THE REPUBLIC vs. NANA NTSIFUL @ PETER GYAABIN & EBUSUAPANYIN KOFI NANTIE & 3 OTHERS EX PARTE NANA KWABENA AMO II, CHIEF OF AKYEMPIM V
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    CAPE COAST - A.D 2017
THE REPUBLIC
NANA NTSIFUL @ PETER GYAABIN - (1ST Respondent/Appellant) AND EBUSUAPANYIN KOFI NANTIE AND 3 OTHERS (Respondents/Respondents) EX PARTE NANA KWABENA AMO II, CHIEF OF AKYEMPIM V (Applicant/Respondent)

DATE:  29TH MAY, 2017
CIVIL APPEAL NO:  H1/08/14
JUDGES:  HONYENUGA J.A. (PRESIDING), GYAN J.A., SUURBAAREH J.A.
LAWYERS:  MR. PHILIP NKRUMAH FOR THE APPLICANT/RESPONDENT
MR. VICTOR OWUSU FOR THE 1ST RESPONDENT/APPELLANT & THE RESPONDENTS/RESPONDENTS
JUDGMENT

HONYENUGA, J.A.

This appeal is about a chieftaincy dispute at Akyempim and it is against the judgment of the High Court, Tarkwa, dated the 4th day of February, 2011. The said court had granted an application for judicial review to wit certiorari brought by the applicant/respondent (hereinafter called the respondent) against the 1st respondent/appellant (hereinafter called the appellant) and the respondents/respondents.

 

The facts of this appeal were that the respondent is the legitimate chief of Akyempim, having been recognized as such by a publication in the Local Government Bulletin dated the 28th October 2005. Without any destoolment charges having been filed against him at the Judicial Committee of the Traditional Council, the respondents/respondent at a family gathering purported to have destooled the respondent. No customary rites were performed and the alleged charges were communicated to the respondent through letters. Having thus destooled the respondent, the appellant was then purportedly installed as the new chief. Aggrieved by the acts of the appellant and the respondent/respondent, the respondent subsequently filed an application for judicial review by way of certiorari to quash the decision of the appellant and others. On the 4 th day of February, 2011, the learned trial judge granted the prayer of the respondent and quashed the findings and or observations and proceedings culminating into the purported destoolment of the respondent as a nullity. The trial judge also quashed the purported estoolment of the appellant as the new chief. Furthermore, the learned trial judge prohibited the appellant from styling or holding himself out as a chief of Akyempim.

 

Being dissatisfied with the ruling of the learned trial judge, the appellant filed the instant appeal based on the following grounds:- 

“i. The judgment of (sic) was against the weight of the evidence adduced at the trial.

ii. The legal and factual basis of the judgment of the High Court, Tarkwa, dated the 4th February, 2011, are erroneous in law.

iii. The High Court had no jurisdiction to determine the matter.

iv. The trial judge was functus officio when he delivered the judgment on the 4th February 2011.

v. Additional grounds of appeal would be filed upon the receipt of the record”.

 

On the 30th May, 2012, the appellant filed additional grounds of appeal thus:-

 

“The learned trial judge erred in law by granting a relief which was not asked for by the applicant/respondent”.

 

Before proceeding to consider the written submissions of counsel, I would address the complaint of the learned counsel for the respondent that the additional ground of appeal filed by counsel for the appellant on the 30th May, 2012, was without leave of this court. Rule 8(8) and (9) of the Court of Appeal Rules 1997 (C.I. 19) provides:-

 

“(8) The appellant shall not, without the leave of the court, argue or be heard in support of a ground of objection not mentioned in the notice of appeal, but the court may allow the appellant to amend the grounds of appeal on the terms that the court thinks just.

(9) Despite subrules (4) to (8), the court in deciding the appeal shall not be confined to the grounds set out by the appellant but the court shall not rest its decision on a ground not set out by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground”.

