THE REPUBLIC vs. THE JUDICIAL COMMITTEE AJUMAKO TRADITIONAL COUNCIL EX PARTE: NANA YAMOAH IV , EBUSUAPANYIN KOBINA EBO & 5 OTHERS
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    CAPE COAST - A.D 2017
THE REPUBLIC
THE JUDICIAL COMMITTEE AJUMAKO TRADITIONAL COUNCIL - (Respondents/Respondents) EX PARTE: NANA YAMOAH IV (Applicant/Appellant), EBUSUAPANYIN KOBINA EBO AND 5 OTHERS (Interested Parties/Respondents)

DATE:  30/01/2017
SUIT NO:  H1/43/2016
JUDGES:  HONYENUGA J.A (PRESIDING), GYAN J.A, SUURBAAREH J.A
LAWYERS:  P. K. O. MENSAH, ESQ, FOR THE APPLICANT/APPELLANT
HENRY K. AMPORFUL ESQ, FOR THE INTERESTED PARTIES/RESPONDENTS
JUDGMENT

SAEED K. GYAN, J.A

I believe it is not for nothing that the 1992 constitution of Ghana as well as previous other constitutions of Ghana have sought to protect the Institution of Chieftaincy in the Country. A whole Chapter (22) of the current constitution has been devoted to chieftaincy.

 

The constitution provides in Article 270 thereof as follows:

“270. (1) The institution of chieftaincy,  together with  its traditional Councils as established by customary law and usage, is hereby guaranteed.

(12) Parliament shall have no power to enact any law which –

(a) confers on any person or authority the right to accord    or withdraw recognition to or from a chief for any purpose whatsoever, or

(b) in any way detracts or derogates from the honour and dignity of the institution of chieftaincy”

 

Indeed, Article 290 (1) (p) of the 1992 constitution makes Article 270 of the constitution, which deals with the institution of chieftaincy, an entrenched part of the constitution.

 

The chief or chieftaincy in Ghana can, therefore, properly be conceived of or described as the sacred cow of our customary and traditional heritage, which should not be trifled with. That being so, the honour and dignity of the chief as well as chieftaincy, as a hallowed institution, need to be strenuously safeguarded by all, especially so by the chiefs themselves, together with all the agencies, institutions and structures established, either by or under custom, tradition or statute.

 

It is against this backdrop that this case and all other cases touching on chieftaincy ought to be approached with delicacy and sensitivity.

 

It is equally important to draw attention to the pregnant words of Akamba, JSC contained in the lead judgment of the Supreme Court case of : F. K. A. Company Ltd. and Anor v. Ayikai Akramah II and &ors [2016] 101 GMJ 186. The learned and didactic Akamba, JSC delivered himself at page 212 of the report thus:

It is important to stress that the adjudication process thrives upon law which defines its scope of operation …………..

Any initiative within the context of the adjudication process must be guided by the appropriate, relevant provision, be it substantive law or procedural law. As Courts, if we fail to enforce compliance with the rules of Court, we would by that lapse be enforcing the failure of the adjudication process which we have sworn by our judicial oaths to uphold”.

 

This is a case that has come to this Court through the appeal process. It first started at the Ajumako Traditional Council, through its Judicial Committee, having erroneously been perceived as a cause or matter affecting chieftaincy. It then proceeded to the High Court, Agona Swedru, by way of Judicial review, and has now found its way into the Court of Appeal.

 

The way and manner in which this case was treated seems obviously to have, obfuscated the real issue in controversy. It is therefore worth stressing, at this stage, that the matter directly in issue concerns an interlocutory decision, being an order of interlocutory injunction, made by the Judicial Committee of the Ajumako Traditional Council on 17th December, 2014.

 

Now, what are the facts underlying this case?

 

On 30/10/2014 the Interested Parties/Respondents in the instant appeal, as Plaintiffs, through their legal Counsel, caused a Writ of Summons to be initiated at the Ajumako Traditional Council claiming the following reliefs, namely:

 

“a) An order directed against the Defendant to deliver all stool properties in his possession, particularly the cocoa farms, the palace, the keys to the stool room which the Defendant Surreptitiously collected from the predecessor of the 1st Plaintiff.

b) Recovery of possession of the palace.”

 

Accompanying the Writ of Summons was what was titled “STATEMENT OF CASE ON BEHALF OF THE PLAINTIFF”.

 

In the said process filed on 30/10/2014 the Plaintiffs contended that they were the kingmakers of the Royal Asenee No.1 family of Ajumako Brakwa; that the Defendant, Nana Yamoah IV (the Applicant/Appellant herein), who, according to the title of the suit, had been sued as “ODIKRO OF AJUMAKO BRAKWA”, was the “customarily destooled” chief of Ajumako Brakwa; that they had performed the necessary customary rites to remove the Defendant after he had “failed to extricate himself from the charges leveled against him”, following which the Royal family had appointed a male child of the Royal family “to hold the fort as the Regent of the stool”; and, finally, that despite his alleged removal the Defendant was “still dealing with the properties of the stool as if he is the Odikro of Ajumako Brakwa”, which act was creating “ a lot of hardship to the Plaintiffs, the Oman and the people of Ajumako Brakwa”.

 

On 14/11/2014 the Defendant, through his Lawyer, Kwesi Cab-Addae, Esq. filed a Motion on Notice praying for an order striking out the Plaintiffs’ suit at the Ajumako Traditional Council, “as being an abuse of the process of the Judicial Committee”.

The return day for the motion to be heard was 19th December, 2014.

 

In the supporting affidavit the Defendant/Applicant deposed that no charges had ever been leveled against him before any Judicial Committee, nor had he ever been tried by any traditional council; that he was the Odikro of Brakwa which capacity was even confirmed by the title of the Plaintiff’s suit and that at the hearing of the motion his Counsel would refer to the appropriate legislation to support his case that the orders being sought by the Plaintiffs were “premature”.

 

Two days before the motion to strike out the Plaintiffs’ writ was scheduled to be heard, the Plaintiffs’ “motion on notice for injunction” filed on 17/11/2014, praying for an order of interlocutory injunction restraining the Defendant from having anything to do with the stool properties of Ajumako Brakwa, was called and promptly disposed of by the Judicial Committee.

