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Chieftaincy – Cause of matter
affecting – National house of
Chiefs -
Regional House of Chiefs -
Judicial Committee of
Traditional - Council Standing
Orders – Mandamus - National
Register of Chiefs – Fraud -
Expunge from – Setting aside –
Capacity – Whether or not the
court can exercise supervisory
jurisdiction over Administrative
bodies -
HEADNOTES
This appeal is from the decision
of the Court of Appeal dated the
16th day of October
2018. The action culminating in
this appeal was commenced by an
originating motion for an order
of mandamus to issue by the
Appellants/Respondents/Respondents
(hereinafter referred to as
“Respondents”) against the
Respondents/Appellants/Appellants
to expunge from the National
Register of Chiefs the name of
Kweku Benyi aka Nana Amoah VII
the Interested
Party/Appellant/Appellant
(hereinafter referred to as
‘Appellant’) and to cancel
an extract bearing Serial No.952
to the said Kweku Benyi or set
same aside on grounds of fraud.
In determining the application,
the High Court found in favour
of the Applicants whereupon it
ordered the 1st and 2nd
Respondents/ Appellants to
remove the name of the instant
Appellant from the register of
chiefs. The instant Appellant,
dissatisfied with the decision
of the High Court appealed to
the Court of Appeal which
dismissed the appeal from which
decision instant appeal has
arisen
HELD
The Appellant in his statement
of case has said a lot about
what happened in the
consideration of his Chieftaincy
Declaration Forms at the
National House of Chiefs and
submitted that the processes
were regular and it was rather
the Respondents who attached
incomplete photocopies of
documents from the records of
the National House of Chiefs and
misled the court to grant their
prayer. Our simple response to
these submissions is that the
information contained in those
forms was false since it failed
to indicate that the decision
against the 1st
Respondent and in favour of the
Appellant had been quashed by
the High Court. In the face of
that, it was procedurally
improper for the forms to have
been forwarded and that has to
be corrected by ordering the
removal of the name. In
conclusion, from our review of
the entire record of appeal and
the examination of all the
grounds of appeal on which the
Appellant anchored his appeal,
as well as the application of
the relevant law, we are not
persuaded that we should
interfere with the findings and
conclusions of a Trial Court and
the Court of Appeal.
Accordingly, we find no merit in
the appeal and it is hereby
wholly dismissed
STATUTES REFERRED TO IN JUDGMENT
Chieftaincy Act 1971 (Act 370)
CASES REFERRED TO IN JUDGMENT
The Registrar & President
National House Of Chiefs
Ex-Parte;Kojo Yamoah & Anor.
Civil Appeal No.J4/45/2017 dated
25th July 2018
IN RE; Oguaa Paramount Stool
,Garbrah Vs. Central Region
House of Chiefs [2005-2006]
SCGLR 193
Republic v High Court (Fast
Track Division) Accra; Ex-parte
Electoral Commission (Mettle
Nunoo & Ors-Interested Parties)
[2005-2006] SCGLR 514
Republic Vs. National House Of
Chiefs Ex-parte Akrofa Krukoko
II (Enimil VII - Interested
Party) [2007-2008] SCGLR.
Republic Vs. National House of
Chiefs; Ex-Parte Akrofa Krukoko
II [2007-2008] 1 SCGLR 173
Republic Vs. Lands Commission;
Ex-parte Vanderpuye-Orgle
Estates Ltd. [1998-1999] SCGLR
677
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
AMADU JSC: -
COUNSEL
S. K. AMOAH WITH HIM NANA AMA
AMOAH FOR THE 1ST, 2ND
AND 3RD APPLICANTS/
RESPONDENTS/RESPONDENTS.
AMPONSA DADZIE WITH HIM R. K.
BOADU FOR THE INTERESTED PARTY/
APPELLANT/ APPELLANT.
