Chieftaincy - Traditional
Council - Judicial committee
- Whether there
was no meeting of the Asogli
Traditional Council to appoint
the three-member judicial
committee that heard their case
- Whether every judicial
committee appointed to determine
a chieftaincy matter must or
should be appointed by the
Council as a whole sitting at a
meeting for that purpose -
HEADNOTES
The facts that gave rise to this
appeal are quite straightforward
and not in dispute whatsoever
between the parties. On 29th March
2011, the interested parties/
respondents herein summoned the
appellants herein before the
Asogli Traditional Council
seeking certain declarations
which fell within the
jurisdiction of the Council. A
judicial committee was put in
place to determine the matter
between the parties. On the 9th of
May 2013, the judicial committee
that heard the matter delivered
judgment in favour of the
interested parties/respondents.
The appellants appealed against
the decision of the judicial
committee to the Volta Regional
House of Chiefs, Ho but their
appeal was struck-out by the
judicial committee of the
Regional House as having been
filed out of time. Appellants
thereafter, filed a judicial
review application before the
High Court, Ho, pursuant to an
extension of time granted them
by the trial High Court, praying
for an order of certiorari to
quash the decision of the
judicial committee of the Asogli
Traditional Council -
HELD :-
in the appeal court, “no judgment is
upset on the ground that it is
ratio erroneous if there is
another sound basis on which it
can be supported”. We
accordingly allow the appeal and
restore the decision of the
trial High Court though on
reasons different from what the
trial court relied on.
STATUTES REFERRED TO IN JUDGMENT
Chieftaincy Act, [Act
759].
High Court Civil Procedure
Rules [C.I. 47]
1992 Constitution article
132
L.I. 798. section 3
CASES REFERRED TO IN JUDGMENT
ATTORNEY-GENERAL v FAROE
ATLANTIC [2005-2006] SCGLR 271
OWUSU-DOMENA v AMOAH
[2015-2016] 1 SCGLR 790
REPUBLIC v HIGH COURT,
CAPE COAST; EX-PARTE GHANA COCOA
BOARD (APOTOI III – INTERESTED
PARTY) [2009] SCGLR 603
AKUFFO ADDO v QUARSHIE
IDUN [1968] GLR 667
THE REPUBLIC v HIGH COURT,
DENU; EX-PARTE KUMAPLEY
[2003-2004] 2 SCGLR 719
REPUBLIC v BUEM
TRADITIONAL COUNCIL; EX-PARTE
ISUKU II [1991] 1 GLR 455
THE REPUBLIC v KRACHI
TRADITIONAL COUNCIL; EX-PARTE
ANANE [1975] 1 GLR 276
ABAKAH v AMBRADU [1963] 1
GLR 456 @ 464 - SC; SERAPHIM v
AMUA-SAKYI [1971] 2 GLR 132 CA
DUAH v DEBRA [1967] GLR
456 - CA.
BOOKS REFERRED TO IN JUDGMENT
Chieftaincy bulletin
DELIVERING THE LEADING
JUDGMENT
APPAU, JSC:-
COUNSEL.
HUMPHREY KWADZO MODZAKAH WITH
HIM NII BI AYI BONTE FOR THE
DEFENDANTS/
APPLICANTS/RESPONDENTS/
APPELLANTS
NELSON MAWUTOR KPORHA FOR
THE INTERESTED
PARTIES/RESPONDENTS.
ญญญญญญญญญญญ
APPAU, JSC:-
The facts that gave rise
to this appeal are quite
straightforward and not in
dispute whatsoever between the
parties. On 29th
March 2011, the interested
parties/ respondents herein
summoned the appellants herein
before the Asogli Traditional
Council seeking certain
declarations which fell within
the jurisdiction of the Council.
A judicial committee was put in
place to determine the matter
between the parties. On the 9th
of May 2013, the judicial
committee that heard the matter
delivered judgment in favour of
the interested
parties/respondents. The
appellants appealed against the
decision of the judicial
committee to the Volta Regional
House of Chiefs, Ho but their
appeal was struck-out by the
judicial committee of the
Regional House as having been
filed out of time. Appellants
thereafter, filed a judicial
review application before the
High Court, Ho, pursuant to an
extension of time granted them
by the trial High Court, praying
for an order of certiorari to
quash the decision of the
judicial committee of the Asogli
Traditional Council on the
following grounds:
1.
