IS SECTION 46 OF THE CHIEFTAINCY ACT, 2008 (ACT 759) UNCONSTITUTIONAL, ILLOGICAL AND INCOMPLETE?

The Shield That Has Become A Fortress

 

What You Will Find:

1. The Constitution prescribes accountability. Section 46 of Act 759 prescribes immunity.
2. Section 46 is a general execution rule, hiding inside the Chieftaincy Act.
3. It is better to secure the stable before the horse strays than to bar the gate after judgment has been given.
4. A judgment that cannot walk is not a judgment. It is a ghost.

 

INTRODUCTION: THE QUESTION

Section 46 of the Chieftaincy Act, 2008 (Act 759) provides in substance that no execution shall issue against stool property except with the prior consent in writing of the National House of Chiefs.

The provision, presumably, was forged to protect the unborn, for whom the Stool holds land in trust. That purpose is noble. The question in this paper is whether the means chosen to achieve it are consistent with the 1992 Constitution.

It is too narrow, because it protects the Stool alone and leaves the Family and the Clan property outside its protection. It is too strong, because it protects the Stool against individual creditors, while allowing the Stool to execute against the individual. It is too high, because it allows the National House of Chiefs to withhold consent to the execution of judgments of the Superior Courts, including the Supreme Court, in matters that are not even causes or matters affecting chieftaincy.

 

This paper therefore asks three questions:

1. Is Section 46 unconstitutional, because it makes equality a one-way traffic and denies the judgment creditor equal protection under Article 17?
2. Is Section 46 illogical, because it makes the protector the gatekeeper and places the House in a position of structural conflict?
3. Is Section 46 incomplete, because if the objective is truly to protect community land, it cannot stop at the Stool and leave the Family and the Clan unprotected?

This paper answers each question in the affirmative, for the reasons set out below.

 

A word on chieftaincy.

This paper is not against chieftaincy. Chieftaincy is guaranteed by Article 270 of the 1992 Constitution. It is a respected institution, and the Stool is a sacred trust for the living, the dead, and the unborn. The concerns raised in this paper are not with the chiefs, nor with the Stool, nor the House. They are in respect of Section 46 of Act 759. It is Parliament that wrote a protection so wide that it defeats the very trust it was meant to protect. To criticize the drafting is not to criticise the institution.

This paper does not defend the shield. It is submitted that the shield itself is the problem. It should not be reformed. It should be removed. A protection that applies to only one class of judgment debtor is not a shield. It is an exception, introduced into the law under the name of protection, and left there to defeat equity.

1. HISTORY: THE UNBORN AND EXECUTION LIVED TOGETHER

They said the stool held land for those yet to be born,[1] like a father holding a farm for children not yet conceived. Yet at that very time, execution against Stool property was lawful. A creditor could levy execution, and the purchaser at an auction took the Stool’s title.[2] That was the law in Dennis and Arthur v Ababio.[3]

The unborn and execution lived together, like two brothers in one house, disagreeing but not destroying each other. Nana Sir Ofori Atta[4] and Dr. J.B. Danquah[5] protected the unborn by holding the occupant of the Stool accountable, like a steward called to render an account before his master, not by making the Stool immune. Section 46, passed in 2008, suggests a necessity that history does not support. It suggests that the brothers cannot live together, and so one must be removed to save the other.

It must be conceded in all honesty that Section 46 is not wholly new. Under Section 38 of the repealed Chieftaincy Act, 1971 (Act 370), execution against Stool property also required consent, then the written consent of the Minister. Parliament in 2008 did not invent the consent requirement. It transferred it to the National House of Chiefs.

The transfer is the point. The Minister was a member of the Executive, accountable to Parliament, and a stranger to the Stool whose property was in issue. The House of Chiefs is not a stranger. It is the House of the very institution whose property is in issue. To move the gate from the Minister to the House is to move it from a neutral keeper to an interested keeper. The form remained consent. The substance became self-protection. That is why the question in this paper is not whether the consent has a history. It is whether the consent by the House is compatible with Articles 17, 125 and 126(4) of the Constitution.

If the Chief is truly a fiduciary, the remedy for breach is against the office-holder, not against the creditor. If a trustee borrows in the name of the trust and misapplies the money, the beneficiaries sue the trustee. They do not tell the creditor: Your judgment is worthless. To do so is to place the loss on the party who was not in breach.

Section 46 does the opposite. It tells the creditor: You lent in good faith. You won in court. You lose. It tells the office-holder: You borrowed. You defaulted. You win. It tells the unborn: Your trustee has failed you, and the law will protect him, not you. That is not accountability. That is immunity for the breach.

1. THE ONE-WAY SWORD: RECIPROCITY IS LOST

Equality under Article 17 is not equality of outcome. It is equality of treatment before the law. Section 46 denies that equality.

The Stool may sue and obtain judgment. It may execute the judgment against the individual debtor and levy on his house, his farm, his bank account. No consent of any House is required. The sword cuts in the Stool’s favour.

