REPUBLIC v. VOLTA REGION CHIEFTAINCY COMMITTEE & ANOTHER; EX PARTE ASOR II [1972] 1 GLR 273
HIGH COURT, HO
Date: 21 DECEMBER 1971
BEFORE: FRANCOIS J.
CASES REFERRED TO
(1) R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920), Ltd.
[1924] 1 K.B. 171; 93 L.J.K.B. 390; 130 L.T. 164; 39 T.L.R. 715, C.A.
(2) R. v. Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 Q.B. 864; [1967] 3 W.L.R.
348; [1967] 2 All E.R. 770, D.C.
(3) 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, P.C.
(4) Ahenkora v. Ofe (1957) 2 W.A.L.R. 233
(5) Mbrah v. Donkor; Re State Councils (Colony) Ordinance, Cyclostyled Judgments, January-June
1958, p. 51 unreported.
(6) Ofori Atta v. Jackson; Re Stool Lands Boundaries Settlement Ordinance, Cap. 139, Cyclostyled
Judgments, January-June 1958, p. 165 unreported.
(7) Osman v. Awuku Darko, Supreme Court, 12 February 1970, unreported; digested in (1970) C.C.
36.
(8) R .v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 K.B. 338; [1952] 1
All E.R. 122; 116 J.P 54; [1952] 1 T.L.R. 161, C.A.
(9) Kish v. Taylor [1911] 1 K.B. 625, C.A. reversed [1912] A.C. 604; [1911-13] All E.R. Rep. 481; 81
L.J.K.B. 1027; 106 L.T. 900; 28 T.L.R. 425, H.L.
(10) Attorney-General of Gambia v. N’Jie [1961] A.C. 617; [1961] 2 W.L.R. 845; [1961] 2 All E.R.
504, P.C.
(11) R. v. Industrial Injuries Commissioners; Ex parte Ward [1965] 2 Q.B. 112; [1965] 2 W.L.R. 19;
[1965] 3 All E.R. 907, D.C.
(12) Jones v. James (1850) 19 L.J.K.B. 257.
(13) Farquharson v. Morgan [1894] 1 Q.B. 552; 70 L.T. 152; 10 T.L.R. 240; 58 J.P. 495, C.A.
(14) Walsh v. Secretary of State for India (1863) 10 H.L.Cas. 367; 32 L.J.Ch. 585; 11 W.R. 823; 11
E.R. 1068.
(15) Grenfell v. Inland Revenue Commissioners (1876) 1 Ex.D. 242; 45 L.J.Q.B. 465; 34 L.T. 426.
(16) David v. De Silva [1934] A.C. 106, P.C.
(17) Barnard v. Gorman [1941] A.C. 378; [1941] 3 All E.R. 45; 165 L.T. 308; 57 T.L.R. 681; 105 J.P.
379, H.L.
(18) General Officer Commanding the Ghana Army v. The Republic; Ex parte Braimah, Court of
Appeal, 3 April 1967, unreported; digested in (1968) C.C. 81.
(19) Felton v. Bowers & Co. [1900] 1 Q.B. 598.
(20) Awoonor-Williams v. Gbedemah, Supreme Court, 8 December 1969, unreported; digested in
(1970) C.C. 18.
NATURE OF PROCEEDINGS
Application for an order of prohibition to prevent the Volta Region Chieftaincy Committee from
inquiring into the applicant’s capacity as a chief. The facts are fully set out in the judgment of Francois J.
COUNSEL
E. D. Kom for the applicant
Djabatey for the first respondent (Committee)
E.C. Djamson for the second respondent.
JUDGMENT OF FRANCOIS J.
In these proceedings, counsel moves on behalf of the applicant, Togbe Afede Asor, for the prerogative
order of prohibition “to stop the Volta Region Chieftaincy Committee inquiring into whether the
paramount stool of Ho Traditional Area belongs to or should be occupied by a citizen of either Dome or Bankoe.” The circumstances which gave rise to this application are as follows: A committee of inquiry was appointed to inquire into and submit recommendations to the government on the qualification of membership of the Volta Regional House of Chiefs. Six terms of reference were set out in the instrument establishing the said committee.