The Chiefs who attended the
meeting of the Asogli
Traditional Council on 22nd
January 2012 at which meeting
the pool of eleven (11) chiefs
were nominated by the Council
from which the members of the
Judicial Committee of the
Council that sat on the parties
case were selected or appointed
did not have their names
registered or entered in the
Chieftaincy bulletin to clothe
them with authority to so act.
2.
The meeting at which the pool of
chiefs was selected from which
the judicial committee members
were appointed, lacked the
requisite forum of more than
half the total membership of the
Council at the time it purported
to selected the pool of chiefs.
3.
The judicial committee exceeded
its jurisdiction when it
appointed a Stool Father for the
Eho Stool when there was no
claim before the Judicial
Committee for the appointment of
a Stool Father.
In their submissions
before the trial High Court, the
appellants did not limit their
arguments to the grounds
re-called above. They also
canvassed a legal point that
there was no meeting of the
Asogli Traditional Council to
appoint the three-member
judicial committee that heard
their case. The judicial
committee was therefore not
appointed by the Asogli
Traditional Council in
compliance with the provisions
of section 29 (2) of the
Chieftaincy Act, [Act 759]. The
trial High Court did not
consider this last argument in
its judgment but nevertheless
granted the judicial review
application and quashed the
decision of the judicial
committee of the Asogli
Traditional Council. The reason
for granting the application was
that the chiefs who constituted
the judicial committee did not
have their names gazetted and
registered in the Register of
the National House of Chiefs.
The judicial committee was
therefore not properly
constituted to hear the matter.
The interested
parties/respondents appealed
against the decision of the
trial High Court to the Court of
Appeal on two grounds and
succeeded. The two grounds of
appeal were that: 1. The learned
trial judge erred in holding
that the members of the judicial
committee of the Asogli
Traditional Council which heard
and determined the chieftaincy
dispute between the parties did
not have their names gazetted
and registered in the Register
of the National House of Chiefs
and 2. The learned trial judge
erred in relying on exhibits C,
D and D1 to determine the
gazetting and registration
requirement of the members of
the said judicial committee. The
decision of the trial High Court
was accordingly set aside
wherein the Court of Appeal
proceeded to dismiss the
Certiorari application as having
no merits whatsoever.
My Lords, it is this
decision of the Court of Appeal
which declared appellants’
certiorari application
unmeritorious that has brought
the parties further to this
Court. The appellants contested
only one ground of appeal and it
is the omnibus or general ground
that the judgment of the Court
of Appeal was against the weight
of evidence. Interestingly the
appellants canvassed only one
legal point in their three-page
statement of case filed on 8th
March 2017 in support of this
general ground. The first page
of appellants’ statement of case
filed on 8th March
2017 correctly captures the
central issue that this Court
has been called upon to
determine. It is therefore
deserving that I quote in full
this part of appellant’s
statement of case.
“…this is an appeal against the
judgment of the Court of Appeal,
Koforidua dated 21st
July, 2015, which the appellants
contend was erroneous since it
was based on a misconstruction
of the jurisdictional section 29
(2) of the Chieftaincy Act, 2008
[Act 759].
The central issue in the Court
of Appeal was the constitution
of the Judicial Committee of the
Asogli Traditional Council which
was to try the cause or matter
affecting chieftaincy between
the instant appellants and the
respondents.
The appellants contended in the
Court of Appeal that: section 29
(2), on its true construction
required that the Traditional
Council should itself directly
appoint 3 or 5 chiefs from among
its membership to try any
particular cause or matter
pending before it. Contrariwise,
the respondents contended that:
it was enough under section 29
(2) for the Traditional Council
to appoint from its membership,
a general pool or group from
which a trial judicial committee
of 3 or 5 chiefs would be
selected to try any pending
cause or matter…”
I do not find anything
wrong with the appellants
canvassing only one legal point
in this appeal when their only
ground of appeal was the omnibus
or general ground that the
judgment was against the weight
of evidence. We have settled on
this issue in our judgments in
ATTORNEY-GENERAL v FAROE
ATLANTIC [2005-2006] SCGLR 271
and OWUSU-DOMENA v AMOAH
[2015-2016] 1 SCGLR 790
that; “when an appeal is based
on the omnibus ground that the
judgment is against the weight
of evidence, both factual and
legal arguments could be made…”
In the Faroe Atlantic case
(supra) Wood, JSC (as she then
was) expressed her opinion, and
correctly so, in the following
words: “It seems to me that in
strictness this common ground of
appeal is one of law, for in
essence, what it means, inter
alia, is that, having regards to
the facts available, the
conclusion reached, which
invariably is the legal result
drawn from the concluded facts,
is incorrect. The general ground
of appeal is therefore not
limited exclusively to issues of
fact. Legal issues are within
its purview”.
