IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2017
KUMASI TRADITIONAL COUNCIL - (Respondent)
EX PARTE ABUSUAPANIN OWUSU AFRAM (Applicant/Appellant) AND NANA MENSAH BONSU (Interested Party/Respondent)
DATE: TUESDAY, 17TH JANUARY 2017
CIVIL MOTION NO: H1/17/2016
JUDGES: E. K. AYEBI (PRESIDING) JA, GERTRUDE TORKORNOO, (MRS.) JA, ANGELINA M. DOMAKYAAREH (MRS.) JA
MR. SAMUEL AWADIIMA ANYAMASAH FOR APPLICANT/APPELLANT
MR. YAW BOAFOR FOR RESPONDENT/RESPONDENT
MR. KWAKU YEBOAH APPIAH FOR INTERESTED PARTY/ RESPONDENT
On 22nd December 2014, the applicant/appellant filed a motion on notice for an order of judicial review by way of mandamus requiring “the Respondent Traditional Council within a time to be fixed herein to appoint and arrange to be sworn in, 5 of its members as Judicial Committee Members, and promptly publicize notice of the establishment of a Judicial Committee by sections 29 and 15(5) of the Chieftaincy Act, 2008 (Act 759) and by Regulations 2 and 3 of L.I. 798/1972 (The Traditional Councils Regulations); And for such further or other order or orders as to the court may appear just or proper”. The applicant/appellant joined the Kaasehene Nana Mensah Bonsu to the application as an Interested Party.
The background to this application for Judicial Review is as follows: the applicant/appellant claimed to be the head of the Aduana family of Kaase. It is from this family that Kaasehene and Kaasehemaa are installed since time immemorial. That late Kaasehene Nana Owusu Ababio who died on 28th November 2008, hailed from this clan. But the Interested Party/Respondent who neither has any blood relationship with anybody in Kaase or any ancestral home in Kaase, with the support of the “cross-carpet” Obaapanin Abena Konadu, has been installed as the new Kaasehene.
The applicant/appellant averred that upon legal advice, he and his supporters decided to bring an action in the Judicial Committee of the respondent/respondent Council to determine the validity of the claim of the Interested Party/respondent to the stool and the validity of his enstoolment as Kaasehene. The applicant averred in paragraph 4 of the affidavit in support of the motion that they approached the Registrar of the Respondent, one Enock Okyere on 18th December 2014, to file their petition. But the Registrar told them that the Respondent Council had not yet appointed a Judicial Committee and had not even discussed establishing one.
Additional to the above information the Registrar gave the applicant on presentation of the petition, the applicant has also alleged outside the averments in his affidavit in support that the Registrar also told him that since 1999 the Respondent Council took a decision that all chieftaincy matters arising within its traditional area be referred to customary arbitration for determination and that on perusing the applicant’s petition he realized that the matters raised concerning the Kaase Stool Affairs had already been determined by customary arbitration initiated by applicant before the Respondent Council and applicant lost.
It is the case of the applicant that, in view of the information the Registrar of the Respondent Council provided them, the Respondent Council has blocked their right to seek redress in accordance with the law in the appropriate forum by its refusal to establish the said forum. This is the basis of the applicant’s motion for an order for judicial review by way of mandamus against the Respondent Council directly.
The Respondent Council opposed the application in a 34 paragraph affidavit. In paragraph 31, the Respondent Council averred emphatically through its Registrar Enock Okyere that it at all material times has a validly constituted Judicial Committee. The Registrar admitted that the applicant indeed presented a petition for filing. But in view of the decision of the Respondent Council in 1999 that causes or matters affecting chieftaincy within the Respondent’s Traditional Area must be referred to customary arbitration and also the fact that the said matter had already been determined by customary arbitration initiated by the applicant, he had to notify the President of the Respondent’s Council of the intention of the applicant to invoke the jurisdiction of the Judicial Committee for further orders and directions before filing the petition. But the applicant left and returned with the instant application for judicial review. The Respondent Council also averred to attempts by the applicant to get the customary arbitration award by the Respondent Council quashed, to obtain a copy of the decision of the panel of arbitrators which decision has been affirmed by the Asantehene as the President of the Respondent Council and the petition invoking the original jurisdiction of the Ashanti Regional House of Chiefs, all without success. The Respondent Council asserted the application in the premises is an abuse of court process.