 

In the affidavit supporting the motion for injunction the Plaintiffs alleged that the defendant had for 7 months not stayed in the Royal Palace and had also not been performing any customary function as a chief; that the Plaintiffs/Applicants had sued the Defendant with the view to “taking possession of the stool property” from him; that the Defendant was improperly seeking to collect rent from tenant farmers, having been destooled, and finally that the Defendant was seeking to use the police to intimidate the Plaintiffs.

 

No specific date had been stated on the face of the motion paper for the hearing of the Plaintiffs’ Application for injunction. It simply stated that: “DATE TO BE FIXED LATER”

The Record of Appeal shows, however, that on 11/12/2014 the Plaintiffs filed an Affidavit in Opposition to the Defendant’s motion to strike out their case. The said Affidavit was sworn to by the 1st Plaintiff.

 

The Record of Appeal (ROA) does not seem to conclusively establish whether a Hearing Notice was, subsequent to the filing of the Plaintiffs’ motion on notice for interlocutory injunction, prepared and served on the Defendant/Respondent in connection with the hearing of the aforesaid application for Interlocutory Injunction.

 

There is however a Hearing Notice dated 28/11/2014 showing that the case “had been set down for hearing”, on 17th December 2014. No reference whatsoever was made to the motion for Injunction  (see page 34 of ROA). There is also no indication on whom exactly the said Hearing Notice was to be served and if it was served at all and when.

 

Be that as it may, the ROA establishes that the case was duly called on 17/12/2014.

 

Below is the Court’s notes for the day, as captured on page 25 and 26 of the ROA.

Panel members; Present Case called : Except the 5th Plaintiff who is absent the rest are present

Defendant present

LEGAL REPRESENTATION:

Lawyer Kofi Lamptey appear for the Plaintiff and Lawyer Cab-Addae for the Defendant Absent.Lawyer Cab Addae for the Defendant has written a letter to inform the court for adjournment

The Plaintiffs lawyer quoted Ghana Law report ie. Esselfie vrs Annafo 1993 -1994and further explain that the power to destool a chief is a customary right vested in the kingmakers who alone have the power to make and unmake a chief by customary law.

The defendant was served with MOTION ON NOTICE FOR

INJUNCTION ON 21ST NOVEMBER, 2014. THE Defendant has not answered or reply the injunction and since silence means concerned (sic) that means the Defendant has accepted the injunction place on him and again instead of the replying the motion on 8th December, 2014, written to the tenant farmer to account to him.

By Court:

The court ordered both parties to stay away from the family properties until a determination by the court. A caretaker be appointed to take over stool properties and account to the court.

 

Mr. Hameed Kofi Nkungua is appointed caretaker.

The Defendant is ordered by the court to handover the Palace keys to the Registrar of Ajumako Traditional Council on 18th December, 2014 at 10:00 am

Case adjourned to 29th January, 2015”.

 

From the court notes for 17/12/2014 certain facts emerge:

When the case was called both parties were recorded as being present. The lawyer for the Plaintiffs, Kofi Lamptey, Esq was present, while Lawyer Cab-Addae, for the Defendant, was absent. However, the latter lawyer was recorded to have written a letter praying for an adjournment. Despite the letter for the adjournment, the lawyer for the Plaintiffs was apparently permitted to move the motion for interlocutory Injunction. The record shows further that immediately after Lawyer Kofi Lamptey’s submissions the panel pronounced its decision and made certain specific interlocutory orders.

 

There is clearly no indication on the record that having supposedly refused to grant the Defendant’s Lawyer’s written request for adjournment the panel of adjudicators called upon the defendant to respond to the Plaintiffs’ Lawyer’s submissions. In other words, there is, on the face of the record, no evidence that the Defendant was granted any hearing in his defence, which he failed or otherwise declined to take advantage of.

 

There is also no indication, on the face of the record, that in proceeding to hear and determine the motion for injunction, the panel of adjudicators had adverted their mind to and cautioned themselves about the pendency of a prior motion on notice that was challenging the very basis of the Plaintiffs’ suit and which, accordingly, sought to strike out the action.

 

It is the circumstances outlined above that provide the backdrop to the Defendant’s recourse to the High Court, Agona Swedru, by way of judicial Review in the nature of certiorari and prohibition to set aside the Interlocutory Orders made by the Judicial committee of the Ajumako Traditional Council on 17/12/2014, and for a further order prohibiting the judicial committee from proceeding further with the hearing of the substantive case.

 

It would seem from the record that before the application for certiorari was mounted at the Agona Swedru High Court, the Defendant purported to appeal against the order of interlocutory injunction.

 

The application to the High Court was filed on 20/02/2015. Clearly, the motion paper showed an error in the date for the impugned judicial committee decision. Instead of 17/12/2014 it stated 30/10/2014, which was actually the date the Plaintiffs filed their writ at the Traditional Council against the Defendant.

 

The original grounds for the application were for want of jurisdiction and bias. The Applicant later added a third ground, namely, the breach of the audi alteram partem rule (rules of natural justice).

 

The application was hotly contested before His Lordship Peter Dei Ofei, J, presiding over the High Court, Agona Swedru.

 

On 25th September, 2015 the High Court delivered its ruling and entirely dismissed the application for certiorari and prohibition.

 

Being aggrieved by and dissatisfied with the decision this appeal has been mounted.

 

The grounds of appeal set out are as follows:

i) That the ruling is against the weight of evidence as per the affidavits and attachment relied on by parties.

ii) Learned High Court Judge erred in law when he ruled that the applicant has been validly destooled when the Judicial Committee of Ajumako Traditional Council has not tried him and found him guilty of any destoolable offence. Further or in the alternative the learned High Court Judge erred in law in declaring Applicant/Appellant destooled when interested parties had filed an amendment to the chieftaincy suit seeking a confirmation of the purported destoolment of the Applicant/Appellant.

iii) The learned Judge misdirected himself on the issue of bias, when he failed to rule that an affidavit sworn by Registrar of Respondent against lawyer for Applicant/appellant was enough to disable the panel from sitting on the matter.

iv) The learned Judge exhibited bias towards the Applicant/Appellant when he indiscriminately awarded costs upon cost against Applicant/Appellant while at the same time he left Respondent and Interested parties off the hook in situations when cost against Respondents and Interested parties were compelling.

v) The final cost of Gh¢ 3000 awarded against Applicant/Appellant was excessive having regard to the circumstances of the matter.

