WELBOURNE (MRS), J.A.

In this judgment, the 1^st Respondent/Appellant is the Ada Traditional Council. The 2^nd Respondent/Appellant is Samuel Attah Aggudey. The 1^st Applicant/Respondent is Patrick Aggudey, the 2^nd Applicant/Respondent is Emmanuel Tetteh Aggudey and the 3^rd Applicant/Respondent is Narh Numoda Obinchere. We also have Interested Parties Appellants as Numo Oklu Aggudey and Wallace Tetteh Kofi Agguddey.

This appeal arises from the decision of the High Court Accra dated 26^th January, 2017, (Human Rights Division), following the grant of the Respondents application for judicial review.

Brief facts

The parties to this dispute, following a long standing dispute as to who should be the proper person to ascend the Mankralo Stool of Ada, the 1^st Respondent and the 2^nd Appellant hereto, representing their respective gates, submitted to Arbitration to finally resolve the matter. After participating in the said Arbitration, an award was delivered on the 29^th of March, 2012.

The Arbitral award was to the effect that the position of Mankralo in the Ada traditional Area was to be ascended to on rotational basis between the family of the 2^nd Appellant and the family of the 1^st

Respondent. The award also adjudged that the 1^st Respondent’s family should be the first to produce a Mankralo.

Following the award, all necessary rites were performed to install the 1^st Respondent as the Mankralo of the Ada state. The outstanding ceremony was to introduce the Mankralo to the Ada Traditional Council which would mark his formal admission to the Council.

After the delivery of the Arbitral Award, the 2^nd Appellant, the rival Mankralo candidate, brought a Petition before the Judicial Committee of the Ada Traditional Council seeking to set aside the Arbitral Award and seeking a declaration confirming him as the next Mankralo of Ada. The 1st Respondent herein filed a motion to dismiss the said Petition on the grounds that the Judicial Committee did not have the jurisdiction to entertain actions seeking to set aside an arbitral award.

The motion was dismissed by the Ada Traditional Council acting by its judicial committee by a ruling dated 22^nd February, 2013 the result of which the Ada Traditional Council decided to hear and determine the said Petition.

By an application by the 1^st Appellant/Respondent, the High Court Tema, quashed the decision and prohibited the judicial committee from hearing the Petition (pages 23 of the record of appeal).On appeal, the court of appeal confirmed the decision of the High Court. (pages 36 – 52 of the ROA).

In spite of the judgments of the two superior courts confirming the binding nature of the award and the lack of jurisdiction on the part of Ada Traditional Council to rehear the issues that were determined by the said arbitration, the interested parties/Appellants filed a fresh petition at the Ada Traditional Council, seeking the same reliefs as the first. (Pages 56-60 of the ROA).

The Respondents again filed a motion to dismiss the Petition for lack of jurisdiction, and again the

Traditional Council by its judicial committee on the 23^rd of December, 2015 dismissed the application.

By its ruling the judicial committee decided to hear the petition and to consider the reliefs sought.

(Pages 61-62 of the ROA).

Aggrieved by the decision of 23^rd December, 2015 given by the judicial committee of the Ada

Traditional Council, the 1^st Appellant/Respondent filed a motion for judicial review essentially praying the High Court to prevent the judicial Committee from hearing the Petition for want of jurisdiction and also to regulate the conduct of the Ada Traditional Council in the light of the subsistence of the arbitral award. (Page 1 of ROA).

The High Court granted the prayer of the 1^st Appellant/Respondent and by its ruling delivered on the 26^th of January, 2017 granted the reliefs sought. The learned judge stated inter alia that:

“Mandamus lies to compel the performance of a public duty or responsibility by a statutory or public entity, unless there is a legal justification for not doing so. Apart from the unrelenting and persistent desire of the Ada Traditional Council to disregard the arbitral award and the binding decision of the Court of Appeal, the only reason put forward by the Ada Traditional Council in paragraph 7 of their affidavit in opposition is the contention that “the Traditional Council has already recognized and admitted the 2^ndRespondent into the Council as the substantive Mankralo of the Ada Traditional Council. In effect, the Ada Traditional Council as presently constituted and presided over, is inviting this court to judicially legitimize their illegal recognition and admission of the 2^nd Respondent into the Council in blatant and contemptuous disregard of the arbitral award and the confirming judgment of the court of Appeal. This court respectfully rejects this invitation. The recognition and admission of the 2^nd Respondent into the Ada Traditional Council, in disregard of statutes and decisional law, is without any legal basis, this court so declares.”

