• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE HIGH COURT
  ACCRA - A.D 2019
  

NII ADJEI BOAHEN II - (Plaintiffs)

vs.

NII KPOBI TETTEY TSURU III AND 3 OTHERS - (Defendants)

DECISION

---

 

i. Introduction:

 

[1] It recalls that on the 3rd day of March, 2017 the Plaintiff commenced this instant action by issuing a writ of summons against the Defendants herein for certain judicial reliefs.

 

The Writ of Summons together with the Statement of Claim was later amended on 26^th July, 2017. The reliefs endorsed on the Writ of Summons are as follows:

 

i. A Declaration that the Defendants have no lawful authority to leave out or ignore the Plaintiff in the induction and swearing in of some members of the La Traditional Council as by law established or from participation in its affairs.

 

ii. A Declaration that by leaving out and ignoring the Plaintiff in the induction and/or participation in the affairs of the La Traditional Council of which he is a member, the Defendants are violating the rights of the Plaintiff.

 

iii. Perpetual injunction restraining the Defendants, members of the La Traditional Council, their agents, servants and privies from interfering with or violating the rights of the Plaintiff as a member of the La Traditional Council.

 

iv. General Damages for wrongful interference with the rights of the Plaintiff.

 

 

 

ii. The Background of Application:

 

[2] Filed together with the original writ of summons was a Motion on Notice for Interlocutory Injunction. The 1st and 2nd Defendants entered a Conditional Appearance to the Writ of Summons but did not follow up their protest with any application and subsequently filed an affidavit in opposition to the application for injunction on April 7, 2017. The 3rd Defendant also filed an affidavit in opposition on March 15, 2017 and followed it up with a Supplementary Affidavit on June 7, 2017. The Plaintiff further filed a Supplementary Affidavit on May 29, 2017 to rebut the depositions of the Defendants to his injunction application.

 

 

 

[3] Further to the amendment of the writ of summons after the grant of leave by the Court the Plaintiff filed a new application for interlocutory injunction on September 10, 2018 and same was scheduled for September 20, 2018. Before the application for injunction could be heard however, the 1st and 2nd Defendants on September 19, 2018 filed the instant application to set aside the writ of summons and the statement of claim for want of jurisdiction.

 

 

 

[4] It is against the backdrop of the reliefs stated supra that the 1st and 2nd Defendants/Applicants have filed the instant application invoking the inherent jurisdiction of this court to set aside the writ on the ground that the present action is a cause or matter affecting chieftaincy. Per the Motion on Notice filed, the 1st and 2nd Defendants/ Applicants herein pray for:

 

“…an Order to striking out the Writ of Summons filed on the 8th March, 2017 and amended on 25th of July, 2017 and dismissing the entire action upon the grounds contained in the accompanying affidavit AND for such further or other order(s) as his Honourable Court may deem fit”

 

 

 

[5] The record will reflect that the 3rd and 4th Defendants to the suit have not filed any process either in support of, or in opposition to the application. The Plaintiff however is vehemently opposed to the application and therefore, this battle is between the 1st and 2nd Defendants/Applicants and the Plaintiff only.

 

 

 

iii. The Case of the Applicants:

 

[6] The thrust of the Applicants’ case as set out in the affidavit accompanying the motion, is that given the subject matter of the suit and the reliefs being sought by the Plaintiff in this case this court lacks the jurisdiction to entertain the suit. Justifying the basis for that contention, the deponent of the affidavit, Emmanuel Tetteh Addoquaye who is the Registrar of the La Traditional Council has deposed that by the reliefs being sought by the Plaintiff he is claiming that he is a Chief of the Nmati Abonasze Quarter and an accredited member of the La Traditional Council. According to Mr. Addoquaye in the affidavit in support of the Motion on Notice for Interlocutory Injunction the Plaintiff “went to great lengths to attempt that he is indeed a Chief and attached several exhibits including minutes of a meeting of the La Traditional Council held in 1993 to support his claim to be a Chief”.

