IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
CAPE COAST - A.D 2018
THE REPUBLIC - (Defendant/Respondent/Appellant)
WILLIAM CHIKA MORGAN -(RESPONDENT/RESPONDENT/APPELLANT) EX PARTE WASSA FIASE TRADITIONAL COUNCIL -(APPLICANT/RESPONDENT)
DATE: 25 TH JULY, 2018
CIVIL APPEAL NO: H1/29/2018
JUDGES: JUSTICE IRENE C. LARBI (MRS) J.A. (PRESIDING), JUSTICE L. L. MENSAH J.A., JUSTICE ANGELINA M. DOMAKYAAREH (MRS) J.A.
VICTOR KWESI OPEKU FOR RESPONDENT/APPELLANT
JOHN MERCER FOR APPLICANT/RESPONDENT
L. L. MENSAH, J.A.
This is an appeal against the judgment of the High Court, Sekondi dated the 5th of April 2017 against Respondent/Appellant (who will be referred in this appeal as the Appellant) in favour of the Applicant/Respondent (who will be referred to as the Respondent).
The facts of this case are that as a result of a petition of destoolment charges brought against the Appellant herein William Chika Morgan (formerly known and called Osagyefo Kwamina Enimil VI) who was the Paramount Chief of the Wassa Fiase Traditional Area, Tarkwa at the Western Regional House of Chiefs, judgment was delivered against the Appellant on the 10th day of October 2016 by the Judicial Committee of the said Western Regional House of Chiefs.
Aggrieved by the said decision to remove him from the Paramount Stool, the Appellant challenged the decision of the Judicial Committee by way of an application for judicial review in the nature of certiorari at the High Court, Sekondi, but the application was dismissed on the 16th day of March 2016. What the dismissal of the Appellant’s certiorari application means is that his destoolment by the Judicial Committee of the Western Regional House of Chiefs still stands, because Appellant could not overturn the said destoolment.
Meanwhile the Respondent alleged that the Appellant has held on to the keys to the offices reserved for the President of the Wassa Fiase Traditional Council are administered from. The Respondent filed a motion for an order of injunction by way of judicial review to restrain the Appellant whether by himself, his servants, agents, assigns or privies from in anyway interfering, obstructing or hindering the administrative work and functions of the Wassa Fiase Council and or its officers. It is alleged that vital documents and materials for the Traditional Council where the council is needed by the Registrar and his staff for the smooth administrative running and functioning of the Council. However, due to the seizure of the keys to its offices by the Appellant, the staff and the Acting Omanhene could not have access to the running of the said Traditional Council and its Judicial Committee. To give effect to his seizure of the keys to the said offices, the Appellant was alleged to have barricaded the doors and windows of the Traditional Council which prevented access to the offices. On 30th October 2016, the Appellant was said to engage “macho men” or hirelings who invaded the premises of the Traditional Council and prevented the sittings of Judicial Committee of the Traditional Council. The Respondent therefore brought the said application to restrain the Appellant from further hindering the running of the Traditional Council.
In his reaction the Appellant who opposed the application argued that the Western Regional House of Chiefs could not have made any orders against him since he was not a party to the suit in that forum. What is more, he had not been served with any destoolment charges, neither had he been given the opportunity to defend himself. That in any case there was no pronouncement made by a court of competent jurisdiction that he has been destooled. In consequence thereof he could not be restrained by an application for judicial review in the nature of injunction from carrying out his functions as the Paramount Chief of Wassa Fiase.
After hearing both parties, the learned trial High Court Judge granted the application in the order of injunction with the following reliefs and or orders:
(a) The Respondent cannot hold on to the keys to the office of the President of the Wassa Fiase Traditional Council. He is to hand over same to the Registrar of the Traditional Council.
(b) The Respondent, his servants, agents, assigns, privies etc. are restrained from interfering, obstructing or hindering the administrative work or functions of the Wassa Fiase Traditional Council.
Aggrieved by the said ruling, the Appellant appealed to this court with the following grounds of appeal found at page 79 of the record of appeal:
(a) The High Court Judge veered into the arena of Chieftaincy in making the orders.
(b) The High Court Judge erred in relying on a decision of the Judicial Committee where the Appellant was not a party.
(c) Additional grounds shall be filed upon receipt of the full record of appeal.
