Adjei, J.A:

The plaintiff instituted an action against the Defendant in the High Court, Koforidua claiming for the following reliefs:

“i. A declaration that the House Numbered B.25, situate at Akim Adusina is the property of the Nana Ofosua branch of the Royal Aduana family of Adausina.

ii. A declaration that by Akyem Kotoku custom and practices the late Nana Ntiamoah Bediako IV cannot be buried at the Adausina Royal Mausoleum without the knowledge, consent and active participation and involvement of the chief and elders of the Adusina Stool.

iii. A declaration that the late Nana Ntiamoah Bediako IV being an ex-chief cannot, by Akyem Kotoku custom, be given a Royal burial at Adausina without the knowledge, consent and active participation of the chief and elders of the Adausina Stool.

iv. An order of perpetual Injunction restraining the defendants, their agents, assigns etc. from having anything to do with House Number B.25 Adausina”.

The Defendants filed a motion to set aside the writ that, inter alia, the reliefs being sought by the plaintiffs against them fall within the domain of cause of matter affecting chieftaincy which the original appellate jurisdictions of the High Court have been ousted by statute. The defendants specification referred to paragraphs 6,7,8,9,10 and 11 of the plaintiffs’ statement of claim and concluded that the averments contained therein constitute a cause or matter affecting chieftaincy. The trial High Court dismissed the defendants’ application and held that the facts contained in the statement of claim border on the custom of Akim Kotoku and do not translate into a cause or matter affecting chieftaincy. The defendants dissatisfied with the ruling of the trial High court delivered on

20^th August, 2013 filed an interlocutory appeal against the said ruling to this Court on 5^th September, 2013.

There are four grounds of appeal in the notice of appeal and they are as follows:

“1 The ruling is against the weight of evidence

2. The Court erred in law by holding that the Suit was not a Chieftaincy matter even though the pleadings as well as the reliefs the Plaintiffs were seeking were related to the exercise of Chieftaincy powers.

3. The Court also erred in law in holding that the case was justiciable even though relief 1 of plaintiffs’ claims fell foul of the Limitations Act 1972 (NRCD 54) and therefore was statutorily barred.

4. The Court erred in law by holding that the case was not an abuse of the judicial process even though the 1st plaintiff was contesting his status as a Chief by seeking the restoration of his name expunged from the register of the National House of chiefs in the Kumasi High Court a situation that is likely to bring the High Court into disrepute”.

We address the first ground of appeal which states that the ruling is against the weight of evidence on record. The defendants are inviting this Court to rehear the matter by the exercise of its appellate jurisdiction, and to correct all the errors committed by the trial High Court Judge, and to finally arrive at a right conclusion. An appellate court whose jurisdiction has been invoked by an applicant against a ruling which alleges that the ruling is against the weight of evidence on record is required to take into account the depositions contained in the supporting affidavit of the motion filed by the defendant, the exhibits or the annexures in support of the application, the affidavit in opposition and its exhibits or annexures, and satisfy itself as to whether the findings of facts made, legal and issues discussed and the conclusion arrived the court below can be supported. We have examined the entire processes filed by the parties in respect of the application to set aside the writ and we could not see any error committed by the trial High Court judge which requires the intervention of this Court. The applicant who alleges that a ruling delivered by a lower court is against the weight of evidence must demonstrate all the errors committed by the said court and further satisfy the Court that the said errors are material and ought to be corrected to arrive at a decision supported by law. We are satisfied that the defendants failed to attack the errors committed by the trial High Court in its ruling and we cannot therefore interfere with it. This ground of appeal fails and same is dismissed as without merits.

Ground (b) of the appeal is that the trial High Court judge erred by holding that the suit is not a chieftaincy matter even though the reliefs being sought by the plaintiffs were related to the exercise of chieftaincy powers.

This ground of appeal seeks to suggest that chieftaincy matters and causes or matters affecting chieftaincy are one and the same; anything concerning chiefs or the chieftaincy institution is a chieftaincy matter. However for a cause to constitute a cause or matter affecting chieftaincy, it must come within the definition provided by the Courts’ Act, Act 459 and the Chieftaincy Act, Act 759. Chieftaincy matter is a generic word and “cause or matter affecting chieftaincy” is specific. Section 76 of the Chieftaincy Act, Act 759 defines a cause or matter affecting chieftaincy as:

“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 as a chief

b. The deposition or abdication as a chief,

c. The right 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 a 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”.

The same definition for a cause or matter affecting chieftaincy is contained in section 117 of the Courts Act; Act 459. The only improvement made in the Chieftaincy Act to the definition of what a cause or matter affecting chieftaincy is is in respect of section 117(1)(c) where the word “destoolment” which has a limited meaning was changed to ‘deposition’ to encompass both destoolment and deskinment.

The jurisdiction of the traditional courts apart from the Supreme Court is ousted from entertaining any cause or matter affecting chieftaincy in the exercise of their original and appellate jurisdictions. Section 57 of the Courts’ Act provides thus:

“subject to the constitution, the Court of Appeal, the High Court, a Regional Tribunal, a Circuit Court and a District Court shall not entertain either at first instance or on appeal a cause or matter affecting chieftaincy”.

The only jurisdiction of the High Court which has not been ousted by section 57 of the Courts Act is the jurisdiction to exercise supervisory powers over the Judicial Committees of the traditional Councils, the Regional Houses of Chiefs and the national House of chiefs in causes or matters affecting chieftaincy. Section 43 of the Chieftaincy Act, Act 759 further confers supervisory jurisdiction on the High court over an adjudicating chieftaincy body. It provides thus:

“Despite a provision of this Act, the High Court has supervisory jurisdiction over an adjudicating chieftaincy body established by or under this Act”.

