HOME  JUDGEMENT OF THE COURT OF APPEAL

APPEAL DISMISSED

COSTS OF ¢300,000 IN FAVOUR OF RESPONDENT

JUDGEMENT

Owusu-Ansah J. A. delivered the judgment of the Court.

This is an appeal from the Ruling of R.K. Apaloo, J, sitting at the High Court, Accra on 23/1/98, wherein he refused an application for an order of PROHIBITION, on the application of the Appellants filed on the 18/12/95 seeking the relief against the National House of Chiefs, Kumasi, prohibiting the House from relying upon or otherwise enforcing a report dated the 28th day of May 1992, issued by the Committee of the House in respect of the Akyem Aduasa Stool.

In a nutshell, the facts of the matter which gave rise to these proceedings, are that since 1982, there has been a chieftaincy dispute involving the Aduasa stool, a substool under the Akyem Abuakwa Paramount Stool, in the Eastern Region of Ghana.

Attempts made in several fora, to effect an amicable settlement of the dispute were a futile exercise.

In 1983, while the dispute remained unsettled, the elders of Aduasa, enstooled a new Chief of ADUASA, under the stool name of NANA ABROKWA GYAMPIM IV.

As a result of the installation of NANA ABROKWA GYAMPIN IV, the ex-Queen Mother, who had apparently been destooled in 1982, for her rudeness and discourtesy towards the office of the Okyenhene, instituted proceedings at the Eastern Regional House of Chief, against the new Chief, on the ground that he was not a Royal and, therefore, not eligible to occupy the Aduasa stool.

The Respondents took objection to the jurisdiction of the Regional House of Chiefs, and boycotted the proceedings before the House. The House nevertheless proceeded, and gave judgment in favour of the Petitioner on 13/6/1988.

On the 28/7/1989, the High Court Koforidua, presided over by Mr. Justice Moses Abeka, quashed the decision of the Eastern Regional House of Chiefs, for want of jurisdiction.

After the High Court’s decision, the Queen Mother succeeded in getting the chieftaincy secretariat to request the National House of Chiefs (per a letter dated the 29th/12/89), to investigate what was referred to as the “intractable and harmful dispute” over the succession to the Aduasa stool; and on the basis of this letter, the National House of Chiefs embarked on an enquiry pursuant to Section 3 of the chieftaincy Act, 1971, (Act 370).

The terms of reference of the inquiry are set out at Page 1 of the Report of the National House of Chiefs dated the 28/7/92 annexed to the application as Exhibit OSA 4.  It can be found at Page 64 of the Record.  It is reproduced verbatim (below) as follows:

“To find out:

1. Whether, as alleged by the Petitioner, Mr. Akyeampong, alias Nana Abrokwa Gyampim IV, one of the two chiefs-elect, and his family are entitled to occupy the Aduasa Stool.

2. Whether, as alleged by the Petitioners, the said Mr. Akyeampong, and his family have a stool at Aduasa, which is a sub-stool to the main Aduasa stool; and whether it is contrary to custom for those entitled to sit on this stool, to occupy the Aduasa stool.

3. To examine the procedure for nomination, election and installation of each of the rival chiefs-elect.

4. To investigate any other matters which are relevant to the matters in issue.

5. To advise the Government as to whether the Petitioners complaints are justified, for the Government to take the necessary remedial action in the circumstances.”

At the initial stages of the enquiry by the National House of Chiefs a preliminary objection was taken on behalf of the Applicants, as to the competence of the House to hold an enquiry in connection with a matter affecting a substool in Akyem Abuakwa, over which only the Akyem Abuakwa Traditional Council, had original jurisdiction, since the Paramount Chief the late Osagyefo Kuntukunuku, one of the original Parties, had been deleted from the suit.

The objection was over-ruled and the enquiry proceeded, resulting in the Report annexed to the application as Exhibit OSA 4.

The Report was submitted to the PNDC Secretary for Chieftaincy Affairs.  In a letter to the parties dated 1/12/92), he ruled that the matter into which the House inquired were in the nature of a “matter affecting chieftaincy,” within the meaning of the chieftaincy Act, 1971 (Act 370) which fell within the jurisdiction of the appropriate Traditional Council.