 

By paragraph 4 of the notice of Appeal the Applicant/Appellant herein has prayed that the ruling of the High Court dated 25/5/2015 be set aside and judgment be entered in his favour.

 

Now, it has obviously become trite that a ground of appeal to the effect that the judgment is against the weight of evidence enjoins the appellant Court, by way of rehearing, to examine the whole record of appeal in order to satisfy itself, whether on the law and/or facts, that the impugned judgment was sustainable or otherwise justified and/or justifiable, in the circumstances of the particular case, and accords with justice. In that respect the appellate court is vested with jurisdiction to examine the whole evidence on record so as to come to its own decision or make its own inferences from the admitted and/or undisputed facts.

See: Rule 8(1) of the Court of Appeal Rules, 1997, C.I. 19;

TUAKWA V BOSOM (2002) SCGLR 61; Akufo-Addo v Catheline [199201GLR 3777 @ 379.

Akamba, JSC in F.K.A. Company Ltd v. Ayikai Akramah II and others (2016) 101 GMJ 186 @ 215

stated further as follows:

 

where the appellate Court comes to the conclusion that findings of fact by the Court below are not supported by the evidence on record or where the findings are perverse, then it may set those findings aside. The appellate court will also set aside findings and conclusions arrived by a lower court where the findings and conclusions are based on a wrong proposition of law. See also Achoro and Anor v. Akanfela (2000) SCGLR 175; Koglex Ltd. (No.2) V. Field (2000) SCGLR 175.

 

Under this ground of appeal, the whole matter opens up for rehearing based upon the record of appeal. Thus the entire record of what transpired in the court of trial including testimonies, cross- examinations, exhibits-accepted or rejected, and indeed every and any documentary or other evidence adduced or rejected at the trial before the Court arrived at its decision, will be open to the appellate Court to examine to satisfy itself that on a preponderance of probabilities, the conclusions of the trial judge are reasonable or amply supported by the evidence”.

 

I have closely followed the record of proceedings in the instant case. I have carefully read and considered the written submissions of Counsel in this appeal. And more importantly I have pondered over the ruling of the Learned High Court Judge which is impugned in this appeal.

 

I note that in the conduct of this case lots of extraneous matter seem regrettably to have been introduced into the proceedings in the Court below. This reflected quite significantly in the final ruling of the Learned High Court Judge.

 

Not surprisingly, the trend continued and took considerable space in Counsels’ written submissions in the instant appeal.

 

The question is: was the Learned High Court Judge right in his decision? Was he justified in his decision; or was the ruling justifiable in the circumstances of this case? Was there a miscarriage of justice in that the Court acted in a manner that amounted to a failure to do justice, as noted by Adzoe, JSC in Afrawuah IV v. Afodoo II and others (2001-2002) SCGLR 477 @ 491, citing PON V. ATTAFUA (1921) AC 639?

 

As pointed out earlier on in this judgment, what was the crux of the matter and thus constituted the real issue in controversy was the decision of the Judicial Committee of the Ajumako Traditional Council granting an order of Interlocutory Injunction against the Applicant/appellant herein; and the circumstances or manner in which that decision was arrived at.

 

Was the circumstances or manner in which the order was made, or the decision itself, amenable to Judicial review by way of certiorari and or prohibition? Naturally, the Applicant/Appellant contends that his prayer should have been granted by the Learned High Court Judge, while the Interested Parties/Respondents contend to the contrary.

 

The Ajumako Traditional Council, per its Judicial Committee, did not appear to interest itself in the controversy before the High Court and so obviously did not participate in the said High Court proceedings.

 

In a way, I should say that the determination of this appeal must fall within a narrow compass and could properly and expediently be encompassed under the first and second grounds of appeal only.

 

I would state at this point that the complaint about bias can easily and justifiably be discounted as being of no moment in determining the real issues in controversy in this appeal.

 

I have, therefore, no hesitation in dismissing in limine all those grounds of appeal that touch upon or border on the allegation or contention of bias, as not having been well and properly made out.

 

Would or should certiorari have lain to quash the decision of the Judicial Committee of the Ajumako Traditional Council granting the order of interim injunction; and should prohibition have been justified to injunct the said Judicial Committee from further proceeding with the action mounted by the Plaintiffs/Interested Parties/Respondents herein at the Ajumako Traditional Council?

 

The full force and effect of the decision of the High Court which is impugned in this appeal are, in my respectful opinion, contained in that part of the Court’s ruling which can be found in pages 164 to 166 of the ROA. I do consider it useful to set out the same in full as follows:

These orders, as they were, emanating from two claimswhich the interested parties made are all undoubtedly causes or matters affecting chieftaincy which this Court does not have jurisdiction to hear. The appropriate forum for further adjudication, if the applicant is not satisfied with the decision, is the Regional House of Chiefs as a matter of appeal which is already lodged with it. This makes this instant application for Judicial review whiles the appeal is pending, an abuse of the court process.I must concede that the High Court is clothed with supervisory jurisdiction over an adjudicating chieftaincy body established by or under Chieftaincy act. However that does not entitle the High Court to assume jurisdiction in clear matters affecting chieftaincy such as this one………………….

 

At any rate it could be gathered from the reliefs endorsed on the Writ of summons filed before the Ajumako Traditional Council and marked as Exhibit ‘A’ that, the appropriate customary practice for deposition in the area concerned had been complied with. The Plaintiffs in that case are the kingmakers, a fact which was not challenged by the applicant. It has been held in the case of Essilife & Anor. V. Anofa & Another 91993-940 2 GLR 1-17 holding 3 of head notes that:

“3 The power to destool a chief was a customary right Vested wholly in the king makers who alone had the Power to make and unmake a chief customarily. Accordingly, the chieftaincy tribunals of the Traditional, Regional and National House of Chiefs as established by law had no power to destool a chief or make an order for his destoolment”.