Although the Appellant intimated that additional grounds of appeal shall be filed upon receipt of the full records of appeal, no such additional grounds of appeal were filed by the Appellant. However in his written submission, the learned counsel for the Appellant filed something he labeled “fuller rendition of grounds of appeal”. This is how counsel puts it at page 3 of the written submission.
“In addition to the above grounds of appeal, I wish to draw the attention of the court to the fact that a fuller rendition of the grounds of appeal shall clearly without a doubt include the following:
That the High Court judge erred when he purported to rely on a decision that was non-existent.
The High Court judge erred when purported to rely on the supplementary affidavit that was filed late, on the day of the ruling.
The High Court judge erred when he purported to rely on a supplementary affidavit that exhibited a decision entirely different from what the Applicants had maintained was the decision they sought to rely on in their main affidavit.
The High Court judge erred when he purported to hear the application before him on a matter that was still pending before the Supreme Court of Ghana.
In reaction to the above “fuller rendition of the grounds of appeal”, the learned counsel for the Respondent submitted that the lawyer for the Appellant, against all norms of the practice of law, has sought to argue other grounds of appeal not contained in the notice of appeal. Respondent’s counsel further submitted that there is no provision in the Court of Appeal Rules (C.I. 19) for “fuller rendition” of grounds of appeal contained in a notice of appeal. Counsel quotes the relevant rules in support of his argument.
Counsel for Respondent contended that since the jurisdiction of this court is appellate, the court is not seised with original jurisdiction. That it is the notice of appeal which determines the grounds of appeal to the court and also sets the parameters for the exercise of the court’s appellate jurisdiction. Counsel finally contended that since the Appellant filed no additional grounds of appeal, nor did he amend his notice of appeal, this court cannot consider the so-called, “fuller rendition of grounds of appeal” as this is against rule 8(7) of C. I. 19.
In his reaction to the above, the Appellant filed a Reply dated 29th May 2018 and insisted that what he terms “fuller rendition of the grounds of appeal” “are not additional grounds of appeal, rather Appellant’s response to same is that the supposed additional grounds are rather issues that already filed. That being the case the Appellant need not filed (sic) additional grounds of appeal in order to canvas them as part of his appeal”.
We entirely agree with Respondent’s counsel that what the Appellant filed which he christened “a fuller rendition on the grounds of appeal” is not known to the Court of Appeal Rules, 1997 C.I. 19 as aforementioned. All the purported grounds of appeal suffer from all disabilities incidental to proper grounds of appeal in a notice of appeal, and same are contrary to any known grounds of appeal. Same offend against rule 8(5) of the Court of Appeal Rules which provides:
The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
In the instant case, the Appellant failed to number his purported “fuller rendition of the grounds of appeal”. Secondly, the Appellant failed to come for leave so as to have the mandate to argue his strange grounds of appeal. Thirdly all the purported grounds are at large – indeed they are lost in the record of appeal, so to speak, because having failed to label them, one does not know how same could be dealt with.
In a recent judgment in this very Court, we implored counsel to treat their grounds of appeal with maximum care and attention. They are to frame or formulate the grounds with professionalism and finesse. This is because since the Court of Appeal has no original jurisdiction where issues are raised between the parties and set down for trial, at the Court of Appeal, it is the grounds of appeal that invokes the jurisdiction of the Court, as rightly contended by Respondent’s counsel. Any ground which do not conform to the rules suffers the indignity of being struck out.
As provided under rules 8(6) and (7) of the Court of Appeal rules:
6. No grounds which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of evidence; and any ground of appeal or any part of the appeal which is not permitted under this rule may be struck out by the Court of its own motion or on application by the Respondent.
7. The Appellant shall not, without the leave of the Court, urge 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 fit.
That the courts are particular about the proper formulation of the grounds of appeal finds itself in the case of Republic v. Condua; Ex parte Aaba (substituted by) Asmah (2013-2014) 2 SCGLR 1052. In that case, the Supreme Court per Akamba JSC decried against a poorly formulated ground of appeal in holding 1 as follows:-
The omnibus ground of appeal that “the judgment cannot be supported having regard to the evidence on record”, was a ground commonly used in criminal appeals. It was not used in civil appeals where the proper formulation was that “the judgment is against the weight of evidence”. Consequently, the Appellant’s ground of appeal alleging that “the judgment cannot be supported having regard to the evidence on record would be struck out”.
