IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
IN THE MATTER OF AN APPLICATION FOR AN ORDER OF MANDAMUS THE REPUBLIC
THE PRESIDENT, NATIONAL HOUSE OF CHIEFS, KUMASI AND THE REGISTRAR NATIONAL HOUSE OF CHIEFS, KUMASI EX PARTE; NANA AMOA VII (DECD.) AND 2 OTHERS
DATE: 16 TH OCTOBER, 2018
SUIT NO: H1/33/2018
JUDGES: ADUAMA OSEI JA (PRESIDING), DZAMEFE JA, WELBOURNE (MRS.) JA
YAHAYA ADAM BRAIMAH FOR INTERESTED PARTY APPELLANT
NO REPRESENTATIVE FOR PLAINTIFF/RESPONDENT
ADUAMA OSEI JA:A
In this judgment, the Interested Party/Appellant is referred to as “the Appellant”, and the Applicants/Respondents are referred to as “the Respondents”.
On the 12th of January, 2007, the Respondents filed a motion in the High Court, Kumasi, praying for an order of mandamus directed at the Registrar and the President of the National House of Chiefs. The order was to remove the name of Kweku Benyi also known as Nana Amoa VII from the National Register of Chiefs and to cancel an Extract from the said Register bearing serial number 952 issued to Kweku Benyi.
In the affidavit supporting the application, the Respondents described themselves as the Chief of Amosima, the Queenmother of Amosima and the Head of the Royal Ebradze No. 1 Family of Amosima repectively. The Respondents alleged in their affidavit that in 1979, the 1st Respondent had been nominated, elected and installed as Chief of Amosima. They stated that the 1st Respondent’s installation had been challenged by Kojo Adan at the Asebu Traditional Council, and that the said Kojo Adan had died while the suit was still pending. They said following the death of Kojo Adan, one Augustine Dadzie was substituted as petitioner in spite of objections raised by them regarding Augustine Dadzie’s capacity.
The Respondents said after the trial before the Judicial Committee of the Asebu Traditional Council, they successfully applied to the High Court for the judgment of the Judicial Committee to be quashed. The said judgment was quashed by Osei Hwere J, as he then was, on 3rd March, 1980. The Respondents said in spite of the fact that the judgment of the Judicial Committee had been quashed, the name of Kweku Benya was fraudulently inserted in the Register of Chiefs and an Extract from the Register was issued in respect of the insertion fraudulently procured. The serial number of the Extract was given as No. 952.
Particulars of the alleged fraud, as stated in the supporting affidavit, were that the Asebu Traditional Council had deliberately and wilfully withheld vital information from the National House of Chiefs that the 1st Respondent remained the legitimate Chief of Asebu, that approval of the Chieftaincy Declaration Forms of Kweku Benya had been given by the Research Committee of the National House of Chiefs when that Committee did not have a quorum to deal with that matter, and that the Research Committee failed to place its findings and recommendations before the Standing Committee of the House for the same to be approved by the full House for implementation as required by Articles 56 (ii) and 53 (iv) of the Standing Orders of the National House of Chiefs.
The Respondents stated that they had brought the fraud and illegalities concerning the insertion of Kweku Benya’s name in the Register of Chiefs to the attention of the National House of Chiefs through its appropriate officers and had demanded the cancellation of the said insertion but the National House of Chiefs had refused to remove the insertion and cancel the fraudulent Extract. The Respondents contended that the National House of Chiefs are under a duty and are mandated by law to remove the insertion and cancel the fraudulent Extract.
In his affidavit opposing the Respondents’ application, the Appellant denied that the 1st and 2nd Respondents were the Odikro and Queenmother respectively of Amosima. He contended that while the 3rd Respondent may be the Head of the Respondents’ Family, he is not the Head of the Royal Odikro Stool Family of Amosima. The Appellant denied the claim by the Respondents that the 1st Respondent had been nominated, elected and installed as Chief of Amosima and contended that at all material times, his predecessor, Nana Amoa VI alias Kojo Adan, was the substantive occupant of the Odikro Stool of Amosima. He contended that in the circumstance, any purported nomination of the 1st Respondent was a nullity.
The Appellant also contended that he had been duly gazetted as Chief and denied that the Research Committee of the National House of Chiefs purported to approve his Chieftaincy Declaration Forms when it did not have a quorum to transact business. The Appellant denied all allegations of fraud and also contended that there is no provision in the applicable Standing Orders which requires that decisions of the committees should go to the Standing Committee of the House for approval. The Appellant also contended that the case brought by the Respondents was a cause or matter affecting chieftaincy and that if the Respondents were desirous of pursuing it, they were free to institute proceedings before the Asebu Traditional Council.