It appears that during the course of the inquiry, questions relating to the applicant in respect of his
capacity as a chief of Ho, and in some cases challenging his status, were raised. Objections have
consequently been taken to the evidence so received as breach of the committee’s jurisdictional powers.
In dealing with this matter, I am adopting a procedure of convenience in setting out in separate paragraphs the various issues that require determination, but before I do so, I shall set out the committee’s terms of reference. They are:
“1. To find out who are according to customary law, the Paramount Chiefs in the Volta Region.
2. To inquire whether all such Paramount Chiefs should be members of the Volta Regional House of Chiefs and whether they are sufficient to constitute the House. 3. If they are not sufficient for the said purpose, to determine whether any and how many Divisional Chiefs should be added to their number for the above mentioned purpose. 4. To make recommendations to the Government as to the mode of selection or election of the Divisional Chiefs to be added to the Paramount Chiefs under paragraph 3 above. [p.277] of [1972] 1 GLR 273 For the purposes of paragraph 4 above the Committee should have regard to the communal groupings and representation, the traditions of the people in the area, their languages and dialects and their traditional allegiance as well as any other matters which in the opinion of the Committee should be taken into account for the purpose of determining the composition of the Volta Regional House of Chiefs.
6. For the purpose of the discharge of their functions under the foregoing paragraphs, the Committee
shall have regard to the existing composition of the Volta Regional House of Chiefs under the
Chieftaincy Act, 1961 (Act 81) together with the N.L.C. Decrees which affected the status of chiefs in
the Volta Region such as the Chieftaincy (Amendment) Decree 1966, (N.L.C.D 112) and also to the
proposals for the composition of the Volta Regional House of Chiefs submitted by the Volta Regional
Chief Executive.”
To begin then with the first issue:
(1) Does prohibition lie in respect of acts of committees of inquiry?
This question arises because a committee of inquiry by its very nature merely makes recommendations upon facts it is seised with. These recommendations are non-binding and certainly have no final legal effect. Presumably it is on this account that learned counsel for the respondent committee, at a glancing stroke asked this court to reflect whether the committee can be regarded as an inferior tribunal at all.
But I think the law is clearly established now that any tribunal or quasi-judicial body which is clothed
with authority to make recommendation is subject to the supervisory discipline of prohibition. This is especially so where the recommendations may be prejudicial to the rights of individuals. See R. v.
Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920), Ltd. [1924] 1 K.B.
171, C.A. where prohibition was ordered to prevent an inquiry extending into matters outside the
commissioners’ field of competence even though they were not the final arbiters in the matters. See also R. v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 Q.B. 864, D.C.
A passage from de Smith’s Judicial Review of Administrative Action (2nd ed.) seems to me apposite
here. At p.394 the learned author states:
“It may perhaps be said that certiorari will rarely issue to quash reports or recommendations, but that the courts show a greater readiness to award prohibition…. against bodies which have no power to make binding determinations provided that the recommendation or decision of the body forms part of a statutory scheme in which explicit provision is made for its findings to acquire finality upon the taking of consequential action by another authority. Readiness to award prohibition in such cases may be enhanced if judicial review is excluded by statute once the consequential action has been taken.” [p.278] of [1972] 1 GLR 273 In the instant case, the findings of the committee, upon approval by the Prime Minister may be embodied in proposals for Presidential assent. It is pertinent to observe that the basis for the proposals may remain unknown and the final assent may not be subject to review.
On this aspect of supervisory jurisdiction the classic opinion of Lord Sumner in R. v. Nat Bell Liquors
Ltd. [1922] 2 A.C. 128, P.C. is worth recalling. He said at p. 156:
“Its jurisdiction is to see that the inferior Court has not exceeded its own and for that very reason it is bound not to interfere in what has been done within that jurisdiction, for in so doing it would itself, in turn, transgress the limits within which its own jurisdiction of supervision, not of review, is confined. That supervision goes to two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise.”
It would seem therefore that if the committee wandered “outside its designated area” or “digressed away from its allotted task” or “strayed from the direct path which it was required to tread” then in any of those cases, the High Court would be clothed with supervisory Jurisdiction to intervene. The High Court’s supervisory control of tribunals like commissions of inquiry in the light of the local cases does not seem to be in doubt.
