HIGH COURT, HO
Date: 7 NOVEMBER 1974
ANTERKYI J
NATURE OF PROCEEDINGS
APPLICATION for mandamus to compel the respondent, president of a traditional council, to have the applicants sworn as members of the judicial committee of a traditional council. The facts are sufficiently set out in the ruling of the court.
COUNSEL
I. N. K. Wuaku for the applicants.
Addo, State Attorney, for the respondent.
JUDGMENT OF ANTERKYI J
Pursuant to leave granted on 5 November 1973 the applicants on 9 November filed this notice of motion for: “ an order of mandamus to issue to compel the President of the Gbi Traditional Council to submit the names of the applicants herein to be sworn in as members of the Gbi Traditional Council judicial committee and for such further order or orders as may seem fit to the court.”
After service of the notice on the respondent, Togbe Gabusu V, the President of the Gbi Traditional Council, he filed on 16 January 1974 his affidavit in reply, attaching thereto copies of three letters as exhibits A, B and C. In his affidavit the respondent contended that:
(1) He, in his capacity as the President of the Gbi Traditional Council, owed the applicants no duty to have them sworn as members of the judicial committee of the council.
(2) Save as to the first applicant, they were not members of the traditional council because “they have not been gazetted and therefore do not qualify to be invited to attend the judicial swearing in ceremony of the traditional council.”
[p.429] of [1974] 2 GLR 427
(3) The first applicant as, admittedly, a member of the council had “persistently and wilfully refused to attend meetings of the Gbi Traditional Council,” and on being queried he “still refused to attend meetings of the council and durbars organised by the Gbi Traditional Council and also the swearing in ceremony of members of the judicial committee.”
(4) It was apparent from the attitude of the first applicant “that he and his followers are supporters of the malcontents who have brought up destoolment charges” against the respondent “and therefore would not like to attend meetings of the traditional council presided over” by the respondent.
The matter finally fell to be heard on 29 October 1974. On 30 October when arguments on both sides did close, ruling was reserved.
The facts not denied are as follows: the respondent is the Paramount Chief of the Gbi Traditional Area, who by virtue of section 13 (1) of the Chieftaincy Act, 1971 (Act 370), has at all times material to these proceedings, been the ex-officio President of the Gbi Traditional Council. The first applicant Togbe Kwasi Buami VII, is the Dufia of Kla and senior divisional chief of that traditional area. The other applicants are, as claimed by them respectively, chiefs of that area. They had not in fact been recognised as such by the Minister by a notice in the Local Government Bulletin, even though they have respectively been nominated, elected, and installed as chiefs.
And, for them it is substantially argued by Mr. Wuaku as follows:
(1) They are members of the present Gbi Traditional Council because (a) they were, before the commencement of Act 370, members of the old Gbi Traditional Council, and under the provisions of section 12 (1) of the Act, the old Gbi Traditional Council then in existence was to continue; and (b) by section 14 (2) “the membership of a Traditional Council in the first instance shall be the same as the membership of that Council immediately before the commencement of this Act.” (2) As they are thus members of the present Gbi Traditional Council (as stated by them in paragraph
(2) of their affidavit) they are ipso facto members of the judicial committee of that council just as are those applicants who are mentioned in paragraph (5) of their affidavit, and whose names save that of the first applicant, have not appeared in the Local Government Bulletin as chiefs; and if those chiefs have been sworn in as members of the judicial committee of the council, they (the applicants) have also the right to have themselves sworn in as members of that judicial committee.
(3) It is only when the judicial committee is to function that the provisions of section 28 (2) come into play with regard to the appointment of three or five of the members of the judicial committee to sit on a matter, and if a member of the traditional council is not sworn into the committee he is not eligible for serving on a panel of the committee. (4) Relative to their names not having appeared as chiefs in the Local Government Bulletin, in chieftaincy matters the stool is the guiding factor and it is the occupant or representative of the stool at a material time that must be looked at; for, representation of the stool cannot be said
[p.430] of [1974] 2 GLR 427
to be dependent upon the Local Government Bulletin notice; once the applicants have been customarily nominated, elected and installed as chiefs and therefore represent the occupants of their respective stools, they are thus entitled to be members of the council and therefore entitled to be sworn as members of the judicial committee of the instant council. The argument therefore that some of the applicants are not gazetted (through the Local Government Bulletin notification) and therefore not entitled to be sworn as members of the judicial committee falls to the ground.