In their affidavit in opposition, the National House of Chiefs stated that so far as the matter was about the issuance of the Extract, reliance was placed on the judgment of the Judicial Committee of the Asebu Traditional Council. The National House of Chiefs also admitted the Respondents’ allegation that the Research Committee did not form a quorum and was therefore not in a position to transact the day’s business of approving Chieftaincy Declaration Forms. The House however explained that the meeting was re-scheduled to the subsequent day, 14th March, 1984, when a quorum was formed. The House therefore considered it a gross misrepresentation for the Respondents to contend that the Research Committee acted when it did not have a quorum. The National House of Chiefs also denied the Respondents’ allegation that by the Standing Orders of the House, the Research Committee was obliged to place their findings before the Standing Committee of the House, and ultimately for the approval of the full House. The National House stated that at the material time, the 1977 Standing Orders were the applicable Orders and by rule 56 thereof, there was a Registration Committee, whose functions did not include placement of findings and recommendations before the Standing Committee for approval by the full House for implementation. Rather, the Registration Committee was mandated to study Chieftaincy Division (Declaration) Forms for enstoolments, destoolments, abdications and deaths of chiefs submitted from the Regional Houses of Chiefs, and to approve transmission to the Commissioner for Chieftaincy Affairs for publication in the Local Government Bulletin.
The House of Chiefs also admitted that it had refused to expunge Kweku Benyi’s name from the National Register of Chiefs, and that the refusal to expunge was in spite of allegations of illegalities and fraud made in respect of the insertion. The House however contended that the matter touches on a cause or matter affecting chieftaincy and that the High Court lacked jurisdiction to hear it.
In its ruling dated the 26th of October, 2007, the trial Court upheld the Respondents’ application and ordered the National House of Chiefs to remove the name of the Appellant from the Register of Chiefs. The Appellant is however dissatisfied with the decision of the High Court and he has appealed against the same to this Court.
By the Notice of Appeal, the grounds on which the Appellant has appealed are:
“a. That the ruling of the Court is against the weight of affidavit evidence adduced at the trial.
“b. That the learned trial Judge erred in law in relying on affidavit evidence and not viva voce evidence to establish the alleged fraud.
“c. That the learned trial Judge erred in law in preferring the purported report of the Registrar of the Central Region House of Chiefs on purely legal matters to the letter written by the Counsel for the Central Region House of Chiefs on the instructions of the House nullifying the contents of the said purported report.
“d. That the learned trial Judge erred in law in relying on a purported ruling of the High Court, Cape Coast which had not been certified.
“e. That the learned trial Judge failed to fully appreciate and/or consider the case of the Respondents and the Interested Party with regard to which of the Standing Orders of the National House of Chiefs was applicable for the instant suit as well as the issues as to which of the Committees of the National House was clothed with capacity to deal with Chieftaincy Declaration Forms in the instant case.
“f. That the learned trial Judge erred in not finding that the issue was one of a cause or matter affecting chieftaincy”.
It was indicated on the Notice of Appeal that other grounds would be filed later and indeed, on the 21st of January, 2008, the Appellant filed the following additional grounds:
“1. That the learned trial judge erred in not finding that the insertion of a name in the register of chiefs in pursuance of sections 48(2) and 50(29) of Act 370 namely entering the name of chiefs in the register and recording such particulars is discretionary and administrative and not judicial and therefore that such acts were not amenable to the writ of certiorari.
“2. That the quantum of cost awarded is harsh and excessive”.
The ruling appealed from is at page 228 to page 243 of the Appeal Record, and the Notice of Appeal is at pages 244 and 245 of the same record. The additional grounds of appeal are at page 258 of the Record of Appeal.
In his filed submissions, Counsel for the Appellant argued grounds (a) and (b) together, grounds (c) and (d) together and grounds (e) and (f) separately. Grounds (g) and (h) were also argued together.
Grounds (c) and (d) contend that in preferring the report of the Registrar of the Central Regional House of Chiefs to the letter written by Counsel for the said House, and also in relying on a ruling of the High Court, Cape Coast, which had not been certified, the trial Court erred in law. In his submissions on these combined grounds, Counsel for the Appellant noted that the Respondents could not produce a certified true copy of the judgment of the High Court, Cape Coast, yet the trial Court placed much emphasis on the said judgment. Counsel submitted that as a general principle, only the original is admissible to establish a written document. In support of this submission, he referred to sections 116-176 of the Evidence Act, NRCD 323. Counsel explained that a copy of a document is not admissible where a genuine issue of authenticity is raised, such as where forgery is alleged and proved, or where it would be unfair to admit the copy.
Counsel contended that the onus was on a person relying on a judgment to found a plea of estoppel per rem judicatam to prove that the judgment was given by a court of competent jurisdiction and that the judgment was still subsisting. In his view, it is by producing and tendering a certified true copy of the judgment that such onus would be discharged. In the present case, however, the Respondents produced as evidence a judgment so-called which had not been signed and which had not been certified as a true copy of the judgment in issue. In the view of Counsel, in situations where the evidence produced by the plaintiff is unsatisfactory, the judgment should be in the defendant’s favour for the reason that it is the plaintiff who seeks relief but has failed to prove what he claims. Counsel argued that in the present case, the Respondents’ case was not helped by their getting the Registrar of the High Court to file an affidavit saying that he could not locate the judgment in issue. Counsel submitted that inability to locate the judgment provided no basis for placing any weight on an uncertified document presented as a judgment of the Court.
In his further submissions on the combined grounds (c) and (d), Counsel for the Appellant contended that the report dated 10th March, 1982 from the Senior Regional Registrar of the Central Regional House of Chiefs which the trial Court laid emphasis on did not qualify to be a representation of the Regional House of Chiefs. Counsel noted that looking at the substance of the report, the Registrar was only expressing a personal opinion on the matter in issue, and not the position of the Regional House.
