IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
CAPE COAST - A.D 2018
THE REPUBLIC - (Defendant/Respondent/Appellant)
SEFWI WIASO TRADIOTNAL COUNCIL CHIEFS PALACE, SEFWI WIASO - (Respondent)
AND KOFI BOYE & 5 OTHERS- (Interested Parties/Appellants)
EX PARTE NANA ADUA-PANYIN II (Applicant/Respondent)
DATE: 16TH JANUARY 2018
CIVIL APPEAL NO: H1/5/2018
JUDGES: JUSTICE IRENE C. LARBI (MRS) J.A. (PRESIDING), JUSTICE L. L. MENSAH J.A., JUSTICE ANGELINA DOMAKYAAREH (MRS) J.A.
PAUL NKWA-GYAPONG, ESQ. FOR INTERESTED PARTIES/APPELLANTS
OHENEBA ADUSI-POKU, ESQ. FOR APPLICANT/RESPONDENT
L. L. MENSAH, J.A.
On the 12th of November 2015, in her absence and without notice to her, the Omanhene of the Sefwi Traditional Council Area, the two kingmakers, and some members of the Traditional Council gathered in the palace of the Omanhene, the 1st Interested Party/Appellant (hereinafter referred to as the 1st Interested Party) and together with the other Appellants proclaimed publicly that they had destooled the Applicant/Respondent (hereinafter referred to as the Respondent) as the Queenmother of the Sefwi paramount stool. According to the gathering which purported to be the Traditional Council, certain charges had been leveled against the Respondent that under Sefwi custom, the said charges were such that the Respondent could no longer govern the people of the traditional area with the 1st Interested Party and his sub-chiefs.
According to the Respondent, when the paramount stool of Sefwi was vacant, the choice made by the Respondent was rejected by the kingmakers and in his place the kingmakers installed the 1st Interested Party. A claimant to the stool filed a petition before the Committee of the Western Regional House of Chiefs challenging the position of the 1st Interested Party, which petition is still pending.
The Respondent was initially made a party to that petition but the petition was discontinued against her. It is the contention of the Respondent that because the Respondent was no longer on the side of the 1st Interested Party and his supporters, they took the decision to destool her without due regard to the law. On the said day, the Respondents performed certain rituals which were purported to signify the destoolment of the Respondent.
Accompanying the meeting of Respondents and the rituals is a proclamation which was broadcast and captured on audio-visual device found at pages 9-11 of the record of appeal. After the certified transcription of the said audio-visual was brought to her attention, the Respondent instituted an action at the High Court, Sekondi in the form of judicial review under Order 55 of the High Court (Civil Procedure) Rules, 2004, C.I. 47 evoking the jurisdiction of the High Court with the following reliefs:
(a) An order of certiorari to bring up the proceedings of the Respondent (Sefwi Wiaso
Traditional Council) dated Thursday the 12th day of November, 2015, purporting to destool the Applicant as the Paramount Queenmother of the Sefwi Wiaso Traditional Area and quash same as ultra vires.
A declaration that the purported destoolment was made without juridicition as the constituted Traditional Council lacked jurisdiction to destool the Applicant.
A declaration that Applicant’s purported destoolment by the Respondent is null and void and of no consequence.
A declaration that the decision of the Respondent dated the 12th day of November 2015 purporting to destool Applicant was in violation of the all-time honoured natural justice principles of audi alteram partem and nemo judex in causa sua.
An order that the entire purported destoolment was flamed with procedural impropriety and failed to observe due process of the law.
Damages and costs including solicitor’s fees to the Applicant.
After being served with the Applicant’s motion, the Interested Parties by way of preliminary objection filed a counter motion in the said suit. They prayed for an order to strike out certain paragraphs of the Applicant’s affidavit in support found at pages 3-8 of the record of appeal. The said paragraphs are 9, 10, 11, 12, 13, 14, 15, 16, 17 and 30. The said paragraphs were said by the Interested Parties to be scandalous, offensive, irrelevant and prejudicial to the fair hearing of the application. The learned trial judge upheld the objection in part and struck out paragraphs 13, 14, 15, 16, 17 and 30 of the Applicant’s affidavit in support of the application for judicial review in her ruling on the 23rd of June 2016, found at pages 51-60 of the record of appeal.
On the 8th of July, 2016, the Interested Parties filed another motion by way of preliminary objection wherein they sought an order to dismiss the Respondent’s motion invoking the supervisory jurisdiction of the High Court by way of judicial review on grounds of want of jurisdiction in the High Court to entertain the application.