“It is hereby ordered that the ruling of the Judicial Committee of the Ada Traditional Council dated 23^rd December, 2015 be brought up for purpose of quashing and same is hereby quashed for want or excess of jurisdiction. It is further hereby ordered that the Judicial Committee and Ada Traditional Council be prohibited from hearing or entertaining the petition filed by the Interested Parties on 29^th May, 2015.

It is hereby, further, ordered that the 1^st Respondent (Ada Traditional Council) be restrained from continuing to recognize the 2^nd Respondent, permitting him to attend the meetings of the Ada Traditional Council, allowing him to participate in ceremonies organized by or at the instance of the Council and acting for and on behalf of the Council as the Ada Mankralo during the subsistence of the arbitral award of 29^th March, 2012. It is further ordered that the 2^nd Respondent be restrained from holding himself out or acting as a member of the Ada Traditional Council or as Mankralo of the Ada State or performing any act or deed as such Mankralo at any public gathering, functions, rituals or ceremonies during the subsistence of the arbitral award or 29^th March, 2012.

It is hereby, finally, ordered that mandamus shall lie forthwith to compel the Ada Traditional council acting per its President and the Registrar to take the necessary statutory steps to recognize and admit the 1^st Applicant into the Ada Traditional Council within 30 days following due service of this order on the Registrar and the President with the 30-day period being reckoned from the first service of the order.” (Pages 181-189 of the ROA).

It is against this ruling of the High Court dated 26^th January, 2017 that the appellants have appealed to this court.

The Grounds of appeal are:

The trial judge erred in determining the application which substantially raises maters of chieftaincy.

The trial judge erred in prohibiting the Ada Traditional Council from proceeding to determine a Petition before it which the council has the powers to entertain on the ground that there is already an arbitration award.

The trial judge lacked the jurisdiction to quash the judgment (ruling) of the judicial committee of the Ada traditional council dated the 23^rd day of December, 2015 (exhibit PAT 6).

The trial judge erred in law in prohibiting the judicial committee of the Ada Traditional council from hearing the petition before it (Exhibit PAT 5), when the Judicial Committee of the Ada Traditional Council was not a party to the instant application.

The trial judge erred in ordering the Ada Traditional council to admit the 1^stApplicant/Respondent into the council within thirty (30) days when the 2^ndRespondent/Appellant has not been duly destooled as Mankralo and removed as member of the council.

The trial judge erred and lacked the jurisdiction to restrain the Ada traditional council from continuing to recognize the 2^ndRespondent/Appellant or permit him to attend meetings for the council or allowing him to participate in ceremonies organized by the council and acting for and on behalf of the council as the Ada Mankralo.

The trial judge erred and lacks the jurisdiction to restrain the 2^ndRespondent/Appellant from holding himself out or acting as member of the Ada traditional council as Mankralo of Ada State or performing ay act or deed as Mankralo at any public gathering functions, rituals or ceremonies.

The ruling is against the weight of evidence.

Additional or other grounds to be filed upon receipt of the record of proceedings.

In arguing grounds (a), (f) and (g), counsel for the Appellant contended that the crux of the Respondent’s application was to determine who was the rightful occupant of the Mankralo Stool of Ada; and that this basically raises matters of Chieftaincy. In his view, the trial court could not decide who ought to be admitted into the Traditional Council as Mankralo without inquiring into which of the Claimants (Appellants or Respondents) is the Mankralo of the Ada Traditional Council. Area and entitled to be admitted into the Ada Traditional Council.

Therefore the trial court lacked jurisdiction. In his opinion, the application sought to invite the court to eat the forbidden fruit and ought to have declined jurisdiction.

Counsel further contended that the trial court acted without jurisdiction and therefore erred in restraining the Ada Traditional Council from continuing to recognize the 2^nd Respondent/Appellant, or permit him to attend meetings at the council or allowing him to participate in ceremonies organized by the council and acting as the Ada Mankralo.

Counsel further submitted on behalf of the Appellant in arguing grounds (b) and (c) that the Ada Traditional Council has the powers to adjudicate on the Petition since it seeks to determine who the Mankralo of the Ada Traditional Area is.