See also the case of Kwa Kakraba vs. Kwesi Bo (2012) 2 SCGLR 834 holdings 1 and 2 where the Supreme Court criticized the formulation of the grounds of appeal which were considered defective under the rules of the Supreme Court.
In the instant case, since the grounds of appeal which were formulated as “fuller rendition of the ground of appeal” are not known to the Court of Appeal Rules, same are hereby struck out.
Despite the striking out the four unacceptable grounds of the appeal as aforementioned, the remaining two grounds which are contained in the Notice of Appeal found at page 79 of the record of appeal are however enough to deal with the merit of the appeal.
We now proceed to examine the merit of the appeal starting with the first ground of the appeal. It is that
The High Court judge veered into the arena of Chieftaincy in making the orders.
On this ground of the appeal after reproducing clauses of articles 273 and 274 of the 1992 Constitution, and sections 25, 26, 27 and 28 of the Chieftaincy Act, 2008 (Act 759), the learned counsel for Appellant submitted that those clauses of the Constitution and sections of the Chieftaincy Act, confer exclusive jurisdiction on the various judicial committees of the Traditional, Regional and National House of Chiefs in matters affecting chieftaincy and not on courts of competent jurisdiction. Counsel refers and quotes extensively from the case of The Republic vs. Michael Conduah (2013) 67 G.M.J. page 15. This same case is reported as Republic vs. Conduah; Ex parte Aaba (substituted by) Asmah (supra). We will consider into more details the probative value or otherwise of this case to the instant appeal later in this judgment.
Other cases which Appellant’s counsel referred to as having the High Court’s jurisdiction ousted in causes or matter affecting Chieftaincy are: Republic v. High Court, Denu; Ex parte Avadali IV (1993-94) 1 GLR 561 SC and The Republic vs. High Court, Koforidua; Ex parte Nyame (1994-95) GBR 513 SC.
It is the further submission of Appellant’s counsel that since the High Court has no jurisdiction to meddle into a cause or matter affecting chieftaincy the said injunction of the trial court is void ab initio. Counsel contended that the High Court Judge was palpably wrong shows in how at page 69 of the record of appeal “he went on as far as to set down issues for determination by the parties without any recourse to them which was in clear violation of Order 32 rule 2 of C.I. 47 which clearly directs that issues must be set down in an application by the Plaintiff failing which the Defendant shall file any issues thereof. It was at this point that the learned High Court Judge should have realized that he was in error and should have dismissed the motion”, so contended the learned Appellant’s counsel.
The learned Respondent’s counsel in reaction to the above argument of the Appellant is that the issues raised and determined by the High Court Judge was not “a chieftaincy matter as advocated at length by lawyer for the Appellant”. He contended that the court below was not invited to make a determination of a cause or matter affecting chieftaincy. Counsel submitted that the Respondent was well aware not to invite the court to eat a forbidden fruit. The only reason the Respondent Traditional Council applied for the injunction was to ensure tranquility and security for members of the Council, both chief and administrative staff in their functions and duties as assigned by law.
Counsel contended that the mere fact that there is a dispute as to whether or not a person is a chief rears its head during an application, will by itself, not constitute a cause or matter affecting chieftaincy. Counsel cites the case of The Rep. vs. Osabarima Okoyeredom Kwadwo Sito 1; Ex parte Opanin Kwadwo Forjour (2006) 4 MLRG 58 holding 9.
We have looked at the argument exhibited by both counsel of the parties as to whether or not the injunction application determined by the learned trial High Court Judge on that 5th day of April 2017 is a cause or matter affecting chieftaincy. As the one who is asserting that the injunction brought against the Appellant is a cause or matter affecting chieftaincy, the onus rests on the Appellant to discharge same.
One notorious fact which would remain with us for a long long time is the raging controversy that often arises when the superior courts, particularly the High Court exercises its supervisory jurisdiction over the Traditional Councils and Regional House of Chiefs in particular, such as the situation in this instant case. How is the line to be drawn between the supervisory role of the High Court in chieftaincy-related matters on the other hand and the real cause or matter affecting chieftaincy?
In this instant case did the Respondent Wassa Fiase Traditional Council acting per its President Nana Kwadu Kyerefour invoke the supervising jurisdiction of the High Court, Sekondi as a cloak, a pretext and a camouflage to make the High Court dabble in a purely chieftaincy matter or it is sincere application to open the doors of the Traditional Council for its administrative purposes? The answer lies in whether or not the order made by the High Court would amount to influencing whether or not the Appellant was properly deposed by the Judicial Committee of the Western Regional House of Chiefs.