 

 

 

[7] The Deponent also has averred that in 2014 “all Heads of various families which form Nmati Quarter brought a Petition at the La Traditional Council in Suit No. LT/JC/1/14 against the Applicant claiming that the Plaintiff herein, though installed as acting Akutsotse has never been appointed substantive Akutsotse nor has the Plaintiff been installed as a Chief”. The Deponent further states that by the petition, the necessary rites “are averred to have been performed for the removal of the Plaintiff herein as Acting Akutsotse”. It is also deposed that a Motion for Interlocutory Injunction was filed to restrain the Plaintiff from “holding himself up as Akutsotse and Mantse of the Nmati Abonase Quarter of La”. See Exhibit 2 attached to the affidavit.

 

 

 

[8] The Applicant has further averred in the supporting affidavit that the Plaintiff’s reliefs cannot be granted by the Court without considering the issue as to whether or not the Plaintiff/Respondent is a Chief. It is desirable at this stage to refer to some of the depositions of the Applicant. The following paragraphs are relevant:

 

“Paragraph 7: The reliefs sought by the Plaintiff in this Suit Cannot be considered until there is a determination of whether or not the Plaintiff is currently a Chief as he has sought to demonstrate.

 

Paragraph 9: The Plaintiff claims further that by virtue of his position as chief, he has the constitutional right, common relation between himself and other chiefs of the Traditional Council, to participate in certain stated ceremonies.

 

Paragraph 10: The action before the Court is a cause or matter affecting Chieftaincy in respect of which the High Courts, with respect, do not have jurisdiction, I am advised and verily believe the same to be true.

 

 

 

[9] Speaking to the motion through the filed written submission, learned Counsel for the Applicant Mr. Kwesi Austin first referred to the endorsement on the Amended Writ of Summons and the pleadings in the Amended Statement of Claim. He then referred to Exhibit 1 of the Applicant’s affidavit in support being the ‘Petition” filed at the Traditional Council by “Heads of the Clan houses which constitute the Nmaiti Abonase Quarter of La” and submitted that the Petitioners are seeking among other reliefs:

 

(a) a declaration that the substantive Akutsotse for Nmati Abonase Quarter is Nii Captain (Rtd) J.T. Odamten;

 

(b) a declaration that no rites under custom and usage was performed to enstool the Respondent as the Mantse of the Nmati Abonase Quarter of La;

 

(c) Declaration that the completion of the Chieftaincy Declaration Forms by the Respondent and his subsequent registration as Mantse in the Register of the National House of Chiefs was procured by fraud etc. Counsel further made reference to Exhibit 2 attached to the accompanying affidavit in support which is a Motion for Interlocutory Injunction filed by the Petitioners.

 

 

 

[10] Learned Counsel then submitted that the petition before the traditional Council is to the effect that “the Plaintiff was appointed Acting Akutsotse (Head of Family) but was never installed as a Chief and also to the effect that the “Plaintiff has been removed as Acting Akutsotse”. Counsel submitted that the Plaintiff/Respondent’s only response to the petition and the instant application is that it is frivolous, vexatious and incompetent in law and that the reliefs sought “could not be by any stretch of imagination in law be escribed as a cause or matter affecting Chieftaincy”.

 

 

 

[11] Counsel next referred to Section 57 of the Court’s Act 1993 (Act 459) as amended by Courts (Amended) Act, 2004, (Act 674) and submitted that this Court has no jurisdiction to entertain either as Court of first instance and/or Appeal any cause or matter affecting Chieftaincy. Counsel also referred to Section 117 of the Court’s Act and Section 76 of the Chieftaincy Act, 2008 (Act 759) which define and explain what constitute a cause or matter affecting Chieftaincy.

