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I
R U L I N G
GEORGINA
WOOD CJ:
I have had the opportunity to
read the opinions of my
respected brothers and sister in
this matter. Unfortunately, I do
not agree with the majority
views expressed by my respected
brethren. To the contrary, I am
inclined to agree with the
opinion of my brother Dotse JSC.
Consequently, it would in my
view, be helpful if I briefly
stated my reasons for allowing
this application which seeks to
invoke the supervisory
jurisdiction of the Supreme
Court for an order of certiorari
to quash the ruling of the High
Court Koforidua dated 13th
December, 2007.
The interested party who was the
Plaintiff in the original action
sued the Defendants, the
Applicants herein for the
following reliefs:
-
A declaration that the
Plaintiff body is the only
lawful and statutory
Traditional Council in
Akuapim
-
A declaration that the
defendants so-called
Traditional Council, namely
Akuapim Anafo Traditional
Council, Okere Traditional
Council, and Akuapim Guan
Traditional Council
respectively are null and
void.
-
An injunction restraining
the Defendants from using,
operating as, dealing in or
in any way claiming through
the said respective
Councils.
-
An injunction restraining
the Defendants from claiming
to be the Omanhene or
Presidents of the said
respective Councils.
In my thinking, the “claiming
through the said respective
Councils” referred to in relief
3 can only be related to claim
to be an Omanhene as expressed
in relief 4.
The Defendants, after being
served with the writ, filed a
motion to set aside the writ on
the grounds that the High Court,
Koforidua lacked jurisdiction to
hear the matter as it was one
affecting chieftaincy.
On the 13th day of
December 2007, the High Court
ruled on the motion by saying it
was not a cause or matter
affecting chieftaincy and
therefore it had jurisdiction to
deal with the matter.
Dissatisfied with the decision
of the Court, the Applicant
filed a motion invoking the
supervisory jurisdiction of the
court for an order of certiorari
directed at the High Court,
Koforidua.
The ground was couched in these
terms:
“That the learned Trial Judge
erred in law by holding that the
matter before him was not a
cause or matter affecting
chieftaincy and by reason of the
said error wrongfully assumed
jurisdiction in a cause or
matter affecting chieftaincy.”
I must at the outset state that
I am not entirely too happy with
this formulation. On the
surface, it reads like an
ordinary appeal ground. But we
are here to do substantial
justice to the parties. Courts
must be wary, in deserving
cases, of attaching undue weight
to the form or words used in the
formulation or presentation of
writs, reliefs, claims, causes
or matters for judicial relief.
Having regard to the claim
before us, when purposively
read, and given that equity
looks to the substance rather
than the form, my understanding
of this ground is that the judge
committed an error of law, which
error is so clearly patent on
the face of the record, it ought
to attract our supervisory
intervention.
WHAT IS A CAUSE OR MATTER
AFFECTING CHIEFTAINCY?
The statutory provisions as
referred to by my brother Dotse
JSC, namely, the Courts Act, Act
459 s.117(a-e) and the S.76 of
the Chieftaincy Act 2008,Act 759
defines a cause or matter as
follows:
a.
The nomination, election,
appointment or installation of a
person as a chief or the claim
of a person to be nominated,
elected, appointed or installed
as a Chief.
b.
The destoolment or abdication of
any chief.
c.
The right of any person to take
part in the nomination,
election, appointment or
installation of any person as a
chief or in the destoolment o
any chief.
d.
The recovery or delivery of
stool property in connection
with any such nomination,
election, appointment,
installation, destoolment or
abdication.
e.
The Constitutional relations
under customary law between
chiefs.
COURTS INTERPRETATION
There is no dearth of judicial
authority on what constitutes a
cause or matter affecting
chieftaincy. The case law is
well settled, and spans many
years of scholarly
jurisprudence. The
latest in the long line of cases
is
In re Oguaa Paramount Stool;
Gabrah v Central Regional House
of Chiefs & Haizel [2005-2006]
SCGLR 193.
This court unanimously speaking
through Prof Ocran JSC observed:
“It appears from the language of
the Chieftaincy Act, 1971 that
the litmus test for determining
whether an issue is a cause or
matter affecting chieftaincy is
the existence of a ‘question’ or
‘dispute’ or contested matter,
or a cause in the sense of a
justiciable controversy, with
respect to any of the matters
listed therein, and not
literally in respect of every
matter bearing on chieftaincy…”
Though the decision relates to
the statutory provisions of the
repealed Chieftaincy Act the
provisions under S66 thereof,
the wording of the corresponding
provisions in the present S76
of Act 759 being the same, the
principle in the Gabrah case
represents the correct statement
of the law.
It is provided by the Courts
Act, Act 459 in Section 57 as
follows:
“Subject to the Constitution,
the Court of Appeal, the High
Court a Regional Tribunal, a
circuit Court and a District
Court shall not entertain at
first instance or on appeal, a
cause or matter affecting
Chieftaincy.
See also THE LAW OF CHIEFTAINCY
IN GHANA, 2008 by Justice S.A.
Brobbey @ pg 232. The learned
author writes:
“Another criterion for
determining whether or not a
case is a cause or mater
affecting chieftaincy is this:
If evidence on how the party
was nominated, elected,
selected, enstooled or
enskinned, deposed or abdicated
has to be adduced before the
issue raised in the case can be
determined, then the case is
most certainly a cause or matter
affecting chieftaincy.”
The learned author continues at
pg 233 thus;
“For instance, if a petitioner
alleges that the respondent is a
divisional chief, while the
respondent maintains that he is
a paramount chief, before a
conclusion can be reached as to
which is the correct status of
the respondent, evidence has to
be led to prove how the
respondent was nominated,
elected, selected, enstooled or
enskinned, the actual ceremonies
performed, the oath he took, to
whom he swore allegiance, the
subordinate chiefs who swore
oath of allegiance to him etc.
Only LI 798 and CI 27 can be
used to adduce such evidence. CI
47 and Cap 4 cannot be used to
adduce such evidence …”
In this application I had two
main issues to grapple with. One
of them raises this pertinent
subsidiary question. What does a
court do when faced on a
prelimnary jurisdictional legal
objection with a mixture of
claims, some of which can be
determined by the court before
which the objection is raised,
while the other claims may be
dealt with by some other fora?
Does the court before which the
objection is raised, without
exception, has to separate the
claims and assign the different
claims to their respective fora
or may the court assign the
entire cause or matter to the
one tribunal where the facts and
the law show that that tribunal
has jurisdiction to deal with
all the claims?
The issues for determination in
this matter will be:
-
Whether or not there is only
one traditional Council in
Akuapem or there are four
traditional Councils.
-
Whether or not the
Defendants are Paramount
Chiefs or Divisional Chiefs.
The trial judge held that the
issues raised for determination
did not fall within the
definition of a “cause or matter
affecting
Chieftaincy” and therefore the
issues were justiciable by the
High Court. That may well be so.
Again, the trial Judge rightly
in my view observed that,
Traditional Councils are a
creature of statute. It may
properly be concluded that that
the issues as to whether or not
the Akuapim Traditional Council
is the only Traditional Council
in Akuapim and the issue
touching on the legality or
otherwise of the other
traditional councils are all
properly laid before the High
court, as it is rightly clothed
with jurisdiction to deal with
the matters raised in the
claims.
But, it is important that bear
in mind that it is possible to
couch a purely commercial or
labour dispute as a human rights
matter, so can we couch a cause
or matter affecting chieftaincy
as one not falling into that
category. A court’s duty at all
times is to be on the alert and
unmask such clever undertakings
or camouflages so that cases may
be assigned to their proper
forum.
There is no doubt that the
reliefs 3 and 4 of the original
action, which indeed are the
main or real matters in
contention, fall within the
ambit of causes or matters
affecting chieftaincy. Relief
four on Plaintiff’s writ brings
up the issue of whether or not
the Defendants are Paramount
Chiefs as the statutory
requirement is that they must
necessarily be Paramount Chiefs
before they can head a
Traditional Council.
