IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
NANA K. KWEI - (Appellant)
AMEYAW YEBOAH OF SAKAA & ANOR - (Respondent)
DATE: 28TH NOVEMBER, 2018
SUIT NO: H1/21/2018
JUDGES: MARIAMA OWUSU J.A. (PRESIDING), HENRY A. KWOFIE J. A., AMMA GAISIE (MRS) J. A.
ALFRED TUAH-YEBOAH FOR APPELLANT
MATHEW APPIAH FOR RESPONDENTS
MARIAMA OWUSU, JA
On 10th December, 2013, the High Court, Sunyani, dismissed the plaintiff’s suit against the defendants. In its ruling the court held that:
“I have carefully read the pleadings so far filed in this suit. It is my view that, before I decide the central issue in the suit, namely whether or not the plaintiff as Kontihene and overall head is the owner of the lands in and around Sikaa Town, I will have to determine the following issue:
1. Whether or not the plaintiff is Nkoranza Kontihene and overall head of Sikaa lands and
2. Whether or not the defendants are Odikro and Obaahemaa respectively of Sikaa Town.
These are clearly matters affecting chieftaincy which this court has no jurisdiction to determine. It is my view therefore that this court has no jurisdiction to entertain and determine this suit and I dismiss it accordingly.
I make no order as to costs.”
Dissatisfied with the decision of the High Court, the plaintiff filed an appeal before the Court of
Appeal on the following grounds:
That the trial Judge erred when he ruled that the matter is a cause or matter affecting chieftaincy and dismissed same.
That by the procedural rules of the High Court, the trial court’s jurisdiction had not been properly activated at the time this ruling was delivered and hence this order is premature.
That natural justice rule was breached when the trial Judge delivered this ruling without giving the appellant a hearing.
Additional grounds of appeal shall be filed upon receipt of record of proceedings.
The relief sought from the Court of Appeal is:
To set aside or reverse the entire ruling and all consequential orders made by the High Court, Sunyani, in favour of the defendants/respondents.
Before going into the arguments advanced in support and against this appeal, I will give the background of the case.
The plaintiff/appellant (hereinafter referred to as plaintiff) claims against the defendants/respondents (hereinafter referred to as defendants) jointly and severally for:
a. A declaration that as the Nkoranza Kontihene and the overall head of Nkoranza Krontire Royal Family and the owner of Sikaa Town and the lands in and around Sikaa Town, he is the proper person to deal with the lands in and around Sika;
b. A declaration that as it has always been the custom that the lands in and around Sika in dispute is vested in the plaintiff’s stool the defendants as ordinary citizens of Sika have no right to assert ownership of the lands in and around Sika and to alienate portions thereof to tenant farmers and developers;
c. An order for account of all the proceeds realized from the sale of portions of the lands/plots of land in and around Sika;
d. Perpetual injunction to restrain the defendants, their assigns, servants, labourers, agents, workers, family members, etc. from dealing in any way with the lands in and around Sika until the final determination of the matter/suit.
e. General damages for trespass onto the lands and around Sika.
In the 19-paragraph statement of claim which accompanied plaintiff’s writ of summons, he averred that he is the Krontihene of Nkoranza Traditional Area and the owner of all the lands, in and around the Sikaa Town. The plaintiff averred further that, as owner of the lands mentioned above, he is the proper person to deal with the lands in these towns and villages. The plaintiff continued that, his ancestors migrated from Amakom Kumasi in the Ashanti Region to settle in Nkoranza and the following towns, Sikaa, Yefri, Kaakaa, Manso, Amoma and Anyina became part of their land. It is the case of the plaintiff that his ancestors fought the chief of Woso and his people Nana Twea Jamire and conquered and took over the Sikaa Town after Woso and Bosie Towns were destroyed. The plaintiff concluded that since his ancestors settled on these lands which lands are now vested in him by succession, he and his family members have enjoyed undisturbed possession and have even alienated portions of the said lands to strangers over the years for farming purposes without protest from anyone until quite recently when defendants laid adverse claim to the Sikaa Town and all the lands in and around Sikaa Town. The defendants have also started to alienate portions of the said land to stranger farmers and interested developers without recourse to the plaintiff and his family members who are owners of this land hence this action.