 

 

 

[12] Submitting further, Learned Counsel submitted that it is “beyond argument that the jurisdiction to hear causes, matters or questions affecting Chieftaincy is the preserve of the Traditional Councils and Houses of Chiefs. To Counsel the issue in this matter is whether the Plaintiff’s action is a cause or matter affecting Chieftaincy or involves questions relating to Chieftaincy. In Counsel’s opinion the answer is yes. Referencing the writings of the Learned Author, Justice Brobbey in his Book, the Law of Chieftaincy in Ghana (2008) Advanced Legal Publication, Accra at page 232 Counsel stated that the author says;

 

“if evidence on how the party was nominated, elected, selected, enstooled or enskinned, deposed or abdicated is to be adduced before the issues raised in the case can be determined, then the case is almost certainly a cause or matter affecting chieftaincy”.

 

Counsel further quoted the Supreme Court case of IN RE NUNGUA CHIETAINCY AFFAIRS;

 

ODOI AYIKU v. ATTORNEY GENERAL (BORKETEY LAWEH XIV APPLICANT [2010] SCGLR 413 and the opinion of Ansah JSC to support the submission that action is a cause or matter affecting Chieftaincy.

 

 

 

[13] Counsel after reviewing the Writ of Summons and the Statement of Claim submitted that the Plaintiff’s plaint is that he is not being given recognition as a chief even though he is a chief and has also been denied the right to participate in the affairs of the La Traditional Council for a while as required of him by both custom and law. According to learned Counsel “it is clear from the Writ of Summons and Statement of Claim that the Plaintiff is seeking to be recognized as a chief and thereby entitled by law to participate in the affairs of the La Traditional Council”. To Learned Counsel the Plaintiff is simply stating that: “I am a Chief” and “By virtue of my being a Chief, and of my common relations with other Chiefs of La, I am entitled to be inducted together with them and to participate in the affairs of the La Traditional Council”.

 

 

 

[14] To Learned Counsel the above assertion of the Plaintiff cannot be true because “it must be pointed out that the suit before the Traditional Council is currently pending. The same has not been determined because it is after the induction that the Judicial Committee will be empaneled to enable the Petition and the Objection filed by the Plaintiff to be considered and determined. As things stand, there exists a Petition and an Injunction against the Plaintiff. Although an objection has been filed, in the absence of the determination of same, the status remains that a Petition and an injunction has been filed as an objection”.

 

 

 

[15] Learned Counsel next stressed that the validity of the Petition and the merit or otherwise of the injunction cannot be determined by this Honourable Court because it is for the Judicial Committee of the Traditional Council to sit and determine the issues contained in the petition. For the High Court to do so according to Counsel will amount to usurping the jurisdiction of the judicial committee of the Traditional Council.

 

 

 

[16] Mr. Austin further submitted that “it is anticipated that the Plaintiff intends to rely on Section 40 of the Chieftaincy Act, 2008 (Act 759). This section may have no application in the instant case. The said section deals with deposition while the allegations levelled against the Plaintiff at the Traditional Council deal with the fact that no nomination, election or installation was ever conducted or performed at all and that the Plaintiff has never been Chief. Deposition is described in Section 76 of the Chieftaincy Act, 200 (Act 756) as follows; “deposition” means “destoolment or deskinment”. To admit destoolment is to admit that a person was at some time a validity installed chief. This is not what the Petitioners are contending”.

 

 

 

[17] Continuing, Counsel further submitted that “to be able to determine whether or not the Plaintiff is entitled to participate in a ceremony, the Honourable Court, first of all, has to determine whether or not the Plaintiff is a Chief. The Honourable Court will have to look at and consider the “evidence” averred to in the Statement of Claim, and some of which has been exhibited to the Affidavit in Opposition. It is only following the determination that the Plaintiff is a Chief, that the Court may move on to declare whether or not the Plaintiff indeed has the rights which he seeks in the capacity as chief”.

