HIGH COURT, KOFORIDUA
Date: 12 JUNE 1975
JONES MENSAH J
CASES REFERRED TO
(1) R. v. Nat Bell Liquors, Ltd. [1922] 2 A C. 128; 91 L.J.P.C. 146; 127 L.T. 437; 38 T.L.R. 541; 27 Cox C.C. 253, P.C.
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(2) R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 K.B. 338; [1952] T.L.R. 161; 116 J.P. 54; 96 S.J. 29; [1952] 1 All E.R. 122, C.A.
(3) Joseph (William) & Sons v. Jebeile Brothers, Court of Appeal, 5 May 1969, unreported; digested in (1969) C.C. 98.
(4) Akufo-Addo v. Quashie-Idun, Court of Appeal, 22 July 1968, unreported; digested in (1968) C.C. 109.
(5) R. v. Handley (1921) 61 D.L.R. 656.
(6) R. (Donoghue) v. Cork County Justices [1910] 2 I. R. 271.
(7) R. v. Clare County Justices [1918] 2 I.R. 116.
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 and for certiorari to quash the proceedings of the said judicial committee. The facts are sufficiently stated in the ruling.
COUNSEL
Okyere-Darko for the applicant.
Kaleo Bio, Principal State Attorney, for the respondent.
JUDGMENT OF JONES MENSAH J.
Having obtained leave on 10 October 1974 to bring this application for certiorari and prohibition, the applicant commenced these proceedings by motion on notice against the judicial committee of the Akwapim Traditional Council on 22 October 1974. An epitome of the events which culminated in this application is as follows:
On 12 September 1973, 29 members of the Akwapim Traditional Council were apparently sworn in as members of the judicial committee of the said traditional council. On 10 October 1973 Ama Odi and others (hereinafter referred to as the plaintiffs) filed destoolment charges before the Akwapim Traditional Council against Nana Oboni Ayim Nyarko III, the Odikro of Apirede, who is the applicant in these proceedings and shall hereafter be referred to as the applicant. Amongst other charges which the plaintiffs filed against the applicant two charges are relevant to the present proceedings. The two charges were:
“(8) That you as Odikro of Apirede without the consent of the principal elders and people of Apirede did privily convene and attend a meeting with other minor chiefs of the Nifa Division at Awukugua styling that meeting as a meeting of Kyerepong Amanuonum meeting and at that unauthorised meeting prepared a seditious document about Nana Otutu Ababio IV, Nifahene of Akwapim, to the Eastern Regional Commissioner, Colonel R. C. Nyante, with the intention of destroying his image as a divisional chief and President of the Nifa Divisional Council contrary to custom.
(9) That you as the Odikro of Apirede and at the same unauthorised meeting at Awukugua still with destructive ideas advised the Ohene of
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Abiriw, Nana Otutu Baagyire V, to sever all relationship with the people of Akropong and to throw off his allegiance to the paramount stool of the Akwapim Traditional Area contrary to custom.”
Whilst the destoolment charges were pending against the applicant, the traditional council, at its meeting of 16 October 1973 appointed four persons to select judicial committee members to try destoolment charges pending before it. The text of the resolution of that meeting was thus:
“Appointment of Judicial Committee
The members discussed this matter for some time and in the end decided to appoint a special committee to deal with it. The following senior divisional chiefs together with the registrar were therefore appointed to select the members of the committee to hear the pending cases before the council. They were:
(1) Nana Boafo Ansah II, the Acting President.
(2) Nana Otutu Ababio IV, Nifahene of Akwapim.
(3) Nana Ofei Danquah II, Gyasehene of Akwapim.
These persons so appointed to select judicial committee members selected the following persons to constitute a judicial committee:
| (1) | Nana Ofei Danquah II—chairman |
| (2) | Nana Wontumi Apau III—member |
| (3) | Nana Kwapong II—member |
| (4) | Nana Oduro Darko II—member |
| (5) | Nana Twum Ankrah—member.” |
They were the selected panel to try the destoolment charges brought against the applicant by the plaintiffs. This judicial committee is described in paragraph (5) of the respondents’ affidavit as “a special judicial committee duly appointed by the Akwapim Traditional Council as evidenced by minutes of the council dated 16 October 1973 (attached as appendix 1)” In paragraph (6) of the same affidavit in opposition the respondents positioned themselves as follows:
“In further answer to paragraph (5) of the affidavit it will be contended that the applicant as member of the traditional council and present and concurring to the decision to constitute a selection committee cannot now be heard to complain against it (reference appendix A).”
