HIGH COURT, KOFORIDUA
Date: 10 APRIL 1975
JONES MENSAH J
CASES REFERRED TO
(1) R. v. Akiwumi and Bannerman; Ex parte Dako (1958) 3 W.A.L. R. 372.
(2) R. v. Local Government Board (1882) 10 Q.B.D. 309; 52 L.J.M.C. 4; 48 L.T. 173; 47 J.P. 228; 31 W.R. 72, C.A.
NATURE OF PROCEEDINGS
APPLICATION for an order of prohibition to restrain the judicial committee of the Akwapim Traditional Council from trying a case in which the applicant was a party. The facts are sufficiently stated in the ruling.
COUNSEL
Okyere-Darko for the applicant.
Miss R. C. Owusu, State Attorney, for the respondent.
JUDGMENT OF JONES MENSAH J.
On 23 September 1974 the applicant was granted leave by this court to apply for an order of prohibition against the Judicial Committee of the Akwapim Traditional Council (which had been appointed by the traditional council) to hear a chieftaincy action for perpetual injunction which the applicant herein had joined in instituting
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against Nana Osae Djan, Adontenhene of Akwapim and Fofosanhene, Nana Addo Kwafo of Abude of Aburi. The judicial committee members appointed were Nana Otutu Ababio, Nifahene of Akwapim, Nana Asiedu Agyenfra V, Kubeasehene of Larteh, Nana Opoku Ampong, Ohene of Ahwerease, Nana Ofei Dankwa, Gyasehene of Akwapim and Nana Owereko Ampoma, Abotendomhene of Akropong.
On 19 March 1974, the court heard arguments on the motion for the order of prohibition and was easily satisfied that the case was a fitting one for the court to answer the applicant’s prayer in the positive. Accordingly the court, that day, ordered that the members of the judicial committee appointed to try the case pending before them in which the applicant is a party should be restrained from so trying the case with instant effect. The court on that date also reserved its reasons for granting the order. The reasons I now proceed to give.
The applicant’s grievance was essentially against the manner of the appointment of the judicial committee which Mr. Okyere-Darko, counsel for the applicant, submitted invalidated their offices hence his plea to this court to hand down an order of prohibition against the so appointed judicial committee restraining them from trying this case. The ground of merit on which the appointment was attacked was that the judicial committee was not appointed by the authority which was empowered by the provisions of section 28 (2) of the Chieftaincy Act, 1971 (Act 370), so to appoint, and therefore the appointment was not founded on validity and in consequence was null and void. Section 28 (2) of the Act reads as follows:
“The said jurisdiction shall be exercised by a judicial committee of the Traditional Council comprising three or five persons appointed by that Council; and accordingly the provisions of this Act relating to proceedings and functions of a judicial committee of a Regional House of Chiefs, shall, with such modifications as may be prescribed by the Minister by regulations made under section 62 of this Act apply to proceedings and functions of a judicial committee of a Traditional Council.”
The facts behind the law were as follows: In January 1973, a plaintiff, Oseawuohene (Odikro Nana Akornor-Kae head of Agona Abuna royal family) brought an action against the two defendants to whom I have earlier referred before the Akwapim Traditional Council. On 16 October 1973, the Akwapim Traditional Council at a council meeting nominated the following four persons: (1) Nana Boafo Ansah II, Acting President of Council, (2) Nana Ofei Danquah, Gyasehene of Akwapim, (3) Nana Otutu Ababio IV, Nifahene of Akwapim and (4) the registrar of the traditional council to select persons to constitute the judicial committee to try cases pending before the traditional council. The present applicant was soon to become a party in the case referred to earlier which was one of the pending cases. It is that case which has sparked off this application. But before the selection of the judicial committee members could be made, however, by the four persons nominated for that purpose, Abusuapanyin Nana
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Tetteh Kwabena a member of the original plaintiff s family, by letter of 8 June 1974 wrote to the registrar of the traditional council. The text of the letter was as follows:
“Owing to the activities of the Acting President of the Traditional Council, Nana Boafo Ansah II in our dispute with the first defendant in the above case, I beg to request that in the interest of justice and fair play, the panel to sit on the above case be appointed strictly in accordance with the requirements of L.I. 748: that is by the traditional council itself and not by a committee headed by the acting president of the council.
Please take notice that any departure from the rules laid down for the appointment of the panel will certainly compel us to object to any panel appointed otherwise.
Believe me,
Sir,
Yours very
His x mark R.T.P.