 

 

 

[18] According to learned Counsel based on the pleadings and the affidavit evidence adduced by the Plaintiff for the grant of the injunction, it is clear that this Court cannot determine whether or not the Plaintiff has the right to participate in the affairs of the La Traditional Council without first determining whether the Plaintiff is a Chief. To that extent Counsel has submitted that “this is what renders the instant action a cause or matter “relating to Chieftaincy”. Clearly questions relating to chieftaincy shall and do arise from the pleadings and reliefs sought by the Plaintiff before this Honourable Court. The lengths to which the Plaintiff sought to portray that he is a Chief by his averments and depositions speaks volumes”.

 

 

 

[19] Finally, Learned Counsel submitted that this Court cannot declare that the Plaintiff has a right to undertake certain action or to participate in a ceremony he is seeking to participate in without enquiring whether or not the Plaintiff is a Chief. To that extent Counsel submitted the instant dispute relates to a cause, matter question relating to the constitutional relations under customary law between chiefs and so this Court has no jurisdiction to deal with same. According to Mr. Austin questions relating to chieftaincy have arisen on a close examination of the pleadings and averments before the Court so far and therefore this Court cannot proceed with same. Learned Counsel further cited the Supreme Court case of IN RE: OGUAA PARAMOUNT STOOL; GARBRAH & OTHERS v. CENTRAL REGIONAL HOUSE OF CHIEFS & HAIZEL [2005-2006] SCGLR 193 to submit that the instant suit is a cause or matter affecting chieftaincy.

 

 

 

iv. The Respondent’s Case:

 

[20] In a 13-paragraph Affidavit in Opposition, it has been averred on behalf of the Plaintiff/Respondent that “the alleged petitioners claiming to be Acting Heads of some families are individuals in the Quarter who do not have the capacities claimed nor are they kingmakers of the Nmati Abonase Quarter with any authority to remove the Chief of the Quarter. They teamed up with known fraudsters in the Quarter who forge documents, signatures and even the stamp of lawyers for illegal gains hence the action against them”.

 

 

 

[21] It is further deposed that “the so called petition by the said self-seekers is also a nullity in law as it is in complete violation of the applicable rules and as such there is no petition pending in law at the Judicial Committee and this has been raised at the Judicial Committee”. It is further deposed that “any case the mere filling of such ill motivated application and its pending thereof does not remove the Plaintiff from his position as the substantive duly gazetted Akutsotse/Chief of the Quarter”.

 

 

 

[22] It was further deposed that official records exhibited by the Plaintiff including the gazette notifications of 28^th February 1992 and the Minutes of the La Traditional Council meeting which he participated “which the Defendants are unable to challenge all attest to the undisputable status of the Plaintiff as a member of the La Traditional Council and the said Exhibits constitute estoppel in law against the Defendants. Furthermore, it has been averred to in paragraph 10 of the affidavit that the present action is “not a dispute about the nomination, installation, or destoolment of the Plaintiff as a chief but rather about the wrongful exclusion of the Plaintiff from participating in the proceeding of the statutory body”. The Plaintiff has therefore averred that this Court has jurisdiction to entertain the suit and therefore he has prayed the Court to dismiss the application, it is averred.

 

 

 

[23] Assailing the position of the Plaintiff/Respondent that the present suit is not a cause or matter affecting chieftaincy, learned Counsel in submitting in opposition referred to Sections 12, 14 and 15 of the Chieftaincy Act, 2008, Act 459 and paragraphs 6, 7, 8 and 9 of the Amended Statement of Claim and stressed that the Plaintiff has been an accredited member of the then La Divisional Council ever since becoming the Chief of the Quarter in 1987 and was duly gazette in the Local Government Bulletin No. 3 of February 28, 1992. According to learned Council the Plaintiff’s averments about how he became a Chief and his gazetting have not been denied by the 1st and 2nd Defendants and therefore they should be deemed to have admitted same and so no further proof is required as a matter of law for the Court to accept the averment. Counsel referred to Sections 25 and 26 of the Evidence Act, 1975, NRCD 323.

