HIGH COURT, HO
Date: 25 MARCH 1975
ANTERKYI J
NATURE OF PROCEEDINGS
APPLICATION for an order of mandamus to compel the Volta Regional House of Chiefs to report the enstoolment of the applicant to the Commissioner responsible for Chieftaincy Affairs. The facts are fully set out in the ruling.
COUNSEL
Dr. O. Asamoah for the applicant.
D. M. Akotia for the respondents.
[p.450] of [1975] 1 GLR 448
JUDGMENT OF ANTERKYI J.
In these proceedings, the applicant Nana Obrimpong Kanya II, Bejamsowura of Benjamso in the Krachi District of the Volta Region, applies for an order of mandamus
“to issue directed to the Volta Regional House of Chiefs to report the enstoolment of the said Nana Obrimpong Kanya II as the Bejamsowura of Nchumuru to the Commissioner responsible for Chieftaincy Affairs through the National House of Chiefs and for such further order or orders as to the court may seem fit.”
The facts relied on and upon which the application is based are as follows: On 12 October 1969, the applicant was installed customarily as the Bejamsowura of the Nchumuru Traditional Area after the abdication of his predecessor Nana Kwaku Sekyere IV. When subsequently this predecessor asserted his right to remain on the Bejamso stool, a dispute arose between him and the kingmakers of the stool. This dispute was finally settled by a committee of the Volta Regional House of Chiefs on 20 June 1973, upon the terms embodied in a document (exhibit A) made between him and the kingmakers whereby he abdicated by a letter exhibit B after payment to him of the sum of 01,000.10 as agreed upon in exhibit A.
Following this settlement of that stool dispute, the kingmakers of the Bejamso stool did duly submit in writing to the Volta Regional House of Chiefs the particulars of his (the applicant’s) enstoolment for reporting to the Commissioner responsible for Chieftaincy Affairs through the National House of Chiefs in consonance with the provisions of section 51 of the Chieftaincy Act, 1971 (Act 370).
In reply, as evidenced by exhibit C to the application, the Volta Regional House of Chiefs advised that the applicant’s enstoolment papers should be signed by the President of the Krachi Traditional Council, relying on the contents of a letter dated 7 September 1972 emanating from the secretariat of the National Redemption Council and forwarded to the Volta Regional House of Chiefs which reads inter alia:
“(2) I am to inform you in reply that only the Presidents of Traditional Councils are authorised to sign the forms for reporting changes in the status of chiefs, as required by section 51 (1) of the Chieftaincy Act, 1971 (Act 370).
(3) Where the President of the Traditional Council is unable to sign the forms for any reason whatsoever, the most senior chief is permitted to sign them, on his behalf, but he must state the full facts of the circumstances which made it impossible for the President himself to sign the forms.”
Consequent upon the receipt of exhibit C the applicant forwarded the requisite forms for the signature of the President of the Krachi Traditional Council, but as evidenced by exhibit D dated 17 July 1973, the President, Nana Krachiwura, refused to sign them on the grounds, as stated in exhibit D signed by the registrar of the Krachi Traditional Council, that “you are not customarily and traditionally known in traditional circles by him to whom you owe allegiance.” By exhibit E dated 1 April 1974, the
[p.451] of [1975] 1 GLR 448
solicitors of the applicant forwarded to the President of the Volta Regional House of Chiefs the relevant “papers . . . for appropriate action to ensure the registration of the status” of the applicant in the Local Government Bulletin, and challenged the legal propriety of the contents of exhibit C as emanating from the secretariat of the National Redemption Council as regards the signing by the president of a traditional council of the relevant forms relative to an installed chief for reporting and registration under section 51 of Act 370. They received the reply signed by the registrar of the Volta Regional House of Chiefs in the form of exhibit F the body of which reads:
“Volta Regional House of Chiefs.
Re Gazetting of Enstoolment of Bejamsohene Nana Obrimpong Kanya II
I refer to your letter Nos. BLBA/MISC/36/74 dated 1 April 1974 and BLBA/MISC/42/74 dated 19 April 1974 on the above subject matter and wish to inform you that the view of the Standing Committee of this House is that an individual has to undergo all the necessary customs before he can be described as a chief under section 48 (1) of the Chieftaincy Act, 1971 (Act 370). It is the view of the committee that one of such customs is the swearing of the oath of allegiance by a subordinate chief to the paramount chief of the Traditional Area and the committee holds the view that, that was what the President of Krachi Traditional Council was asking your client to undergo before he signs his gazetting forms.
