IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
NUMO OKAI I & 1 OTHER - (Plaintiffs/Appellants)
NICHOLAS ARYEETEY & 1 OTHER - (Defendants/ Respondents)
DATE: 28 TH MARCH, 2018
CIVIL APPEAL NO: H3/36/2018
JUDGES: GYAESAYOR J.A. (PRESIDING), LOVELACE-JOHNSON (MS.) J.A., SUURBAAREH J.A.
MR. ALBERT ADAARE FOR PLAINTIFFS/APPELLANTS
MR. F.K. QUARTEY FOR DEFENDANTS/RESPONDENTS
The plaintiffs/appellants, called appellants hereinafter, issued out a writ against the defendants/respondents, who would be referred to as respondents, claiming the following reliefs:
“(i) A declaration that the first plaintiff is the Korle Wulomo and head of the Korle Family or head of Korle We.
(ii) A declaration that the purported removal of the 1st plaintiff as Korle Wulomo by the first defendant is null and void and of no legal effect.
(iii) A declaration that the purported installation of the second defendant as Korle Wulomo by the first defendant is null and void.
(iv) An order of perpetual injunction restraining the second defendant from acting or purporting to act as Korle Wulomo.
(v) An order ejecting the second defendant from the Korle Shrine.”
The respondents, who entered appearance to the writ and filed a statement of defence on 27th February, 2017 vide page 103 of the record, subsequently filed a motion on notice to dismiss the suit for want of jurisdiction on 3rd March, 2017. The motion was supported by a sixteen paragraph affidavit. See page 106 for the motion paper and pages 107 to 109 for the affidavit in support. In the affidavit in support, the respondents tried to show how the second respondent was nominated, appointed and installed as Korle Wulomo on 19th August, 2016 by the four heads of the Ga Gbese Korle We upon which the Ga Traditional Council, of which the Korle Wulomo and other Wulomei are members, were informed and a date set and he was inducted as a member of the Council and which event was given a wide publication. See paragraphs 4 to 8 of their affidavit in support of the motion.
The respondent then went on in paragraph 9 to refer to the action by the appellants seeking to challenge the destoolment/removal of the first appellant and then deposed as follows in paragraphs 11 and 12 of their affidavit in support:
“11. That we have been advised that the matters therein raised and the reliefs sought is a ‘cause or matter affecting chieftaincy’ and same cannot be litigated in this court except the Ga Traditional Council.
12. That I am advised and verily believe same to be true that the jurisdiction of this court is circumscribed by the 1992 Constitution and the Court’s Act which excludes the Chieftaincy Institution.”
The appellants opposed the application to dismiss the suit for want of jurisdiction and, in their affidavit in opposition sworn to by the second appellant, deposed in paragraphs 3, 4 and 5 that in 2002 one Nii Aryee Annang and five others sued the 2nd appellant and the 1st respondent amongst others, in an action challenging the installation of the first appellant as Korle Wulomo and that on three occasions, they as defendants therein, raised the issue of the jurisdiction of the High Court to entertain the matter on the ground that it was one affecting chieftaincy but were thrown out on all three occasions and which decisions were exhibited in paragraph 5 as exhibits 1 to 3. He then deposed in paragraph 6 as follows:
“6. That Mrs. Hanzzy Sowah’s ruling, exhibit 3, shows clearly how the Wulomei got to the Ga Traditional Council not because they are chiefs but because they have been attending consultation with the chiefs.”
After hearing submissions from counsel for the parties, the court, presided over by Patience Mills-
Tetteh, J. (Mrs.), at page 7 in her ruling appearing at page 105 of the record said:
“I have read the affidavits for and against the application together with their respective annexures. I have also considered learned counsel for the applicants’ new line of argument; and even though the earlier rulings held that a Wulomo is not a chief and therefore a cause or matter affecting a Wulomo, is not a cause or matter affecting chieftaincy. I am persuaded by the new line of argument that the cause or matter affecting a Wulomo is a cause or matter affecting not only the chief, but the whole institution of chieftaincy within the definition of section 66 of the Chieftaincy Act, 1971, Act 370.
My persuasion is borne out of the fact that a cause or matter affecting chieftaincy does not only necessarily mean a cause or matter strictly affecting the chief, but the whole chieftaincy institution, which include not only the chief but also the acolytes of a chief. These acolytes of a chief in the likes of the Wulomo who play complimentary roles and forms part of the whole chieftaincy institution ushers the Wulomo as followers of the chief or assistants of the chief who are constantly in consultation with the chiefs into chieftaincy realms.”
