HIGH COURT, CAPE COAST
Date: 10 MAY 1974
EDWARD WIREDU J
CASE REFERRED TO
R. v. Toynbee Hall Juvenile Court Justices; Ex parte Joseph [1939] 3 All E.R. 16; 108 L.J.K.B. 649; 161 L.T. 37; 103 J.P. 279; 55 T.L.R. 845; 83 S.J. 607; 37 L.G.R. 440, D C.
NATURE OF PROCEEDINGS
APPLICATION for an order of certiorari and prohibition to quash the proceedings of the judicial committee of Ekumfi Traditional Council in a suit relating to the installation of a head of family, on the ground that the council had no jurisdiction. The facts are sufficiently stated in the ruling.
COUNSEL
Ampiah for the applicant.
Sackeyfio for the respondents.
JUDGMENT OF EDWARD WIREDU J
On 23 July 1973, the respondents to this application initiated proceedings against the first applicant herein before the judicial committee of the Ekumfi Traditional Council. The summons issued against the applicant under the Second Schedule to the Chieftaincy (Proceedings and Functions) (Traditional Councils) Regulations, 1972 (L.I. 798), was in the following form:
“The plaintiff ‘s claim is for the defendant to show cause why you Kwa Okae of Ebiradzi family have deliberately and intentionally separated the Ebiradzi family of Otuam into two separate bodies by installing another head of family by name Mr. Dadzie against the accredited head of family of Ebiradzi-Otuam, by name Kwesi Buabeng which action is contrary to our native custom.”
The return day to the summons was 9 August 1973 and the certificate of service proved by the serving bailiff shows that the first applicant was served on 25 July 1973. On 2 August 1973, one Nana Kwame Ano II the second applicant herein, claiming to be the ebusuapanyin of the Ebiradzi family of Otuam and whose alleged nomination as such head was being challenged by the respondents in the court below filed an affidavit challenging the capacity of the respondents to maintain their action against the first applicant and by paragraph (6) of the said affidavit deposed as follows:
[p.414] of [1974] 1 GLR 412
“(6) Section 15 of the Chieftaincy Act, 1971, states that:’ . . . a Traditional Council shall have exclusive jurisdiction to hear and determine any cause or matter affecting chieftaincy.’ I will draw to the attention of the judicial committee of Ekumfi Traditional Council that the case at issue is not a chieftaincy dispute, but a family dispute which does not come under the Chieftaincy Act.”
The second applicant was himself not a party to the suit before the judicial committee and there was no record that he applied to be joined as a party. There are also no notes in the record as to what happened to his application but the record is, however, clear that neither the first applicant nor the second applicant ever appeared before the committee to move the said application. The record of proceedings further shows that on 11 December 1973 the committee heard evidence from the respondents and their witnesses and entered a default judgment against the first applicant.
It is from the said proceedings that the present applications for certiorari and prohibition have been brought by the applicants praying that:
“(a) The whole judgment and order be brought to this court to be quashed;
(b) The judicial committee to be prohibited from recognising Kwesi Buabeng as the head and to be restrained from dealing with Kwesi Buabeng in that capacity.”
The main grievances of the second applicant as set out in paragraph (6) of his supporting affidavit is: “That by this judgment and order I am being denied my rights as head of family” and the grounds upon which they are seeking the above redress as set out in paragraph (5) of the said affidavit also read as follows:
“That the said judgment and its consequential order are null and void:
(a) as the judicial committee had no jurisdiction to hear the matter, it being a non-chieftaincy matter; and
(b) that both the judgment and order are ultra vires or are in excess of the jurisdiction of the committee.”
In developing his arguments in support of the application learned counsel for the applicants submitted that the judicial committee had no jurisdiction to hear the case involving the nomination of the ebusuapanyin, this according to him being a non-chieftaincy matter. He referred to sections 15 (1) and 66 of the Chieftaincy Act, 1971 (Act 370), and argued that under the relevant provisions of that Act the judicial committee had jurisdiction to entertain only causes or matters affecting chieftaincy within the meaning of section 66 of that Act. Continuing learned counsel submitted that a head of family was not a chief within the language of Act 370 and his nomination therefore did not fall within the purview of
[p.415] of [1974] 1 GLR 412
section 66 of Act 370 so as to be called in question before any chieftaincy court. Counsel argued that even though this was brought to the notice of the judicial committee the same was ignored. Counsel therefore contended that the proceedings being null and void for want of jurisdiction the same should be quashed.