In his view the trial court had no power to decide or quash the decision of the Judicial Committee of the Ada Traditional Council. It again stressed that the trial judge lacked jurisdiction to quash the ruling of the Judicial Committee of the Ada Traditional Council.

Counsel further argued that the proper party which ought to have been sued is the Judicial Committee of the Ada Traditional Council but not the Ada Traditional Council as a whole. According to him, it is only the Judicial Committee of the Ada Traditional Council that is amenable to the supervisory jurisdiction of the High Court. As it is a body that exercises judicial functions but not the Traditional Council.

Therefore any orders are incompetent and void so far as it is not a party to the instant application.

In response to the above, counsel for Respondents addressed the issue of Arbitral award. He stated that by the ADR Act 2010 (Act 798) Section 109.

“An award in a customary arbitration is binding between the parties and a person claiming through them and under them”.

According to counsel, it is the binding character affected customary awards by statute which operates to prevent a rehearing or redetermination of the subject matter already determined by customary arbitration. Thus parties cannot reject or resile from an Arbitral Award.

Although, section 112 (1) of the ADR Act 2010 provides that:

“A party aggrieved by an award may apply to the nearest District, Circuit, or High Court to set aside the award on the grounds that the award …… is in contradiction with known customs of the area concerned”.

Whether or not an arbitral award should be set aside is not a chieftaincy mater but purely a question of law. Thus the ADR Act confers jurisdiction to set aside an Arbitral Award on the District, Circuit and High Courts. Counsel cited the Supreme Court case of Boyefio vrs NTHC Properties Ltd. [1997-98] 1 GLR 768 holding 3 in support:

Thus counsel further submitted that having sidestepped the mandatory provisions of law by bringing the petition before the

Traditional Council, the High Court, Human Rights Division, Accra acted in accordance with the law by quashing the ruling and prohibiting the Judicial Committee of the Ada Traditional Council from hearing the petition filed by the Interested Party/Appellants.

Counsel referred us to authorities that held that once there had been a valid customary arbitration, the parties were estopped from raising the same issues. Akornor vrs Okan [1977] 1 GLR 173 – 178. Aduasah vrs Addae [1982-83] GLR 226 – 230 and Kwaw vrs Awortwi [1989-90] 1 GLR 190 – where it was held that:

“On the evidence there had been a valid customary arbitration into the dispute… Both of them were bound by the award and it was not open to the Plaintiff to go to court to relitigate the same issues. It was equally not open to the trial court to ignore the arbitration award which had been pleaded and established by evidence before the court…”.

Counsel also referred us to this Court’s decision in the case of the Republic vrs The Ada Traditional

Council (Civil Appeal No. H1/101/2014 dated 24^th July, 2014 at pages 160 to 164 of the Record of

Appeal) where at page 164, the Court of Appeal held that:

“the Judicial Committee of the Ada Traditional Council is not one of the bodies for situations identified in Act 798, as noted above. Therefore, where the Judicial Committee of the Ada Traditional Council decided to determine the petition despite the nature of the relief sought in the petition, as recorded above, the Committee not only clearly acted in error, it was acting outside its jurisdiction. That would make its said decision void.”

On ground (a) counsel for the Respondent contended that the High Court was called upon to determine, regulate and supervise the conduct of the Ada Traditional Council in the light of the subsistence of the award.

The core issue at stake in my view is whether or not the trial judge lacked the jurisdiction to quash the ruling of the judicial committee of the Ada Traditional Council dated 23^rd day of December, 2015.

Learned counsel for the Appellants further cited the case of In Re: Nungua Chieftaincy Affairs, Odai Ayiku IV vrs The Attorney General (Borketey Laweh XIV – Applicant) [2010] SCGLR 413 at 433 where the Supreme court per Ansah JSC held that:

“when the claims were put before him, the trial judge should have been provoked into first of all probing the question as to what the real nature of what had been put before him was, and more importantly, whether or not he had the requisite jurisdiction to hear to it. He should have been astute enough to bring his judicial mind to bear on this; for if he had, he would have discovered that what has been put before him was truly fruits of the forbidden judicial tree and rejected it outright, even suo motu, by declining jurisdiction”

Thus in his opinion, the trial court acted without jurisdiction and therefore erred in restraining the Ada Traditional Council from continuing to recognize the 2^ndRespondent/Appellant or permitting him to attend meetings at the Council or allowing him to participate in ceremonies organized by the Council and acting or and on behalf of the Council as the Ada Mankralo.