 

Learned counsel for the respondent had contended that the appellant did not seek leave of this court in arguing the additional ground of appeal contrary to Rule 8(7) of C.I. 19. This meant that the appellant was in breach of the rules. Their Lordships at the Supreme Court per Date-Baah JSC delivered this in Volta Aluminium Co. Ltd. v Akuffo [2003-2005] 1 GLR 501 at page 511, in his majority opinion stated thus:-

 

“Additional grounds of appeal were filed by the defendant company but leave was not sought by their counsel from this court for them to be argued. Accordingly, strictly speaking, according to rule 6(6) of the Supreme Court Rules, 1996 (C.I. 16), the arguments of the defendant based on the additional grounds should be ignored. The failure by the defendant based on the additional grounds should be ignored. The failure by the defendant to secure leave for the additional grounds would mean that much of its statement of case would be rendered less relevant than it might have been, since it focused on the additional grounds. On the other hand, by rule 6(7)(b) of C.I. 16, notwithstanding the requirement for an appellant to set forth the grounds of appeal, the court is not obliged, in deciding the appeal, to confine itself to the grounds set forth by the appellant; nor is it precluded from resting its decision on a ground not set forth by the appellant. Accordingly, in the interest of justice, I would take account of such of the additional grounds of appeal as I find helpful in the hearing of this case, by way of appeal. …. There will be no injustice in resting any decision I take on any of the additional grounds since the plaintiffs were given notice of them (and the arguments in support of them) and in fact, addressed them in their statement of case”.

 

Furthermore, in the recent decision in Hotel Majorie ‘V’ Ltd. v Monyo [2013-2014] 2 SCGLR 1342, Holding 1 & 2, the Supreme Court delivered on Rule 8(8) and (9) of the Court of Appeal Rules 1997, C.I. 19 as follows:-

 

“(1) The language of rule 8(8) of the Court of Appeal Rules, 1997 (C.I. 19) connoted the exercise of discretion by the Court of Appeal. Rule 8(8) and 8(9) of the partem rule was only one of the reasons why leave ought to be sought. It was wrong to say (as contended by counsel for the first defendant/appellant) that was the only reason and utterly wrong to say that the effect of rule 8(9) was to override rule 8(8) once the respondent had had the chance to respond. The provision in rule 8(8) of C.I. 19, namely “the Court may allow the appellant to amend the grounds of appeal on the terms that the court thinks just” showed that the grant of leave was not automatic and in the form as requested by counsel.

(2) Given the following facts, namely:

(i) that the Supreme Court was the final court in the land;

(ii) it would be unfair to visit the sins of counsel on the litigant; and

(iii) there was the need to do substantial justice and deal finally with all outstanding issues, the Supreme Court would overlook the obvious breach by the first defendant company of rule 8(8) of the Court of Appeal Rules, 1997 (C.I. 19), and adjudicate on the additional or fresh ground of appeal argued by counsel for the first defendant-appellant without obtaining leave of the Court of Appeal. Volta Aluminium Co. Ltd. v Akuffo [2003-2005] 1 GLR 502 at 511 SC followed”.

 

 

From the legal authorities cited above, it was clear that Rule 8(8) and (9) of the Court of Appeal Rules, 1997, C.I. 19 was a discretionary remedy exercised by the Court of Appeal but same could be interfered with on the grounds of audi alteram partem, the need to do substantial justice and deal with all the issues arising from the appeal once and for all, that it would be unfair to visit the sins of counsel on the litigant and finally in a situation where the respondent had the chance to respond to the submissions on the additional ground as filed without leave.

 

In the instant appeal and taking a cue from the Supreme Court authorities as stated, it is my candid opinion that since counsel for the respondent had had the chance to respond in his written submissions and in order that substantial justice was done and all the issues in this appeal determined once and for all, that the sins of counsel should not be visited on the litigant, there was no breach of Rule 8(8) and 8(9) of C.I. 19. This court would therefore adjudicate on the additional ground of appeal without the need for leave of this court.

 

Now, in his written submissions, learned counsel for the appellant first argued ground (vi), that is “the learned trial judge erred in law by granting a relief which was not asked for by the applicant/respondent”. Learned counsel for the appellant had referred to the reliefs claimed under the application for judicial review, cited Dam v Addo and Household Products Ltd. v Hannah Assi (No.1) [2005-2006] SCGLR 458, to the effect that a court can grant a relief to a party not asked for. Counsel however, cited Nyamaah v Amponsah [2009] SCGLR 261 Holding (1), where the Supreme Court held that a judge who makes an order for a relief not sought can be held to have exercised an irregular jurisdiction. Counsel contended that the respondent did not pray for any prohibitive order to restrain the appellant from styling himself as the chief of Akyempim, yet the trial judge granted same. Counsel submitted that the reliefs granted by the High Court are not incidental to the reliefs the respondent asked for and therefore lacked the jurisdiction to quash the proceedings leading to the installation of the appellant and also lacked the jurisdiction in making the prohibitive order against the appellant.