This takes me back to the
subsidiary issue I raised, do we
separate the claims and have
both the High Court and the
Judicial Committees of the
Traditional Councils deal with
different aspects of it? I do
not think we need to handle this
case in this strict
categorisation and separate the
two classes those to be handled
by the court and those by the
other forum.
Firstly, the first two claims
are mere declaratory reliefs.
This does not detract from their
value, but the truth remains
that declaratory judgments as we
know too well are unenforceable.
They lack teeth and cannot bite.
Thus the real or substantial
matters in this case are the
reliefs 3 and 4. In a manner of
speaking, the first to reliefs
are mere appendages and have not
much to offer by way of judicial
relief. The importance of the
reliefs 3 and 4 to the
plaintiffs ought not to be lost
on this court one. There would
have been no point in tagging on
the reliefs 3 and 4 if the
reliefs 1 and 2 were the be all
and end all and truly satisfied
the plaintiffs’ needs. Even so,
they carry “causes or matters
affecting chieftaincy” nuances
or underpinnings. The pleadings
which are annexed to these
proceedings and which as I shall
demonstrate shortly forms part
of the record, bears ample
testimony that at the heart of
this controversy lies matters
affecting chieftaincy.
Among other things, courts have
a duty to avoid a multiplicity
of suits and promote judicial
harmony. But then also, it is
imprudent to have two separate
adjudicatory bodies dealing with
different aspects of a
substantive matter with
interrelated issues. What if
they gave conflicting or two
different irreconcilable
opinions? Again if we examined
the social policy reasoning
behind the vesting of
jurisdiction in these
specialised tribunals to deal
exclusively with matters
affecting chieftaincy, then we
clearly see the wisdom in going
beyond this strict separation
and referring the entire matter
to the appropriate body mandated
with chieftaincy. Indeed, it
sound judicial case management
practice will not approve of a
situation where both the High
Court as well the Judicial
Committee handled separate but
closely related aspects of this
one case.
The second crucial issue raises
this critical issue: why did the
aggrieved persons not appeal;
why seek the court’s supervisory
jurisdiction, given the clearly
well settled principle that some
errors are subject to correction
only via the appellate route?
This question is linked to the
broader issue of what
constitutes an error of law
patent on the face of the
record.
In the case of Republic v
Court of Appeal, Accra ex parte
Tsatsu Tsikata [2005-2006] SCGLR
612, I adopted the reasoning
of my learned brother Justice
Date-Bah in the case of Ex
Parte Industrialization Fund for
Developing Countries [2003-2004]
SCGLR 348 and I reiterate it
here.
“Where the High Court (or for
that matter the Court of Appeal)
has made a non-jurisdictional
error of law, which was not
patent on the face of the record
(and by the ‘record’ was meant
the document which initiated the
proceedings, the pleadings, if
any, and the adjudication, but
not the evidence nor the reasons
unless the tribunal chose to
incorporate them) the avenue for
redress open to an aggrieved
party was an appeal, not
judicial review. Therefore,
certiorari will not lie to
quash errors of law which were
not patent on the face of the
record and which had been made
by a superior court judge who
was properly seised of the
matter before him or her” In
that regard, an error of law
made by the High Court or the
Court of Appeal, would not be
taken as taking the judge
outside the court’s
jurisdiction, unless the court
had acted ultra vires the
Constitution or an express
statutory restriction validly
imposed on it.”
The record in these proceedings,
that is the writ, the pleadings
and the reasons all show the
action was a chieftaincy
matter., camouflaged as a no
–chieftaincy cause. On the
peculiar facts of this case, it
augurs ill for judicial economy
to separate the claims. In any
event the in my opinion, the
reliefs 1 and 2 are so
intertwined with the reliefs 2
and 3 they form a whole. As
rightly found by my learned
brother, there is a patent error
of law on the record justifying
our supervisory intervention,
for which reason I will grant
the application.
G. T. WOOD (MRS)
(CHIEF JUSTICE)
ATUGUBA J.S.C:
This is an application for an
order of certiorari directed to
the High Court Koforidua to
quash a ruling of John Bentil J
dated the 13th day of
December 2007 on the ground
“That the learned trial judge
erred in law by holding that the
matter before him was not a
cause or matter affecting
chieftaincy and by reason of the
said error wrongfully assumed
jurisdiction in a cause or
matter affecting chieftaincy.”
The background to this matter is
that the interested party, the
Akwapem Traditional Council, on
the 18th day of June
2007 issued a writ in the High
Court, Koforidua against the
applicant and 2 others claiming
as follows:
“1. A declaration that the
plaintiff body is the only
lawful and statutory
Traditional Council in Akwapem.
2. A declaration that the
defendants so-called Traditional
Councils namely, Akwapem Anafo
Traditional Council, Okere
Traditional council and Akuapem
Guan Traditional Council
respectively are illegal and
void.
3. An injunction restraining the
defendants from using, operating
as dealing in or in any way
claiming through the said
respective Councils.
4. An injunction restraining the
defendants from claiming to be
Omanhene or Presidents of the
said respective councils”
The third defendant to the
action brought a motion to set
aside the writ on the ground
that it is a cause or matter
affecting chieftaincy over which
the High Court has no
jurisdiction. The motion was
dismissed, hence this
application.
Although the trial judge
erroneously held that it was
necessary to ascertain if the
defendants are recognised as
chiefs by the minister by notice
in the Local Government
Bulletin, his eventual
conclusion that “The issue
before this court is whether or
not there is only one
Traditional Council or 4
Traditional Councils in the
Akuapem Traditional Area. As
analysed above, determination of
this issue has no relation to
Section 66 of the Chieftaincy
Act. This Court has jurisdiction
to determine same,” is
correct. (Emphasis supplied)
Cause or matter affecting
chieftaincy has been defined in
section 66 of the Chieftaincy
Act, 1971 (Act 370), which
was the existing enactment
relating to chieftaincy in Ghana
at the time of the action in
this case, as follows:-
“In this Act, unless the context
otherwise requires, “cause or
matter affecting chieftaincy”
means a cause, matter, question
or dispute relating to
(a)
the nomination, election,
appointment or installation of a
person as a Chief or the claim
of a person to be nominated,
elected, appointed or installed
as a Chief, or
(b)
the destoolment or abdication of
a Chief, or
(c)
the right of a person to take
part in the nomination,
election, appointment or
installation of a person as a
Chief or in the destoolment of a
Chief, or
(d)
the recovery or delivery of
stool property in connection
with nomination, an election,
appointment, installation, a
destoolment or an abdication, or
(e)
the constitutional relations
under customary law between
chiefs;”
None of these aspects of the
definition of cause or matter
affecting chieftaincy impinges
on the issues involved in this
case.
The question of the existence,
nature and composition of a
traditional council has
consistently been judicially
regarded as a statutory or
administrative matter which is
not a cause or matter affecting
chieftaincy. See Republic v.
President of Gbi Traditional
Council; Ex Parte Torgbe Kwasi
Buami VII (1974) 2GLR 427
In The Republic v.
Techiman Traditional Council Ex
parte Tutu (1982-83) GLR 996
CA the facts and decision of the
case as stated in the head notes
are as follows:
“The respondents, the kingmakers
of Tanoso, brought destoolment
charges against the appellant,
the queen mother of Tanoso,
before the judicial committee of
the Techiman Traditional Council
(TTC). She raised an
objection founded on want of
jurisdiction of the TTC to hear
the case because Tanoso did not
form part of the TTC but rather
the Kumasi Traditional Council
(KTC).(Emphasis supplied).
Her objection was, however,
overruled and the TTC, after
hearing the case, gave judgment
against her- finding her guilty
of all the charges levelled
against her. The appellant
therefore applied for an order
of certiorari to quash the
judgment but her application was
dismissed by the High
Court, Sunyani. (Emphasis
supplied). In affirming the
decision that Tanoso was within
the TTC, the High Court, in its
ruling, held in the light of the
conflicting Local Government
Bulletins for 1977 and 1979
which had placed Tanoso under
the TTC and the KTC
respectively, its status as to
which traditional council it
belonged, could be determined
by “the traditionally
established conduct of the
people themselves.”(Emphasis
supplied). In the instant appeal
against the ruling,
Held, allowing appeal: (1)
chieftaincy since the British
Colonial administration had been
governed by statute and that had
continued since the independence
of Ghana in 1957. In 1958, the
legislation which governed
chieftaincy was the House of
Chiefs Act, 1958 (No.20 of 1958).