 

From the above premise and by the appointment of a regent as a caretaker by the Judicial Committee of the Ajumako Traditional Council in their decision of 17th December, 2014, the inference that could be drawn is that the Odikro of Brakwa, in the person of Nana Yamoah IV had indeed been deposed or destooled by the king makers as the Odikro of Brakwa. The endorsement on the writ of summons was therefore seeking an order directed at the Defendant/applicant who has been destooled to deliver all stool properties in his possession, particularly the cocoa farms, the palace, the keys to the stool room which the Defendant is said to have surreptitiously collected from his predecessor.

 

The endorsement also sought to recover possession of the palace because Nana Yamoah IV had been destooled by the king makers and which action, had in effect, been confirmed by the Judicial Committee of the Ajumako Traditional Council by their decision of 17th December, 2104.

 

The right forum for adjudicating and making a pronouncement on it is the Ajumako Traditional Council which Judicial Committee has been cleared by this Court of any element of bias or a breach of its statutory functions. There is also no clear or latent error of law on the face of the records and the Judicial Committee has not been accused or exercised excess jurisdiction or assumed jurisdiction where it was not clothed with jurisdiction to warrant the grant of a judicial review in the form of an order of certiorari or prohibition.

 

The application before me is misconceived and a clear case of the abuse of the Court process. The lawyer for the Applicant is to blame for not making himself available at the (Court) proceedings before the Judicial Committee of the Ajumako Traditional Council on the 17th December, 2014 on flimsy and non legal excuses. In the end the decision of the Judicial Committee of the Ajumako Traditional Council will not be disturbed but would be upheld and must be held binding on the applicant.

 

Applicant’s application for Judicial review is dismissed in its entirety. Cost of GH¢3000 is awarded in favour of the Interested Parties and against the Applicant for latter’s abuse of Court process”.

 

Are the findings and conclusions made by the Learned High Court Judge justified or justifiable in the circumstances of this case?

I think not.

 

ATUGUBA, JSC delivered himself in the case of Okofo Estates Ltd v. Modern Signs Ltd (1996-97) SCGLR 224 @ 256 as follows;

The scope of certiorari is not restricted to jurisdictional errors.

One of the best formulated decisions on the scope of certiorari is the case of Republic v. Cape Coast District Magistrate Grade II: Ex parte Amoo (1979) GLR 150, CA where Anin JA (as he then was) said at page 159:

“ I have no doubt whatsoever that the High Court isCompetent to quash by certiorari the judgment and orders of inferior tribunals on the grounds of either want or excess of jurisdiction; breach of the rules of natural justice; error of law on the face of the record; and fraud, perjury or duress in procuring a decision”.

 

In his concurring judgment Apaloo CJ said at 160:

“as is well known the remedy of certiorari is a useful tool in aid of justice and ought to be used to correct defects of justice whether they arise from illegality, fraud, breach of rules of natural justice, error on the face of the record and the like. I am not even prepared to say that the category of cases in which this useful remedy can or should be used is closed”

 

As far as error on the face of the record is concerned, the following cases decided by the Supreme Court are in point; In Republic V. High Court Registrar Kumasi ; Ex parte Yiadom [1984-86] GLRD 132 SC, holding (2) states:

“Certiorari lay, apart from jurisdictional situations to correct errors of law apparent on the face of the record. Even if the decision sought to be quashed was an error of law, it was in the circumstances of the case, a latent error not a patent error and could not on the authorities be a proper foundation for certiorari; such latent errors properly belonged to appeals”.

 

In DEI XI V. DARKE XII (1991) 2 GLR 318 at page 331 the Supreme Court, speaking through Osei- Hwere, JSC firmly maintained that a Court may lack jurisdiction “where there may be absence of formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry”.

 

The question is: did the judicial Committee of the Ajumako traditional Council have jurisdiction to deal with the writ of summons filed by the interested Parties/Respondents herein in their position as Plaintiffs by reason of the reliefs they claimed in that action which they mounted at the Ajumako Traditional Council?

 

As pointed out previously in this judgment, the Plaintiffs (now Interested Parties/Respondent herein) sued the Defendant (now Applicant/Appellant herein) at the Ajumako Traditional Council claiming the reliefs as follows:

“ a) An order directed against the Defendant to deliver all stool Properties in his possession, particularly the cocoa farms, the Palace, the keys to the stool room which the Defendant surreptitiously collected from the predecessor of the 1st Plaintiff.

b) Recovery of possession of the palace”.

 

In his ruling the Learned High Court Judge categorically determined that the orders granted under the application for interlocutory injunction emanating from the action initiated at the Ajumako Traditional Council on the basis of the above stated reliefs as endorsed on the writ constituted a cause or action affecting chieftaincy and, even more bizarrely, that those reliefs sought by the Plaintiffs raised the inference, which he accepted as established, that the Defendant had validly been destooled by the kingmakers whose action had “ been confirmed by the Judicial Committee of the Ajumako Traditional Council” and “ by the appointment of a regent as a caretaker by the Judicial Committee of the Ajumako Traditional Council in their decision of 17th December, 2014”.

 

It seems obvious to me that the learned High Court Judge fell into a patent error on the face of the record.

 

The reliefs endorsed on the Plaintiffs’ writ of summons in the action they initiated at the Ajumako Traditional Council clearly did not constitute a cause or matter affecting chieftaincy. It certainly did NOT constitute a DESTOOLMENT action, in any event.

 

This case seems to be akin to the situation in an earlier case determined by the Court of Appeal on 5/11/2009 in the case entitled:

 

The Judicial Committee Wassa Amenfi Traditional Council; Ex parte: Nana Kwesi Nterful II (Nana

K. Ampong and Anor, Interested Parties) (suit No. H1/118/08 (Unreported). The interested parties in the above case had initiated action before the Judicial Committee of the Amenfi Traditional Council seeking the following reliefs;

 

“a) To declare the Respondent destooled.

b) an order that the Respondent hands over all stool property in his possession……

c) An order of perpetual Injunction..”

