HIGH COURT, SEKONDI
Date: 5 JULY 1974
CHARLES CRABBEJ
CASES REFERRED TO
| (1) | Frimpong v. Poku [1963]2 G.L.R. 1, S. C. |
| (2) | Yegbor v. Dorgah [1963] 1 G.L.R. 42. |
| (3) | Muffat v. Kpeshie II (1952) 14 W.A.C.A. 44. |
| (4) | Makata v. Ahorli (1956) 1 W.A.L.R. 169, W.A.C.A. |
| (5) | Adzado v. Bedi (1957) 3 W.A.L.R. 262. |
| (6) | Medienhia v. Nyabi [1963] 1 G.L.R. 359, S.C. |
| (7) | Donkor v. Ampofo, High Court, 11 December 1964, unreported; digested in (1965) C.C. 24. |
| (8) | Mensah v. Yeboah [1965] G.L.R. 101. |
| (9) | Bio v. Buor, High Court, Sunyani, 2 November 1965, unreported; digested in (1966) C.C. 12 |
| (10) | Akunto v. Fofie [1973] 1 G.L.R. 81, C.A. |
| (11) | Republic v. Maikankan [1973] 2 G.L.R. 384, C.A. |
NATURE OF PROCEEDINGS
APPLICATION for an order of prohibition to restrain the judicial committee of the Western Regional House of Chiefs from hearing and determining an appeal from a decision of a traditional council in a chieftaincy dispute. The facts are fully set out in the ruling of the court.
COUNSEL
James Mercer for the applicants.
Sekyi Hughes for the respondent.
JUDGMENT OF CHARLES CRABBE J
Pursuant to leave granted by the court, the applicants, Nana Kwabena Buadee and Nana Kwamina Faibill III, asked for an order of prohibition directed to the judicial committee of the Western Regional House of Chiefs to restrain that house from hearing and determining an appeal purported to have been lodged by one Effua Nsiaso of Mbease-Nsuta.
In an affidavit of the 6 October 1973, sworn to by Nana Kwabena Buadee on behalf of himself as the first applicant and Nana Kwamina Faibill III, the second applicant, he had deposed that they were the respondents in an appeal before the Western Regional House of Chiefs in an action in which the appellants were Nana Kojo Armah and Nana Effua Nsiaso. That appeal was filed before the house on 11 December 1971.
The notice of appeal which had started that appeal was signed by Nana Kojo Armah. By a document dated 1 August 1972, Nana Kojo Armah discontinued that appeal. When on or about 24 August 1973, the appeal was formally called before the judicial committee of the Western Regional House of Chiefs, Nana Kojo Armah “orally confirmed the discontinuance of the appeal.” Effua Nsiaso “however dissociated herself from the discontinuance by Kojo Armah and the matter was adjourned to 4 September 1973.”
[p.350] of [1974] 2 GLR 348
On the adjourned date, 4 September 1973, counsel for the first and second applicants herein “raised an objection to the continuance of the appeal in view of its discontinuance by Kojo Armah and of the fact that Effua Nsiaso had not filed any appeal . . .” This objection was overruled on 11 September 1973, and the judicial committee “ordered the continued hearing of the appeal …”
In its ruling the judicial committee, inter alia, stated:
“This is a case involving a stool, and Nana Nsiaso is interested as a kingmaker in the outcome of whatever decision that will be given since [it] affects her proprietary rights. It would therefore be unjust to deny her a right to be heard just because she has been misled into believing that she still possesses that right. The committee therefore finds itself, under the present circumstances unable to follow the strict tenets of the decisions referred to by respondent’s counsel, as doing so would be unjust and create undue denial of her rights and contrary to natural justice. In the circumstances the committee will overrule the objection and hold that Nana Nsiaso is still regarded as an appellant and will hear her arguments on the merits.”
It is as a result of this ruling that the present applicants are before, this court. The appeal which led to this ruling is as follows:
“In the matter of:
1. Nana Kojo Armah, abusuapanyin.)
2. Nana Effua Nsiaso, Mbease, )
Nsuta ) plaintiffs-appellants..
versus
1. Nana Buadee, Benkomhene, Mbease, Nsuta)
2. Nana Kwamina Faibill III, Ohene )
of Apinto Division, Awudua ) defendants-respondents..