Section 4(3) of that Act had the
Asantehene and the occupants of
the stools mentioned in the 3rd
schedule to the Act as members
of the Ashanti Regional House of
Chiefs. There were state
councils within the regions. The
Asantehene was also the
Kumasihene and as such the head
of the Kumasi State Council. And
the evidence was that as at
1958, Tanoso formed part of the
Kumasi State Council. Therefore
Tanoso was under the Asantehene
as Kumasihene. When the Brong
Ahafo Region was created by the
Brong-Ahafo Region Act, 1959
(No. 18 of 1959), the
Amanhene in the newly created
region were made to have their
own House of chiefs. It was
noteworthy that Tanosohene, not
being an Amanhene was not
included. For, after the
creation of that separate region
from Ashanti, the next Act
passed to govern Chieftaincy was
the Chieftaincy Act, 1961
(Act 81), the purpose of
which bring together in one act
all the existing enactments
relating to chieftaincy which
were scattered in the
legislative and executive
instruments. There were a number
of changes in Act 81, e.g. the
terms “state” and “state
council” were repealed by the
terms “traditional area” and
“traditional council”
respectively. Thus Act 81
created the joint Tano-Subin
Traditional Council which
excluded Tanoso even though
Tanoso was in the Tano-Subin
Area. And Act 81 s. 12 provided
that a state council in
existence at the commencement of
the Act was to be converted into
a Traditional Council where the
state council substantially
corresponded to the traditional
area and in the case of the
Kumasi Traditional Area by
section 11 of Act 81, the
Asantehene exercised
jurisdiction in chieftaincy
matters conferred by section 15
of Act 81. (Emphasis
supplied). The subsequent
enactment, i.e. the
Chieftaincy (Amendment) Decree,
1966 (N.L.C.D. 112) which
was to be construed with the
provisions of Act 81, made
certain chiefs in Ghana but did
not affect Tanoso. Under
N.L.C.D. 112, the Tano-Subin
Traditional Council reverted to
the Kumasi Traditional Council.
(Emphasis supplied).
After the Constitution, 1969,
the Chieftaincy Act, 1971
(Act 370), was passed to
amend the statute law on
chieftaincy and to bring it in
conformity with the provisions
of the constitution, 1969, and
to make other provisions
relating to chieftaincy.
Traditional Councils in
existence before the passing of
Act 370 were made to continue.
The position of Tanoso as coming
under the Kumasi Traditional
Council was not affected by the
Act, and there had not been any
legislation which had taken
Tanoso from the jurisdiction of
the Kumasi Traditional Council
since then. The High Court had
therefore erred in holding that
Tanoso was within the Techiman
Traditional Council and that its
status could be determined by
“the traditionally established
conduct of the people themselves.”
(Emphasis supplied).
At page 1001 Coussey J.A. said:
“Traditional Councils are a
creation of Statute Law; and
whether a particular town or
village with its chief belongs
or not to a traditional council
is a matter which can be
ascertained from the statute
creating the particular
traditional council”.(Emphasis
supplied). For this reason he
further held at page 1002 thus “There
is no significance to the list
attached showing the composition
of the Techiman Traditional
Council at present. It emanates
from the Brong Ahafo Regional
House of Chiefs which is not
vested with authority to create
such a council.”
(Emphasis supplied).
Similarly in Republic v.
AnloTraditional Council, Ex
parte Hor II (1979) GLR 234
C.A. at 242 Jiagge J.A. stated
bluntly thus: “There is
nothing arguable about the
so-called independent Somey
Traditional Area which can only
exist when it is created by a
legal instrument” She
earlier, at page 241, said: “A
trial court has the duty to take
judicial notice of prevailing
legislation and legislative
instruments”. (Emphasis
supplied). The facts of the case
as per the head note are as
follows:
“The appellants commenced a
constitutional suit before the
judicial committee of the Anlo
Traditional Council (A.T.C.)
against Togbe Hor (T.H.) and
some others. In his defence
T.H., who had been described
and accorded recognition as
Fiaga (paramount chief) of Somey
Traditional Area (S.T.A.) by the
Local Government Bulletin No. 25
of 6 June 1975, claimed among
other things that as the
paramount chief of S.T.A., the
A.T.C. had no jurisdiction over
him and furthermore the
matter did not arise within the
area of the A.T.C. In an
application for prohibition
directed against the A.T.C. and
brought on behalf of T.H.
counsel contended that the
proper forum was the Volta
Regional House of Chiefs because
T.H. was a paramount chief.
(Emphasis supplied).
In affidavits in opposition
sworn to by the registrar of the
A.T.C. and the appellants
respectively, it was averred by
both parties that the Anlo
Traditional Area over which the
A.T.C. had jurisdiction included
Somey and also that T.H. was not
a paramount chief within the
law. The trial judge holding
himself incompetent to conduct
an inquiry as to the actual
status of T.H., confined himself
to the publication in the Local
Government Bulletin and held as
reported in [1978] GLR 105 that
T.H. was the paramount chief of
the S.T.A. and was therefore
not amenable to the jurisdiction
of the A.T.C. on appeal,
Held: allowing appeal:
(1)
“the Somey Traditional Area came
into existence in 1962 when the
Minister in exercise of his
powers under Act 81,s.12(2)
elevated the Somey Stool from
its divisional status under the
Anlo Traditional Area to a
paramount stool.
(Emphasis supplied). However in
1966 the stool was reverted to
its divisional status and the
Somey Traditional Council was
accordingly dissolved by
N.L.C.D. 112, paras 1(1) and 2.
Consequently in the absence of
any legal instrument creating a
paramountcy out of the Somey
stool, the Anlo Traditional
Council was competent to
exercise jurisdiction over the
occupant of the Somey stool in
constitutional matters”.(Emphasis
supplied)
Similarly in Dzaba III v
Tumfuor (1978) GLR 18 C.A.
at pages 24-25 the court per
Anin J.A. regarded the question
of the existence, character and
composition of a traditional
council as purely a statutory
matter. Anin J.A. thereat stated
as follows:
“Turning to the primary issue
whether or not the inferiror
tribunal of the eight Kpandu
chiefs named in exhibit B who
constituted the Akpini
Traditional Council and declared
the appellant destooled was
valid, I entertain no doubt
whatsoever that, in the first
place, that body lacked legal
competence to determine any
cause or matter affecting
chieftaincy, such as the
purported destoolment of the
appellant. Under the
Chieftaincy Act 1961 (Act 81),
the traditional council for the
area in question was the Akpini
Traditional Council: the pre
existing Akpini State Council
was deemed to be the traditional
council for the area
comprehending Wusuta: see
section 12(1) of Act 81.(Emphasis
supplied). Under the parent
State Councils (Colony and
Southern Togoland) Ordinance,
1952 (No. 8 of 1952), Sched.
II, the component divisions and
the Paramount Chief of Akpini
State numbered 23. Kpandu which
provided the paramount chief of
the State had only one
representation on the Akpini
State Council and Wusuta also
had only one representative on
the State Council”.
Later, on 30 November 1962,
the Minister for Justice (with
responsibility for Chieftaincy
Affairs) acting under section
12(2) of Act 81 constituted a
joint Traditional Council for
the area in question under the
title “Aveme-Awate-Wusuta joint
Traditional Council” with
headquarters at Aveme Gbohome
(vide local Government Bulletin
for 30 November 1962 at
pp404-405, item 17). The
creation of this new joint
traditional area meant the
disintegration of the original
Akpini State Council and the
elevation of the paramountcies,
e.g. a new Akpini Traditional
Council with headquarters at
Kpandu (vid item 10 in the said
Bulletin of 30 November 1962)”.(Emphasis
supplied).
After the coup which toppled the
Convention Peoples Party
Government in 1966, N.L.C.D. 112
was published on 5 December
1966. Under paragraphs 1 and 2
of this Decree, chiefs like the
Wusuta Chief, previously
elevated to the Status of
Paramount Chiefs, reverted to
their former status; in the case
of Wusuta, a reversion to
divisional status.