The individual may sue and obtain judgment against the Stool. The individual may not execute. He must first obtain the consent of the National House of Chiefs. If consent is withheld, the judgment stands on paper but cannot walk. The sword does not cut in his favour.

This is not a difference based on a relevant distinction. Both parties are judgment creditors who have proved a debt and have obtained a judgment of a court of competent jurisdiction. The only difference is that one creditor is a Stool and the other is not. That is a classification based on status, not on the nature of the debt, the nature of the judgment, or the nature of the property. Article 17(2) forbids discrimination on grounds including ethnic origin, and Article 17(1) guarantees equality before the law. A classification that gives one class of creditor an execution right and denies it to another, on the sole ground of who the debtor is, fails the test of reasonable classification.

The protection was said to be for the unborn. However, the unborn are not protected by denying execution to the creditor. The unborn are protected by ensuring that the office-holder who borrowed without authority answers for the borrowing. Article 36(8) of the Constitution provides that the State shall take steps to ensure that a person who holds a Stool, Skin or Family land in trust for the people accounts for his stewardship. The Constitution prescribes accountability. Section 46 prescribes immunity. Immunity is the opposite of accountability.

 

III. THE PROTECTOR AS GATEKEEPER: A STRUCTURAL CONFLICT

Section 46 makes the National House of Chiefs the gatekeeper for execution against Stool property. The House is the body established under Article 272 to advise, to codify customary law, and to protect the institution of chieftaincy. It is not a court. It is not the Executive. It is the institutional home of the Stools.

When a creditor seeks to execute against a Stool, he must ask the House for permission to execute against one of its own members. The House is asked to decide between two loyalties: loyalty to the institution it was created to protect, and loyalty to the judgment of a court. That is a structural conflict. No rule of natural justice requires proof that the House will in fact refuse in every case. The conflict is in the structure itself. A body cannot be both protector and gatekeeper without the appearance, and the reality, of bias.

The Minister under Act 370 did not suffer this conflict. The Minister was not a Chief. He was not a member of the House. He could refuse consent and still remained a Minister. The House, if it grants consent, grants execution against its own. The transfer from the Minister to the House therefore changed the nature of the check. It changed a neutral administrative check into an institutional self-defence.

This paper does not suggest that the House acts in bad faith. It suggests that Parliament has placed the House in a position in which good faith is not enough. The law should not place an institution in a position where it must choose between its own and the judgment of a court.

 

1. INCOMPLETE: THE FAMILY AND THE CLAN

Defenders of Section 46 may say: “Act 759 is about Chiefs. The lawmaker could not have extended the immunity to the family when the Act is exclusive to chieftaincy. Doing so would be like comparing apples to mangoes.”

That sounds lucid, but that is exactly why Section 46 must fall.

This paper does not propose that Parliament should insert Family and Clan into the Chieftaincy Act. The Family and the Clan are not chieftaincy. This paper proposes the opposite: repeal Section 46. Do not extend it. Remove it.

The point of this section is not: “Give the Family the same protection.” The point is: “Because the Family cannot have the same protection, the protection cannot be justified.”

Why does Parliament say Stool property needs protection? Obviously because it is a communal land, held for the unborn. When it comes to the weight of their fiduciary duty and accountability, the Family and Clan lands are equally communal lands, held for the unborn. Article 36(8) puts them in the same compartment: “Stool, Skin and Family lands.” Section 13 of the Land Act, 2020 (Act 1036) similarly puts them in the same category: all are holders of the allodial title.

If the justification is “communal land must not be lost,” then it applies to the Family and the Clan exactly as it applies to the Stool. They are not apples and mangoes. They are all mangoes, grown on different trees. The fruit is the same: allodial title, fiduciary duty, unborn beneficiaries.

 

Parliament had two honest choices:

– Choice A: Protect all communal land, in a general law that covers the Stool, the Family, and the Clan together.

– Choice B: Protect none of it in execution, and protect the unborn by accountability instead.

Parliament chose a third choice: Choice C: Protect only the Stool, in a Chieftaincy Act, and leave the Family and the Clan unprotected.

Choice C cannot be justified by “communal land.” Because if communal land was the reason, the Family would be protected too. The fact that the Family is not protected proves that “communal land” was not the real reason. The real reason was a privilege for Stools alone.

Section 46 itself proves it is not about chieftaincy. The section does not say “in a chieftaincy cause or matter.” It says “at the suit of a person.” It applies to any debt, any contract, any bank loan, any ordinary judgment in the High Court. As Abbey v. Antwi,[6] and In re Osu; Ako Nortei II v Nortey Owuo III[7] hold, a case does not become a chieftaincy cause merely because a Chief is a party or a Stool property is in issue. Section 46 is a general execution rule, hiding inside a Chieftaincy Act. Parliament cannot have it both ways. It cannot say “this is a Chieftaincy Act, so the Family does not belong here” when it wants to exclude the Family, and then say “this is a general execution rule, so it applies to all debts” when it wants to protect the Stool. If Section 46 is general enough to stop a bank’s execution in the High Court, it is general enough to be tested against Family land.