The judicial committee so constituted sat to hear the destoolment charges brought against the applicant on a few occasions before 8 April 1974. At those sittings, the applicant appears to have raised objection as to the capacity of the plaintiffs and co-plaintiff to bring the destoolment charges against him. On 8 April 1974 according to the proceedings exhibited, the said judicial committee ruled that the first five plaintiffs had no capacity to bring the destoolment charges against the applicant but that the sixth, seventh and eighth plaintiffs and the co-plaintiff had capacity and the action was therefore to proceed in the names of those plaintiffs. Dissatisfied with the ruling the applicant filed an appeal to the Regional House of Chiefs against this ruling.
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Soon after that ruling against which the applicant had appealed, the plaintiffs in whose names the action was to continue, filed a motion before the same judicial committee praying for three interlocutory reliefs against the applicant:
(1) an interim injunction restraining the applicant and his agents from continuing to receive stool revenue deriving from certain stool properties;
(2) a recommendation to the Commissioner responsible for Chieftaincy Affairs that the applicant should cease to perform certain customary rites of a chief until the final disposition of charges levelled against him; and
(3) a recommendation to the Commissioner responsible for Chieftaincy Affairs to cause the stool paraphernalia to be taken over after consultation with the traditional council by virtue of power conferred by the Chieftaincy (Amendment) Decree, 1973 (N.R.C.D. 166).
In his reply to the application for these interlocutory reliefs, the applicant challenged the validity of the appointment of the judicial committee on the ground of likelihood of bias in that the committee’s appointment was linked with Nana Otutu Ababio, Nifahene, and consequently, in the face of the allegation levelled against him (the applicant) by the plaintiffs for writing a seditious letter to the Eastern Regional Commissioner about the same Nana Otutu Ababio, Nana Ababio was likely to be biased against him.
He further attacked the purported appointment of the judicial committee as being void in that its appointment was not made in accordance with section 28 of the Chieftaincy Act, 1971 (Act 370). He finally maintained that the injunctions sought could not avail because his lodgment of appeal had perforce removed the case from their court. In respect of the recommendation to require him to hand over stool property he said the committee was incompetent to make such a recommendation because that power was available to the committee only in cases where the destoolment charges were pending before the committee and not in a case like that which they had on hand where the force of his appeal had removed the action from their forum and pended it before the Regional House of Chiefs.
The committee by its ruling given on 13 June 1974 also exhibited as exhibit D, overruled the applicant’s arguments on all grounds and held that by virtue of section 27 of Act 370 as amended by the Chieftaincy (Amendment) (No. 2) Decree, 1973 (N. R. C.D. 226), appeals to the Regional House of Chiefs stayed execution only of final orders and not of interlocutory orders, such as the applicant’s appeal was, and therefore that the charges were still pending before it; the committee therefore proceeded to make the recommendations prayed for to the commissioner. The applicant being aggrieved challenges the validity of the decision of the committee on grounds of error on the face of the record, bias and want of competence.
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I will first deal with the allegation of errors on the face of the record. Two grounds were complained of as errors. The first was against the capacity of the plaintiffs to institute the destoolment charges; the second against the interlocutory order in exhibits C and D to which I have already referred.
His arguments on these grounds at the hearing of those motions were that, in view of the appeal he had lodged to the Regional House of Chiefs against the ruling of the committee made on 8 April 1974 in which it was held that the sixth, seventh and eighth plaintiffs and the co-plaintiff had capacity to bring the suit against him, any further proceeding on the case was to be stayed and secondly that the committee had no power to make the recommendations to the commissioner by the force of the appeal he had lodged and by virtue of the fact that a committee could only make such a recommendation in respect of a dispute pending before it. These arguments were dismissed by the committee and Mr. Okyere Darko, counsel for the applicant, has raised them in these proceedings and advanced them as errors of law in support of the certiorari application.