I am to add that the office of the National Redemption Council who is responsible for chieftaincy matters has directed in a circular that the President of a Traditional Council should sign the gazetting forms for the registration of chiefs and the standing committee do not intend to challenge the power of the Commissioner responsible for Chieftaincy Affairs for issuing out such a circular.
Yours faithfully,
(Sgd.) E. K. Nini-Marsoh
for: Registrar
Volta Regional House of Chiefs.”
The Volta Regional House of Chiefs therefore had declined to report the applicant’s enstoolment to the Commissioner responsible for Chieftaincy Affairs for the reasons stated in exhibit F. In the premises the applicant applies for the order of mandamus directing the said Volta Regional House of Chiefs to report his enstoolment as the Bejamsowura of Nchumuru to the Commissioner responsible for Chieftaincy Affairs on the basis of the following submissions embodied in paragraph (11) of his affidavit in support of the application.
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“(11) (a) The Volta Regional House of Chiefs is duty bound to report enstoolment and destoolment of chiefs without regard to considerations of allegiance.
(b) The Volta Regional House of Chiefs has erroneously formed the opinion that the circular from the Chieftaincy Secretariat empowers the president of a traditional council to settle questions of allegiance before he signs enstoolment or destoolment forms.
(c) That questions of allegiance in the Volta Region will be determined by the Government on the completion of the work of the committee appointed to investigate chieftaincy matters in the Volta Region as is clear from the Volta Regional Chieftaincy Affairs Committee of Inquiry Instrument, 1973 (E.I. 31) of 10 April 1973.”
Strikingly enough these facts relied on by the applicant are not denied by the respondent Volta Regional House of Chiefs, but their main reasons for resisting the application are embodied in their affidavit filed on 5 October 1974. In the main they contend that, even though after he had been nominated, elected and installed as a chief—as Nana Obrimpong Kanya II, Bejamsowura of the Nchumuru Traditional Area—the applicant had
“submitted his enstoolment papers to the Volta Regional House of Chiefs to be transmitted in accordance with section 51 of the Chieftaincy Act, 1971 but the House had felt it prudent to delay the despatch of the papers to the appropriate quarters, because the applicant refused to swear the oath of allegiance on the ground that he owed no such allegiance to the Krachiwura through the Dente Bosomfour.”
The respondents base the claim of the Krachiwura to this allegiance allegedly owed him by the applicant on the contention that the Nchumuru Division, within which the applicant is a chief, had been a division of Krachi District as was the Tapa Division as evidenced by Schedule I to the State Councils (Colony and Southern Togoland) Ordinance, 1952 (No. 8 of 1952). But while, by virtue of the Chieftaincy (Amendment) Decree, 1966 (N.L.C.D. 112), the Tapa Division has now been accorded with the status of a traditional council the Nchumuru Division had not been given its own traditional council area within which the Krachiwura assumes paramountcy over the other chiefs who are divisional chiefs, and of whom the applicant is one. The Krachiwura as Paramount Chief of the Krachi Traditional Council, it was contended, must therefore endorse the forms before they are submitted to the respondent house of chiefs by the applicant. The respondents, upon receipt by them of the forms, became duty bound to forward them only when the Krachiwura (as Paramount Chief of the Krachi Traditional Area) has duly endorsed them. As they received the forms in that unendorsed state they were under no duty to comply with section 51 of the Chieftaincy Act, 1971 (Act 370).
[p.453] of [1975] 1 GLR 448
Tersely, they (the respondents) were under no duty to forward the forms of the applicant in compliance with section 51(1) of Act 370, because they had received the forms in a state unendorsed by the Krachiwura, and the Krachiwura refused to endorse them upon his claim that, the applicant, as a divisional chief owing allegiance to him as a paramount chief of the Krachi Traditional Area, has refused to swear to him the requisite oath of allegiance.