There is the case of Ahenkora v. Ofe (1957) 2 W.A.L.R. 233, where Windsor-Aubrey J. held that a
prerogative writ would lie for excess of jurisdiction by a committee of inquiry. This aspect of the High
Court’s decision was confirmed by the Court of Appeal on 4 November 1957.
To the same effect is the case entitled Mbrah v. Donkor; Re State Councils (Colony) Ordinance,
contained in the 1958 Cyclostyled Judgments, January-June at p. 51.
At page 57 is the following unanimous judgment of the court:
“It seems to us therefore that in such cases, where that is to say, as here, the adjudication upon the subject matter is removed from the High Court and made .exclusively the province of some body deriving authority from statute the jurisdiction of the High Court is of a divided character. It cannot by writ of certiorari or otherwise interfere with the matter adjudicated upon by the inferior Court if this resided within its jurisdiction, but if such adjudication was given by a body which lacked jurisdiction in that it was of defective constitution in the senses to which we have referred to or exceeded its jurisdiction, or whose decision was obtained by fraud or duress, the High Court cannot be deprived of its power to intervene and correct such injustice and irregularity.”
See also the case entitled Ofori Atta v. Jackson; Re Stool Lands Boundaries Settlement Ordinance, Cap.
139, Cyclostyled Judgments, January-June, 1958, p. 165. [p.279] of [1972] 1 GLR 273 If therefore a commission which has transgressed its bounds is subject to correction, a fortiori a committee of inquiry is more amenable; for Osman v. Awuku Darko, Supreme Court, 12 February 1970,
unreported; digested in (1970) C.C. 36 has settled for the present any way that a committee of inquiry is an inferior body to a commission of inquiry.
Furthermore, section 20 of the Courts Act, 1971 (Act 372), and article 114 of the Constitution, 1969 seem to remove the High Court’s surveillance over inferior bodies from the periphery of controversy.
Section 20 of Act 372 reads as follows:
“20. The High Court of Justice shall have supervisory jurisdiction over all inferior Courts in Ghana and any adjudication authority other than a military Court or tribunal and in the exercise of its supervisory jurisdiction shall have power to issue such directions, orders or writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto as it may consider appropriate for the purpose of enforcing or securing the enforcement of its supervisory powers.” It is significant that the section quoted above does not talk of “final adjudicating authority” but “adjudicating authority” simpliciter. I would therefore classify any argument as tenuous which seeks to graft the word “final” to “adjudicating authority” to remove from its ambit bodies that have no final say in a determination.
The supervisory jurisdiction conferred on the High Court by the Constitution, 1969, seems even wider in its ambit. Article 114 states:
“The High Court of Justice shall have supervisory jurisdiction over inferior and traditional Courts in Ghana and any adjudicating authority and in the exercise of its supervisory jurisdiction shall have power to issue such directions, orders or writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto as it may consider appropriate for the purposes of enforcing or securing the enforcement of its supervisory powers.”
The answer to the first issue is therefore clearly in the affirmative.
(2) Was the failure to exhibit the record of proceedings fatal to the application? It is clear from his affidavits that the applicant encountered considerable difficulty in his attempt to procure a copy of the committee’s proceedings. All efforts unavailing, he has consequently been left to rely on newspaper accounts, to which I shall refer presently.
The respondents, at least the committee, which must be deemed to have possession or custody of the said proceedings, failed to produce them and relied on affidavit evidence. I find nothing essentially wrong in the matter being determined by affidavits. Where issues are clear they are fought on affidavits. Indeed the matters attacked by the applicant in his affidavit were left uncontroverted; the newspaper reports were not impugned either. To hold in these circumstances that the applicant should [p.280] of [1972] 1 GLR 273 not be heard till the record of proceedings were before the court would be conferring an undeserved advantage on the respondents and stultifying the court’s supervisory jurisdiction. Such a course would serve only to endorse the conduct of the respondents in withholding the record from the applicant and this court.
Indeed from all circumstances it can be inferred that the parties were tacitly agreed on conducting the issues raised herein between them by affidavits. This as I have said is not wrong. See R.v.
Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 K.B. 352, C.A. Prerogative
applications are of the greatest urgency and it would be unconscionable to subject an applicant to the
pleasure of a body which had exclusive control over its proceedings to make them available at its whim.
As was said by Flectcher-Moulton L.J. in Kish v. Taylor [1911] 1 K.B. 625 at p. 634, C.A. “[A] man may not take advantage of his own wrong. He may not plead in his own interest a self-created necessity.”
The matters that were assailed in the proceedings were sufficiently recapitulated in the affidavits filed herein and the newspaper reports which were tendered. Dealing first with the affidavits: The respondent Togbe Constantine Howusu XII, in his affidavit filed on 14 December 1971 made the following significant averments:
“(3) That my predecessors who hailed from Ho Dome and ruled as Paramount Chiefs of the Ho Division were as follows: Lakle Adzikosi (1730) ̧ Adinyira (1800-1845), Wusu (1845-1852), Motte Kofi I (1852-1884), Kumi (1884-1898), Degbadzo 1(1898-1910), Constantine Adzie (1910-1926), Wusu Kosi Yoa (1929-1933), Vendelinus Motte Kofi Howusu XI (1934-1958). (4) That according to customary law and tradition, I am the immediate successor of Vendelinus Motte Kofi Howusu XI, who, as a refugee, died in the Republic of Togo in 1962. (5) That prior to his departure into exile the said Vendelinus Motte Kofi Howusu XI had been the Fiaga of Ho and paramount Chief of Asogli State (1934-1958).(11) That I am advised by counsel and verily believe the same to be true that by their terms of reference adverted to supra, the committee of inquiry are to ascertain inter alia ‘who are according to customary law the Paramount Chiefs in the Volta Region’ and not to find out whether or not a particular stool qualifies to be designated “Paramount stool’.” Newspaper reports of matters that transpired at the committee’s sittings were admitted as exhibit, exhibits AA1, AA2 and AA3. I shall only quote from two of these exhibits, exhibits AA3 of 2 December 1971 and AA1 of 1 December 1971.
Exhibit AA3 culled from the Ghanaian Times states:
“Togbe Anikpi I, sub-divisional Chief of Ho-Heve a suburb of Ho, yesterday alleged at the committee
probing chieftaincy affairs in the Volta Region here that Togbe Afede Asor II, the present occupant [p.281] of [1972] 1 GLR 273 of the Ho Asogli stool, was not the legitimate person to occupy the stool.
The Asogli stool, he claimed, belongs to the ancestors of Ho-Dome and according to tradition and custom the rightful person should have been Togbe Howusu XII, of Ho-Dome.
He said the occupation of the stool by Togbe Asor was against the customs and traditions of the Asogli Traditional Area because the ancestors of the five divisions of Asogli comprising the Dome, Heve, Bankoe, Hliha and Ahoe were all ruled by Togbe Lakle Adzi Kosi of Ho-Dome.”
In exhibit AA1, the Daily Graphic coverage of 1 December 1971, it is reported as follows:
“Togbe Constantine Howusu XII, has claimed at Ho that according to customary law and tradition, he is the right Paramount Chief of the Ho Traditional Area.
He called for recognition and said he should be made a permanent member of the Volta Regional House of Chiefs.”
All these passages bear out the applicant’s allegations in paragraphs (8), (9) and (10) of his affidavit of 3 December 1971, that his qualifications for or entitlement to the Ho stool were being challenged at this forum.
I hold therefore that the complaint being so openly canvassed and the objection appearing so clearly
highlighted, lack of jurisdiction was properly proved on affidavits. This leads to the next question.
(3) What injury has the applicant suffered for which recourse must be had to the court’s jurisdiction?
The applicant has urged that he is the Paramount Chief of Ho in the Asogli Traditional Area. He urges that his status has been recognised by Gazette Notice No. 61 of 7 July 1958 and Legal Notification 284 issued under the Chiefs (Recognition) Act, 1959, of 21 October 1959. He claims therefore to be dejure and de facto chief of Ho. So long as the recognition subsists and no one has invoked any machinery to set it aside or oust him from his stool, it would be illegal to disturb his status. The prima facie evidence of the Gazette and Legal Notification remain unrelated by anything cogent; furthermore nothing appears to have been done to challenge the applicant’s status under either of the Chieftaincy Acts of 1961 and 1971.
