COURT OF APPEAL, ACCRA
Date: 10 JUNE 1974
ANIN JA
CASES REFERRED TO
(1) Timitimi v. Amabebe (1953) 14 W.A.C.A. 374.
(2) Chief Kwame Asante v. Chief Kwame Tawia [1949] W.N. 40; 65 T.L.R. 105; 93 S.J. 180, P.C.
(3) R. v. Justices of Essex [1895] 1 Q.B. 38; 64 L.J.M.C. 39; 71 L.T. 832; 59 J.P. 68; 43 W.R. 183; 11 T.L.R. 43; 39 S.J. 57, C.A.
(4) Republic v. Western Nzima Traditional Council; Ex parte Nana Kpani Ackah III [1973] 2 G.L.R. 107.
NATURE OF PROCEEDINGS
APPEAL to the Court of Appeal from a judgment of the High Court, Kumasi, dismissing an application for an order of certiorari on the ground that the Adansi Traditional Council had no jurisdiction to hear and determine a chieftaincy matter because less than half of the total number of its membership heard the matter contrary to section 16 (3) of Act 81. The facts are set out fully in the judgment of Anin J.A.
COUNSEL
C. F. Hayfron-Benjamin for the appellants.
Mmieh (S. K. Boafo with him) for the respondents.
JUDGMENT OF ANIN JA
The short but important point argued in this appeal was whether or not the Adansi Traditional Council was seised with jurisdiction when less than one half of the total number of its membership sat to hear and determine a cause or matter affecting chieftaincy.
The proceedings herein were formally commenced on 13 November 1968 when, before the full assembly of all the 21 members of the Adansi Traditional Council, presided over by the Adansihene as chairman at Bonsra Afriyie Palace, Fomena, the second plaintiff swore the oaths of Edubiasi, Adansi and the great oath of Ashanti that the defendant is not a true royal of the Edubiasi royal family, and as such could not occupy the vacant Edubiasi stool; whereupon the defendant responded to the same oaths that he is a true royal of Edubiasi stool and, as such, eligible to occupy the said vacant stool and that he had in fact been customarily nominated by the co-defendants. As demanded by custom, each party was ordered to slaughter four sheep; an order which was promptly complied with. Thereafter, this oath case involving a chieftaincy dispute was adjourned sine die. Hearing of evidence in the case commenced on 28 October 1969 before the full 21 member panel of the Adansi Traditional Council under the chairmanship of Nana Adansihene; and was continued thereafter before the same panel on 5 November 1969, 7 November 1969, 10 November 1969 and 24 November 1969.
On 19 May 1970, Nana Adansihene (chairman) presided over a panel of only five members of the council, with four linguists—all non-members—in attendance upon him. The main business transacted that day was
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that of adjournment of the case until 24 June 1970 at the request of the first plaintiff. However, the following significant note appears in the record of proceedings for that day:
“Note: Nana Kwantwi Barimah II, Adansihene and chairman of the committee informed members that owing to the numerous assignments entrusted to him by the Ashanti Region House of Chiefs, he could not preside over the case again, and therefore appointed a committee of seven, namely, Nananom Appianini II, Ayasehene, chairman, Kwasi Boabin II, Dompoasihene, Nana Owusu Sampah II, Akrokerrihene, Kwadwo Kyere Ababio Bodwese- anwohene, Bafour Mireku II, Gyasehene Fomena, Okyere Ababio, Twafohene, Fomena, and Kwaku Amoako, Krontihene, Akrofuom as members to go into the case on 24 June 1970. Nana
Adansihene instructed the new members of the committee to take fresh evidence from the litigants. The second plaintiff suggested that the case be continued without hearing fresh evidence. All the defendants also agreed that the case be continued from where it was adjourned last time. So despite any previous sitting and evidence already adduced, both parties consented to adopt all evidence already adduced and therefore wished the reconstituted committee to continue from where they reached. The reconstituted committee also agreed to continue from the evidence already adduced. The case was therefore adjourned to 24 June 1970 at 9 a.m. All parties were to make available their witnesses on that date.
(Sgd.) Appianini II AYASEHENE Chairman
Recorder
(Sgd.) E. R. Frimpong Secretary.”
Thereafter, the rest of the evidence in the case was heard by this reconstituted committee of seven under the chairmanship of the Ayasehene, Nana Appianini II, on 24 June 1970; 19 January 1971; 28 January 1971; 13 April 1971; 15 April 1971; 20 April 1971; 29 April 1971; 3 May 1971; 5 May 1971 and on 14 June 1971 when the said seven-member committee delivered judgment in favour of the defendants and dismissed the plaintiffs’ claim.
Being dissatisfied with the judgment, the plaintiffs moved the Kumasi High Court for an order of certiorari that the said proceedings and judgment of the Adansi Traditional Council be brought up to be quashed on two stated grounds, the main burden of which was that the Adansi Traditional Council lacked jurisdiction at the material time to entertain the chieftaincy dispute since no rules had been enacted for the lodging of an
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appeal from the decision of a traditional council. The learned High Court judge had no difficulty in dismissing the application for certiorari based on the above stated ground which he regarded as frivolous and untenable.