Ground (e) of the appeal contends that the learned trial Judge failed to fully appreciate and/or consider the case of the Respondents and the Appellant with regard to which of the Standing Orders of the National House of Chiefs was applicable to the present case, as well as the issue as to which of the Committees of the National House of Chiefs was clothed with capacity to deal with the Chieftaincy Declaration Forms in the present case.
In arguing this ground, Counsel for the Appellant observed that the trial Court’s contention that there had been a serious violation of the Standing Orders regarding the approval of the Chieftaincy Declaration Forms by the Registration Committee was because the trial Court did not critically examine the minutes of the Research Committee marked as Exhibit A. Counsel noted that the said minutes indicated that some members had been co-opted into the Committee to form a quorum and it was after the co-option that the Committee went ahead to approve the Chieftaincy Declaration Forms.
Counsel also made the point that at the time material to the matter in issue herein, the House was operating under the 1977 Standing Orders which spelt out, under its Order 56, the functions of the Registration Committee. Counsel explained that the functions of the Registration Committee were taken over by the Research Committee following the amendment of the 1977 Standing Orders. Applying the 1977 Standing Orders, in the view of Counsel, would show that there had been no violation of their provisions in terms of the vetting, approval and insertion of the name of the Appellant in the Register of Chiefs.
Ground (f) contends that the learned trial Judge erred in not finding that the matter before it was a cause or matter affecting chieftaincy. In arguing this ground, Counsel expressed the view that to determine whether a particular case is a cause or matter affection chieftaincy, a guiding step is to consider whether the grant or refusal of the relief sought will directly lead to the conclusion that the chief has been destooled or enstooled, deskinned or enskinned. Counsel contended that the grant of the application herein automatically destooled the Appellant as Chief of Amosima and this is a clear indication that the case was a cause or matter affecting chieftaincy. In the view of Counsel, a reading of the affidavit, particularly paragraphs 5, 6 and 13 thereof, shows that the Respondents were raising issues affecting chieftaincy. From the ruling of the trial Court also, there was every indication that it was a cause or matter affecting chieftaincy that was being heard.
The combined grounds (a) and (b) contended that the ruling of the trial Court is against the weight of affidavit evidence and that the trial Court erred in relying on affidavit evidence and not viva voce evidence to establish the fraud alleged by the Respondents. In support of these combined grounds, Counsel for the Appellant observed that with certain proceedings, particularly proceedings involving or based on allegations of fraud, the issuance of writs is necessary. In the view of Counsel, affidavit evidence without viva voce evidence is inadequate where fraud has been pleaded. Counsel submitted that the failure of the trial Court to order viva voce evidence occasioned a grave miscarriage of justice in the present case.
Under the combined grounds (g) and (h), the Appellant contends that entering the names of chiefs in the register of chiefs and receiving particulars of chiefs are not judicial acts. The trial Court therefore erred in not finding that the acts complained about by the Respondents in the application were not amenable to a writ of certiorari. The costs awarded were also harsh and excessive, and the trial Court erred in imposing such costs. In his arguments in support of these combined grounds, Counsel for the Appellant submitted that discretionary and administrative acts do not constitute adjudications. They are not occasioned by any procedural irregularity and are therefore not amenable to an order of certiorari. Counsel cited a number of Supreme Court decisions including the case of Republic Vs. National House of Chiefs; Ex Parte Akrofa Krukoko II (Enimil VI Intersted Party) [2007-2008] 1 SCGLR 173 (177), which he contended supported his submission.
Responding to the submissions of Counsel for the Appellant, Counsel for the Respondents contended that the additional grounds argued on behalf of the Appellant were not properly before this Court. In his view, the said grounds were argued without compliance with rule 8(7) of the Rules of this Court, CI. 19.
Counsel submitted that even if the arguments on those grounds were admitted by the Court in spite of rule 8(7), they would still have to be dismissed as misconceived grounds. In arguing additional ground (1), Counsel for the Appellant had contended that the acts of the National House of Chiefs complained of by the Respondents were discretionary and administrative and were not amenable to the writ of certiorari. Counsel for the Respondents however countered that in so arguing, Counsel for the Appellant had misconceived and misconstrued the law. Counsel pointed out that the Respondent’s application was for an order of mandamus and not certiorari, and it was misleading for Counsel for the Appellant to portray it as an application for certiorari. Counsel observed that at all times material to the matters in issue herein, the Chieftaincy Act, 1971 (Act 370) was in force, and by its section 50(1) and (2), the National House of Chiefs was mandated to maintain a national register of chiefs and cause to be recorded therein particulars of changes in the status of chiefs or persons whose names appear in the register. Counsel said this could be the death of a chief, the destoolment or installation of a chief, or some other occurrence affecting the status of a chief. Counsel noted that this duty had been imposed by statute and he contended that it was a public duty. In his view, any person whose interest was affected by the refusal of the House to perform that duty was entitled to bring an application for mandamus in the High Court to compel compliance. Counsel observed that the Appellant did not put it correctly when he submitted that maintaining the Register and making recordings therein are discretionary and are not amenable to a writ of certiorari. Counsel submitted that the proper and true position is that maintaining the register and processing and approving chieftaincy declaration forms are a legal duty, albeit an administrative function. Counsel argued that, being an administrative duty, it is amenable to an order of mandamus. In the view of Counsel, this position is supported by the Supreme Court case of In re Oguaa Paramount Stool; Garbrah & Others Vs. Central Regional House of Chiefs & Haizel [2005-2006] SCGLR 193.