Aggrieved by and dissatisfied with the ruling, the appellants have appealed against same on the following grounds:
“1. The learned trial judge erred when she held that the matter in the present suit is a cause or matter affecting chieftaincy and therefore the High Court had no jurisdiction to determine same.
2. The learned trial judge erred when she granted the application to set aside the writ of summons in this matter.
3. The ruling is against the weight of evidence that was on record.”
The learned trial judge in her ruling quoted above, said she was persuaded by the new line of argument by counsel for the applicants in the case. What was this new line of arguments? At page 162 of the record of appeal, the learned trial judge referred to this new line of arguments when she said:
“Counsel for the defendants/applicants herein (hereinafter referred to as the applicants) grounded his arguments on the fact that the exclusion clause or caveat in section 57 of the Court’s Act 1993, Act 459, that the High Court should not entertain ‘a cause or matter affecting chieftaincy’ is reference to the whole institution of chieftaincy and not only a chief.”
Another thing that appears to have swayed the learned trial judge is the reference and quotation from page 232 of “The Law on Chieftaincy in Ghana” by S.A. Brobbey, where one of the criterion for determining whether or not a matter or cause is one affecting chieftaincy is stated to be when it would be necessary to adduce evidence as to the nomination, election, selection, enstoolment or enskinment, deposition or abdication of a person.
As indicated, the appellants, who are dissatisfied with the ruling, have appealed to this court to set it aside on three grounds of appeal stated supra. According to the submissions on behalf of the appellants, the trial court refused to follow the persuasive decision in Republic v. Gbi Traditional Council; Ex parte Togbe Kwasi Buami VII  2 G.L.R. 427 at holding (2) in the headnote and rather fell for the supposed new arguments that matters affecting the Korle Wulomo is one affecting chieftaincy because a Wulomo being an acolyte of a chief who plays a complimentary role is thus part of the chieftaincy institution. In the view of learned counsel for the appellants, such a view would mean that any matter affecting any helper or assistant of a chief would be a cause or matter affecting chieftaincy. Learned counsel for the appellants, who emphasised that the Korle Wulomo was a head of family, went on to refer to Amoasi v. Twintoh [1987-88] 1 G.L.R. 654 S.C. which held that the head of a stool family is not a cause or matter affecting chieftaincy.
It was also submitted on behalf of the appellants that the fact that the Gbese Mantse oversees the Korle Shrine in the absence of a Wulomo did not make the shrine stool property as to make matters affecting the holder of the office a cause or matter affecting chieftaincy.
Article 277 of the Constitution 1992 defines a “chief” as “an individual who has, in accordance with customary law, been nominated, elected and installed as a chief and whose name for the time being appears as a chief on the National Register of Chiefs”.
The Chieftaincy Act, 2008, Act 759 in section 57, under the definition of chief, provides as follows in subsections (1) and (5):
“(1) A chief is 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 queen-mother in accordance with relevant customary law and usage.
(5) A person shall not be considered to be a chief for the performance of a function under this Act or any other enactment, unless that person has been registered for the performance of that function in the National Register of Chiefs and that person’s name has been published in the Chieftaincy Bulletin.”
Section 76 of the Chieftaincy Act 2008, Act 759, the Interpretation Section, defines a “cause or matter affecting chieftaincy” as any 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, installation, deposition or abdication 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 above definition of a “cause or matter affecting chieftaincy” has been lifted whole sale from section 117 of the Courts Act, 1993, Act 459.
Even though grounds 1 and 2 of the grounds of appeal complain about error on the part of the trial judge in holding that the suit was a cause or matter affecting chieftaincy and in granting the application and setting the writ aside, they can conveniently all be dealt with under the omnibus ground about the judgment being against the weight of the evidence in ground 3. As held in Oppong Kofi v. Attibrukusu III  1 S.C.G.L.R. 176 at holding (1) in the headnote, this ground of appeal is an invitation to the appeal court to review the whole of the evidence, documentary and oral, adduced at the trial and come out with a pronouncement as to whether the weight of the evidence support the judgment of the trial court or not. This court will therefore proceed to evaluate the entire evidence with a view to determining whether the judgment of the trial court is sustainable or not.