From the totality of the evidence on record of appeal it appears that the main subject-matter of the judicial review in the form of injunction on which the High Court pronounced its decision, has to do exclusively with the Appellant holding on to the keys to the office of the Acting President of the Traditional Council and the offices of the Registrar and staff.
In its 12 paragraph affidavit in support of the motion for the order of injunction, the Respondent deposed to serious allegations of certain commissions against the Appellant which seemed to bring his honourable and dignified position as a (former) paramount chief into disrepute.
These are holding the keys of the President of the Traditional area and refusing to hand them over same in spite of several demands; and barricading the doors and windows of the Traditional Council which prevented access to the offices. This conduct had been confirmed by Exhibits B series which are photographs showing the barricading of the doors and windows of the Traditional Council. Finally engaging “macho men” or hirelings who invaded the premises of the Traditional Council and prevented sittings of the Judicial Committee of the Respondent Traditional Council. One would have expected the Appellant to deny this in his seven paragraph affidavit in opposition at pages 45-46 of the record of appeal to the injunction application. What this means is that the Appellant actually withholds the keys to the offices of the Respondent and uses criminal elements to harass and prevent the Judicial Committee from performing its judicial, traditional and administrative duties as provided by statute.
In his Reply to the written submission of the Respondent, the Appellant reproduced section 34(1) of the Chieftaincy Act 2008 Act 759 to justify Appellant’s continued blockage and impediment to the smooth functioning of the constitutionally and statutorily mandated body like the Respondent Traditional Council and in particular its Judicial Committee.
Article 34(1) of Act 759 provides:
Subject to subsection (2), an appeal to the National House or to a Regional House against or to a Regional House against a final judgment or order operates as a stay of execution of the judgment or order appealed against and any other order made on it consequentially unless the appellate tribunal otherwise directs.
Unfortunately for the Appellant there is no evidence on record that the Appellant had appealed against the decision of the Regional House of Chiefs. In his seven paragraph affidavit, no evidence of such appeal pending appeared, not even in the argument of counsel. Indeed in the statement of case of the Appellant found at page 47 of the record of appeal there was nothing filed by Appellant to show that there was an appeal against his destoolment. The only process found in connection with his destoolment was the ruling of the trial court against his certiorari application which the Appellant had instituted to quash his destoolment by the Western Regional House of Chiefs. Unfortunately, the High Court dismissed the application.
Again the Appellant’s counsel is arguing that the Appellant’s appeal operates as a stay of execution. Does this mean that the Appellant is sitting as the paramount chief of the Respondent? Does he sit in state to receive homage from the Divisional chiefs, Queenmothers and receives all the respect and courtesies incidental to his state as the paramount chief of the Wassa Fiase Traditional Area? If the answer is in the negative, why is he holding the keys to the Respondent Traditional Council?
As rightly contended by the Respondent’s counsel, the mere fact that there is reference to the name of a chief, a stool, or a skin in an application such as in this instant case concerning the Appellant, does not mean it is a cause or matter affecting chieftaincy. It has been variously held that an application to remove the name of a chief from the National Register of Chiefs; or to claim a membership of a royal family such as in Osei v. Siribour II (1984-86) 1 GLR 588 SC; or an action for declaration that occupation of a stool should be by rotation at a time when there was no vacancy on the stool as held in Essilfie v. Anafo VII (1993-1994) 2 GLR 1 SC; or the claim to be head of various communities in a given town or city do not automatically make such actions cause or matter affecting chiftaincy. See Republic v. National House of Chiefs; Ex parte Faibil III (1984-86) 2 GLR 731 CA; Republic vs. High Court, Denu; Ex parte Avadali (supra).
The above cases hold that it is not in every action which relates to a chief, stool or skin that amounts to cause or matter affecting chieftaincy. The Supreme Court per Sophia Akuffo JSC (as she then was) has this to say in the case of Republic vs. High Court, Koforidua; Ex parte Bediako II (1998-99) SCGLR91 at page 102 as follows:-
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 one affecting chieftaincy for the purposes of section 57 of Courts Act, 1971, where such a question arises 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 such a person has been 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.