On receipt of plaintiff’s writ of summons and statement of claim, the defendants reacted by filing their defence. In particular, theydenied plaintiffs claim and put the latter to strict proof of the averments contained in his statement of claim.
The defendants averred that, they are the chief and queen mother respectively of the Sikaa Town. They averred further that, upon their enstoolment, the stool properties including lands were handed over to them and they have since managed them efficiently. It is the case of the defendants that the Sikaa Town lands are held by their respective usufruct owners and the defendants only serve as allodial title holders in their capacities as chief and queen mother.
The defendants continued that, when Sikaa Town lands became an outskirt land for residential purposes, same is handled by Plot Allocation Committee of Sikaa and the 1st defendant as the Odikro of Sikaa has the responsibility for the overall development of Sikaa Town. The 1st defendant maintained that though Sikaa Town comes under Krontire Division of Nkoranza, the latter does not own the town. The 1st defendant concluded that the plaintiff as the Krontihene recently attempted to usurp the traditional authority of 1st defendant by attempting to forcibly take possession of lands owned by the natives of Sikaa to which they resisted and the plaintiff purported to have destooled them. The matter was reported to the Omanhene of Nkoranza who admonished the plaintiff to desist from such arbitrary and illegal conduct. The defendants concluded that the present action is a disguise to destool them. The defendants therefore maintained that, the present case is a cause or matter affecting chieftaincy to which the High Court lacked jurisdiction to hear and averred that the plaintiff is not entitled to the reliefs being claimed as they intend to raise a preliminary point of law in the course of the proceedings.
Before pleadings could close, the trial Judge on the 10th December, 2013 gave the ruling on appeal before us.
At this stage, let me put it on record that, counsel for plaintiff did not file additional grounds of appeal as indicated in his notice of appeal.
In arguing the appeal, counsel for the plaintiff referred to Section 76 of the Chieftaincy Act, Act 759 on the definition of a cause or matter affecting chieftaincy. He then argued that the trial Judge anchored his reason for his ruling on Section 76 (a) of Act 759. Counsel continued that, the trial Judge failed to read and appreciate the pleadings as put forward by the parties and thus came to the wrong decision. He referred to paragraph 1 of the statement of claim and paragraph 2 of the statement of defence and submitted that, it is clear that the position of the plaintiff as Krontihene of Nkoranza is not in dispute in view of the admission by the defendants in paragraph 2 of their defence. That being the case, the trial Judge erred in raising that as an issue to declare that the present action is a cause or matter affecting chieftaincy, counsel submitted.
He continued that the fact that the defendants averred in their statement of defence as being Odikro and Obaahemaa of Sikaa respectively does not ripen the action into a cause or matter affecting chieftaincy. The issue at stake in this matter is who owns the Sikaa lands and therefore have the right to assume management and control of the said lands. This is because counsel argued it is now settled that the mere mention or challenge of someone as a chief in a suit should not automatically lead to a conclusion that, it is a cause or matter affecting chieftaincy. Counsel referred us to the case of Abbey Others Vs. Antwi V.  SCGLR 17 where the Supreme Court held in holding (1) that:
“Thus, whenever a court was faced with determining whether it had jurisdiction or not in a cause or matter, it must not only look at the endorsement on the writ of summons, but also the pleadings in support of the endorsement. Consequently, in the instant case, the mere fact that the question of whether or not the plaintiff was a chief reared its head in the cause of the trial did not necessarily constitute the matter as one affecting chieftaincy.”
Relating the case referred to supra to the case under consideration, counsel for the plaintiff submitted that, the trial Judge should have taken his time to see how the entire case would unfold at the close of the pleadings. Consequently, the trial Judge erred in dismissing the plaintiff’s suit on the ground that it is a cause or matter affecting chieftaincy and same should be set aside.
On Grounds 2 and 3 which were argued together, counsel for the plaintiff referred to the record of appeal page 39, and said the defendants filed their statement of defence on 5th December, 2013. He continued that there is no evidence on record that the plaintiff had been served with the statement of defence when the ruling in contention was delivered. He continued that, by Order 11 rule 3 (2) of C. I. 47, a person who desire to file a reply to a defence shall do so within seven (7) days after the service of the defence. Therefore, even if the plaintiff was served with the defence on the 5th December, 2013, the very day it was filed, the plaintiff has seven (7) days from that day to file a reply. Pleadings would be deemed to have closed after the seven (7) days. It was only then that the court’s jurisdiction could be said to be properly invoked to determine whether the suit is a cause or matter affecting chieftaincy. This is especially so, counsel argued, when at page 38 of the record of appeal, the business of the court for the 10th December, 2013 was to ascertain whether the defendants had filed their statement of defence or in default thereof to take the default judgment.