On his part, the Interested Party/respondent held the view that the application is incompetent and misconceived. This is because the issue of who is the true chief of Kaase was laid to rest in the customary arbitration proceedings held by a Committee of the Respondent initiated by the applicant herein by swearing the Great Oath of Asantehene (Ntamkesie) and award was affirmed by the Respondent Council.
In accordance with the Rules of Court, Order 55 of C.I. 47, the parties apart from their affidavits in support or against the application, filed their respective statements of case. Thereafter, the applicant filed a “Request for Leave to Use Further Affidavit and/or Statement of Case”. But attached to the motion, the applicant filed an affidavit in support. The propriety of the application was hotly contested. In the end, the trial court dismissed the application as not sanctioned by the Rules of Court since the intendment of the application is for leave to rely on or use the 1999 decision of the Respondent Council on resort to customary arbitration in causes or matters affecting chieftaincy, a decision or document which applicant did not possess. Taking a cue from the ruling of the court, applicant filed for discovery. But for reasons not stated in the record, the motion was not heard before the court read its ruling on the substantive motion on 18th May, 2015.
The judge in dismissing the application stated that it is not necessary to go into any detailed discussion of the law on mandamus or go into a detailed discussion on the merits of the application as between the parties. According to him the application had signed its own refusal/dismissal warrant. At page 150 of the record of appeal which is page 3 of the ruling, the trial judge observed that:
“The paragraphs 4 and 5 of the affidavit in support quoted above, read together shows that the applicant has not initiated any proceedings in the Kumasi Traditional Council that would require the said Council to set up a Judicial Committee to hear his case.
What the applicant is seeking from this court is therefore to compel the Council to set up a Judicial Committee to hear his case in anticipation of him initiating proceedings at the Traditional Council. This is pre-emptive. The practice of the Traditional Councils as I understand it is to constitute a judicial committee among its members to hear a particular case before it. It is not and should not be a standing committee to hear all chieftaincy cases.
The request by the applicant that he intends to institute a suit at the Kumasi Traditional Council to determine who is the rightful chief of Kaase and therefore the Court should compel the Traditional Council to set up a Judicial Committee in anticipation of his dream is therefore not sanctioned by any rule of law or practice”.
Dissatisfied with the whole ruling, the applicant appealed against it on six grounds. The grounds as amended are:
(1) The learned judge erred by failing to appreciate that on his own analysis of the facts of the mandamus application there was disclosed there a demand and a refusal sufficient to ground the mandamus application.
(2) The learned judge further erred by making the finding in effect that a Judicial Committee for the trial of a cause or matter affecting chieftaincy is constituted adhoc whenever a litigant files his cause or matter (instead of the constitution only once for the trial of all future cause or matters that might be filed).
(3) The learned judge again erred by failing to appreciate that it was only after the applicant/appellant’s agent for filing had been thwarted by the Registrar’s information concerning the 1999 decision of the Respondent Kumasi Traditional Council and its consequences that the applicant/appellant brought his action in compliance with and founded on the procedure prescribed by the 1999 decision.
(4) The learned judge crucially misdirected himself by failing to appreciate that the 1999 decision was ultra vires the Respondent Kumasi Traditional Council and was consequently illegal, null and void.
(5) FURTHER OF IN THE ALTERNATIVE the learned judge erred by failing to appreciate that the Respondent Kumasi Traditional Council, in making the 1999 decision was exercising sub-delegated legislative power conferred on it by Regulation 14 of L.I. 798, the Chieftaincy (Traditional Councils) Regulations of 1972 to make trial or judicial procedural regulations for its Judicial Committee, without however, complying with the provision of the enabling Regulation 14 of L.I. 798 aforesaid, thereby rendering the 1999 decision illegal, null and void.