Sections 22 to 35 of the Chieftaincy Act, 1971 (Act 370), regulate proceedings affecting chieftaincy, and article 155 (1) of the Constitution, 1969, regulates the establishment of the regional house of chiefs. The determination of a chief’s status has been exclusively given by the aforesaid enactments to the house of chiefs subject to the Supreme Court’s appellate jurisdiction in article 105 (3) of the Constitution, 1969.
The applicant consequently urges that the committee had no jurisdiction to entertain or countenance the evidence aforementioned whose mischief was self-evident. Indeed section 23 of the Chieftaincy Act, 1971 (Act 370), does not depart from previous legislation in conferring exclusive jurisdiction in
chieftaincy matters to each regional house of chiefs.
[p.282] of [1972] 1 GLR 273 Article 155 (1) is the parent from which section 23 of Act 370 springs and it is consequently in similar vein.
Having regard to the aforementioned enactments and the fact that the applicant’s status had not been validly challenged prior to the inquiry, there is no doubt in my mind that he must be deemed to be legally aggrieved when an encroachment on his vested rights occurs or matters are ventilated in an inappropriate forum which prejudicially affect his interest. See Attorney-General of Gambia v. N’Jie [1961] A.C. 617 at p. 634, P.C. A person is also injured in a way which affects jurisdiction if inadmissible evidence is admitted or admissible evidence is rejected in a matter in which he is involved. See R. v. Industrial Injuries Commissioners; Ex parte Ward [1965] 2 Q.B. 112, D.C.
It follows therefore that if the applicant’s status as a chief is being subjected to scrutiny by the reception of inadmissible evidence and where no lawful warrant for such scrutiny exists, his rights are clearly being interfered with and recourse to the courts would avail him. In R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920), Ltd. (supra), it was held that if want of jurisdiction was apparent on the face of the proceedings prohibition may be applied for at once. There are a number of cases where prohibition has been considered as a right ex debito justitiae unless the circumstances disentitle the applicant to relief. Such a circumstance may for instance be waiver. Thus where a party approbates defective proceedings he may lose forever his chance of securing his rights. See Jones v. James (1850) 19 L.J.Q.B. 257. It has thus been aptly said a delay might lose an applicant his rights, as there may be nothing left to prohibit.
It seems to me therefore idle to urge that an application of this nature is premature and speculative, and in the words of Mr. Djamson, falls short of “conscious” and “persistent” conduct for which the remedy might avail. This, with all respect, is the hindsight of bolting the stables after the horses have fled.
One last point on this aspect of the case. It is urged that the applicant’s memorandum to the committee discusses his own status as others have done and therefore falls into the same error that this application assails. I must reject this argument. The applicant only gives an account of himself vis-a-vis his stool; he does not challenge anyone for the occupancy of his stool; it would be absurd to do so as he is the one on it. In any case what amounts to waiver is not automatic. See Farquharson v. Morgan [1894] 1 Q.B. 552.
(4) Does prohibition lie to check the day to day proceedings of an inferior body?
What has caused me some difficulty is a statement in Halsbury’s Laws of England (3rd ed.), Vol. 11, p. 114 that prohibition does not “lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings.” Consideration of this
[p.283] of [1972] 1 GLR 273 has led me to a further passage in Halsbury (3rd ed.), which in my view qualifies significantly the very wide statement of law appearing in the passage first cited. This latter quotation is in my view apposite in this case. It is as follows at pp. 63-64:
“Prohibition will not lie for receipt of improper evidence by an inferior tribunal, unless the evidence is received in contravention of the terms of a stature. Prohibition will not lie for a mere irregularity in
procedure, unless it amounts to an excess of jurisdiction. Prohibition will lie where a claim which is not within the jurisdiction is framed under the colour of a cause of action which is within the jurisdiction.”
This passage therefore gives the green light to the applicant’s proceedings as indeed R. v. Industrial
Injuries Commissioners; Ex parte Ward and R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920), Ltd. (supra) do show.