Nana Kojo Armah and others are aggrieved with the decision of Wassaw Fiase Traditional Council in respect of the above suit, which was tried by the above council, on 17 November 1971.
Nana Kojo Armah is therefore applying for the necessary appeal to be taken by the Regional House of Chiefs, Sekondi, for the following grounds to wit:
GROUNDS OF APPEAL
1. That the above suit has been tried by the chairman, Nana Asamanfo Damoah II, and Nananom Kweku Faibill, member, Nana Kwodwo Anomako III, member, Nana Amprofi and Nana Kobina Tandoh, member.
[p.351] of [1974] 2 GLR 348
2. That as a result of that Omanhene of Benso by his letters Nos. 969/AI/vol.3/229 of 10 October 1970 and NGK/PC/70 of 26 May 1970, ordered suspension and declared the enstoolment null and void.
3. That in the circumstances, the enstoolment of chief namely Nana Gyetua Ampim II, of Mbease Nsuta is deviated from the customary laws by the return from consultation room, with their verdict against the plaintiffs above is wrong and biased one.
4. That they based their judgment in accordance with the two documents attached for your perusal, the form 2 (two) which state that this defendant-respondent has been gazetted, it is false, for the said chief has not been gazetted as yet, but just a decision wrongly given to prove their judgment but there is no truth in it.
5. That we [are] therefore applying through you appealing to the Regional House of Chiefs, Western Region, Ghana for the two documents attached herewith, one is the record of proceedings which are self-explanatory and the copies of letters from one of the members for the Western Regional House of Chiefs which also testify our appealing decision, please.
That in the circumstances, I pray that the appeal may take place as early as possible, without delay.
Your obediently,
his
Nana Kojo Armah x mark.”’
The document which purports to be the letter for discontinuance is as follows:
“Kojo Armah, Mbease abusuapanyin, Mbease Nsuta Stool, Mbease Nsuta, via Prestea. 1 August 1972
The Regional House of Chiefs,
Sekondi.
Sir,
I beg to bring this to your information that the differences existed between the family of Mbease Nsuta Stool, have been settled, which I attached herewith the declaration sworn by me (abusuapanyin of Mbease Nsuta) for your perusal and thanks.
Now no dispute reigning between us, everything calm.
I am,
Yours obediently,
his
Kojo Armah. x
mark. R.T.P.
[p.352] of [1974] 2 GLR 348
cc: The District Admin. Officer, Tarkwa.
The Regional Admin. Officer, Sekondi.
The Asst. Commissioner of Police, Tarkwa.
The Wassaw Fiase Traditional Council, Benso.
The Ag. Omanhene, Tarkwa.
The Gyasepanyin—Benso.
The Regional Lands Officer, Sekondi.
The Mine Manager, Prestea Goldfields, Prestea.
The Managing Director, State Gold Mining Corporation, Tarkwa.
The Apintohene, Apinto Division, Awudua.
The Queenmother, Benso.
The Asst. Supt. of Police, Tarkwa.
Nana Buadee II, Nifahene—Mbease Nsuta.
Nana Gyetua II, Mbease, Nsuta.”
In her affidavit opposing the application Nana Effua Nsiaso deposed, inter alia, that the Western Regional House of Chiefs had exclusive jurisdiction under the law to hear chieftaincy suits brought before the house. In the exercise of those powers no other tribunal except one provided by law could entertain either at first instance or on appeal any chieftaincy matter. She considered the present application was in effect an appeal against the order of the Western Regional House of Chiefs, and thus the proper forum to entertain such an appeal was the National House of Chiefs.
She further contended that the ruling of the Western Regional House of Chiefs dated 11 September 1973, was unimpeachable, and that having already decided that the house had the power to hear the appeal between the applicants and herself it was too late for the applicants to apply for an order for prohibition. The Western Regional House of Chiefs had very wide powers in chieftaincy matters. The house had not exceeded its jurisdiction nor was it about to commit an excess of jurisdiction. It had not threatened to enforce an order which it had no right to make, and the ground alleged in the statement that the respondent never signed the appeal, even if true did not amount to excess of jurisdiction on the part of the Western Regional House of Chiefs.
