SOWAH, J.A.:

Introduction

This is an appeal from the Ruling of the High Court, Koforidua, dated 26^th February 2016 by which the plaintiff's suit was dismissed on grounds of res judicata and abuse of the processes of the court.

The plaintiffs/appellants by a writ of summons filed on 9^th September 2015 claimed the following reliefs against the defendants'/respondents'

a. A declaration that the 1^st defendant’s name was gazetted in the National Register of Chiefs on 28^th September, 2011 by the 5^th defendant institution.

b. A declaration that the information/declaration contained in the said Chieftaincy Declaration Forms (CDFs) and other supporting documents as particularized in paragraphs 14, 15 and 16 of the statement of claim were fraudulently made by the 1^st and 2^nd defendants.

c. A declaration that the 3^rd, 4^th and 5^th defendants failed in their statutory duty to fully investigate the authenticity of the said declarations.

d. An order of this Honourable Court directed at the National House of Chiefs (the 5^th defendant herein) to cancel and/or nullify the purported registration of the 1^st defendant as Chief of Adusah in the National Register of Chiefs on grounds of fraud and misrepresentation.

e. Costs, including legal costs.

f. Any other relief(s) that the Honourable Court deems fit.

Plaintiffs’ Case

The background of the case as averred by the plaintiffs’ in their statement of claim was that on 11^th November 1981, the 1^st plaintiff was installed as chief of Adusah. In 1988, some elders of Adusah claiming to be kingmakers purported to customarily destool him and subsequently enstooled the 1^st defendant. The plaintiffs averred that a petition challenging these actions is currently pending at the Regional House of Chiefs, Koforidua.

In 2008, the 2nd defendant made a false complaint to the police about theft of the Black Stool. Whilst that criminal case was pending against the 2^nd plaintiff and others, the 1^st defendant started the process of registering his position as chief of Adusah and was eventually gazetted on 28^th September 2011. It is the plaintiffs case that the 1^st and 2nd defendant’s made false and fraudulent declarations and representations in the Chieftaincy Declaration Forms (CDF) to the 3^rd to 5^th defendants' who also relied on it without carrying out due diligence. Hence, the suit initiated at the High Court.

The Defendants’ Case

The 1^st and 2^nd defendants' pleaded res judicata in their statement of defence. The basis of the plea

was that the 1^st plaintiff had prior to this suit initiated a petition against the 1st defendant and others on the same facts before the Akuapem Traditional Council which suit was heard on the merits and adjudged in favour of the 1^st and 2nd defendants on 26^th July 2013. Thereupon the plaintiff therein who is the 1^st plaintiff/appellant herein filed an appeal against the decision to the Eastern Regional House of Chiefs which is still pending. The defendants also contended that the suit initiated at the Koforidua High Court was an abuse of process of court as the parties are before the Eastern Regional House of Chiefs.

On these bases the 1st and 2nd defendant’s filed a motion on notice to dismiss the suit under Order 11 rule 18(1) (d) of the High Court (Civil Procedure) Rules 2004, C.I. 47 and under the inherent jurisdiction of the court.

After hearing submissions the trial High Court dismissed the Suit in the Ruling which is the subject matter of this appeal.

Grounds of Appeal:

a. The trial High Court Judge erred in law when he held that the Judicial Committees of the Traditional Council and the Regional House of Chiefs have jurisdiction to determine the administrative act of inserting or removing a name from the National Register of Chiefs.

b. The learned trial Judge erred in law when he held that the plaintiffs/Appellants action is an abuse of the Court’s processes.

c. That the learned trial Judge erred in fact when he held that the issues before the Judicial Committee of the Akwapim Traditional Council are the same as the issues before the trial High Court, Koforidua.

d. Further Grounds of Appeal shall be filed upon receipt of the Record of Appeal.

In this appeal, the plaintiffs/appellants [hereafter called the ‘appellants'] are calling upon us to set aside the Ruling and Orders made there-under, to dismiss the 1^st and 2^nd defendants/respondents’ motion to dismiss suit with costs, and to make an order directed at the High Court, Koforidua to re-list the suit for hearing before the substantive Judge.

It is placed on the record that no additional grounds were filed as was intimated by the appellants in the Notice of appeal.

Arguments

Arguing ground 1 of the appeal, the appellants counsel submits that by virtue of the definition of “cause or matter affecting chieftaincy” in section 76 of the Chieftaincy Act 2008, Act 759, the judicial committees of the various Houses of Chiefs have no jurisdiction to determine the act of inserting or removing a name from the National Register of Chiefs. Consequently litigating such an issue at the forum of a Judicial Committee would in essence amount to nothing, as any orders made by the Judicial Committee on such issue would be contrary to statute, null and void.