At the material time the respondent was the Paramount Chief of the Gbi Traditional Area and was therefore by virtue of section 13 (1) of the Act (if he has complied with the relevant provisions to enable him to exercise functions under the Act) the President of the Gbi Traditional Council, and he was to be the president of the judicial committee (if so appointed by the council). Therefore, it was submitted that the respondent as such president of the council, was under a duty to present the applicants, who were and are chiefs or representatives of their respective stools, to be sworn in as members of the judicial committee of the council. The presidency of the judicial committee of the council itself is of a public nature. With that right of being entitled to be so sworn, the applicants can compel the respondent, as president of that committee, to so swear them. (Reference was made in this regard to Halsbury’s Laws of England (3rd ed.), Vol. 11, pp. 85 and 87, paras. 161 and 163, respectively).
Therefore, it was further argued, the reliance by the respondent on the provisions of section 48 of the Act, was no answer to the contention of the applicants that they made the demand and were refused; for, the question of their not being gazetted, or, in the case of the first applicant, of his not attending council meetings was immaterial. By reference to Halsbury’s Laws of England (3rd ed.), Vol. 11, p. 106, para. 198, it was contended that the facts as relied on by the respondent in his affidavit pointed clearly to his unwillingness to comply with the demand of the applicants, and that such unwillingness amounted to a refusal. Moreover with regard to the query (exhibit B attached to the respondent’s affidavit) as to the failure of the first applicant to attend council meetings, the provisions of section 17 to the Act referred to therein did apply to matters relative to failure by a person to implement the decisions of the council and were irrelevant to matters affecting attendance of council meetings; the contents of exhibit A attached to the respondent’s affidavit, were mere administrative directions and had no legal bearing on the issue before the court. Mr. Wuaku rounded off by contending that the facts as presented warranted a sympathetic consideration by the court to grant the order sought for.
The learned state attorney, Mr. Addo, counsel for the respondent, contended that neither the respondent nor the council was under any duty to have the applicants sworn either as members of the traditional council or of the judicial committee of the council; the contention of the applicants that the provisions of section 14 (2) of Act 370 that “the membership of a Traditional Council in the first instance shall be the same
[p.431] of [1974] 2 GLR 427
as the membership of that Council immediately before the commencement of this Act” made them members of the present Gbi Traditional Council and therefore members of the judicial committee thereof derives no support from any authority. To be a member of a traditional council, by the provisions of Act 370 (which repealed the Chieftaincy Act 1961 (Act 81) one must be a “chief’ within the definition in subsection (1) of section 48 of Act 370; and not every chief whose name appears on the National Register of Chiefs can perform the functions under the relevant provisions of Act 370. Performance of such functions is conditioned by recognition of his status as a chief by the Minister by notice published in the Local Government Bulletin. Therefore to be a member of the judicial committee of a traditional council one must be recognised as a chief under section 48 (1) of the Act. He further contended that if mandamus is sought under the provisions of a statute it must be proved that the statute imposes a duty, but the provisions of Act 370 do not impose a duty either on the traditional council or its president to so swear any chief who is a member of the traditional council. Under section 28 (1) and (2) of Act 370 and regulation 3 (1) of the Chieftaincy (Proceedings and Functions) (Traditional Councils) Regulations, 1972 (L.I. 798) (the regulations to Act 370), the members of the judicial committee of a council shall not exceed five in number. There is no duty imposed on the traditional council or its president to swear a chief. The facts stated in paragraphs (3) and (4) of the applicant’s affidavit do not amount to a demand; and the letters referred to by the applicants were letters asking for information merely. In referring to de Smith’s Judicial Review of administrative Action (3rd ed.), p. 496, counsel submitted that there must be a distinct and specific demand and, correspondingly, a manifestation unequivocally of something akin to a refusal. After referring to Halsbury’s Laws of England (4th ed.), Vol. 1, p. 109, para. 86 with regard to refusal of adjudicating bodies and to p. 132, para. 122 thereof relative to a legal right to perform the duty, the learned state attorney contended that the order sought for is not grantable, and that it is so in the case also of the first applicant whose conduct (as referred to in paragraphs (3) and (5) of the respondent’s affidavit) is challengeable under the provisions of section 17 of Act 370.