In her view, the writ of prohibition could not be made against the Western Regional House of Chiefs dealing with essentially chieftaincy matters. The appeal was lodged by Nana Kojo Armah and herself as representing the stool of Mbease Nsuta, and the stool of Mbease Nsuta has not withdrawn the appeal. On 5 October 1972, she filed additional grounds of appeal “in the suit of Kojo Armah and self vs: Buadee and Faibill,” which clearly showed she had an appeallable interest.
[p.353] of [1974] 2 GLR 348
What purports to be the additional grounds of appeal is the following letter:
“Madam Effua Nsiaso, Queenmother, c/o S. K. Mends, Local Council, Prestea. 30 September 1972
Dear Sir,
GROUNDS OF APPEAL
1. The judgment by the traditional council committee was that the nomination and election conducted by Benkumhene Nana Buadee was irregular.
2. But the committee could not order fresh elections because Nana Aham Korsa alias Nana Gyetua Ampim had been gazetted. This assumption by the committee was wrong as explained in the dissenting judgment of Nana Anomako II. At the time of the trial and judgment, it was the form 2 which was presented to the arbitrators and until the form 2 has been forwarded to the government, the chief could not be recognised or gazetted. We are therefore praying for the proper judgment to be pronounced that is to say we pray that the
installation of Nana Gyetua Ampim should be nullified.
Yours faithfully,
her
(Sgd.) Effua Nsiaso. x
mark.”
To the affidavit of Nana Nsiaso, Nana Buadee replied that the remedy of prohibition exists side by side with that of an appeal; that he had applied for prohibition at the proper time; and that the supervisory powers of the High Court which his application was invoking had been established both at common law and by statute, namely, article 114 of the Constitution, 1969, and section 20 of the Courts Act, 1971 (Act 372). He was not aware of the additional grounds of appeal; and that if Nana Nsiaso had any grievance she should sort it out with Nana Kojo Armah but that as far as they, the applicants, were concerned there was no appeal pending against them; that the Wassaw Fiase Traditional Council had no jurisdiction to entertain the appeal from the decision of the Apinto Divisional Council as it did on 13 December 1971; that the proceedings before the traditional council were a nullity and that the Western Regional House of Chiefs therefore had no jurisdiction to entertain any appeal from it, and that the Wassaw Fiase Traditional Council, after 17 September 1971, could only act in a cause or matter affecting chieftaincy through a judicial
[p.354] of [1974] 2 GLR 348
committee appointed under subsection (2) of section 28 of the Chieftaincy Act, 1971 (Act 370), and that the arbitrators who were appointed to deal with the so-called appeal were not a judicial committee and that there could therefore be no appeal from their decision.
According to counsel for the applicants, some time in 1970, the stool of Nsuta village in the Wassaw Traditional Area became vacant. The question of who should succeed then arose. The family was split. One side was led by the abusuapanyin Kojo Armah. The other side by Nana Buadee, the Benkumhene of Nsuta. When the family could not settle the matter it was taken to the Apinto Divisional Council. A meeting of the Apinto Divisional Council was held on 20 June 1970, to go into the matter. The council did not deal with the question of chieftaincy alone. In respect of this item the council decided to support the candidature of Nana Buadee. The minutes show those present and those appointed to go into the affidavits of the parties. Nana Kojo Armah was not satisfied with the decision of the Apinto Divisional Council. In what purported to be a motion of appeal dated 13 December 1971, Nana Kojo Armah filed a motion of appeal which was taken on 13 December 1971.
The Wassaw Fiase Traditional Council appointed arbitrators to go into the matter. The panel of arbitrators gave judgment against Nana Kojo Armah. Before the Wassaw Fiase Traditional Council, Nana Kojo Armah appeared alone against Nana Buadee. This fact was not controverted. After the decision of the arbitrators of the Wassaw Fiase Traditional Council, Kojo Armah decided to appeal to the Western Regional House of Chiefs. “It is the manner in which the appeal was lodged with the Western Regional House of Chiefs that has raised the present controversy,” for looking at the affidavit of 8 October 1973, it would appear that there was no indication that Nana Kojo Armah was acting as an agent of Nana Nsiase.
