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Chieftaincy - National House of
Chiefs - Regional House of
Chiefs -
Whether the applicant's
substantive objection to the
order of Mandamus is moot or not
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Whether traditional
council had consistently been
judicially regarded as a
statutory or administrative
matter which did not constitute
a cause or matter affecting
chieftaincy.
HEADNOTES
The respondents to the
application before me are chiefs
of the towns of Tuobodom, Tanoso,
Kenyasi No.1 and Tanoboase in
the Brong-Ahafo Region and
members of the Asanteman
Council. They made efforts to
get their names onto the
National Register of Chiefs as
paramount chiefs of their
respective areas but met
challenges including opposition
by the applicant herein. The
respondents therefore filed a
motion in the High Court, Kumasi
against the National House of
Chiefs and the Brong-Ahafo
Regional House of Chiefs for
judicial review in the nature of
mandamus and prayed the court
for an order for their names to
be entered in the National
Register of Chiefs as paramount
chiefs. They added the Asanteman
Council as an Interested Party.
The applicant herein applied and
was joined by the High Court to
the Mandamus application as 2nd
Interested Party -
HELD :-
In conclusion, the order of the
High Court having been
accomplished, I am not in a
position to restrain or suspend
its execution. In the
circumstances, I refuse the
application.
STATUTES REFERRED TO IN JUDGMENT
Supreme Court Rules, 1996 (C.I.
16).
CASES REFERRED TO IN JUDGMENT
Republic v High Court, Koforidua,
ex parte Otutu Kono III [2009]
SCGLR 1
Merchant Bank (Ghana) ltd v
Similar Ways Ltd [2012] 1 SCGLR
440
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
COUNSEL.
OSMAN ALHASSAN FOR THE 2ND INTERESTED
PARTY/APPELLANT/APPELLANT/
APPLICANT.
FREMPONG BOAMAH FOR THE
APPLICANTS/RESPONDENTS/RESPONDENTS/
RESPONDENTS AND 1ST INTERESTED
PARTY/RESPONDENT/RESPONDENT.
RULING
PWAMANG, JSC.
The respondents to the
application before me are chiefs
of the towns of Tuobodom, Tanoso,
Kenyasi No.1 and Tanoboase in
the Brong-Ahafo Region and
members of the Asanteman
Council. They made efforts to
get their names onto the
National Register of Chiefs as
paramount chiefs of their
respective areas but met
challenges including opposition
by the applicant herein. The
respondents therefore filed a
motion in the High Court, Kumasi
against the National House of
Chiefs and the Brong-Ahafo
Regional House of Chiefs for
judicial review in the nature of
mandamus and prayed the court
for an order for their names to
be entered in the National
Register of Chiefs as paramount
chiefs. They added the Asanteman
Council as an Interested Party.
The applicant herein applied and
was joined by the High Court to
the Mandamus application as 2nd
Interested Party. From the
ruling of the High Court which
has been exhibited, the
application for mandamus was
supported by the Asanteman
Council but opposed by the 2nd
respondent and the 2nd
Interested Party who filed
affidavits in opposition and
were represented by the same
lawyer. From the processes
before me, though it was on 29th
November,2010 that the High
Court, gave a reasoned ruling
granting the application, the
formal order of Mandamus is
dated 22nd November, 2010. The
relevant part of the order is as
follows;
"IT IS HEREBY ORDERED that the
respondents herein enter the
names of the applicants herein
in the register of the National
House of Chiefs as paramount
chiefs of Tanoboase Traditional
Council/Area, Tanoso Traditional
Council/Area, Kenyasi No. 1
Traditional Council/Area and
Tuobodom Traditional
Council/Area respectively."
Being aggrieved by the
decision of the High Court, the
respondents and the 2nd
Interested Party all appealed
against it to the Court of
Appeal and followed up with an
application for stay of
execution but same was refused
by the High Court. Thereafter,
the respondents herein got their
names entered in the National
Register of Chiefs, extracts
from which have been exhibited
to their affidavit in opposition
as exhibits 'B1', 'B2', 'B3' and
'B4'. From the exhibits, the
respondents’ names were entered
under Ashanti Region and not
Brong-Ahafo Region. When the
Court of Appeal came to
determine the substantive
appeal, they held as follows in
their judgment dated 16 th July,
2015;
"...the respondents went ahead
and inserted or entered the
names of the applicants in the
National Register of Chiefs. It
is our considered opinion that
the issue of whether or not the
names of the applicants should
be inserted or entered in the
Registers of the National House
of Chiefs and the Brong Ahafo
Regional House of Chiefs is dead
and buried and is no more a live
issue worth a determination of
this court.....the court will
not countenance an issue that is
moot and is not most likely to
re-occur. For these reasons the
appeal is struck out as being
moot, dead and buried."
Notwithstanding the good
intentions with which the Court
of Appeal may have made their
prediction that the issue will
not re-occur, it has refused to
go away. Ten days after their
decision, an appeal against it
was filed in the Supreme Court.
Nonetheless, with the striking
out of the appeal in the Court
of Appeal, the respondents have
been urging the Brong-Ahafo
Regional House of Chiefs to
administer to them the
appropriate oath to make them
members of that house but the
applicant filed a number of
motions to prevent them from
being admitted. Applicant has
now brought this application for
an order of interlocutory
injunction pending appeal
restraining the respondents
from;
i. further enforcing the
judgment and order of Mandamus
of the High Court,
ii. holding themselves out
and acting as paramount chiefs,
iii. subscribing to the
oath of membership and
participating as members of the
Brong-Ahafo Regional House of
Chiefs.