 

 

 

[24] Learned Counsel further referred to Section 76 of the Chieftaincy Act, 2008 (Act 759) and submitted that the provision is “in pari materia to the repealed Section 66 of the former Chieftaincy Act, Act 370 by which the Supreme Court decided the case of IN RE: OGUAA PARAMOUNT STOOL, GARBRAH & OTHERS v CENTRAL REGIONAL HOUSE OF CHIEFS SUPRA. Relying on the decision by which the apex Court held that the transmission of the Chiefs Declaration Forms by the Central Regional House of Chiefs for the insertion of the name of the 2nd Respondent into the National Register of Chiefs did not constitute a cause or matter affecting Chieftaincy because it did not raise an actual challenge to the nomination, election or installation of a person as a chief or his destoolment. Counsel submitted that in applying the same reasoning in the same vein the thrust of the “Plaintiff’s action is that his right to continue to participate in the meetings of the Traditional Council of which, the Exhibits show he is a member’, the issue for determination before this Court has got nothing to do with his nomination, election, appointment and installation as a chief.

 

 

 

[25] According to Mr. Noye the Plaintiff’s action is about a “complaint that has to do with the administrative workings of the La Traditional Council and the alleged violation of a member’s rights”. To Counsel the complaint falls outside the jurisdiction of the judicial Committee of the traditional Council. Counsel also cited the case of R v HIGH COURT, KOFORIDUA; EX PARTE BEDIAKO II (1998-99) SCGLR 91 and the statement of Sophia Akuffo JSC (as she then was) that the mere fact that the question of whether or not a person is a chief rears its head in the course of the suit at the High Court does not necessarily constitute the matter as one affecting chieftaincy to say that this action is not a cause or matter affecting Chieftaincy.

 

 

 

[26] Finally, Counsel submitted that the Plaintiff has four reliefs before the Court two of which are declaratory reliefs of the Plaintiff’s right as a member of the La Traditional Council and the need to be accorded all the rights, privileges and the entitlements due him as a member of the Council. After further analysis of the facts learned Counsel submitted that “the Plaintiff would resist the temptation to descend into the trap of arguing the merits of such an action pending before the Judicial Committee of the La Traditional Council”. According to Plaintiff’s Counsel the legal issue to consider here is whether the “pendency of such proceedings before the Judicial Committee of the La Traditional Council, would constitute lawful grounds to prevent a member of the Traditional Council (on the face of the records from exercising his rights under the Chieftaincy Act? Counsel cited the case of REPUBLIC v AWUKU AND ANORTHER; EX PARTE ADIAKU & ANOR [1999-2000] GLR 645 – 652 to submit that the pendency of proceedings at the Judicial Committee of the La Traditional Council does not operate as an injunction to prevent the affected member from participating or performing his functions as a member of the functions as a member of the Council.

 

 

 

[27] Finally, learned Counsel urged on the Court to dismiss the application because it is not every matter that touches on the issue of chieftaincy that will amount to a cause or matter affecting chieftaincy. Also, Counsel submitted that a mere denial by the Defendants that the Plaintiff is not a member of the Traditional Council will not make the instant action a cause or matter affecting chieftaincy.

 

 

 

v. Analysis and Opinion of the Court:

 

[28] A useful point of departure for ascertaining the meaning or the context in which the instant application has been brought is to have regard to the definition of “a cause or matter affecting chieftaincy”.

 

 

 

[29] Historically, what is “a cause or matter affecting chieftaincy” was presumed to have started with the enactment of the Courts Ordinance Cap 4 (1951 Rev.), Section 88 defined what was cause or matter affecting chieftaincy.[1] Upon Ghana becoming independent, various statutes were passed. For instance Section 66 of the former Chieftaincy Act, 1971 (Act 370) defined what is “a cause or matter affecting chieftaincy”. Presently, Section 76 of Chieftaincy Act (Act 759) passed in 2008, defines “cause or matter affecting chieftaincy” as:

 

“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 as a chief,

 

(b) The deposition or abdication of 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 as 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”.