On the 10th of November 2016, the learned trial judge dismissed the objection of the Interested Parties. She held that the supervisory jurisdiction of the High Court has been properly invoked by the Applicant and the High Court could entertain the application. The said ruling is found at pages 80-90 of the record of appeal. Aggrieved by the said ruling the Sefwi Wiaso Traditional Council and the Interested Parties filed the instant appeal against the said decision.
GROUNDS OF APPEAL:
The following are the grounds of appeal as revealed by the notice of appeal found at pages 93-94 of record of appeal:
The ruling is against the weight of evidence adduced at the trial of the application to dismiss the suit for want of jurisdiction.
The learned High Court Judge erred in law in holding that the High Court had jurisdiction to entertain the matter or suit which was before it.
The learned High Court Judge erred in law in holding that the matter or suit did not constitute a cause or matter affecting chieftaincy
The learned High Court Judge erred in law in holding that the Sefwi Wiaso Traditional Council qua Traditional Council is a body amenable to the supervisory jurisdiction of the High Court.
To begin with this court is not the forum to ventilate the substance or merit of the substantive application filed before the High Court in the form of judicial review. We say this from the onset because in their written submissions, both counsel seem to bring their arguments up to this forum to argue the merit of the application as if these were the theatre to ventilate their grievances. It is for this reason that we would consider grounds (a), (b) and (c) of this appeal which would be sufficient.
We would start with Ground (b) of the appeal which is that
The High Court Judge erred in law in holding that the High Court had jurisdiction to entertain the matter or suit which was before it.
In his submission on this ground of the appeal, the learned Interested Parties’ counsel argued that an Applicant who wants to invoke the supervisory jurisdiction of the High Court must bring the application within the special provisions of article 141 of the 1992 Constitution and its adjunct provision as contained in article 161 of the same Constitution which states that “Supervisory jurisdiction includes jurisdiction to issue writ or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto”.
The Interested Parties’ counsel contended that “Article 141 of the 1992 Constitution gives the High Court supervisory jurisdiction or power over only lower courts, and other adjudicatory authorities. Any other body is clearly outside its jurisdiction”.
Counsel argued that the plaint of the Respondent is primarily against the Sefwi Wiaso Traditional Council which performed certain customary rites to destool Respondent against the rules of natural justice in the form of the audi alteram partem, nemo judex in causa sua and ultra vires rules. However the Sefwi Wiaso Traditional Council destooled the Respondent as a body but not in its role as an adjudicatory judicial committee. The High Court cannot in terms of article 141 be invited to invoke its supervisory jurisdiction over the Sefwi Wiaso Traditional Council. This is because though the Traditional Council is a statutory body, it is not an adjudicating body. Counsel confirmed his argument with the case of Republic vs. High Court Denu; Ex parte Kumapley (Dzelu IV) Interested Party) (2003-2004) 2 SCGLR 719. Quoting in extenso from the above case, the learned counsel contended that the Traditional Council as a body qua a Traditional Council is not amendable to the supervisory jurisdiction of the High Court by way of an order of certiorari.
Finally, counsel contended on this ground of the appeal, inter, alia that since the learned trial judge in her ruling conceded that the High Court’s supervisory jurisdiction did not extend to the Traditional Council itself and she quoted in extenso from Ex parte Kumapley (supra) by the doctrine of stare decisis, she was bound by the ratio decidendi in the Kumapley case to decline jurisdiction in this instant case.
In reaction, the Respondent’s counsel dismissed the above arguments of the Interested Parties’ counsel as misplaced. He submitted that the case of Republic vs. High Court; Ex parte Kumapley (Dzelu IV Interested Party) (supra) is not applicable to the instant case. Counsel conceded that the Traditional Council as a body is not an adjudicatory body. “But when the Traditional Council itself is aware of its non-adjudicatory functions seeks to dabble in the act of adjudication on a matter, which it conceded it has not, then it cannot cry foul when it is brought for the purpose of lack of jurisdiction”. He contended that the decision of the Supreme Court “should be limited to the facts of the same case. It must be consigned to its own facts”. This is because in the Kumapley case, the prohibition order was issued to the Anlo Traditional Council to restrain it from performing its statutory role of electing or empanelling new members to the Judicial Committee of the Traditional Council. This is what informed the Supreme Court to quash the decision of the High Court.
It is the further argument of Respondent’s counsel that in the instant case, the Sefwi Traditional Council assumed authority vested in the Judicial Committee of the Western Regional House of Chiefs. That by proclaiming the Respondent destooled, the Traditional Council was acting in a judicial manner. This is what brought them under the ambit of certiorari which the High Court has jurisdiction to entertain.