Apart from the supervisory powers that a High Court may exercise over adjudicating chieftaincy bodies established under article 141 of the 1992 Constitution and the Chieftaincy Act, the High Court’s jurisdiction either at first instance on appeal has been ousted in a cause or matter affecting chieftaincy. It must be emphasised that the High Court’s supervisory powers do not extend to causes or matters affecting Chieftaincy but rather to the bodies that exercise the jurisdiction in causes or matters affecting chieftaincy.

The High Court shall not exercise jurisdiction over a cause or matter affecting chieftaincy irrespective of how the reliefs are couched. The Courts are able to see through the formulation of the reliefs indorsed on the Plaintiff’s writ and the pleadings and come to the conclusion that even though in form the reliefs sought do not constitute causes or matters affecting chieftaincy, in substance they are causes or matter affecting chieftaincy.

The Courts in determining whether a relief sought by a person on his writ or counterclaim is a cause or matter affecting chieftaincy, look at the substance and not the form. Where it is proved that a relief sought by a party in a suit in substance constitutes a cause or matter affecting chieftaincy, the Court must either strike it out together with the pleadings founded on it, or decline jurisdiction by striking it out. Where a sole relief sought is a cause or matter affecting chieftaincy, the only jurisdiction a High Court may exercise is the jurisdiction to strike the suit out for lack of jurisdiction.

In the case of the Republic v High Court, Denu; ex parte Avadali IV [1993-94]1 GLR 561, the Supreme Court held that a casual look at the form of the Plaintiff’s writ would not disclose that it relates to a cause or matter affecting, however, chieftaincy in substance, it was a cause or matter affecting chieftaincy.

The authorities are also clear that the mere fact that it is averred in a pleading that someone is a chief does not alone make the suit a cause or matter affecting chieftaincy.

It is the substance of the reliefs sought and the pleadings which are material to determine whether a suit filed will constitute cause or matter affecting chieftaincy. In the case of Abbey& Others v Antwi [2010] SCGLR 17, the Supreme Court held that it is the substance of the relief sought and the pleadings that will make a relief a cause or matter affecting chieftaincy and not the mere fact that a question of whether or not a party to a suit was a chief was heard in the course of the trial. We have critically examined the reliefs sought by the Plaintiffs and the pleadings founded on them and we are satisfied that none of the reliefs sought constitutes a cause or matter affecting chieftaincy. Reliefs (i) and (iv) are on land law reliefs (ii) and (iii) are on the customary practices of the people of Akim Kotoku regarding burial and chieftaincy that does not translate to a cause or matter affecting chieftaincy.

Ground (b) of the appeal is also dismissed as without merits. We now address ground (c) where is on limitation of action. The defendants in their pleadings did not plead the issue of limitation in accordance with the Limitations Act to give the plaintiff the opportunity to respond to it. The mere fact that a party pleads limitation against another party in a suit does not automatically terminate the suit. Where the person whom limitation is raised against denies it in his pleadings, the Court is duty-bound to determine it on merits either before the main trial where it was set down as an issue or as part of the trial. We have examined the pleadings filed by the defendants and we have not seen where they pleaded limitation against the plaintiff. The law is that limitation must be specifically pleaded as it is a right and a person who is entitled to raise it may waive it to enable the court to determine and make a declaration of same. A matter which is terminated by a limitation is not decided on merits and the Courts are estopped from making a declaration of title and as a result of that, some parties intentionally waive the right to plead limitation for the Courts to determine the cause on its merits and declare title in them. In the case of Dolphyne (No. 3) v Speedline Stevedoring Co. Ltd. And another [1996-97] SCGLR 514, the Supreme Court held that limitation is a special plea and a person who seeks to take benefit from it must specifically plead it. The defendants raised the question of limitation in paragraph 20 of their affidavit in support of their motion to set aside the plaintiff’s writ.

The law is that, limitation must be pleaded and determined, and not raised in an affidavit. An affidavit is not a pleading and any question of limitation first introduced in an affidavit cannot form a valid basis for limitation. On the other hand, where a party properly pleads limitation in his pleadings and it is denied by the other part in his pleadings, the Courts cannot use a motion as the defendant purported to do in the case in question to determine it. The defendants did not raise the issue of limitation in their pleadings and it is not permissible to introduce it through an application. We further dismiss ground ( c) of the appeal as without merits.

We are of the considered opinion that ground (d) of the appeal is without merits as the allegation that the 1^st plaintiff is seeking to restore his name which was expunged from the register of the National House of Chiefs is not before the trial High Court, and furthermore, it is not a cause or matter affecting chieftaincy. In the case of Republic v National House of Chiefs; ex parte Akrofa Krukoko II (Enimil VI Interested Party) [2007-2008] SCGLR 173, the Supreme Court held that the law was settled that entries made or deleted from the National Register of Chiefs did not constitute a cause or matter affecting Chieftaincy but an administrative act exercisable by the Registrar of the National House of Chiefs.

We dismiss the appeal in its entirety as being unmeritorious and affirm the ruling of the trial High Court delivered on 20^th August, 2013.

(sgd.)

DENNIS ADJEI

JUSTICE OF APPEAL

(sgd.)

SOWAH,J.A. I agree CECILIA SOWAH

JUSTICE OF APPEAL

(sgd.)

MENSAH,J.A I also agree    L.L. MENSAH

JUSTICE OF APPEAL