HIGH COURT, KOFORIDUA
Date: 2 JULY 1974
QUASHIE-SAM J
CASES REFERRED TO
(1) R. v. Akiwumi and Bannerman; Ex parte Dako (1958) 3 W.A.L.R. 372.
(2) Republic v. Tekperbiawe Divisional Council, Ex parte Nene Korle II [1972] 1 G.L.R. 199.
[p.145] of [1974] 2 GLR 144
NATURE OF PROCEEDINGS
APPLICATION for an order of certiorari to quash an order for the delivery of stool property made against the applicant, an Odikro, by the Kwahu Traditional Council, the respondent. The facts are sufficiently set out in the judgment of the court.
COUNSEL
E. Okyere-Darkoh for the applicant.
F. E. Obeng for the respondent.
JUDGMENT OF QUASHIE-SAM J
This application is for an order of certiorari to quash the decision of the Kwahu Traditional Council at its meeting of 23 October 1972 and 24 October 1972. The application originated in the High Court, Accra, on 9 April 1973 and was subsequently transferred to this court by the order of the Chief Justice on 31 May 1973 for determination.
In the minutes of 23 and 24 October 1972 meetings of the Kwahu Traditional Council which gave rise to the order complained of are recorded, under the heading of Tease Chieftaincy Affairs, as follows:
“Tease Chieftaincy Affairs
In a letter dated 21 July 1972, addressed to the secretary Kwahu Traditional Council by Nana Kwabena Boateng, Odikro of Pitiko and four of his elders, namely, Opanin Kwaku Tiefu, Krontihene, Opanin Kwasi Atta, Kyidomhene, Opanin Kofi Karikari, Gyasehene and Opanin Kwame Ampadu, Okyeame, they stated as follows:
(a) That on or about 9 June 1972, a petition made by him and his elders reporting the destoolment of Nana Kwadwo Kwakye, Odikro of Tease was rejected by the Kwahu Traditional Council on the grounds that it was irregular and against Kwahu custom because the alleged destoolment was done over and above the head of the Tease elders, the only competent body.
(b) That at the time of the alleged destoolment the stool paraphernalia comprising, two umbrellas, two golden head gears, one gold bangle, one talisman head gear, one drum (nkawiri), and one gong-gong were taken over from him by me and some Tease elders and handed over to Yaw Obeng the prospective candidate.
(c) That irrespective of the ‘judgment’ delivered by the Kwahu Traditional Council as stated in para. (a) above, arrangements were afoot to enstool Opanin Yaw Obeng.
(d) That at the time the new chief, Opanin Yaw Obeng, was about to be enstooled, Opanin Opoku Minta, the Abusuapanin of Pitiko and Tease swore the great oath that the destoolment of Nana Kwadwo Kwakye was unconstitutional and contrary to Kwahu custom and of no effect, and the nomination, election and installation of the said Yaw Obeng was improper and contrary to Kwahu custom and was also of no effect. He went to the length to say that the said Yaw Obeng was not a member of the Tease royal family.
(e) That by the permission of the Omanhene, the oath case was adjudicated by the Kyidomhene of Kwahu and his elders at Pepease, and their verdict was in favour of Opanin Opoku Minta.”
[p.146] of [1974] 2 GLR 144
Pursuant to the decision contained in those minutes of the Kwahu Traditional Council (hereinafter referred to as the council) the secretary of the council on 31 October 1972 wrote to the applicant requesting him to hand over stool paraphernalia.
The letter reads:
“I am directed by the Kwahu Traditional Council at its meeting held on 23 October 1972, to ask you to hand over the stool paraphernalia still in your possession to the Gyasehene of Tease and Odikro of Pitiko.
I am further directed to inform you that in accordance with section 53 (b) of the Chieftaincy Act, 1971 (Act 370) which I quote hereunder, if you fail to hand over the paraphernalia to the above persons within one month’s time from the date of this letter, appropriate action would be taken against you. Section 53 (b): ‘Any person who — being a person in possession of stool property fails upon being requested so to do and without reasonable excuse (proof of which shall be on him) to surrender the said property to the person who for the time being is entitled to possession thereof according to customary law, shall be guilty of an offence and shall, upon summary conviction be liable to a fine not exceeding N01OO. 00 or to a term of imprisonment not exceeding six months or to both; and in the case of a continuing offence to a further fine not exceeding N05.OO for each day on which the offence continues’.”