 

 

 

[30] The Court’s Act 1993 (Act 459) Section 117 defines “a cause or matter affecting Chieftaincy” as:
(1) In this Act unless the context otherwise requires—

 

“cause or matter affecting chieftaincy" means any cause, matter, question or dispute relating to any of the following—

 

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

 

 

 

(b) the destoolment or abdication of a Chief;

 

(c) the right of any person to take part in the nomination, election, selection, appointment or installation of any person as a Chief or in the deposition of any Chief;

 

(d) the recovery or delivery of stool property in connection with any such nomination, election, appointment, installation, deposition or abdication;

 

(e) the constitutional relations under customary law between Chiefs,

 

 

 

[31] It has to be reiterated further that “a cause or matter affecting chieftaincy” has been judicially pronounced in a number of cases to mean principally, disputes and or questions relating to selection, nomination, installation or deposition of a chief and matters affecting stool property. The case, AMONOO v CENTRAL REGION HOUSE OF CHIEFS (2003-2005) 1 GLR 577, for instance is the legal authority for the proposition that the test for determining whether an issue was a cause or matter affecting chieftaincy was the existence of a “question” or “dispute”, or contested matter, or cause in the sense of a justiciable controversy, with respect to an actual challenge to the nomination, election, appointment, installation of a person as a chief, or his or her destoolment.

 

 

 

[32] The Supreme Court in the case of IN RE: OGUAA PARAMOUNT STOOL; GARBRAH & OTHERS v. CENTRAL REGIONAL HOUSE OF CHIEFS & HAIZEL SUPRA, unanimously speaking through Professor Modibo Ocran JSC of blessed memory postulated 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 justiciable controversy, with respect to any of the matters listed therein, and not literally in respect of every matter bearing on chieftaincy”.

 

 

 

[33] It is instructive to note that the, AMONOO v CENTRAL REGION HOUSE OF CHIEFS (SUPRA) and IN RE: OGUAA PARAMOUNT STOOL SUPRA were decided on Section 66 of the Chieftaincy Act (Act 370) which is in pari materia with the new statute, Section 76 of Act 759. It is noted that, Section76 of Act 759 is a verbatim reproduction of the repealed Act 370, S.66 except that the word “appointment” which was not used in the new statute. Consequently, by rule of interpretation, the meaning intended by legislature in the previous statute shall apply to the current[2] and the principle in the IN RE: OGUAA PARAMOUNT STOOL SUPRA case represents the correct statement of the law.

 

 

 

[34] On general principle, it is the nature of a Plaintiff’s claim before the court that principally determines the context of the action. As a general rule a mere incidence of what purports or appears to be a cause or matter affecting chieftaincy is not sufficient to oust the jurisdiction of the High Court. For instance; if a party sues in a capacity as a chief in an action for defamation and his capacity is challenged, it would be stretch of the law to say that alone will turn the suit into a cause or matter affecting. The law was stated in R v HIGH COURT, KOFORIDUA; EX PARTE BEDIAKO II SUPRA that the mere fact that the question of whether or not a person is a chief rears its head in the course of an application for Certiorari at the High Court does not necessarily constitute the matter as one affecting chieftaincy[3]. The same conclusion was reached in In Re OSU STOOL; ARKO NORTEI II (MANKRALO OF OSU) v NORTEY OWUO III (Intervener) (2005-2006) SCGLR 628 in which it was held that whether or not a genuine cause or matter affecting chieftaincy had arisen would depend on the facts of the particular case.

 

 

 

[35] From the facts before me it is quite clear that whilst the Plaintiff contends that he is already a gazzetted chief, and the Applicants contend that by virtue of the petition before the Traditional Council which is to the effect that the Plaintiff was only nominated to act as the head of the Nmati Abonase Quarter but was never nominated, elected and or installed as the Chief of the Nmati Abonase Quarter, it is quite obvious that the main bone of contention raised in the instant application is the status of the Plaintiff. As a matter of fact and law, essentially this Court is being called upon at first instance to adjudicate upon the status of Nii Adjei Boahen II. To my mind therefore based on the declaratory reliefs sought by the Plaintiff and the instant application, the sole question that I need to determine is whether or not the substance of the Plaintiff’s action instituted is effectively a cause or matter, a question or dispute affecting chieftaincy?.