Before us, the plaintiffs have raised for the first time an objection to the jurisdiction of the Adansi Traditional Council in limine, their contention being that the council was improperly constituted on the occasions when less than one half of the total number of its membership sat to hear evidence and to deliver judgment in the chieftaincy dispute.
In support of their objection to the jurisdiction of the reconstituted committee of the council, learned counsel for the plaintiffs referred us to sections 11-16 of the Chieftaincy Act, 1961 (Act 81), which was the operative enactment in force at all material times, and in particular to section 16 (3), which states that, “No business except that of adjournment shall be transacted if less than one half of the total number of members are present.” The membership of traditional councils was provided for by section 14 (1) of which provides that: “Subject to the provisions of this section, a Traditional Council shall consist, in addition to the Chairman, of the persons shown in the Chiefs List as the members thereof.” And subsections (3) and (4) of section 14 made provisions for the amendment and alterations of the chiefs list to cater for any supervening changes in the traditional council’s membership. Under section 13 (1), the paramount chief of the traditional council shall be the chairman of the traditional council (save in the case of the Kumasi Traditional Council whose chairman shall be the Asantehene). Where the chairman was from any cause unable to attend a meeting, section 16 (2) of Act 81 provided that “the Chief next in seniority on the Council shall preside over the meeting.”
It was common ground between the parties, and it was confirmed to us by the state secretary (Mr. E. R. Frimpong), that the full membership of the Adansi Traditional Council was at all material times 21. That being so, it is incontrovertible that the proper quorum for adjudicating in a cause or matter affecting chieftaincy under the Act was at least eleven (excepting of course a sitting like that held on 19 May 1970 where only an adjournment was granted, in which case any smaller number was competent) vide section 16 (3) of Act 81. It is therefore patently clear that the reconstituted committee of seven sitting under the chairmanship of the Ayasehene lacked jurisdiction to transact any business save that of adjournment, since it constituted less than one half of the total membership of the Adansi Traditional Council. In the event, the reconstituted committee’s sittings and proceedings for 24 June 1970; 19 January 1971; 28 January. 1971; 13 April 1971; 15 April 1971; 20 April 1971; 29 April 1971; 3 May 1971; 5 May 1971 and 14 June 1971 (judgment day) aforesaid are null and void and are of no effect whatsoever. So also is the ‘ judgment delivered by this irregularly constituted committee on 14 June 1971; since that panel of seven members, representing less than one half of the Adansi Traditional Council’s total membership, lacked jurisdiction to adjudicate in the cause or matter affecting chieftaincy.
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In the case of Timitimi v. Amabebe (1953) 14 W.A.C.A. 374, the plaintiffs tendered a judgment of a native court, to which the defendants objected that the court, contrary to law, was presided over by an administrative officer; but the trial judge admitted it on the ground that it was a subsisting judgment not appealed against and it was not open to him to declare it a nullity. The West African Court of Appeal held that the native court was unlawfully constituted, therefore it had no jurisdiction, and its judgment was a nullity. The appellate court’s ratio decidendi is clearly discernible in the following instructive extract from the leading judgment of Coussey J.A. as summarised in the headnote at p. 375:
“A Court is said to be of competent jurisdiction with regard to a suit or other proceeding when it has power to hear or determine it or exercise any judicial power therein. There is a distinction between an order or judgment which a Court is not competent to make and an order which, even if erroneous in law or in fact, is within the Court’s competency: where there is no jurisdiction the proceedings are void; but where a Court of competent jurisdiction makes an erroneous order, it is appealable. An irregularity in the exercise of jurisdiction should not be confused with a total lack of jurisdiction, as, for example, where the adjudicating body was so composed that it had no power or authority whatever to hear and determine the suit, as was the case of the Native Court whose judgment was put in evidence in the Court below.”
In my opinion, the legal principles enunciated by Coussey J.A. in Timitimi v. Amabebe apply, not only to courts strict sense, but also to any tribunal set up by statute to exercise certain prescribed judicial powers. Such a tribunal is said to have competent jurisdiction when it has the authority, and acts within the limits of its prescribed authority, to decide matters that are litigated before it. As a general rule, an inferior tribunal or court is not presumed to have any jurisdiction but that which is expressly provided; though prima facie no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so. A traditional council when exercising its statutory judicial function under the new Chieftaincy, Act, 1971 (Act 370), in causes or matters affecting chieftaincy is an inferior tribunal. As such, it is amenable to the supervisory control of the High Court, inter alia, for want or excess of jurisdiction, denial of natural justice and error on the face of the record.
