HONYENUGA, J.A.

This appeal was filed by the 1^st defendant/appellant (hereinafter referred to as the appellant) against the Ruling of the High Court, Agona Swedru, dated the 19^th day of August, 2015. The said court had dismissed the application filed by the appellant as against the plaintiff/respondent (hereinafter called the respondent) and awarded costs of GH¢2,000.00 in favour of the respondent.

The facts of this appeal were that the respondent claiming to be the Queen Mother of Gomoa Fetteh, the Twafohemaa of Gomoah Akyempim Traditional area and a Principal elder of the Royal Abor Ewusie Twidan family of Gomoah Fetteh instituted the instant action against the appellant who styles himself as the overlord of Gomoa Fetteh Stool lands and had been alienating the stool land without the consent and concurrent of the principal members. There is also pending a petition before the Judicial Committee of the Gomoa Akyempim Traditional Council as to who is the chief of Gomoa Fetteh. While the chieftaincy petition is pending, the respondent alleged that the appellant had been alienating the stool land and therefore caused the instant action to be filed claiming against the appellant and the Lands Commission as follows:-

“(a) An order of injunction restraining the 1^st defendant, his agents, assigns, personal representatives etc. from leasing, alienating in any form, any lands belonging to the Gomoa Fetteh stool or stool lands of Gomoa Fetteh which the 1^st defendant is using the Name NANA ABOR YAMOAH II as the lessor until the status of as to who is the stool occupant of Gomoa Fetteh is determined by the Judicial Committee of Gomoa Akyempim Traditional Council in an ongoing suit pending before the said Judicial Committee under the inherent equitable jurisdiction of the High Court under the 1992 Constitution of the Republic of Ghana.

(b) An injunction order restraining the 2^nd defendant from registering any land belonging to the Gomoa Fetteh Stool or with which the 1^st defendant as the lessor using the name of NANA ABOR YAMOAH II until the final determination of the suits titled:

1. EBUSUAPANYIN OKYERE MPANTU

2. NANA AMOASIMAH NKRABEA I PLAINTIFFS

ETC. ETC. … … … …

VERSUS

1. EBUSUAPANYIN KOJO YAMOAH

2. EDDIE ACQUAYE STYLING

HIMSELF AS NANA ABOR YAMOAH          DEFENDANTS

OF GOMOA FETTEH ETC. ETC. … … …

Pending before the Judicial Committee of Gomoa Akyempim Traditional Council until the final determination of the said suit after the status of who is the over lord of the stool of Gomoa Fetteh had been determined by the said Judicial Committee or any Judicial Committee of a chieftaincy Tribunal in Ghana.

(c) Costs including legal costs for prosecuting the suit.

(d) Any other order(s) as the Honourable Court may deem fit.

(e) An order of the Honourable Court putting on hold, all lands belonging to the Gomoa Fetteh stool or the stool of Gomoa Fetteh alienated by the 1^st defendant since 1997 and registered by the 2^nd defendant until the status of the 1 ^st defendant is determined as per relief B on the endorsement of the plaintiff’s writ of summons”.

The writ of summons was accompanied by a statement of claim. The respondent filed a motion for interlocutory injunction to restrain the appellant from disposing off the stool lands and the Lands Commission from registering any lands in connection with the disputed land. The appellant in reaction filed a conditional appearance and later filed a motion to set aside the writ and the statement of claim for lack of capacity but this was dismissed. The appellant later filed the instant motion on notice to set aside the writ of summons and the statement of claim for lack of jurisdiction after raising same in his statement of defence.

Upon hearing counsel for the parties, the learned trial judge on the 19^th day of August 2015, dismissed the appellant’s application as misconceived and awarded costs (supra) against the appellant.

Aggrieved by the Ruling of the trial judge, the appellant on the 20^th day of August 2015, filed the instant appeal based on the following ground:-

“(i) The court erred in law by holding that it has jurisdiction to determine the substantive claim in the suit even though the matter for the determination is a stool property, the management is dependent on a claim before the Judicial Committee of the Gomoa Akyempim Traditional Council.