Traditional Councils then
existing in the Traditional area
of any such reduced chief
immediately before the
commencement of the Decree were
dissolved. (Emphasis
supplied). There was thus a
general reversion to the status
quo in traditional council
set-ups and in the repository of
chiefly allegiances. Thus by
operation of N.L.C.D. 112, paras
1 and 2, the 1962 joint
traditional council of
Aveme-Awate-Wusuta became
dissolved on 5 December 1966 and
the original Akpini Traditional
Council consisting of 23
divisions was revived. The
quorum for this council was as
prescribed in section 16(3) of
Act 81; namely, “No business
except that of adjournment shall
be transacted if less than one
half of the total number of
members are present.”(Emphasis
supplied). Thus, the quorum for
the Akpini Traditional Council
was at least twelve; that is not
less than half of the total
membership of 23.
In the decision being challenged
(exhibit B), the panel comprised
eight persons. All the eight
persons hailed from Kpandu which
was legally entitled to only one
representative. Quite apart from
the fact that seven out of
the eight panellists did not
qualify to sit as “members”
under section 14 of Act 81, the
total of eight persons fell
numerically short of the legal
quorum of twelve for the Akpini
Traditional Council as by law
established.” (Emphasis
supplied).
From the foregoing cases it is
quite clear that the High Court
has jurisdiction to determine
the existence, character and
composition of a traditional
council.
A word needs to be said, for
the avoidance of doubt, about
relief 4 of the writ in this
case claiming, as aforesaid: “An
injunction restraining the
defendants from claiming to be
omanhene or Presidents of the
said respective Councils.”
(Emphasis added). The nearest
affinity that this claim has
with a cause or matter affecting
chieftaincy is whether it raises
any constitutional relations
between chiefs. It does not. All
it does is to determine the
relationship between the alleged
paramount chiefs and the alleged
traditional councils; do those
traditional councils exist? If
they don’t then the defendants
can’t be omanhene thereof,
whether or not they are in fact
omanhene at all. The Traditional
Council is different in law from
the chiefs who constitute it.
The traditional council is not a
chief though it contains chiefs
and is indeed comprised of them.
Thus in Ansu-Agyei v. Fimah(1993-94)
1GLR 299 SC, Ampiah J.S.C.
delivering the judgment of the
Supreme Court found it necessary
to draw this distinction at pp.
303-304:
“The Dormaa Traditional
Council (the ninth respondent
herein) had been joined in an
action for the refusal of the
Omanhene of the Dormaa
Traditional Area and the
President of the ninth
respondent council, to allow the
second petitioner to swear the
oath of allegiance to him and to
restrain the ninth
respondent-council from
recognising the first respondent
as the chief of Wamfie and the
Krontihene of the Dormaa
Traditional Area. It is obvious
that the ninth respondent had
been joined to enable the
petitioners take their action
away from that council”.
(Emphasis supplied).
This action was commenced in
1984. The relevant Constitution
is therefore the Constitution,
1979 as saved. Article 180(2) of
the Constitution, 1979
provides:
“(2) The National House of
Chiefs shall-
(a)
have original jurisdiction in
all matters relating to a
paramount stool or the occupant
of a paramount stool including a
queen mother to a paramount
stool.”
See also section 23(1) of the
Chieftaincy Act 1971 (Act 370).
The reliefs sought by the
Petitioners have no direct
reference to a paramount stool
or the occupant of a paramount
stool or the queen mother stool.
The only reference made to the
paramount stool is contained in
paragraph (12) of the
petitioners’ statement of the
facts and particulars upon which
they seek to rely for the
reliefs sought. It states:
“(12) That the petitioners
presented Nana Peprah (installed
under the stool name Nana Kojo
Peprah) to Nana Agyemang Badu,
Omanhene of the Dormaa
Traditional Area to swear the
oath of allegiance to him but
the Dormaahene for no reason
objected to Nana Peprah’s
candidature and prevented him
from swearing the oath of
allegiance.”
The Omanhene is also the
president of the Traditional
Council. Though customary
activities may be carried out at
the council’s premises using
some of the staff, the swearing
of the oath of allegiance is
purely customary and is the
responsibility of the omanhene
qua omanhene and not as the
president of the council.
References were made to certain
letters issued from the council
but the source of those letters
is the Omanhene. The substance
of the petitioner’s complaint is
the refusal of the Omanhene to
allow the first petitioner to
swear the oath of allegiance to
him. The Omanhene of the
traditional area may have been
the proper party to the action
and not the traditional council
only to plead bias and use that
as ground for taking the matter
to the regional house”
(Emphasis supplied).
All this goes to show that it is
not every matter that involves a
chief that constitutes a cause
or matter affecting chieftaincy,
see In re Osu Stool; Ako
Nortei II (Mankralo of Osu) v.
Nortey Owuo III (Intervener)
(2005-2006) SCGLR 628.
For all the foregoing reasons
save the erroneous holding
hereinbefore mentioned which is
hereby quashed, the application
is dismissed.
W. A. ATUGUBA
(JUSTICE OF THE SUPREME COURT)
R.C. OWUSU, J.S.C:
By the writ of summons filed on
18th June, 2007,
Akuapem Traditional Council
claimed against Nana Djan Kwasi,
Aburihene, Nana Asiedu Okoo,
Larteh Aheneasehene and Nana
Otutu, Kono IV, Adukromhene, the
Defendants therein, the
following reliefs:-
1. “A declaration that the
plaintiff body is the only
lawful and statutory Traditional
council in Akuapem”
2. A declaration that the
defendants so-called Traditional
councils, namely, Akuapem Anafo
Traditional council, Okere
Traditional Council and Akuapem
Guan Traditional Council
respectively are illegal and
void;
3. An injunction
restraining the defendants from
claiming through the said
respective councils.”
4. An injunction
restraining the defendants from
claiming to be omanhene or
presidents of the said
respective councils.”
The writ was accompanied by a
statement of claim setting down
the basis for the reliefs
sought.
On the 24th of July,
2007, the 3rd
Defendant, Nana Otutu Kono III,
Adukromhene, filed a motion
praying for an order to set
aside the writ of summons for
the reason that the High Court
lacked. Jurisdiction to hear
and determine the matter as same
is a cause or matter affecting
chieftaincy.
In support of the motion, Nana
averred in his affidavit that he
has the authority of the 1st
and 2nd Defendants to
depose to matters contained
therein, which matters are in
any case within his personal
knowledge.
This was after the Defendants
have entered conditional
appearance. On the 13th
of December, 2007, the High
Court, Koforidua, dismissed the
application to set aside the
writ of summons holding that;
“It is only when the relief
claimed is in relation to
matters set out in section 66 of
the chieftaincy Act, 1971, Act
370 that the matter becomes a
cause or matter affecting
Chieftaincy.”
The court was of the view that
the issue before it is whether
or not there is only one
Traditional Council or 4
Traditional Councils in Akwapim
and that the determination of
this issue has no relation to
section 66 of the Chieftaincy
Act. He therefore ruled that
the court has jurisdiction to
determine the matter before it
and therefore dismissed the
application.
Dissatisfied with the ruling of
the High Court, the Applicant is
before this court invoking its
supervisory Jurisdiction under
Article 132 of the 1992
Constitution praying for an
Order of Certiorari directed to
the High Court Koforidua for the
ruling to be brought up for same
to be quashed as the High Court
lacked jurisdiction in the
matter.
The ground for the application
as stated in the body of the
motion is that:-
“That the learned Trial Judge
erred in law by holding that the
matter before him was not a
cause or matter affecting
Chieftaincy and by reason of the
said error wrongfully assured
jurisdiction in a cause or
matter affecting chieftaincy.”
In the affidavit in support of
the motion, it is the contention
of the applicant that the
central issue in the matter is
whether the Defendants are
paramount Chiefs or Divisional
Chiefs. He therefore believes
the same to be true that the
only way by which that issue can
be resolved is by taking
evidence to establish whether or
not they have been nominated,
elected, appointed or installed
as such paramount chiefs in
accordance with customary law
and usage.