 

On the other hand, learned counsel for the respondent submitted in his written submissions that the trial judge was legally right in making the prohibitive order and relied on Order 55 of the High Court (Civil Procedure) Rules 2004, C.I. 47; Order 55 rule 2(1)(a)(b) in support of his submission. Counsel prays that this ground of appeal must fail.

 

The learned trial judge on page 63 of his judgment had made a finding that:-

 

“Respondents have flagrantly ignored all the laid down customary and statutory procedures for destooling a chief. Whatever they purported to do on the 30/07/07 is a nullity”.

 

The learned trial judge on page 64 of his judgment then made the following orders:-

 

“With the above findings and/or observation the proceedings culminating in the purported installation of Nana Ntsiful alias Peter Gyabin is to be brought up in this court to be quashed and same is quashed. In the result, the application for certiorari and injunction succeeds as prayed for” (emphasis mine).

 

Order 55 Rule 2(1)(a) and (b) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) provides:-

 

“2. Orders obtainable by judicial review

(1) On the hearing of an application for judicial review the High Court may make any of the following orders as the circumstances may require

(a) An order for prohibition, certiorari or mandamus.

(b) An order restraining a person from acting in any public office in which that person is not entitled to act”.

 

From Order 55 rule 2(1)(a) and (b), it could be deduced that an applicant need not seek a specific order but, on hearing the application, the court may make any of the following orders as the circumstances may require: an order for prohibition, certiorari or mandamus; an order restraining a person from acting in any public office in which that person is not entitled to act; any other injunction, a declaration of damages. See Republic v Ghana Industrial Holding Corporation, ex parte Amartey Kwei [1982-83] GLR 510. Although the applicant need only seek the remedy of judicial review in the application, the matters canvased in the application must point at one or more of the remedies available. See also Civil Procedure A Practical Approach by S. Kwame Tetteh at page 757. Indeed the principle in Dam v Addo (supra) was that a court cannot grant a relief or substitute a case for a party which did not ask for. Further in Gihoc Regrigeration and Household Products Ltd. v Hannah Assi [2005-2006] SCGLR 458, the Supreme Court had refused to grant a relief of title among others to the defendant because he did not counterclaim.

  

However, in a review in Hannah Assi (No.2) v Gihoc Refrigeration and Household Products [2007-2008] SCGLR 16 Holding (1), the Supreme Court reversed its earlier decision and granted the reliefs which it had refused to grant earlier because they were clearly established in the evidence. On the contrary, as rightly cited by counsel for the appellant, the Supreme Court in Nyamaah v Amponsah [2009] SCGLR 361 Holding (1), held that:-

 

“It is the duty of a trial court to make pronouncement on the reliefs that a party seeks. Therefore the trial court is to ensure that the issues it sets down for determination would aid it in making justifiable decisions on the reliefs sought. Consequently, a judge who makes an order for a relief not sought by a party, can be held to have exercised irregular jurisdiction. In the instant case, ownership of the Atwima Afiasebon House was never an issue; therefore a determination on it was irrelevant for the reliefs sought by the parties, both the trial High Court and the Court of Appeal had no jurisdiction to make a pronouncement as to its ownership. Consequently, the decision of the Court of Appeal declaring the mother of the wife as the owner of the Atwima Afiasebon House, was made without jurisdiction and same would be set aside. Timitimi v Amabebe [1953] 14 WACA 374 at 375; Dam v Addo [1962] 2 GLR 200 SC; and Gihoc Refrigeration & House Products Ltd. v Hannah Assi [2005-2006] SCGLR 458 (per Dr. Date-Baah JSC at 479) cited”.

 

As it stands, there are two conflicting judgments of the Supreme Court, that the Hannah Assi (No.2) (supra) allowing for reliefs not claimed to be granted and the Nyamaah v Amponsah (supra) which specifically forbade a judge who grants an order or a relief not sought by a party can be held to have exercised an irregular jurisdiction.