(6) The learned judge misdirected himself by dismissing at all, much less with punitive cost, the motion for judicial review by way of mandamus.
The relief the appellant seeks from this court is “The reversal of the said Ruling and its concomitant order awarding punitive costs, and in place hereof striking down the 1999 decision of the Respondent Kumasi Traditional Council as illegal, null and void for non-compliance with Regulation 14 of L.I. 798 of 1972, with costs for the applicant/appellant jointly and severally against the Respondent Kumasi Traditional Council and the Interested Party/Respondent both here and in the Court below.
An application for judicial review generally is governed and regulated by Order 55 and rules provided thereunder. The notice of application is required to be supported by an affidavit served on all the parties named as affected directly by it. In rule 5(4) of the Order, an applicant is prohibited from relying on any ground not set out in the affidavit in support of the application at the hearing. But then rule 5(5) permits an applicant to apply for leave of the court to amend the grounds relied on. When the leave is granted, the applicant can file a further affidavit setting out the grounds relied on as amended not later than seven days after the grant of the leave.
At the trial court, after the Respondent and Interested Party have filed their affidavits in opposition and statements of case, appellant filed only one request for leave to use further affidavit. This application as shown on the record, was dismissed as not sanctioned by the Rules of court. The Rule of Court was not stated but it is no other than rule 5(5). Despite that somersault, applicant again filed two applications for discoveries and inspection of the 1999 decision of the Respondent Council respectively, all without leave.
A similar picture emerged in the appellant’s written submission in support of the grounds of appeal. In arguing grounds (4) and (5) together for example, by appellant’s counsel, all the submissions revolved around the illegality of the Respondent’s 1999 decision that causes or matters affecting chieftaincy in its Traditional Area should be determined by customary arbitration. Yet appellant had never averred anywhere that that decision is ultra vires the Respondent Council and it is therefore illegal, null and void. Again, in his submission on ground six of the appeal which ground appeared to be against the cost awarded by the trial judge, appellant was at pains to show that the dismissal of the applicant/appellant’s petition for declaration that his Aduana royal family is the family entitled to nominate a chief for the Kaase Stool is contrary to custom and practice from time immemorial. Again the refusal of the High Court to quash the said decision by the customary arbitration panel of the Respondent and to compel the Respondent to furnish him with a copy of the said decision are all wrong in law. On the other hand the submission referred to earlier decisions by the judicial committee of the Ashanti Regional House of chiefs upholding the applicant/appellant’s family claim to the Kaase Stool, stool properties including the palace. Nowhere did the appellant averred to these decision as valid or invalid in any affidavit.
Most of these matters were picked from exhibits the respondent attached to their affidavits in opposition to the motion. It would appear that the appellant has tendency to cling on to any matter or information to bolster up his case. It does not matter to him whether the information is relevant or not to the motion. But that cannot be countenanced because rules of court regulate these matters. Thus it was admonished in Boyefio vrs NTHC Properties Ltd. [1996/97] SCGLR 531 at holding 5 that:
“The law was clear that where an enactment had prescribed a special procedure by which something was to be done, it was that procedure alone that was to be followed”.
This should be the case especially where an appellant exercises his right of appeal under the law. In this case the prayer of the appellant is for the court to order the Respondent Council to establish a Judicial Committee to hear his petition against the Interested Party. The ruling of the trial judge is more or less straight forward. I have already quoted the salient part of it. In sum the ratio of the ruling is that the appellant having not filed a petition or in the absence of a pending petition at the Respondent Council, the prayer the appellant seeks is pre-emptive; in other words, it is premature.
17. The ruling did not discuss or refer to any of those issues the appellant made the central piece of his written submission. In the The Republic vrs High court (Human Rights Division) Accra, Ex parte Akita  SCGLR 374, the court emphasized the close link between the grounds of appeal, part of the decision appealed against and the relief sought. In drafting the grounds of appeal in the notice of appeal, the three requirements must correlate. The acceptable practice in formulating grounds of appeal is in the main, to appeal against issues pronounced on by the trial judge and not every issue that come up at the trial.