Following from this the
Applicant was firm in his belief
that the mater before the trial
court is a chieftaincy matter
and that is why the court has no
jurisdiction to try it.
According to the Applicant, the
High Court erred in ruling that
the matter before it is not a
chieftaincy matter and therefore
it has jurisdiction to hear it.
In his statement of case,
counsel for the Applicant argues
that having regard to the
pleadings of the plaintiff, and
the reliefs sought, the matter
before the High Court is a
matter or cause affecting
Chieftaincy since it can only be
determined by resort to the
Chieftaincy Act, Act.370 and the
Regulations made thereunder i.e.
Chieftaincy [Proceedings and
functions] Traditional Councils
Regulations, 1972 [L.I. 798] or
the Chieftaincy [National and
Regional House of Chiefs]
Procedure Rules 1972 [C.E.27].
At the time the application was
filed, the High Court had only
ruled that the matter before it
is not a chieftaincy matter and
therefore the court has
jurisdictions to hear it.
Whether or not the matter is a
Chieftaincy matter has been
determined by the High Court
even though that ruling might
have been erroneously given.
Is certiorari, the correct
process to be resorted to, to
get the error, rectified? Did
the court not have jurisdiction
to sit on the application moved
before it by the Applicant
herein and in the court below?
Is the error, complained of,
apparent on the face of the
record? These are questions,
the answers to which must be
given to determine whether this
application is properly before
this court.
In the case of REPUBLIC Vrs.
HIGH COURT ACCRA; EX-PARTE
EASTWOOD LTD [1994-95] GBR.557
at 563 this court set out the
basis on which an order of
certiorari can be obtained in
respect of a Judgment/ruling by
the High Court as follows:-
“The jurisdiction of the High
Court can, therefore only be
taken away by specific
legislation. If therefore,
there is an error of law
appearing on the face of the
record of a superior court which
warrants intervention by this
court by the exercise of our
supervisory jurisdiction, it
must be such an error as goes to
the wrong assumption of
Jurisdiction or the error is so
obvious as to make the decision
a nullity.”.
Where the proceedings are
regular, a charge that the trial
court had reached a wrong
conclusion by itself would not
constitute sufficient ground for
the grant of the order. See the
case of THE REPUBLIC Vrs. COURT
OF APPEAL, ACCRA; EX-PARTE:
TSATSU TSIKATA [2005-2006] SCGLR
612.
“It is plain that certiorari
will not issue as the cloak of
an appeal in disguise. It dos
not lie in order to bring up an
order or decision for rehearing
of the issue raised in the
proceedings. It exists to
correct error of law where
revealed on the face of an order
or decision, or irregularity,
or absence of, or excess of
jurisdiction where shown……………
Dictum of Morris L.J. in the
case of REX Vrs. NORTHUMBERLAND
COMPENSATION APPEAL TRIBUNAL;
EX-PARTE SHAW [1952] 1 K.B. 338
at 357.
In our local case of REPUBLIC
Vrs. HIGH COURT; Accra:
EX-PARTE: INDUSTRIALIZATION FUND
FOR DEVELOPING COUNTRIES AND
ANOTHER [2003-2004] SCGLR.348
this court held that:-
“Certiorari is a discretionary
remedy which would issue to
correct a clear error of law on
the face of the ruling of the
court; or an error which amounts
to lack of Jurisdiction in the
court so as to make the decision
a nullity. In the case of
errors of law or fact not
apparent on the face of the
ruling the avenues for redress
is by way of appeal…………….
If the applicants disagreed with
the ruling, the remedy open to
them in the circumstances of the
case, was by way of appeal.”
See also the case of THE
REPUBLIC Vrs. HIGH COURT;
EX-PARTE: COMMISSION ON HUMAN
RIGHTS AND ADMINISTRATIVE
JUSTICE [ADDO INTRESTED PARTY]
[2003-2004] SCGLR. 312.
In the instant case, what is the
error complained of? Learned
Counsel contends that the
learned trial Judge’s statement
with reference to S.48[1][b] of
the Chieftaincy Act of 1971
[Act.370] that:
“for a paramount chief to form
or create a Traditional council,
he should be recognized by the
Minister responsible for
Chieftaincy Affairs and his name
published in the Local
Government Bulletin”, on the
face of the ruling renders the
ruling erroneous in law as the
section has been repealed by
Article 270[2] of the 1992
constitution .
With all due deference to
Counsel, the ruling of the court
is not dependent on the repealed
section to render it amenable to
certiorari on ground of error on
the face of the ruling. The
learned Judge based his ruling
on the fact that the issue
before the court has no relation
to section 66 of the Chieftaincy
Act. which defines “cause or
matter affecting chieftaincy”
This is what the learned Judge
said:
“The issue before this court is
whether or not there is only one
Traditional Council or 4
Traditional Council in Akwapim
area. As analysed above,
determination of this issue has
no relation to section 66 of
chieftaincy Act. This court has
jurisdiction to determine same.”
The learned judge referred to
section 48[1] and [2] of Act.370
which reads as follows:-
“A chief is an
individual who has, in
accordance with customary law,
been nominated, selected and
installed as a chief or as the
case may be appointed and
installed as such and whose name
for the time being, appears as s
chief on the National Register
of Chiefs;
Provided that no person shall be
deemed to be a chief for the
purpose of the exercise by him
of any function under this Act
or under any other enactment,
unless he has been recognized as
such by the Minister by notice
published in the Local
Government Bulletin.
[2] Subject to the foregoing
sub-section[1] the name of any
person who has been installed as
a chief shall be entered by the
National House of chiefs in the
National Register of Chiefs not
later than one month from the
date of receipt of the
notification of such
installatio”. Thereafter he
also referred to Art.277 of the
Constitution as to the
definition of a chief. From the
said definition the judge went
on to say that “Consequently,
the registration of a chief’s
name in the National register of
chiefs and recognition by the
Minister of Chieftaincy Affairs
is no longer a precondition for
a person to be a chief.”
It is rather strange therefore
for the judge to continue that
before a chief can perform any
function under Act.370 or under
any other enactment, that chief
should be recognized as such by
the Minister by notice in the
Local Government Bulletin.
This admittedly is an error but
I do not think the error
informed his ruling that
the matter before the court is
not a matter or cause affecting
chieftaincy”
Assuming the trial Judge erred
in so holding is the error
apparent on the face of the
record?
Attached to this application are
the Writ of Summons, the
statement of claim, the motion
to set aside the writ, the
affidavit in support of the
motion, the affidavit in
opposition and the ruling which
the applicant is praying this
court to quash for the reason
that the court has wrongly
assumed jurisdiction.
From the writ of summons and the
attached statement of claim, the
plaintiff’s claim is not over a
dispute relating to any of the
matters constituting “Cause or
matter affecting chieftaincy
under section 66 of the
chieftaincy Act.
The statement of claim
acknowledges the status of the
Applicants as chiefs and their
constitutional relations under
customary law between them and
the plaintiffs.
See paragraphs 2,3,4 of the
statement of claim.
The plaintiff’s claim is that it
is the only lawful statutory
body created for the Akwapem
Traditional Area under the
chieftaincy Act and therefore
the Applicants’ acclaimed
Traditional Councils are
illegal.
From the writ and statement of
claim, I do not think that the
judge erred when he ruled that
the issue before him is whether
or not there is only 1
Traditional council or four
Traditional councils in the
Akuapem Traditional Area. Even
if he did, the error is not
apparent on the face of the
record and certiorari will
therefore not issue to quash the
ruling that determination of
that matter does not fall within
a “cause or matter affecting
chieftaincy.”
My attention has been drawn to
the case of REPUBLIC Vrs. HIGH
COURT, DENU; EX-PARTE: AVADALI
IV which I have had a look at.
In this case, the Respondents
brought an action at the High
Court, Denu for a declaration
that the 1st
Respondent was the hlotator or
head of the whole Anyigbe clan
of the Agave Traditional Area
[ATA] and thus entitled to
manage all the lands and other
properties of the clan;
perpetual prohibitive injunction
restraining the applicant from
claiming falsely that he was the
hlotator/head of the Anyigbe
clan and damages suffered by the
first respondent.