 

The Respondent objected to the action before the Traditional Council, which was overruled, whereupon he applied to the High Court for an order of prohibition against the Council which was granted. The Court of appeal unanimously dismissed the appeal against the decision of the High Court.

 

Speaking through Ofoe, JA, the Court of Appeal observed as follows;

Now to relief (b), when we look at this relief ie, “an order that the respondent hand over all stool property in his possession and custody including black stool, the house in which he lives, and all stool regalia at Bremang”, it appears to be a consequential order the appellants were seeking before the court…….

Not having jurisdiction to grant the order to destool the respondent, the committee cannot also have the jurisdiction to grant consequential order to grant this relief (b)”.

 

In the instant case, the Plaintiffs original action upon which the application for interlocutory injunction was filed and granted did not even have any relief whatsoever seeking the destoolment of the Applicant/Appellant herein, as a substantive relief, flowing from which the two claims indorsed on the writ could even possibly be argued as being consequential reliefs.

 

In the more recent Supreme Court case of F.K.A Company Ltd. And anor. V. Ayikai Akramah II and 4 ors (2016) 101 G.M.J. 186 the court had cause to decide on the fate of the judgment (Exhibit H) of the Judicial Committee of the Ga Traditional Council, which apparently determined a dispute over land. The Court examined the relevant legislation, namely, chieftaincy Act 371, governing the Judicial Committee of the Ga Traditional Council.

 

Akamba, JSC, in delivering the unanimous judgment of the Court observed as follows:

“Without any measure of doubt exhibit H issued out of the Judicial Committee of the Ga Traditional Council which sat at the Ga Mantse’s Palace on 20th January 1998 apparently to determine a dispute over land……….

The Court of Appeal’s heavy reliance upon exhibit H to affirmatively pronounce as it did is devoid of any justifiable jurisdictional basis. This is because the dispute brought before the Judicial Committee of the Ga Traditional Council was a dispute over ownership of land by the two families which did not fall within the definition of a “cause or matter affecting chieftaincy” provided in S.66 of Act 371 (supra) so as to clothe the committee with jurisdiction. The resultant wrongful assumption of jurisdiction culminating in the issuance of exhibit H renders it a void document, a fact that is obvious on the face of the document. It was therefore incumbent upon the trial Judge and the Court of Appeal to set it aside…………….

 

We have no hesitation in finding exhibit H void and as such no reliance could have been placed upon same  

 

The F.K.A. Company Ltd case (supra) was based on the old Chieftaincy Act, 1971 (Act 371).

 

I should say however that the new chieftaincy Act, 2008 (Act 759) has not changed the position in any way to affect the law differently from the manner interpreted and defined by the Supreme Court in the said F.K.A. Co. Ltd. case above.

 

Section 76 of Act 759 states as follows:

 

“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 in the deposition of a chief,

d) The recovery or delivery of stool property in connection with the nomination, election, selection, installation, disposition or abdication of a chief, and

e) The constitutional relations under customary law between chiefs”

 

Section 29(1) of Act 759 provides thus:

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”.

 

This jurisdiction shall be exercised by a three or five member panel of the Judicial committee of the Traditional Council (S.29 (2) of Act 759).

 

It is obviously clear from Section 76 (d) of the chieftaincy act, 2008 (Act 759) that no judicial committee of a House of chief (including a Traditional Council) can entertain any claim or relief related to the recovery or delivery of any alleged stool property as a stand alone relief or cause of action unless and until it is a consequential relief sought and attached to a substantive action in “ connection with the nomination, election, selection, installation, deposition or abdication of a chief”.

 

This was the determination firmly made by the court of Apeal in the Ex parte; Nana Kwesi Nterful I case (supra).

 

There can be no iota of doubt, therefore, about the fact that the action commenced by the Interested Parties/Respondents herein at the Ajumako Traditional Council on 30/11/2014 did fall foul of the law and that the Judicial Committee of that council had no jurisdiction in the circumstances to deal with the matter.

 

And in accordance with the decision of the Supreme Court in the F.K.A. Company Ltd case (supra), the wrongful assumption of jurisdiction culminating in the order of interlocutory injunction made by the Judicial Committee of the Ajumako Traditional Council on 17th December 2014 rendered the aforesaid decision VOID for want of jurisdiction and hence liable to be set aside or otherwise vacated through the process of Judicial review, and by way of certiorari.

 

To that extent, the decision of the Agona Swedru High Court in dismissing the application for Judicial Review in the nature of certiorari was wholly wrong and without any merit whatsoever. Accordingly, that decision of 25th September 2015 ought to be set aside; and it is hereby, consequently, vacated.

 

In the event, grounds one and two of the appeal do find merit and hence are duly upheld.

 

Now additional to and flowing also from the question of jurisdiction dealt with above is the issue related to the process by which the judicial committee of the Ajumako Traditional Council reached its decision to grant the Interlocutory injunction as well as the manner in which it conducted itself in terms of the procedure.

 

As noted previously, the Plaintiffs motion for injunction which was filed on 17/11/2014, three days after the Defendant had filed his own application (on 14/11/2014) praying for an order striking out the Plaintiff’s suit, did not have a hearing date indicated on the face of the motion paper.

 

The record does not show that a Hearing Notice was specifically issued and served for the hearing of the Application for Interlocutory Injunction.

 

The only Hearing Notice on record was merely in the nature of general notice to the effect that the case would be called on 17/12/2014 and stated further that the party which did not attend may have judgment entered against them. (see page 34 of the ROA)

 

I find and hold that no proper hearing notice was served on the Defendant (Applicant/appellant herein) for the due hearing of the motion for interlocutory injunction on 17/12/2014.

 

Acquah, JSC (as he then was) boldly declared in Barclays Bank of Ghana Ltd, v. Ghana Cable Co, Ltd and others [1998-1999] SCGLR 1 as follows:

“A court has generally no jurisdiction to proceed against a party who has not been served”.