(ii) Other grounds of appeal shall be filed upon receipt of the Record of Proceedings”.

No additional grounds were filed and are hereby considered abandoned.

Before we could consider the sole ground of appeal, we noticed that there was the need for an address on whether not a cause of action had been endorsed on the writ of summons and since this point had not been argued in the court below, we invited counsel for the parties when they appeared before us on the 2^nd May, 2017 to submit supplementary written submissions. The fresh written submissions were to address on “whether the reliefs claimed on the writ of summons as filed by the plaintiff/respondent admit of a cause of action and whether they are sustainable”. These were to be filed within two weeks simultaneously that is by 16^th May, 2017. Both counsel have complied and filed their written submissions and their arguments have been taken into account in reaching this court’s decision.

In his supplementary written submissions, learned counsel for the appellant’s submissions were based on establishing that the respondent has no cause of action. He contended that it was wrong to endorse a writ with a claim for interim injunction without a substantive claim and that is a nullity. He relied on Mumuni v Nyamekye [2013] 58 GMJ 35 at 56-57

CA, in support of his contention. Counsel further cited Republic v High Court, Tema; Ex parte Owners of Esco Spint [2003-2004] 2 SCGLR 689 at 695 & 697 and Rockson v Ilios Shipping Co. SA & Wiltex Ltd. [2010] SCGLR 341 at 346-347 and submitted that the respondent’s writ did not contain any substantive claim other than injunction orders pending the determination of suit pending before a chieftaincy Tribunal and therefore the process is a nullity and ought to be dismissed.

On the other hand, learned counsel for the respondent concedes that the indorsement on the writ merely prayed for an injunction order without any indication of the actual relief that the respondent is seeking from the court. Counsel referred to Order 11 rule 15(1) and of C.I. 47 and paragraphs 5, 6, 9, 10, 11 and 12 of the statement of claim and contended that these averments are in substance praying the court for an order directed at the appellant to cease the sale of Gomoa Fetteh Lands for want of capacity and an order directed at the 2^nd defendant to cease registration of any landed properties from the appellant. Counsel prays that Order 2 rule (3)(1) of C.I. 47 is a procedural rule and order 81 rule (1) and (2) could be invoked.

A perusal of the indorsement on the writ of summons indicates that the respondent confined herself to the claims of orders of injunction to restrain the appellant from alienating, and registering the Gomoa Fetteh stool land until the status of the appellant was determined by a pending action at the judicial committee of Gomoa Akyempim Traditional Council as to who is the overlord of the stool. The respondent also claimed for an order of the court to put on hold all the said land any other order as to the court may deem fit.

The law was that an indorsement on the writ of summons which was not indorsed with a substantive claim was a nullity. Order 2 rule 3(1) of C.I. 47 states:-

“Every writ shall be as in Form 1 in the schedule and shall be indorsed with a statement of the nature of the claim, relief or remedy sought in the action”

In Republic v High Court, Tema, Ex parte Owners of MV ESSCO Spint (Darya Shipping SA Interested Party) [2003-2004] 2 SCGLR 686, the Supreme Court held that since the writ issued was not indorsed with a substantive claim, it was a nullity upon which no valid orders could be based.

Further, in Rockson v Ilios Shipping Co. SA & Wiltex Ltd. [2010] SCGLR 341, the Supreme Court held that it was impossible to interpret the indorsement on the writ of summons as disclosing any substantive claim or cause of action. Consequently, the writ and the proceedings based on it were a nullity. Indeed that was the law on which we ordered both counsel to address us whether the respondent’s indorsement on the writ was a substantive claim. However, the current position of the law is that both the indorsement on the writ and the statement of claim must be read together to determine whether the defect was cured. In Opoku (No.2) v Axes Co. Ltd. (No.2) [2012] 2 SCGLR 1214, the Supreme Court per Gbadegbe JSC expounded the law at page 1222 as follows:-

“The writ of summons ought to be read together with the statement of claim in order to determine if there was a cause of action before the court. This is so because a statement of claim may in appropriate cases, as provided for in rule 15(2) of Order 11 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) amplify or diminish the scope of the writ on which it is founded”.