As a matter of fact, there
is no divergence of opinion on
the issues of fact in the appeal
before us. I agree with the
appellant that the central issue
that surfaces for determination
by this Court is the
construction of section 29 (2)
of Act 759]. How is a judicial
committee of a Traditional
Council constituted as provided
under section 29 (2) of Act 759?
Is it appropriate for the
Traditional Council to meet and
appoint a pool or body of chiefs
as those qualified to sit as
judicial committee members from
which either the President of
the Council acting alone or the
Registrar of the Council or both
the President and the Registrar
of the Council could select
three (3) or five (5) chiefs to
constitute a judicial committee
anytime the need arises for a
judicial committee to be
appointed, as happened in this
case? Or, does the law envisage
that every judicial committee
appointed to determine a
chieftaincy matter must or
should be appointed by the
Council as a whole sitting at a
meeting for that purpose?
In its judgment, the Court
of Appeal concluded that there
was no evidence on record to
support the trial judge’s
conclusion that members of the
judicial committee of the Asogli
Traditional Council who sat on
the parties’ case did not have
their names gazetted or
registered in the Chieftaincy
Bulletin and therefore could not
perform any statutory function
like sitting as judicial
committee members. According to
the Court of Appeal, the
Exhibits that the trial court
relied on to come to that
conclusion did not say that the
three chiefs who constituted the
judicial committee did not have
their names registered in the
Chieftaincy Bulletin or the
National House of Chiefs so the
trial court erred in granting
the certiorari application.
After allowing the appeal on the
above note, the Court of Appeal
went obiter to dilate on who a
chief is under Act 759 and a
chief who qualifies to perform
statutory functions under the
Act. The Court of Appeal again
expounded on the grounds upon
which certiorari would lie and
why it would not lie in this
case.
I do not begrudge the
Court of Appeal on the reasons
it advanced in allowing the
appeal by setting aside the
quashing orders of the trial
High Court. The Court of Appeal
was right in what it said as
clearly there was no evidence to
support the fact that the three
chiefs who constituted the
judicial committee in question
did not have their names
gazetted in the Chieftaincy
Bulletin or registered in the
National Register of Chiefs. But
the Court of Appeal missed one
very important point that was
prominent in the arguments
canvassed by the appellants
herein (then respondents before
them) in both their submissions
before the High Court and the
Court of Appeal as the records
clearly show. Aside of the
arguments that the judicial
committee members did not have
their names registered in the
Chieftaincy Bulletin, which the
Court of Appeal relied on to
allow the appeal and to dismiss
the certiorari application
because it was not supported by
the evidence on record, the
appellants herein again argued
strongly in their submissions
before the Court of Appeal that
the judicial committee that sat
on the chieftaincy matter
between the parties was wrongly
constituted because it was not
appointed by the Traditional
Council as a whole. It appeared
the Court of Appeal ignored
those arguments as it never
commented on this leg of the
appellants’ submissions in its
judgment. I find those legal
arguments so germane in the
determination of the appeal
before the Court of Appeal that
it was erroneous for the Court
of Appeal to have ignored them,
having elected to rehear the
case on the principle that an
appeal is by way of rehearing.
For a better appreciation of the
issue at stake, it is better to
quote that part of appellants’
(then respondents) written
submissions filed before the
Court of Appeal in answer to
that of the then appellant (now
respondent herein), which
appears at pp. 116, 123 and 124
of the record of appeal (RoA): -
“The reason for the want or
excess of jurisdiction on the
part of the Judicial Committee
was given as follows: -
1.
The meeting of the Asogli
Traditional Council which
appointed a pool of 11 members
from which the three member
judicial committee was selected
was held in clear violation of
the Chieftaincy Act. The
particulars of the said
violation were given as follows:
-
Chiefs whose names had not been
entered in the National Register
of Chiefs participated in the
meeting to appoint the 11 member
team to constitute the Judicial
Committee.
a.