 

See also the case of Karletse-Panin V. Nuro (1979) GLR 194 where Francis, JA (as he then was) declared thus:

“The fact that notice of the adjourned date was not served on the Defendants personally in compliance with statutory directions in my view nullifies completely whatever occurred subsequently”

 

Benin, J(as he then was) delivered himself thus in the case of Jerigoji V. Issah (1989-90) 2 GLR 501 at page 502 as follows:

Hearing of a case on its merit being a cardinal principle underlying our judicial system and the entire concept of justice as known, a party to be directly affected must be given every opportunity to be heard on notice. Non-service of a hearing notice was not a mere irregularity which could be waived by the losing party. It rendered the entire proceedings a nullity”.

 

Indeed the mere physical presence of the Defendant in Court on 17/12/2014 does not by itself constitute sufficient and satisfactory evidence that he had been given specific notice by way of the service of hearing notice exactly related to the hearing of the motion for injunction.

 

Equally fundamental and critical is the issue of giving proper hearing to the Defendant in course of the purported hearing of the application for Interlocutory Injunction on 17/12/2014.

 

An examination of the ROA by way of a review of the Court’s notes for the said 17th/12/2014, shows that the Defendant (Applicant/Appellant herein) was not called upon to respond to the application for Interlocutory Injunction moved and argued on behalf of the Plaintiffs/Applicants by their Lawyer, Mr. Kofi Lamptey.

 

The omission to call upon the Defendant to respond was fatal to the validity of the subsequent decision granting the order of Interlocutory injunction. It clearly amounted to a denial of the Defendant’s right to be heard in his defence, despite the absence of his lawyer. It sinned against the audi alteram partem rule and constituted a flagrant violation of the principle of natural justice, equity and fairness.

 

It was clearly within the remit of the judicial committee to refuse the written request of the Defendant’s Lawyer for an adjournment. That may have been an acceptable exercise of the committee’s discretion to grant or refuse the prayer for an adjournment. However, in the peculiar circumstances of the case, justice would have been better served were on adjournment to be granted. See; Karletse-Panin V. Nuro (1979) 194 at page 196, per Kingsley-Nyinah, JA (as he then was). This particularly so; and the adjournment was even more indicated, by virtue of the fact that pending and schedule for hearing only two days ahead, on 19/12/2014, was the Defendants motion challenging the very basis of the Plaintiffs’ action and praying for an order striking out the Plaintiffs’ suit .

 

In connection with this case, I fully endorse the sentiments of Mensah Boison, J ( as he then was) when he observed in the case of NSIAH V. OSEI (1975) 1 GLR 257 at page 263 as follows:

“Where a party has committed the conduct of case to a professional representative, and that representative was absent it may properly be argued that the party was absent, although he was physically present in court”.

 

In refusing to grant the request for an adjournment to enable the Defendant’s lawyer to be present and then proceeding to allow the Plaintiffs’ Lawyer to move and to argue their motion for Injunction without offering the corresponding opportunity for the Defendant to be heard, thereby literally debarring him from the judgment seat before being heard in his defence, as required by law, constituted an egregious error on the face of the record for which a superior Court was entitled to quash the resultant order/decision of the judicial committee of the Ajumako Traditional Council on certiorari. This is because that procedural error not only flouted or breached the rules of natural justice, it amounted to a patent error of law going to the jurisdiction of the Court/Tribunal at that stage of the proceedings.

 

Perhaps, the attention of the learned High Court Judge was not fully drawn to this fundamental procedural flaw, but that does not exculpate him from the error he himself clearly fell into by not observing and taking appropriate action on it.

 

It would, therefore, be a clear miscarriage of justice, indeed a failure of justice were this Court of Appeal to also close its eyes on it and not set the order of injunction aside.

 

In this regard, the recent decision of the Supreme Court in the case of: POBEE TUFUHENE ELECT OF APAM V. YOYOO [2013-214] 1 SCGLR 208 at page 216-217 is most opposite, and I, accordingly, consider it appropriate to quote amply the illuminating observations of Anin-Yeboah, JSC who read the unanimous decision of the Supreme Court in the manner as follows, as found on pages 216-217 of the Report:

To deny a party the opportunity to prove his case in the circumstances of this case, offends the basic rules of natural   justice. It is trite learning that the judicial committee is an inferior tribunal. Nowhere in the various statues on chieftaincy and its institutions has it been spelt out that a judicial committee can proceed to deny a party hearing as it was done in this case. It being so, the denial to the Defendant- Appellant of this basic right has the effect of invalidating the decision and, indeed, the proceedings on which it was founded.

As a breach of the audi alteram partern rule constitutes a serious fundamental error, the High Court in the exercise of its jurisdiction under both article 141 of the 1992 constitution and section 16 of the Courts Act, 1993 (Act 459), should have quashed the proceedings of 3rd April 2009. For very recent exposition of the applicable legal principles: see Republic V. High Court Accra: Ex parte Osafo [2011[2 SCGLR 966; Republic V. High Court Accra; Ex parte Salloum (Senyo Coker Interested Party) [2011]1SCGLR 574 and Republic V. High Court Accra ; Ex parte Okaidja III (Ayi Bonte II Interested Party) Supreme Court, Civil motion JS/3/2012, 13th November 2012, unreported. There does not appear from the record of appeal any legitimate answer to the complaint of the Defendant- Appellant.