18. It is this dichotomy between the ruling and the grounds of appeal that informed the counsel for the Respondent to invite us to discountenance grounds (4), (5) and (6) of the appeal for their vagueness contrary to the rules of court. That apart, the issues discussed in the written submissions do not appear to support or relate to the specific grounds of appeal. The written submission hovers around all manner of issues. For example the complaint on ground six is that the cost of GH¢2,000.00 awarded against the appellant is punitive. Rather than show why the cost is punitive, the whole submission turned out to be critique of the 1999 decision and recent decisions on the Kaase Stool affairs against the appellant contrary to the earlier ones in favour of the appellant on the same or related Kaase chieftaincy issues.
19. The Supreme Court was faced with the similar problem in Essiffie vrs Anafo VI [1993/94] 2 GLR 1. The court in that appeal found the statement of case to be inconsistent and conflicting with the grounds of appeal. This is because the statement of case of the appellant did not dilate on the grounds of appeal. The court indulged the appellant and permitted him to file a supplementary statement of case but he failed to take advantage of the opportunity. The court resolved the problem by looking at the totality and substance of the grounds of appeal together. That approach accords with the law that an appeal is by way of re-hearing. I will do same in determining the merits of the appeal.
20. To begin with, we disagree with counsel for respondent that the appellant’s written submission filed on 15th December, 2015 was filed out of time. We also noticed that the appellant failed to argue ground (3) of the appeal. It is deemed abandoned and struck out. We will also endeavour to identify the core issue in each ground of appeal. I prefer to discuss ground (2) of the appeal first, followed by grounds (4) and (5) as argued together, then ground (1) and lastly the 6th ground.
21. In ground (2) the straight forward issue is when a Traditional council must establish a Judicial Committee to hear a petition filed at the registry of the Council. Should the Judicial Committee be established before the petition is filed or after the petition is filed? The import of the ruling of the trial judge is that the petition must be filed to invoke the jurisdiction of the Traditional Council to put in place a Judicial Committee to hear it. The appellant thinks otherwise and argued to the contrary. I agree with him that in accordance with the law, the Judicial Committee as the adjudicatory body with the power to hear a cause or matter affecting chieftaincy must be in place in readiness to hear any petition that may be filed.
22. In the Chieftaincy Act, 2008 (Act 759), it is provided that there shall be a Traditional Council in each Traditional Area. The membership of the council is made up of chiefs whose names are stated or shown in the National Register of Chiefs. The paramount chief of the traditional area and in the case of Kumasi Traditional Area, the Asantehene, is the president of the Council. And where there is a change in membership of the Council, the Council is obliged to notify the Regional House of Chiefs which shall in turn notify the National House of Chiefs which shall cause the Register to be altered accordingly – see sections 12 to 14 of Act 759.
23. As regards the jurisdiction of the Traditional Councils in a cause or matter affecting chieftaincy, it is provided in section 29 of the Act that:
(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.
Section 15(5) of the Act also states that
“A Judicial Committee of a Traditional Council may be assisted by a lawyer appointed by the Committee”.
24. In the Chieftaincy (Proceedings and Functions) (Traditional Councils) Regulations, 1972 (L.I. 798) in Regulation 1 to 3, similar provisions were made on the jurisdiction of the Traditional Council, its Judicial Committee and their composition. It is to be noted that although L.I. 798 was made to give effect to the provisions of Act 370 which has been repealed with the enactment of Act 759, the regulations in L.I. 798 are still applied to give effect to the provisions of Act 759 because the provisions of the new Act 759 are in substance the same as contained in the repealed Act 370.
25. Like the Act itself, the Regulations only stated that the jurisdiction of the Traditional Council to hear and determine a cause or matter affecting chieftaincy shall be exercised by a Judicial Committee. It is not stated expressly whether the said Committee should be a permanent or an ad hoc Committee. But from the reason for which the Act was enacted and the matters provided for, the inference is that, once jurisdiction has been given to the Traditional Council to hear and determine cause or matters affecting chieftaincy, the Judicial Committee assigned that adjudicatory power cannot be anything but a permanent body or organ of the Traditional Council.