 

 

 

[36] Having looked at the pleadings filed in this instant suit by the Plaintiff and the affidavit evidence placed before me, and having analyzed the arguments of both learned Counsel, based on the law I agree with the position of the Applicants that the present suit is a cause or matter affecting chieftaincy. What it means therefore is that this court lacks jurisdiction to entertain it. Why do I say so? My reasons are articulated below.

 

 

 

[37] First, given the controversy between the Plaintiff and the 1st and 2nd Defendants/Applicants this court cannot take on the face value as strongly submitted by Counsel for the Plaintiff the fact that the Plaintiff is gazetted and therefore pronounce on the claim of the Plaintiff as endorsed on his writ without making a determination as to whether or not he was properly nominated, elected, selected or installed as the Chief of the Nmati Abonase Quarter. In the opinion of this Court, whilst a person whose name appears in the national register of chiefs is presumed, prima facie, to have been properly nominated and or elected by the appropriate and authorized traditional authorities including the kingmakers and the head of family from which the person belongs; and also presumed to have gone through the required customary confinement and outdooring in accordance with the customary law and practices of the people, that presumption is rebuttable.

 

 

 

[38] To rebut that presumption requires more cogent evidence from the proponent so as to convince a trier of fact that regardless, the person whose name appears in the register is after all, not a chief. And by law, the exclusiveness of that jurisdiction to receive that kind of evidence and to make a determination as to whether or not the person whose name appears in the register is indeed a chief, is vested in the Judicial Committees of the National House of Chiefs, the Regional Houses of Chiefs and the Traditional Councils. See: Sections 25, 28 & 29 of the Chieftaincy Act, 2008 (Act 759) and Section 57 of the Courts Act, 1993 (Act 459).

 

 

 

[39] It also important to stress that the statutorily prescribed method and procedure by which a party may adduce evidence before a court or tribunal to make a determination as to whether that party has been properly installed as a chief or has been destooled is to resort to the Chieftaincy (Proceedings & Functions) (Traditional Councils) Regulations, 1972 (LI 798) where the case is before a Traditional Council. When the case is initiated at the Regional House of Chiefs or the National House of Chiefs it is the Chieftaincy (National & Regional Houses of Chiefs) Procedure Rules, 1972 (CI 27) that applies. In the light of these statutory rules of procedure, the learned and distinguished author, Justice S.A Brobbey in his seminal book, The Law of Chieftaincy in Ghana @ 233 has stated succinctly that it is only the Traditional Councils that can apply LI 798 whilst only the Regional Houses of Chiefs and the National House of Chiefs can apply CI 27 and that the High Court cannot use CI 47 to receive evidence or apply it to a cause or matter affecting chieftaincy.

 

 

 

[40] Based on the pleadings and the affidavit evidence before me the unimpeachable evidence is that the petition before the Traditional Council was filed in 2014 and therefore the Plaintiff herein was aware of same before he filed the present suit in this Court. Instead of making out his case before the Judicial Council he chose to file the instant action at this forum on the grounds that the petitioners are faceless individuals with a frivolous claim. The fact is that indeed the Plaintiff may be right to say that the Petitioners are faceless people who are not Kingmakers and that their petition is frivolous and without basis but that does not matter because this is not the appropriate forum to adjudicate the contention. Also, based on the evidence this is not the appropriate forum for the reliefs styled as a “declaration that he is a Chief who should be inducted into the La Traditional Council”. In the opinion of the Court by the nature of the reliefs endorsed on the writ of summons the Plaintiff is seeking a declaration by way of a confirmation of his status as a chief from this Court. In my respectful opinion this Court certainly cannot make that declaration without inquiring into how that chiefly status was acquired. That inquiry would undoubtedly delve into a cause or matter affecting chieftaincy, a jurisdiction this Court does not have.