We have carefully considered the arguments traded by both counsel as to whether or not the trial High Court has jurisdiction to entertain the application placed before it. We will not have to go far but to pronounce here and now that the trial High Court has jurisdiction to enquire into whether or not the Interested Party Sefwi Wiaso Traditional Council violated the time honoured principles of natural justice in the form of audi alteram partem, and nemo judex in causa sua.
It appears that the learned Interested Parties’ counsel’s submission is materially premised on the ratio in the case of Republic vs. High Court Denu; Ex parte Kumapley (Dzelu IV Interested Party) supra. And as rightly contended by the Respondent’s counsel, the scenario in the Ex parte Kumapley is separate and easily distinguishable from the situation in this instant case. We say so because in the case of Ex parte Kumapley, the Supreme Court was called upon to determine whether or not the Anlo Traditional Council was an adjudicating body which was subject to the supervisory jurisdiction of the High Court. What the apex court decided was the fact that the High Court and for that matter no court of law could stop a body like the Anlo Traditional Council from nominating persons to constitute its judicial committee as the High Court was trying to prohibit it from carrying out its statutory duty. It is this observation of the High Court which made it to incur the wrath of certiorari.
In the instant case, the learned trial judge at page 89 of the record of appeal has this to say on her view of the case of Ex parte Kumapley (supra), vis a vis the nature, content and substance of the Respondent’s application before her:
The High Court’s supervisory jurisdiction therefore does not extend to the traditional council itself in the performance of its prescribed duties. In the Respondent’s application, the plaint relates to the Traditional Council usurping the function of the judicial committee of the Western Regional House of Chiefs and making a decision that affects the rights or interest of the Respondent which the Respondent say (sic) she was not given a hearing. Thus Respondent stated that there was a breach of rules of natural justice. These rules of natural justice is (sic) considered as a rule of procedure that ensures fair play and fair justice. The breach of the rules of natural justice is a ground of judicial review considering the plaint of the Respondent, the supervisory jurisdiction of the High Court has been properly invoked .....
We think the learned trial High Court Judge has clearly distinguished between the role performed by the Anlo Traditional Council before the Denu High Court Judge intervened by his ill-fated and ill-advised prohibition order which incurred the wrath of certiorari. As aforementioned, the Anlo Traditional Council was in the process of performing its statutory duty to get members of its number nominated to constitute its judicial committee. Then the High Court in its purported supervisory power truncated same. In the instant case however the Sefwi Traditional Council was alleged to be assuming adjudicatory roles which it was said it did not have. That allegation unfortunately cannot be gone into by this court. It is at first instance, the exclusive preserve of the trial High Court. A fair distinction must therefore be made between the duties of the Traditional Council qua Traditional Council and its attempt at assuming other roles exclusively preserved for its judicial committee or better still its regional house of chiefs counter part.
In his robust submission in this ground of the appeal, the learned counsel for the Interested Parties argued copiously as to whether or not the Respondent brought her application under articles 140(2) or 141 of the 1992 Constitution or article 23 of the Constitution. A discourse was also made on the Wednesbury principle of irrationality, unfairness, illegality etc. These arguments should be ventilated before the trial High Court. Seen from another perspective, the Respondent by way of procedure grounded her application under Order 55 of the High Court (Civil Procedure) Rules, 2004 C.I. 47 as confirmed by her motion paper. We think this ground of the appeal has no merit and same is hereby dismissed.
The next ground of the appeal is that the learned High Court Judge erred in law in holding that the matter or suit did not constitute a cause or matter affecting chieftaincy and also that the ruling is against the weight of evidence adduced at the trial of the application to dismiss the suit for want of jurisdiction.
Learned counsel argued the two grounds together and referred to such cases as Tuakwa v. Bosom (2001-2002) SCGLR 61; Quarcoopme v. Sanyo Electrical Trading Co. Ltd. (2009) SCGLR 213 at 229 and Oppong v. Anarfi (2011) SCGLR 556. All of these cases hold inter alia that when an Appellant alleges that a judgment is against the weight of evidence, the trial court is enjoined to go through the entire record of appeal and make its inferences from the established facts to satisfy itself that the trial court has come to the right decision on the preponderance of probabilities. In the instant case the matter has not travelled far before the Interested Parties were trying to truncate the application for want of jurisdiction.
What we will however address which is more pertinent is the ground that the learned trial judge held that the Respondent’s application is not a cause or matter affecting chieftaincy.