Yet Section 46 holds a protection over only the Stool. It mentions only “Stool property.” There is no equivalent immunity for the Family in the Head of Family Accountability Act, 1985 (PNDCL 114).

And rightly so, PNDCL 114 does what Article 36(8) does: it makes the Head of Family accountable. It does not make the Family immune. Parliament knew how to protect the unborn in 1985: by accountability, not by immunity.

That is the point. Parliament gave the Family accountability, but gave the Stool immunity. The same unborn, the same fiduciary duty under Section 13 of Act 1036, but different results. The Family land in Accra, the Clan land in Ada, the Skin land in the Upper Regions – all are held in trust for the same unborn. All are vulnerable to the same unauthorised borrowing. Yet only one is given protection in execution. That is not apples and mangoes. That is two Acts, one principle, unequal treatment.

The Clan proves the point further. The State itself gazettes some Clan Heads in some parts of the country in the National Register of Chiefs.[8] The State calls them Chiefs on Monday, and then says “you are not Chiefs, so Section 46 does not apply to you” on Tuesday. You cannot gazette a man as a Chief and then deny him the protection you give to Chiefs on the ground that he is not a Chief.

1. THE FORTRESS IS TOO HIGH: A LOWER COURT VETOING THE SUPERIOR COURTS

Article 125(3) of the Constitution vests judicial power in the Judiciary. Article 129(1) provides that the Supreme Court is the final court of appeal. A judgment of the Supreme Court is final. It is not a recommendation. It is not a request for the consent of another body.

Section 46 makes the execution of that judgment subject to the consent of the National House of Chiefs. The House may withhold consent. If it withholds the consent, the judgment cannot be executed. The House, which is not a court, is given a veto over the judgment of the Superior Courts, including the Supreme Court.

This is not a question of chieftaincy causes. Section 46 applies even where the matter is not a cause or matter affecting chieftaincy. A bank loan, a contract for the supply of goods, a claim for damages for negligence – all are ordinary civil claims. If the debtor is a Stool, the creditor must still seek the consent of the House. The House is thus given power over matters that have nothing to do with chieftaincy, merely because the debtor is a Stool.

The Constitution does not permit a non-judicial body to sit in judgment over the judgments of the Superior Courts. If Parliament wishes to protect Stool property, it must do so in a manner that does not make the judgment of the Supreme Court conditional on the consent of the House. The judgment must walk.

 

1. CONCLUSION AND RECOMMENDATIONS

The protection in Section 46 was meant to protect the unborn. In its present form, Section 46 protects the judgment debt, not the unborn. The sword was meant to cut both ways, for creditors and debtors alike. It now cuts only one way, like a knife sharpened on one side and blunt on the other.

 

This paper therefore recommends:

1. Repeal Section 46. Do not extend it to the Family and the Clan. Remove it from the statute. The unborn will be protected by accountability, as Article 36(8) and PNDCL 114 already provide.
2. Strengthen prevention, not immunity. Parliament should strengthen Section 45. No stool, skin, family or clan should be allowed to borrow or charge communal land without the prior written consent of its Traditional Council, Family Council, or Clan Council, recorded in writing, with personal liability for the office-holder who borrows without consent. Prevention before borrowing is constitutional. Immunity after judgment is not. It is better to secure the stable before the horse strays than to bar the gate after judgment has been given.
3. Accountability. A Chief or Head of Family who incurs unauthorised debt in the name of the Stool, Skin, Family or Clan should be personally liable, and liable to destoolment or removal, in accordance with customary law. The creditor should not bear the loss for the fiduciary’s breach. The fiduciary should bear it. Let the steward answer for his stewardship.

A judgment must walk. Let it walk out of the courtroom, past the gatekeeper, and into the world where it belongs, where debts are paid and judgments are honoured. For a judgment that cannot walk is not a judgment. It is a ghost, haunting the corridors of the court, reminding us that we promised justice and delivered only words.

 

[1] This is attributed to Nana Sir Ofori Atta I.

[2] See BJ da Rocha and CHK Lodoh, Ghana Land Law and Conveyaning, Second Edn. at p. 7 (1999).

[3] [1941] Divisional Court, Cape Coast (unreported). See also Sasraku v. Okine [1930] 1 WACA 49 and Aidoo v. Adjei [1976] 1 GLR 431

[4] See Nii Amaa Ollennu, “Principles of Customary Land Law in Ghana” (London, Sweet and Maxwell, 1962), p. 4.

[5] Danquah, J.B., “Akan Laws and Customs”, p. 200.

[6] [2010] SCGLR 17; [2010] 26 GMJ 151.

[7] [2005-2006] SCGLR 628.

[8] See for instance, Nene Ago Oyadier III of the Djangmaku Clan.