Division: IN THE HIGH COURT, KUMASI
Date: 10TH APRIL, 1959.
Before: MURPHY J.
JUDGMENT OF MURPHY J
(His lordship stated the facts, and proceeded:-)
In this judgment the Ghana (Constitution) Order-in-Council, 1957, the Statute Law (Amendment) (No. 2) Act, 1957, and the Ejisu Stool Property Order, 1958, will be referred to as the Constitution, the Act and the Order respectively.
By Section 31(5) of the Constitution the Supreme Court is vested with original jurisdiction in cases in which the validity of a law is called in question. The main ground upon which the validity of the Act is attacked is that it was passed into law without the requirements of section 35 of the Constitution having been complied with.
(His lordship read the section, and proceeded:-)
It has not been argued on behalf of the defendants that the non-existence of Houses of Chiefs could excuse non-compliance with section 35 of the Constitution, if the Bill was one affecting the traditional functions or privileges of a Chief. In the absence of any express proviso modifying the terms of section 35, it is clear that no such legislation could be passed until there was a House of Chiefs to which it could be referred. In any event, the section also provided for a lapse of three months between the introduction of the Bill and its second reading, and this requirement was not complied with in the case of the Bill then under consideration.
The question to be answered, then, is whether the Act is one affecting the traditional functions or privileges of a Chief. In its preamble the Act is described as “An Act to impose additional penalties upon failure to deliver up Stool or Skin properties upon the deposition of a Chief.” An examination of the Act itself shows this to be only a partial description of its purpose. (His lordship referred to those sections of the Act set out in the Headnote and proceeded:-)
A comparison of these provisions with previous legislation, to which I shall refer later, shows that the Act goes farther than merely imposing additional penalties, as indicated in the preamble, and provides a new procedure for the custody of Stool property after the deposition of a Chief. Under section 4, the Minister may authorise any person to take possession of the property; under section (5(1), he may direct that the property be held by a local government council; and under section 6, the property may be disposed of in such manner as he may direct. On behalf of the plaintiff it is contended that the custody of Stool property after the deposition of a Chief is one of the traditional functions or privileges of another Chief, and that the Act directly affects these functions or privileges.
[p.184] of [1959] GLR 181
The plaintiff is the Gyasehene of Ejisu. The Order which gave rise to this action was made by the Minister of Local Government (the 1st defendant) under section 4 of the Act. The Order, having first recited that it had been reported to the Governor-General that Diko Pim III, Ejisuhene, had been deposed, authorised one Kofi Atta (the 4th defendant) to take possession of the Stool property pertaining to the Ejisu Stool. The plaintiff contends that he is a Chief, and is the customary custodian of this property. On the evidence before me I find that he is right in both these contentions. Certain villages in the State are under him, and his enstoolment as Gyasehene was reported to the then District Commissioner, and a notice of it was published in the Gazette. All the State properties are under his care, and this is the case whether the Ejisuhene is in the State or away from the State. On each occasion prior to the present one, when an Ejisuhene has been destooled or has died the plaintiff has had custody of the Stool property. This evidence has not been rebutted, and indeed the witness called on behalf of the defendants, the Nifahene of Ejisu, although at first he showed some disdain when speaking of the Gyasehene’s functions, said, when cross-examined, that he regarded the Gyasehene as a Chief, and that the Gyasehene looked after the Stool property by custom when the Stool was vacant for any period. He then went farther than this, and said that the Gyasehene was the custodian of Stool property whether the Ejisuhene was present or not.
In order to show that the Act comes within the ambit of section 35 of the Constitution it is only necessary for the plaintiff to establish that it affects the traditional functions of one particular Chief. Having found, as I do, that the plaintiff is a Chief, and that he is the customary custodian of the Ejisu Stool property, that would at first sight appear to dispose of the matter. However, Mr. Amissah, who has conducted this case very ably on behalf of the defendants, has made a number of interesting submissions, which it is now necessary to consider.
Mr. Amissah’s main submission is that in so far as the Act affects the traditional functions of a Chief it does so only incidentally; and that it is not sufficient for the plaintiff to show that the Act is one affecting a class of persons, some of whom may incidentally be Chiefs. This involved the following subsidiary propositions:-
(1) after the deposition of a Chief the Stool property would be in the hands of the customary custodians who would not necessarily be Chiefs. In support of this, reliance is placed on the evidence of the plaintiff, who said that if he himself were destooled his Stool property would be looked after by the family;
[p.185] of [1959] GLR 181
(2) even in the case of the destoolment of an Omanhene, the Gyasehene, who is the customary custodian, may or may not be a Chief ;
(3) the Gyasehene is a mere palace official, who by reason of his position in the Omanhene’s household looks after the Stool property. It is in that capacity that he is custodian, and not in his capacity as a Chief;
(4) the Act was passed for peace, order and good government, in accordance with section 31 (1) of the Constitution, and that is its primary purpose. Here a comparison was drawn with the law relating to the powers of federal and state (or provincial) legislatures in a federal constitution. Mr. Amissah referred to the case of Hodge v. The Queen (9 App. Cas. 117), where, at p.130, there is quoted the following passage from Russell v. The Queen (7 App. Cas.829):-
“What Parliament is dealing with in legislation of this kind is not a matter in relation to property and its rights, but one relating to public order and safety. That is the primary matter dealt with, and though incidentally the free use of things in which men may have property is interfered with, that incidental interference does not alter the character of the law.”