 

I would prefer the decision in the Nyamaah v Amponsah (supra) because it is very relevant to the determination of the instant appeal. A perusal of the instant appeal indicates that, the learned trial judge completely departed from the reliefs sought. Indeed the reliefs sought by the respondent in his application for certiorari and injunction and the orders granted by the trial court were at variance. The principle was that a judge who grants a relief not sought by a party would be held to have exercised an irregular jurisdiction and same would be set aside. See Nyamaah v Amponsah (supra).

 

The submission by counsel for the respondent that Order 55 rule 2(1)(a) and (b) justified the learned trial judge’s actions to grant those reliefs, is untenable because upon hearing the application for judicial review, the trial judge was expected to grant the substantive orders of certiorari, prohibition among others which arise from the circumstances of the application. Any order not claimed by the party but granted by the judge would be granted without jurisdiction. Order 55 rule 2(1)(a) and (b) would therefore not be applicable to the instant appeal. Consequently, the prohibitive order granted by the trial judge was ordered without jurisdiction. This ground of appeal succeeds in part.

 

The next ground of appeal argued was ground “(i)”, “the judgment was against the weight of the evidence adduced at the trial”. “(ii)” “The legal and factual basis of the judgment of the High Court, Tarkwa, dated 4th February 2011 are erroneous in law” and “(iii)” “The High Court has no jurisdiction to determine the matter which was disguised chieftaincy matter”. Learned counsel for the appellant argued those grounds by referring to paragraphs 2 – 5 of the respondent’s affidavit in support of the application for judicial review and by referring to paragraphs 5-20 of the appellant’s affidavit in opposition. Counsel concedes that initially any attempt to prefer destoolment charges should have been initiated before the Judicial Committee of the Wassa Fiase Traditional Council in accordance with section 29(1) of the Chieftaincy Act, 2008, Act 759 by using the methods prescribed under Regulation 4 of the Chieftaincy (Proceedings and Functions) Traditional Councils Regulations 1972 (L.I. 798). Counsel referred to the Law of Chieftaincy in Ghana by Justice S. A. Brobbey at page 334. Counsel also cited Darko v Amoah [1989-90] 2 GLR 214 in support. Counsel again conceded that prima facie no charges were preferred against the respondent before the Judicial Committee of the Wassa Fiase Traditional Council but that it appeared that charges were lodged against the respondent before the Elders of the Stool family of Akyempim and a copy of the charges served him in Exhibit B. Counsel then summarized the respective affidavits and submitted that the respondent’s allegation that the rules of natural justice were not adhered to and the procedure adopted was wrongful is not supported. He referred to pages 62 and 63 of the judgment on record and submitted that the conclusions reached by the trial judge were contrary to the evidence on record. He referred to Bonney v Bonney [1992-93] GBR 783 on when a party alleges that the judgment is against the weight of evidence. Counsel then cited Republic v High Court, Accra, Ex parte Tetteh Apain [2007-2008] SCGLR 72 at 75 which dealt with Certiorari. Counsel submitted that even if the procedure for destooling the respondent was wrong, the remedy lies with pursuing before the Judicial Committee of the Traditional Counsel and not by judicial review. Counsel referred to section 57 of the Courts Act, 1993, Act 459 as amended which ousts the jurisdiction of the High Court in a cause of matter affecting chieftaincy and therefore the High Court lacked the jurisdiction to determine the installation of the appellant as chief of Akyempim. He prays that the appeal succeeds.

 

Learned counsel for the respondent on the other hand, referred to section 29(1) and (2) of Act 759 and Regulation 4 of L.I. 798 and contended that by the affidavit evidence the purported destoolment of the respondent did not go before either the Esuaso Divisional Council or the Wassa Fiase Traditional Council for proper adjudication. He stated that the family arrogated to themselves the powers to constitute themselves into an adjudicating body to trial the respondent and a jurisdiction they did not have. By preferring charges and adjudicating on the matter, the family had breached the natural justice rules. Counsel cited Republic v Asankore Traditional Council, Ex parte Afrakoma [1989-90] 2 GLR 592 in support. Counsel submitted that the proceedings culminating into the respondent’s destoolment having not complied with L.I. 79 is a nullity and certiorari will lie to quash same. Counsel referred to section 76 of Act 759 and section 117 of Act 459 on the definition of a cause or matter affecting chieftaincy. Counsel contended that the High Court only exercised its supervisory powers but did not adjudicate on a chieftaincy matter and cited Republic v High Court, Koforidua, Ex parte Bediako [1998-99] SCGLR 91 at 102 and In Re Ogua Paramount Stool, Garbrah v Central Regional House of Chiefs and Haizel [2005-2006] SCGLR 193 at 214, in support. Counsel submitted that the appeal should fail as having no merit.