In his submission on this ground of the appeal, the learned Interested Parties’ counsel contended that if the learned trial judge had carefully considered and evaluated the depositions and documents proffered by the Applicant, she would not have come to the conclusion that the matter did not constitute a cause or matter affecting chieftaincy.
A further submission of counsel is to pounce on paragraphs 5, 9, 10, 11, 12, 18 and 24 of Respondent’s affidavit and pronounced that these paragraphs confirm that this is a cause or matter affecting chieftaincy. Apart from these paragraphs, the Respondent’s affidavit in opposition to the Interested Party’s motion to strike out certain paragraphs found at pages 36-38 of the record of appeal, to counsel, also confirm that this is a cause or matter affecting chieftaincy. Also showing a chieftaincy cause or matter are the subpoena at the instance of the Petitioner, a rival to the 1st Interested Party at page 44 of the record of appeal.
It is the further submission of counsel that the averments of the Respondent, coupled with documents accompanying her application show clearly that “the Applicant sought clandestinely to impugn the nomination, election and installation of the 1st Interested Party by the kingmakers of the Sefwi Wiafo paramount stool, some of whom have been made interested parties in her application”. Counsel contended that the Respondent’s application was not a mere invitation to the court to pronounce on matters purely bordering on purported acts which breached rules of natural justice. And further that the application for judicial review was passed through “a back door to challenge the legitimacy of the 1st Interested Party’s enstoolment”.
Counsel followed up the above submissions with the reproduction of sections 57 and 117 of the Courts Act and section 76 of the Chieftaincy Act. Section 57 of the Courts Act limits the jurisdiction of courts of competent jurisdiction from entertaining either at first instance or on appeal a cause or matter affecting chieftaincy. Sections 117 of the Courts Act and 76 of the Chieftaincy Act give definition of cause or matter affecting chieftaincy.
Reacting to this ground of the appeal as to whether or not the Respondent’s application is a clandestine move and a back door tactics to impugn the integrity of the enstoolment of the 1st Interested Party, the Respondent’s counsel submitted that the Respondent’s application is not a cause or matter affecting chieftaincy.
Reproducing section 76 of Chieftaincy Act which is a statutory definition of cause or matter affecting chieftaincy aforementioned, counsel argued that the trial High Court was not being called upon to determine any of the five cause or matter spelt out under section 76 of the Chieftaincy Act. On the contrary, counsel contended that the complaint of the Respondent is that the Sefwi Traditional Council, the Omanhene, the two kingmakers and chiefs who gathered in the palace of the 1st Interested Party and made the pronouncement on Respondent’s destoolment, lacked the jurisdiction to depose her. Secondly, the destoolment offended the natural justice principles since it as without any recourse to her. And thirdly, the pronouncement of destoolment amounted to an illegality.
We have considered the arguments and authorities both statutory and decided cases which both counsel used to back their respective arguments as to whether or not the application of the Respondent was a backdoor tactics she engineered to challenge the legitimacy of the enstoolment of the 1st Interested Party Omanhene Nana Kwasi Bumankama, or a genuine call on the trial High Court to vindicate her rights because same had been trampled upon by the Interested Parties by their destoolment of her.
To start with, the gravamen of the argument of the learned Interested Parties’ counsel on this ground of the appeal is that the Respondent had mounted a purely chieftaincy action and disguised same as a redress of the breach of the principles of natural justice as hereinbefore stated. To convince this court that the application of the Respondent at the court below is a cause or matter affecting chieftaincy, it is not enough for the Interested Parties’ counsel to pounce on a number of paragraphs of the Respondent’s affidavit in support of her statement of case and a few paragraphs in the dismissal of the application. Unfortunately, this is what the counsel has done. Thankfully the task of proving whether or not a cause or matter is a chieftaincy cause has been half-solved by the statutory definition under section 76 of the Chieftaincy Act, 2008 (Act 759) and section 117 of the Courts Act aforementioned. These are as itemized under section 76:
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
the deposition or abdication of a chief
the right of a person to take part in the nomination, election, selection or installation of a person as a chief or in the deposition of a chief
the recovery or delivery of stool property in connection with the nomination, election, selection, installation, deposition or abdication of a chief, and
the constitutional relations under customary law between chiefs.
In his submission the learned Respondent’s counsel contended that the Respondent’s application does not come under any of the above. Indeed if a court is tasked to consider whether or not a cause or matter is a chieftaincy matter, the first safe way is to look at the reliefs of the Applicant.
We entirely agree with the learned Respondent’s counsel that the application of the Respondent are purely for a vindication of her rights as the paramount Queenmother of the Sefwi Traditional Area. The reliefs of the Respondent have already be reproduced earlier in this judgment.