On the contention on behalf of the Appellant that the costs awarded were harsh and excessive, Counsel for the Respondents submitted that the award of costs is discretionary and within the purview of the trial Court. Its award depends on the facts and circumstances of the particular case. In his view, considering the facts and circumstances of the present case, the costs of GH¢25,000.00 awarded by the trial Court were rather on the low side and deserve enhancement.
On the original ground (a) which contends that the ruling of the trial Court is against the weight of affidavit evidence adduced at the trial, Counsel observed that to say that a judgment is against the weight of evidence implies that there is on the face of the judgment, some error of law or facts or both. In the view of Counsel, in either case, the Appellant is presumed to be saying that the trial Court applied the wrong principle of law to the facts of the case or that the findings of the Court were not supportable by the evidence. Counsel however observed that the making of primary findings of fact is the prerogative of the trial Court and where on the evidence, the findings are supportable, it is not open to the appellate court to disturb them. Counsel contended that an applicant who calls upon the appellate court to disturb the trial court’s findings of fact bears a duty to show clearly where the trial court went wrong or where it failed to take into consideration all the circumstances and the evidence or where inferences had been drawn without evidential support. In Counsel’s view, the Appellant had not discharged this duty in the present case.
Counsel for the Respondents reviewed authorities like Republic Vs. Chieftaincy Secretariat & Another; Ex Parte Adansi Traditional Council  GLR 736, In re a Complaint to Police by Botwe and Mensah and In re an Application for Mandamus  GLR 457, The Republic Vs. Lands Commission; Ex Parte Vanderpuye Orgle Estates Limited [1998-99] SCGLR 677, and submitted that, applying the facts of the present case to the law, the trial Court acted right in granting the Respondents’ application.
In response to the Appellant’s contention that this case is a cause or matter affecting chieftaincy, Counsel for the Respondents cited authorities like In Re Oguaa Paramount Stool; Garbrah & Others Vs. Central Regional House of Chiefs & Haizel (supra), Amoa Vs. Central Regional House of Chiefs [2003-2005] 1 GLR 577 and R Vs. National House of Chiefs [2007-2008] 1 SCGLR 1. Counsel submitted that in the face of these authorities, the Appellant could not say that the present case is a cause or matter affecting chieftaincy.
Counsel for the Respondents also rejected the submissions made on behalf of the Appellant that the trial court erred in relying on affidavit evidence to establish fraud. Referring to the case of Frimpong Vs. Nyarko [1998-99] SCGLR 734, Counsel observed that where in the course of its proceedings, a court of law has cause to believe that fraud has been committed, it is duty-bound to quash whatever has issued out of the fraud. Counsel contended that applications under Order 55, rule 1 of CI. 47 fall within the category of proceedings in the course of which a court may feel obliged to quash an act or deed because it has cause to believe that fraud has been committed.
In the view of Counsel, even though traditionally an allegation of fraud ought to be initiated by a writ of summons and particulars thereof pleaded, the rule is not an inflexible one. Counsel considered that where fraud is obvious on the face of the record or the evidence led, the courts would make appropriate orders. Counsel submitted that it is the duty of a court of competent jurisdiction to do substantial justice in a matter. In his view, all modern notions of justice require that a court of law should do substantial justice unhampered by technicalities. Counsel contended that since fraud was obvious on the record, the trial Court did not err in proceeding without taking oral evidence or directing the issuance of a writ of summons.
In response to the Appellant’s contention that the trial Court erred in relying on a ruling of the High Court which had not been certified, Counsel for the Respondents noted that there is sufficient evidence on record, which the Appellant does not deny, showing that the Cape Coast High Court gave a ruling, and that on the day the ruling was read, all the parties in the case were present with their lawyers, and further that the 1st Respondent initiated a process in the High Court at Cape Coast to have the judgment of the Judicial Committee of the Asebu Traditional Council removed to the High Court for same to be quashed by certiorari. Counsel noted that the only complaint of the Appellant is that the ruling had not been certified. But Counsel contended that in the absence of denials of the material facts concerning the ruling, the Respondents carried no further burden to prove them. His submission was that where a party has given material evidence or averred material facts which are not denied, that party carries no burden to prove it.
In countering the contention by the Appellant that the trial Court failed to consider the Appellant’s case as to which Standing Orders applied to the case, Counsel noted that the Standing Orders in force at the time material to the case were those of 1977. Counsel then proceeded to point out what he considered to be infractions of the provisions of the Standing Orders and submitted that they constituted procedural improprieties which rendered invalid on ground of jurisdiction, what the Research Committee purported to do. In conclusion, Counsel submitted that the appeal is unmeritorious and ought to be dismissed.
From the submissions filed by Counsel for the parties, the main issues raised in this appeal are whether the additional grounds argued on behalf of the Appellant are properly before this Court, whether this matter is a cause or matter affecting chieftaincy and is therefore outside the jurisdiction of the High Court, whether the Standing Committee had a quorum when it approved the Chieftaincy Declaration Forms of the Appellant, whether in view of the allegation of fraud made by the Respondents, the trial Court ought to have insisted on the Respondents producing viva voce evidence and not affidavit evidence, whether the conduct of the National House of Chiefs complained about in this case is amenable to mandamus.