 

A perusal of the submissions of learned counsel for the parties indicates that the matters fall under the scope of certiorari and therefore I would set up its scope. In the Republic v

 

Committee of Enquiry into Nungua Traditional Affairs, Ex parte Odai IV & Others [1996-97] SCGLR 401 Holding (1), the Supreme Court laid down the conditions for the grant of certiorari as follows:-

 

“1. Certiorari was a discretionary remedy which would lie to quash not only the findings or decision of a lower court or inferior tribunal which has acted ultra vires its powers or whose decision has been vitiated by error on the face of the record or which has failed to observe the rules of natural justice but also any other inferior tribunal including administrative tribunals which had a duty to act judicially”.

 

Was the learned trial judge right in ordering certiorari to quash the destoolment of the respondent? Since the appellant has alleged that the judgment is against the weight of evidence, it is incumbent upon this court to review the evidence on record and apply them to determine whether if those pieces of evidence were applied, it would change the decision in his favour however, the onus is on the appellant to demonstrate to this court the lapses in the judgment appealed against. See Tuakwa v Bosom [2001-2002] SCGLR 61; Djin v Musa Baako [2007-2008] SCGLR 686; Akufo Addo v Catheline [1992] 1 GLR 377 SC; Oppong v Anarfi [2011] 1 SCGLR 550 and other respectable authorities.

 

In the instant appeal, the matter was fought on affidavit evidence. A perusal of the affidavit evidence indicated that the respondent’s grievance was that he is the gazetted chief of Akyempim but without preferring destoolment charges against him at the traditional council and without regard to the rules of natural justice, he was declared destooled. The respondent contended that his destoolment was made without jurisdiction and therefore it is a nullity. On the other hand, the appellant together with others averred that the respondent was destooled on 13th October, 2006 by the same family which enstooled him after preferring credible charges against the appellant but he was unable to give any reasonable answers or explanations to the charges. The appellant and others catalogued a host of charges against the respondent and stated that after the destoolment, the family and the Esuaso Divisional Council were informed of the family’s decision.

 

Could the above facts constitute a ground for certiorari to lie to quash the decision to destool the respondent? The prerequisites for destooling a chief is prescribed in the Republic v Asankare Traditional Council Ex parte Afrakoma [1989-90] 2 GLR 592, the court held that:-

 

“(1) Although destoolment might be a customary act, a valid customary destoolment had certain vital incidents or prerequisites which were (i) a chief must have committed a known customary offence; (ii) the offence must have been brought to the notice of the chief by the elders; (iii) if the intention was to destool him, the elders must formulate charges against him; and (iv) he must be put on trial on those charges and if found guilty, he might be deposed. Republic v Asokore Traditional Council; Ex parte Tiwaa [1976] 2 GLR 231 at 242, CA and Republic v Kumasi Traditional Council; Ex parte Nana Opoku Agyeman II [1977] 1 GLR 360 CA cited.

(2) Even if the purported destoolment of the applicant had been in conformity with the requirements of customary law, it would still be quashed by order of certiorari for failing to observe the statutory demands under the Chieftaincy Act, 1971 (Act 370), s.15(1) and the Chieftaincy (procedure and Functions) (Traditional Councils), Regulations, 1972 (L.I. 798). Section 15(1) of [P.592] Act 370 provided that matters affecting chieftaincy such as the destoolment of a chief (as in the instant case) should be heard by no other body but a traditional council. Consequently, whatever complaint or grievance the Omanhene harboured against the applicant should have been referred to the Asankare Traditional Council whose judicial committee comprising three or five persons should have been constituted to hear the complaint.