For the applicant to succeed in obtaining an order of certiorari on the grounds complained of under this head, the error of law must be patent on the record. In exhibit C is contained the applicant’s arguments against the capacity of the plaintiffs to institute the charges; in exhibit D is contained the interlocutory application of the plaintiffs for recommendations to the commissioner, the arguments of the parties thereon and ruling of the committee. These two documents qualify as “records” for the purpose of certiorari: see the cases of R. v. Nat Bell Liquors, Ltd. [1922] 2 A.C. 128, P.C.; R. v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1952] 1 K.B. 338, C.A. and William Joseph & Sons v. Jebeile Brothers, Court of Appeal, 5 May 1969, unreported; digested in (1969) C.C. 98. In exhibit C, the committee upheld the applicant’s argument in part and declared that the first, second, third, fourth and fifth plaintiffs had earlier been disqualified by a previous decision of the Akwapim Traditional Council and therefore no longer held any office which, by custom, would qualify them to bring an action for destoolment against a chief under Akwapim customary law but that the sixth, seventh and eighth plaintiffs and the co-plaintiff were competent to bring the action and the action was therefore to proceed. Exhibit D sets out the text of the application of the plaintiffs’ motion applying for (a) a recommendation to be made to the commissioner to take over stool properties from the applicant under powers conferred by section 29 (1) (b) of the Chieftaincy Act, 1971 (Act 370), as amended by the Chieftaincy (Amendment) Decree, 1973 (N.R.C.D. 166), and (b) an order of injunction restraining the applicant from using stool funds accruing from certain stool properties until the final disposition of charges and (c) a recommendation to the commissioner to restrain the applicant from performing chieftaincy rites. Counsel for the respondent, Mr. Kaleo Bio, argued that the matters raised under this head as errors on the face of the record were matters which were only competent for appeal and not for certiorari. With respect to counsel, who impressed me much with his industry, style and good manners, I think
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differently and nothing which I have read in the Jebeile case (supra) which he advanced to prop his arguments, has altered my assimilation of the basic issues. This is how I see it: If it is apparent on the record that the plaintiffs brought the chieftaincy suit without capacity then the judicial committee itself lacked jurisdiction to try the matter, for the committee’s jurisdiction was founded to try issues of chieftaincy which are instituted by competent persons. Thus, if it is apparent on the face of the record that the judicial committee, an inferior tribunal, as it is, was not conferred with powers either to make restraining injunctions or recommendations of the kind contained in exhibit D to the commissioner, then in my view, certiorari could issue to quash the recommendations if they were acted upon to the detriment of the applicant. I therefore do not agree with counsel that it can be sweepingly and peremptorily claimed that these jurisdictional issues are necessarily matters of appeal bereft of a further examination of the record to determine from it the real nature of the challenges levelled against it.
I have examined the record and the Chieftaincy Act to determine whether on the face of the record, the matters complained of are acts done or made without jurisdiction. The first issue is the capacity of the plaintiffs to bring the charges against the applicant. The question of the plaintiffs’ capacity to institute the proceedings at all is, in my view, a condition precedent to assumption of jurisdiction by the judicial committee. If therefore it could be discovered on the face of the record that all the persons who filed the destoolment charges were in law incompetent to bring the charges in the first place, certiorari could lie to quash any decision or order made by the committee. Therefore, if the committee misconstrued the law by accepting the sixth, seventh and eighth plaintiffs and the co-plaintiff as competent plaintiffs, and in consequence assumed jurisdiction in the matter then that is an error which is not apparent on the face of the record. On the face of the record the persons competent to bring chieftaincy charges are, by the letter of section 33 of the Chieftaincy Act, those persons competent at customary law to bring such charges. The nature of the competence required is latent within the peculiarities of Akwapim customary law and it will entail some exploration of Akwapim customary law to reach the relevant customary law; such an exercise will necessitate some adventure outside the perimeter of the record. Therefore if the judicial committee fell in error when it decided that some of the plaintiffs were competent, then such an error, if anything, is only a latent error since it is not discoverable from the record. The customary law will have to be reached by digging out not from within, but from without the record to ascertain the righteousness or unrighteousness of the committee’s ruling. Latitude for such a survey is admissible to the boundaries of appeal but inadmissible to the periphery of certiorari. A judicial committee as an inferior tribunal can only exercise powers which are inside the confines of the powers conferred on it. Any exercise of powers outside that limit like ordering injunctions or making recommendations to the commissioner which are acted upon by the commissioner to the detriment of the individual’s rights would easily be met by the issue of an order of certiorari by this court unless this court is
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satisfied that the power is expressly conferred or is incidental to the powers conferred on the inferior tribunals.