26. The trial judge in coming to the conclusion that the Judicial Committee is an ad hoc one in that there must be petition filed before the Committee is put in place to hear it, gave the example of empanelling judges to hear the 2012 Presidential Election Petition. I think the analogy is misleading as the trial judge has confused the empanelling of judges of a court with the establishment of a court with judges. Before the petition was filed, there was already in existence a duly constituted Supreme Court with a number of judges as members of the court. The judges were only empaneled to hear the petition when the petition was duly filed in the court’s registry.
27. In view of the jurisdiction given the Traditional Council to hear and determine causes or matters affecting chieftaincy in its traditional area through its Judicial Committee, the Judicial Committee is by practice, put in place by electing from amongst members of the Council some chiefs and swearing them specifically as members of the Judicial Committee. The members of the Committee as the practice shows, are also gazetted in the Local government Bulletin as a permanent body. There is therefore merit in this ground of appeal and it is upheld.
28. Counsel for the appellant argued grounds (4) and (5) of the appeal together. The subject matter of the two grounds of the appeal is the validity of the 1999 decision of the Respondent to determine causes or matters affecting chieftaincy arising in its area of jurisdiction by customary arbitration. According to the grounds of appeal, the trial judge failed to appreciate that the said decision is ultra vires the Respondent and consequently illegal, null and void as it failed to comply with the enabling Regulation 14 of L.I. 798/1972 on the exercise of sub-delegated power.
29. The appellant’s application sought the relief of an order of mandamus to compel the Respondent to establish a Judicial Committee in accordance with law and practice. How the validity or otherwise of the 1999 decision of the Respondent affects the relief sought by the appellant is not demonstrated by the appellant’s affidavit evidence on record. But it is argued for the appellant that the importance of the 1999 decision lies in the fact that it has permanently changed the adjudication procedure before 1999 on chieftaincy matters in Respondent’s Traditional Area.
30. The basis of that conclusion cannot be found in the affidavit evidence on record in view of the categorical averment of the Respondent that it at all material times has a Judicial Committee in place. In my view all the submissions of the appellant that the 1999 decision is ultra vires the Respondent Council and for that matter illegal, null and void is speculative. In the first place, the appellant had not seen that 1999 decision and apprised himself of its contents. From the record, in course of hearing the substantive application, appellant’s attempts to get a court order compelling the Respondent to produce the 1999 decision failed because the steps counsel took were faulty.
31. Lately, before the court delivered its ruling in the substantive application for judicial review, the appellant and counsel were in court but failed to draw the judge’s attention to the fact that his application for inspection of the minutes of the plenary session which took the 1999 decision or production of a copy of the said decision was pending. So the Respondent had not been ordered to make available the said decision to the court and appellant for inspection and it failed to comply.
32. That apart, the Chieftaincy Act, 2008 (Act 759) does not bar a chief or for that matter a committee of chiefs from acting as an arbitrator or arbitrators in a customary arbitration if the parties to a cause or matter affecting chieftaincy give their consent. For in section 30 of Act 759, it is provided:
“The power of a chief to act as an arbitrator in customary arbitration in any dispute where the parties consent to the arbitration is guaranteed”.
33. The Respondent thus acted within the law when it so decided in 1999 to determine causes or matters affecting chieftaincy by customary arbitration. The only precondition which Respondent must comply with is Regulation 14 of L.I. 798. That Regulation provides that:
(1) Subject to the provisions of the Chieftaincy Act, 1971 (Act 370) (now Act 759) and of those regulations, a Traditional Council shall in accordance with the customary law of the area make its own Rules and Procedure to govern proceedings before it.
(2) Such Rules and Procedure made under sub-regulation (1) of this Regulation shall within one month of the making thereof be sent to the following persons for record purposes –
(a) the Commissioner (now Minister) responsible for Chieftaincy Matters (now Affairs).