Abusuapanyin Nana Tetteh Kwabena
‘Abusua House’ Agona Family Palace
Abogyinana, P.O. Box 15, Aburi.”
By a letter of 24 June 1974, exhibit B, the registrar replied in the following vein:
“I wish to acknowledge with thanks the receipt of your letter No AAA.02/74 of 8 June 1974 requesting that the panel members who are going to sit on the above-mentioned case should be appointed by the traditional council itself and not by a committee headed by the acting president of the council and to inform you that at the traditional council meeting on 16 October 1973, the members of the council empowered the following members of the council:
(1) Nana Boafo Ansah II, Acting President of the Council,
(2) Nana Ofei Danquah II, Gyasehene of Akwapim,
(3) Nana Otutu Ababio IV, Nifahene of Akwapim, and
(4) the registrar to select panel members to hear cases which are pending before the council.
2. I am very much concerned about your request but I am afraid the decision of the council would not be changed.”
(Sgd.) M. O. Adu Registrar.”
On 25 June 1974, the present applicant was given leave to join and joined that action as the co-plaintiff. It is not clear whether it was the traditional council or the much-talked-of judicial committee which granted the leave but that aspect of the matter appears to me immaterial for the purpose of these proceedings, but the applicant, having succeeded in joining the action herein on 24 June 1974, on that same day promptly
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raised objections before the members of the judicial committee to their hearing his action on the ground that they lacked jurisdiction, but the judicial committee also, in parallel, lost no time in asserting jurisdiction and that same day also overruled the objection sharply.
Disgusted with such state of affairs, the applicant, on 30 August 1974 sought leave of this court to bring this application. The application for leave was granted on 23 September 1974. Delegatus non potest delegare is the broadsheet on which the applicant sought to nail the judicial committee to ground. The argument was simply that the Chieftaincy Act, 1971 (Act 370), having conferred no power on a traditional council to delegate its power of appointing a judicial committee, the traditional council was incompetent to delegate that power, be it to its own members or not-worse in this case where the irregular appointment was further polluted by the inclusion of a stranger, the registrar, in the midst of the members improperly appointed to select the judicial committee members. It was therefore submitted on behalf of the applicant that the judicial committee was absolutely devoid of authority and had no competence to adjudicate on the case. Mr. Okyere-Darko, counsel for the plaintiff, cited the case of R. v. Akiwumi and Bannerman; Ex parte Dako (1958) 3 W.A.L.R. 372 in support of his argument.
Miss Owusu, state attorney, in answer to the arguments advanced, in harmony with the affidavit in opposition, saw the position in reverse and argued that (a) the registrar was included in the number of the selecting traditional council members to serve only as secretary as he usually does, and not as a member and (b) that since the selecting members were appointed by the traditional council itself, it stood to reason that the traditional council itself acted in the appointment of the judicial committee members. In effect, she saw no difference between the traditional council itself making the appointment and a committee comprising members of the traditional council making the appointment by delegation. Miss Owusu’s argument can best be summed up as a thesis in the opposite of the principle of delegatus non potest delegare.
In the first place there is no evidence before the court that the registrar was appointed to act as secretary and not a member. The evidence establishes the contrary. In the second place the documentary evidence exposed by the proceedings of the traditional council meeting of 16 June 1973 and the registrar’s letter suit No. 5/73 dated 24 June 1974 settles the question without doubt. It has always been trite law and the authorities are rife that a duty imposed by law on any person or authority is not fulfilled by delegation unless the enabling enactment or some other provision confers power to delegate. In this case no power to delegate was included in the Chieftaincy Act, 1971 (Act 370), and no other provision of which the court is aware otherwise provides. In the case of R. v. Local Government Board (1882) 10 Q.B.D. 309 at p. 321, C.A. Brett L.J. had this to say:
“my view of the power of prohibition at the present day is that the court should not be chary of exercising it, and that wherever the
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legislature entrusts to any body of persons other than to the superior Courts the power of imposing an obligation upon individuals, the Court ought to exercise as widely as they can the power of controlling those bodies of persons if those persons admittedly attempt to exercise powers beyond the powers given to them by Act of Parliament.”
As I see it, the council’s purported delegation of the authority to appoint judicial committee members to other persons, be they traditional council members or not, was contrary to law and the subsequent appointment of the judicial committee by an incompetent body was accordingly irredeemably infected by want of authority and must therefore be pronounced null and void. The appointment of the judicial committee members is therefore vacated by this court and the members so appointed are hereby barred from trying the case pending before the traditional council in which the applicant is interested.
DECISION
Application granted.