The meeting lacked quorum to
transact any business.
b.
There was no other meeting of
the Asogli Traditional Council
to appoint the three member
judicial committee which heard
the case involving the
respondents from the pool of 11
members earlier appointed. The
three member judicial committee
was therefore not appointed by
the Asogli Traditional Council
in compliance with the
Chieftaincy Act.
{Emphasis added}
c.
Some chiefs whose names had not
been entered in the National
Register of chiefs failed to
attend the said meeting but
delegated their power to appoint
to other chiefs or persons who
also did not have their names
entered in the National Register
of Chiefs…
The judicial Committee was not
validly constituted and
therefore lacked jurisdiction to
hear the matter.
S. 29 (1) and (2) of the
Chieftaincy Act provide as
follows: -
‘(1) Subject to this Act, a
Traditional Council has
exclusive jurisdiction to hear
and determine a cause or matter
affecting chieftaincy which
arises within its area, not
being one to which the
Asantehene or a paramount chief
is part.
(2) The jurisdiction of a
Traditional Council shall be
exercised by a Judicial
Committee comprising three or
five members appointed by the
Council from their members.’
The combined effect of the two
provisions is that even though
exclusive jurisdiction is
granted to the Asogli
Traditional Council (hereinafter
referred to as the Traditional
Council) to hear causes or
matters affecting chieftaincy
within its traditional area, the
Traditional Council is mandated
to perform that function through
a judicial committee comprising
of three or five members. The
appointment must be made by the
Traditional Council. It is
important to underscore that the
judicial committee comprising of
either three members or five
members must be appointed by the
Traditional Council.
Exhibit ‘C’ shows that two
groups of chiefs were appointed
by the Asogli Traditional
Council. The total number of
chiefs in the two groups was
eleven (11). It is to be noted
that the three-member judicial
committee that heard the case
involving the applicants was
drawn from the two groups of
chiefs. Thus Togbe Dadzawa III
and Togbe Kwaku Agbi III were
from group ‘A’ while Togbe Kwami
Dogli II was from group ‘B’.
There was no other meeting by
the Asogli Traditional Counci to
constitute the three member
panel which heard the case in
issue. The claim by the
respondents that there was no
other meeting to select or
appoint this judicial committee
to hear the case was not
challenged by the Asogli
Traditional Council. Presumably,
the panel of the three judicial
committee members was appointed
by the President or the
Registrar.
It is a violation of the
Chieftaincy Act for the Asogli
Traditional Council to appoint a
pool of chiefs from which either
the president, registrar or
anybody would draw a team of
three or five to constitute a
judicial committee to hear the
cause or matter affecting
chieftaincy. The appointment of
the judicial committee of three
or five is a function vested in
the Asogli Traditional Council
and not in any officer of it.
For this reason also, it is
submitted the judicial committee
was not properly constituted.”
So clearly, aside of the
argument that the chiefs who
constituted the judicial
committee did not have their
names registered in the
Chieftaincy Bulletin, the
appellants again challenged the
competence and legality of the
judicial committee that sat on
their case on the ground that it
was not appointed by the
Traditional Council as a whole
as envisaged under section 29
(2). However, the Court of
Appeal failed to consider this
submission in its judgment under
impeachment before us and the
appellants have raised the same
argument, which is the bedrock
of the appeal before us.
The interested
parties/respondents have
responded to this argument in
their statement of case filed on
29th March 2017.
Their initial charge in their
statement of case was that the
appellants’ appeal before us was
not made bona fide because they
only resorted to the judicial
review application after their
appeal against the decision of
the Asogli Traditional Council
to the Volta Regional House of
Chiefs had been struck-out by
the judicial committee of the
Regional House as incompetent,
having been filed out of time.