(b) the Registrar of the House of Chiefs of the area.
34. I found implied in the submission of the appellant on the validity or otherwise of the 1999 decision of the Respondent that, the Council failed to establish a Judicial Committee because of that decision and yet that decision is illegal, null and void, a ground not pleaded or averred to in any affidavit. But in view of the averment of the Respondent that it has a Judicial Committee in place, it cannot be said that the Respondent has relied on the said 1999 decision as a defence to the appellant’s motion for an order of judicial review in the nature of an order of mandamus.
35. From the submission of counsel for appellant, appellant desperately needed the said 1999 decision to make his case that he was indeed entitled to an order of mandamus against the Respondent. Appellant produced no evidence that he inquired of the 1999 decision from the records office of the persons named in Regulation 14(2) of L.I. 798 without success. In that case, it is my view that as in all civil suits, it is the appellant as the applicant in the motion who must produce the said decision in support of or proof of his case in order to succeed and not the Respondent.
36. Having failed so to prove, the twin grounds of appeal against the ruling are not tenable. Further, it is provided in rule 11(1) of Order 21 of C.I. 47 that unless the court is of the opinion that the order for production of a document for inspection or to the court is necessary either to dispose fairly of the cause or matter or to save costs, the order shall not be made. The trial judge from the record made no reference to the 1999 decision in his ruling because the appellant failed to convince him of its relevance to the determination of the application. In my view the premises upon which the appellant has challenged the validity of the 1999 decision has not been made out. In consequence of that grounds (4) and (5) of the appeal are dismissed.
37. I now come to ground (1) of the appeal. According to the ground of appeal, the trial judge failed to appreciate that from the analysis of the facts of the case, there was a demand and a refusal, to warrant the grant of the mandamus application. What then are the facts of the case? In paragraph 4 in support of appellant’s application he averred that when he and his supporters presented his petition for filing at the registry of the Respondent, the Registrar informed them that the Respondent has not yet established a Judicial committee and has not even discussed establishing one.
38. This response attributed to the Registrar of the Respondent meant that, there is no Judicial Committee to hear appellant’s petition. This is the basis of the application for judicial review in the nature of an order of mandamus. Although the affidavit of the Registrar of the Respondent admitted that a petition was presented by the appellant for filing, that petition has not been exhibited to the application for an order of judicial review – see rule 14 of Order 20 of C.I. 47.
39. On the part of the respondent, the registrar averred to the affidavit on behalf of the Council. He denied the statement attributed to him in paragraph 4 of the appellant’s affidavit. He asserted the respondent had a Judicial Committee in place. He
explained in paragraph 14 of the affidavit that in view of the decision of the respondent that all causes or matters affecting chieftaincy within its Traditional Area must be determined by customary arbitration and also the fact that Kaase stool matters had already been determined by customary arbitration initiated by the appellant, he informed the appellant that he had to seek direction from the President of the respondent of the appellant’s decision to invoke the jurisdiction of the Judicial Committee before he filed the process. But appellant left only to return with the instant application.
40. This explanation of the respondent’s registrar showed clearly that he refused to accept the appellant’s petition for filing. The question is whose version of the facts, the appellant or the registrar of the respondent, proved a demand and a refusal to establish a Judicial Committee to warrant the grant of an order of mandamus? In the submission of the appellant, counsel took issue with the conduct of the registrar when he refused to accept the petition for filing unless he is so directed by the president of the respondent. I agree with the submission that the conduct of the registrar is an outright usurpation of the function of the Judicial Committee.
41. The two reasons the registrar gave for refusing to accept the petition for filing are matters of law. The registrar as an administrative head of the registry of the respondent cannot put at bay a petitioner who intends to invoke the jurisdiction of the Judicial Committee and seek clearance before he files the petition.
42. So whether a petition will succeed or not or the subject-matter had already been determined by any forum whether competent or not or is sought to be filed contrary to the practice and procedures of the respondent must be determined by the Judicial committee, the only body of the respondent clothed with adjudicatory powers and not the registrar of the respondent.