In reply, Mr. Wuaku, learned counsel for the applicants, argued that to be a member of the judicial committee one has first to be sworn as a member of the traditional council, and that therefore all the sworn members of the traditional council are members of the judicial committee. And it is further argued that (with regard to the applicants other than the first applicant not being gazetted chiefs) the chiefs listed in paragraph (4) of the applicants’ supplementary affidavit were chiefs in the traditional council who, even though not gazetted, had been presented by the respondent for swearing in; and that the respondent failed to do so in the case of those applicants. In rounding off, counsel argued that Togbe Dakpo II, mentioned in paragraph (4) (c) of the supplementary affidavit had been gazetted later, and that if those applicants had been sworn they might later also have been recognised by being gazetted.
With the arguments closed, it is viewed that the matters of primary consideration in these proceedings are:
(1) whether each applicant was legally a member of the old Gbi Traditional Council under Act 81 (now repealed) and therefore entitled under section 12 (1) of Act 370 to be a member of the new Gbi Traditional Council as contended by the applicants; and (2) whether he is legally, therefore, a member of the present Gbi Traditional Council and has thereby the right to be sworn as (a) a member of the council and as (b) a member of the judicial committee of the council. Now section 49 of Act 370 lists the categories of chiefs 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.” |
As a chief seeking to enforce a right claimable under the provisions of Act 370 each of the applicants must prove that he is a chief within one or other of these five categories. It is within possibility, customarily, that the paramount authority in a traditional area may create, or approve as created, a stool and customarily give effect to the nomination, election and installation of its occupant and have that stool and its occupant accorded recognition by the Regional House of Chiefs in the region of that traditional area. In this wise the occupant of such stool becomes as much a chief, simpliciter, as any other chief whose stool dates from time immemorial. Hence, even though the applicants are undeniably chiefs within the Gbi Traditional Area, what fails to be considered is whether or not as such chiefs they are “chiefs” for the purpose of the exercise by them of the functions under the present Chieftaincy Act, 1971 (Act 370). And it is therefore pertinent to observe that section 48 of the Chieftaincy Act, 1971 (Act 370), states that: “48. ( 1) A Chief is an individual who has, in accordance with customary law, been nominated , elected and installed as a Chief or as the case may be appointed and installed as such and whose name for the time being appears as a Chief on the National Register of Chiefs:
Provided that no person shall be deemed to be a Chief for the purposes of the exercise by him of any function under this Act or under any other enactment, unless he has been recognised as such by the Minister by notice published in the Local Government Bulletin. (2) Subject to the foregoing subsection (1) the name of any person who has been installed as a Chief shall be entered by the National House of Chiefs in the National Register of Chiefs not later than one month from the date of the receipt of the notification of such installation.”
[p.433] of [1974] 2 GLR 427
Each of the applicants, i.e. the second, third, fourth and fifth applicants unequivocally admits that even though he has been customarily nominated, elected and installed as a chief, he has not been recognised as such by the Minister by notice published in the Local Government Bulletin. And no reference was made on his behalf that, customarily installed as a chief, he has his name appearing as a chief on the National Register of Chiefs. It must therefore be observed at this stage that each of the applicants admits inferentially that his status as a chief does not fall within the definition of a chief in subsection (1) and the proviso thereto of section 48 of the Chieftaincy Act, 1971.
It was the case of the applicants, as disclosed in their affidavit filed on 2 November 1973:
“(2) That we the applicants herein and others herein and others hereinafter mentioned in paragraph (5) infra [are members of the] the Gbi Traditional Council.
(3) That on 25 July 1973 members of the Gbi Traditional Council were to be sworn in as judicial committee members of the said council. That when we the applicants herein presented ourselves to be sworn in, not only were we driven from the seats we occupied but we were excluded and prevented from being sworn in by the president and the registrar of the council.
(4) That we were so prevented and excluded by the president because destoolment charges and proceedings have been initiated against the president which are now pending before the Volta Regional House of Chiefs judicial committee and we the applicants herein are among those who support the charges of destoolment against the president, Togbe Gabusu V.