He advised the parties to act accordingly.

There is little doubt that the effect of this letter was a refusal by the PNDC Secretary to act upon the Report and Advice, submitted by the National House of Chiefs. The Government took the view that it had no jurisdiction to take decisions on the “nomination, election and installation” of chiefs (Page 89 of the Record of Proceedings).

Thereafter the Appellants applied to the National House of Chiefs to register the name of the second Appellant in the National Register of Chiefs, but upon consideration of the Petition presented to the National House of Chiefs against the Registration of the 2nd Appellant as the Chief of Aduasa by the Interested Parties, the Standing Committee of the House caused the name of the 2nd Appellant to be expunged from the Register.

It is the view of the applicants that, when it came to their attention that the House had referred the application for registration to its Research Committee to deal with the appellants entertained the fear that the findings in the Report might be used to the prejudice of that application for registration of 2nd Defendant, so the appellants applied to the High Court, Accra, for an order of Prohibition prohibiting the National House of Chiefs from relying upon or otherwise enforcing to the prejudice of the applicants in any case or matter affecting the Akyem Aduasa stool, the findings contained in the Report dated the 28th May 1992, by the Committee set up by the House to enquire into the dispute over succession to the Akyem Aduasa stool pursuant to the PNDC Secretary's letter dated 29th December 1989.”

It is submitted on behalf of the Respondents that the application for registration of the 2nd Appellant was initially favourably considered by the Research Committee of the National House in November 1994, but was finally rejected by the standing Committee of the National House of Chiefs on or about 12th July 1995 before the ex-parte application for prohibition was filed at the High Court on the 27th November, 1995 for an order to prevent the National House of Chiefs from relying on the Report to refuse the already rejected Application for Registration of the 2nd Appellant as a Chief, consequent upon a Petition presented on behalf of the interested party/Respondent.

Thus, argues Council for the Respondent, it is wrong to suggest, that it was the fear that the Report would be relied upon to refuse the application for registration, which motivated the appellants to file the application for Prohibition.

In other words, the application for registration had already been refused by the House before the application for Prohibition was filed.

My own view on the facts of this case coincide with the submission of Learned Counsel for the Respondent.

If the applicants clearly entertain the view that the Report of the National House of Chiefs is invalid wrong or irregularly obtained and for that reason the House should be restrained and/or prohibited from relying upon the findings contained in the Report, then it has to be said that the P.N.D.C. Secretary’s refusal to accept or implement the advice therein was attributed to lack of jurisdiction and not to invalidity or irregularity.

The right of the Secretary responsible for Chieftaincy Affairs to refer matters of this nature to the National House of Chiefs is unassailable under S.3 of the 1971 Act (Act 370).  And it is fair to infer that any Committee appointed by the House in pursuance of such reference is a fact finding Committee.  It has responsibility to offer advice based on facts found.  The Government need not necessarily consider itself bound by such advice.

Republic v. Dugbaga VIII 1989/90 GLRD 94 Section 3 provides: “The National House of Chiefs shall be responsible for advising any person or authority charged by the Constitution or any other enactment, with any responsibility for any matter relating to chieftaincy.”

One of the appellant’s main contentions was that “The inquiry conducted by the House and the findings made thereon in the Report dated 28th July 1992, amounted to the exercise by the House of original jurisdiction over causes matters affecting chieftaincy which are within the exclusive jurisdiction of the Akyem Abuakwa Traditional Council and, therefore, outside the jurisdiction of the National House of Chief; and it is thus null and void.”

I must confess I find myself regretfully unable to share this view in its entirety in the light of the provisions of Section 3 of Act 370 referred to above.

It is difficult to see how the House can be said to have assumed original jurisdiction when indeed it was carrying out a statutory duty.

The Report per se without more cannot amount to assumption of jurisdiction.  It is the use to which it is put that could make it so.  Two scenarios have to be distinguished in this context.

Under Section 3 of the Act of 1971, once the request for advice is made to the National House, it is mandatory and the House has no option but to comply with the request.