Indeed, Order 11 rule 15(1) and (2) provides:-

“(1) A statement of claim shall state specifically the relief or remedy which the plaintiff claims, but costs need not be specifically claimed.

(2) A statement of claim shall not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of facts giving rise to a cause of action so mentioned, but, subject to that, a plaintiff may in the plaintiff’s statement of claim alter, modify or extend any claim made by the plaintiff in the indorsement of the writ without amending the writ”.

In Hydrafoam Estates (Gh) Ltd. v Owusu (per lawful Attorney) Okine & Others [2013-2014] 2 SCGLR 1117, the Supreme Court delivered itself per Anin Yeboah JSC as follows:-

“(1) The indorsement in the plaintiffs’ writ of summons for an injunction, restraining the defendant from interfering with the plaintiffs’ possession of the disputed land, was not for any substantive relief known in law. Such a claim would have been declared void in law. However, upon reading the writ together with the accompanying statement of claim, the defect in the writ was cured by the statement of claim filed together with the writ. Rockson v Ilios Shipping Co. SA & Wiltex Ltd. [2010] SCGLR 341; Republic v High Court, Tema, Ex parte Owners of MV ESSO Spint (Darya Shipping SA Interested Party) [2003-2004] 2 SCGLR 689; and Opoku (No.2) v Axes Co. Ltd. (No.2) [2012] 2 SCGLR 1214 at 1222 cited”.

Indeed it is in the statement of claim as stated in Order 11 rule 1(1) of C.I. 47 which is the basis in which the plaintiff explains the basis of the claim in the writ of summons (order 15(2)). In the instant appeal, a reference to paragraphs 5, 6, 9, 10, 11 and 12 of the statement of claim is reproduced to determine whether it could cure the defect in the indorsement of the writ thus:-

“5. Plaintiff says that as the Queenmother of Gomoa Fetteh, she is a principal elder of the said family and therefore she is supposed to be involved in any alienation involving any Gomoa Fetteh stool lands.

6. Plaintiff say that presently, there is pending at the Judicial Committee Gomoa Akyempim Traditional Council as to who is the stoll occupant of Gomoa Fetteh in suits titled:

EBUSUAPANYIN OKYERE MPANTU         -           PLAINTIFFS

AND ANOR

VERSUS

EBUSUAPANYIN KOJO YAMOAH  -           DEFENDANTS

AND ANOR

which the plaintiff and the 1^st defendant are parties in the said suit.

9. Plaintiff says that as a queenmother, she is the stool mother and a principal elder of the family, and has the appropriate capacity, she cannot sit down for the stool lands of Gomoa Fetteh to be dissipated whilst the contesing parties are fighting to determine who is the Gomoa Fetteh stool occupant

10. Plaintiff says that the nature of the stool lands or Gomoa Fetteh stool lands would have changed and the lands cannot be turned back to its former position if the 1^st defendant is allowed to be alienating the lands whilst the suit pending at the Gomoa Akyempim Traditional Council rages on and therefore wants an order of the

Honourable Court to restrain the 1^st defendant from alienating all lands belonging to the stool of Gomoa Fetteh until the aforesaid suit is disposed off before the Gomoa Akyempim Traditional Council and his status determined.

11. Plaintiff says that since the Supreme Court case of the Republic v Acquaye @ Nana Abor Yamoah II Ex parte Charles Kweku Essel, delivered in 2008, the 1^st defendant has been stalling the Hearing of the Judicial Committee suit pending as aforesaid and therefore it would be proper and just if the Honourable Court puts on hold all lands alienated by the 1^st defendant since 1997 with some registered by the 2^nd defendant until the status of the 1^st defendant is determined.

12. Plaintiff says that the 1^st defendant has taken advantage of the situation and has been alienating large portions of Gomoa Fetteh stool lands to individuals and organizations for valuable consideration and has managed to have most of them registered by the 2^nd defendant Land Commission”.