Upon entry of conditional
appearance by the applicant, he
moved the court to strike out
the action on the ground that
the respondent’s claim was a
chieftaincy matter and therefore
the High Court lacked
jurisdiction to try it.
The motion was accompanied by an
affidavit to which was Exhibited
a number of documents including
letters, the report on an
arbitration held by the Agave
Traditional Council [ATC] unto
the purported enstoolment of the
first respondent as hlotator
with the Stool name of Avadali
II an Extract from the Gold
Coast Chief List.
The trial Judge dismissed the
motion on the ground that the
matter was not a cause or matter
affecting chieftaincy.
In an application to the Supreme
Court for an order of Certiorari
to quash the decision of the
trial court, the Court held
that;
“the first respondent’s claim
that he was entitled to manage
all the lands and properties of
the Anyigbe clan was dependant
entirely on his substantive
claim to be declared the
hlotator of the Anyigbe clan.
But it was clear from the report
on the arbitration held by the
ATC and the Extract from the
History of Agave that the status
of the Head or hlotator of the
Anyigbe Clan was regarded as a
Chiefly one……………
Furthermore, since the claim by
the respondents that the first
respondent was the “hlotator of
the whole Anyigbe Clan” would
require evidence from the
respondents to prove that he had
been properly nominated, elected
and installed as the hlotator of
the Anyigbe Clan, it was a cause
or matter affecting Chieftaincy
within the definition of section
66 of the Chieftaincy Act, 1971
[Act.370] ……………………”
Accordingly, Certiorari would be
granted to quash the decision of
the High Court to assume
Jurisdiction in the case.
In the above case, the error
from the record is patent on the
face of the record. The 1st
respondent’s substantive claim
as Wotator/head of the Anyigbe
clan was being hotly disputed
and if the Wotator is a Chief,
then clearly the dispute falls
within a “cause or matter
affecting chieftaincy.
In the instant case, the
plaintiff is not disputing the
chiefly status of the
Applicants. His complaint is
that there is only 1 Traditional
council and that is the
plaintiff. That the Applicants’
Traditional Councils are illegal
bodies, and if they are, the
Applicants cannot claim to be
their “Amanhene.”
What is more, Traditional
Councils are Creatures of
Statute and that the Plaintiff
is the only Statutory
Traditional Council in the
Akwapim Traditional Area under
the chieftaincy Act.
Indeed, under section 12 of the
Chieftaincy Act. [Act 370],
[1] “There
shall be a traditional Council
in each traditional area.”
[2] “The name and
members of each Traditional
Council shall be stated in the
National Register of Chiefs
maintained under section 59 of
this Act.
To determine the issue before
the court therefore, the court
would not resort
to the Regulations made under
the Act. i.e.
Chieftaincy/Proceedings and
Functions [Traditional councils
Regulations, or the Chieftaincy
[National and Regional Houses of
Chief] procedure Rules, 1972
[C.I. 127] as counsel contended.
It is for the reasons herein
assigned that I am of the view
that the
application ought to be
dismissed and I accordingly
dismiss same.
R. C. OWUSU (MS)
(JUSTICE OF THE SUPREME COURT)
JONES DOTSE J.S.C:-
On the 18th of June,
2007, the Interested Party
herein, therein Plaintiff,
issued a writ of summons
directed at the Applicants
herein, therein Defendants, in
the High Court Koforidua,
claiming the following
reliefs:-
1.
A declaration that the Plaintiff
body (that is the Akwapim
Traditional Council is the only
lawful and statutory Traditional
Council in Akwapim.
2.
A declaration that the
Defendants so called
Traditional Councils namely
Akwapim Anafo Traditional
Council, Okere Traditional
Council and Akuapem Guan
Traditional Council respectively
are illegal and void.
3.
An injunction restraining the
Defendants from using, operation
as dealing in or in any way
claiming through the said
respective councils.
4.
An injunction restraining the
Defendants from claiming to be
Omanhene or Presidents of the
said respective Councils.
In a twenty paragraphed
statement of claim, the
Interested Party herein stated
the facts upon which they sought
the reliefs against the
Applicants herein.
After entry of Conditional
appearance, the Applicants on
the 24th day of
July, 2007 applied to the High
Court Koforidua and sought to
set aside the writ of summons
referred to supra on the
grounds that the High Court
lacked jurisdiction to hear and
determine the suit because it
was a cause or matter affecting
Chieftaincy.
However, the High Court,
Koforidua, on the 13th
day of December, 2007 dismissed
the application to set aside the
writ of summons and held that
the High Court had jurisdiction
to entertain it.
It is this decision of the High
Court, Koforidua that the
Applicants are seeking to quash
by Certiorari pursuant to
Article 132 of the Constitution,
1992, which provides as
follows:-
“The Supreme Court shall have
supervisory jurisdiction over
all courts and over any
adjudicating authority and may,
in the exercise of that
supervisory jurisdiction, issue
orders and directions for the
purpose of enforcing or securing
the enforcement of its
supervisory Power”.
Basing themselves on the clear
provisions of Article 132 of the
Constitution 1992, the
Applicants allege that,
(1)
The learned Trial Judge sitting
at the High Court, Koforidua,
erred in law by holding that the
matter before him was not a
cause or matter affecting
chieftaincy,
(2)
And by virtue of the said error
wrongly assumed jurisdiction in
the suit, which according to the
Applicants is a cause or matter
affecting chieftaincy.
There is no doubt, that Sections
15(i) and (ii) and 23 1(a) and
(b) of the chieftaincy Act, 1971
Act 370 now repealed by the
Chieftaincy Act, 2008, Act 759
confers exclusive original and
of appellate jurisdiction in
causes and matters affecting
chieftaincy on Judicial
Committee’s of Traditional and
Regional Houses of Chiefs.
Section 76 of the Chieftaincy
Act, 2008, Act 759, defines a
cause or matter affecting
chieftaincy to mean,
“any cause, matter, question or
dispute relating to any of the
following:-
(a)
the nomination, election,
selection or installation of any
person as a chief or the claim
of any person to be nominated,
elected, appointed or installed
as a chief,
(b)
the deposition or abdication of
any chief,
(c)
the right of any person to take
part in the nomination,
election, selection or
installation of a person as a
chief or in the deposition of a
chief,
(d)
the recovery or delivery of
stool property in connection
with any such nomination,
election, selection,
installation, deposition or
abdication, of a chief and
(e)
the Constitutional relations
under customary law between
chiefs”
emphasis supplied.
The same definition is contained
in Section 117(1) (a-e) of the
Courts, Act, 1993, Act 459.
Furthermore, Section 57 of the
Courts Act, 1993 Act 459
contains serious limitations on
the jurisdiction of the High
Court among other Courts in
dealing with causes or matters
that affect chieftaincy.
It provides as follows:-
“Subject to the provisions of
the Constitution, the Court of
Appeal, the High Court, Regional
Tribunal, a Circuit and District
Courts shall not have
jurisdiction to entertain either
at first instance or an appeal
any cause or matter affecting
chieftaincy”.
This therefore connotes a
complete ouster of the
jurisdiction of the High Court
in such related chieftaincy
matters as have already been
referred to supra.
There is no doubt that Article
132 of the Constitution 1992,
confers jurisdiction on the
Supreme Court to have
supervisory jurisdiction over
all courts and other
adjudicating authority and also
has power to issue orders and
directions to ensure compliance
and or enforcement of its
supervisory jurisdiction.
From the facts of this case, can
it be said that the decision of
the High Court, Koforidua dated
13th December, 2007
is amenable to Certiorari from
this Court?
The sole ground for the relief
of Certiorari in this case is
that the learned trial judge
erred in law.
One question which immediately
comes to my mind is whether such
an error is apparent on the
record.
Having apprized myself of the
Ruling of the learned trial
judge, I am of the considered
opinion that the said Ruling
contains errors of law which are
patent on the face of the
record. And as a result of these
errors of law, Certiorari can
lie to quash the said decision.
For example, the decision of the
learned High Court Judge that
“For a paramount chief to form
or create a Traditional Council
he should be recognized by the
Minister responsible for
Chieftaincy Affairs and his name
published in the Local
Government Bulletin. See S.48
(1) supra”. is palpably wrong in
law.
