IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)ABUSUAPANYIN KWABENA FRIMPONG
KOFORIDUA - A.D 2018
ABUSUAPANYIN KWABENA FRIMPONG -(Plaintiff)
OPANIN KOFI AMOAKO -(Defendant)
DATE: 16 TH JANUARY, 2018
CIVIL APPEAL NO: H1/22/2017
JUDGES: K. A. ACQUAYE JA (PRESIDING), S. K. GYAN JA, M. M. AGYEMANG (MRS.) JA
LAWYERS: MR. OWUSU ANSAH FOR PLAINTIFF / APPELLANT
In this appeal against the ruling of the Circuit Court, Koforidua, delivered on the 3rdday of August 2015, the plaintiff/appellant, hereafter referred to as the appellant, seeks a setting aside of the ruling of the court and seeking in its place a retrial by the Circuit Court differently constituted.
The matter giving rise to the instant appeal is sufficiently simple. The plaintiff, the Abusuapanyin of the Nana Anima lineage of the Agona Royal Stool of Akyem Hweakwae, commenced an action against the defendant/respondent herein (referred to as the defendant). The plaintiff sought the following reliefs: an order that the defendant, at the time of causing the processing and issue of the 10th January 2011 installation notice by the Registrar of the Akyem Kotoku Traditional Council, Akyem Oda, was not the legitimate Abusuapanyin of the Akyem Hweakwae Agona Royal Stool; and, an order setting aside the said installation notice for fraud, it being in contravention of the S. 62(2) of the Chieftaincy Act of 2008 (Act 759).
The plaintiff averred in pleading that in view of the imposition of an Abusuapanyin on the Akyem Hweakwae Agona Royal Stool by one Nana Osei Agyemang Prempe Dwamena II, a disputed chief, proceedings were instituted against the said gentleman regarding his legitimacy as the chief of Akyem Hweakwae at the Judicial Committee of the Akyem Kotoku Traditional Council. It was at this time that the plaintiff, causing a search to be conducted at the said Council, discovered that the defendant had on the 10th of January 2011, caused the Registrar of the said Traditional Council to process and issue an installation notice announcing himself to be the Abusuapanyin. It was the plaintiff’s pleading that this purported invocation of S. 62(2) of the Chieftaincy Act, 2008, Act 759 was done upon a fraudulent misrepresentation of the defendant.
The defendant filed a statement of defence in which he alleged that upon the demand by the people of Hweakwae for inter alia, an Abusuapanyin, he was appointed to that position for which he paid aseda of GH¢200 and two bottles of schnapps. He pleaded further that as the plaintiff failed to challenge this timeously, he was estopped by conduct, laches and acquiescence, from doing so. The defendant then raised the issue of the competence of the suit before the Circuit Court, contending that it was a cause or matter affecting chieftaincy regarding which the Circuit court had no jurisdiction.
The parties set out issues for determination which the learned trial judge set down as issues for trial. On the date that trial ought to have commenced, the learned trial judge in an apparent about-face struck out the suit for want of jurisdiction, ruling that the suit was a matter affecting chieftaincy.
It is against the said ruling that the instant appeal has been brought. The appellant set out a single ground of appeal which though inelegantly couched, complains that the learned trial judge made an error of law when he held that the suit was a chieftaincy matter and struck out the suit accordingly.
We have had regard to the matters placed before the learned trial judge and are of the view that this complaint has merit. We therefore intend to make short work of the appeal.
S.76 of the Chieftaincy Act defines "cause or matter affecting chieftaincy" in these terms: “…means a cause, matter, question or dispute relating to any of the following
(a) The nomination, election, selection or installation of a person as a chief or the claim of a person to be nominated, elected, selected or installed as a chief, (b) the deposition or abdication of a chief,
(c) The right of a person to take part in the nomination, election, selection or installation of a person as a chief or in the deposition of a chief,
(d) The recovery or delivery of stool property in connection with the nomination, election, selection, installation, deposition or abdication of a chief, and
(e) The constitutional relations under customary law between chiefs…”
The jurisdiction of the court to deal with a cause or matter affecting chieftaincy is vested in the Supreme Court which has both original and appellate jurisdiction. Thus the court below, not being the Supreme Court lacks jurisdiction to entertain such a matter.
When the court below ruled that it had no jurisdiction and proceeded to strike out the plaintiff’s suit, it was upon its prior holding that the instant suit was a cause or matter affecting chieftaincy. We are however, unable to agree with the learned trial judge’s ruling.