There is also the view expressed by de Smith in his Judicial Review of Administrative Action (supra) in the following language at p. 101:
“It is also intelligible to hold that an inferior tribunal having general jurisdiction in the first instance can lose or exceed its jurisdiction if a matter arises during the course of its inquiry on which it has no authority to give any ruling at all or if it makes an order of a kind lying outside the range of its restricted competence.” Now we come to the crux of this matter.
(5) What is the true meaning of the first term of reference of the committee?
Mr. Djamson for the respondent, Howusu XII, in his argument, interpreted the first term of reference thus:
“The committee must find out whether there are persons masquerading as paramount chiefs who are not paramount chiefs and whether there are stools which are in need of occupants.” Consequently as far as he and his client are concerned, the first term of reference deals with persons and not stools. He props his argument with an attractive dissertation on the differences between chiefs and stools and takes us on a tour of Africa to examine indigenous custom with the constant invitation to improve our minds with learned works by writers on African affairs.
The applicant, on the other hand, sees the first term of reference as in no way concerned with a
determination of the status of a person qua chief but as a determination of which stools qualify to be
designated paramount stools and consequently their occupants to be styled paramount chiefs of the Volta Region.
In this view he finds support in the respondent committee. Indeed what strange bed fellows necessity
throws together! In the chairman’s opening remarks at the inauguration of the committee he is reported to have said: [p.284] of [1972] 1 GLR 273
“The committee is not concerned with inquiring into chieftaincy disputes as being suggested by certain interested parties … The primary duty of the committee therefore is to ascertain the number of stools which by tradition and custom are Paramount Stools and therefore qualify to be represented in the Regional House of Chiefs.”
In the same tenor is the committee’s affidavit by its secretary, of 14 December 1971, paragraph (7)
thereof. It seems the odd man out in the interpretation of this first term is the respondent, Howusu XII.
But as decisions on interpretation are not by majority verdicts but on a much sounder legal basis I shall endeavour to show why the majority view is right.
It is not doubted that the canons of construction require statutes which encroach on the rights of subjects, whether as regards persons or property, to be strictly construed and lead to an interpretation wherever possible to respect such rights: Walsh v. Secretary of State for India (1863) 10 H.L.Cas. 367 at p. 386.
See also the dictum of Pollock B. in Grenfell v. Inland Revenue Commissioners (1876) 1 Ex.D. 242 at p. 248:
“[A] statute is not to be construed according to the strict or technical meaning of the language contained in it, but … is to be construed in its popular sense; meaning, of course, by the words ‘popular sense’ that sense which people conversant with the subject matter with which the statute is dealing would attribute to it.”
And if there is ambiguity, the meaning that favours individual rights must be given effect. See David v. De Silva [1934] A.C. 106, P.C.
There is also the elementary principle that the fact that the liberty of the subject is affected does place
upon the court the obligation to give words their ordinary meaning. See Barnard v. Gorman [1941] 3 All E.R. 45, H.L.
Though these cases determined the language, scope and meaning of certain statutory enactments, in my view they establish the correct criteria for determining the meaning of a term of reference especially in its relation to existing law, having particular regard also to the principles of repugnancy and inconsistency.
The principles enunciated above as to the rights of a subject were lucidly stated by Akufo-Addo C.J (as he then was) in the habeas corpus case, General Officer Commanding Ghana Army v. Republic; Ex parte Braimah, Court of Appeal, 3 April 1967, unreported; digested in (1968) C.C. 81.
This case, though dealing with restrictions on the liberty of a subject arising from a criminal action is
equally apposite to the instant application. The learned Chief Justice there said:
“The court in the execution of its duty to protect the citizen’s liberty always proceeds on the well-known principle, at any rate as acknowledged in democratic countries, of the primary necessity in the administration of the law to establish a healthy balance between the need to protect the community against crime and the need to [p.285] of [1972] 1 GLR 273 protect individual citizens against abuse of executive power. Subject to the limits imposed on this two-fold protection by the establishment and maintenance of the requisite balance the scales are to be held evenly, at any rate in normal times, between the community that is the State and the individual and there can be no question of ‘leaning over backward’ so to speak to favour the State at the expense of the citizen or to favour
the citizen at the expense of the community. And the court’s vigilance in protecting the citizen against any encroachments on his liberty by the executive becomes meaningful and real only when pursued on the basis of this principle.”