And that if their appeal had
succeeded, they would not have
resorted to Order 55 of the High
Court Civil Procedure Rules
[C.I. 47] in the nature of
certiorari. I do not find this
charge tenable because this
Court has held that a party can
resort to both avenues of
redress; i.e. appeal and
certiorari simultaneously. In
the case of REPUBLIC v HIGH
COURT, CAPE COAST; EX-PARTE
GHANA COCOA BOARD (APOTOI III –
INTERESTED PARTY) [2009]
SCGLR 603, this Court held
that: “The right to appeal from
the High Court to the Court of
Appeal and the right to apply
for the exercise of the
supervisory jurisdiction of the
Supreme Court were both
constitutional rights. There was
nothing in the constitutional
provisions governing those
rights that made them mutually
exclusive. The exercise of the
Supreme Court’s supervisory
jurisdiction under article 132
of the 1992 Constitution was not
expressly made subject to an
applicant not having previously
lodged an appeal in respect of
the same matter. So long as the
separate requirements of an
appeal and of an application for
the exercise of the supervisory
jurisdiction have been complied
with, a party should be able to
avail himself or herself with
either avenue of redress at the
same time”. So the fact that the
appellants resorted to Order 55
of C.I. 47 after their appeal to
the Regional House had suffered
a technical hitch of having been
filed out of time did not entail
any bad faith on their part as
they are constitutionally
permitted to do so.
In their main submissions,
the interested
parties/respondents admitted
that it was not the Asogli
Traditional Council that
directly appointed the
three-member judicial committee
that heard the chieftaincy case
involving the parties. They
contended that there was nothing
wrong with the approach adopted
by the Asogli Traditional
Council in selecting a pool or
group of eleven (11) chiefs from
which either the President or
the Registrar of the Council
hand-picked the three chiefs to
constitute the judicial
committee that heard the case
involving the parties. They
argued that the Registrar of the
Traditional Council was the
administrative head of the
Council and therefore by
extension, the Registrar
performs administrative
functions on be-half of the
Council. Any act or omission on
the part of the Registrar in the
discharge of his duties could
not be subjected to the
supervisory jurisdiction of the
High Court. Equally, the
President of the Traditional
Council performs administrative
functions for the Council and
his acts are not amenable to the
supervisory jurisdiction of the
High Court. Again, the
President of a Traditional
Council is clothed with
authority to perform statutory
administrative duties such as
empanelling members of the
judicial committee to sit on a
particular case. They added that
it was the function of the
President of the Traditional
Council or a House of Chiefs to
constitute members of a judicial
committee as long as he remains
in office and that it is not the
intendment of section 29 (2)
that the Council as a whole must
meet to appoint three or five
members to constitute a judicial
committee any time a cause or
matter affecting chieftaincy is
brought before it. Respondents
relied on the authorities of
AKUFFO ADDO v QUARSHIE IDUN
[1968] GLR 667 and the
decision of this Court in THE
REPUBLIC v HIGH COURT, DENU;
EX-PARTE KUMAPLEY [2003-2004] 2
SCGLR 719, per Dr. Seth
Twum, JSC.
My Lords, the sole issue
we are confronted with in this
appeal, judging from the
submissions of the parties as
recalled above is: Whether or
not under section 29 (2) of Act
759, a Traditional Council can
select a pool of chiefs from
among its members from which the
President alone or the Registrar
of the Traditional Council or
both, could hand pick members to
form a judicial committee as
envisaged under the Act or the
appointment of a judicial
committee is the function of the
Council as a whole at a meeting.
I wish to state that the
two cases of Ex-Parte Kumapley
and Akuffo-Addo v Quarshie Idun
cited by the respondents and
referred to supra are
inapplicable in this case. In
the Ex-parte Kumapley case
supra, the judicial review
application before the High
Court, Denu, which the High
Court wrongly granted was for an
order of prohibition to prohibit
the Anlo Traditional Council
from appointing or empanelling
new members of the judicial
committee to hear a matter
before the Traditional Council.
The facts in that case are in
complete variance with the facts
in the instant case as the
judicial review application of
the appellants herein before the
trial High Court had nothing to
do with the proceedings of the
Asogli Traditional Council held
on 22nd January 2012.
Neither were the appellants
seeking to quash the orders or
decisions of either the
Registrar or the President of
the Asogli Traditional Council.
If the issue before the trial
High Court in the certiorari
application had anything to do
with the proceedings of the
Asogli Traditional Council dated
22nd January 2012 at
which the pool of eleven (11)
chiefs to serve as judicial
committee members was selected,
or with the acts of either the
Registrar or President of the
Council, then the respondents’
argument under the authority of
Ex-parte Kumapley (supra) would
have carried some weight.