(5) That only the favourites and supporters of the president were presented by the president to be sworn in as judicial committee members namely:
| (i) | Togbe Gabusu V, (president) chairman |
| (ii) | Togbe Dokpo II, clan chief of Hohoe |
| (iii) | Togbe Deh VIII of Kledzo |
| (iv) | Togbe Franz Osai II of Godenu |
| (v) | Togbe Morny Atuo V, clan chief of Kledzo |
| (vi) | Togbe Adzimah VI of Abunse |
| (vii) | Togbe Adonu Dake IX of Kpoeta |
| (viii) | Togbe Keh X of Wegbe |
| (ix) | Togbe Adzankama VII, clan chief of Wegbe |
| (x) | Togbe Katabua III, clan chief of Wegbe |
| (xi) | Togbe Wode III of Kpeme |
| (xii) | Togbe Daklio II, clan chief of Wegbe |
| (xiii) | Togbe Adzofusu III of Atabu |
| (xiv) | Togbe Nyamesesi III, clan chief of Atabu.” |
But it must be viewed that for a chief to establish his right under the provisions of the Chieftaincy Act, 1971, he must prove fundamentally in the proceedings before a tribunal of competent jurisdiction that (1) he
[p.434] of [1974] 2 GLR 427
is a chief falling within one of the five categories envisaged by section 49 of the Act; and (2) his name does appear as such chief on the National Register of Chiefs, by evidence of the contents of this register, or of the relevant part of this register “duly certified under the had of the Registrar to the National House of Chiefs or any public officer authorised by him in writing to be a true copy of the contents or of that part.” (Vide section 50, subss. (6), (8) and (9) of Act 370). The mere contention, therefore, that each of the applicants as a member of the old Gbi Traditional Council, has by virtue of the provisions of sections 12 (1) and 14(1) of Act 370, become a member of the existing Gbi Traditional Council is no legal reason, in the circumstances, for the court to infer that he is a chief within the definition in section 48 of the Act; because, it is not intrinsically impossible that he had by mistake or inadvertence been accepted as a member of the old Gbi Traditional Council set up under the repealed Act 81.
Moreover, the Chieftaincy Act, 1961 (Act 81), under which membership of the council is being claimed by the applicants, states by its section 14 thus:
“14. ( 1) 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.
(2) Subject to subsection (4) of this section, the membership of a Traditional Council in the first instance—
(a) where it is a former State Council, shall be the same as the membership of the State Council immediately before the commencement of this Act;
(b) where it is a Council constituted by the Minister, shall be such as the Minister may determine.
(3) As soon as is practicable after any change occurs in the membership of a Traditional Council, the Council shall notify the Minister thereof and, subject to the following subsection, the Minister shall cause the Chiefs List to be altered accordingly.
(4) If at any time it appears to the Minister that any person should, or that any person other than the Chairman should not, be a member of a Traditional Council, he may, after consulting the Chairman, amend the Chiefs List accordingly.”
From these provisions of section 14 of Act 81, it is crystal clear that a chief claiming (under that Act), membership of the old traditional council, should as well have had his name recorded in the Chiefs List existing before that Act became operative, and, what is more, at the same time should have been a member of the state council in existence prior to that Act.
Therefore, to establish that as Togbe or chief he was a member of the old Gbi Traditional Council set up under Act 81, and thereby automatically became a member of the existing Gbi Traditional Council under the benefit of sections 12 (1) and 14 (1) of Act 370, each of the applicants should have established that (1) his name did appear in the Chiefs List as a member of the old Gbi Traditional Council and that he
[p.435] of [1974] 2 GLR 427
was also a member of the state council existing before that old traditional council was set up. For the purpose of the present proceedings, having thus established his membership of the old Gbi Traditional Council under Act 81, each of the applicants, must, short of proof of the entry of his name on the National Register of Chiefs, establish his membership of the present Gbi Traditional Council to the satisfaction of the court by tendering in evidence a copy of the Local Government Bulletin in which appears a notice by which the Minister responsible for chieftaincy matters has accorded him recognition as such chief. This requirement under the provisions of section 48 (1) of Act 370 is a condition precedent, I hold, for membership of a traditional council under the enactment; and it should be observed that he cannot be given recognition as a chief by notice published in the Local Government Bulletin without his name having first been entered on the National Register of Chiefs.
The council has functions to perform within the ambit of the Act. Under sections 15 and 28 (1) the council is clothed with “exclusive jurisdiction to hear and determine any cause or matter affecting chieftaincy which arises within its area,” and, more particularly, under section 16 (1) the council is to hold meetings. The member thereof has the right to take part in the business of the council, under section 16 (3). In so taking part, a member exercises a function under the Act, and towards exercising that function, the proviso to section 48 (1) is to the effect that, even though a chief, simpliciter, one cannot exercise any function under the Act unless due recognition has been so accorded one as a chief in the Local Government Bulletin by the Minister. In taking part as a member of the council in its deliberations and in voting to appoint its judicial committee to assume jurisdiction under section 15, a member thus exercises functions under the Act. In the light of these considerations I cannot go with learned counsel for the applicants in his argument that each applicant has in these proceedings established that he is, or has the right to be, a member of either the Gbi Traditional Council or its judicial committee. Hence, each of them has failed to prove the existence of his alleged right to have himself sworn basically into the council and thereafter to be a member of the judicial committee within that council.