We would have been content to rest our judgment here but in view of the fact that we are differing from the lower courts on the remedy available to a party in the circumstances of this appeal, we shall give the matter further consideration. Turning to the second ground of appeal, it is not disputed that the matter before the Gomoa Akeympim Traditional Council’s Judicial Committee was a chieftaincy matter. It is equally plain that the judicial committee was exclusively seised with jurisdiction to entertain the matter. It has recently been held in three landmark cases, notably: Republic V High Court, Accra; Ex parte Industrialization Fund for Developing Countries [2003-2004] 1 SCGLR 348; Republic V. High Court, Accra; Ex parte CHRAJ (Addo Interested Party) [2003-2004] 1 SCGLR 312 and Republic

V. Court of Appeal; Ex parte Tsatsu Tsikata [2005-2006] SCGLR 612 that when a superior Court such as the High Court, while acting within its jurisdiction commits errors of law which are not so patent and do not go to jurisdiction, the proceedings based thereon are not liable to be nullified by any order of certiorari but are remedied by appeal. Even as regards Superior Courts, the position is well- settled without conflict of judicial opinion that the proceedings are amenable to certiorari if the tribunal, whilst acting within its jurisdiction, ignores the basic rules of natural justice and consequentially veers into the realm of excess or absence of jurisdiction. Thus in the recent cases of Republic V. High Court , Accra; Ex parte Salloum (Senyo Coker Interested Party) [2011] 1 SCGLR 574 (supra), it was held (per the majority of the Supreme Court ( per Anin Yeboah JSC) as stated at page 585) as follows: “Equally so, if a party is denied his right to be heard, as in this case, it should constitute a fundamental error for the proceedings to be declared a nullity. The Courts in Ghana and elsewhere seriously frown upon breaches of the audi alteram partem rule to the extent that no matter the merits of the case, its denial is seen as a basic fundamental error which should nullify proceedings made pursuant to the denial” (the emphasis is ours).

As the judicial committee denied the Defendant-Appellant his constitutional right to be heard in the proceedings, the High Court’s supervisory jurisdiction was rightly invoked by the Defendant-Appellant and the proceedings was a nullity irrespective of the fact that the judicial committee was acting within its jurisdiction”.

 

It may at this point also be observed that much ink seemed to have been spilled by both counsel as well as the Learned High Court Judge himself over the issue of whether or not the Applicant/appellant herein had been destooled. I find this matter to be somewhat extraneous, in the peculiar circumstances of this case.

 

As found above, the action commenced by the Interested Parties/Respondents herein before the Ajumako Traditional Council on 30/10/2014 was not a destoolment petition or action. It was simply not a cause or matter affecting chieftaincy within the contemption of section 76 of Act 759. (the chieftaincy Act, 2008).

 

It is clearly obvious that the Interested Parties/Respondents herein must themselves, upon subsequent competent Legal advice, have come to that realization. And that apparently explains why the Interested Parties/Respondents herein later purported to file another writ of summons against the very same Applicant/Appellant herein at the same Ajumako Traditional Council, as can be found on page 97 of the ROA.

 

The said document states in part as follows:

APPLICATION FOR WRIT OF SUMONS TO ISSUE

PLEASE KINDLY CAUSE A WRIT OF SUMMONS TO ISSUE against the Defendant herein at the instance of the Plaintiffs on a general cause of de-stoolment and make same returnable at an early date.

 

PARTICULARS OF CLAIM

The Plaintiffs claim against the defendant is for confirmation of his destoolment as the Odikro of Ajumako Brakwa on the strength of the attached statement of case and his refusal to answer the following charges preferred against him”.

 

The Plaintiffs then proceeded to set out twelve (12) charges against the Defendant.

 

This fresh writ of summons was initiated in 2015.

 

It must be emphasized that the above process does not connect with or relate back to the Plaintiffs’ original suit filed at the very same Ajumako Traditional Council on 30/10/2014 in connection with which the impugned order of interlocutory injunction was made.

 

The record does not show that this fresh 2015 action commenced by the Plaintiffs (interested Parties/Respondents herein) against the Defendant, ie. Applicant/Appellant herein had been heard and determined by the judicial committee.

 

It is undisputed that the action filed on 30/10/2014 had also not MATURED for hearing.

 

In the circumstances, what was the basis for the Learned High Court Judge’s categorical affirmation that the Applicant/Appellant herein, who was the Defendant in both suits (the 2014 and 2015 cases) “had been destooled by the king makers and which action, had in effect, been confirmed by the judicial committee of the Ajumako Traditional Council by their decision of 17th December, 2014”? (Ref; page 166 of the ROA)

 

A little earlier on, the Judge had also delivered himself as follows;

From the above premise and by the appointment of a regent as a caretaker by the Judicial Committee of the Ajumako Traditional Council in their decision of 17th December, 2014, the inference that could be drawn is that the Odikro of Brakwa, in the person of Nana Yamoah IV had indeed been deposed or destooled by the king makers as the Odikro of Brakwa. The endorsement on the writ of summons was therefore seeking an order directed at the Defendant/Applicant who has been destooled to deliver all stool properties in his possession ……..

 

The Learned Judge then glorious ended his ruling by making the following final determination:

in the end the decision of the Judicial committee of the Ajumako Traditional Council will not be disturbed but would be upheld and must be held binding on the Applicant”.

 

With the greatest respect, there could hardly be a more perverse determination than this by a Superior Court of Justice.

 

Section 40 of the Chieftaincy Act, 2008, Act 759, dealing with the right to bring proceedings for deposition, provides as follows:

“40. (1) a person is not entitled under this act to institute Proceedings for the deposition of a chief unless that person is entitled to do so under the custom of the area concerned.

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

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

(a) Deposition charges have been instituted against the chief, and

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

 

A large body of solid judicial opinion exists to establish, as codified by Section 40 of Act 759, that a chief in Ghana cannot be arbitrarily destooled without the due process of law.

 

Those with the capacity to destool a chief who intend to achieve that purpose must commence destoolment action before the relevant judicial committee upon stated charges. The case would then be tried according to law. Destoolment does not even automatically follow a determination by a judicial committee to the effect that the chief is guilty of the charges laid against him and was consequently liable to be destooled.

 

The chief must have first gone through the judicial process, by way of trial by the relevant judicial committee, and been declared guilty of the charges preferred against him before those customarily entitled to destool him could then take the customary steps to formally either destool the chief, impose a different form of punishment or even to pardon him altogether.

 

In his very valuable book: “The Law of Chieftaincy in Ghana” the most respected Justice S. A. Brobbey, retired Supreme Court Judge, distilled the prevailing law in the manner as follows at page 290 and 291 of the book.

Although judicial committees have power to try or hear chieftaincy litigations, that power does not extend to ordering the deposition of the chief or queenmother…….”

 

(Ref: Essilfie V, Anafo (1993-94) 2GLR1)

 

“The same principle may apply to the order of the tribunal ordering the installation of a chief or queenmother. It may also be pointed out that the principle seems to be of general application to the three judicial committees established to decide chieftaincy disputes”.

