ST
INTERESTED PARTY. |