Based on the above computation, counsel argued it was premature for the court to dismiss the matter the way it did as the court’s jurisdiction has not been sought and the trial Judge relied on the statement of defence of the defendants without giving the plaintiff the opportunity to respond to the said statement of defence by way of a reply and thus breached the rule of natural justice. Counsel for the plaintiff concluded that, a careful examination of the pleadings on record revealed that the matter is a land matter and not a cause or matter affecting chieftaincy. Based on the foregoing, he invited us to set aside the ruling and remit the case to the trial court for hearing on the merits.
In response to the above submissions, counsel for the defendants in his written submissions raised a preliminary legal objection to the propriety of the appeal. The objection is that the action was commenced by one Kofi Gyambrah Esq. of “Oman” Chambers, Sunyani. On the face of the writ of summons, the solicitors license is missing.
According to counsel, the absence of the solicitor’s license nullifies the proceedings the lawyer purported to have filed. Counsel cited the case of Nana Ampofo Kyei Baafour vs. Justmoh Construction Co. Ltd & 4 Ors.  113 GMJ 118, 130.
Based on the above decision, counsel submitted that the instant suit is a nullity and invited us to dismiss the suit.
On the grounds of appeal, counsel for the defendants argued grounds (a), (b) and (c) together. In his view the three (3) grounds seek to question whether the present action is a cause or matter affecting chieftaincy and thus whether the trial Judge was justified in dismissing the plaintiff’s case. He referred to Section 76 of the Chieftaincy Act, Act 759, which section defines a cause or matter affecting chieftaincy. Counsel referred to paragraphs 4 to 20 of the statement of defence at pages 39 to 41 of the record of appeal and argued that, by those paragraphs, the defendants demonstrated that there is a customary relationship between the plaintiff as Nkoranza Krotire Stool and the Sikaa Stool occupied by defendants. He continued that, by virtue of their positions, the defendants are the right persons to allocate land at Sikaa. Therefore, to determine whether the defendants are allocating the land legally, one would have to determine whether the defendants are chief and queen mother respectively and that issue is a cause or matter affecting chieftaincy. By Section 57 of the Courts Act 1993, Act 459, the regular courts except the Supreme Court have no jurisdiction to entertain a cause or matter affecting chieftaincy. In other words, the jurisdiction of the High Court is statutorily ousted in hearing a cause or matter affecting chieftaincy.
Counsel continued that, jurisdiction goes to the very foundation of the case and the court must first determine whether it had jurisdiction to hear the case. He referred us to the case of Amoasi Vs. Twintoh [1987/88] 1 GLR 554 and the case of Charmant Vs. Mensah [1982/83] GLR 65 and submitted that, objection to jurisdiction could be taken at anytime. Counsel then submitted that it was not wrong for the trial Judge to raise the issue of jurisdiction suo motu at that stage of the proceedings. He referred to the case of Republic Vs. Adamah-Thompson and Ors., Ex parte Ahinakwah II (substituted by Ayikai)  SCGLR 378.
Based on the foregoing, counsel for the defendants invited us to dismiss the appeal as the defendants raised the issue of jurisdiction in their defence and the trial court was right in raising that issue and determining it.
In this appeal, counsel for the defendants have raised a preliminary legal objection to the propriety of the appeal. The objection is that, counsel who issued the writ of summons Kofi Gyambrah Esq. of “Oman” Chambers, Sunyani did not have solicitors license and therefore the whole proceedings culminating into this appeal is a nullity. Counsel for the plaintiff has not responded to this objection.
From the record of proceedings, page 2 thereof, the stamp of Gyambrah Co. Barristers & Solicitors, Oman Chambers, P. O. Box 365, Sunyani, BA can be seen. Conspicuously absent is the solicitors license number of the lawyer who filed the writ of summons.