It is, I think, impossible to contemplate that an Act affecting the community at large which had not been referred to a House of Chiefs could be held to be invalid merely because incidentally, and in a manner which might well have been quite unforeseen by the Legislature, it affected some traditional function of a Chief. To this extent I agree with the foregoing submissions. The traditional functions of Chiefs are no doubt many and varied, and one can imagine many cases in which it would be easy to argue that some such functions were affected by legislation of a general character. However, I do not consider that the Act now under consideration can be regarded in this light. The Act is mainly and directly concerned with the custody of Stool property. It is noteworthy that the recovery of Stool property is included among the definitions of “matter of a constitutional nature“ in section 68(5) of the Constitution, and under section 68(1) provision is to be made for such matter to be determined by a State Council. Leaving aside for the moment the question whether or not the Act directly affects the traditional functions or privileges of a Chief, it seems to me to be indisputable that the Act does primarily concern chieftaincy, or matters pertaining to chieftaincy, rather than the community at large.
[p.186] of [1959] GLR 181
As to the status of a Gyasehene, certain Gazette notices have been put in evidence to show that the plaintiff is by no means the only Gyasehene in Ashanti who is a Chief. As I have already indicated, it is sufficient for the plaintiff to establish that the traditional functions of only one Chief are directly affected, but, in view of the arguments put forward on behalf of the defendants, I think this evidence is material as showing that this case has not arisen from some obscure factor which it might have been impossible to foresee when the Act was passed. Nor do I consider that it is possible to regard the Gyasehene’s functions as custodian of Stool property as being entirely separate from his functions as a Chief. Reference has been made to Rattray’s “Ashanti Law and Constitution” where, at page 57, after describing the courtyard known as the gyase, and the persons who sleep and work there, he says:-
“Later, as the establishment increased, a trusty slave was put in charge of them. From this humble beginning we can trace the origin of that important official, the Gyase Hene who to-day is major-domo in an Ashanti Chief’s ‘palace,’ and commands all the ‘palace’ retainers and servants.”
On page 91 of the same work a list is given of minor officials who may be under the Gyasehene, each of them in charge of a particular department of a Chief s household. The passage continues:-
“Some idea of the organization which has grown up from so simple a beginning may be gathered from the perusal of such a list. In the greater Divisions the heads of some of these fokuo (sections) tended to become lesser Chiefs, and thus the expansion from the lesser to the greater continually went on.”
These passages seem to show that, however humble may have been the origins of the Gyasehene, his later dignity was acquired by reasons of his function as head of the household. It is clearly in exercise of this function that he is the custodian of Stool property, and I do not think, therefore, that one can say that such custody is merely incidental and distinct from his position as a Chief.
I do not find the comparison with the powers of federal and state (or provincial) legislatures very exact. In Ghana there is only one Legislature, and all laws passed by it are presumed to be for peace, order and good government, in accordance with section 31 (1) of the Constitution. Obviously the fact that a law is so passed cannot alone exclude it from the ambit of section 35. Since, if this were so, section 35 would not have applied to any law. The only criterion, in my view, was whether a Bill directly affected the traditional functions and privileges of a Chief. If it did so, the procedure laid down
[p.187] of [1959] GLR 181
in section 35 had to be followed, whatever other purpose the proposed legislation might have.
It has also been submitted that, if the custody of Stool property is the privilege of a Chief, this privilege had already been tampered with by previous legislation. For this submission to avail the defendants it would have to be shown not merely that the privilege had been tampered with, but that it had been abrogated, so that at the time of the passing of the Act the custody of Stool property was no longer one of the traditional functions or privileges of a Chief. The legislation referred to is, first, the Stool Property Protection Ordinance under which the Governor had power to make rules for, inter alia, the safe custody of Stool property. I cannot find, however, that any rules were made depriving
Chiefs of their traditional functions in this connection. The Ordinance was repealed by the State Councils (Ashanti) Ordinance, 1952, section 23(1) of which reads as follows:—
“Whenever any decision of the Asanteman Council or of a State Council or of the Governor involves the recovery of stool property, the Asanteman Council, the State Council or the Governor, as the case may be, may make such order as may be necessary to secure the delivery up of any stool property therein specified to the person or persons entitled thereto, and shall cause such order to be served upon any person by whom such property is to be delivered up.”
The “persons entitled thereto” would presumably be the persons entitled by native customary law following the decision referred to in the first part of the section. This does not on the face of it involve any abrogation of customary functions or privileges. It may be contrasted with the provisions of the Statute Law (Amendment) (No. 2) Act, 1957, under which the Minister may, inter alia, order that Stool property be held by a local government council.
For the reasons I have given I find that the Act does directly affect the traditional functions of a Chief, that is to say (as appears from this action) the Gyasehene of Ejisu as the customary custodian of Stool property. Since the procedure laid down in section 35 of the Constitution was not followed before the Act was passed, I must therefore hold that the Act is invalid. It follows that the Order, which was made under the Act, is also invalid.
It is unnecessary for me to consider the other grounds upon which the validity of both the Act and the Order have been attacked.
DECISION
I give judgment for the plaintiff for the two declarations sought, namely that the Statute Law (Amendment) (No. 2) Act, 1957, is invalid, and that the Ejisu Stool Property Order, 1958, is invalid. No order as to costs.