Counsel for the applicants said that a number of legal problems were raised. In Nana Kojo Armah’s affidavit of 16 October 1973, he had stated that he litigated. It was at the appeal level that the name of Nana Nsiaso appeared. Counsel then referred to subsection (3) of section 23 of the Chieftaincy Act, 1971, and stated that “an appeal is a creature of statute and the conditions which create that right have to be complied with,” citing Frimpong v. Poku [1963] 2 G.L.R. 1, S.C. He contended that Nana Nsiaso was not an original party before the traditional council. She could only have appealed by leave of the council to which the appeal had been lodged. He also referred to Yegbor v. Dorgah [1963] 1 G.L. R. 42; that the appeal was not lodged by Nana Effua Nsiaso as a person aggrieved in accordance with the provisions of subsection (6) of section 23 of the Chieftaincy Act, 1971. “It was an appeal lodged by Kojo Armah, though no doubt on behalf of all the aggrieved persons.” Referring to Muffat v. Kpeshie II (1952) 14 W.A.C.A. 44, he said that Nana Effua Nsiaso did not sign the petition of appeal nor was it stated that Nana Kojo Armah was acting on behalf of himself and Nana Nsiaso. “If Nsiaso was contented to ride behind Kojo Armah then when Kojo Armah withdrew she withdrew with him” counsel said, citing Makata v. Ahorli (1956)
[p.355] of [1974] 2 GLR 348
1 W.A.L.R. 169, W.A.C.A. followed in Adzado v. Bebi (1957) 3 W.A.L.R. 262. He also relied on Medienhia v. Nyabi [1963] 1 G.L.R. 359, S.C., Donkor v. Ampofo, High Court, 11 December 1964, unreported; digested in (1965) C.C. 24, Mensah v. Yehoah [1965] G.L.R. 101, Bio v. Buor, High Court, Sunyani, 2 November 1965, unreported; digested in (1966) C.C. 12 and Akunto v. Fofie [1973] 1 G.L.R. 81, C.A. “Mere title does not make Nsiaso a party to the appeal. She was not a party at the court below.” Referring to Halsbury’s Laws of England (3rd ed.), Vol. 11, p. 113, para. 211, counsel said that there was a defect on the face of the proceedings as well as under section 10 of Part II of the Chieftaincy Act, 1961 (Act 81). The case began under the old Act. When the appeal was lodged the new Act was in force. In 1970 the Apinto Divisional Council had no jurisdiction, therefore no appeal could arise from the decision of the traditional council: he referred to section 15 of the new Act.
Counsel for the respondent opposed the application, saying that as the application had been brought under Order 59, r. 5 of the Supreme [High] Court (Civil Procedure Rules), 1954 (L.N. 140A), only the papers filed should be relied upon. The applicants had asked for an order of certiorari yet their application was now one for an order of prohibition. The motion paper dated 18 October 1973,
“talks of an order for prohibition; the affidavit refers to certiorari. There is no doubt that there was a chieftaincy matter in dispute. It is not the contention that the Western Regional House of Chiefs has no jurisdiction if an appeal had been lodged. So long as the Western Regional House of Chiefs is entertaining a chieftaincy matter it has jurisdiction.”
He referred to Wade on Administrative Law (1967 ed.), p. 118 and the Chieftaincy (National and Regional Houses of Chiefs) Procedure Rules 1972 (C.I. 27). He contended that the Western Regional House of Chiefs came to the conclusion that Nana Effua Nsiaso had an appeal and that she had appealed. He concluded that:
“What I am saying is even if it is argued that there was no proper appeal before the Western Regional House of Chiefs then the matter should be dealt with before the National House of Chiefs. The Western Regional House of Chiefs looked at the substance and if the ruling they gave has nothing at all to do with the case then it would be an excess of jurisdiction and this court cannot deal with the matter.”