Section 8 (1) of the Legal Profession, (1960) Act 32, provides that:
“A person, other than the Attorney General or an Officer of Attorney General’s Department, shall not practice as a Solicitor unless that person has in respect of that practice a valid annual solicitor’s license issued by the counsel duly stamped and in the form set out in the second schedule.”
The Supreme Court in a unanimous decision in the case of Republic Vs. High Court (Fast Track Division), Accra Ex-parte Justin Pwara Teriwajah (1st applicant), Henry Nuertey Korboe (2nd applicant), Reiss and Co. Ghana Ltd. (Interested Party) dated 11th December, 2013, unreported Civil Motion No. J4/24/2013 stated in respect of Section 8 (1) of Act 32 as follows:
“The interpretation of this section is not ambiguous. It simply means that one cannot sign documents or represent a party as a lawyer in court unless he has obtained a valid solicitor’s license for that purpose. The section also sets the duration of the license which must be annual.”
Then in 2016, the Supreme Court again had another opportunity to revisit this issue in the case of Henry Nuertey Korboe Vs. Francis Amosa Civil Appeal No. J4/56/2014 dated 21st April, 2016, it confirmed its ruling in the Republic Vs. High Court, Accra, Ex-parte Justin Dwara Teriwajah & others case and held that if a lawyer is in default of Section 8 (1) of Act 32, that lawyer cannot sign any legal document or represent a party as a lawyer in court, and the simple consequences of the above are that all processes originated by him for the respondent in the High Court and thereafter are deemed to have been invalid, null and void.
In the words of Dotse, JSC:
“The above decision also clearly stated that it would be wrong to assume that only criminal sanctions have been imposed for breaches of Section 8 (1) of Act 32 as are provided in Section 8
(6). Indeed, the civil sanctions have already been stated in Section 8 (1) of the law that, a defaulting solicitor or lawyer loses his right to practice as a lawyer. Aside that, if one indeed is in breach, there is also a criminal sanction which follows a successful criminal prosecution.”
Then just last year, 2017, the Supreme Court again had the chance to revisit this issue of whether a lawyer without a valid solicitor’s license for any particular year, as required by Section 8 (1) of Act 32, can practice as a lawyer in any court or prepare any legal document.
S. O. A. Adinyira (Mrs.), JSC, stated that:
“We recall our jurisprudence in cases such as Henry Nuertey Korboe Vs. Francis Amosa, Civil Appeal No. J4/56/2014, SC delivered on 21st April, 2016 (unreported) where we held, in effect, that a lawyer without a valid solicitor’s license for any particular year, as required by Section 8 (1) of Act 32, cannot practice as a lawyer in any court or prepare any process as a solicitor within the particular period of non-compliance, and that any process originated by such a solicitor is a nullity.”
See the case of Nana Ampofo Kyei Barfour Vs. Justmoh Construction Co. Ltd. & 4 Ors. (2017] 113 GMJ 118.
Relating the cases cited supra to the case under consideration, since the lawyer who issued the writ of summons in this suit did not have his solicitor’s license stated on the writ, the said writ is a nullity. Consequently, all the subsequent processes filed and proceedings flowing from same are also null and void.
The need for the courts to enforce statuses passed by Parliament was stressed by the Supreme Court in the case of Republic Vs. High Court, (Fast Track Division) Ex-parte National Lottery Authority (Ghana Lotto Operators Association & Others, Interested Parties)  SCGLR 390, 393 where it was held in holding (2) of the headnotes that:
“The question of the constitutionality of the National Lotto Act, 2006 (Act 722) vis-à-vis Article 33 (5) of the 1992 Constitution, had been settled by the Supreme Court in recent decision given on 23rd July, 2008 and even if it were not, a statute was presumed to be valid until it was otherwise decided.
Therefore, the proper exercise of the discretion in the instant case, would have been for the trial High Court to have refused the application for interim injunction, otherwise the interested parties, Ghana Lotto Operators Association & Others would there be assisted by the court to commit an illegality…”
In the words of Dr. Date-Bah, JSC:
”The learned Judge acted in obvious excess of his jurisdiction. No Judge have authority to grant immunity to a party from the consequences of breaching an Act of Parliament. But this was the effect of the order granted by the learned Judge. The judicial oath enjoins Judges to uphold the law, rather than condoning breaches of Acts of Parliament by their orders.”
From all of the foregoing, the appeal fails and it is accordingly dismissed.