IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (GENERAL JURISDICTION DIVISION)
ACCRA - A.D 2018
NII AMARKAI III AND OTHERS - (PLaintiffs)
NII OYENINAA TEIKO TAGOE - (Defendant)
DATE: 28TH NOVEMBER, 2018
SUIT NO: GJ 1764/17
JUDGES: ERIC K. BAFFOUR, ESQ.JUSTICE OF THE HIGH COURT
It is stated under Order 33 Rule 5 of the High Court (Civil Procedure) Rules, C. I. 47 as follows:
“Where it appears to the Court that the decision of any question or issue arising in any cause or matter and tried separately from the main cause or matter substantially disposes of the cause or matter or renders trial of the main cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such judgment as may be just”.
Based on the above rule the court in the exercise of its discretion to moderate the trial to achieve effective and speedy justice and on a consideration of the pleadings and issues before the court invited the lawyers to address the court on the following questions posed to them:
1. Whether or not the determination of who is the Dzasetse and also the acting Mantse of Asere is not a cause or a matter affecting chieftancy.
2. If the answer to the question above is yes whether this court is clothed with jurisdiction to determine a cause or a matter affecting chieftancy
The court was minded to pose the above questions for answers due to the first claim of the Plaintiff endorsed on the writ of summons wherein it prays for:
A declaration that the 1st Plaintiff as Dzatsete and acting Asere Mantse has the right to use the Asere palace for the purposes of the Asere stool. Plaintiffs in their statement of claim contend in paragraph 1 that: “The 1st Plaintiff is the Dzasetse of Asere and acting Asere Mantse”. The Defendant in his statement of Defence respond to this allegation as follows:
“In answer to paragraphs 1 and 2 of the statement of claim Defendants state state that the 1st Plaintiff is the Dzasetse of Asere. He is not the acting Asere Mantse since there is a substantive Asere Mantse who is known as Nii Asere Boi VII who was enstooled in 2007”.
The denial of the claim that 1st Plaintiff is the acting Asere Mantse, in the reply of the Plaintiffs notes that even though there was installation of the said person but same had been challenged by the Dzorshie family and until the resolution of whole is the Asere Mantse, 1st Plaintiff is the acting Asere Mantse. In the face of such assertion and denials issues were joined in the application for directions when among others, this was put down as part of the issues for determination: whether or not the 1st Plaintiff is the acting Asere Mantse?
Will the determination of this issue be a cause or a matter affecting chieftancy? The Courts Act, Act 459, section 57 divest all the traditional courts, with the exception of the Supreme Court of either original or appellate jurisdiction over cause or matter affecting affecting chieftancy except where the matter before the High Court is in respect of the invocation of the supervisory jurisdiction of the court or a matter seeking to declare as a nullity a decision of a chietancy tribunal as null and void due to fraud. See the decision of Pwamang JSC in EBUSUAPANIN NTIAKO KOBINA E. KOBI v AHANTA TRADITIONAL COUNCIL J4/62/2016’ 2ND MAY, 2018.
For the section 57 states as follows:
“Subject to the Constitution, the Court of Appeal, the High Court, Circuit Court and a District Court shall not entertain either at first instance or on appeal a cause or matter affecting chieftaincy.”
The Chieftancy Act, Act 759, 2008 defines a cause or matter affecting chieftancy under section 76 to mean:
“Cause or matter affecting Chieftaincy means a cause, matter, question or dispute relating to:
a. The nomination, election, appointment or installation of a person to be nominated, elected, appointed or installed as a chief or
b. The destoolment or abdication of a chief, or
c. The right of a person to take part in the nomination, election, appointment or installation of a person as a chief or in the destoolment of a chief or
d. The recovery or delivery of stool property in connection with nomination, an election, appointment, installation, a destoolment or an abdication or
e. The constitutional relations under customary law between chiefs”.
Does the claim of the Plaintiffs fall under any of the above. To come to a determination will entail an examination of the entire case, the claim and the pleadings as it has been held in the case of RE: OSU STOOL; AKO NARTEY II (MANKRALO OF OSU) VS. NORTEY OWUO III (INTERVENER) [2005-2006] SCGLR 628 at 633, the Supreme Court held thus:
“the mere incidence of an issue relating to chieftaincy in proceedings in the Ordinary courts, does not constitute it as a cause or matter affecting chieftaincy. Whether it is so or not depends on whether on the facts of the particular case, a genuine cause or matter affecting chieftaincy has arisen”.
So l ask whether or genuine cause or matter affecting chieftancy arises for determination in this case. Defendant does not deny that 1st Plaintiff is the Dzasetse of Asere. And as the kingmaker that he has been acclaimed that he is he seeks to also claim not to be the Mantse of Asere but rather the acting one and it is out of this dual capacity that he seeks delaratory reliefs that the Defendants are disturbing his quiet enjoyment of the palace and a perpetual injunction to restrain Defendant from so disturbing Plaintiffs. I think who is chief will also entail who has the right to be an acting chief. But that this is