Rule 8(8) of the Rules of this Court, CI. 19, provides that an appellant “shall not, without leave of the Court, argue or be heard in support of a ground of objection not mentioned in the notice of appeal, but the Court may allow the appellant to amend the grounds of appeal on the terms that the Court thinks just”. In respect of this rule, this Court has on several occasions cautioned parties against taking for granted the leave which an appellant must obtain to be able to urge on the Court a ground of objection not mentioned in the notice of appeal. On a few occasions, this Court has resorted to rule 63 of its rules to admit arguments filed in contravention of rule 8(8). However, in the recent case of P.K. Owusu Trading and Construction Vs. Ejisu-Juaben District Assembly, Civil Appeal No. H1/69/2017, unreported, dated the 23rd of July, 2018, this Court refused to resort to rule 63 and rejected the 8 additional grounds which had been argued without leave.
In Civil Appeal No. H1/69/2017, this Court decided against applying rule 63 for the reason that the other party had not had the opportunity of responding to the offending grounds. In another case, Kumasi Metropolitan Assembly Vs. Peter Osei Assibey and Another, Civil Appeal No. H1/66/2012, unreported dated 27th February 2018, the Court applied rule 63 and admitted the grounds argued without leave because it was considered that the other party had had the opportunity of reacting to them. We should however not be seen to be laying down a principle that whenever the non-compliant party manages to draw his adversary into responding to his offending grounds, rule 63 must necessarily be applied. The rules of the Court exist to regulate its procedures and proceedings to guide it towards its end of attaining substantial justice. The rules cannot effectively perform this function if they are so applied as to leave procedures and proceedings in a state of uncertainty. The rules are meant to be acknowledged and observed; not to be undermined and crippled. And we think we will be abusing rule 63 if we apply it in circumstances that subvert the purpose of rule 8(8) or any other rule of the Court. The Court finds no cause to waive the Appellant’s non-compliance in the present case, and rule 63 will not be applied. The arguments advanced in respect of the additional grounds therefore remain incompetent, and they will not be considered in this judgment.
The issue whether this case is a cause or matter affecting chieftaincy takes us to section 66 of the repealed Chieftaincy Act, 1971 (Act 370), which was the statute on chieftaincy in force at the times material to this case. That section defined “a cause or matter affecting chieftaincy” as any cause, matter, question or dispute relating to
“(a) the nomination, election, appointment or installation of any person as a Chief or the claim of any person to be nominated, elected, appointed or installed as a Chief;
“(b) the destoolment or abdication of any Chief;
“(c) the right of any person to take part in the nomination, election, appointment or installation of any person as a Chief or in the destoolment of any Chief;
“(d) the recovery or delivery of stool property in connection with any such nomination, election, appointment, installation, destoolment or abdication;
“(e) the constitutional relations under customary law between Chiefs”.
In the case of In Re Oguaa Paramount Stool; Garbrah and Others Vs. Central Regional House of Chiefs and Haizel (supra), cited by Counsel for both parties, the Supreme Court held that even though the complaint of a party regarding the propriety of the transmission of Chieftaincy Declaration Forms by the Central Regional House of Chiefs to the National House of Chiefs related to a chief and bore upon the formalities for the public acknowledgment of a chief, it did not constitute a “cause or matter affecting chieftaincy” within the meaning of section 66 of Act 370.The explanation was that the complaint did not raise an actual challenge to the nomination, election, appointment or installation of a person as a chief or his or her destoolment or the right of participation in such decision-making or ceremony. Sophia Akuffo JSC, as she then was, emphasised at page 200 of the Report that the definition of “cause or matter affecting chieftaincy” cannot “by any stretch of the imagination be extended to include the administrative act of removing a name from the National Register of Chiefs”. As Her Ladyship observed, “the mere fact that a matter concerns a chief, or collaterally concerns his recorded status as a chief, does not of itself qualify it as a cause or matter affecting chieftaincy”.
On this question of cause or matter effecting chieftaincy, I consider the case of Republic Vs. National House of Chiefs; Ex Parte Akrofa Krukoko II (Enimil VI Interested Party) [2007-2008] SCGLR 173, worth discussing. In that case, Nana Akrofa Krukoko II, the Paramount Chief of the Wassa Traditional Area had been convicted and sentenced to 14 days’ imprisonment for contempt of court. Following his conviction, another person, Osagyefo Enimil VI had been nominated and enstooled as the paramount chief of the same area in place of Nana Krukoko on the grounds that Nana Krukoko’s conviction and imprisonment amounted to customary destoolment. This was followed by the insertion of the name of Osagyefo Enimil in the National Register of Chiefs as the paramount chief. About 10 months thereafter, the conviction and sentence of Nana Krukoko was set aside by this Court on appeal and, following this, Nana Krukoko applied to the National House of Chiefs to restore his name and particulars to the National Register of Chiefs on the grounds, among others, that the conviction upon which the purported destoolment was based had been quashed and set aside. When the National House of Chiefs failed to comply with his request, Nana Krukoko applied to the High Court for an order of mandamus to compel the National House of Chiefs to delete from the National Register of Chiefs the name and particulars of Osagyefo Enimil VI as Paramount Chief of the Wassa Fiase Traditional Area, and reinstate the name and particulars of Nana Krukoko as the paramount chief of the same area.