43. Similarly, the president of the respondent qua president, with all due respect, is only an administrative head. He cannot in that capacity determine the propriety of a chieftaincy petition sought to be filed in the Judicial Committee of the respondent. The conduct of the registrar and the intended consultation had clearly sidelined the Judicial Committee and should be denounced and it is hereby denounced.
44. But then is the refusal/failure of the registrar to accept the petition for filing be equated to a refusal/failure by the respondent to establish a Judicial Committee to determine causes or matters affecting chieftaincy in respondent’s Traditional Area? It has to be noted that the registrar is only an officer or agent of the respondent with purely administrative functions. He per se cannot establish a Judicial Committee. It is the respondent with its president in the chair who is clothed with authority to establish a Judicial Committee for the adjudication of chieftaincy matters.
45. It is common knowledge that an order of mandamus as prayed for in this application is used to order action to be taken by a public body authorized by statute to take action. In other words, mandamus is issued against wrongful inaction. Where a person is alleged to have neglected to perform a public or statutory duty, in practice, the affidavit in support of the application must show that a demand was made on the person to perform the duty and there was a refusal or the circumstances dispense with a demand. Thus in Republic (No.2) vrs National House of Chiefs, Ex parte Akrofakrukoko II (Enimil IV, Interested Party (No.2)  SCGLR 134 at holding 4, the court stated:
“As a general rule the order of mandamus would not be granted unless the party complained of had known what it was he was required to do, so that he had the means of considering whether or not he should comply; and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desired to enforce and that demand was met by a refusal. The requirement, however, that before the court would issue a mandamus there must be a demand to perform the act sought to be enforced and a refusal to perform it could not be applicable in all possible cases, and would not apply where the person had by inadvertence omitted to do some act he was under a duty to do, and where the time which he could do it had passed. Ordinarily, time within which to apply for mandamus should begin to ran only after a demand to perform the duty had been met with a refusal. Where the demand made for the performance of the duty had been found to be premature, mandamus would not lie. And the mere fact of non-compliance with a duty would be sufficient ground for the award of mandamus where the applicant had been substantially prejudiced by the respondent’s procrastination”.
46. Appellant had urged on us to infer from the analysis of the facts that he was entitled to the grant of the order by the trial court. I note again that the prayer of the appellant is for an order compelling the respondent to establish a Judicial Committee to determine his petition. But in my view the facts of the case do not establish any such demand which was refused. What the facts rather established is the refusal of the registrar of the respondent to accept the appellant’s chieftaincy petition on Kaase stool affairs for filing. In view of our acceptance of the appellant’s contention in ground (2) of the appeal that a Judicial Committee as a permanent adjudicating body should be in place to hear chieftaincy cause before the petition is filed, the refusal to accept a petition for filing cannot be equated to a refusal to establish a Judicial Committee even in the alternative. The appellant we hold does not merit the grant of the order. The trial judge rightly dismissed the application although for reasons contrary to our acceptance of ground (2) of the appeal.
47. As I have indicated in my general observations on the grounds of appeal and submissions made in support thereof, it is not demonstrated in what way the trial judge improperly exercised his discretion in the award of the cost of GH¢2,000.00 each to the respondent and the Interested Party against the appellant who had lost in other fora on the same claim against the respondents in cases referred to in the submission. We find in the circumstances the quantum of cost awarded reasonable and dismiss ground (6) of the appeal which alleged that the cost is punitive.
48. For the particular reasons as stated we uphold the ruling of the trial judge and dismiss the appeal particularly in view of the orders and directives sought in the concluding part of the written submission which are all contrary to the relief sought in the notice of appeal as amended.
(JUSTICE OF APPEAL)
G. TORKORNOO (MRS.), I agree G. TORKORNOO
(JUSTICE OF APPEAL)
A. M. DOMAKYAAREH (MRS.), I also agree A. M. DOMAKYAAREH
(JUSTICE OF APPEAL)