For the respondents, Mr. Mmieh contended that the objection as to the reconstituted committee’s jurisdiction not having been taken earlier at the hearing of the certiorari motion in the court below, it was now too late for the appellants to canvass it and for this appellate court to entertain same. This contention is clearly wrong and misconceived. The correct principle is that a plea as to jurisdiction will be heard at any time, and that it is the duty of an appellate court to entertain a plea as to jurisdiction at any stage even if the point was not raised in the court below.
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In the Privy Council case of Chief Kwame Asante v. Chief Kwame Tawia [1949] W.N. 40, the appellant had lost in three courts, and at the West African Court of Appeal he raised for the first time the question of jurisdiction of the first court. The West African Court of Appeal observed that the ground of appeal was filed without leave of the court and that it was too late in the proceedings to raise a point of that nature which was not raised in any of the three courts below or at the beginning of the hearing of the appeal in that court. It was held, per Lord Simonds delivering the opinion of the Board, that if it appeared to an appellate court that an order against which an appeal was brought had been made without jurisdiction it could never be too late to admit and give effect to the plea that the order was a nullity. I would respectfully adopt and apply the ratio in Chief Kwame Asante v. Chief Kwame Tawia (supra) to the instant case and uphold the appellants’ plea as to jurisdiction, even though the point was not raised in the court below.
It would be recalled that both parties consented to the reconstituted committee of seven members of the Adansi Traditional Council continuing with the hearing of the part-heard case, and also agreed to the adoption of the evidence already adduced as evidence in the case. Does this fact of consent or waiver of the committee’s lack of jurisdiction on the part of the parties affect the legal truism that the subsequent proceedings before the irregularly constituted committee of seven were coram non judice? The answer is decidedly no! The true principle is that where by reason of any limitation imposed by statute a court or tribunal is without jurisdiction to entertain any particular matter or action (as in this case, section 16 (3) of Act 81 with its mandatory prescription of a minimum adjudicating quorum of not less than one half of the total membership of the traditional council), neither the acquiescence nor the express consent of the parties can confer jurisdiction upon the court or tribunal (here, the reconstituted committee of seven) nor can consent give that forum jurisdiction if a condition which goes to jurisdiction has not been performed or fulfilled. As Lord Esher M.R. observed in R. v. Justices of Essex [1895] 1 Q.B. 38 at p. 41, C.A. : “No consent of the parties can give jurisdiction when the conditions are not complied with.” In the instant case, a statute prescribed an adjudicating traditional council consisting of not less than half of the total membership of 21. Consequently, a quorum of seven members was incompetent to adjudicate therein, the consent of the parties notwithstanding. In the circumstances, the proceedings before that irregularly constituted committee together with its judgment dated 14 June 1971 are null and void for lack of jurisdiction.
The situation would be the same if under the new Chieftaincy Act, 1971 (Act 370), which repealed and replaced Act 81, and the regulations made thereunder (i.e. L.I. 798), a body which was either more numerous or fewer than the stipulated number of three or five purported to exercise the jurisdiction vested in the judicial committee of the traditional council over chieftaincy matters. In either case, such an irregularly constituted
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judicial committee of the traditional council would be acting without jurisdiction and its proceedings would accordingly be a nullity. See, for example, the recent High Court case of Republic v. Western Nzima Traditional Council, Ex parte Nana Kpani Ackah III [1973] 2 G.L.R. 107, where destoolment charges were heard and determined by the whole body of the council after the coming into force of the new Chieftaincy Act, 1971 (Act 370), instead of by the statutory judicial committee thereof comprising only three or five members; and it was held that the whole council acted without jurisdiction and their proceedings and decision were consequently a nullity.
For the above reasons, I would allow this appeal; set aside the ruling of the High Court dated 12 May 1972, and order that certiorari be issued removing the proceedings and judgment of the Adansi Traditional Council dated 14 June 1971 to this court to be quashed, and they are quashed accordingly. It is further ordered that the suit be remitted to the Adansi Traditional Council to be heard de novo before a properly constituted judicial committee of the said traditional council under the Chieftaincy Act, 1971 (Act 370), s. 28 (2) and regulations made thereunder, especially regulations 2 and 3 of L.I. 798 of 23 December 1972.
As to costs, since this is the first time that objection as to jurisdiction has been taken by the plaintiffs, it is just that they should be deprived of their costs in this court. There will accordingly be no order as to costs in this court. I see no reason why the respondents herein should be deprived of their 0200.00 costs in the High Court where they were successful on the points there argued. Costs awarded in the abortive trial before the Adansi Traditional Council by its committee are hereby set aside and it is further ordered that both costs already incurred before the Adansi Traditional Council and those to be incurred at the retrial shall abide the event.
JUDGMENT OF ANNAN J.A.
I agree.
JUDGMENT OF HAYFRON-BENJAMIN J.A.
I also agree.
DECISION
Appeal allowed, no order as to costs.
Proceedings and judgment quashed.
Suit remitted to properly constituted council to be heard de novo.
S.E.K.