The law does not permit repugnancies; it abhors them. That is to say the law imputes consistency in the legislature. Consequently legislation which impliedly revokes or alters a statute by construction is not permitted where the words may be capable of proper operation without necessarily abrogating the existing enactment. See Felton v. Bower & Co. [1900] 1 Q.B. 598.
In this case a mere term of reference not enshrined with the immutability of statute law is being urged as revoking the fundamental law of the Constitution and other important enactments. Viewed in this light the first term can have one meaning and one only, namely, the selection of stools as distinct entities to the regional house of chiefs, and not the qualifications for office of an occupant of a stool which is exclusively reserved to the regional house of chiefs. If more authority were required I would respectfully refer to the opinion of Azu Crabbe J.A. in Awoonor- Williams v. Gbedemah, Court of Appeal sitting at the Supreme Court, 8 December 1969, unreported; digested in (1970) C.C. 18. The learned judge there said:
“It is … the duty of the court to so construe every provision as to keep it within the law and spirit of the Constitution . . . It seems to me, therefore, that this court ought not to adopt a construction which will defeat the objects and purposes of the Constitution.”
To borrow the words of Megarry J. in Re Lloyd’s Trust Instrument, 24 June 1970, unreported (quoted in Brown v. Gould [1971] 2 All E.R. 1505 at p. 1508), the question is one “of linguistic or semantic uncertainty and not of difficulty of ascertainment”; no greater proof of this is the committee’s own view which I have already referred to. As the aim and object of the first term having regard to existing law and ex cathedra pronouncements of which I must perforce take judicial notice, remain the ascertainment of stools which qualify to be recommended for a place in the regional house of chiefs, any other interpretation will render the applicant’s rights as a chief, elected by his own people, illusory by the mere stroke of an administrative pen.
(6) Would an order of prohibition stultify the proceedings of the committee?
This final issue must be considered as it is urged on behalf of the committee that the personalities of
chiefs are inextricably bound up with their stools and evidence appertaining to one cannot be divorced from the [p.286] of [1972] 1 GLR 273 other and an indirect embargo would be placed on the committee’s work if prohibition were ordered.
I have anxiously considered this submission and must reject it also. Parties to the inquiry are to state bald facts as they exist. The committee is after all a fact-finding body. It is only where rival claims are being espoused that an illegal departure commences. To give an example, the affidavit of the respondent, Togbe Howusu XII, attracts objection in terms of the committee’s duties when it attempts to challenge the status of the applicant. Consequently the objectionable evidence can be severed and jettisoned. If this can be done, it can equally be excluded when it is being given by oral evidence before the committee. If the argument of the committee as to frustration of its work is upheld it would imply that a court should be permitted for instance to conduct its work on inadmissible evidence like hearsay, because it finds it difficult to exclude it. The reductio ad absurdum of this argument would permit for instance any sort of villification of a party by the introduction of inadmissible evidence which save for its prejudicial effect would have no relevance to the inquiry; that evidence being received purely on the grounds that it was difficult to exclude. That argument to me is lame and if countenanced would seek to destroy the foundations so laboriously constructed over the years of excluding extraneous and unwarrantable matters in the quest to ensure justice. Indeed it is not unknown that inadmissible evidence unobjected to has tolled the knell of many a good cause. And it is not without significance that the committee can boast among its
membership, an experienced legal practitioner, to guide, when the herd strays.
As the dramatis personae at this inquiry are principally chiefs some emotive flickers are bound to be
generated. I hope by this determination, first as to the meaning of the first term of reference being
restricted to stools and not persons, and as to my view that there was a clear excess of jurisdiction, that the embers will be scorched out for all time and a conflagration avoided.
I shall consequently order a limited or partial prohibition, in legal terminology, a prohibition quoad,
extending only to that part of the proceedings which exceeds the jurisdiction of the committee of inquiry, that is to say, to the reception of evidence outside its area of competency but allowing it to proceed as to the residue of its duties.
There will be no order as to costs.
DECISION
Order accordingly.