With regard to the judicial committee of the traditional council, such a committee does not come into existence until five of the members of the council are appointed from within the council by the council. And this appointment is effected only when the council is to exercise its jurisdiction under section 15 of the Act. In the Act there is no room for such a committee as a standing committee. The judicial committee is, each time, by the Act, to be a selected committee consisting of certain members appointed by the council to adjudicate on a particular matter of chieftaincy dispute. By the provisions of regulations 2 and 3 of the Chieftaincy (Proceedings and Functions) (Traditional Councils) Regulations, 1972 (L.I. 798):
“2. The jurisdiction conferred on each Traditional Council by section 15 of the Chieftaincy Act and these regulations shall be exercised by a judicial committee.
[p.436] of [1974] 2 GLR 427
3. ( 1) A judicial committee shall be appointed by a Traditional Council and shall consist of five persons all of whom shall be members of that Council.
(2) A judicial committee shall elect one of their number as Chairman, who shall preside over the committee.
(3) A judicial committee shall be duly constituted for the despatch of its business by not less than three members thereof.
(4) The determination of any question before the judicial committee of a Traditional Council shall be by simple majority.”
It is inferable from these provisions that a chief, as a member of the traditional council and thus entitled to exercise functions under the Act, and, particularly, as a person to take up the duties of a public office, must be sworn. Once sworn into the council he becomes eligible to be appointed by the council as a member of its judicial committee whenever the council is to exercise its jurisdiction under section 15 of the Act. Five of the council members are to be appointed when the occasion arises. All the five can exercise that function. But for the validity of the decision at least three of the five thus appointed must sit otherwise all the five must sit. This can be inferred from section 28 (2) of the Act. The five members appointed in the first instance are not to be deemed permanent. When the council is to exercise its function on another issue it is liable to appoint another set of five. And the five, or three at least out of them, must sit throughout to make the ensuing decision valid.
When a chief, as a lawful member of the traditional council, is sworn he is only eligible as one of the five to be eventually appointed by the council as a judicial committee member on each occasion when the council is to exercise its function qua tribunal through its judicial committee. He cannot of his own accord serve on the committee, for he must first be appointed by the council. As one or the functions of the council is the exercise of its jurisdiction through its judicial committee, once a chief has been sworn as a member of the council to assume the duty of contributing to the exercising of the functions of the council, he is not required to be sworn again if he is eventually appointed by the council as a member of its judicial committee. And therefore a lawful member of the council, once sworn into the council is not required under the Act to have himself sworn if he is appointed by the council to serve on a judicial committee of the council which is to be appointed only when the need arises. A judicial committee of five members of the council when appointed by the council is not to be deemed “the judicial committee” of the council for all matters of exercising the jurisdiction of the council. There is therefore no duty upon the respondent, as the ex-officio president of the Gbi Traditional Council at the material time, to have the applicants sworn as members of a judicial committee of the council; much less was there any duty on him to have sworn in the applicants as members of the council when it has not been proved to this court that they were at the material time lawful members of the council.
It was the contention for the applicants that some chiefs, whose names had not been proved to have appeared in a notification in the Local Government Bulletin, had been sworn into the council. That situation cannot be a legal basis for this application, because that an unlawful practice has been followed or is in existence cannot legalise it, if it is in fact contrary to the provisions of a statute. A member of the public having a right to question the validity of the membership of those chiefs has the right to come for the remedy (with regard to those chiefs remaining on the membership of the council).
Much of the argument has been centred on the need for a demand and a corresponding refusal in matters of mandamus. I do not propose to consider the weight of this argument from either side. Because it is viewed that the lawful existence of the right to make a demand determines the propriety of the demand allegedly made in the circumstances, and that what is alleged to be a refusal could only be determined to be so in the light of the lawful existence of the right and from the circumstances of each case.
The applicants have failed to prove initially that they were at the material time lawful members of the Gbi Traditional Council and therefore entitled to be sworn in as members of the council. Finding that there was no duty upon the respondent to have the applicants sworn as members of the judicial committee or, more precisely, as members of a judicial committee of the council which, I hold, is a committee of five members of the council to be appointed by the council to adjudicate on a matter of chieftaincy each time the occasion arises, I hereby rule that the application for an order of mandamus fails and is dismissed. Costs for the respondent against the applicants assessed at 0150.
DECISION
Application dismissed.
S.Y.B.-B.