The Section 48(1) is a reference
to Section 48(1) of the repealed
chieftaincy Act, Act 370.
Continuing further, the learned
trial Judge stated that the High
Court has jurisdiction to find
out whether a paramount Chief
has been recognized by the
Minister for Chieftaincy Affairs
and whether the chief’s name is
published in the Local
Government Bulletin.
Having stated correctly that, it
is only when the relief claimed
in a suit is cognizable under
section 66 of the Chieftaincy
Act, Act 370 which deals with
whether or not an issue is a
matter or cause affecting
chieftaincy that the High Courts
jurisdiction is ousted, the
court then makes a judicial
somersault by misconstruing the
issues before him to only one
issue, to wit, whether or not
there is only one Traditional
Council or four Traditional
Councils in Akwapim area.
By wrongly stating the law and
the issue before him, the
learned trial judge definitely
fell into error and erred by
assuming jurisdiction into a
matter which is entirely and
potentially a cause or matter
affecting chieftaincy.
That being the case, the High
Court did not have jurisdiction
in the matter. In coming to the
conclusion that the learned
trial High Court Judge erred, I
have also considered in detail
the entire decision juxtaposing
it against the time tested
principles for the grant or
refusal of the order of
Certiorari by this Court over
superior courts such as the high
court.
For example, the decision the
subject matter of this
Certiorari had been given
contrary to the clear provisions
of Article 270 (2) (a) and
(b)and (3)(a) and (b) of the
Constitution 1992.
These provisions have withdrawn
Executive recognition of chiefs
which was the regime under Act
370 which the learned trial
Judge made reference to.
Thus, it has to be noted that,
the Constitution 1992, has
actually repealed all the
provisions of Act 370 that
confer Ministerial recognition
and control of gazetting or
registering chiefs which was
the scenario before the coming
into force of the Constitution
on 7th January 1993.
Even though, the said decision
is appealable and an appeal was
indeed filed but later
withdrawn, I do not think that
the Applicants are foreclosed
from seeking the Supervisory
jurisdiction of this court.
I have apprized myself of the
dicta of my brother, Date-Bah
J.S.C in the unanimous decision
of the Supreme Court in the case
of
REPUBLIC vs HIGH COURT, ACCRA,
EX-PARTE CHRAJ,
[2003-2004] SCGLR 312 where it
was stated as follows:-
“The court would re-state the
law governing exercise of
judicial review as follows:-
Where the High Court, (or for
that matter the Court of Appeal)
has made a non-jurisdictional
error of law, which was not
patent on the face of the record
(and by the record was meant
the document which initiated
the proceedings, pleadings if
any, and the adjudication but
not the evidence nor the reasons
unless the tribunal chose to
incorporate them) the avenue for
redress open to an aggrieved
party was an appeal, not
judicial review. Therefore,
certiorari would not lie to
quash errors of law which were
not patent on the face of the
record and which had been made
by a superior court judge who
was properly seized of the
matter before him or her. In
that regard, an error of law
made by the High Court or the
Court of Appeal would not be
regarded as taking the Judge
outside the courts jurisdiction,
unless the court had acted ultra
vires the constitution or an
express statutory restriction
validly imposed on it”.
The Supreme Court in the case of
Republic vrs Court of Appeal
Accra, ex-parte Tsatsu Tsikata
[2005-2006] held per Georgina
Wood J.S.C. as she then was as
follows:-
The clear thinking of the Court
is that our supervising
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 on the impugned
decision a complete nullity.
It stands to reason that the
reason then that the record(s)
of law alleged must be
fundamental, substantial,
material grave or so serious as
to go to the root of the matter.
The error 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 courts
supervisory intervention”
Applying these decisions to the
instant case reveals that the
errors being complained of by
the applicants herein are errors
upon which the entire decision
depends. In other words, the
errors are so basic and
fundamental to the decision that
was given by the learned High
Court Judge.
This is because the Court Acts,
1993 Act 459 section 57 thereof,
as amended by the Courts
(Amendment) Act, 2002 Act 620
already referred , to supra, has
completely ousted the
jurisdiction of the High Court
in causes, matters and disputes
affecting chieftaincy.
In the instant application, it
would be noted that, the High
Court had before it, the writ of
summons and the Statement of
Claim which the Interested
Parties herein had filed before
it. The High Court also had the
benefit of all the statutes on
the jurisdiction of the High
Court referred to.
It appears quite clear to me
that the issues before the
High Court, contained in the
writ of summons and statement
of claim, are matters
concerning the constitutional
relationships between the
Interested Parties, as a
statutory body of chiefs
created by statute, and the
Applicants herein, therein
Defendants as chiefs, Divisional
or paramount as the case might
be.
There was no way the High Court
was going to determine the
reliefs in the suit without
considering those constitutional
relations under customary law
between the Interested Parties
and the Applicants. See Section
117(i) (e) of the Courts Act,
1993 Act 459.
I would therefore decide that
since the High Court has made a
non-jurisdictional error of law
which was patent on the face of
the record, certiorari would
lie.
Taking a further cue from the
decision of the Supreme Court in
the case of
REPUBLIC
vs
HIGH COURT (FAST TRACK DIVISION)
ACCRA
EX-PARTE: ELECTORAL COMMISSION
METTLE-NUNOO & OTHERS,
[2005-2006] SCGLR 514, at 516
I am emboldened to state that in
considering applications under
Article 132 of the Constitution
1992, this court should not only
be guided by the principles
which have been re-stated in the
Ex-Parte CHRAJ case, reference
[2003-2004] SCGLR 312 but also
to ensure that the Supreme Court
issues orders and directions in
the supreme interest of justice
in order to prevent illegalities
and a failure of justice.
Especially the social policy
considerations underpinning the
creation of special chieftaincy
tribunal to deal with
chieftaincy disputes
For example, even though an
appeal is possible and could be
embarked upon, the procedure
under article 132 of the
Constitution 1992 is a fast,
expeditious and less expensive
process which should be
preferred to the appeal
procedure.
Whilst I frown upon the growing
trend by legal practitioners and
litigants, craving to circumvent
the appeal process by rushing to
this Court with applications
under article 132 of the
Constitution 1992 seeking the
Courts Supervisory jurisdiction,
I think the instant is a genuine
case where the supervisory
jurisdiction has been properly
invoked.
It should be noted that whilst
the decision of the Supreme
Court in the case of the
REPUBLIC
vs.
HIGH COURT, ACCRA EX-PARTE:
CHRAJ,
already referred to supra has
re-stated the principles and
scope of the Supreme Courts
Supervisory Jurisdiction over
all other Courts and
adjudicating tribunals, the
case of
REPUBLIC
vs
HIGH COURT, DENU, EX-PARTE
AVADALI IV, [1993-94] 1 GLR 561
is also very relevant to this
case, in that it re-states the
scope of the jurisdictional
limits of the High Court in
handling chieftaincy disputes.
In the Ex-parte Avadali case,
the Applicant therein applied to
the Supreme Court for an order
of Certiorari to quash the
decision of the High Court,
Denu overruling an objection of
the applicant that the
respondents claim before the
High Court was a chieftaincy
matter and therefore the High
Court lacked Jurisdiction to
try it.
The Supreme Court unanimously
granted the application and held
that:
“since the claim by the
respondents that the first
respondent was the “hlotator of
the whole Anyigbe clan”
would require evidence from the
respondents to prove that he
had been properly nominated,
elected and installed as the
hlotator of the Anyigbe clan,
it was a cause or matter
affecting chieftaincy within
the definition of section 66 of
the chieftaincy Act, 1971 Act
370. Accordingly, as provided by
section 52 of Act 370 now
re-enacted in section 57 of Act
459, the High Court had no
jurisdiction to entertain it.
Accordingly, certiorari would be
granted to quash the decision of
the High Court to assume
jurisdiction in the case.”
Emphasis.
In the instant case, the High
Court in Koforidua would also be
required to take evidence to
establish the correct
constitutional relations at
customary law between the
Applicants herein and the body
of chiefs comprising the Akwapim
Traditional Council. Since the
High Court is not clothed with
jurisdiction to embark upon such
an exercise, certiorari would
lie to quash the decision of the
High Court.