Order 11 rule 15(2) of C.I. 47 required that a statement of claim must not contain a cause of action not mentioned specifically or otherwise in the writ of summons.

In the instant appeal, a perusal of the averments on the statement of claim indicate that the defect on the writ of summons in our view was not cured by the accompanying statement of claim which was filed together with the writ of summons. The claims are all injunction orders which are interlocutory. A perusal of the statement of claim indicates that the determination of the suit is dependent on the final determination of the substantive claim on the status of the respondent pending at the Judicial Committee of Gomoa Akyempim Traditional Council and no substantive relief was supported by the statement of claim to the indorsement. No valid orders could be made without substantive claims. We think that the defect on the writ had not been cured by the consideration of the statement of claim. The cause of action was therefore in our view was not pleaded in the statement of claim. Consequently, the action is a nullity.

For avoidance of doubt, we would address the substantive appeal, being the sole ground of appeal referred to at page 4 which was argued by counsel for the appellant. Learned counsel contended that the endorsement on the writ of summons is an injunctive order dependent on a suit before a different adjudicating body which adjudicating body also has jurisdiction to entertain an interim injunction pending the final determination of the substantive suit before it. Counsel submitted that section 117(1) and section 76 of Act 759 outlines what constitutes causes and matters affecting chieftaincy. In support of his submission, counsel refers to page 323 paragraph 3 of Justice S.A. Brobbey’s book on the law of Chieftaincy in Ghana and Republic v High Court, Denu; Ex parte Avadali [1993-94] 1 GLR 561 SC. He prays that the ruling of the High Court be set aside as without jurisdiction since the matter is a cause or matter affecting chieftaincy.

Learned counsel for the respondent submitted that the decision of the High Court is the proper state of the law and unimpeccable as stated in Abbey & Ors. v Antwi IV [2010] SCGLR 17.

Section 76 of the Chieftaincy Act, 2008, Act 759 defines what constitutes a cause or matter affecting chieftaincy as follows:-

“Cause or matter affecting chieftaincy means 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”.

The gravamen of the appellant’s motion against the jurisdiction of the High Court entertaining the suit is contained in paragraphs 4 and 5 of the affidavit in support which is reproduced verbatim as follows:-

“4. That by the pleadings of the plaintiff it could be realized that the present action is a matter or cause affecting chieftaincy of which the High Court lacks jurisdiction to adjudicate over it.

5. That the matter for the determination of this court is a stool property and the management of the land is dependent on the substantive claim before the Judicial Committee of the Gomoa Akyempim Traditional Council which makes it a cause or matter affecting chieftaincy of which this Honourable court lacks jurisdiction to adjudicate over it”.

Section 117 of the Courts Act, 1993, Act 459 (as amended) contains similar provisions even though section 117(c) introduced “appointment” of a person as a chief, there is no difference between the two enactments.

Article 141 of the 1992 Constitution and Section 16 of the Courts Act, 1993, Act 459 cloth the High Court with Supervisory Jurisdiction over all lower courts and any lower adjudicating authority through orders and directions including habeas corpus certiorari, mandamus prohibition, Quo warranto for the enforcement or securing the enforcement of its supervisory powers.

By the provision in section 43 of the Chieftaincy Act, 2008, Act 759, the High Court has supervisory jurisdiction over an adjudicating chieftaincy body established by or under the Act. This meant that the High Court has supervisory jurisdiction over the Judicial Committees of the Traditional Councils and the Regional Houses of Chiefs. In the Republic v High Court, Denu, Ex parte Kumapley (Dzelu IV Interested Party) [2003-2004] SCGLR 714, it was held that it is the Judicial Committee of the Traditional Councils that is amenable to the supervisory jurisdiction of the High Court.

Section 57 of the Courts Act, Act 459 as amended ousts the jurisdiction of the Court of Appeal, the High Court, the Regional Tribunals, the Circuit and the District Courts from entertaining any cause or matter affecting chieftaincy either at first instance or on appeal.