I observe that section 29 of Chieftaincy Act, 1971 (Act 370), as replaced by N.R.C.D. 166 makes a provision for the commissioner to order stool property to be taken over only in circumstances where the stool property is itself affected by a dispute. There is nothing in the Act which gives the commissioner power to prohibit a person against whom destoolment charges have been filed from performing ritual rights; similarly there is nothing in the Act which gives power to the judicial committee to recommend to the commissioner to restrain a chief who has been charged, from receiving stool revenue. The record however establishes that such recommendations were made to the commissioner as were prayed for by the plaintiffs. It is not evident on the face of the record that the recommendations were favourably considered by the commissioner and such recommendations not being in themselves the exercise of a power affecting the rights of persons, certiorari cannot issue to quash them.
On the question whether it was competent for the committee to continue to hear the plaintiffs’ subsequent motion in spite of the pendency of the appeal, there is nothing ultra vires about this because the applicant’s appeal to the Regional House of Chiefs was neither here nor there since there is no provision, of which I am aware, which provides that an appeal, whether from interlocutory or substantive orders, should stay proceedings (as opposed to executions) before the judicial committee.
It is therefore my holding that there is no error on the face of the record which would warrant the issue of an order of certiorari on these grounds raised by the applicant. The application therefore so far as it is based on these complaints must effectively collapse.
I would now advert to the merits of the allegation of bias. The applicant expressed himself of his misgivings as follows:
“(8) That Nana Otutu Ababio, Nifahene of Akwapim, mentioned in one of the charges to wit charge (8) (supra) was one of the four members of the appointing body and would no doubt be aggrieved or biased by my alleged seditious act.
(9) That Nana Ofei Danquah II, Chief of Amanokrom and Gyasehene of Akwapim Traditional Council, being a member of the Asona clan and very closely related to the Ofori stool being one of the appointing members and chairman of the judicial committee would naturally be biased in view of one of the charges, (namely charge (8) supra) preferred against the applicant. Furthermore, Nana Boafo Ansah II, Krontihene of Akropong and the Acting President of the Traditional Council was also one of the appointing members of the council and would naturally be biased on the selection of the members of the judicial committee by virtue of charge (9) above.”
Of the two allegations of likelihood of bias, I think the first which is contained in paragraph (8) (supra) along with the first allegation in paragraph (9) (supra) with reference to the Nana Danquah’s membership of the selection committee and chairmanship of the judicial committee is
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the better deserving of consideration and the second which is contained in the second allegation in paragraph (9) (supra) is much too remote to warrant any further consideration by this court. The first allegation charges that the applicant is unhappy with the committee as constituted to try the charges because one of the persons who participated in its appointment was Nana Otutu Ababio, the very person whom the applicant is alleged to have conspired against and written the seditious letters are about. The applicant therefore says that he cannot be too sure that a committee so appointed can give him as fair a trial as the demands of justice require, more so as Nana Ofei Danquah, a co-member with Nana Otutu in the selection committee, had been appointed member and chairman of the judicial committee to try the charges against him. If Nana Otutu was himself a direct party to the suit, his disqualification at common law would be without question. But in this case Nana Otutu Ababio is not directly a party to the suit and only participated in the selection of the trial committee. Learned principal state attorney readily dismissed the applicant’s apprehensions as remote. Much as I agree that in respect of the second allegation in charge (9), the impact of the likelihood of bias apprehended by the applicant is far removed, I do not think that the impact of charge (8) is as obviously remote as counsel has urged upon me. I think it will be fair to say that any person finding himself in the situation of the applicant should not be expected to keep his mouth shut. If I were to assume that the judicial committee was properly appointed and that the selection committee was also properly commissioned whether as delegates or as agents, in selecting the five members who sat to hear the charges, I would like someone to tell me whether it can be seen as justice done for Nana Otutu Ababio to participate in the selection of the judicial committee members to try the applicant of his alleged sedition against the self-same Otutu Ababio—charges which were pending long before the selection committee proceeded to select the members to try the charges? There is apparently no reported case in this country or elsewhere which is on all fours with the present case. The case of Akufo-Addo v. Quashie-Idun, Court of Appeal, 22 July 1968, unreported; digested in (1968) C.C. 109 cited by learned counsel for the respondents is a case in which, unlike this case, the person appointing the judge is a straight party to the proceeding. But even there, it seems to me that that case can be summed up as having escaped judicial condemnation only on the ground of statutory necessity. There does not seem to be, from the facts of this case, any question of statutory necessity which the respondents can pray in aid. In this case, Nana Otutu Ababio is not himself a direct party to the chieftaincy charges but such natural interest as I expect of him in the result of the destoolment trial can, in my view, be squarely equated with that of a direct party to the suit. The only matter which falls to be decided therefore is simply whether or not the role played by Nana Otutu Ababio in participating in the selection of the judicial committee members in these circumstances infringed the requirements of natural justice at common law. In the Canadian case of R. v. Handley (1921) 61 D.L.R. 656 a magistrate was held to be disqualified from trying
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a charge against a person with whom he had recently come to blows. In the Irish case of R. (Donoghue) v. Cork County Justices [1910] 2 I.R. 271 a conviction was quashed when it was shown that very bad feeling (originating from the trespass of a fowl) existed between the family of the accused and the presiding magistrate. Similarly in the Irish case of R. v. Clare County Justices [1918] 2 I.R. 116 where a participant in a political procession charged a police officer with assault arising out of a clash with the procession, a participant in the procession was held to be disqualified from hearing the summons against the police officer.