Osagyefo Enimil however raised a preliminary objection to the application on ground of want of jurisdiction. The preliminary objection was dismissed by the trial High Court and Osagyefo Enimil appealed to this Court, which reversed the ruling of the trial High Court on the ground that the application for leave for order of mandamus made to the High Court constituted a cause or matter affecting chieftaincy for which the High Court lacked jurisdiction. Nana Krukoko appealed to the Supreme Court against the decision of this Court and the appeal was unanimously allowed by the Supreme Court. The Supreme Court expressed as settled law the position that entries made in or deleted from the National Register of Chiefs do not constitute adjudication or determination as to who is a chief or who is not. The Supreme Court considered this a purely administrative act.
Since the issue as to whether this case is a cause or matter affecting chieftaincy was raised as a challenge to the jurisdiction of the trial Court, I think it is also important to recall the fundamental principle as stated in Izenkwe v. Nnadozie (1953) 14 W.A.C.A. 361 at p. 363, that “jurisdiction is determined by the plaintiff's demand and not by a defendant's answer”. The defendant’s answer only disputes the existence of the claim, but does not alter or affect its nature. In the present case therefore, on the question whether the trial Court had jurisdiction to entertain the application, attention ought to be focused more on the Respondents’ application than the Appellant’s response to it.
I have read closely the motion paper and the affidavits filed in the Court below by the parties and I do not find any cause to hold that the matter which the Respondents placed before the trial Court in their application is a cause or matter affecting chieftaincy. There is no doubt that the matter placed before the trial Court concerned the status of Kweku Benyi as a chief. I do not however find the Respondents seeking from the trial Court any relief that required that Court to go into the nomination, election or installation of the said Kweku Benyi. What the Respondents asked the trial Court to do was to determine whether the Chieftaincy Declaration Forms on which the insertion of Kweku Benyi’s name in the register of chiefs was based were validly approved and if they were not, whether the National House of Chiefs owed a public duty to remove the insertion. To decide whether or not to grant the Respondents’ relief, the trial Court did not have to resolve any claims regarding the nomination, election, appointment or installation of Kweku Benyi or any other person as a Chief or the claim of Kweku Benyi or any other person to be nominated, elected, appointed or installed as a Chief. Indeed, in the affidavit supporting their application, the Respondents were emphatic that they were not seeking a determination between Kweku Benyi and the 1st Respondent as to who is the legitimate Chief of Amosima.
I also think that the Supreme Court’s decision in the Nana Krukoko case (supra) compels a conclusion that the matter the Respondents placed before the trial Court in the present case was not a cause or matter affecting chieftaincy, and that the trial Court had jurisdiction to hear it. As noted from the case of Izenkwe v. Nnadozie (supra), “jurisdiction is determined by the plaintiff's demand and not by a defendant's answer”. And a reading of the reliefs indorsed on the Respondents’ motion paper in the present case shows that the reliefs claimed by them are identical with those claimed by Nana Krukoko. If in the Nana Krukoko case the Supreme Court overruled this Court in its decision that Nana Krukoko was pursuing a cause or matter affecting chieftaincy, we can find no good ground in the present case to hold that the case submitted to the trial Court by the Respondents is a cause or matter affecting chieftaincy.
But having regard to the facts on record, in hearing the matter, was the trial Court justified in making an order of mandamus? Section 16 of the Courts Act, 1993 (Act 459) confers on the High Court supervisory jurisdiction over “all lower courts and any lower adjudicating authority”, and mandamus is among the orders which the High Court may issue in exercise of that jurisdiction. It is issued in the form of an order from a superior court to a subordinate court, corporation or public authority or body, to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain from doing), and which is in the nature of a public duty.
It is normally issued when an officer or an authority by compulsion of statute is required to perform a duty and that duty, despite demand in writing, has not been performed. The applicant for mandamus must satisfy the Court that he has the legal right to the performance of the legal duty as distinct from mere discretion of authority. It is an equitable remedy and granting it is a matter for the discretion of the court. The exercise of the discretion however follows well-settled principles.
In the present case, Counsel for the Appellant has observed that the issues raised are in respect of entering the names of chiefs in the register of chiefs and recording in the register the particulars that go with that position. In his view, that task is discretionary and administrative and not judicial and it is “not amenable to the Writ of Certiorari”. Having regard to the specific subject being considered here, I read “not amenable to the Writ of Certiorari” as “not amenable to the writ of mandamus”. He considers that the acts put in issue in the present case do not constitute adjudications in the sense of determining who is a chief or who is not a chief, but are purely administrative acts. Indeed, in the Nana Krukoko case (supra), the Supreme Court acknowledged that entries made in or deleted from the National Register of Chiefs are a purely administrative act and do not constitute adjudication or determination of who is a chief or who is not. But is it being contended that the writ of mandamus may not be issued in respect of purely administrative acts?