See also Amonoo v. Central Regional House of Chiefs (2003-2005) 1 GLR 577; and In re Osu Stool; Ako Nortei II (Mankralo of Osu) vs. Nortey Owuo III (Intervener) (2005-2006) SCGLR 628 holdings 1 and 2.
The meaning of cause or matter affecting chieftaincy explains itself in sections 117 of the Courts Act, 1993 (Act 459) and sections 76 of the Chieftaincy Act, 2008, (Act 759) where the latter defines “cause or matter affecting chieftaincy” to mean
a cause, matter, question or dispute relating to any of the following:
(a) the nomination, election, selection or installation of a person as a chief or the claim of a person to be nominated, elected, selected or installed as a chief,
(b) the deposition or abdication of a chief
(c) the right of a person to take part in the nomination, election, selection or installation of a person as a chief or in the deposition of a chief
(d) the recovery or delivery of stool property in connection with the nomination, election, selection, installation, deposition or abdication of a chief, and
(e) the constitutional relations under customary law between chiefs.
Given the decided cases, the aforementioned definition, coupled with the facts and circumstances of this instant case, the issue raised in this appeal have nothing to do with a cause or matter affecting chieftaincy as the learned Appellant has relentlessly and copiously argued all the way. Indeed the trial High Court Judge was not called upon to determine the legality of the destoolment of the Appellant. The status and integrity of the position of the Appellant was what was considered by the Judicial Committee of the Western Regional House of Chiefs.
Again in his written submission, the learned counsel referred to some extracts from The Republic vs. Michael Conduah (supra) and concluded that the Conduah case “falls on all fours with the instant case”. With all due deference, the two cases have nothing in common, save that the instant appeal has a collateral chieftaincy material touching on the fringes, but not its centrality. If the learned counsel for the Appellant, with all due deference, had considered the facts as brilliantly narrated in the judgment of Akamba JSC (as he then was) he would not have said that the two cases are the same in substance.
In the Michael Conduah case (supra), the trial High Court Judge granted an application for interim injunction restraining the Appellant from exercising all public functions as a chief until his status as the Omanhene of the Edina Traditional Area had been determined by the appropriate forum. There was also no writ on which the application was predicated. It is to be noted that the trial High Court was said to have interfered with cause or matter affecting chieftaincy because that was what she precisely did. In the instant appeal what the trial court was concerned with was the keys that the Appellant was called upon to surrender to the Respondent. What is more, the application before the trial court was not interim injunction under the old High Court Rules 1954 (LN 140A) Order 50 rules 7 and 8 which is now Order 25 rule 12 under the new High Court rules C. I. 47, 2004 which provides that “the Plaintiff shall not make an application i.e. interlocutory injunction before the issue of the writ”.
In the instant appeal, however the Respondent brought the application under Order 55 Rule 1(a), (b), (c), (d) and (e) which deal with judicial review. There is a world of difference between application for interim injunction in the High Court under Order 25 of C.I. 47 and the supervisory powers of the High Court under Order 55 of C.I. 47 over lower adjudicating courts and tribunals. In the latter case, the application is an originating motion which needs no writ of summons, whereas an application for interim injunction under Order 25 of C.I. 47 has to use a writ of summons as a sub-structure, in the absence of which the order would be declared void as the scenario in the Michael Conduah case (supra). This is remiscent of the case of in Macfoy v. United Africa Company Ltd. (1961) 3 All ER 1169 at 1172 per Lord Denning whose dictum on an act which is void and a nullity is also said to be incurably bad. This is not the scenario in this instant case.
A final point on this ground of the appeal has to do with the Appellant’s counsel submitting that the trial High Court Judge set the issues raised by the affidavit down for trial. And that this is an infraction of Order 32 rule 2 of C.I. 47 because the trial court raised issues suo motu found at page 69 of the Record of Appeal. What is more, counsel argued, the trial judge referred to sections 12(1), 13, 66 and 68 of the Chieftaincy Act though the trial judge “was very much aware that the matter was one that affected chieftaincy but was determined to see it through proferring any reasons for that decision”.