However, the issue before us is
far from that. The issue is:
What is the construction to be
placed on section 29 (2) of Act
759? Does it imply that; (i) the
traditional council as a body
must meet to appoint members of
a judicial committee from among
its members to sit on a
particular case always? Or, (ii)
the traditional council as a
body can select a group or pool
of chiefs from among its members
from which either the President
of the Council or the Registrar
of the Council or both could
hand-pick any three or five
members to constitute a judicial
committee anytime the need
arises?
I hold the view that there
is no need to stretch this point
by resorting to rules or canons
of interpretation before
resolving the issue at stake as
the section in question is very
clear and unambiguous. The
section as it stands, cannot
give rise to two rival meanings
to generate the controversy
currently before us. The section
reads: “The jurisdiction of a
Traditional Council shall be
exercised by a judicial
committee comprising three or
five members appointed by the
Council from their members”
{Emphasis added}. I do not see
any ambiguity in this provision.
The Chieftaincy Act, 2008
[Act 759] defines ‘JUDICIAL
COMMITTEE’ at section 76 of
the act on interpretation as;
“a committee appointed under
sections 25, 28 and 29 of the
Act”. Section 25 is on the
Judicial Committee of the
National House of Chiefs;
section 28 is on the Judicial
Committee of the Regional House
of Chiefs, while section 29 is
on the Judicial Committee of the
Traditional Councils. In all
these three sections, what the
Act described as a ‘Judicial
Committee’ is the three or
five members appointed as such
by the National House of Chiefs,
the Regional House of Chiefs, or
the Traditional Council as a
body, as the case may be, to
function as a judicial
committee.
Jurisdiction is conferred
or bestowed by statute and the
body that the Chieftaincy Act
calls a ‘judicial committee’ as
envisaged under section 29 (2)
that is charged with the
responsibility to hear
chieftaincy disputes is the
three or five member committee
appointed by the Traditional
Council as a body to function as
such. There is no doubt to the
fact that if a traditional
council meets to select a group
or pool of chiefs from among its
members numbering say eleven or
ten or twenty from which
judicial committee members are
chosen to sit on cases, that
pool or group of chiefs so
selected could not be described
as a ‘judicial committee’ or
members of a ‘judicial
committee’ as envisaged under
the Act. A ‘judicial Committee’
is the three or five members
selected or appointed by the
Traditional Council as a whole
or in quorum, to sit on a
particular case, but not the
pool or group of chiefs from
which the three or five members
are selected. Therefore, a
judicial Committee made up of
chiefs selected or hand-picked
from a pool or group of chiefs
appointed by the Traditional
Council by only the President of
the Council or the Registrar of
the Council, as was done in the
instant case before us, is not a
judicial committee appointed by
the Traditional Council as
envisaged under section 29 (2)
of the Act.
Where the appointment of
the judicial committee members
contravenes section 29 (2) of
the Act, such a committee is
said to lack jurisdiction to
hear and determine a chieftaincy
dispute and any proceedings,
orders or decision flowing from
such an incompetent committee
could be quashed on certiorari
as being void for want of
jurisdiction. In the case of
REPUBLIC v BUEM TRADITIONAL
COUNCIL; EX-PARTE ISUKU II
[1991] 1 GLR 455, the
Judicial Committee of the Buem
Traditional Council gave
judgment against the applicant.
He applied for an order of
certiorari to quash the
proceedings and judgment of the
judicial committee on the ground
that the judicial committee that
heard the case was not appointed
in accordance with section 28
(1) of the then Chieftaincy Act
[Act 370], which is similar to
the current section 29 (2) of
Act 759 and then section 3 of
L.I. 798. Applicant contended
that only six out of the
nineteen members of the
Traditional Council met to
appoint the committee and that
contradicted the Act.
Respondents on the other hand
were of the view that the words;
“appointed by the Traditional
Council”, did not mean that
the whole Traditional Council
must meet as a body to appoint
the judicial committee but that
the President of the Council or
the Registrar of the Council
could appoint the members
without the Traditional Council
itself meeting or sitting as a
body to do so. Respondent
contended further, as was done
by the respondent in the instant
appeal before us that, the
appointment of the judicial
committee was an administrative
act which does not lend itself
to a certiorari application.