The following cases were cited in support of this contention:

·         In re Oguaa Paramount Stool; Garbrah & ors vs. Central Regional House of Chiefs & Haizel [2005-2006] SCGLR 193

·         Republic vs. High Court, Kumasi, ex parte Bank of Ghana (Sefa & Asiedu interested parties) [2003-04] SCGLR 477

·         Republic vs. Thompson & 10 ors [2014] 73 GMJ 1; [2014] SCGLR 1396.

·         Agyeman & ors vs. Anane & ors [2013-14] SCGLR 241

Grounds 2 and 3 of the appeal which express criticism of the finding of res judicata and abuse of process were argued together. The appellants' counsel first submits that the issues determined by the Judicial Committee of Akwapim traditional council as stated by the committee at page 74 of the Record, did not include the issue of insertion and removal of names from the national Register which was the issue before the trial Court. In other words, the issues before the two adjudicating bodies were not identical hence res judicata and abuse of process did not arise.

Secondly, that even if the reliefs sought in this suit was determined by the Judicial Committee of the Traditional Council, that decision would have been void on grounds of lack of jurisdiction. Relying on Nyame vs. Kesse [1998-99] SCGLR 476 and Ampofo vs. Samanpa [2003-04] SCGLR 1153, it is submitted that the plea of res judicata could not be invoked in this present case since the Judicial Committee of the Akwapim Traditional Council did not have the competent jurisdiction to entertain the reliefs sought in this action, nor did the Judicial Committee in its judgment make any orders touching on the reliefs sought in this suit.

On his part, the respondents' counsel argued all the grounds of appeal together as they are similar.

His first submission is that the Judicial Committees of the Traditional Council and the House of Chiefs have jurisdiction when it hears a chieftaincy dispute to make an order that a name be inserted or removed and also have jurisdiction where an issue of fraud arises in a chieftaincy dispute before them to hear it as a corollary to the hearing. He relied for this contention on Republic vs. High Court Accra;

Ex parte Odonkorteye [1984-86] 2 GLR 148

Counsel further submits that the plaintiff/appellants reliefs (a), (b), (f) and (g) at the Akuapim Traditional Council are causes or matters affecting chieftaincy whilst reliefs (c), (d), and (e) on the issue of fraud were collateral to, and within the competence of the Traditional Council to hear and make declarations.

Relying on Bonney (No. 2) vs. Ghana Ports & Harbours Authority [2013-2014] 1 SCGLR 457, the respondents' counsel contended that the issue of fraud in the Chieftaincy Declaration Forms was raised in the chieftaincy dispute before the Traditional Council and even though the issue of fraud may not have been ruled on specifically, it was implied in the decision that the allegation of fraud had been rejected, hence the 1st respondent was held to be the chief of Adusah whilst the petition of the plaintiff therein was dismissed.

Furthermore, as the appellants have appealed that decision to the Eastern Region house of chiefs and the matter is still pending, the trial High court rightly held the suit before it to be caught by res judicata as well as being an abuse of court process because it is the same issues determined by the Akuapem Traditional Council.

Determination of the Grounds of Appeal.

The issue raised by the first ground of appeal is the question of the jurisdiction of the Judicial Committee of the Akuapim Traditional Council.

The appellants repeatedly argue in the written submissions that the trial High Courts’ decision was to the effect that the Akuapem Traditional Council had jurisdiction to determine the issues at stake, namely, the removal or insertion of the name of a chief from the National Register; when such an issue is an administrative act and not a cause or matter affecting chieftaincy for which the judicial committee of the Traditional Council or of the various houses of chiefs have jurisdiction.

A careful reading of the Ruling however shows this argument to be a misconstruction of the reasoning of the learned trial judge. The trial judge’s reasoning at pages 111 and 116 of the Record which we agree with was that the action was not seeking to set aside a judgment of a court or Judicial Committee on the assertion that it was procured by fraud. Rather, the plaintiff/appellants had sought in both suits before the Akuapem Traditional Council and the trial court to raise identical issues of fraud in the CDF’s submitted to the National House of Chiefs by the 1^st respondent. This is clearly seen from a comparison of reliefs (b), (c) and (d) in the petition to the Traditional Council and the reliefs endorsed on the writ of summons.