Our reaction to the Appellant counsel’s beef against the trial judge’s setting down issues raised by the affidavit evidence of both parties is that the Judge had not committed any procedural sin to warrant attack on him. Order 32 rule 2 applies more especially to actions where there are pleadings by the parties. In the motion for injunction by way of judicial review, a formal application for directions is not mandatory. Indeed it is common for trial judges to set down issues in the form of legal points raised in the submissions of the counsel of the parties. Since the processes filed by the parties were based on motions, there was no need for the formality of application for direction. Again the mere fact that the learned trial Judge made references to sections of the Chieftaincy Act does not mean that he was dabbling in cause or matter affecting chieftaincy.
We have looked at this ground of the appeal and though the learned Appellant’s counsel traded huge mass of arguments with innumerable references to several statutes, decided cases and the Constitution, his argument could not be vindicated by these references. In the result, the appeal on this ground is hereby dismissed.
The next and final ground of the appeal is that The High Court Judge erred in relying on a decision of a Judicial Committee where the Appellant was not a party.
In this ground of the appeal, the learned Appellant’s counsel submitted that from the ruling of the trial High Court Judge, the case in which the Respondent claimed the Appellant was destooled, did not bear the name of the Appellant to warrant his being destooled. Counsel asks who was the one who represented the Appellant at the Western Regional House of Chiefs. Counsel wondered whether or not the Appellant gave his consent to be represented. Counsel refers to the case of Ghana Muslims Representative Council & Others vs. Salifu & Others (1975) 2 GLR 246 at 265 holding 3 CA.
We respectfully wish to say that the ratio in the Ghana Muslims Representative Council & others vs. Salifu & Others (supra) cannot be applicable to this instant appeal. This is because saying that the Appellant in this instant appeal was not represented at the forum where he was declared destooled is not the same as a party being sued or that a party suing in its representative capacity. We, with due deference, do not know how the huge case of the Ghana Muslims Representative Council (supra) can be compared to this instant appeal, granted no one represented Appellant at any forum where he was destooled.
Again counsel referred to the case of Nana Abene II & Another vs. Maxwell Armah & 3 Others (2017) 115 GMJ 201 CA. With all due deference, we could not appreciate the nexus between the instant case and the Nana Abene II & Another vs. Maxwell Armah & 3 Others (supra). Neither the facts and circumstances of that case are relevant to this instant case. We say so because the learned Appellant’s counsel is alleging fraud against the Respondent at the court below and by extension, the Western Regional House of Chiefs. But as counsel is perfectly aware, fraud in a civil litigation cannot be mentioned causally or in passing because it is a serious matter which is ranked to the level of a criminal matter. And the Court of Appeal in the Nana Abene II case (supra) considered several reliefs at the Akwapim Traditional Council among which were reliefs (c), (d) and (e). We would have wished counsel would have, with all due respect, digest the full judgment of Sowah JA. See particularly pages 217 to 220 of the law report on fraud and its related matters which have been adequately dealt with by the learned justice of the Appeal.
Seen from another perspective, as held by the Supreme Court in the case of Republic vs. High Court, Accra; Ex parte Odonkorteye (1984-86) 2 GLR 148 which was referred to by Sowah JA in the Nana Abene II case (supra), if the Appellant in this instant appeal found as a fact that fraud was perpetrated against him he ought to have timeously gone to the Western Regional House of Chiefs to have the decision set aside. It appeared that the Appellant’s case at the court below, whether in the certiorari application or the injunction was with respect, handled with feeble punches. The affidavit in opposition and the statement of case found at pages 45-48 with due deference were bereft of any serious commitment. Since fraud vitiates everything the Appellant could have particularized same. However as held by the majority of the Supreme Court in the Ex parte Odonkorteye (supra), the High Court could not enquire into the alleged fraud, for theft could only be established through going into the matter. In this instant case, the trial High Court Judge’s decision would have incurred the wrath of certiorari. This is because that would amount to turning the injunction motion into a cause or matter affecting chieftaincy, the very thing counsel is accusing the trial judge of.
The learned Appellant’s counsel also seriously indicted the ruling of the trial court for factoring into his judgment Exhibit AA attached to a supplementary affidavit filed in the very morning the judgment or ruling was to be delivered but when it was adjourned. The learned Appellant’s counsel inveighed against the judge for considering the newly filed supplementary affidavit and Exhibit AA found at pages 53 to 61 of the record of appeal. Paragraph 4 of the said supplementary affidavit sworn to by the Respondent’s counsel reads:
That I have exhibited herewith marked Exhibit AA judgment of the Judicial Committee of the Western Region House of Chiefs in a suit entitled Abus. Assuah Kodwe vs. Osagyefo Dr. Kwamena Enimil VI, which declared among others the purported installation of the Respondent herein as Omanhene of Wassa Fiase “null and void and of no legal effect”. (my emphasis).
