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JUDGMENT
TWUMASI, JA:
This is an appeal from the
ruling of the High Court Accra,
delivered on the 11th November
1998. The court granted to the
respondents an order of
certiorari sought by them to
quash a decision of the Judicial
Committee of the Ga Traditional
Council, given on the 22nd
October 1997. The parties to the
proceedings before the Judicial
Committee had filed affidavits
in respect of the issue of
whether the party who had
instituted the proceedings had
locus standi or capacity to do
so. When the case came on for
hearing, the committee adopted a
procedure very much unique for
its brevity and simplicity.
Questions were addressed to the
parties to indicate whether they
had any oral evidence to add to
their respective affidavits and
each of them said they had none.
With this response, the
committee concluded the
proceedings and fixed a date for
ruling. On the due date, the
committee gave a final decision
on the merits based on the
affidavits. The defeated side,
the respondents herein
immediately commenced certiorari
proceedings before the High
Court, Accra on the following
grounds:—
“(1) There is error apparent on
the face of the record in that
the trial judicial committee
failed to take VIVA VOCE
evidence on the issue of
capacity thereby depriving the
applicant (the respondent
herein) the opportunity of
establishing his capacity with
cogent evidence in accordance
with legal principles.
(2) The Judicial Committee not
having taken evidence had no
basis in declaring the
interested party as Nii Larbi
Mensah IV Sempe Asofotse of Nii
Larbi Mensah Stool Family of
Sempe and Ablekumah”.
The High Court, constituted by
Gbadegbe J (as he then was)
predictably granted the
application for certiorari and
quashed the decision of the
Judicial Committee on the
following grounds stated in his
ruling at p.65 of the record of
appeal and I quote:
“There being no denial that the
facts on which the issue of
capacity was based was
challenged in my view the
tribunal was duty bound to give
the parties the opportunity of
hearing their various
depositions raised by
cross-examination. Authority
aside, I think that there can be
no denial that depositions when
not admitted must be proved by
oral evidence. So therefore
where as in this case the
tribunal instead of doing that
which was the only lawful avenue
open to it, rather left this to
the parties, I think that this
discloses a manifest error on
the record, Exhibit A”.
The appellants impugned this
ruling by this appeal on two
grounds but argued only the
second which was as follows:—
“The learned trial High Court
Judge erred in law in holding
that the Judicial Committee
ought to have taken VIVA VOCE
evidence in spite of the fact
that the parties at the hearing
openly said they did not have
anything to add to what they had
disposed to in their respective
affidavits.”
Arguing the appeal on this
ground counsel for the
appellants contended that the
judicial committee acted right
because, as he put it, “the
judicial committees are inferior
tribunals and are therefore
entitled to conduct their
proceedings summarily, they are
also entitled to conduct their
proceedings according to
customary law.” He quoted in
support section 28 of the
Chieftaincy Act, 1971 (Act 370)
(replaced) which provides that:
“28 (1) In exercise of the
jurisdiction conferred upon it
by section 15 of this Act, a
Traditional Council shall
subject to the provisions of
this section conduct its
proceedings according to
customary law.....”
Customary Law is defined under
section 18(1) of the
Interpretation Act, 1960 (CA9)
as follows:—
“18(1) Customary law as
comprised in the laws of Ghana
consists of rules of law which
by custom are applicable to
particular communities in Ghana,
not being rules included in the
common law under any enactment
providing for the assimilation
of such rules of customary law
as are suitable for general
application”.
For all we know, Ghana has
customary Land law (see
Ollennu's book on “Customary
Land Law in Ghana”). It has
customary law of succession or
inheritance, marriage and
paternity etc. Our law reports
are replete with cases decided
by native courts and tribunals
as well as the regular courts.
In all these cases issues or
disputes arising between
individuals, groups or
institutions are resolved and
determined upon the basis of
evidence led by the parties and
their witnesses and at times
supported by documents where
required or other means.
Witnesses are cross-examined and
the tribunals or courts evaluate
the evidence and give judgments.
When therefore an enactment
talks of customary law this is
the context in which it should
be understood. I will illustrate
this point by the case of Addae
v. Asante [1974] 2 GLR 288 High
Court, Sekondi. This was a case
on customary arbitration and
Edusei J (as he then was) had
this to say to P.290:—
“It must always be borne in mind
that an arbitration is itself an
informal proceedings and
provided nothing is done that
sins against the rules of
natural justice, a court should
be slow in setting aside an
arbitration which was properly
conducted and in which all the
parties were afforded an
opportunity of being heard”.
In an old case Okuma v. Tsutu
(1944)10 WACA p. 89 at p. 90
Graham CJ dilating on fair trial
at a native tribunal said:—
“In this connection we may quote
once more from the judgment of
the Privy Council in the case of
Nathan v. Bennieh as follows:—
“Decisions of the Native
Tribunal on such matters which
are peculiarly within their
knowledge arrived at after a
fair hearing on relevant
evidence should not be disturbed
without very clear proof that
they are wrong.”