The reliefs sought by the 1^st plaintiff/appellant at the Akuapem Traditional Council were as follows:

a. A declaration by the Akuapem Traditional Council that nana Abene II, Chief of Adusah has not been destooled

b. An Order restraining the 1st defendant from holding himself out as the chief of Adusah

c. A declaration between the Akuapem Traditional Council that the entry made in the registry of the National House of Chiefs bearing serial number 2096, proclaiming the 1st defendant to be the chief of Adusah were induced by fraud.

d. A declaration by the Akuapem Traditional Council that the entries made in the Registry of the National House of Chiefs bearing the serial number 2070, proclaiming that the plaintiff herein was customarily destooled was obtained by fraud.

e. An order that the entries bearing serial numbers 2069 and 2070 be expunged from the Registry of the National House of Chiefs since they were obtained through fraud.

f. An order directed to the 1st defendant to return all stool items including the black stools to the caretaker of the Adusah stool properties

g. Perpetual injunction restraining the defendants' their agents and representatives from representing themselves as chief and or kingmakers of Adusah, pending the final determination of this matter.

There can be no disagreement that the reliefs numbered (a), (b), (f) and (g) are clear causes or matters affecting chieftaincy which the Akuapem Traditional Council had jurisdiction to determine.

The judicial committee of the Traditional Council heard this petition and gave judgment on the merits in favour of the defendant in a 31 page judgment. [See pages 49- 80 of the record of appeal]. Among its final orders were:

1. The plaintiff was customarily destooled by the qualified principal traditional title holders of the Adusah. His destoolment was declared valid.

2. The nomination, election and installation of the 1st defendant and his position as the incumbent chief of Adusa was upheld, and

3. Plaintiff was ordered to surrender all stool properties to the 1st defendant within one month

The appellants' concede that an appeal in respect of this decision is currently pending at the Koforidua Regional House of Chiefs.

The appellants contention that the Traditional Council could not determine the reliefs relating to the alleged fraud, and if it did, any order made by it are null and void is a hard proposition to accept because its implication will be that any time the issue of fraud arises in a cause or matter affecting chieftaincy; the judicial committees of the various houses will lose their jurisdiction to determine the matter.

The case of Republic vs. High Court Accra; ex parte Odonkorteye [1984-86] 2 GLR 148 was a chieftaincy dispute about succession to the stool of the Tekperbiawe Division of Ada. It was decided by the Supreme Court when the old Chieftaincy Act 1971, Act 370 was in force but the decision authoritatively speaks to the issues raised in this appeal.

The facts of that case were that the Traditional Council in hearing and giving judgment in the chieftaincy dispute pronounced upon an allegation of fraud that had been raised in the matter. As in the present case, the party who lost the case (i.e. the respondent) brought a fresh action at the High Court to set aside the judgment of the traditional council on grounds of fraud. Counsel for the applicant raised a preliminary objection that having regard to section 52 of the Courts Act, 1971 (Act 372), and section 15 (1) of the Chieftaincy Act, 1971 (Act 370) which had accorded exclusive jurisdiction in chieftaincy matters to traditional courts, the trial judge had no jurisdiction to entertain the matter. The trial judge ruled, however, that he was exercising the supervisory powers of the High Court and that the suit was not a call for the determination of a cause or matter affecting chieftaincy; that it was only a call to determine whether the judgment obtained at the traditional council was regular and untainted or otherwise; whether or not the alleged document upon which the judgment was said to have been made was a forgery; and whether or not any fraud had been perpetrated on the traditional council. He therefore heard the suit and entered judgment for the respondent.

The issues before the Supreme Court were whether it was the High Court or traditional council which was vested with jurisdiction to entertain a fresh action to set aside judgment on grounds of fraud; whether whatever the subject matter of a judgment, a party alleging fraud was entitled to bring action in the High Court to set it aside; and the remedy of a party dissatisfied with the decision of a traditional council on issue of fraud.

Allowing the application, the majority of the Supreme Court held that the issues of fraud raised before the High Court were matters within the competence of the Ada Traditional Council which, like any other adjudicating body, had power to set aside its own judgment if such judgment was obtained by fraud. Gbadago v. Tsili (1957) 2 W.A.L.R. 219, W.A.C.A. cited. It was noted that in any case, the Traditional Council had not been deceived. They had considered the evidence and had come to a conclusion that there was no forgery. Not only that, they had given effect to the articles of agreement by declaring the second applicant to be lawfully enstooled. If the respondents were dissatisfied with that decision their remedy was to appeal. The Supreme Court also observed that the action brought by the respondent in the High Court was nothing more or less than an attempt to circumvent the law. It was couched as an action for a declaration, but was, in fact, an invitation to the court to exercise an appellate jurisdiction, which it had not.

Section 52 of the Courts Act, 1971 (Act 372), and section 15 (1) of the Chieftaincy Act, 1971 (Act 370) which dealt with the jurisdiction and limitation of jurisdiction in chieftaincy disputes are in pari material with section 57 of the Courts Act 1993 [Act 459] and section 29(1) of the Chieftaincy Act, 2008 Act 759.