Since the regulations in L.I. 798 and the relevant provisions in Act 370 were clearly breached in the mode employed in destooling the applicant, the panel of arbitrators presided over by the Omanhene could not be said to be properly clothed with jurisdiction to deal with that chieftaincy matter”.

 

Section 15(1) of the repealed Chieftaincy Act, 1971, Act 370 was replicated in section 29(1) and (2) of the Chieftaincy Act, 2008, Act 759 as follows:-

 

“29(1) Subject to this Act, a Traditional Council has exclusive jurisdiction to hear and determine a cause or matter affecting chieftaincy which arises within its area, not being one to which the Asantehene or a paramount chief is a party.

(2) The jurisdiction of a Traditional Council shall be exercised by a Judicial Committee comprising three or five members appointed by the council from their members”.

 

Regulation 4 of the Chieftaincy (Procedure and Functions) Traditional Council Regulations, 1972, L.I. 798 provides the mode of instituting an action before a Traditional Council as follows:-

 

“(1) An action may be commenced in a Traditional Council in one of the following manner:-

(a) By swearing a chief’s oath or any other oath of a Traditional Council;

(b) By writ in the term set out in the second schedule to these Regulations to which the plaintiff shall append his signature or affix his thumbprint.

(c) By any other means recognized by the customary law of a particular locality”.

 

Furthermore, the Chieftaincy Act, 2008 Act 759, section 40(2) and (3) clarify the requirements of a valid destoolment by the following provisions:-

 

“(2) A Traditional Council shall not declare a chief liable to be destooled unless in accordance with subsection (3), the Judicial Committee of the Traditional Council has considered the charges against the chief and find the chief liable to be deposed.

(3) Except where deposition is accepted without challenge and subject to an appeal, a chief is not deposed unless

(a) deposition charge have been instituted against the chief and

(b) the appropriate customary practice for deposition in the area concerned have been complied with.

(4) Subsection (3) does not preclude a Traditional Council from imposing appropriate customary sanction on a Traditional area, or a member of the Traditional Council of the area”.

 

The learned author and Jurist, Justice S. A. Brobbey in his book ‘The Law of Chieftaincy in Ghana’ at page 337 summed up the essentials for a valid deposition as follows:-

 

“(i) preferment of charges against the erring chief who is to be deposed, (ii) initial investigation of the charges by the stool or skin elders or kingmakers (iii) on the satisfaction of certain conditions, reference to the traditional council or regional house of chiefs; (iv) reference to the Judicial Committee of the or the house of chiefs; (v) investigation and determination by the judicial committee; (vi) reference of the committee’s decision to the traditional council or regional house; (vii) consideration of the committee’s decision at plenary meeting of the council or house of chiefs; (viii) reference by the traditional council or house of chiefs to the initial complainants and (ix) final customary action by accredited traditional authorities to consummate the deposition”.

 

From the authorities and the relevant statutes governing chieftaincy it is clear that the required customary procedures which includes the observance of the rules of natural justice must the observed and the matter referred or action taken before the Traditional Council and for that matter the Judicial Committee of the Traditional Council and be heard to its logical conclusion. Thereafter, the matter was brought before the Traditional Council for consideration of the Judicial Committee’s decision. The matter was then referred to the complainant and finally, customary action was undertaken by the relevant traditional authorities for the deposition to be complete. It was therefore that unless the Judicial Committee had considered the charges against the chief and found him or her liable to be deposed, a chief was not destooled. In other words, only the Judicial Committee of the Traditional Council has jurisdiction to try a deposition of a chief as required by Regulation 4 of L.I. 798, sections 29(1) and (2) and 40(2) and (3) of Act 759. See Republic v Asankare Traditional Council Ex parte Afrakoma (supra).

 

In the instant appeal, the learned trial judge had concluded in his judgment thus:-

 

“What is arguable is whether the entire family could legally constitute themselves into a court, and hear destoolable charges against the applicant. There is no shred of evidence that the applicant was given a fair hearing that is the opportunity to face his accusers in an attempt to exonerate himself of whatever complaint or grievance the family may have had against him and which they considered unbecoming of a chief worth his sort. Respondents have flagrantly ignored all the laid down customary and statutory procedures for destooling a chief. Whatever they purported to do on the 20/7/07 is a nullity”.

