HIGH COURT, HO
Date: 22 JULY 1975
ANDOH J
NATURE OF PROCEEDINGS
APPLICATION for an order of prohibition to prevent the judicial committee of the Volta Regional House of Chiefs from further hearing of a dispute until an appeal lodged against an interlocutory order of the judicial committee has been heard by the National House of Chiefs. The facts are sufficiently set out in the ruling.
COUNSEL
E. D. Kom for the applicants.
I . N. K. Wuaku for the respondents.
JUDGMENT OF ANDOH J.
The Judicial Committee of the Volta Regional House of Chiefs having caused hearing notices to be served on the parties herein for further hearing of the constitutional matter before it, in spite of an appeal against an interlocutory order made by it, is challenged in these proceedings by an order of prohibition directing it to stay the threat to resume the proceedings pending the hearing of the appeal to the National House of Chiefs.
The sole issue therefore is whether the court in its supervisory jurisdiction over inferior tribunals ought to grant the stay of proceedings by an order of prohibition in view of the appeal against the interlocutory order of the Judicial Committee of the Volta Regional House of Chiefs to the National House of Chiefs.
[p.244] of GL[1975] 2 GLR 243
At the hearing before the Judicial Committee of the Volta Regional House of Chiefs, counsel for the applicants were permitted to argue some preliminary points of law including estoppel per rem judicatam. It is to be observed that if the submissions had been sustained, then subject to an appeal to the National House of Chiefs by the respondents that would have terminated the whole matter before the tribunal.
Learned counsel for the respondents submitted at the hearing of this application that the contention of the applicants ought to fail because not only were the respondents also relying on estoppel per rem judicatam but also that in a situation of this kind evidence must be adduced by the parties before the committee could properly rule on it. It is significant to note that even though two members out of the three members of the judicial committee were of the view that the plea of estoppel per rem judicatam was not sustainable, at any rate, not until evidence had been led on the issue, the third member of the judicial committee held a contrary view that is to say that the respondents’ case was clearly defeated in view of estoppol per rem judicatam raised by the applicants. After the majority ruling rejecting the preliminary points of law raised, the Judicial Committee of the Volta Regional House of Chiefs caused hearing notices to be served on the parties for the resumption of the hearing of the constitutional matter before it despite the appeal to the National House of Chiefs against its order. The applicants challenged the propriety of the threat to resume the proceedings on grounds of (1) error on the face of the record or (2) wrongful assumption of jurisdiction to hear the case or both.
Learned counsel for the applicants has submitted that there should be a stay of proceedings pending the hearing of the appeal before the National House of Chiefs because of the probability that the ruling of the judicial committee may be declared erroneous—an event which would create “absurdity” if the committee is to continue the hearing of the substantive suit. Counsel then posed the question as to what is likely to happen if upon resumption of the proceedings before the committee and beforecompletion the National House of Chiefs should come out with a ruling that the plea of estoppel per rem judicatam ought to have been upheld? Surely if such a situation arises the trial before the judicial committee would be abortive because the committee would automatically be bound by the decision of the National House of Chiefs. Precious time and expenses would have been wasted for nothing. Besides it would amount to oppression to compel the applicants to go on with the case when their appeal is still sub judice.
Let it be said at this stage that this court is not concerned with the merits of the appeal before the National House of Chiefs nor with the issue whether the ruling appealed from was right or wrong. That is something not within the competence of this court to look into. It is essentially a matter within the exclusive province of the National House of Chiefs. The question therefore whether there is a proper appeal before the National House of Chiefs, that is to say whether conditions precedent to vesting the appellate court with jurisdiction were fulfilled or not, is not a matter which should be probed by this court. That would be a gross
[p.245] of [1975] 2 GLR 243
usurpation of the functions of the National House of Chiefs. My only concern is whether prohibition will lie in the circumstances of this case to stop the threat to resume the proceedings in view of the appeal to the National House of Chiefs. Prohibition like all other prerogative orders or writs is a discretionary remedy and no applicant is entitled to it as a matter of right.
Now talking about a matter of right takes me to the Chieftaincy Act, 1971 (Act 370). Section 22 (2) of the Act reads as follows:
“Any person aggrieved by any judgment or order of a Regional House of Chiefs in the exercise of its original or appellate jurisdiction may appeal to the National House of Chiefs as of right, against such judgment or order.”
(The emphasis is mine.) It is clear from section 22 (2) of the Act that the applicants whose submissions based on estoppel per rem judicatam were overruled by the judicial committee may appeal against that order as of right to the National House of Chiefs. As I have stated already if the submissions had been upheld, subject to an appeal by the respondents, that would have disposed of the matter before the committee. One of the submissions on estoppel per rem judicatam made by the applicants was based upon the findings of a committee of inquiry published in Gazette No. 1403 of Extraordinary Gazette No. 61 dated 7 July 1938 wherein the said committee found as follows:
“(1) Togbe Afede Assor II of Bankoe should be recognised by Government as the Fiaga of Ho, and his position is equivalent to that of Omanhene in the Akan traditional organisation . . .
(3) Togbe Howusu Mote Kofi II of Dome should revert to his former and rightful position of Awafia of Ho to Togbe Afede Assor II, Fiaga of Ho. His position is equivalent to a divisional chief and he is responsible to the Fiaga of Ho for his division of Dome. He should be titled Awafia of Ho and should sit on the left of the Fiaga.”
These findings were accepted by the Governor-General at the time. I think that since the committee permitted counsel to argue at length on the issue of estoppel per rem judicatam and since an appeal has been lodged against the order of the committee overruling it, the committee exceeded its jurisdiction by issuing hearing notices to be served for further hearing of the matter. Undoubtedly the appeal may cause unnecessary delay in the hearing of the matter but to avoid absurdity, hardship and oppression in the event of the appeal succeeding, I think the committee is to be prohibited from continuing with the further hearing of the substantive case until the decision of the National House of Chiefs is given or until this aspect of the matter is prosecuted to finality to the Court of Appeal.
Prohibition is therefore granted accordingly and it is hoped that the National House of Chiefs would take steps to dispose of this appeal as soon as it is practicable. A copy of this order is to be served on the
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Registrar of the National House of Chiefs to enable this matter to be given expeditious trial.
Application granted accordingly. There will be no order as to costs.
DECISION
Application granted.
S. O.