As the learned trial Judge put it at page 87 of the record of appeal in her ruling:
Reading through the Respondent’s application, the prayer of the Respondent is that the Sefwi-Wiaso Traditional Council has no jurisdiction to destool her since it is the judicial committee of the Western Regional House of Chiefs and further she was not given a hearing. To the court’s mind this reflects on the reliefs sought by the Respondent. There is no prayer to investigate the eligibility of the 1st Interested Party as a chief. There is only an invitation to the court to consider the work of the Sefwi Traditional Council.
We think the learned trial judge has correctly stated the position because in her reliefs as aforesaid, the Respondent was concerned with her status as the paramount queenmother of the Sefwi Wiafo
Traditional area and not to challenge the eligibility of the 1st Interested Paty. The courts have in a number of cases hold that the mere fact of something said in relation to a chieftaincy matter or of a chief in a particular cause or matter does not by itself constitute a cause or matter affecting chieftaincy.
Sophia Akuffo JSC (as she then was) has this to say in the case of Republic v. High Court, Koforidua; Ex parte Bediako II (1998-99) SCGLR 91 at page 102 of the report:
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 certiorari before the High Court does not necessarily constitute the matter as affecting chieftaincy for the purposes of section 57 of the Courts Act, 1971, where such a question arises as a matter secondary to the determination of the fundamental question of 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 and whether or not a person has been properly nominated, elected and installed according to the applicable custom and 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.
The Supreme Court in the case of In Re Ogua Paramount Stool; Garbrah and Others Central Regional House of Chiefs and Haizel (2005-2006) SCGLR 193 Professor Justice Modibo Ocran (as he then was) has this to say about the criteria of tagging a cause or matter affecting chieftaincy:
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 a cause in the sense of a justiciable controversy, with respect to any of the matters listed therein, and not literally in respect of every matter bearing on chieftaincy. ... (it) does not constitute a cause or matter affecting chieftaincy within the meaning of section 66 of Act 370 because it does not raise an actual challenge to the nomination, election, appointment and installation of a person as a chief, or his/her destoolment or the right of participation in such decision making or ceremony.
From the above holdings of the highest court of the land, in the instant case there is no basis for the learned Interested Parties’ counsel to tag the application before the trial judge as a matter or cause affecting chieftaincy. It seems that all that the counsel for the Appellants, with all due deference, wanted to do is to frustrate the hearing of the substantive application found at pages 1-25 of the record of appeal as submitted by Respondent’s counsel. We say so because it appears that counsel wanted to use any available reference to the 1st Interested Party Nana Kwasi Bumankama as a cause or matter affecting chieftaincy. This explains why they first brought an application to strike out paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17 and 30 of the affidavit in support as aforementioned. The trial judge partly acceded to the motion and struck out paragraphs 13, 14, 15, 16, 17 and 30. Not satisfied, the Interested Parties have now considered the remaining paragraphs of the original application and statement of case and affidavit in opposition to their motion to strike out the entire action of Respondent because same is a cause or matter affecting chieftaincy. This rather is untenable and misconceived because the Respondent’s application is exclusively on her status as a paramount Queen mother of her traditional area.
Further, the Interested Parties are not allowing space to the Respondent to ventilate her grievance. But in every originating process, the party must state the facts from his/her perspective to the court. It is when the opposing party also states his/hers that the issues are joined for determination. This is the essence of pleading. But to consider the factual narration of the Respondent by way of her affidavit as constituting a challenge to the current occupant of the Sefwi Wiaso Paramount stool is to say the least seems to be engaging in, with respect, a mischief. If one wants to go by the absurd argument of 1st Interested Parties’ counsel every single reference to a chief in an application would be tagged a chieftaincy matter.
We say so because the learned respected Appellants’ counsel is aware, or ought to be aware that there is a substantive matter pending against the enstoolment of the 1st Interested Party before the Western Regional House of Chiefs. Indeed if the court below dares to enquire into the position of 1st Interested Party, the Supreme Court would stop her.
We have looked at the appeal dispassionately and we think there is no merit in same. The appeal is hereby dismissed and the decision of the trial High Court affirmed.
L. L. MENSAH
JUSTICE OF APPEAL
IRENE C. LARBI (MRS), J.A. I agree.
IRENE C. LARBI (MRS)
JUSTICE OF APPEAL
ANGELINA M. DOMAKYAAREH (MRS), J.A. I also agree.
ANGELINA M. DOMAKYAAREH (MRS)
JUSTICE OF APPEAL