 

I totally agree with the conclusion reached by the learned trial judge in his judgment because it is on all fours with the customary law, statute and the authorities. It is the Wassa Traditional Council that has jurisdiction to hear any destoolment charges against the respondent after an action was commenced before the Traditional Council. What was required by the appellant and others was to have invited the respondent and informed him of the charges and if he denied, they were expected to substantiate the allegations against him. At this stage, there is no formal trial of the charges. It is a mere preliminary inquiry into allegations against the respondent. It was thereafter that the steps would be taken to depose him by filing the appropriate action before the Traditional council. A perusal of the affidavit evidence depicts that the appellant’s group arrogated themselves into an adjudicating body to try the respondent contrary to statute. The appellant’s group swore in paragraphs 15, 16 and 17 of the affidavit in opposition at page 10 of the record of appeal as follows:-

 

“15. That our family made formal complaint to the Esuaso Stool Family and the Esuaso Divisional Council and they send him a copy of Exhibit “B” appointed the Odikro of SENYAKROM; ANYINASE and TAMSO to meet the applicant and his family for possible solution. The applicant was given NOTICE of the proposed meeting by KYEAME BEDIAKO and a copy of Exhibit ‘B’ was served on him at the same time, and he accepted the charges and agreed to attend the meeting to answer same. But after the said Nananom and our family sat down for a long time waiting for him, the applicant rather sent KEAME DICHIE that he did not intend to attend the meeting to answer the charges.

16. That later the oldest member of our family called AMOAH MENSAH, and all our family members including the applicant met at Akyempim Palace on 13/10/06 and the family had the opportunity to read all the charges (copies of which were in possession) against him but he could not give any reasonable answer or explanation to the charges and the family decided and in fact, destooled the applicant as Odikro of Akyempim. At the meeting immediately he was informed of his destoolment, the applicant’s sister, GROBEY abbempted to slap me.

17. That after the applicant’s destoolment the Esuaso stool family and the Esuaso Divisional Council were notified of the family decision, they again sent the applicant a copy of the charges (Exhibit ‘B’) and invited the family including the applicant for a meeting. We all met and the charges were read to him but again he had to accept the family’s decision to destool the applicant”.

 

It was clear from the affidavit that it was the whole family that sat on the destoolment charges as a trial and purportedly destooled the respondent, and thereafter sent a copy of the charges, Exhibit ‘B’ to Esuaso Stool Family and the Esuaso Divisional Council. All these acts were contrary to Regulation 4 of L.I. 798 and sections 29(1) and (2) and 40(2) and of Act 759 since only the Judicial Committee of the Wassa Fiase has the power to investigate and determine the deposition charges. Therefore the findings and the acts of the appellant and others breached the said statutes and therefore they had acted ultra vires their mode of destooling the respondent. Their acts were therefore a nullity and certiorari would lie to quash their decision to destool the respondent. It is no wonder that counsel for the appellant conceded at page 8 of his submissions that:-

 

“In the instant case, prima facie no charges were preferred against the applicant/respondent herein before the Judicial Committee of the Wassa Fiase Traditional Council”.

 

Leaned counsel for the appellant submitted that for all intents and purposes the matter is a cause or matter affecting chieftaincy as envisaged under section 76 of Act 759 and therefore if the procedure adopted for destooling the applicant/respondent was wrongful, the remedy lied in section 29(1) of Act 759 by taking action before the Judicial Committee of the Wassa Fiase Traditional Council and not apply for Judicial Review.

 

Counsel further submitted that, by section 57 of Act 459 (as amended), the High Court lacked jurisdiction to determine a cause of matter affecting chieftaincy. Indeed section 76 of Act 759 states that “a cause or matter affecting chieftaincy” means a cause, matter, question or dispute relating to any of the following:-

(a) The nomination, election, selection or installation of a person as a chief or the claim of a person to be nominated, elected, selected or installed a chief;

(b) The deposition or abdication of a chief;

(c) The night of a 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 the nomination, election, selection, installation, deposition or abdication of a chief and

(e) The constitutional relations under customary law between chiefs

“deposition” means destoolment or enskinment”.