Except in the Handley case (supra) where bias was not denied and therefore so found, likelihood of bias was presumed in each of the other cases. In these cases the area of conflict was a direct one between the party charged and the adjudicating official but had the judges been appointed by a person whose relationship to the person charged was similar to those between the person charged and the adjudicating officers in the three cases cited, I think the magistrate would have been seen to have tainted himself with enough of the grievances of his appointer as would be adequate to disqualify him. All the relevant decisions I have surveyed have held out two grounds, namely, “reasonable suspicion,” and “real likelihood of bias” on the part of a judge as sufficient at common law to disqualify a judge from adjudicating. Of the two grounds it is thought that the ground of real likelihood of bias is the better ground and I identify myself with that school of legal reasoning. I have already indicated elsewhere in this judgment that in my view the applicant’s disquiet in the circumstances he found himself is understandable. He certainly has reason to suspect that Nana Otutu Ababio is likely to be biased against him in the destoolment charges filed against him and would naturally speculate on the probabilities of Nana Otutu Ababio using his best endeavours to empanel members to the judicial committee who are better pleased with the pros and cons about him.
True it is, that Nana Otutu Ababio was himself not one of the committee members but equally true is the fact that he was the victim on whom, it is alleged, the applicant poured his venom in the letter he allegedly addressed to the Eastern Regional Commissioner. Could there not, in these circumstances, be said to be a real likelihood of bias on the part of the selection committee as a whole in appointing the judicial committee members? If I hold that there was a likelihood of bias on the part of Nana Otutu Ababio, can it be said that a reasonable man would think that this likelihood of bias, personal to Otutu Ababio, is likely to reach and infect his colleagues as comrades in arms into choosing only members who were favourably disposed to Nana Ababio? In other words can such a likelihood be said to be real or remote, apparent or latent? In my view, if justice is to be seen to be done, Nana Otutu Ababio, like all mortals, and not being of the faith of Caesar’s wife, cannot be seen to be within the improbabilities of doing his little best to select members better inclined to him and so I hold. Having so held, need I inquire of myself whether Nana did in fact influence his colleagues? The answer is No! The likelihood of bias test is objective and not subjective. The question
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to be answered is whether the probabilities of bias on the part of Nana Otutu Ababio can be held to be sufficiently imminent as to be likely to capture and contaminate the other three appointees. The answer would naturally depend on the number of persons constituting the selecting committee. The relative probabilities will be nearer certainty as the committee is small and relatively remote as the committee is large. In this case the committee comprises a very small group of four persons, smaller still if the learned principal state attorney who discounted the registrar and put the number at three, is right. But, be the number three or four the committee is, in my view, too small to be acquitted of the probable effects of contagion. Any talk of remoteness is therefore inadmissible to me in these circumstances. I do not, however, wish to be understood as having said any more about the doctrine of remoteness as it bears on likelihood of bias than that, in my view, the likelihood of bias should be relatively proportional to the size of the affected interest in the committee. In this case the odds of 25 per cent or 331/3 per cent is too sizeable for comfort and too big a chance to be taken on justice. The applicant’s apprehensions are therefore not, in my view, remote; they are pointedly imminent. It is therefore my finding that the selection of the judicial committee members was wanting in the elements of natural justice and the appointment underscored the demands of natural justice. Accordingly I hold that the discretion of the selection committee in making the appointment in these circumstances (if it was so competent to make it) was in the circumstances they made it, likely to have been over-fuelled with the probable prejudice of Nana Otutu Ababio and consequently the appointment fouls against natural justice and that manifests itself as incurably bad. The appointment having therefore undermined the demands of natural justice ought not be allowed to stand. I accordingly vacate the office of the said judicial committee members jointly and severally and issue an order prohibiting them as constituted from further hearing the destoolment charges against the applicant. I also order that the proceedings complained of be removed from the said judicial committee to this court for the purpose of being quashed and are hereby quashed.