AMADU
JSC:-
(1)
This appeal is from the decision
of the Court of Appeal dated the
16th day of October
2018. The action culminating in
this appeal was commenced by an
originating motion for an order
of mandamus to issue by the
Appellants/Respondents/Respondents
(hereinafter referred to as
“Respondents”) against the
Respondents/Appellants/Appellants
to expunge from the National
Register of Chiefs the name of
Kweku Benyi aka Nana Amoah VII
the Interested
Party/Appellant/Appellant
(hereinafter referred to as
‘Appellant’) and to cancel
an extract bearing Serial No.952
to the said Kweku Benyi or set
same aside on grounds of fraud.
(2)
In determining the application,
the High Court found in favour
of the Applicants whereupon it
ordered the 1st and 2nd
Respondents/ Appellants to
remove the name of the instant
Appellant from the register of
chiefs. The instant Appellant,
dissatisfied with the decision
of the High Court appealed to
the Court of Appeal which
dismissed the appeal from which
decision instant appeal has
arisen.
(3)
BACKGROUND FACTS
The case of 1st
Respondent in High Court was
that, he was elected, nominated,
and installed as Ohene of
Amoasima in 1979 by the
Kingmakers. That one Kojo Adan
claiming to be Chief of Amoasima
under the name of Nana Amoah VI
commenced an action before the
Judicial
Committee of the Asebu
Traditional Council
challenging the enstoolment of
the 1st Respondent.
That upon his death, one
Augustine Dadzie who was neither
a chief nor elder substituted
him. The 1st
Respondent resisted the
prosecution of the action by
said Augustine Dadzie for lack
of capacity. The challenge was
ignored by the Judicial
Committee following which the 1st
Respondent walked out during the
deliberations in protest. The
Judicial Committee then entered
judgment in favour of the said
Augustine Dadzie against the 1st
Respondent.
(4)
On the 3rd of March
1980, pursuant to a certiorari
application filed by the 1st
Respondent with the Asebu
Traditional Council as a party,
the High Court presided over by
Osei Hwere J. (as he then
was) quashed the decision of
the Judicial Committee of the
Asebu Traditional Council
against the 1st
Respondent for failure to
observe some fundamental
requirements and ordered a
re-hearing by the Judicial
Committee with the legal effect
that the proceedings and
decision arising from the
quashed proceedings against the
original Respondent no longer
existed. Notwithstanding this,
to the consternation of the 1st
Respondent, the Registrar of the
Asebu Traditional Council
submitted the name of the
Appellant through the
Regional
House of Chiefs to the
National House of Chiefs as
Ohene of Amosima despite being
seised of the judgment of Osei
Hwere J. (as he then was)
quashing the decision of the
Judicial Committee of the Asebu
Traditional Council in favour of
the 1st Respondent.
(5)
In praying for the order of
mandamus, the 1st
Respondents herein took issues
with the Research Committee for
the vetting, insertion and
approval of the name of the name
of the Appellant on the grounds
that, the Research Committee at
the time lacked the requisite
quorum on the 13th
and 14th day of March
1984 when it purported to
approve the Appellant’s
Chieftaincy Declaration Forms.
The 1st Respondent
further assailed the action of
the committee on grounds of lack
of jurisdiction since under the
Standing
Orders of the National House
of Chiefs, it was the
Registration Committee that had
exclusive mandate to make such
approvals.
(6)
The Appellant on the other hand
deposed that, he was the
recognized Chief of Amoasima and
Nifahene of Asebu Traditional
Council. He denied the
authenticity of the ruling of
the High Court, Cape coast which
quashed the judgment of the
Judicial Committee of Asebu
Traditional Council in favour of
the Respondents. He further
contended that, the Standing
Orders of the National House of
Chiefs relied upon by the
Respondents to question the
process by which his Chieftaincy
Declaration Forms were approved
were the 1991 Standing Orders
which was not in force at the
time his forms were approved in
1984. He contended that the
Standing Orders at the time were
the 1977 orders and that, the
approval process conformed with
those orders.
(7)
The Appellant further contended
that the allegation of fraud
made by the Respondents could
not be proved by affidavit
evidence. Additionally, the
Appellant deposed to the fact
that the procedural jurisdiction
of the High Court had not been
improperly invoked since the
matter fell within the ambit of
a cause or matter affecting
chieftaincy. It must be placed
on record that the 1st
and 2nd Respondents
at the High Court associated
themselves with the argument of
the instant Appellant. As stated
above, the High Court acceded to
the prayer of the Respondents
and granted their application
for mandamus.