The High Court dismissed
the respondent’s arguments and
granted the certiorari
application. The High Court held
that the words; “appointed by
the Traditional Council”
meant the members of the
judicial committee should be
appointed by the whole
Traditional Council sitting as a
body and that the President
alone or the Registrar of the
Traditional Council had no power
under the Act to appoint members
of the judicial committee.
Though the above decision was by
the High Court and therefore
does not bind us, the
interpretation put on the words;
“appointed by the Traditional
Council” was the correct
import of the section in
question, which is the same as
the current section 29 (2) of
Act 759.
Again, in the case of
THE REPUBLIC v KRACHI
TRADITIONAL COUNCIL; EX-PARTE
ANANE [1975] 1 GLR 276,
which is also a High Court case,
the court rightly defined ‘lack
of jurisdiction” to mean; not
having authority or incompetent
to decide or adjudicate. One of
the ways where ‘lack of
jurisdiction’ could arise is
where the judicial committee
that adjudicated on the case is
improperly constituted. In that
case an alleged judicial
committee of the Krachi
Traditional Council which sat on
a chieftaincy matter and ordered
the applicant to hand over some
stool paraphernalia was said to
lack jurisdiction to do so as
there was no existing Krachi
Traditional Council clothed with
authority to appoint the said
judicial committee. The
applicant’s application was
therefore granted and the order
of the alleged judicial
committee was quashed.
Before a body charged with
the determination of a dispute
could be given any legitimacy,
its composition or set up must
conform to the statute or Act
that provides for its existence.
Section 29 (2) of Act 759 did
not say that the Traditional
Council should select or appoint
a pool or a team of chiefs who
qualify to sit as judicial
committee members so that
anytime there is a chieftaincy
dispute either the President or
the Registrar of the Council
could hand-pick any three or
five chiefs or members from the
pool or group to constitute the
judicial committee to hear or
determine the chieftaincy
dispute in question. Such a
practice is prone to bias or the
likelihood of it, nepotism,
favouritism and all kinds of
manipulation, depending on the
whims and caprices of the
President or the Registrar who
does the hand-picking. What
section 29 (2) means and nothing
more is that the judicial
committee sitting on a
particular case must be
appointed by the whole
traditional council at its
meeting to avoid the incidence
of bias or the likelihood of it
or manipulations of any kind. So
where, as was done in the case
of the Asogli Traditional
Council, there was in place a
pool of qualified chiefs to sit
as judicial committee members,
the appointment of either three
or five members from the pool to
function as a judicial committee
must necessarily be done by the
whole Traditional Council
sitting as a body or by members
of the Traditional Council
forming a quorum to act as such.
The judicial committee of
the Asogli Traditional Council
that heard the case involving
the parties, not having been
appointed by the Traditional
Council as a whole but by the
President alone or the Registrar
of the Council, was wrongly
constituted and therefore lacked
jurisdiction to determine the
matter that came before it. The
proceedings and orders of the
said judicial committee were
therefore a nullity as they were
made without jurisdiction. The
trial High Court should have
allowed the application on this
ground but not on the grounds it
relied on. The Court of Appeal
also erred when it failed
completely to consider the point
though it was well made in the
submissions filed before it.
Notwithstanding this error
on the part of the trial High
Court, it is settled law that an
appeal court can affirm the
decision of a lower court which
is correct but is founded on
wrong reasons. See the cases of
ABAKAH v AMBRADU [1963] 1 GLR
456 @ 464 - SC; SERAPHIM v
AMUA-SAKYI [1971] 2 GLR 132 @
134 - CA & DUAH v DEBRA
[1967] GLR 456 - CA. In the
words of Apaloo, J.A. (as he
then was) in the Seraphim v
Amua-Sakyi case supra; in the
appeal court, “no judgment is
upset on the ground that it is
ratio erroneous if there is
another sound basis on which it
can be supported”. We
accordingly allow the appeal and
restore the decision of the
trial High Court though on
reasons different from what the
trial court relied on.
Y.
APPAU
(JUSTICE OF THE SUPREME COURT)
J.
ANSAH
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
HUMPHREY KWADZO MODZAKAH WITH
HIM NII BI AYI BONTE FOR THE
DEFENDANTS/APPLICANTS/RESPONDENTS/
APPELLANTS
NELSON MAWUTOR KPORHA FOR
THE INTERESTED
PARTIES/RESPONDENTS.
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