It follows from leading cases
therefore that customary law
draws its nerve wire from the
most ancient concepts of the
rule of law, natural justice and
fair trial and we must recognise
that our customary law is
especially tenacious of the
truth and would leave no
vestiges of doubt in its pursuit
of the truth and it achieves
this objective through the
investigative process of calling
witnesses and subjecting them to
the rigours of cross-examination
albeit in an informal manner not
fettered by any technical rules
of evidence as pertain in the
common law practice. It is
therefore in my view revulsive
to customary law to say that it
operates on arbitrariness and
caprices. In fact it was
precisely to safeguard this pure
and sacrosanct nature of
customary law and its procedure
that statutes such as section 28
of Act 370 were enacted.
Contrary to what counsel may
think of customary law, that it
operates on no laid down
principles such as
cross-examination, customary law
as indeed Griffith CJ said in
Yirenkyi vrs. Akuffo [1905] 1
Ren p. 362 at p. 367:—
“Generally consists of the
performance of the reasonable in
the special circumstances of the
case”.
Other cases have approved of and
applied this famous dictum which
to me is an eloquent testimony
of the intrinsic wisdom in our
customary law. Some of the cases
are Tanor v. Dapomah [1960] GLR
354 SC; Prempeh v. Addo [1961]
GLR 427; and Adjowei v. Yiadom
III and Others [1973] 2 GLR
p.90. In the last case Sowah JA
(as he then was) said at p.97:—
“In our ancient society the
presence of independent
witnesses in all business
dealings was considered
essential. It is on the
testimony of the independent
witness that the elders can
verify the truth of such matters
as were in dispute. It seems to
me reasonable to suppose if in
spite of the absence of such
witness sufficient evidence
could be brought to establish
the truth of the matters in
dispute, no reasonable group of
elders would hold that the
matter had not been proved
because no witness was present.”
It follows from all these cases
that any imputation to customary
law that it operates on the
procedure adopted by the
Judicial Committee would be
unsupportable by legal history.
The truth of the matter is that
the committee acted in flagrant
defiance of all known rules of
practice and procedure under
customary law. I must take this
opportunity to lament the fact
that of late, a tendency on the
part of some courts and
tribunals to burk out decisions
from affidavits by opposing
parties even through such
affidavits clearly disclose
triable issues is rearing its
ugly head and the Court of
Appeal must register its
implacable objection to it. In a
recent case The Republic v.
Georgina Asare Ex-parte Samuel
Kofi Asare and Rev. Augustina
Aunn-Yeboah, dated 18th May 2000
unreported where the High Court,
Accra had given a ruling without
taking evidence on the
affidavits which raised serious
triable issues, the Court of
Appeal unanimously allowed the
appeal against the judgment
convicting the contemnor. In the
course of the judgment the Court
stated:—
“It must be stressed here and
now that the only sure and
time–tested means in the hands
of a court or a judge is the
benefit of observation of the
credibility of a witness in the
witness-stand. Such evidence
unlike an affidavit evidence is
tested by cross-examination and
the credibility of the witness
can be measured by an objective
criterion, rather than the
idiosyncrasy and prejudice of
the judge” (per Twumasi JA).
Speaking in a conceptual sense,
customary law by tradition knows
no writing, although in the
modern jurisprudential setting
there has been some flirtation
of customary law with writing
and systematic recording of
proceeding and documentation in
legal proceedings before the
customary tribunals.
The instant case demonstrates
that they are even venturing
into the arena of the practice
and procedure strictly reserved
to the ordinary law courts. I am
alluding to the affidavits. It
is in this new frontier that I
wish to admonish the customary
tribunals that if they adopt any
procedure ordinarily reserved
for the ordinary courts, then
they should be prepared to
comply with the requirements.
Affidavits can support and form
the basis of a judgment only if
the deponent has admitted the
averment in the opponent’s
affidavit, not otherwise. Where
the affidavits disclose triable
issues the court or tribunal
must call the deponents to
answer questions in
cross-examination before
judgment can be given on the
basis of the view taken of the
credibility of the parties.
It seems to me that the learned
High Court Judge came to the
right decision and his ruling
cannot be faulted. For this
reason I would dismiss the
appeal.
P. K. TWUMASI
JUSTICE OF APPEAL
BENIN, JA:
I agree that the appeal be
dismissed.
A. A. BENIN
JUSTICE OF APPEAL
FARKYE, JA:
I also agree that the appeal be
dismissed.
S. T. FARKYE
JUSTICE OF APPEAL
COUNSEL
OWUSU-ANSAH FOR THE APPELLANT.
AYIKOI-OTOO FOR THE RESPONDENT. |