 

Section 117(1) of the Courts Act, 1993, Act 459 is an exact replica of section 76 of Act 759 although section 76 introduces the word “appointment”, there is no difference. It is trite that he High Court and the Court of Appeal do not have original or appellate jurisdiction in a cause or matter affecting chieftaincy. Only the Supreme Court has appellate jurisdiction in a cause or matter affecting chieftaincy. However, Article 141 of the 1992 Constitution vests the High Court with Supervisory jurisdiction over all lower courts as follows:-

 

“141. The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority; and may, in the exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory powers”.

 

Furthermore, in section 16 of the Courts Act, 1993, Act 459 (as amended) makes explicit the supervisory jurisdiction of the High Court thus:-

 

“16. The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority, and may, in the exercise of that jurisdiction, issue orders and directions including orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto for the purpose of enforcing or securing the enforcement of its supervisory powers”.

 

Only section 57 of the Courts Act, 1993, Act 459 prohibits the Court of Appeal, the High Court, the Circuit and District Courts from entertaining either at first instance or on appeal any cause or matter affecting chieftaincy. Order 55 of the High Court (Civil Procedure) Rules C.I. 47 also provides for orders obtainable by Judicial Review as prohibition, mandamus, certiorari, quo warranto injunction, declaratory orders and damages.

 

Section 43 of the Chieftaincy Act, 2008, Act 759 also affirms the position that the High Court has supervisory jurisdiction over adjudicating chieftaincy bodies established by or under the Act. In Republic v High Court, Denu, Ex parte Kumaple (Dzelu IV Interested Party) [2003-2004] SCGLR 714, it was held that the Judicial Committee of the Traditional Council that is amenable to the supervisory jurisdiction of the High Court. Article 141 of the 1992 Constitution therefore applies to all lower courts. It is obvious that the respondent only invoked the supervisory jurisdiction of the High Court as stated in the said statutes to invoke its powers of judicial review to wit: certiorari. For it is not every case involving a chief that could be characterized as “cause or matter affecting chieftaincy”, the emphasis is on the finality and decisive effect of the determination of the issue on the status of the chief. In Republic v High Court, Koforidua, Ex parte Bediako II [1998-99] SCGLR 91 at 102, the Supreme Court, per Sophia Akuffo JSC put the principle beyond doubt that:-

 

“To my mind the mere fact that the question of whether or not a question is a chief rears its head during an application for certiorari before the High Court does not necessarily constitute the matter as one affecting chieftaincy for purposes of section 57 of the Courts Act, 1971 where such a question arises as a matter secondary to the determination of the fundamental question whether or not an inferior body had the jurisdiction to do something, and does not give rise to the necessity to make a final determination of such status and whether or not such a person has been properly nominated, elected and installed according to the applicable custom or usage”.

 

Moreover, in Re Oguaa Paramount Stool; Garbrah v Central Region House of Chiefs & Haizel [2005-2006] SCGLR 193, Prof. Ocran JSC at page 214 stated the position succinctly that:-

 

“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 justiceable controversy, with respect to any of the matters listed therein and not literally in respect of every matter bearing on chieftaincy”.

 

See also Abbey & Others v Anwi IV [2010] SCGLR 17.

It is my considered opinion therefore that the High Court was called upon to exercise its supervisory jurisdiction and it did just that but not to determine a cause or matter affecting chieftaincy, a jurisdiction that it does not have.

 

The learned trial judge was right in granting judicial review to wit certiorari to quash the destoolment of the respondent which was wholly contrary to law and procedure. This ground of appeal fails and it is hereby dismissed.

 

In conclusion, the appeal succeeds in part. The judgment of the High Court, which part granted a prohibitive order against the appellant is hereby set aside as without jurisdiction. The High Court’s order quashing the destoolment dated 30/7/2007 of the respondent is however affirmed. The judgment of the High Court, Tarkwa, dated 4th February, 2011 is hereby affirmed in part.

 

(SGD.)

C. J. HONYENUGA

(JUSTICE OF APPEAL)

 

(SGD.)

S. K. GYAN, J.A.                           I agree                 S. K. GYAN

(JUSTICE OF APPEAL)

 

(SGD.)

G. S. SUURBAAREH, J. A.       I also agree        G. S. SUURBAAREH

         (JUSTICE OF APPEAL)