In Re Oguaa Paramount Stool, Garbrah v Central Regional House of Chiefs & Haizel [2005-2006] 81 SCGLR 193, Prof. Ocran JSC at page 214 delivered the useful test in determining what constitutes a cause or matter affecting chieftaincy as follows:-

“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 or in the sense of a justiceable controversy, with respect to any of the matters listed therein …”.

See also Abbey & Others v Anwi IV [2010] SCGLR 17.

It is noted that the definition of a cause or matter affecting chieftaincy in the repealed Act 370 and the new Act 759 are the same. Was the learned trial judge right when he concluded that:

“For the above reason, the 1^st defendant/applicant’s application to set aside the writ of summons and the statement of claim for lack of jurisdiction of the court is therefore dismissed on grounds that it is misconceived”.

I think that the learned trial judge was wrong in his judgment. In his book “The Law of Chieftaincy in Ghana”, the learned Author and distinguished Jurist, Justice S. A. Brobbey at page 233 stated the position of the law with regards to what constitutes a cause or matter with regard to the installation of a chief, deposition of a chief or stool property closely connected with the installation or the cessation of a person to be a chief as follows:-

“Where the dispute obviously concerns installation of a chief, deposition of a chief or stool property closely connected with installation or the cessation of a person to be chief, its classification presents little or no problems. For instance, the following have been held to be causes or matters affecting chieftaincy and therefore should be tried in the appropriate chieftaincy forum:-

…….a claim to be entitled to manage lands where the claim was dependent on the substantive claim to be “Hlotator” of a Chief: Republic v High Court, Denu Ex parte Avadali IV [1993-94] 1 GLR 561 SC”.

In Republic v High Court, Denu Ex parte Avadali IV [1993-94] 1 GLR 561 SC Holding

(3), Supreme Court held on the claim to be entitled to manage lands which were dependent on the substantive claim to be a chief was a cause or matter affecting chieftaincy as follows:-

“3. The first respondent’s claim that he was entitled to manage all the lands and properties of the Anyigbe clan was dependent entirely on his substantive claim to be declared hlotator of the Anyigbe clan. But it was clear from the report on the arbitration held by the ATC and the extract from the History of Agave that the statutes of the head or hlotator of the Anyigbe clan was regarded as a chiefly one. And since the ATC was the traditional authority responsible for that particular area, the court would take Judicial notice of its authority as regards the significance of terms and titles used by or attaching to traditional personages. Furthermore, since the claim by the respondents to prove that he had been properly nominated, elected and installed as the hlotator of the Anyigbe clan, it was a cause or matter affecting chieftaincy within the definition of section 66 of the Chieftaincy Act, 1971 (Act 370). Accordingly, as provided by section 52 of Act 370, the High Court had no jurisdiction to entertain it. Accordingly, certiorari would be granted to quash the decision of the High Court to assume jurisdiction in the case”.

See also Republic v Court of Appeal, Ex parte Ekuntan II [1989-90] 2 GLR 168.

The Avadali case falls on all fours with the instant appeal and a reference to sections 66 and 52 of Act 370 is the same as the new section 76 of Act 759 and section 57 of Act 459 respectively. This case held that the claim to be “Hlotator of the whole Anyigbe clan” was a cause or matter affecting chieftaincy which the High Court had no jurisdiction. Moreover, a dispute over recovery of stool property connected to the installation of a chief was held to be a cause or matter affecting chieftaincy in Sarpong v Antwi [1971] 2 GLR 378 CA.

In the instant appeal, the respondent indorsed on her writ of summons and I will quote verbatim:-

“Plaintiff’s claim against the defendants jointly and severally is for

(a) An order of injunction restraining the 1^st defendant, his agents, assigns, personal representatives etc. from leasing, alienating in any form, any lands belonging to the Gomoa Fetteh stool or stool lands of Gomoa Fetteh which the 1^st defendant is using the name NANA ABOR YAMOAH II as the Lessor until the status of as to who is the stool occupant of Gomoa Fetteh is determined by the Judicial Commieettee of Gomoa Akyempim Traditional Council in an ongoing suit pending before the said Judicial Committee under the inherent equitable jurisdiction of the High Court under the 1992 Constitution of the Republic of Ghana.