Opposition to the application was by a sixteen paragraphed affidavit which was sworn to by the first respondent, the relevant portions of which read as follows:
“(1) That I am the first plaintiff in this case, and I swear to this affidavit on my behalf and for and on behalf of the second plaintiff whose authority I have to do so.
(2) That each of us has been served with a motion paper together with its supporting affidavit in which the applicants are asking for an order of certiorari and prohibition against the decision and order of the judicial committee of the Ekumfi Traditional Council Essarkyir, in this matter.
(3) That the grounds for this application as deposed to in the supporting affidavit are (a) that the judicial committee has no jurisdiction because this is not a chieftaincy matter, and (b) that the question as to who is the head of family is the subject of a case pending before the High Court.
(4) That I am advised, and I verily believe the same to be true that the Chieftaincy Act, 1971 (Act 370), section 66 defines cause or matter affecting chieftaincy, and for the purposes of this matter that section states in (a) as follows:
‘the nomination, election, appointment or installation of any person as a Chief or the claim of any person to be nominated, elected, appointed or installed as a Chief.’
(5) That in section 49 of the same Act the categories of chiefs are given as follows:
(a) the Asantehene and Paramount Chiefs;
(b) Divisional Chiefs;
(c) Sub-divisional Chiefs;
(d) Adikrofo; and
(e) such other Chiefs not falling within any of the preceding categories as are recognised by the Regional House of Chiefs.’
(6) That I am advised and I believe the same to be true that a head of family is included in category (e) of section 49 of Act 370.
(7) That I say so because if a reference is made to the First Schedule of the legislative instrument (L.I. 798) it will be discovered that under fees it is stated under (v) as follows:
(v) Filing complaint to initiate proceedings against the nomination, election and installation of
(a) a divisional chief 045.00
(b) any other chief 40.00
(c) a family head 20.00.’
[p.416] of [1974] 1 GLR 412
(8) That if a head of family does not come under category (e) of section 49 of the Chieftaincy Act, 1971 (Act 370), fees will never be prescribed in the Chieftaincy (Proceedings and Functions) (Traditional Councils) Regulations, 1972 (L.I. 798), for the filing of complaints to initiate proceedings against his nomination, election and installation.
(9) That I therefore maintain that the subject-matter of this case is a chieftaincy matter and that the judicial committee has jurisdiction to deal with it.
(10) That the question as to who is the head of family is not the subject-matter of any case pending before the High Court.
(11) That I therefore swear to this affidavit in opposition to the application herein, and I ask that, on the grounds stated above, the application be dismissed as it is without merit with costs for the plaintiffs-respondents.”
The arguments submitted on behalf of the respondents by Mr. Sackeyfio, learned counsel for the respondents, was in substance a reiteration of the matters deposed to in the said affidavit.
I have carefully considered the arguments of learned counsel for the parties and I have come to the conclusion that the present application must fail. The sole ground urged against the proceedings is want of jurisdiction or excess of jurisdiction or both. The legal effect of the two on a decision is the same and certiorari always lies to remedy such situations. Want of jurisdiction or excess of jurisdiction may take one of two forms. It may appear on the face of the record or it may be shown by affidavit evidence: see R. v. Toynbee Hall Juvenile Court Justices; Ex parte Joseph [1939] 3 All E.R. 16. Where want ofjurisdiction is urged as a ground for seeking an order of certiorari it must be apparent from the statute creating the court or the tribunal whose proceedings or order is being sought to be quashed that such jurisdiction was not conferred.
It is not easy to determine on the face of section 49 (e) of Act 370 in isolation those chiefs who fall within the language of that paragraph; for the preceding paragraphs appear to cover almost all the obvious known chiefs, and save the adikrofo all the other categories of chiefs are occupants of some kind of stool. A careful examination of section 49 (e) read together with the First Schedule to L.I. 798 affords a useful guide as to those other chiefs contemplated under section 49(e) of Act 370.