There is only one last point left to be dealt with. It is the last but important issue fought in this application. It is the question whether the appointment of the judicial committee complained of was validly made. It is the case for the applicant that no valid judicial committee was appointed and accordingly the five persons purporting to hold office as judicial committee members had no warrant to hold office as such and therefore had no competence to try the case, still less, to make the interlocutory orders which the applicant says, in any case, were in themselves erroneous. In the second alternative they argued that in so far as the traditional council purported to delegate their powers to a selection committee to appoint the judicial committee members, the selection or appointment done in consequence was ineffective because the traditional council was incompetent to delegate the function of appointing a judicial
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committee. In the third alternative the applicant argued that even if the power to delegate was enjoyed by the traditional council, then the delegation could only be made to traditional council members, therefore the purported delegation of the appointing power to a selection committee which included a non-member of the traditional council, namely, the registrar, was an irregularity which vitiated the subsequent appointment of the judicial committee by the selection committee. This recapitulates my understanding of what Mr. Okyere Darko sought to burden on this court on this last issue.
The learned principal state attorney for the respondent in reply argued that in the first place there has been a proper appointment by the judicial committee members by the traditional council. He cited appendix I to the respondent’s affidavit which purports to evidence the swearing ceremony of 29 members of the traditional council as judicial committee members. On that assumption he argues that the traditional council was perfectly entitled to appoint the selection committee which did not necessarily have to include council members to select the panel of judicial committee members from among existing judicial committee members to try the charges brought against the applicant.
He argued further that the maxim delegatus non potest delegare applied only to the sub-delegate of a delegated power and not to the primary delegate of original power. He cited de Smith’s Judicial Review of Administrative Action (3rd ed.) at pp. 264-266. The point he sought to impress on the court was that the traditional council being the primary delegate of power under section 28 of the Chieftaincy Act, was at liberty to discharge that duty by appointing other persons to perform those duties provided it retained the right to control those other persons and to accept or reject their selections. He further urged that even if it was held by this court that the maxim delegatus non potest delegare applied to a primary power, what was done by the traditional council in this case was not delegation to the selection committee but a nomination of an agent to act for it, and that this was permissible in law since the agents were called upon to exercise a function which did not require the exercise of skill. In appointing agents in this way, he went on, it was open to the traditional council to appoint any person of its choice, be he a member of the traditional council, or not, hence the attack against the inclusion of the registrar into the selection committee was, in his view, ill-taken. So much for the arguments on both sides on the question of the validity or otherwise of the appointment of the judicial committee.
It is of first importance for me to examine the respondent’s claim that the traditional council validly appointed a judicial committee Appendix I, a typewritten copy of the proceeding of a meeting purporting to have been held at Akropong on 12 September 1973, is attached to the plaintiffs’ affidavit in opposition.
The last page of the appendix lists the names of 29 persons who, according to the learned principal state attorney, are referred to in paragraph (6) of appendix I as the appointed judicial
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committee members. The relevant portion in appendix (6) referred to by Mr. Kaleo Bio, sets out the welcome address read by Nana Boafo Ansah II which reads as follows:
“Today is a very important day for the history of this traditional council in that the members of the council are going to be sworn-in to become as I can say the judges of the council to enable them to adjudicate the chieftaincy dispute within the Akwapim Traditional Area. And for that matter I have seized this opportunity to welcome you all to this important occasion.”
