.
Chieftiancy -
Judicial review – Certiorari - ,
Removing the name of the
applicant from the National
Register of Chiefs.- Wether or
not the deletion of appellants
name from the National
Registrar of Chiefs by the
respondents was illegal and
wrongful - whether or not acts
such as these are qualified to
be affixed with the label of
‘judicial acts’, so as to allow
an order of certiorari to quash
such a decision - Section 48(2)
and 50(2) 50(7) - Chieftiancy
Act 2008 Act 759
HEADNOTES
They are that
the appellant filed a motion on
notice for an order of Judicial
review to quash by certiorari
the decision of the research
committee of the National House
of Chiefs, removing the name of
the applicant from the National
Register of Chiefs. This appeal
emanated from the Court of
Appeal to this court when it
decided that was unable to
quash by an order of certiorari
the deletion of the applicant’s
name from the National Register
of Chiefs when it was found that
the deletion of that name from
the said National Register was
illegal and wrongful; the
applicant maintained that after
making that finding, the
respondent ought to have
proceeded further to quash the
decision by a certiorari, as a
necessary sequel thereto.The
applicant averred in his
affidavit in support of the
application before the High
Court that he was gazetted as a
chief and thereafter his
adversaries afflicted him with
several disputes all aimed at
getting his name removed as a
chief from the National Register
of Chiefs, but to no avail. The
reason claimed as providing the
cassus belli for the efforts was
his conviction by the Circuit
Court, Dunkwa-On-Offin, Efforts
to have the letter removing his
name from the National Register
having failed, the applicant
applied for certiorari at the
High Court,, but failed in that
application. The applicant was
to suffer a similar fate at the
Court of Appeal, where the
appellate court stated that
administrative decisions are not
amenable by certiorari, upon
that failure at the Court of
Appeal, Cape Coast, on 23rd
February 2013, the applicant
brought the present appeal to
this court
HELD
(1) We agree
with the submission by the
respondent in their statement of
case that “since the 1st
respondents’ acts of deleting
the appellant’s name from the
Register of Chiefs was purely an
administrative discretion and
was not occasioned by any
procedural irregularity, the
appeal should be dismissed and
the judgment of the Court of
Appeal dismissed.”
(2) In our
opinion, where there was an
undue delay of a period of about
twenty one long years in making
the application, such as in this
case, it will militate against
the success of the application
for the relief sought. Tardy and
delayed applications scarcely
succeed in securing favorable
results in applications of this
nature.
Considering
all the above, in our candid
opinion, the application fails
and is hereby accordingly
dismissed. The judgment of the
Court of Appeal is affirmed.
STATUTES
REFERRED TO IN JUDGMENT
Chieftiancy
Act 2008 Act 759
CASES
REFERRED TO IN JUDGMENT
The Republic
v High Court, Kumasi, ex-parte
Mobil (Ghana) Ltd Hagan
interested party [2005-2006]
SCGLR 107.
The Republic
v National House of Chiefs;
ex-parte Akrofa Krukoko II
(Enimil VI Interested Party)
[2007-2008] SCGLR 178
The Republic
v Paddington Valuation Officer ,
ex-parte Peachey Property
Corporation Ltd. (1966) 1QBD 380
The Republic
v Perth Shire; Ex-Parte Deward
and Biurridge (1968) WAR 149.”
In Re Oguaa
Paramount Stool; Garbrah &
others v Central Regional House
of Chiefs & Haizel [2005-2006]
SCGLR 193,
Republic v
The President, National House of
Chiefs; ex parte Akyeamfour II
[1982-83] 1 GLR 10, CA
Republic v
National House of Chiefs; ex
parte Akrofa Krukoko II (Enimil
VI Interested party) [2007-2008]
SCGLR 173
BOOKS
REFERRED TO IN JUDGMENT
Black’s Law
Dictionary
DELIVERING
THE LEADING JUDGMENT
ANSAH JSC.
COUNSEL
KOFI LAMPTEY
ESQ. FOR THE APPLICANT
/APPELLANT /APPELLANT.
GILLIE CARSON
ESQ AND JOSEPH NICHOLAS
NKRUMAH ESQ. FOR THE 1ST
AND 2ND
RESPONDENTS/ RESPONDENTS/
RESPONDENTS.