This is quite different from the provisions of Section 21(1) of the Act. Section 21(1) states that “The Minister may, acting in accordance with the advice of the Traditional Council concerned or, where there is no Traditional Council for the area, acting in accordance with the advice of the National House of Chiefs, assign functions to a Divisional Council including functions with respect to any cause of matter affecting Chieftaincy.”

This is transparently permissive or discretionary as to where to seek advice. The discretion to act on the advice presupposes the power to ask for it.  If after perusing the advice the Minister or the Secretary as the case may be, in the fullness of his wisdom, forms the view, as he appears to have done in this case, that the issue involve the nomination, election and installation of a chief, he is perfectly entitled to say these are areas for which the Secretary has no jurisdiction.

Neither he nor anyone else can arrogate to himself the power to exercise jurisdiction where none exists.  That would not invalidated the request for the advice or the Report in the first place, because until the inquiry is carried out and a report or recommendation is made he cannot be in a position to identify the issues let alone propose a solution.

It is right to emphasize that the National House of Chiefs generally has no original jurisdiction where a chieftaincy matter pertains to a Divisional chief or a lesser chief as provided by section 21(2) of Act 370. However, that does not appear to be the case here.

In any event, granting without conceding, that the secretary for Chieftaincy Affairs was wrong in exercising his discretion the way he did, or that the advice should have been sought from the Akyem Abuakwa Traditional Council, as the matter related to a substool within its area, (as the learned High Court Judge pointed out), such a decision or exercise of discretion could have been challenged in the appropriate forum at the time, and he is right.

The main thrust of this appeal which has been seriously argued can be found at page 5 of the Appellants written submission.  It appears that it is as follows “The Interested Parties, concluded that the Report submitted by the National House of Chiefs did not constitute a judgement and, therefore, will not bind anybody, the Court below erred in refusing to prevent the National House of Chiefs in treating the findings thereon as if they were findings made by it, sitting in a judicial capacity which will constitute a judgement, binding and enforceable against the person involved in the dispute”.

If the National House Chiefs illegally or wrongfully regarded, relied on, treated, adopted, or used the said Report as a binding judgment then the Appellants could have appealed against it to the Supreme court as provided by Section 22(1) of Act 370.

On the other hand, if the House had used the said Report as a basis for its deregistration of refusal to register the 2nd Appellant’s name as Chief of Aduasa, then an appeal could have been lodged in accordance with Section 50(7) Act 370 which provides “Any person aggrieved by the refusal by the National House of Chiefs to register him as a Chief may, within thirty (30) days after the decision, appeal against the decision of the Supreme Court".  But, it is to be noted, the House appears to have based its decision on the petition of the Respondents. But that as it may, it is not part of the Court's evaluative duty to impute motives or the exercise of arbitrary power or discretion where none exists.  The evidence as a whole is predominantly in favour of the Respondents, The main allusion to the contrary is the appellant's regurgitation of the original arguments before the High Court.

It was being vigorously canvassed that the Court should issue an Order of Prohibition, to prevent the National House of Chiefs from refusing to register the name of the 2nd Appellant as the Chief of Aduasa, by relying upon the Report in question, which they claim has already been relied upon by the House to refuse the Registration of the 2nd Appellant as the Chief of Aduasa.

In any events, that argument seems to disregard the provisions of Section 24(1) of the Chieftaincy Act, 1971 Act 370.  Which gives certain powers to the committee in the exercise of its original jurisdiction.

It states: "A judicial committee may receive in evidence any matter (including hearsay)

which tends to prove or disprove any fact relevant to the subject matter before the Committee." Again, under Section 2(2), the National House of Chiefs may appoint its own fact-finding committee.

From this I think it is fair to infer that the Committee is virtually unfettered in its quest for the truth.   Thus the Committee may make references to any relevant evidence regardless of its source in appropriate circumstances.  So how can this Court grant the application to prohibit the House of Chiefs from forever relying upon or otherwise enforcing to the prejudice of the applicant, in any case or matter affecting the Akyem Aduasa Stool, the finding in the Report.

What the Committee is not empowered to do, however, is to abdicate or delegate its responsibility in this connection to another body, by allowing that body to take a decision on its behalf. The maxim, I think, is "Delegatus non potest delegare."