That letter was cancelled by a subsequent letter addressed from the same source to the applicant on 3 November 1972, practically in the same terms, as follows:
“I am directed by the Kwahu Traditional Council to ask you to hand over the following stool paraphernalia still in your possession to Gyasehene of Tease and Odikro of Pitiko:
(1) two umbrellas,
(2) two head gears golden,
(3) one gold bangle,
(4) one head gear talisman,
(5) one drum nkawiri
(6) one gong-gong.
I am further directed to inform you that in accordance with section 53 (b) of the Chieftaincy Act, 1971 (Act 370) which I quote hereunder, if you fail to hand over the paraphernalia to the above persons within one month’s time from the date of this letter, appropriate action would be taken against you: —
Section 53 (b): ‘Any person who — being a person in possession of stool property fails upon being requested so to do and without reasonable excuse (proof of which shall be on him) to surrender the said property to the person who for the time being is entitled to possession thereof according to customary law, shall be guilty of an offence and shall, upon summary conviction be liable to a fine not
[p.147] of [1974] 2 GLR 144
exceeding N0100.00 or to a term of imprisonment not exceeding six months or to both; and in the case of a continuing offence to a further fine not exceeding N05.00 for each day on which the offence continues.’
In order to avoid any untoward consequences, I very much hope that you will obey the above directives. This letter cancels the previous one ref. No. D10/Vol. 3/173 of 31 October 1972.”
It is the case of the applicant that he had been on 6 June 1970, customarily nominated, elected and enstooled in place of one Nana Kwadwo Kwakye who was destooled on 18 February 1970 as the Odikro of Tease; that after his enstoolment the stool paraphernalia, which are the subject-matter before this court, were handed over to him by the Odikro of Pitiko and his elders, the kingmakers of Tease; that without any charges preferred against him, the council at its meetings held on 23 and 24 October 1972, in his absence and with- out his knowledge of any such meeting, ordered that he should hand over those stool paraphernalia to the Gyasehene of Tease and Odikro of Pitiko. It is the validity of this order which is being tested.
It was argued and submitted by learned counsel for the applicant that since the said order of the council offends against the provisions of section 29 (1) of the Chieftaincy Act, 1971 (Act 370), the said order was made without jurisdiction and was therefore void.
Learned counsel pointed out that section 15 of the Chieftaincy Act, 1971 (Act 370), confers exclusive jurisdiction on traditional councils, including the council involved in the present application, in causes or matters affecting chieftaincy as defined in section 66 of the Act. That jurisdiction is, by section 28 (2) of the Act, exercisable by a judicial committee of a traditional council.
Learned counsel for the applicant submitted that the council in this instance could only have purported to act under section 29 (1) of the Act. That section provides:
“The Minister in consultation with the Traditional Council of the area may by executive instrument published in the Gazette order any person to take possession of any stool property affected by any proceedings under this Act in respect of a cause or matter affecting chieftaincy.”
Learned counsel submitted that inasmuch as the order complained of in these proceedings was not made by the minister in consultation with the council, but on the contrary by the council on its own initiative, the order is null and void for want of jurisdiction. He relied on the two cases, namely, R. v. Akiwumi and Bannerman; Ex parte Dako (1958) 3 W.A.L.R. 372 and Republic v. Tekperbiawe Divisional Council; Ex parte Nene Korle II [1972] 1 G.L.R. 199.
In the Tekperbiawe case (supra), which was an application for the orders of certiorari and prohibition to issue, the citation by learned counsel was on the test of the jurisdiction of the High Court itself to entertain the application; it was not on the merits of the substantive application before
[p.148] of [1974] 2 GLR 144
it; it was a ruling, well stating the law as regards the jurisdiction of the superior courts to entertain applications for the issue of prerogative writs. I do not think that the jurisdiction of this court to entertain this application is in question.
Learned counsel for the respondent contended that there was, at the time of making the order complained of, no case pending before the council, but, at a time when the Chief- taincy Act, 1971 (Act 370), was in force and the judicial committee of the council had not been inaugurated, the council had concurrent powers with its judicial committee (though not inaugurated) to make an order, as it did, for the protection of stool property.
In the first place, and with respect to counsel, the contention that there was no case pending when the council made its order is not supported, for even on the face of the respondent’s affidavit in opposition to this application there is ample admission to the contrary as borne out by paragraphs (7) to (13) of that affidavit which I will reproduce here for easy reference:
“(7) That extracts of meetings of the Kwahu Traditional Council held on 23 and 24 October 1972, which brought about the order was the result of some complaint received from Kwabena Boateng, Odikro of Pitiko and four (4) elders reporting that the then chief Nana Kwadwo Kwakye had been destooled.