From paragraphs 1 to 5 of the statement of claim at page 3 of the record, the appellants have shown that the office of the Korle Wulomo is a family matter and that the occupant is the head of the family. In the affidavits in support of the motion to dismiss the suit for want of prosecution, the respondents deposed in paragraph 4 at page 107 of the record as follows:
“4. That Numo Ayitey Cobblah III, known in private life as Ayi Aryee, the 2nd defendant was nominated, appointed and installed as Korle Wulomo on 19th August, 2016 by heads of the four families of Ga Gbese Korle We, namely; the Oku We, Adutso We, Nii We, Nii Kwao Brenya We and Amasa Oseiku We.”
In reaction to the motion to dismiss the suit for want of jurisdiction, the appellants in paragraphs 3 to 9 of their affidavit in opposition, contended that in an earlier action in 2002 the issue of whether or not the Korle Wulomo was a chief and therefore a cause or matter affecting chieftaincy was raised and that on three occasions the question was answered in the negative. Judgments/rulings in these cases were exhibited as exhibits 1, 2 and 3 in paragraph 5 of the affidavit in opposition. See pages 116 to 117 of the record.
From these exhibits, that is 1 to 3, the issue of whether or not the matter involving the nomination, election and installation of the Korle Wulomo is a cause or matter involving chieftaincy was raised and answered. In exhibit 1 in particular, appearing at pages 119 to 124 of the record, Asare Korang, J.A., sitting as an additional judge of the High Court, after a consideration of who a chief is as defined in article 277 of the Constitution 1992, as well as in section 48 of the then Chieftaincy Act 1971, Act 370 as well as the categories of chiefs contained in section 49 of the then Chieftaincy Act, Act 370 and the requirement in section 50 of Act 370 for the particulars of chiefs to be recorded, concluded that the applicants therein failed to satisfy the onus of proof that the Korle Wulomo was a chief and therefore refused to dismiss the suit.
Not satisfied, the applicants in the same suit tried to raise the same issue before a different judge but in a very terse judgment, Dordzie J. (as she then was) dismissed the application as misconceived for the reason that once the issue had been determined, then it could not be raised again and that the next step opened to the applicants was the appeal process. It is pertinent to note that exhibit 1 was delivered on 23rd July, 2002 whilst exhibit 2 was delivered on 25th November, 2002.
In a subtle attempt to raise the issue again, the applicants therein, under the guise that new matters have come into their possession, applied to have the judgment in exhibit 1 set aside. However, in exhibit 3, a judgment of Cecilia Hanzzy Sowah J. (as she then was) and appearing at pages 126 to 129 of the record, after an analysis of the evidence before her refused the application. At page 127 in particular the learned judge observed as follows:
“Having read the ruling and other exhibits and carefully considered the arguments for and against this application, I find that the lack of an extract from the Register was not the only criterion used to determine the issue whether the Korle Wulomo is a chief. The court indicated other standards it was looking for. For example;
1. That to be a chief; the Wulomo ought to fit into one of the categories of chiefs defined in section 49 of Act 370.
2. A precedent or ancient document to support the bare assertion of the defendants.
3. Proof of the Wulomo’s recognition by the minister responsible for chieftaincy matters by notice published in the Local Government Bulletin.”
The court in exhibit 3 also considered how the three Wulomei came to be appointed as members of the Ga Traditional Council and concluded that their membership of the council did not imply that they were chiefs.
The respondents herein, exhibited to their supporting affidavit a judgment of Koomson J. date 4th November, 2011 in suit No. Misc. 1006/2002, the same suit resulting in exhibits 1, 2 and 3. This judgment, exhibit A, exhibited to their affidavit in support of the motion to dismiss the suit for want of jurisdiction referred to earlier, was between members of the same family who are parties in this instant appeal. It is clear from the issues that arose for determination and appearing at page 70 of the record that the matter therein was a family matter and not a cause or matter affecting chieftaincy.
In the face of exhibits 1, 2 and 3 it was an abuse of the judicial process for the respondents to seek to relitigate the same issue which has been dealt with by three judges of coordinate jurisdiction and the trial judge, in the face of the judgment of Dordzie J. exhibit 2 refers, should have seen through the attempt to relitigate the issue to have used her inherent power to strike out the application in limine. See the following passage from the White Book, 1995 edition, Volume 1 at page 347:
“If a party seeks to raise a new question which has already been decided between the same parties by a court of competent jurisdiction, this fact may be brought before the court by affidavit, and the statement of claim, though good on the face of it may be struck out and the action dismissed, even though a plea of res judicata might not strictly be an answer to the action. It is enough if substantially the same point has been decided in the prior proceedings.”