It will also be helpful to refer to the case of REPUBLIC V. PNDC SECRETARY, and another Ex-Parte OTI and others 1992 1 GLR. 471 the judgment of the High Court Accra presided over by LUTTERODT J.

That was a case in which after the burial of Nii Amponsah III, Otublohum Mantse, the different ruling houses of that division of GA Traditional Council, became embroiled in a chieftaincy dispute regarding the choice of a new Otublohum Mantse. In the course of the dispute, the Provisional National Defence Council Secretary for Greater Accra, the Second Respondent withdrew the matter before the Traditional Council and appointed a panel to hear and determine the case.  After the hearing, the Government published a white paper in respect of the Panel's findings.

The applicants aggrieved by the contents of the white paper, applied to the High Court praying for an Order of Certioria to quash the white paper on the grounds that:

(a)  the appointment of the panel by the second respondent was altra vires since at the time the committee was set up there was no legal backing for it."

(b)  secondly that since the matter was a chieftaincy dispute the panel had no jurisdiction to hear and determine it.

It was held, dismissing the application, that (1) although S.52 of the Courts Act 1972 (Act 372) reserves the jurisdiction to hear and determine all causes or matters affecting chieftaincy exclusively for judicial committee of Traditional Councils, by the provisions of Section 6(1) of the Provisional National Defence Council (Establishment) Proclamation (Supplementary and consequential Provisions) Law 1982 (PNDCL 42), the PNDC as the legislative authority had been vested with very wide powers to set up a Committee of inquiry into any matter of public interest.

And although the law did not specify what constituted matters of public interest, it was obvious that the PNDC had the discretion to determine what were matters of public interest.

Accordingly the PNDC had the power by passage of the Committee of Inquiry into the Otublohum chieftaincy and Traditional Affairs Instrument 1991 (El 25 of 1991) to appoint the Committee that investigated the Otublohum Chieftaincy affair once it was satisfied that it was a matter of public interest . . . ”

It was held further that "4 Since the Committee was established as a result of complaints received by the PNDC Secretary for Greater Accra from all the factions to the dispute and each of them responded to the invitation to investigate their respective complaints, all of them would be held to have voluntarily submitted their dispute to arbitration.

On the evidence, all the factions presented written and duly signed cases and actively took part in the proceedings, and the award was not arbitrary but was arrived at after the parties had been given a fair and impartial hearing at which they were given the opportunity to cross-examine their opponents in due compliance with the rules of natural justice.

The Committee therefore adopted the procedure normally followed by such arbitrations.  And since the award published there had been a valid arbitration of the dispute between the parties.

Accordingly the applicants were estopped from challenging the validity of the proceedings” so concluded the court.  In this case there was of cause no arbitration on an award as such.

Without any intention of adopting the principles enunciated in this case in their entirety, I think some basic principles therein would appear to coincide with some of the principles applicable to this case.  It must be added, however, that in the instant case, the issue is not one of arbitration but whether the findings of the Committee can be relied upon or enforced by the National House of Chief in the exercise of its discretion in dealing with the 2nd appellants application for registration as the chief of Aduasa.  In other words, it was feared that the findings of the report might be used to the prejudice of the said applicant for the registration of the 2nd appellant’s name in the National Register of Chiefs.

As already indicated, the appellants have strenuously sought an order of Prohibition to stop the National House of Chiefs from relying on the said Report and findings, in deciding the fate of the application in question.  It is the refusal of the Order by the High Court Accra, that has given rise to this appeal.

In a case like this, and in this particular context it is additionally necessary in my view to established the likelihood of real bias or perceived prejudice or an obvious illegality or Contemptuous disregard of the law, or a transparent attempt calculated to subvert the truth or justice.

The Republic v. Akwapim Mampong District Court Grade II and others Exparte Djanie and one other, 1992 1 GLR 360 at 361  (admittedly a criminal case) the Learned High Court Judge Accra, held, among other things, that” A mere suspicion, even a reasonable suspicion of bias, would not itself suffice. "In the instant case", said the learned judge, "Counsel for the applicants had failed to establish the bias which was necessary in law to grant an order of Prohibition."