Learned counsel for the Respondent on the other hand refuted the above submission and described them as misconceived. According to him, the Appellants did not seek an answer from the high court as to who should be the Mankralo. They rather stated in their affidavit in support of their application at paragraphs 7,8 and 34 that an arbitral award had been made which effectively decided the issue as to who the next Mankralo of the Ada State should be.

In their view, since the appellants did not dispute the fact of the arbitral award, its scope and validity remained intact.

Regarding the core issue raised, Article 141 of the 1992 Constitution supra gives the High court supervisory jurisdiction over the Judicial Committee of the Ada Traditional Council to quash the decision upon judicial review.

In the instant case, the Petition sent by the appellant herein to the Ada Traditional Council as found in pages 59-60 of the ROA (a)’’a declaration that the purported arbitral award of the Ada Mankralo arbitration dated 29^th day of March, 2012 is vitiated with fraud and therefore void and of no legal effect ‘’was in relation to the arbitral award.

What is clear is that the ADR Act provides regarding the issue raised, and Article 141 of the 1992 Constitution supra also gives the High court supervisory jurisdiction over the judicial committee of the Ada Traditional Council to quash the decision upon judicial review.

The question begging for an answer is whether or not the judicial committee has the jurisdiction to set aside an arbitral award? The Alternative Dispute Resolution Act, 2010 Act 795 Section 112 provides

‘’A party aggrieved by an award may apply to the nearest District, Circuit or High Court to set aside the award on the grounds that the award

(a) was made in breach of the rules of natural justice,

(b) constitutes a miscarriage of justice, or

(c) is in contradiction with the known customs of the area concerned.’’

It can be seen from the ADR Act that the right place the Appellants herein should have petitioned for the setting aside of the arbitral award was the forum enunciated by the Act under section 112(1) supra. Once a statute has outlined the procedure to be resorted to in such an instance it’s that procedure alone that must be adhered to as stated in Tularley v Abaidoo [1962]1GLR and Boyefio v NTHC Properties Ltd [1996-97] SCGLR 513 at 546 …’’ for the law is clear that, where an enactment has prescribed a special procedure by which something is to be done, it is that procedure alone that is to be followed.’’

From the above cited authorities, it’s apparently clear that the Judicial Committee of Ada Traditional Council lacked the jurisdiction in setting aside the petition of the Customary Arbitration Award.

The effect of the customary arbitration on the parties is that it is binding as provided in Section 109 of the ADR Act supra. The effect of the binding nature of the arbitration award by the Act prevents a rehearing and re-determination of the subject matter already determined by the arbitration award.

As stated earlier, the Appellants side-stepped the mandatory procedure in setting aside a customary arbitration by bringing the Petition to the Ada Traditional Council, thus, the High Court had the jurisdiction per section 112(1) of the ADR Act to quash the decision and to prohibit the judicial committee from hearing the Petition filed by the appellants.

The appellants appears to argue that the issue for determination is a cause or matter affecting chieftaincy for that reason the High Court’s jurisdiction is ousted.

In the learned jurist Justice S. A. Brobbey JSC (retired) book on The Law of Chieftaincy in Ghana at pages230-233 stated that:

“A useful test in determining what constitutes a cause or matter affecting chieftaincy was given in the recent Supreme Court decision in In re Oguaa Paramount Stool; Garbrah vrs Central Regional House of Chiefs and Haizel [2005-2006] SCGLR 193 (per Prof Ocran JSC at page 214) as follows:

“It appears from the language of the chieftaincy Act, 1971 that the litmus test for determining whether an issue is a cause of 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. The instant complaint does not constitute a cause of matter affecting chieftaincy within the meaning of section 66 of Act 370 because it does not raise an actual challenge to the nomination, election, appointment and installation of a person as a chief, or his/her destoolment or the right of participation in such decision-making or ceremony”

“Further, he stated that, “Another criterion for determining whether or not a case is 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 almost certainly a cause or matter affecting chieftaincy. This is because the statutorily prescribed method and procedure for adducing such evidence is by applying LI 798 or CI 27. Only traditional councils can apply LI 789 and only Regional Houses of Chiefs and the National House of Chiefs can apply CI 27. Neither CI 47 (for High Courts and Circuit Courts) nor Cap 4 (for District Courts) can be used to adduce such evidence.”