L.I. 798 was passed pursuant to the powers conferred on the commissioner responsible for chieftaincy affairs by section 62 of Act 370 and therefore does not itself confer jurisdiction nor can its provisions extend the jurisdiction already conferred by section 15 of Act 370. Where therefore it purports to confer jurisdiction unknown to section 15 of Act 370 that jurisdiction will be void as being inconsistent with the substantive Act. The First Schedule to L.I. 798 provides the table of fees payable in respect of proceedings to be initiated in traditional councils and fifth on the Schedule are fees payable in respect of proceedings initiated against the nomination, election and installation of (a) a divisional
[p.417] of [1974] 1 GLR 412
chief, (b) any other chief, and (c) a family ahead. Section 49 of Act 370 which sets out the various categories of chiefs has by its paragraphs (a) to (d) dealt with all the obvious known chiefs in the country and by paragraph (e) grouped all other chiefs not falling within (a) to (d) but who are recognised by the Regional House of Chiefs.
Counsel for the respondents contends by his submissions that heads of family fall within section 49 (e) of Act 370. I seem to be persuaded by his arguments save that I think this view appears to have been widely generalised to cover all heads of family. When the First Schedule to L.I. 798 is critically examined and read together with section 49 (e) of Act 370 the two provide a clear picture as to those other chiefs envisaged under the Act. The combined effect of the two, convinces me that those kinds of chiefs envisaged under section 49 (e) include those family heads who hold positions analogous to stool fathers as are known in some non Akan speaking parts of Ghana and on whose laps occupants of stools are supposed to sit. Others who come to mind offhand are obaapanyin and the ohemaa.
Some of such family heads do occupy family stools themselves and play a prominent part in the nomination, installation and election of chiefs in their respective areas or from their families and their position as such family heads is recognised by the various traditional councils and regional houses of chiefs. I am of the view that it is such family heads who were within the contemplation of the legislature when L.I. 798 was enacted and they are among those other chiefs envisaged within the language of section 49 (e) of Act 370.
I am fortified in this view by the language of section 66 (c) of Act 370 under the definition “Cause or matter affecting chieftaincy.” Under this paragraph a person who claims to be such head of family has a right to go to the appropriate chieftaincy court for a declaration of his right to partake in the nomination, election and installation of a particular chief in his family, and this is conditional upon establishing his status as such head before the chieftaincy court.
Having by the above analytical examination of the combined effect of section 49 (e) of Act 370 and the First Schedule to L.I. 798 been able to ascertain the kind of family heads who fall within section 49 (e) we shall now examine what facts exist in the present case to show that the action before the judicial committee of the Ekumfi Traditional Council which is being sought to be quashed by the present application was a dispute involving the nomination of such head of family as has been held above to be envisaged under section 49 (e) of Act 370.
To begin with, the introductory part of the affidavit of the second applicant before the judicial committee which reads as follows:
“I, Kwame Ano II (alias Sam K. Dadzie, successor to the late Opanyin Kwame Ano, Ebusuapanyin of Ebiradzi Family of Otuam), the accredited head of Ebiradzi Family of Otuam, in the Ekumfi Traditional Area, Central Region, Ghana, make Oath on behalf of Opanyin Kwame Ano and say as follows . . . “ is of some significance.
[p.418] of [1974] 1 GLR 412
The second applicant as stated above claims to have succeeded one Opanyin Kwame Ano and styles himself as Nana Kwame Ano II (vide his signature on the affidavit.) He is known in private life as Sam K. Dadzie. His new name signifies his official position as ebusuapanyin. It is of common knowledge that not all family heads have recognition in traditional councils unless that family has something to do with a recognised stool within the traditional area. It is also of common knowledge that persons appointed as family heads of individual ordinary families in the country do not take on any new official names and titles whenever they are appointed as such heads. The only known cases where this is done are by those family heads connected with some stools. The name adopted by the second applicant to signify his position as the ebusuapanyin of the Ebiradzi family of Otuam shows beyond doubt that the head of that family is not an ordinary head of family as is known in this country but one contemplated within the language of section 49 (e) as a chief. The decision of the judicial committee of the Ekumfi Traditional Council shows further that the ebusuapanyin of that family has got to be recognised by the said council. If that was not the case then it was strange for the second applicant to have assumed the new official name Nana Kwame Ano II as the recognised and accredited head of that family and also to seek a remedy in this court prohibiting the traditional council from recognising Kwesi Buabeng as its head and to pray also for an order to restrain the council for dealing with Buabeng in that capacity.
I am satisfied on the facts before me and on the combined effect of the language of section 49 (e) of Act 370 and the First Schedule to L.I. 798 that the judicial committee of Ekumfi Traditional Council had jurisdiction to entertain the respondent’s action. The application therefore fails and same is hereby dismissed with costs assessed at 035.00 against the applicants.
DECISION
Application dismissed with costs.
S.E.K.