The order of mandamus is now called a “mandatory order” in England and regarding its purpose, Halsbury’s Laws of England, Fourth Edition, 2001 Reissue, Volume 1(1) states in paragraph 133, that “… in modern times, the purpose of a mandatory order is to compel the performance of a public duty, whether of an inferior court or tribunal to exercise its jurisdiction, or that of an administrative body to fulfil the obligation cast upon it”. It is appreciated from a reading of the paragraphs in Halsbury (supra) on public bodies and officers, persons amenable to judicial review, and public duties and government officials, that a duty is a public duty when its performance is “for the benefit of the public and not for private profit”, and that when the source of a body’s power is a statute or subsidiary legislation, that body is usually amenable to judicial review. It is also appreciated that if public officials or public bodies fail to perform any public duty with which they have been charged, a mandatory order may be made to compel them to carry it out.
It is to be noted further that acts or duties that may be described as “purely administrative” are ministerial; and ministerial acts or duties are not insulated from the writ of mandamus. Indeed, in the case of Wilbur Vs. United States, 1929, 281 US, 206 (1930), the United States Supreme Court, per Justice Van Devanter, underscored as the chief use of mandamus, the compelling of the performance, when refused, of a ministerial duty. The Court emphasised that “(w)here the duty in a particular situation is so plainly prescribed as to be free from doubt and equivalent to a positive command, it is regarded as being so far ministerial that its performance may be compelled by mandamus”. Also, in the case of State Vs. Ellis, 77 N.W. 2d 809 (1956) 163 Neb. 86, the Supreme Court of the State of Nebraska explained that an official duty is a ministerial duty “when it is absolute, certain, and imperative, involving merely execution of a specific duty arising from fixed and designated facts”.
To my mind, therefore, in the present case, what to look for in respect of the duty the Respondents were calling upon the National House of Chiefs to perform is not its character as a judicial, quasi-judicial or purely administrative duty; it is its character as a public duty plainly prescribed and free from doubt as to what it calls for. So, how does Act 370, the statute on chieftaincy in force at the times material to the Respondents’ application, prescribe the duty the subject of the application?
The Respondents’ motion paper was indorsed for the issuance of an order of mandamus to compel the National House of Chiefs to expunge from the National Register of Chiefs the name of Kweku Benyi and to cancel an extract bearing serial number 952 relating to the said Kweku Benyi. The duties of the National House of Chiefs relating to the National Register of Chiefs are set out under section 50 of Act 370, which is quoted hereunder:
“Section 50—National Register of Chiefs.
“(1) The National House of Chiefs shall maintain a register to be known as "the National Register of Chiefs", in this Part referred to as "the Register".
“(2) The National House of Chiefs shall cause to be recorded on the Register such particulars relating to chieftaincy as it may think fit or as may be required by this Act or any other enactment to be recorded thereon.
“(3) The Minister or any person authorised by him in writing may request to be supplied with a copy of the Register or an extract thereof and upon such request the National House of Chiefs shall cause to be supplied accordingly a copy of the Register or an extract thereof, in each case duly certified to be true by the Registrar or a public officer authorised in writing by him.
“(4) The Minister may also request such other information in connection with the maintenance of the Register as may be necessary for the due administration of this Act and the National House of Chiefs shall comply with such request.
“(5) The Minister or any public officer authorised by him in writing may at any reasonable time, enter the premises where the Register is kept and take extracts thereof.
“(6) Any other person shall, upon the payment of the fee prescribed in that behalf by regulations made under section 62 of this Act, be entitled—
(a) at any reasonable time, to enter the premises where the Register is kept and inspect the Register,
(b) to have supplied to him an extract of the contents of the Register or any part thereof duly certified by the Registrar or by any public officer authorised by him in writing to be true.
“(7) Any person aggrieved by the refusal by the National House of Chiefs to register him as a Chief may within thirty days after the decision appeal against the decision to the Supreme Court.
“(8) The contents of the Register shall be prima facie evidence of the existence of any facts or particulars stated therein.
“(9) In any legal proceedings the contents of the Register or any part thereof may be proved by a copy thereof duly certified under the hand of the Registrar to the National House of Chiefs or any public officer authorised by him in writing to be a true copy of the contents or of that part”.
Reading section 50 of Act 370 leaves me in no doubt that the National House of Chiefs is entrusted with duties in respect of the maintenance of a National Register of Chiefs. The duties are specific and plainly prescribed, and it is clear from sub-section (1) of the section that as far as maintenance of the Register is concerned, performance is obligatory. It is also clear from sub-sections (6), (7) and (8) of the section that the statute recognises the interest of persons other than the National House of Chiefs in the performance of the duty. It is not for the private benefit of the National House of Chiefs, but for the benefit of the public generally, who are given the right to inspect the Register or have extracts of the contents made for them, and to seek relief if they feel aggrieved by its contents. Not to be overlooked, is the fact that the source of the duty imposed is a statute. The duty is therefore, without doubt, a public duty and, having regard to the purpose the writ of mandamus serves, I am of the view that the duty is amenable to an order of mandamus.
The issue to consider now is whether in the particular case of the Respondents, the issuance of the order by the trial Court has reasonable support from the record. Reading the affidavits filed by the parties, I find paragraph 6 of the Respondents’ affidavit and paragraph 7 of the Appellant’s affidavit significant. In paragraph 6 of the Respondents’ affidavit, there is the allegation that Kojo Adan took an action at the Asebu Traditional Counsel to challenge the nomination and installation of the 1st Respondent as the Chief of Amosima. This allegation is admitted by the Appellant in paragraph 7 of his affidavit without making any exception or qualification. What this unqualified admission suggests is that indeed, the 1st Respondent was installed as Chief of Amosima, and Kojo Adan instituted an action to have the installation declared invalid.