He is also praying for the
House of Chiefs to be restrained
from further compliance with the
order of Mandamus.
At paragraph 27 of its
affidavit in support it was
deposed on behalf of applicant
as follows;
"That if the respondents are not
restrained by an order of
interlocutory injunction, they
would rely on the decision of
the Court of Appeal to enforce
the High Court order of Mandamus
against the National House of
Chiefs and the Brong-Ahafo
Regional House of Chiefs to the
following effects;
i) Compelling the National House
of Chiefs to lay a bill in
Parliament for passage into a
legislative instrument which
would include them in the
membership of the Brong-Ahafo
Regional House of Chiefs.
ii) Compelling the Brong-Ahafo
Regional House of Chiefs to have
them subscribe to the oath of
office as members of the
Regional House and participate
in its functions."
The applicant further
deposed in its affidavit that
the above forecasted activities,
if allowed to take place, will
prejudice the determination of
the appeal pending in this court
as well as a dispute pending at
the National House of Chiefs. It
says further that those
activities will result in
breaches of constitutional and
statutory provisions.
The respondents filed a
37-paragraph affidavit in
opposition and contended that
the Court of Appeal held that
the case of the appellants is
moot so this present application
is needless, meaningless and at
best frivolous. As for whether
the applicant's substantive
objection to the order of
Mandamus is moot or not, it is
for this court to determine
since he has appealed against
the decision of the Court of
Appeal.
I have read all the
processes filed in the
application and I have noticed
that both parties included
matters pertaining to their
chieftaincy dispute but I shall
disregard those matters. This
court does not have original
jurisdiction in a cause or
matter affecting chieftaincy
but only appellate jurisdiction
in respect of matters determined
by the National House of Chiefs.
It is for that reason that I
shall strike out applicant's
prayer for a restraining order
against the respondents holding
themselves out as paramount
chiefs. In the case of
Republic v High Court, Koforidua,
ex parte Otutu Kono III [2009]
SCGLR 1 this court held as
follows at Holding (1) of the
Headnote;
"Thus the question of the
existence, nature and
composition of a traditional
council had consistently been
judicially regarded as a
statutory or administrative
matter which did not constitute
a cause or matter affecting
chieftaincy. The trial High
Court therefore had jurisdiction
to determine the existence,
character and composition of a
traditional council."
On account of the above, I
shall confine myself to the
matters related to the order for
the respondents’ names to be
entered in the National Register
of Chiefs which register is a
creature of statute.
This application was
filled after the record of
appeal had been transmitted to
this court and the court assumed
jurisdiction to hear any
application in the case pursuant
to Rule 16(1) of the Supreme
Court Rules, 1996 (C.I. 16).
However, the orders of
injunction pending appeal that
the applicant seeks face two
formidable hurdles; (i) the
judgment of the Court of Appeal
did not make any executable
order and more important, (ii)
the order of Mandamus which is
the target of the application
has already been complied with.
Nonetheless, the applicant
placed total reliance on this
court's decision in the case of
Merchant Bank (Ghana) ltd v
Similar Ways Ltd [2012] 1 SCGLR
440 in which, at pages 448
to 449, the venerable Atuguba,
JSC said as follows;
"All along it is obvious
that its applications and
appeals do not relate to any
executable order. That however,
does not mean that it has no
interest in holding off the
enforcement of the substantive
judgment to which its processes
relate. If a stay of execution
cannot lie, other remedies may
lie. One of such remedies can be
the suspension of the entry of
judgment. In that event, the
effect of the judgment itself is
temporarily frozen and
incidental processes such as
execution cannot fly not because
execution thereof is stayed but
because the life of the judgment
itself is in coma."
In that case, the judgment
of the High Court that was the
target of the order suspending
the entry of judgment had
decreed payment of money by the
appellant but it had not been
paid as at the time the
application was made to the
Supreme Court. So it was the
processes of execution to get
the appellant to pay the
judgment debt, which was
outstanding, that were suspended
by the order of the court. But
in instant case, contrary to the
impression applicant sought to
create, the order of the High
Court was for the names of the
respondents to be entered in the
National Register of Chiefs and
no more. This has already been
complied with by the National
House of Chiefs so I find the
anxiety expressed by applicant
in his affidavit that, in
execution of that order, a
legislative instrument will be
laid adding the names of the
respondents to the Brong-Ahafo
Regional House of Chiefs highly
speculative as that is not
apparent on the face of the
order. The issues of threatened
breaches of constitutional and
statutory provisions are for a
different jurisdiction of this
court and I am not competent to
determine them in this
application.
In conclusion, the order
of the High Court having been
accomplished, I am not in a
position to restrain or suspend
its execution. In the
circumstances, I refuse the
application.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
OSMAN ALHASSAN FOR THE 2ND
INTERESTED
PARTY/APPELLANT/APPELLANT/
APPLICANT.
FREMPONG BOAMAH FOR THE
APPLICANTS/RESPONDENTS/RESPONDENTS/
RESPONDENTS AND 1ST
INTERESTED
PARTY/RESPONDENT/RESPONDENT |