Section 57 of the Courts Act 1993 (Act 459) provides:

“Limitation of Jurisdiction in Chieftaincy Matters.

Subject to the provisions of the Constitution, the Court of Appeal, the High Court, Regional Tribunal, a Circuit and Community Tribunal shall not have jurisdiction to entertain either at first instance or on appeal any cause or matter affecting chieftaincy”.

And section 29 of the Chieftaincy Act 2008 (Act 759) provides in its subsection (1) as follows:

“Subject to this Act, a Traditional Council has exclusive jurisdiction to hear and determine a cause or matter affecting chieftaincy which arises within its area, not being one to which the Asantehene or a paramount chief is a party.”

Thus even though the High Court has supervisory jurisdiction in chieftaincy matters, the High Court have no original jurisdiction in causes or matters affecting chieftaincy [Articles 270-274 of the 1992 Constitution refers].

A careful reading of the authorities cited by appellant, that is, In re Oguaa Paramount Stool; Garbrah

ors vs. Central Regional House of Chiefs & Haizel and [supra] and Republic vs. Thompson & 10 ors [supra] show that the these authorities do not support the appellants case. In In re Oguaa for example, the substantive issue was not whether a party had been properly destooled or enstooled as in the present case. The main issue was in respect of the CDF and whether the insertion or removal of a name was a cause or matter affecting chieftaincy. It was held to be an administrative work and not a cause or matter affecting chieftaincy to be justiciable under the jurisdiction and competence of the National House of Chiefs. The appellant was thus advised to pursue the petition at the Regional House of Chiefs which was properly seized with the fundamental issue which was a cause or matter affecting chieftaincy which was then appealable to the National House of Chiefs.

The appellants' difficulty is with the issue of fraud; that if fraud is alleged then only an action at the High Court can resolve the matter. But as earlier noted, fraud was raised at the Akuapem Traditional Council and impliedly determined by the orders made. The appellants' proper course is to pursue the appeal they have appropriately filed at the Regional House of Chiefs. [Republic vs. High Court Accra; ex parte Odonkorteye [supra] followed] See also Bonney (No. 2) vs. Ghana Ports & Harbours Authority [supra] where the full bench of the Supreme Court held that even though the ordinary bench did not specifically rule on the particular issue of constitutionality of section 92(1) of the 1992 constitution, the submission on the unconstitutionality of the section had impliedly been rejected.

In New Brunswick Rail Co. vs. British French Trust Corporation Ltd (1939) AC 1 at page 19-20 H.L. Lord Maugham explained the doctrine of estoppel per rem judicatam in the following words:-

“The doctrine of estoppel is one founded on consideration and good sense. If an issue has been distinctly raised and decided in an action in which both parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them”

Also in the case of Atta Panyin vs. Nana Asani II; Atta Payin & another vs. Essuman (Consolidated) [1977] 1 GLR 83 C.A., it was held that the plea of estoppel per rem judicatam was applicable not only to the substantial issues but all matters that impinge on the issue.

In this present case on appeal, the claim before the trial High Court was not a claim to set aside a judgment obtained on grounds of fraud. That is, the fraud alleged is not in respect of the judgment of the Traditional Council but in respect of the CDF’s which issue the Traditional Council was called upon to determine and did determine. The subject-matter of the claim before the High Court was thus a veiled invitation to the court to exercise an appellate jurisdiction in respect of issues already determined by the Judicial Committee of the Akuapem Traditional Council. Counsel for the respondent was therefore right in contending that by the express provisions of section 57 of the Courts Act, 1993 (Act 459), and section 29(1) of the Chieftaincy Act, 2008 (Act 759), which gives exclusive jurisdiction in chieftaincy matters to Judicial Committees of the various Traditional Council’s and Houses of Chiefs, the High Court had no jurisdiction to entertain the action brought before it.

Moreover, as the petition which is a cause or matter affecting chieftaincy is properly on appeal to the Regional House of Chiefs, it constituted an abuse of process for a fresh action to be initiated at the High Court on issues collateral to that chieftaincy suit. The trial judge did not therefore err in ruling the suit before it as caught by res judicata and an abuse of process.

It is our conclusion that there is no merit in any of the grounds of appeal.

The appeal is accordingly dismissed.

(Sgd.)

CECILIA H. SOWAH

(JUSTICE OF APPEAL)

(Sgd.)

ADJEI, (J. A.) I agree DENNIS ADJEI

(JUSTICE OF APPEAL)

 (Sgd.)

MENSAH, (J. A.)        I also agree     LAWRENCE L. MENSAH

(JUSTICE OF APPEAL)