Therefore the answer to this argument is that for the simple reason that a matter involves a chief does not automatically becomes a cause or matter affecting chieftaincy as postulated in the case of In Re Osu Stool; Ako Nortei II (Mankralo of Osu) Nortey Owuo III (Intervener) [2005-2006] SCGLR628 ‘’ the mere incidence of an issue relating to chieftaincy in proceedings in the ordinary courts did not constitute a cause or matter affecting chieftaincy. whether it is so or not, would depend on whether on the facts of a particular case, a genuine cause or matter affecting chieftaincy had arisen.’’

Considering the circumstances which led to the suit in the High Court, the conclusion to be drawn is that the issue bordered on the enforcement of the arbitration award for which the Ada Traditional Council were refusing to adhere to same. Once statutes had given the High Court the jurisdiction to determine such issues in relation to arbitration, it was within its mandated jurisdiction to quash the decision of the Judicial Committee of the Ada Traditional Council.

Article 141 of the 1992 Constitution provides for the supervisory jurisdiction of the High Court. It provides as follows ‘’ the High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority; and may, in the exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory powers.’’

The High court has jurisdiction over all the lower courts and other lower adjudicating bodies such as the Circuit Court, the District Court, the judicial Committees of the Traditional Councils, the judicial Committees of the National House of Chiefs and all bodies with quasi-judicial functions, administrative bodies and administrative officials.

The Chieftaincy Act, Act 759 has specifically provides that the High Court shall exercise supervisory jurisdiction over all the adjudicating chieftaincy bodies as section 43 provides ‘’ despite a provision of this Act, the High Court has supervisory jurisdiction over an adjudicating chieftaincy body established by or under this Act.’’

On the issue of jurisdiction or the lack of it by the trial judge, counsel for the Respondent submitted that it was within the rights of the Respondents and Interested Parties to apply for Judicial review by the High Court in accordance with Order 55.

Order 55 Rule 1 of the High Court (Civil Procedure) Rules, C.I.47 provides the reliefs which could be granted by the High Court in an application for judicial review. They are in the nature of mandamus, prohibition, and certiorari or quo warranto, an injunction.

The High Court’s supervisory jurisdiction over the lower adjudicating bodies was pronounced upon by the supreme court in the case of Republic v High Court, Koforidua; Ex parte Bediako II [1998-99] SCGLR 91 thus ‘’ to my mind, the mere fact that the questions of whether or not a person is a chief raise its head during an application for certiorari before the High Court does not necessarily constitute the matter as the one affecting chieftaincy for the purposes of section 57 of the Courts Act,1993 where such a question arises as a matter secondary to the determination of the fundamental question of 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. In order to constitute a matter as one affecting chieftaincy, it must in my view be the determination of which, unless overturned on appeal, would settle once and for all, a chieftaincy matter or dispute.’’

Therefore it was within the High Court’s mandated jurisdiction to quash the decision of the Judicial Committee of the Ada Traditional Council.

On ground D, I agree with counsel for the Respondent that the short answer to it is that to the extent that the Ada Traditional Counsel was a named party to the proceedings, it follows that the Judicial Committee, was also a party.

The important point to note here is that section 29(3) of Act 759 ensures that a judgment or order of the Judicial Committee is deemed to be a judgment or order given or made by a Traditional council in a cause or matter affecting chieftaincy.

Thus, the Ada Traditional Council is the proper party to be sued. Therefore that ground is dismissed as unmeritorious.

Similarly, ground E is also dismissed as the High Court under its supervisory jurisdiction is mandated to make the necessary orders as the circumstances require.

In conclusion, the Judicial Committee of the Ada Traditional Council lacked the jurisdiction to determine whether or not the arbitration award could be set aside, since it was not a matter or cause affecting chieftaincy for which reason, the High Court acted within its jurisdiction by quashing and granting such orders that were applicable against the acts of the Judicial Committee.

Once it has been established that the High Court had jurisdiction, all the other grounds of appeal though discussed above are rendered superfluous and are accordingly dismissed. The appeal fails in its entirety.

Cost of Ten Thousand Ghana cedis (GH¢10,000) awarded to the Respondents.

(Sgd)

Margaret Welbourne (Mrs.)

(Justice of Appeal)

(Sgd)

Aduama Osei                   I agree                         K. N. Aduama Osei (Justice of Appeal)

(Sgd)

Kwofie                             I also agree                    Henry A. Kwofie

(Justice of Appeal)