The provisions of article 114 of the Constitution, 1969, state that:
“The High Court of Justice shall have supervisory jurisdiction over all 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.”
[p.356] of [1974] 2 GLR 348
I do not think it can be seriously challenged that the judicial committee of the Western Regional House of Chiefs, in so far as it purports to deal with an appeal from the decision of an inferior body performing judicial functions is, itself, an adjudicating authority. Nor can it be doubted that in the performance of its functions as an adjudicating authority it is a court inferior to the High Court of Justice. It is thus subject to the supervisory jurisdiction of the High Court of Justice.
I do appreciate the fact that the Chieftaincy Act, 1971, by the provisions of section 22 confers appellate jurisdiction on the National House of Chiefs from a judgment or order of a Regional House of Chiefs. It is thus competent to deal with the matter under inquiry. Yet I hasten to add that the matters which go to the judicial committee of the Regional House of Chiefs on appeal spring from the jurisdiction conferred in chieftaincy disputes by the provisions of section 15 of the Chieftaincy Act, 1971. Those provisions even though the word “exclusive” is used are not all that exclusive. The section itself excludes disputes “to which the Asantehene or a Paramount Chief is a party.”
Be that as it may, it has long been established that where a written constitution and an ordinary law of the land deal with the same issue, the constitutional provisions would prevail since those are superior to the ordinary law of the land. This matter was extensively dealt with by the Court of Appeal in Republic v. Maikankan [1973] 2 G.L.R. 384, C.A. In my view this court can deal with the matter in issue in this application, that is, whether there was an appeal lodged by Nana Effua Nsiaso before the Regional House of Chiefs from the decision of the Wassaw Fiase Traditional Council. In my view the determination of the issue whether there was an appeal before the Western Regional House of Chiefs is quite distinct from the question of whether there was a matter within the juridical competence of its judicial committee. The one is a question of the existence, per se, of a matter before the Western Regional House of Chiefs. The other is a question of jurisdiction pure and simple.
In its ruling the Western Regional House of Chiefs appears to have conceded the soundness of the arguments made by counsel for the applicants when it said that:
“under the present circumstances [it is] unable to follow the strict tenets of the decisions referred to by respondent’s counsel, as doing so would be unjust and create undue denial of her rights [that is, the rights of Nana Nsiaso] and contrary to natural justice.”
In its ruling it also said that:
“On [8 August 1973] Nana Kojo Armah applied in person and informed the committee that he had settled all his differences with the first respondent hence his withdrawal. It should be noted that he did not say that both he and Nana Nsiaso had settled their differences and that they were both withdrawing; Nana Nsiaso in fact announced through her counsel that she would prosecute her appeal.”
[p.357] of [1974] 2 GLR 348
That there was an appeal before the judicial committee of the Western Regional House of Chiefs there is no doubt. The question now is who were the appellants? The title of the appeal indicates that Nana Effua Nsiaso was one of the appellants. Having stated that “Nana Kojo Armah and others are aggrieved with the decision of the Wassaw Fiase Traditional Council” the appeal goes on to say that, “Nana Kojo Armah is therefore applying for the necessary appeal to be taken by the Regional House of Chiefs, Sekondi . . .”
This would tend to show that Nana Kojo Armah was the appellant and not Nana Kojo Armah and Nana Nsiaso as the appellants. But in paragraph (5) of the grounds of appeal the expressions “we [are] therefore applying” and “which testify our appealing [against the] decision” are used. The petition for appeal is signed by Nana Kojo Armah alone. Yet the use of the plural in paragraph (5) and the statement that he “and others are aggrieved with the decision of the” council create the impression that Nana Kojo Armah was not the only person who had lodged the appeal. And the title to the appeal would confirm this. Taken together, it would appear then, that the appellants before the Western Regional House of Chiefs were Nana Kojo Armah, Nana Nsiaso “and others.”
But then the letter of discontinuance, just as the petition for appeal, was signed by Nana Kojo Armah, again, alone. In it he says that “the differences [that] existed between the family of Mbease Nsuta stool, have been settled.” This letter, sent to the Western Regional House of Chiefs, was copied to no less than fifteen other recipients. The list as shown above includes, it would seem, every conceivable authority, sole or corporate, which might have something to do with the dispute between the parties.