Under the circumstances, I will
grant the application, and the
decision of the High Court,
Koforidua dated 13-12-07.
In the case intitutled
Suit No. E2/62/07
Akwapim Traditional Council
Vrs
NANA DJAN KWASI- ABURIHENE
NANA ASIEDU OKOO-LARTEH
AHENEASEHENE
NANA OTUTU OKONO IV- ADUKROMHENE
are hereby removed into the
Supreme Court for the purpose of
their being quashed and same is
accordingly quashed by
Certiorari.
This court further directs that
the High Court, Koforidua has no
jurisdiction to entertain the
said suit since it is a cause or
matter affecting chieftaincy
over which the High Court has no
jurisdiction.
JONES DOTSE
(JUSTICE OF THE SUPREME COURT)
BAFFOE BONNIE JSC;
In this case the applicant is
invoking the supervisory
jurisdiction of the Supreme
Court for an order of Certiorari
to quash the ruling of the
Respondent Court presided over
by Bentil J, and delivered on
13/12/2007 in the suit No.
E2/02/07 titled; AKWAPIM
TRADITIONAL COUNCIL V. NANA DJAN
KWASI-ABURIHENE & 2 OTHERS.
The sole ground canvassed by the
Applicant before us is stated in
the motion paper as follows
“That the learned trial judge
erred in law by holding that the
matter before him was not a
cause or matter affecting
Chieftaincy and by reason of the
said error wrongly assumed
jurisdiction in a cause or
matter affecting chieftaincy.”
The application has been brought
pursuant to Article 132 of the
Constitution 1992 which reads
“The Supreme Court shall have
supervisory jurisdiction over
all the courts and any other
adjudicating authority and may
in the exercise of such
supervisory jurisdiction issue
orders and directions for the
purpose of enforcement of its
supervisory power.”
The facts giving rise to this
application are pretty simple.
The Applicant herein –
Adukoromhene, together with 2
others, Nana Asiedu Okoo, Larteh
Aheneasehene and Nana Djan
Kwasi, Aburihene, were hauled
before the High Court Koforidua
by the Akwapim Traditional
Council. The reliefs claimed at
the High Court were
1.
A declaration that the
Plaintiff body is the only
lawful and statutory Traditional
Council in Akwapim.
2.
A declaration that the
Defendant so-called traditional
Councils namely, Akwapem Anafo
Traditional Councils, Okere
Traditional Council and Akwapem
Guan Traditional Council
respectfully are illegal and
void.
3.
An injunction restraining
the defendants from using,
operating as, dealing in or in
any way claiming through the
said respective councils.
4.
An injunction restraining
the defendants from claiming to
be Amanhene or Presidents of the
said respective councils.
The Applicant, who was the 3rd
Defendant, prayed the court
pursuant to Order 9 Rule 8 of CI
47 for an order to set aside the
writ on the grounds that
“…these matters (in the
Statement of Claim) being
matters affecting Chieftaincy
the High Court has no
jurisdiction over same.”
He prayed in aid Section 66 of
the Chieftaincy Act…
In his ruling on the motion, the
learned trail judge dismissed
the application and noted as
follows;
“…the issue before this court is
whether or not there is only one
traditional counsel or 4
traditional councils in Akwapem
area. As above, the
determination of this issue has
no relation to section 66 of the
Chieftaincy Act. This Court has
jurisdiction to determine same.”
It is this ruling that the
applicant is impugning by his
application before us.
In his 9 page statement of case,
Mr. Amarteifio for the applicant
has taken the ruling of the
trial judge to the cleaners,
trying each step of the way to
convince us as to why the High
Court judge was wrong in saying
this was not a cause or matter
affecting chieftaincy and why
the Supreme Court should
exercise its supervisory
jurisdiction by issuing the
prerogative writ of certiorari.
Before going into the merits of
the case to determine whether or
not this is a cause or matter
affecting chieftaincy, the
question that comes to mind is
whether the applicant is
properly before this Court. Has
our jurisdiction been properly
invoked?
Without seeking to encase my
answer in any legal niceties, it
is my view that the answer is
NO.
What exactly is the applicant
asking this Court to quash by a
writ of certiorari? Is it the
ruling delivered by the learned
trial judge or the writ issued
by the respondents? If it is the
ruling of the High Court judge
that we are being asked to
quash, then what will be the
basis for so quashing? Is the
applicant saying that the trial
High Court did not have
jurisdiction to pronounce on an
application that he himself had
brought before him, or that he
is dissatisfied with his
pronouncement on the
application?
There is abundant case law on
the subject as to when and how
the supervisory jurisdiction of
this court in the form of
certiorari can be invoked.
In the case of Republic v.
High Court Ex parte CHRAJ( Addo
interested Party)
[2003-2004]SCGLR 312 my brother
Dr. Date-Bah JSC noted
“When
the High Court …has made a
non-jurisdictional error of law,
which was not patent on the face
of the record…the avenue for
redress open to an aggrieved
party was an appeal, not
judicial review .Therefore
Certiorari would not lie to
quash errors of law which were
not patent…An error of law made
by the High Court would not be
taken as taking the judge
outside the courts jurisdiction
unless the court had acted ultra
vires the Constitution or an
express statutory restriction
validly imposed on it.”
On the same subject matter, the
Supreme Court in Republic v.
High Court , Accra ; Ex parte
Industrialization Fund for
Developing Countries [2003-2004]
1 SCGLR 348 stated;
“Certiorari is a discretionary
remedy which would be issued to
correct an error of law on the
face of the ruling of the court;
or an error which amounts to
lack of jurisdiction in the
court as to make a decision a
nullity. In the case of errors
of law or fact not apparent on
the face of the ruling , the
avenue for redress is by way of
an appeal.”
In this case the applicant is
praying for an order of
Certiorari not because the trial
judge did not have jurisdiction
to give a ruling on the matter
but that he is dissatisfied with
the ruling. This may be a ground
of appeal but definitely not a
ground for certiorari.
The judge might have erred in
his appreciation of the facts
and the conclusions drawn there
from. If that is the case, it
would be a matter of appeal. It
would not be an egregious error
on the face of the record to be
cured by a certiorari. Where a
judge has jurisdiction he has
jurisdiction to be wrong as well
as to be right and the
corrective machinery to a wrong
decision in the opinion of a
party is an appeal. See
Republic v. High Court , Kumasi
and Others ; Ex parte Fosuhene.
(1989-90) 2 GLR 315.
Before I conclude, I wish to
note that this special
jurisdiction inserted in the
Constitution by the framers is
being abused by legal
practitioners as they invade the
courts with applications which
clearly they should pursue on
appeal. I will therefore
reiterate the words of my
learned sister Mrs. Wood JSC( as
she then was) in the case of
Republic v. Court of Appeal; Ex
parte Tsatsu Tsikata [2005-2006]
SCGLR 612 at pg 619 that,
“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 the jurisdiction or are so
plain as to make the impugned
decision a complete nullity. It
stands to reason that the errors
of law alleged must be
fundamental, substantial,
material, grave or so serious as
to go to the root of the matter”
If practitioners were to
appreciate the obvious sense in
this statement, I am sure many
of the applications inundating
this court and invoking the
supervisory jurisdiction of this
court will not be brought. If
such conducts are encouraged
then in the words of my learned
brother ,Dr Date-Bah,
“……….. judicial review would
supplant the system of appeals,
which has carefully been laid
down in the 1992 Constitution
and the Courts Act,1993 (Act
459) as amended by the Courts (Amendment)Act,
2002(Act 620)
See the case of Republic v High
Court Accra; Ex parte CHRAJ (Addo
interested party) [2003-2004] 1
SCGLR 312 at pg 316
It is my view that the
application for certiorari
before the court is
misconceived. Having so held
there is no need to go into the
merits of the application. The
application is therefore
refused.
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
STANLEY AMARTEIFIO WITH DINAH
QUASHIE-IDUN FOR THE APPLICANT
K. AMOAKO ADJEI FOR THE
INTERESTED PARTY |