In his further submission on the supplementary affidavit and Exhibit AA, the learned Appellant’s counsel contended that the acceptance of the supplementary affidavit and its attached Exhibit AA “was a most grevious error on the part of the learned High Court Judge which he had no authority whatsoever to do and we urge upon this Honourable Court not only to strike out entirely the said supplementary affidavit but the ruling which emanated from that unlawful consideration made by the judge. This is because, clearly the ruling was influenced by this supplementary affidavit filed at a time when arguments had closed and the appellant herein did not have the opportunity to respond to same before the judge delivered his ruling”.
Counsel submitted that “there is no indication on the record that counsel for Respondent made any representation to the court for his said supplementary affidavit to be considered and consequential opportunity given to counsel for Appellant herein to make any counter argument against same”.
The learned counsel for Appellant went on to quote section 296 of the Constitution which deals with the exercise of discretionary powers in a person or authority, which should be fair and candid and without prejudice, or personal dislike but same to be exercised with due process.
We have considered the submissions on this leg of this appeal. What we noticed is that the learned Appellant’s counsel had the temerity to question what authority the learned trial Judge had to admit the supplementary affidavit and the exhibit. The authority that the Judge exercised was conferred on him by the 1992 Constitution and the Courts Act, 1993 Act 459. At the same time counsel reached for article 296 of the Constitution and thereby conceding that the learned trial judge could exercise his discretion after all, save that “he made the decision in error”. Counsel supported his submission with the case of Henry Kweku Owusu v. The Republic (2010) 28 MLRG. Counsel also accused the trial court of giving undue advantage to the Respondent to the detriment of the Appellant. He supported his attack on the Judge with the case of In re Blay-Miezah (Dec.) (2001-2002) SCGLR 341 holding 4.
We think the persistent blame poured on the learned trial Judge is unnecessary. The judge was persistently being blamed for not allowing the Appellant’s counsel to make a submission on the reception of the supplementary affidavit and Exhibit “AA”. Our answer to all this is that the learned Appellant’s counsel is only reading some aspect of the script of the record of appeal. As aforementioned, there is something feeble, tenuous and non-committal in how the Appellant confronted the Respondent at the court below. Since there is no evidence from the record of appeal that the learned trial judge tied the hands of the Appellant while allowing the free-handed Respondent to pummel him relentlessly, we think the learned trial Judge had exercised his discretion fairly and judiciously in allowing the said Exhibit AA and the supplementary affidavit. We were expecting the learned Appellant’s counsel to argue that the said documents did not come from proper custody or that they were tainted, or in any other way was inadmissible. However in as much as the documents were admissible within the parameters of the law, the learned counsel should with all due deference, cease fire in hurling persistent barrage of missile against the learned trial judge. It is also for this reason that the case of Henry Kweku Owusu v. The Republic (supra) and the In re Blay-Miezah (supra) have no space in this appeal. In the latter case, the facts and circumstances are far removed from this instant case to admit cross-examination as suggested by Appellant’s counsel.
Finally, the call of counsel for Appellant for fresh evidence to be led under section 26 of the Court of Appeal Rules C.I. 19, is too late for this appeal which from the above examination of the entire evidence is fated to fail. The trial Judge was clever enough to steer clear of the bait of dabbling in the chieftaincy dispute which has been raging in the Wassa Fiase Traditional Area for several years now.
One more word before we sign off this appeal. The Respondent’s counsel mentioned in his submission that this is a quia timet injunction. This however, with respect is not correct. A quia timet injunction looks to the future. It is an injunction granted for preventing a fear of probable future injury to property. The applicant must prove imminent danger of incurring substantial loss or damage that cannot be compensated for. The instant appeal where the keys are to be surrendered is not a timeo “I fear”, but a continuing act by the Appellant.
We think the trial judge did the right thing and same is supported by the record of appeal to grant injunction to restrain the Appellant from, with due deference, unreasonably holding on to the keys to the offices he was legally, at least for now, debarred from interfering in. From which ever perspective we see this appeal, we think it cannot succeed. Same is therefore dismissed with the decision of the trial court, hereby affirmed.