Upon these contentions raised in the affidavit of the respondents, the applicant filed two supplementary affidavits in reply by which he sought to trace the status of the two stools of Krachi and Nchumuru from the time of the Krachi-Nchumuru Joint Traditional Council as set up in 1962 by the Local Government Bulletin No. 48 of 30 November 1962, and through N.L.C.D. 112 of 1966, and he sought to establish that the “Krachi Traditional Council” does not legally exist, and to assert that the two stools of Krachi and Nchumuru are of equal status of a divisional chief, and that the Krachiwura is not a paramount chief as claimed by him.
In reply to these supplementary affidavits, the respondents through their registrar filed on 15 January 1975 an affidavit in which is stated:
“(3) That I am reliably informed and verily believe that the swearing of oath of allegiance by an inferior chief to a superior chief in Ghana is the last act which under customary law consummates the installation of an inferior chief.
(4) That with regard to paragraph (5) of the applicant’s first affidavit I am reliably informed and verily believe that it is because the Krachiwura is a superior chief to the rest of the chiefs in the Krachi District and confederacy that he, Krachiwura, was made or appointed a permanent President by the Native Authority (Krachi Area) Order, 1935 (No. 84 of 1935).
(5) That by customary law no independent chief would be made to serve under the permanent presidency of another chief unless those under the permanent president are inferior or owe allegiance to the permanent president.”
The questions that arise therefore are:
(1) Is the Krachiwura the paramount chief of the alleged Krachi Traditional Area of which Nchumuru is allegedly a division so as to make the applicant his subordinate chief?
If the answer to this question is in the affirmative, then,
(2) Does the applicant owe allegiance to the Krachiwura customarily? These two questions are clearly matters affecting the constitutional relations between chiefs, and are therefore matters affecting chieftaincy over which this court has no jurisdiction.
These matters were sought to be resolved by the documentary evidence of both sides and by reference by the applicant to the state of the law from 1932 up to the present position with particular regard to the provisions of the Chieftaincy Act, 1971 (Act 370). The ultimate contentions of the applicant as Bejamsowura are (i) that, even though he himself admits
[p.454] of [1975] 1 GLR 448
his status as that of a divisional chief, the Krachiwura is as much a divisional chief as himself and cannot claim to be a paramount chief and that he therefore owed him no allegiance whatsoever; and (ii) that the Krachi Traditional Area does not legally exist under the provisions of the Chieftaincy Act, 1971 (Act 370).
The applicant, by exhibit I (to his supplementary affidavit) which is undeniably a copy of a letter dated 10 January 1973 written by the Krachiwura himself to the National Redemption Council, has sought to establish that the Krachiwura at present inferentially admits that he is not a paramount chief within the alleged Krachi Traditional Area. For, paragraph (8) of exhibit I states:
“(8) By the medium of this petition, I earnestly pray the N.R.C. and the Executive Council to take immediate steps to restore the Krachiwura’s position to him as a paramount chief for the whole Krachi District, but not as subservant [sic.] to any paramount chief in the Volta Region.
I pray the N.R.C. and the Executive Council and the Regional Office to recognise the position of the Krachiwura as a paramount chief and be accorded with such due respect in all future correspondence.”
The contents of this exhibit I have not been denied by the Krachiwura. He thereby admits that his position as a chief is not that of a paramount chief in the Krachi Traditional Area, and if the Krachi Traditional Council legally does exist he cannot legitimately be the president of that council as he claims to be, under section 13 of Act 370, even though he could be a member of that council under section 14 (1) of the Act. And if he is not legally the president of that council under section 13 of Act 370, in my view, all the proceedings and activities of that council under his presidency pursuant to the provisions of section 16 of the Act are void.
On the basis that these present proceedings are not for a declaration (a) that the stool of the Krachiwura is not one falling within section 49 (a) of Act 370, i.e. is not that of a paramount chief, and (b) that therefore he is not legally the President of the Krachi Traditional Council, or (c) that the council, as it now stands, does not legally exist, the above inferences are hereby stated as obiter dicta.
But one thing is clear: whether or not any allegiance is owed or owable by the applicant as Bejamsowura to the Krachiwura is not a sine qua non to the determination of this application for an order of mandamus against the Volta Regional House of Chiefs. It cannot be read into the provisions of section 48, 50 and 51 of Act 370 a requirement that, apart from the customary nomination, election and installation, a chief becomes a “chief’ for the purposes of the Act only when he has complied with or effected the constitutional relations between another chief and himself, for such relations arise, if they do, from the very fact that he has become a “chief,” and such ancillary matters are merely liable to be resolved in the appropriate House of Chiefs. Once he has been customarily installed, a chief is entitled to the provisions of the sections of the Act, as above referred to.