(8)
DECISION OF THE COURT OF APPEAL
Not satisfied with the decision
of the High Court, the Appellant
appealed to the Court of
Appeal. At page 382 of the
record of appeal, the Court of
Appeal summed up the issues as
presented before the Court in
context as follows:- “From
the submission filed by counsel
for the parties the main issues
raised in this appeal are
whether the additional grounds
argued on behalf of the
Appellants are properly before
this court, whether this matter
is a cause or matter affecting
chieftaincy and is therefore
outside the jurisdiction of the
High Court, whether the Standing
Committee had a quorum when it
approved the Chieftaincy
Declaration Forms of the
Appellant, whether in view of
the allegation of fraud made by
the Respondents, the Trial Court
ought to have insisted on the
Respondents producing viva voce
evidence and not affidavit
evidence whether the conduct of
the National House of Chiefs
complained about in the case is
amenable to mandamus”.
(9)
The Court of Appeal after a
careful consideration of the
entire record before it and the
legal submissions of the
parties, resolved all the above
issues arising from the appeal
in favour of the Respondents and
accordingly affirmed the ruling
of the High Court.
(10)
APPEAL TO SUPREME COURT
The Appellant not satisfied with
the judgment of the Court of
Appeal, appealed to this court
initially on one ground but
subsequently he filed additional
grounds pursuant to leave of the
court. The one ground and
additional grounds have been
formulated as follows:-
“1. The judgment is against the
weight of evidence.
The additional grounds of
appeal have been set out as
follows:-
1.
The 1st, 2nd
and 3rd
Applicants/Respondents/Respondents
lacked
capacity to bring the
application for mandamus.
2.
The 1st, 2nd
and 3rd Respondents
tendered a fraudulent Exhibit
‘JKA6’ to deceive the Trial
Court.
PARTICULARS
(1)
Exhibit ‘JKA6’ was a 2- page
photocopy document on which the
Respondent covered the lower
part of the original copy of
hide away the material
information.
(2)
Exhibit ‘JKA6’ was the minutes
of the 1st ordinary
meeting of the Research
Committee of the National House
of Chiefs held on the 13th
and 14th March 1984
and covered material information
on the lower portion from the
court which showed how the
committee dealt with the
Chieftaincy Declaration Form of
the interested
Party/Appellant/Appellant.
(3)
The 1st and 2nd
Respondents/Appellants/Respondents
embossed the official stamp of
the National House of Chiefs on
the blank lower part of Exhibit
‘JKA6’ to deceive the Trial
Court that the Exhibit ‘JKA6’ to
deceive the Trial Court that the
Exhibit ‘JKA6’ was procured from
proper custody (their custody).
(4)
The combined effect of the
particulars of fraud enumerated
above was to deceive the Trial
Court to believe that Exhibit
‘JKA6’ was the exact contents of
the minutes of the Research
Committee of the Respondent
National House of Chiefs when
the same was not the truth of
the deliberations of the
Research Committee.
(5)
That the court below erred in
not holding that the removal of
the name of the chief from the
National Register of chiefs is
not amenable to orders of
mandamus”.
APPELLANT’S ARGUMENTS IN
STATEMENT OF CASE
(i) ADDITIONAL GROUND (2)
“The 1st, 2nd
3rd
Applicants/Respondents lacked
capacity to being the
Application for Mandamus”.
(11)
The Appellant submitted that the
Respondents lacked the requisite
capacity to have applied for the
order of mandamus they sought
from the High Court Kumasi.
According to the Appellant, a
party commencing such action
needed to demonstrate that it
had a specific legal right in
enforcement of which he prays
for the intervention of the
court. He contended that his
name had been registered in the
register of the National House
of Chiefs on 14/3/1984 in
compliance with the statutory
provisions of the
Chieftaincy Act 1971 (Act 370)
the extant legislation at
the time. Further that, 1st
Respondent could therefore not
have described himself as the
Chief of Amoasima and seek
redress in court for the name of
the Chief of Amoasima to be
expunged from the register.