The question which thus arises again is whether the letter of withdrawal affects Nana Nsiaso? I think it does. It was Kojo Armah who signed the petition for appeal. The impression thus created is that Nana Kojo Armah was prosecuting the appeal on behalf of himself and the others who were aggrieved by the decision of the council, Nana Nsiaso included. Apart from that, the contents of the letter of discontinuance clearly show that there was no need to proceed with the appeal as there was “no dispute reigning between [the parties and], everything [was] calm.”
In her affidavit opposing the present application Nana Nsiaso has not challenged the letter of discontinuance signed by Nana Kojo Armah. Nor has she attempted to repudiate its contents. She asserts that the appeal was lodged by “Kojo Armah and [herself] as representing the stool of Mbease Nsuta,” but “that the stool of Mbease has not withdrawn the appeal.” There is no indication in the petition of appeal that Nana Kojo Armah and for that matter both of them were acting in a representative capacity. It is not shown that they were acting for themselves and on behalf of the Mbease Nsuta stool. What Nana Kojo Armah stated was that he and others were aggrieved. Nana Nsiaso was not mentioned except in the title. And the title does not show that they were acting for themselves and in a representative capacity.
[p.358] of [1974] 2 GLR 348
The letter of discontinuance is dated 1 August 1972. The additional grounds of appeal signed by Nana Nsiaso are dated 30 September 1972. They were filed on 5 October 1972. If it is argued that Nana Kojo Armah and Nana Nsiaso were acting on behalf of the stool as Nana Nsiaso appears to contend in her affidavit opposing the present application, then she was bound by Nana Kojo Armah’s letter of discontinuance. If it is argued that it was the stool which had appealed as she contends in paragraph 5 of her affidavit then her letter supplying the additional grounds does not disclose that she was acting on behalf of the stool. If Nana Nsiaso accepts that both she and Nana Kojo Armah were representing the stool then when Nana Kojo Armah withdrew the appeal the stool had withdrawn the appeal. For her additional grounds of appeal put her in the same status in which Nana Kojo Armah was as regards his letter of discontinuance with respect to the whole appeal. And since Kojo Armah had discontinued the appeal by 1 August 1972, there was no appeal before the judicial committee to which grounds of appeal Nana Nsiaso could add other grounds of appeal.
Even so the ruling of the Western Regional House of Chiefs indicates that Nana Kojo Armah and Nana Nsiaso took action, not for themselves and on behalf of the Mbease Nsuta stool but as abusuapanyin and queenmother respectively. Since the whole action is based upon the complaint of the two of them that Nana Buadee had installed his candidate as chief of Nsuta rather than the candidate of Nsiaso the action was between two claimants to the stool. The stool as such could not in those circumstances sue.
I now come to the position before the judicial committee at the time that Nana Kojo Armah withdrew the appeal. On this issue, I have some sympathy for the judicial committee that there was evidence before them that Nana Nsiaso was also an appellant and since she had indicated that she was continuing with the appeal they would look at the spirit, as it were, and not the letter of the law. However, I do not agree with the committee in its contention that to hold that there was no appeal before it by Nana Nsiaso they would “deny her a right to be heard.” The committee had the power to allow her time, if she was out of time, to file the necessary papers on her own. If she was not out of time, there was nothing to prevent her from taking the right and necessary steps to enforce what the committee considered as her right.
She was represented by counsel. That counsel would, no doubt, be aware as to the steps that should be taken having regard to the situation which faced the committee, to enable Nana Nsiaso to enforce her rights. There would be nothing wrong in the committee telling Nana Nsiaso to put her house in order as regards the enforcement of her rights. That would not be “unjust [and that would not] create undue denial of her rights and contrary to natural justice.”