[p.455] of [1975] 1 GLR 448
Nor can I read into the Act that the forms embodying the particulars of the installed chief must, before being received by the Regional House, be statutorily endorsed or countersigned by the paramount chief of the traditional area of the installed chief, even though this, if done, may be perfectly decorous.
It is pertinent to observe the provisions of section 51 of the Chieftaincy Act, 1971 (Act 370), which state: “(1) All enstoolments, destoolments, abdications and deaths of Chiefs in any Region as well as all such other changes in the status of Chiefs as may be prescribed by regulations made under section 62 of this Act shall as soon as practicable after their occurrence, be reported in writing to the Minister by the Regional House of Chiefs of the Region through the National House of Chiefs.
(2) Subject to section 48 of this Act, the Minister shall upon receipt of any such report cause its contents to be published in the Local Government Bulletin for the information of the general public.”
Under these provisions of the Act, it is to be observed that (a) for a chief to be recognised simpliciter as such, the following two requirements must co-existently be fulfilled:
(i) he must have been nominated, elected and installed (Act 370, s. 48 (1)); and
(ii) his name “shall be entered by the National House of Chiefs in the National Register of Chiefs not later than one month from the date of the receipt of the notification of such installation.”
Act 370, s. 48 (2). See also section 50 (1) and (2); and that, (b) fulfilling the conditions under (a) above, in order to be legally qualified “for the purposes of the exercise by him of any function under this Act or under any other enactment,” a chief must have been “recognised as such by the Minister [Commissioner responsible for Chieftaincy matters] by notice published in the Local Government Bulletin” (s. 48 (2)). As by section 51,
“(1) All enstoolments . . . of Chiefs in any Region as well as all such other changes in the status of Chiefs . . . shall as soon as practicable after their occurrence, be reported in writing to the Minister by the Regional House of Chiefs of the Region through the National House of Chiefs,” the failure of the Regional House of Chiefs to discharge this duty to report to the Minister the enstoolment through the National House of Chiefs will result in at least three situations:
(a) of the particulars of the installed chief not appearing at all in the National Register of Chiefs kept by the National House of Chiefs under the provisions of section 50 (2) and therefore in his not being recognised in chieftaincy circles as a chief at all (s. 48 (1));
(b) of the installed chief not being recognised as such by the Minister owing to his name not having been published by notice in the Local Government Bulletin;
[p.456] of [1975] 1 GLR 448
(c) of the installed chief not being a chief for the purposes of his exercising the functions of a chief under the Act or under any other enactment.
In this regard, in my view, a failure by the Regional House of Chiefs to discharge this obligatory duty under section 51 (1) of Act 370 does make the chief in question a mumbo jumbo in the domain of chieftaincy.
I find, in the result, that the respondents, the Volta Regional House of Chiefs, are by section 51 (1) of the Chieftaincy Act, 1971 (Act 370), under duty to make the report to the Commissioner through the National House of Chiefs, after being apprised of the particulars about the applicant; and that these particulars were duly supplied to the respondent Volta Regional House of Chiefs but that this house refused to comply with this statutory requirement of forwarding the forms embodying the particulars to the National House of Chiefs, under the legally untenable excuse that the Krachiwura had advised them that the applicant had not executed an oath of allegiance to him. And I do find that, as appears in exhibit C to the applicant’s supplementary affidavit, the statement that “only the presidents of Traditional Councils are authorised to sign the forms for reporting changes in the status of chiefs” is a mere administrative instruction not having any legal backing either in the parent Act 370 or in the regulations made under section 62 thereof.
There is established a case of demand and refusal, and I cannot find, and the respondents have not suggested to this court, that under the Act and the regulations there is another lawful way by which the applicant could seek his remedy.
The application for an order of mandamus succeeds hereby as against the Volta Regional House of Chiefs, and it is hereby ordered that the house do forward the particulars within ten days from the date of their receiving them thereafter from the solicitors of the applicant. Order accordingly. Costs of 050.00 for the applicant against the respondent House of Chiefs.
DECISION
Application granted.
S. E. K.