(12)
The 1st Respondent on
the other hand stated that he
had been duly nominated, elected
and enstooled Chief of Amoasima
in accordance with the custom
and usage of Amoasima so he had
the requisite capacity to bring
the application. He deposed
that, his status as the duly
enstooled chief was evident on
the face of Exhibits “JKA2” and
“JKA10” which are letters
written to his employers after
his installation notifying them
of his customary position. He
further stated that the 2nd
and 3rd Respondents
as Queen Mother and Head of the
Royal family respectively, had
capacity to apply to the court
for the removal of the
Appellant’s name.
(13)
We have considered the
Appellant’s submissions on the
issue of
capacity and it is clear to
us that he is confusing capacity
to embark on proceedings in a
court of law with locus standing
to sue in respect of a
particular issue. The substance
of the Appellant’s case on this
issue is that the Respondents do
not have any legal right that
the National House of Chiefs
have refused to respect so as to
entitle them to apply for
mandamus against the House. But
from the affidavit evidence, the
1st Respondent
certainly has sufficient
interest in the matter of having
the name of the Appellant
removed from the National
Register of Chiefs since it is
evident that he was enstooled
chief of Amoasima and the
presence of the name of the
Appellant in the Register of
Chiefs had impeded his efforts
to get his name inserted in the
register as the Chief Amoasima.
Furthermore, as stated by the
Respondents, the interest of the
2nd and 3rd
Respondents in ensuring that the
wrong person is not stated in
the register as the Chief of
their community cannot be
doubted having regard to their
customary positions.
Consequently, we find no merit
in this ground of appeal and
same is dismissed.
(14)
Additional Ground 3:
“That the Court below erred in
not holding that the removal of
the name of a chief from the
National Register of Chiefs is
not amenable to orders of
mandamus”
The Appellant has
also assailed the judgment of
the 1st Appellate
court for failing to hold that
the removal of the name of a
Chief from the Register of the
National House of Chiefs was not
amenable to orders of mandamus.
The Appellant cited in support,
the decision of this court in
the case of;
The
Registrar & President National
House Of Chiefs Ex-Parte;Kojo
Yamoah & Anor. Civil Appeal
No.J4/45/2017 dated 25th
July 2018 as affirming
holding (5) of the case of
IN RE;
Oguaa Paramount Stool ,Garbrah
Vs. Central Region House of
Chiefs [2005-2006] SCGLR 193
as follows:- “because the
act of registration did not
constitute adjudicatory acts
such acts, were not amendable to
the writ of certiorari. However
the exercise of administrative
act could be challenged under
Section 50(1) of Act 370 and
otherwise by an action in the
appropriate Court to set aside
any wrong registration”.
(15)
The Appellant maintains that, by
implication when a person’s name
has been wrongly entered into
the National Register of Chiefs,
recourse to the aggrieved party
was to section 50 (7) of Act 370
to challenge the said
registration in this court. He
argued further that in seeking
to set aside such registration,
the remedy could not be sought
by resort to mandamus. The
Appellant submitted further that
this court per the
Ebusuapanyin Kojo Yamoah case
(supra) held that to act on
grounds of fraud, the fraud must
be established in a Court of
competent jurisdiction. The
Appellant submitted further as
follows:- “The Ex-parte
Ebusuapanyin Kojo Yamoah case
appears to be on the same leg
the name of the Appellant herein
had been on the National
Register since 1984 and the
Respondents were aware of this
because they staged in the same
Amoasima town with the
Appellant; and it is only on the
7th December, 2006
that the 1st
Respondent wrote the “demand
notice” i.e. about Twenty-three
(23) years to the National House
of Chiefs demanding that the
Appellant’s name be removed”.
The Appellants arguments
attempted to draw similarities
in the instant case with the
facts and pronouncements of
Appau JSC in the Ex-parte
Ebusuapanyin Kojo Yamoah case
(supra).