 

“The principle was elaborated upon in Republic V, Asokore Traditional Council: Ex parte; Tiwaa (1976) 2 GLR 231, CA which held that all that the judicial committee has to do is to determine whether or not the destoolment charges have been established. Thereafter, it is to refer the matter to the traditional council who may relay it to the elders for the actual process of destoolment to be performed and to impose the appropriate punishment”.

 

“The effects of the two decisions are simply these: it is wrong for the judicial committee to give an order which has the effect of showing that it has destoolled a chief or queenmother. It is equally wrong for the judicial committee to give a decision which shows that it has ordered a chief or quenmother to be enstooled. It has no power to make any such order………”

 

“The judicial committees do not enstool and therefore they cannot destool”

(See also Republic V. Awuku; Ex parte: Adiaku (1999-2000) 1 GLR 645.)

 

From the foregoing, it is patently clear that the findings, inferences and final determination by the learned High Court Judge to the effect that the Applicant/Appellant herein, NANA YAMOAH IV, who had been on the stool for over 30 years, had been destooled as the chief of Ajumako Brakwa cannot be justified or justifiable. His said determination is wholly without foundation in law or fact and, therefore, it would amount to a clear failure of justice were this Court to suffer to stand the lower Court’s said determination that the Applicant/Appellant herein had, by virtue of the judicial committee’s order of interlocutory injunction been destooled or otherwise deposed and, furthermore, that the Applicant/Appellant herein was bound by the decision destooling him.

 

Accordingly, we hereby set aside the aforesaid determination in its entirely as being wholly without merit or justification.

 

Another matter, which seemed to have engaged the Learned Judge’s attention was the fact that there was an appeal supposedly filed by the applicant/Appellant herein against the order of Interlocutory Injunction made by the Judicial Committee which was still pending. The High Court Judge was of the view that the pendency of the alleged appeal was fatal to the application for Judicial Review.

 

Was there a pending appeal properly so-called?

 

After carefully examining the record, I am satisfied that there was no such appeal. The Learned High Court Judge may have been misled by a document found on page 23 of the ROA.

 

Clearly, that was not a notice of appeal.

 

A cursory examination of the record shows that the Applicant/Appellant herein apparently applied for leave to appeal against the order of Interlocutory Injunction.

 

The motion paper itself does not appear on the record, but an Affidavit in Support which was filed on22/12/2014 at 12:50pm appears on page 19 of the ROA.

 

It is obvious that the document on page 23 titled “Notice of Interlocutory Appeal pursuant to Leave Granted ON………” was copy of the proposed Notice of Appeal which, together with another document found on page 21 of the ROA, were actually exhibits or annexures attached to the Application for leave to appeal.

 

It will be noticed that the said Affidavit and the two other documents referred to above were all filed on the same day, 22/12/2014 and at the same time, 12:50pm, at the Ajumako Traditional Council.

 

The record does not show that leave to appeal was granted and an appeal was in fact filed. The document on page 23 does not represent or constitute a notice of appeal. Check even the title; “In the Judicial Committee of Ajumako Traditional Council”. That is not the forum for an appeal.

 

I do find no evidence on record of an appeal having been filed and therefore pending.

 

Besides it may be observed, just in passing, that it is a well and long established principle that certiorari and appeal are not mutually exclusive. Thus, in the case of POBEE V. YOYOO [2013-14] 1SCGLR at 218 the Supreme Court, speaking through Anin Yeboah, JSC endorsed the dictum of Francois, J (as he then was) in Republic V. Keta District Magistrate: Ex Parte: Hedo [1971] 2 GLR 459 at 464 to the following effect:

Finally, I say that it is well-established that the remedies of certiorari and appeal are not mutually exclusive    one of the other, but can be both exercised by an aggrieved party…….”

 

In conclusion, it must be emphasized that chiefs themselves must be in the vanguard of protecting, promoting and advancing the dignity, honour and fair reputation of themselves as well as the institution of chieftaincy.

 

The constitutional and other statutory guarantees enacted over the years to ensure their personal protection, honour and dignity were not just against the interference with or oppression of the chieftaincy institution from state actors or persons outside that otherwise revered institution. They are equally promulgated to protect the chiefs against themselves; against the excesses and abuse perpetrated by their own kind as well as some kingmakers against them, as revealed in the numerous cases that had come before our Courts. The instant case is a classic example.

 

The conduct of the Interested Parties/Respondents herein is a clear example of such abuse and dishonor which the so-called purveyors of custom and tradition periodically bring upon the hallowed institution of chieftaincy.

 

Our Courts of law and justice must never shrink from employing their best endeavors through due process to curb the excesses or misconduct of not only those from without but especially those from within the institution of Chieftaincy itself whose actions and deeds tend to undermine or otherwise subvert the sanctity, honour and dignity of chiefs, as individuals, and Chieftaincy as an institution.

 

In the event, the appeal succeeds.

 

The decision of the High Court, Agona Swedru, dated 25/09/2015, dismissing the Applicant/Appellant’s application for judicial review in the nature of certiorari and prohibition together with all costs awarded by the Court in the proceedings in the Court below is hereby set aside or otherwise vacated and the application is duly granted.

 

Consequently, the order of interlocutory injunction made by the judicial committee of the Ajumako Traditional Council, dated 17th December 2014, is equally set aside and all the orders and directives therein contained are hereby vacated as being void.

 

The Judicial Committee of the Ajumako Traditional Council is also hereby prohibited from entertaining or proceeding further with the Interested Parties/Respondents’ action commenced on 30/10/2014 which is now pending before the Ajumako Traditional Council, for want of jurisdiction.

 

SGD

……………….. SAEED K. GYAN

(JUSTICE OF THE COURT OF APPEAL)

 

SGD

I AGREE                                                                          ……………..

C. J. HONYENUGA

(JUSTICE OF THE COURT OF APPEAL)

 

SGD

I ALSO AGREE                                                              ………………

G. S. SUURBAAREH

(JUSTICE OF THE COURT OF APPEAL)