This view cannot lay any claim to finality on the subject. It is, nevertheless, amply supportable.  In the instant case, there is an allusion to the suspicion or even the possibility of bias, i.e. that the report might be used to the detriment of the 2nd appellant. That suspicion is supported, only by evidence that is difficult to describe as proof, even on the preponderance of probabilities, especially when it appears that the relevant decision to expunge the name of the 2nd Appellant was taken, before the application for an Order of Prohibition was filed.  In the present case it has not been satisfactorily demonstrated how any reference to the said Report is or is likely to be or has been prejudicial to the said Appellant.  And how and for what reason the Court can for all time prevent any reference to the document. In the result, it is my considered opinion that this appeal must fail for numerous and varied reasons, including, but not limited to, the fact that; The chieftaincy secretariat had the power to request the National House of Chiefs to investigate “the intractable and harmful dispute . . .”

The Report submitted in pursuance thereof was not invalid, and it was not rendered invalid merely because it was in the nature of a matter affecting chieftaincy within the meaning of the Chieftaincy Act 1971 (Act 370), as it involved a matter of nomination, election and installation of a chief. There is no satisfactory evidence that the Report was going to be used as a basis for a decision not to register (or to de-register) the 2nd appellant.  Indeed the evidence tends to show that the decision in that connection had been taken prior to the application for an Order of Prohibition which was refused by the High Court. It would therefore have been an exercise in futility!

In any case, the Report was not tantamount to a binding judgment.  But it has not been declared to be null and void as such. Its de facto existence as a source of information cannot be ignored or wished away.  If it was illegal it could have been quashed by an order of certiorari if provided a proper basis could be established to invoke that jurisdiction of the Court.

The appellants admit that “in the course of its investigations, the Committee heard evidence from the Petitioner and her witnesses, as well as from the 1st appellant and his witnesses, and generally conducted the investigations in much the same way, as an ordinary trial in court is done, and in the end came out with a Report in which it made findings on all the issues in the terms of reference in favour of the Petitioner against the appellants”.

“In other words the report pronounced on the merits of the main dispute . . .”

The report is obviously not a judgment and, therefore, cannot be enforced as a binding document.  Nor was it even accepted or acted upon by the Secretariat, because as stated above it involved questions dealing with the nomination, election and installation of a chief. Matters which were clearly beyond the jurisdiction of the PNDC Secretary. The parties were left free to pursue their remedies in the appropriate forum.

It is true that the National House of Chiefs has no original jurisdiction but only an appellant jurisdiction in any matter relating to chieftaincy and cannot arrogate such jurisdiction to itself.  Traditional Councils, on the other hand, have exclusive original jurisdiction to hear and determine any cause or matter affecting chieftaincy unless it involves a paramount chief.

One must not loss sight of the provisions of Section 24(1) of the Chieftaincy Act 1970 (Act 370) to which reference has already been made.  “A judicial committee may receive in evidence any matter (including hearsay) which tends to prove or disprove any fact relevant to the subject matter before the committee”.  That is in the course of the exercise of its original jurisdiction.

That is how far the committee may go in the reception of evidence.  I hasten to repeat, however, that if the House had capriciously or wrongfully exercised its discretion in refusing to register the 2nd appellant as the chief of Aduasah, the provisions of Subsection 7 of Section 50 of the Act could certainly have been invoked.

It state quite categorically that “(7) Any person aggrieved by the refusal of the National House of Chiefs to register him as a chief may, within thirty (30) days after the decision, appeal against the decision to the supreme court.  Sadly, it is hopelessly out of time. I am regretfully unable to find any clear evidence tending to establish a scenario whereby the House is wrongful threatening or purporting to rely on or enforce the Report in question. An order of Prohibition will therefore not lie. It seems to me that this is a case of a fait accompli, therefore it will be a futile exercise to grant the application to prohibit a course of action, which has already taken place. And there is no evidence of any threat to refer to,  or use it in the future to the prejudice of the Appellants.  I hold the view that the principles enunciated in the case of Estate and Trust Agencies (1927) Ltd Vers. Singapore Investment Trust Ltd 1937 A. L. 898 are distinguishable from, and inapplicable to, this case.