I am invited to infer from the quotation (supra) that a judicial committee comprising 29 members had been validly appointed. I am afraid, I would not accept the invitation. Appendix I is, in itself, a document of doubtful credibility. Apart from anything else it is not certified to be a true and accurate copy of the record of the meeting of 12 September 1973. It does say when and where it was recorded. In fact the whole character of appendix I smacks of it being a self-serving minute. But that apart, nothing exhibited in appendix I can satisfy this court that the traditional council ever appointed a judicial committee. To say that 29 members were sworn-in as a judicial committee members is not to say that they were so appointed when a challenge of this nature has been mounted against it. If anything the passage relied on by the principal state attorney, i.e. paragraph (6) of appendix I, clearly suggests that the traditional council was labouring under a delusion that the act of the swearing of the 29 members itself bespoke of the appointment expected of the traditional council. That is not the case; there is nothing before me, be it the record or affidavit or both, to satisfy me that any appointment of a judicial committee was made by the traditional council. I cannot but hold therefore that no such appointment was made by the traditional council.
I now turn to the so-called delegation to the selection committee itself. True enough a selection committee comprising four persons was appointed to select judicial committee members but could the council as such appoint a selection committee to empanel a judicial committee on its behalf even if it had earlier appointed a standing judicial committee in the general way suggested by counsel? Mr. Kaleo Bio says it could, because the selection committee was only called upon to discharge a ministerial duty which required no skill. Mr. Kaleo Bio’s stand impels me to reflect on the case of Akufo-Addo v. Quashie-Idun (supra) cited by him. It will follow from Mr. Kaleo Bio’s argument that if in the Akufo-Addo case the Chief Justice had nominated some other persons to exercise the statutory function of constituting a panel for the Court of Appeal, then, apart from the grounds of statutory necessity already discussed, it could have behoved him to argue that the Chief Justice’s action in so delegating would be faultless on the footing that the discretionary duty cast on the Chief Justice to select panels for the Court of Appeal bench from among judges already holding office was delegable because the selection of panels to constitute appeal court bench did not of itself require the exercise of skill.
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With much respect to learned counsel, I do not feel able to keep pace with this kind of argument. The exception to the maxim delegatus non potest delegare in public law has been applied only where the enabling enactment so permits or where delegation can be implied from the enabling provision.
But in any case, there is distinction between an operational duty and a duty to make an appointment. Permissibility of delegation along the general lines urged by counsel for the respondent has been discussed mainly within the compass of operational duty, e.g., a municipal authority whose statutory duty is to cater for the sanitation needs of an urban area would not generally be said to have breached the maxim delegatus non potest delegare if it engaged contractors to perform some of its statutory duties for it in this regard provided it retained to itself the power of ultimate decision and control. Similarly would the State Housing Corporation not generally be held to have abdicated its duty if it engaged contractors to put up estate houses for it in the estates provided again it retained the necessary control over the contractors? But where a duty of appointment to an office as distinct from a statutory operational duty is the point, as it is here, then that power must be exercised by the person vested with the power to appoint unless the enabling provision clearly prescribes otherwise. But be that as it may, the short answer to the learned principal state attorney’s argument is that whilst he is right in arguing that an agent could be appointed where it can be so construed or be implied from the enabling provision, it is equally true that there is nothing in the Chieftaincy Act or any of its amendments which permits delegation or which warrants such an inference. In any case, even if it was within the compass of the traditional council to appoint a selection committee to perform the ministerial duty of selecting the judicial committee members, learned attorney for the State seems to me to have forgotten to address himself to the fact that the papers before me contain no scintilla of evidence suggesting in the least that the traditional council retained any power to control over the selection committee; neither did the selection committee submit the names of the selected judicial committee panels to the traditional council for confirmation, nor was the selection ever confirmed by the traditional council prior to or even subsequent to the assumption of office by the judicial committee members. On any ground therefore, it seems to me that the offending judicial committee derived a defective authority from an incompetent selection committee and has therefore no warrant of office. For these reasons, I rule that no warrants of office were held by the judicial committee whose members comprised Nana Ofei Danquah II, Nana Wotumi Apau III, Nana Kwapong II, Oduro Darko II and Nana Twum Ankrah. They therefore usurped office and consequently the offices they purported to hold as judicial committee members were null and void and of no legal effect. I accordingly vacate their offices jointly and severally and I discharge all orders made by them in the proceedings complained of, whether such order be interlocutory or
[p.376] of [1975] 2 GLR 362
otherwise. Additionally, I order prohibition to issue and is hereby issued against the said judicial committee prohibiting them as constituted from further hearing of the said destoolment charges filed against the applicant herein.
DECISION
Application granted.
S. Y. B. -B.