In the face of exhibits 1, 2 and 3, the trial judge’s conduct and ruling granting the prayer of the respondents amounted to sitting as an appellate court over judgments/rulings of courts of coordinate jurisdiction. The trial judge’s decision was clearly against the weight of the evidence and cannot therefore on that basis alone, be allowed to stand.
I will however go further to consider the new arguments which the trial judge said influenced her in sitting on appeal against decisions of her three colleagues. These new arguments as indicated were that the exclusion clause in section 57 of the Courts Act 1993, Act 459 relate to the chieftaincy institution and not only to a chief. She also seems to have been influenced by the reference to Brobbey’s Book, The Law of Chieftaincy in Ghana, in which it is stated at pages 232/233 that a criterion for determining whether a cause or matter is one affecting chieftaincy is that when evidence is to be led as to the nomination, election, selection, enstoolment, enskinned, deposition or a abdication of the person.
It should be pointed out that chieftaincy as an institution must be distinguished from the individual members that make up the institution just like the Judiciary, as an institution, is made up of individual judges and magistrates. Article 270 of the 1992 Constitution recognises and guarantees chieftaincy as an institution as well as the traditional institutions that were in existence before the promulgation of the Constitution. Over the years laws have been enacted to guide the operations of the institution of chieftaincy such as the Chieftaincy Act 1971, Act 370 and the Chieftaincy Act 2008, Act 759. As indicated earlier, the question of who is a chief is well defined in section 57 of the Chieftaincy Act 2008, Act 759 whilst section 58 of the Act sets out the categories of chiefs with section 59 providing for the maintenance of a National Register of Chiefs and section 60 making provision for the publication of names of chiefs in a Chieftaincy Bulletin.
Exhibits 1 and 3 exhibited to the affidavit in opposition by the appellants clearly show that the applicants in those cases could not satisfy the judges that the Korle Wulomo qualified as a chief under any of the above or equivalent provisions of the Chieftaincy Acts existing at the time of the rulings. In the face of these glaring facts, the trial judge went on to give a ruling upholding the application and dismissing the suit as one affecting chieftaincy. The ruling, in the face of these other rulings/ judgments, is against the weight of the evidence and an abuse of the judicial process.
From the appellants’ depositions in paragraphs 3, 4 and 5 and by exhibiting exhibits 1, 2 and 3, they sought to show that the respondents were estopped from raising the issue as to whether or not the Korle Wulomo was a chief as same has been raised and determined in those cases. In other words, those paragraphs raised the issue of res judicata. In Peniana vrs. Afram  G.L.R. 220 the Supreme Court held that a judgment to operate as estoppel must be clear, unambiguous and should determine finally the issues between the parties. For a successful plea of estoppel therefore, the party relying on it must establish that:
a. There is a judicial decision by a court or tribunal of competent jurisdiction.
b. That the decision is final in that it was non appealable or from which there has been no appeal.
c. The same question sought to be put by the plea in respect of which the estoppel is claimed was decided in the earlier proceedings.
d. That the case was between the same parties or their privies, as the parties between whom the question is now sought to be put in issue.
See Robertson v. Reindorf  2 G.L.R. 289 at 307.
It is not in doubt that the Korle Wulomo is nominated, elected and installed in accord with custom or traditional practice. This does not however make the Korle Wulomo a chief. In the traditional set up there are many offices where the office holder has to be nominated, elected, selected and then installed. Some of such offices that readily come to mind are family heads, linguists, sword bearers, and a host of others that attend to the chiefs and are so crucial in the functioning of chieftaincy as an institution. The fact that some of these officials may play an indispensable role in the chieftaincy institution will not make the issue of their nomination, selection, election, installation, deposition or abdication a matter affecting chieftaincy. Again, section 117 of the Courts Act 1993, Act 459 and section 76 of the Chieftaincy Act 2008, Act 759 clearly set out what is a cause or matter affecting chieftaincy. It would even appear from exhibit A, the judgment of Koomson J., at pages 15/16 that from the manner the Korle Wulomo is elected by the Gbese Mantse, Dzasetse and Agbatse in consultation with a fetish priestess, his appointment is more spiritual than traditional.