(16)
In their response, the
Respondents deny the claim of
Appellants that the Ex-parte
Ebusuapanyin Kojo Yamoah case
(supra) laid down any
proposition to the effect that
an insertion of a name on the
national register of chiefs
could not be challenged in the
High Court by an order of
mandamus since an administrative
duty could be enforced under
article 23 of the 1992
Constitution for the performance
of a public duty. In the
judgment of the
Court of Appeal (page 396 of
the record) the court held
thus:- ‘‘As noted above,
the trial court upheld the
Respondents application and
ordered the issuance of
mandamus. The Trial Court
concluded that the Respondents
were entitled to the writ of
mandamus for the reason that the
National House of Chiefs had not
followed the proper procedure in
approving the Chieftaincy
Declaration Forms of Kwaku Benyi
,that having regard to the
allegations contained in the
supporting affidavit concerning
the ruling of the High Court
which allegedly quashed the
judgment of the Asebu
Traditional Council and the
Appellant’s and the National
House of Chiefs reaction to the
said allegation, the Appellant
and the Respondent are deemed to
have admitted the existence of
that ruling and that the
assertion of the Appellant‘s
name in the Register had been
fraudulently procured”.
(17)
Whereas as earlier observed the
Appellant made attempts to
create similarities of the
instant case and facts before
this court in the
Ebusuapanyin Kojo Yamoah case
(supra) the two cases are
clearly distinguishable. In the
instant case, the Appellant was
given the opportunity to be
heard in all proceedings
affecting his claim to the stool
from the Judicial Committee of
the Asebu Traditional Council
and the respective proceedings
of the High Court and the Court
of Appeal. The Appellant’s
counsel appears to have clearly
misapprehended the peculiar
facts of the instant case with
those of the Ex-parte
Ebusuapanyin Kojo Yamoah case
(supra) where Appau JSC
(incidentally the president of
this panel) held inter alia
at page 16 of the judgment as
follows:- “To say that a
Chief’s name be expunged from
the Register means he has ceased
to be a chief an the only acts
that can justify and amendment
and removal or both of a Chief’s
name from the Register as
indicated supra, include death,
abdication, destoolment and
such other occurrences as are
recognized by law or as are
added by law; for instance an
order of a judicial committee or
an order of a court of competent
jurisdiction to that effect.
Such occurrences are
contested according to law and
the chief whose name is stated
for removal or deletion from the
register is given a hearing
(emphasis mine). There
should be a justification under
the law for such a removal or
deletion from the Register. This
was not what happened in this
case” (emphasis supplied)
(18)
The learned judge in the above
quoted passage was careful not
to close the grounds upon which
the name of a chief may be
lawfully ordered to be removed
from the national register of
chiefs. He said “such
other occurrences as are
recognized by law.” The
gravamen of the case of the
respondents is that the name of
the Appellant was irregularly
entered in the register of
chiefs in that his chieftaincy
declaration forms were forwarded
for approval in the face of a
high Court ruling that quashed
the grounds upon which the
Appellant was holding himself
out as chief of Amoasima as
against the 1st
Respondent. That meant that the
administrative processes leading
to the insertion of the name of
the Appellant in the register of
chiefs were invalid and can be
reversed by a writ of mandamus.
(19)
The second point made in the
Yamoah case was the
need for the person whose name
is to be removed to be given a
hearing and in this case, the
Appellant was served with the
application seeking the removal
of his name by mandamus and was
accorded hearing before the
order was made. In the
circumstances, the Yamoah
case does not advance
the fortunes of the Appellant in
this appeal.
WHETHER THE COURT CAN EXERCISE
SUPERVISORY JURISDICTION OVER
ADMINISTRATIVE BODIES
(20)
The power of the High Court to
exercise its supervisory
jurisdiction to issue
prerogative writs as provided
for under Article 141 of the
1992 Constitution as follows:-
“The High Court shall
have supervisory jurisdiction
over all lower courts and any
lower adjudicating authority and
may in the exercise of that
jurisdiction issue orders and
directions for the purpose of
enforcing or securing the
enforcement of its supervisory
powers’’.