(8) That this complaint was rejected by the council for the reasons stated in the minutes that the destoolment was not in accordance with native custom. No action was therefore taken by the council.
(9) That by the time the traditional council took this decision the stool paraphernalia listed in the applicant’s affidavit had been wrongly given to the applicant for custody.
(10) That a dispute arose by the swearing of the great oath of Yanda and Benada by Opoku Minta, Abusuapanin of Tease and Pitiko that the alleged destoolment of Nana Kwadwo Kwakye was unconstitutional and contrary to Kwahu custom, and in effect the alleged nomination, election and installation of Yaw Obeng was improper.
(11) That a dispute having arisen originated by oath the matter was referred to the Kyidomhene of Kwahu and his elders by the Omanhene to go into the matter. It was found that Nana Kwadwo Kwakye was still the Odikro of Tease and his name has so remained in the chiefs’ list until his death recently.
(12) That the Kyidomhene ordered that the paraphernalia complained of should be returned to the Odikro Nana Kwadwo Kwakye, but the applicant refused.
(13) That the Kyidomhene therefore reported the matter to the traditional council [which] after deliberations on the matter ordered me to issue the order complained of viz.:
‘The secretary should write to Opanin Yaw to hand over the stool paraphernalia [of] which he was illegally
in possession
[p.149] of [1974] 2 GLR 144
to the Gyasehene of Tease and Odikro of Pitiko in a month’s time from the date of this letter. This was to satisfy the legal requirements under section 53 (b) of the Chieftaincy Act, 1971 (Act 370)’.”
Secondly, these facts are identically the same as those contained in the minutes of the council’s meetings of 23 and 24 October 1972 which culminated in the order complained of. There is therefore no doubt on the face of the affidavit in opposition and on the face of the minutes of the council that there was a dispute for determination as to whether the alleged nomination, election and installation of the applicant, or the alleged destoolment of Nana Kwadwo Kwakye, was proper, constitutional and according to Kwahu custom; the matter was well within the meaning of “cause or matter affecting chieftaincy” as defined in section 66 of the Chieftaincy Act, 1971 (Act 370).
The only statutory tribunal competent to adjudicate upon that matter was the judicial committee of the council, by virtue of section 28 (2) of the Act, and the non inauguration of that committee will not empower the Omanhene to confer jurisdiction on the Kyidomhene to adjudicate. Consequently the decision of the Kyidomhene ordering the applicant to surrender the stool paraphernalia was of no effect: see R. v. Akiwumi and Bannerman; Ex parte Dako (supra).
Furthermore, when the council ordered the despatch of the letter of 3 November 1972, it purported to act under section 29 (1) of the Act, there being no other provision in the Act under which the council, qua council, could have acted; and it cannot be argued that the council acted irrespective of the Act itself having regard to the express intention of the council to proceed against the applicant under section 53 (b) of the Act which states:
“Any person who — . . .
(b) being a person in possession of stool property fails upon being requested so to do and without reasonable excuse (proof of which shall be on him) to surrender the said property to the person who for the time being is entitled to possession thereof according to customary law, shall be guilty of an offence and shall, upon summary conviction be liable to a fine not exceeding N0100.00 or to a term of imprisonment not exceeding six months or to both; and in the case of a continuing offence to a further fine not exceeding N05.00 for each day on which the offence continues.”
In the result therefore, when the council, acting upon the illegal and therefore ineffective order of the Kyidomhene, ordered its secretary at its meetings of 23 and 24 October 1972, to write the letter of 3 November 1972 ordering the surrender of stool paraphernalia from the applicant to the Gyasehene of Tease and Odikro of Pitiko in execution of the illegal and void order of the Kyidomhene, it acted without jurisdiction. Besides the order itself of the council, being contrary to the provisions of section 29 (1) of the Act, was made without jurisdiction and certiorari will lie.
[p.150] of [1974] 2 GLR 144
The issuance of the letter of 3 November 1972 presupposes that there was a valid order of the council. The letter itself must be regarded as a “judicial act” since it sought to put into execution a “judicial order.” If therefore the council’s order is void, it must fall with that letter.
For these reasons, I allow the application and hereby make an order of certiorari quashing (1) the proceedings and order or decision of the Kyidomhene and (2) the order of the council made at its meetings of 23 and 24 October 1972 and also the letter of 3 November 1972.
I make no order as to costs.
DECISION
Application granted.
Order accordingly.
S.Y.B.-B.