(b) An injunctive order restraining the 2^nd defendant from registering any land belonging to the Gomoa Fetteh stool or stool lands of Gomoa Fetteh with which the 1^st defendant as the Lessor using the name NANA ABOR YAMOAH II until the final determination of suits titled

1. EBUSUAPANYIN OKYERE MPANTU

2. NANA AMOASIMA II NKRABEA I - PLAINTIFFS

ETC. ETC.

VERSUS

1. EBUSUAPANYIN KOJO YAMOAH

2. EDDIE ACQUAYE STYLING HIMSELF   - DEFENDANTS

AS NANA ABOR YAMOAH II OF

GOMOA FETTEH

Pending before the Judicial Committee of Gomoa Akyempim Traditional Council until the final determination of the said suit after the status of who is the over lord of the stool of Gomoa Fetteh had been determined by the Judicial Committee or any Judicial Committee of a chieftaincy Tribunal in Ghana.

(c) Costs including legal costs for prosecuting the suit.

(d) Any other order(s) as the Honourable court may deem fit.

(e) An order of the Honourable court putting on hold, all lands belonging to the Gomoa Fetteh stool or the stool of Gomoa Fetteh alienated by the 1^st defendant since 1997 and registered by the 2^nd defendant until the status of the 1^st defendant is determined as per relief B on the endorsement of plaintiff’s writ of summons”

It was obvious that reliefs (a), (b) and (c) above wanted the High Court to restrain the appellant (1^st Defendant) from dealing with the Gomoa Fetteh stool land until his status as the overlord or chief was determined by the Judicial Committee of the Gomoa Akyempim Traditional Council. In the accompanying statement of claim in paragraphs 4, 6, 7, 9, 10, 11, 13, 14 and 16, it was obvious that it was a claim as to who is to manage the Gomoa Fetteh stool land which claim is dependent on the declaration of the status of the appellant as the stool occupant, chief or overlord pending before the Judicial Committee of the Gomoa Akyempim Traditional Council and this constitutes a cause or matter affecting chieftaincy. In this appeal therefore, section 76(1) of Act 759 which defined a cause or matter affecting chieftaincy with regard to 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 and section 76 (d) which is with regard to the recovery or delivery of stool property in connection with the nomination, election, selection, installation, deposition or abdication of a chief constituted a cause or matter affecting chieftaincy for which the High Court did not have jurisdiction under section 57 of Act 459.

In any case stool property was defined in section 44 of Act 759 as:

“Stool property consists of the following:

(a) The stool itself and all the insignia of that stool,

(b) Any other movable and immovable property handed over or declare as stool property to the chief on installation and

(c) Any property movable or immovable acquired as stool property or with stool resources after the installation of the chief”.

A perusal of the pleadings indicate that the land in dispute is the stool land of the Gomoa Fetteh stool which is in dispute and it was dependent on the determination of the appellant whether he is a chief or not. This in my candid opinion constitutes a cause or matter affecting chieftaincy that the High Court has no jurisdiction. I have read the case of Abbey & Others v Anwi IV [2010] cited by counsel for the respondent and found it inapplicable to the facts and the pleadings in this appeal.

I am therefore satisfied that the lands of the Gomoa Fetteh stool are stool lands and the determination of who is the chief of Gomoa Fetteh or the overlord of the stool land is dependent on its determination pending before the Judicial Committee of the Gomoa Akyempim and I have no doubt in my mind that the instant appeal is a cause or matter affecting chieftaincy for which the High Court has no jurisdiction.

In conclusion, the appeal succeeds. The judgment of the High Court, Agona Swedru, dated the 19^th day of August 2015 is hereby set aside as a nullity.

(SGD.)

C. J. HONYENUGA

(JUSTICE OF APPEAL)

(SGD.)

S. K. GYAN, J.A.       I agree            S. K. GYAN

(JUSTICE OF APPEAL)

(SGD.)

G. S. SUURBAAREH, J. A. I also agree     G. S. SUURBAAREH

(JUSTICE OF APPEAL)