The Appellant relying on this
provision argues that as the
approval and entry of the name
of the Appellant was an
administrative and not
adjudicatory process, the High
Court had no supervisory
jurisdiction in respect of the
decision to enter his name in
the register of chiefs. This
line of argument that limited
the supervisory jurisdiction of
the High Court to only judicial
and quasi-judicial decision was
once accepted in some cases in
Ghana but for sometime now it
has been firmly jettisoned.
In the
case of Republic v High Court
(Fast Track Division) Accra;
Ex-parte Electoral Commission
(Mettle Nunoo & Ors-Interested
Parties) [2005-2006] SCGLR 514,
the Supreme Court stated
categorically, that the High
Court has supervisory
jurisdiction over administrative
bodies and in respect of
administrative decisions. This
is on account of the powers of
the High Court at common law
that have been preserved by
Article 126(2) of the
Constitution 1992 as well as
Article 23 of the Constitution.
See also the case of
Republic Vs. National House Of
Chiefs Ex-parte Akrofa Krukoko
II (Enimil VII - Interested
Party) [2007-2008] SCGLR.
It is therefore no longer in
doubt that the supervisory
jurisdiction of the High Court
covers administrative decisions.
The Appellant further contended
that, it was because the
National House of Chiefs refused
to enter the name of the 1st
Respondent in the register of
chiefs on account of the
presence of the name of the
Appellant that led to the
application for mandamus. He
then argued that the Chieftaincy
Act 1971 (Act 370) provides that
where the National House of
Chiefs refuses to enter the name
of a chief in the register such
chief may appeal to the Supreme
Court. So since the statute has
granted a relief to an aggrieved
chief who has been refused entry
of his name in the register the
application for mandamus ought
to have been refused. This
argument too has been made
before in relation to mandamus
in a chieftaincy matter but was
rejected by the Supreme Court in
the case of
Republic Vs. National House of
Chiefs; Ex-Parte Akrofa Krukoko
II [2007-2008] 1 SCGLR 173
at 178. In that case, this
court ventilated its thoughts
through Adinyira JSC thus:-
“Though the remedy of appeal
to the Supreme Court is
available to the appellant as a
person aggrieved by the refusal
of the National House of Chiefs
to register him as a chief under
Section 50(2) and (7) of the
Chieftaincy Act 1971 (Act 370 )
nothing in law precludes the
High Court from entertaining his
application if warranted”. See
the case of
Republic
Vs. Lands Commission; Ex-parte
Vanderpuye-Orgle Estates Ltd.
[1998-1999] SCGLR 677”.
Therefore, this ground of appeal
too has no merits and it is
accordingly dismissed.
(21)
The Appellant in his statement
of case has said a lot about
what happened in the
consideration of his Chieftaincy
Declaration Forms at the
National House of Chiefs and
submitted that the processes
were regular and it was rather
the Respondents who attached
incomplete photocopies of
documents from the records of
the National House of Chiefs and
misled the court to grant their
prayer. Our simple response to
these submissions is that the
information contained in those
forms was false since it failed
to indicate that the decision
against the 1st
Respondent and in favour of the
Appellant had been quashed by
the High Court. In the face of
that, it was procedurally
improper for the forms to have
been forwarded and that has to
be corrected by ordering the
removal of the name.
(22)
In conclusion, from our review
of the entire record of appeal
and the examination of all the
grounds of appeal on which the
Appellant anchored his appeal,
as well as the application of
the relevant law, we are not
persuaded that we should
interfere with the findings and
conclusions of a Trial Court and
the Court of Appeal.
Accordingly, we find no merit in
the appeal and it is hereby
wholly dismissed.
I. O. TANKO
AMADU
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
A.M.A. DORDZIE
(MRS.)
(JUSTICE OF THE SUPREME COURT)
A. LOVELACE-JOHNSON (MS.)
(JUSTICE OF THE SUPREME COURT)
COUNSEL
S. K. AMOAH WITH HIM NANA AMA
AMOAH FOR THE 1ST, 2ND
AND 3RD
APPLICANTS/RESPONDENTS/RESPONDENTS.
AMPONSA DADZIE WITH HIM R. K.
BOADU FOR THE INTERESTED
PARTY/APPELLANT/APPELLANT. |