 

 

 

[41] In my respectful opinion the facts and circumstances of this suit bear resemblance to the circumstances and the case of R v HIGH COURT DENU; EX PARTE AVADALI [1993-1994] 1 GRL 561 where the Applicant as Defendant had been sued for a declaration, inter alia, that the 1st Plaintiff was the Hlotator/head of the Anyigbe family and was thus entitled to manage all the lands and properties of the said family. The Applicant entered a conditional appearance and subsequently applied to have the writ set aside on ground of want of jurisdiction of the trial High Court because according to him, although the suit was couched in a land dispute it was indeed a cause or matter affecting chieftaincy. The trial High Court, however, dismissed the motion disputing that it was a cause or matter affecting chieftaincy. The Applicant then applied to the Supreme Court to have the decision quashed by Certiorari.

 

 

 

[42] The Supreme Court found on the available affidavit evidence that the Hlotator/head of the Anyigbe family was a chief and that the purported enstoolment of the 1^st Plaintiff as the Hlotator was a nullity as being contrary to custom. There was further evidence to show that the status Hlotator was a sub-chief of the Agave Traditional Area in the Volta Region. Having so found, the court in granting the application for Certiorari and quashing the decision of the High Court, held that the High Court lacked jurisdiction to try that case because it was a cause or matter affecting chieftaincy.

 

 

 

vi. Conclusion:

 

[43] The Supreme Court affirmed the law that it is the substance of the matter before the Court that matter and not the form or how it is couched. Thus, stripped of all the plethora of words and documents exhibited in the instant application, the basic matters for determination in this case are purely chieftaincy for which the High Court lacks jurisdiction to deal with. In my respectful opinion, the Plaintiff has made a back door attempt to settle the challenge to his status as a chief, a chieftaincy dispute in the wrong forum. To quote the words of Justice S.A. Brobbey[4] with humility, “that will amount to misusing court processes as a cloak, camouflage or pretext to determine a chieftaincy dispute in the wrong forum”.

 

 

 

[44] Based on the affidavit evidence, the Plaintiff has instituted the present action just to overreach the judicial committees of the La Traditional Council because no matter how egregious he may view the petition filed against him, it cannot be denied that there is a “justiciable controversy” between the himself and certain individuals including the 1st Defendant herein who have invoked the jurisdiction of the 2nd Defendant with respect to a cause or matter affecting chieftaincy. The present suit is a cause or matter affecting chieftaincy, pure and simple.

 

 

 

[45] Consequently, based on all of the facts of the case and available affidavit evidence placed before me, it will be improper to deny the 1st and 2nd Defendants/Applicants the prayer they seek, for the reasons stated supra. The statements of law persuade me to conclude that the High Court lacks jurisdiction in the matter. Consequently, the application is GRANTED. The suit is dismissed for want of jurisdiction. Cost of GH₵ 4,000 to the 1st and 2nd Defendants/Applicants.

 

 

 

 

 

(Sgd)

 

KWEKU T. ACKAAH-BOAFO, J

 

(JUSTICE OF THE HIGH COURT

 

 

 

[2] Afendza III v Tenga V (2005-2006) SCGLR 414 where the Supreme Court echoed the principle that when identical or similar words in a statute which have received construction in a superior court, have been repeated in a subsequent statute, in pari materia, they are presumed to be used in the same sense as in the earlier statute.

 

 

 

[3] In R v High Court, Koforidua Ex Parte Bediako (supra) the Supreme Court speaking through Sophia Akufo JSC (as she then was) stated further that the mere fact that the question of whether or not a person is a chief arises as a matter secondary to the determination of such status and whether or not such person has been properly nominated, elected and installed according to the applicable custom or usage should not be the determinative factor. It was held further that in order to constitute a matter as one affecting chieftaincy it must be the determination of which, unless overturned on appeal, would settle once and for all a chieftaincy matter or dispute. (Emphasis Added)