Having regard to the matters pleaded, the event that led to the institution of the suit was when the defendant caused the Registrar of the Traditional Council to issue installation notices of his installation as Abusuapanyin. In the definition set out in S.76 (supra), it is clear that only matters connected with chiefs as set out therein, may constitute “a cause or matter affecting chieftaincy”, the circumstance that robs all ordinary courts apart from the Supreme Court of jurisdiction to entertain same.
Who is a chief? A chief is defined in S. 57. (1) of the Chieftaincy Act, Act 759 as: “…a person who, hailing from the appropriate family and lineage, has been validly nominated, elected or selected and enstooled, enskinned or installed as a chief or queenmother in accordance with the relevant customary law and usage.”, see also Brobbey and Ors v Kwaku [1995-96] 1 GLR 125.
An Abusuapanyin, (a head of family) does not satisfy the said requirements and is thus not a chief. Thus, although the Abusuapanyin may be connected to a stool as appeared to obtain in the instant matter, it is the stool’s occupant who is the chief and in respect of whose office, questions and issues relating inter alia to the nomination, installation, disposition or abdication, may be raised or adjudicated upon under the Chieftaincy Act, Act 759.
In the instant matter, although the pleadings were so couched as to be very closely connected with a suit against a disputed Chief: Nana Osei Agyemang Prempe Dwamena II, and with matters of royal succession, the act complained about was that of an alleged interloper, purporting to be Abusuapanyin. Thus although mention was made of a suit against the disputed chief in the same paragraph in which the defendant’s offending act was pleaded, the suit, brought with regard to the said act was not transformed into a chieftaincy matter. In In Re: Osu Stool; Ako Nortei II (Mankralo of Osu) v Nortey Owuo III (Intervener) [2005-2006] SCGLR 628, an action that was from the outset one relating to landlord and tenant was held to not be transformed into a cause or matter affecting chieftaincy due to the mere incidence of an issue relating to chieftaincy involved therein.
Yet it is not surprising that the learned trial judge fell into this error, for it was the progression of the error of the Registrar of the Akyem Kotoku Traditional Council, who having no jurisdiction to issue notices regarding the internal workings of a family (abusua), purported to issue installation notices regarding the installation of the defendant as Abusuapanyin of the Akyem Hweakwae Royal Stool, as if same were compliant with S.62 (2) of the Chieftaincy Act.
It is provided in S62 (1) and (2) as follows:
“(1) The installation, deposition, abdication and death of a chief in a 'region as well as other changes in the status of a chief that may be prescribed by Regulations under section 71 shall as soon as practicable after their occurrence, be reported in writing to the National House by the Regional House.
(2) Despite any provision of this Act, an installation of a chief or queen mother is not valid unless, at least fourteen days before the date of the installation, public notice of it, in accordance with the custom of the area, has been given”.
The said provisions clearly relate to the office of a queen mother or chief, and the Registrar had no business availing himself to be used to issue notices in respect of the installation of the defendant as Abusuapanyin.
Nor did the solicitor of the plaintiff help matters when he couched the plaintiff’s reliefs in the following terms:
“…An order that the defendant, at the time of causing the processing and issue of the 10th January 2011 installation notice by the Registrar of the Akyem Kotoku Traditional Council, Akyem Oda, was not the legitimate Abusuapanyin of the Akyem Hweakwae Agona Royal Stool; and, an order setting aside the said installation notice for fraud, it being in contravention of the S. 62(2) of the Chieftaincy Act of 2008 (Act 759).”
In these terms the reliefs sought seem to suggest that it was because the defendant was not an Abusuapanyin at the time of the act of causing the Registrar to issue the notices of installation, that his act was wrongful. In other words, had the defendant been validly installed as Abusuapanyin, the issuing of the notices in apparent compliance with S. 62 (2) of the Chieftaincy Act, Act 759, would not have been challenged.
Thus the common error became the learned trial judge’s also when, equating the defendant’s act of causing an installation notice with regard to his alleged appointment as Abusuapanyin, with notices required to be issued upon the installation of a chief as provided under S. 62(2) of the Chieftaincy Act, Act 759, he ruled that the suit was a chieftaincy matter.
The instant suit not being a cause or matter affecting chieftaincy as defined by S 76(a-d) of the Chieftaincy Act (supra), the ruling of the learned trial judge was an error of law, and must be set aside.
The appeal is hereby allowed, and the ruling of the court below is accordingly set aside.
We make an order for the matter to be remitted to the court below for hearing.