JUDGMENT
----------------------------------------------------------------------------------------------------------
ANSAH JSC.
On 7th
May, 2014, this court gave a
decision dismissing an appeal
brought before it against the
unanimous decision of the Court
of Appeal dated 23rd February
2012, that certiorari did not
lie to quash the deletion of the
applicant’s name from the
National Register of Chiefs and
intimated that full reasons for
the decision will be filed with
the Registry of the court by the
close of work on Friday 8th
May 2014; we hereby proceed to
give the reasons today.
For a proper
understanding and appreciation
of the issues involved in this
appeal, it is needful to state
the facts and background of this
case, albeit in a brief form.
Facts and
background of case:
They are that
the appellant filed a motion on
notice under Order 55 Rule 1 of
CI 47, for an order of Judicial
review to quash by certiorari
the decision of the research
committee of the National House
of Chiefs, (1st
respondent) held on the 30th
January 2009, removing the name
of the applicant from the
National Register of Chiefs.
This appeal emanated from the
Court of Appeal (Civil Division
sitting at Cape Coast), to this
court when it decided that was
unable to quash by an order of
certiorari the deletion of the
applicant’s name from the
National Register of Chiefs when
it was found that the deletion
of that name from the said
National Register was illegal
and wrongful; the applicant
maintained that after making
that finding, the respondent
ought to have proceeded further
to quash the decision by a
certiorari, as a necessary
sequel thereto.
The applicant
averred in his affidavit in
support of the application
before the High Court filed on
27 July, 2009 that he was
gazetted as a chief on 29th
August 2009 and thereafter his
adversaries afflicted him with
several disputes all aimed at
getting his name removed as a
chief from the National Register
of Chiefs, but to no avail. The
reason claimed as providing the
cassus belli for the efforts was
his conviction by the Circuit
Court, Dunkwa-On-Offin, on 24th
February 1992. Efforts to have
the letter removing his name
from the National Register
having failed, the applicant
applied for certiorari at the
High Court, Cape Coast, but
failed in that application. The
applicant was to suffer a
similar fate at the Court of
Appeal, Cape Coast, where the
appellate court stated that
administrative decisions are not
amenable by certiorari.
Grounds of
appeal before the Supreme Court:
Following
upon that failure at the Court
of Appeal, Cape Coast, on 23rd
February 2013, the applicant
brought the present appeal to
this court on the grounds that,:
“a. The
appellant (sic) court having
made a finding of fact that
Exhibit E upon which the
applicant/appellants name was
deleted from the National
Registrar (sic) of Chiefs by the
respondents was illegal and
wrongful, should have proceeded
to quash the decision by
certiorari by relying on the
decision of the Supreme Court in
the case of the Republic v High
Court, Kumasi, ex-parte Mobil
(Ghana) Ltd Hagan interested
party [2005-2006] SCGLR 107.
b. The Court
of Appeal erred in law when they
stated that Administrative
decisions are not amenable by
certiorari contrary to the
Wednesbury principle, namely
that, an administrative action
or decision would be subject to
Judicial review on the grounds
that it was illegal, irregular
or procedurally improper.
c. The
Appellant (sic) court erred in
law when it stated that if the
Appellant felt aggrieved by the
respondent’s acts complained of
his recourse is to the Supreme
Court as envisaged in Section
50(7) of Act 759 when it failed
to consider the decision of the
Supreme Court in the case of the
Republic v National House of
Chiefs; ex-parte Akrofa Krukoko
II (Enimil VI Interested Party)
[2007-2008] SCGLR at page 178
and again in the case of The
Republic v Paddington Valuation
Officer , ex-parte Peachey
Property Corporation Ltd. (1966)
1QBD 380 and in the Australian
case of the Republic v Perth
Shire; Ex-Parte Deward and
Biurridge (1968) WAR 149.”
By this
appeal, the appellant wants this
court to grant him an order
quashing the deletion of the
Applicant/Appellants name from
the National Register of Chiefs.
In our
consideration we are of the
opinion that a consideration of
ground ‘b’ of appeal (above)
alone, is able to dispose of the
appeal and proceed with the
utmost respect to counsel, to
consider that ground as briefly
as we can.