It is also clear from paragraphs 7 and 8 of the supporting affidavit and paragraph 8 of the Appellant’s affidavit that Kojo Adan died before his suit could be determined. This means that at the date of Kojo Adan’s demise, the 1st Respondent’s installation had not been invalidated, and he remained the occupant of the Amosima Stool, even though the validity of that occupancy was being challenged. But it is gathered from paragraphs 8-12a of the supporting affidavit and paragraphs 8 and 9 of the Appellant’s affidavit that the Appellant was substituted for Kojo Adan in the Asebu Traditional Council suit and that judgment was entered in favour of the Appellant in the said suit. It is also alleged that the judgment of the Asebu Traditional Council was quashed by the High Court by certiorari.
If the judgment of the Asebu Traditional Council was indeed quashed, its effect would be that the 1st Respondent remained the occupant of the Amosima Stool. And it is here that the controversy lies. While the Respondents insist that the judgment of the Judicial Committee of the Asebu Traditional Council had been quashed, the Appellant is saying that the document exhibited to prove that the judgment of the Asebu Traditional Council had been quashed had not been certified as a true copy of the ruling and therefore that the judgment of the Traditional Council remained valid. But however it happened, Kweku Benyi was able to have his name inserted in the National Register of Chiefs as the Chief of Amosima and the Respondents are alleging that the insertion was fraudulently procured. It is for the reversal of this insertion that the Respondents have applied for a writ of mandamus to issue.
As noted above, the trial Court upheld the Respondents’ application and ordered the issuance of mandamus. The trial Court concluded that the Respondents were entitled to the writ of mandamus for the reason that the National House of Chiefs had not followed the proper procedure in approving the Chieftaincy Declaration Forms of Kweku Benyi, that having regard to the allegations contained in the supporting affidavit concerning the ruling of the High Court which allegedly quashed the judgment of the Asebu Traditional Council and the Appellant’s and the National House of Chiefs’ reaction to the said allegations, the Appellant and the Respondent are deemed to have admitted the existence of that ruling, and that the insertion of the Appellant’s name in the Register had been fraudulently procured.
I am cognizant of the Appellant’s objections that in issuing the order, the trial Court relied on affidavit evidence when it should have ordered the adduction of viva voce evidence to make cross-examination possible, that the trial Court relied on an uncertified ruling of the High Court, and that the Standing Orders by which the trial Court determined that the National House was not clothed with capacity to deal with Nana Benyi’s Chieftaincy Application Forms were not the applicable Standing Orders.
In reviewing the record, I have paid particular attention to Exhibits JKA, JKA.1-JKA.3, JKA.5-JKA.7, and JKA.9. I have also paid similar attention to Exhibits 1-4 and A, and my inclination is to agree with the trial Court on its conclusions. In my view, the evidence establishes the existence of procedural irregularities regarding the approval of the Chieftaincy Declaration Forms of Kweku Benyi, and I also find, having regard to the matters deposed to in the affidavits before the trial Court, that the Respondents did not need to establish fraud in order to succeed in their application. As the trial Court rightly observed in its ruling, even if the insertion of the Appellant’s name was done inadvertently or negligently, and not fraudulently, the mistake made in inserting the name had to be rectified and mandamus was available to the Respondents when they made a request for rectification and their request was refused or ignored.
And what about the Appellant’s objection to the exhibition of Exhibit JKA. 3 by the Respondents in their application? I should observe here that I find a certain lack of candour on the part of the Appellant in his reaction to paragraphs 11 and 12 of the supporting affidavit following which the said exhibit was introduced. In paragraph 11 of their affidavit, the Respondents alleged that they sought an order of certiorari in the High Court to quash the judgment of the Judicial Committee of the Asebu Traditional Council, and in paragraph 12, they alleged that the certiorari application was successful and that the said judgment was quashed by Osei-Hwere J, as he then was. The certiorari application was in respect of a judgment obtained by the Appellant in the Judicial Committee of the Asebu Traditional Council. Whether or not as a matter of fact the application was filed and whether or not as a matter of fact the application was granted are therefore matters which the Appellant should be in a position to admit or deny. Curiously however, the Appellant side-stepped those allegations and chose, rather, to address the probative value of Exhibit 3 in paragraph 12 of his affidavit in opposition. If it was admitted that an application for certiorari had been filed in respect of the judgment obtained by the Appellant and that the application had been granted, the Respondents did not need to produce any proof. Proof would become necessary only if it was denied that the events alleged had not occurred. But the Appellant did not deny the occurrence of those events. So how does it matter whether Exhibit 3 is certified or not? I agree with the trial Court that the Appellant is deemed to have admitted the allegations sub silentio and attacking the probative value of Exhibit 3 is therefore futile.
In conclusion, after a careful review of the record, I am unable to attach any merit to this appeal and the same is accordingly dismissed.
K. N. ADUAMA OSEI
[JUSTICE OF APPEAL]
I AGREE SENYO DZAMEFE
[JUSTICE OF APPEAL]
I ALSO AGREE MARGARET WELBOURNE (MRS.)
[JUSTICE OF APPEAL]