It is significant to note the contents of the letter Ref NHC. 1/E/90 dated 12th July 1995 (Exhibit 1) from the AG Registrar of the National House of Chiefs addressed to Mr. E.A Oduro, Barrister at Law, acting for the Respondents.  

In the penultimate paragraph of the said letter, the Ag. Registrar states among other things that the name of the 2nd Appellant was entered in the National Registrar of Chiefs.

“However, in view of the Petition you submitted on behalf of your clients, the standing committee of the House directed that the entry in the National Register of Chiefs should be expunged, and it has been expunged.”  From this it is clear that the act complained of had been carried out earlier by the House.

The letter goes on: "You are, therefore, urged to advise your clients to seek permission from your overlord, Osagyefo Kuntunkununku II, Omanhene of Akim Abuakwa Traditional Area, to allow Barima Adu Ampofo II to swear the Oath of allegiance, and to enable his enstoolment forms to be submitted to this office for processing and entry in the National Register of Chiefs."

It is obvious to me that far from arrogating original to jurisdiction in this matter to itself, the House was abdicating that responsibility. There is no indication anywhere that the House intended to use the Report or any part thereof in any future registration exercise. On the contrary, the House was content to leave the matter in the hands of the Omanhene of the Akim Abuakwa Traditional Area.

The Affidavit in support of the application was thus a little economical with the facts. Prohibition presupposes a contemplated future action, or perceived act, or conduct, which is illegal, or at least wrongful; harmful or prejudicial; biased or unjust.

I find myself regretfully unable to grant the application, namely, for “an order granting the Prohibition sought and setting aside the refusal of the court below, to grant the said Prohibition.  That is to say. An order of Prohibition against the National House of Chiefs, Kumasi, prohibiting the House from in any way whatsoever relying upon otherwise enforcing to the prejudice of the applicants in any chieftaincy cause or matter coming before the House affecting the Akyem Aduasa stool, the findings contained in the report dated the 28th day of May 1992, by the Committee set up by the House, to inquire into the  dispute over succession to the Akyem Aduasa stool, pursuant to the letter Ref. No. CO/CO5/66/V.3 dated the 29th December 1989, from the PNDC Secretary for chieftaincy Affairs to the National House of Chiefs, requesting an inquiry or investigation and a report thereon into such matter or dispute and for such further or other matters as this Hon. Court may seem fit”.  This court cannot prohibit the National House from expunging from the National Register of Chiefs, a name which has already been expunged according to the evidence.

Nor can this court compel the House to register or re-register or reinstate such a name. That would indirectly be granting an Order of Mandamus which is not before the court.  Finally I hold that this appeal must fail, having regard to the facts, the evidence the totality of the circumstances and the relevant legal provisions.

The appeal is accordingly dismissed and the Ruling of the High Court Accra dated the 23rd day of January 1988 is hereby confirmed.

I think it is right and appropriate to express to Counsel on both side the court's appreciation and gratitude for the industry which they put into the proceedings, and for the scholarship with which they presented their written arguments as well as the reasoning which was articulated with such clarity.

Let me avail myself also of this opportunity to sound a note of advice to all parties and supporters. I would suggest if I may that any jubilation or celebration be kept to a minimum let.

There be no provocation, altercation, inflammatory words, taunting or insults from any quarter. After all you are one people.

In this day and age every community is thinking of the best ways and means of attracting its fair share of development and investment. That, in my humble view, should be the main preoccupation of every citizen. It can happen if you present a concerted front and sink your differences in the supreme interest of peace, progress and development in the area. Unfortunately only one candidate can sit on the stool at a time.

Thank you very much.

As already indicated, the appeals is dismissed, and the Ruling of Apaloo, J, confirmed.

P. K. OWUSU-ANSAH 

JUSTICE OF APPEAL.

ESSILFIE-BONDZIE, JA.:

I agree

A. ESSILFIE-BONDZIE

JUSTICE OF APPEAL

AMONOO-MONNEY, JA.:

I also agree

J. C. AMONOO-MONNEY

JUSTICE OF APPEAL.