Section 10 of the Chieftaincy Act, 1961 (Act 81), gives the Minister power to assign to a divisional council certain functions including “functions with respect to any cause or matter affecting chieftaincy.” There
[p.359] of [1974] 2 GLR 348
is no evidence before this court that such an assignment as is referred to in that section had not been effected at the time the Apinto Divisional Council dealt with the matter. I am thus content to presume that such an assignment had been effected and that the matter was properly before the Apinto Divisional Council.
But a more important consideration is that since the matter arose at a time when the Chieftaincy Act, 1961, was in force, by virtue of the provisions of section 8 of the Interpretation Act, 1960 (C.A. 4), the action ought to have been continued under the 1961 Act. However, by the provisions of subsection (3) of section 67 of the Chieftaincy Act, 1971, any action pending before a traditional council at the time of the commencement of the 1971 Act shall “be deemed to be pending before that Council and shall be proceeded with and determined by that Council in accordance with this Act.”
On 20 June 1970, the Apinto Divisional Council had dealt with the matter. There was no chieftaincy matter before it. On 17 September 1971, the 1971 Act was in force. Since the action could have been proceeded with before the Apinto Divisional Council in accordance with the 1971 Act, in my view the Western Regional House of Chiefs would be properly seised of the matter on appeal. The provisions of subsection (3) of section 23 of the 1971 Act create the right to appeal “as of right.” No leave is thus required from the Apinto Divisional Council for an appeal to the Regional House of Chiefs. It is only when time has run against any aggrieved party that an application is called for to the Western Regional House of Chiefs for an extension of time. And it has not been shown that Nana Kojo Armah needed an extension of time.
By the provisions of section 22 of the 1971 Act, as amended by section 2 of the Courts (Amendment) Decree, 1972 (N.R.C.D. 101), the National House of Chiefs, the highest tribunal competent to deal with any matter relating to chieftaincy, has been brought within the judicial hierarchy. Its decisions are subject to appeal, with the appropriate safeguards, to the Court of Appeal. The Regional Houses of Chiefs would then be bound by decisions of the Court of Appeal in any matter relating to chieftaincy. In a descending order, the decisions of the Court of Appeal are binding on all adjudicating authorities inferior to the National House of Chiefs.
Yet should such a tribunal be bound by the decisions of the Court of Appeal on questions of law in any matter which does not fall strictly within the description of “any matter relating to chieftaincy?” I think they should. A decision on a question of law does not necessarily take into account only the particular matter before the court. The whole conspectus of justice is included, in which all sorts of principles are used to discover justice, in which knowledge and enlightenment play an important part.
No one can deny that the Court of Appeal per se is not a court primarily intended to deal with matters relating to chieftaincy disputes. Subordinating the National House of Chiefs to its appellate jurisdiction —and
[p.360] of [1974] 2 GLR 348
thus subordinating all adjudicating authorities subordinate to the National House of Chiefs—does imply an acceptance that its decisions, on the adjectival as well as the substantive law could be binding on all such subordinate tribunals.
I would submit, then, that the judicial committee of the Western Regional House of Chiefs could not decline to consider and follow the decisions referred to by counsel for the applicants, particularly Akunto v. Fofie [1973] 1 G.L.R 81, C.A. and take judicial obedience to such decisions as “undue denial of… rights and contrary to natural justice.” When a judicial body exercising judicial functions recognises the validity of a law—albeit it judge-made, and refuses to abide by it, it forfeits its right to talk about denial of rights and natural justice.
The committee was being asked to consider the rights of the applicants as well as the rights of Nana Nsiaso. An adjudicating authority such as that committee cannot deny the right of one party to an action before it and contend that an acknowledgement of his rights would be a denial of the rights of the other party. That would not be justice between litigants. That would not be moral justice. That offends the principles of reason and morality.
To have acted according to the demands discussed would not have deprived Nana Nsiaso of her right to pursue her appeal by the appropriate procedure if she were aggrieved. In my view the committee did not appreciate the importance of rules of procedure and thus failed to realise that the procedural law cannot but be an indispensable adjunct to the proper administration of justice.
Accordingly I grant the order prayed for by the applicants. I award costs of 0250.00 against Nana Nsiaso. DECISION
Application for order of prohibition granted.
Order accordingly.
S.Y.B.-B.