It must be
stated that entries made in or
deletions from the National
Register of Chiefs have been
commented upon in several
authorities by this court and
one statement that emerges from
them is that such acts do not
constitute adjudications
determining who is a chief or
who is not, but are rather
purely administrative acts not
occasioned by any procedural
irregularity and consequently
not amenable to an order of
certiorari; thus in In Re Oguaa
Paramount Stool; Garbrah &
others v Central Regional House
of Chiefs & Haizel [2005-2006]
SCGLR 193, this court considered
the legal characteristics of the
act of registration or
non-registration of a chief’s
name in the register of chiefs,
under sections 48(2) and 50(2)
of the Chieftaincy Act, and
asked whether or not acts such
as these are qualified to be
affixed with the label of
‘judicial acts’, so as to allow
an order of certiorari to quash
such a decision?
This Court,
speaking through the voice of
the much bemoaned late Prof.
Ocran agreed with the holding in
Republic v The President,
National House of Chiefs; ex
parte Akyeamfour II [1982-83] 1
GLR 10, CA where Francois JSC
said at p16 that such functions
do not extend to any
adjudicating on the merits of a
particular case and therefore
certiorari will not issue in
respect of them. The learned
judge said: “In my opinion,
therefore, even though the
National House of Chiefs has a
duty to act honestly and since
its function is administrative,
it cannot be amenable to the
prerogative writ of certiorari.”
The learned judge (Prof Ocran),
referred to Black’s Law
Dictionary on what constitutes a
‘judicial act’ as:
“An act which
involves exercise of discretion
or judgment… An act which
undertakes to determine a
question of right or obligation
or of property as foundation on
which it proceeds. The action of
a judge in trying a cause and
rendering a decision.”
We also
believe that the deletion of a
name from the National Register
of Chiefs is administrative but
not a judicial act which will be
subject to an order of
certiorari; see Republic v
National House of Chiefs; ex
parte Akrofa Krukoko II (Enimil
VI Interested party) [2007-2008]
SCGLR 173, at 177, where our
respected learned sister Sophia
Adinyira JSC, stated the settled
law at p177 that:
“It is
settled law that entries made in
or deleted from the National
Register of Chiefs do not
constitute adjudication or
determination as to who is a
chief or who is not, but rather
a purely administrative act .”
We agree with
the submission by the respondent
in their statement of case that
“since the 1st
respondents’ acts of deleting
the appellant’s name from the
Register of Chiefs was purely an
administrative discretion and
was not occasioned by any
procedural irregularity, the
appeal should be dismissed and
the judgment of the Court of
Appeal dismissed.”
We wish to
consider one other point germane
to applications on orders of the
nature under consideration and
state that, in considering an
application for an order of
certiorari, one will necessarily
need to consider the conduct of
the parties especially the
applicant, so that where he is
guilty of a long delay in
applying for the remedy, he may
be denied it. It ought to be
borne in mind that certiorari is
a discretionary remedy and the
conduct of an applicant is
worthy of consideration. The
circumstances of the case and
the conduct of the applicant can
disentitle him to the remedy. In
the present application, the
facts are that there was a delay
spanning a period of about
twenty one years (prior to the
application) between when the
applicant was released on bail
pending appeal against his
conviction and sentence. He
stopped following the process to
deal with them for the meanwhile
till he woke up much later, from
his slumber to pursue the
proceedings which have resulted
in the present proceedings in
this appeal.
In our
opinion, where there was an
undue delay of a period of about
twenty one long years in making
the application, such as in this
case, it will militate against
the success of the application
for the relief sought. Tardy and
delayed applications scarcely
succeed in securing favorable
results in applications of this
nature.
Considering
all the above, in our candid
opinion, the application fails
and is hereby accordingly
dismissed. The judgment of the
Court of Appeal is affirmed.
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME
COURT
(SGD) V. AKOTO BAMFO
(MRS)
JUSTICE OF THE SUPREME
COURT
COUNSEL
KOFI LAMPTEY
ESQ. FOR THE APPLICANT
/APPELLANT /APPELLANT.
GILLIE CARSON
ESQ AND JOSEPH NICHOLAS
NKRUMAH ESQ. FOR THE 1ST
AND 2ND
RESPONDENTS/ RESPONDENTS/
RESPONDENTS |