As exhibits 1 and 3 show, the Gas were originally ruled by priests and from exhibit 3 in particular, the Wulomei were admitted into the Traditional Council because they have been consulting with the chiefs for twenty years. Their admission into the council per se will not make them chiefs as defined in article 277 of the 1992 Constitution and section 48 of the Chieftaincy Act 2008, Act 759. What category of chiefs do they belong to as posed by Asare Korang, J.A. in exhibit 1 at pages 122/123 of the record?
The trial judge, at page 165 of the record, admits the fact that the Wulomei are not chiefs but shrine priests and yet goes on to say that their admission into the Traditional Council is a development which should affect their role. By their admission as members of the council their role has been affected as they take part in the deliberations of the council but this will not in any way affect their status as Wulomei or make them chiefs. Being accorded a privilege to become members of the Traditional Council will not qualify the Wulomei as chiefs as defined by the Constitution and the Law.
To conclude on this point, I must state that the statement by the trial judge at page 164, paragraph 2 of the record that the definition of chief should include acolytes of chiefs is not only an attempt to re-write the law on who is a chief, but also loses sight of the fact that we have categories of chiefs who are served or assisted in the performance of their duties by many office holders whose appointment are in accord with customary practice but which does not make matters relating to their nomination, appointment, selection, enstoolment or deposition or abdication matters affecting chieftaincy. It would be stretching Brobbey’s view quoted by the trial judge to breaking limits to say that anytime evidence has to be led about the election, destoolment, etc. of any traditional office holder that is a cause or matter affecting chieftaincy.
Apart from the fact that the trial judge was wrong in granting the application to set aside the suit as a cause or matter affecting chieftaincy in the face of exhibits 1, 2 and 3, an evaluation of the endorsement on the writ, the pleadings and the issues that were likely to arise for determination should have alerted her that the application was a red herring.
Over the years, the courts have reiterated that the mere fact that during proceedings an incident relating to chieftaincy crops up will not necessarily oust the jurisdiction of the court. In Republic v. High Court, Koforidua; Ex parte Bediako II [1998-99] S.C.G.L.R. 91 at 102, Sophia Akuffo, J.S.C. (as she then was) said:
“To my mind, the mere fact that the question of whether or not a person is a chief rears its head during an application for certurari before the High Court does not necessarily constitute a matter affecting chieftaincy for the purpose of section 57 of the Courts Act 1971, Act 370 where such a question arises as a matter secondary to the determination of the fundamental question whether or not an inferior body had the jurisdiction to do something, and does not give rise to the necessity to make a final determination of such status whether or not such a person was properly nominated, elected and installed according to the applicable custom or usage. In order to constitute a matter as one affecting chieftaincy, it must, in my view, be the determination of which unless overturned on appeal would settle once and for all a chieftaincy matter or dispute.”
In Re Ogua Paramount Stool; Garbrah & Others v. Central Regional House of Chiefs & Haizel [2005-2006] S.C.G.L.R. 193 at 214, Ocran, J.S.C. said:
“It appears from the language of the chieftaincy Act 1971, that the litmus test for determining whether an issue is a cause or matter affecting chieftaincy is the existence of a ‘question’ or ‘dispute’ or contested matter or cause in the sense of justifiable controversy with respect to any of the matters listed therein and not literally on any matter bearing on chieftaincy.”
On his part, Atuguba, J.S.C. in Re Osu Stool; Ako Nortei II (Mankralo of Osu) v. Norley Owuo II (Intervener) [2005-2006] S.C.G.L.R. 628 at 633 said:
“The mere incidence of an issue relating to chieftaincy in proceedings in the ordinary courts, does not constitute it as a cause or matter affecting chieftaincy. Whether it is so or not depends on whether on the facts of the particular case, a genuine cause or matter affecting chieftaincy has arisen.”
Dotse, J.S.C. in Abbey & Others v. Antwi I  S.C.G.L.R. 17 at 31 also had this to say after considering some earlier cases:
“…Whenever a court is faced with determining whether it has jurisdiction or not in a cause or matter, it must not only look at the endorsement on the writ of summons, but also look at the pleadings in support of the endorsement. If such an evaluation is done, a decision of a learned trial judge to proceed and determine the case cannot be faulted.”
From the above analysis, it is clear that the judgment of the trial judge is not supported by the evidence. Accordingly, the appeal is upheld and the ruling of the trial judge dated 13th April, 2017 is hereby set aside.