COURT OF APPEAL
DATE: 7 DECEMBER 1970
APALOO, SOWAH AND ARCHER JJA
NATURE OF PROCEEDINGS
APPEAL from a judgment of the High Court, Cape Coast, dismissing contempt proceedings issued against the defendant for failing to comply with the interim order of the Ajumako Traditional Council.
COUNSEL
N. Moore for the appellants.
G. Tanoh for the respondent.
JUDGMENT OF SOWAH J.A.
Sowah J.A. delivered the judgment of the court. After hearing arguments of counsel, we dismissed the appeal and reserved our reasons; we now proceed to give those reasons.
Though the events leading to the attachment proceedings being pursued against the respondent had been set down with sufficient clarity in the ruling appealed from, it is necessary to state some short facts for the proper appreciation of our reasons. On 24 November 1969, the chief bailiff of the Cape Coast High Court, in the company of policemen and a messenger of the court, endeavoured to execute an order of injunction decreed by the Ajumako Traditional Council upon the respondent at his residence at Odoben. The said order is short and may with profit, be reproduced in extenso, it reads:
“ORDER OF THE COUNCIL
Upon the motion and affidavit filed by the plaintiffs seeking for an order of injunction to be placed on Odoben Agona Royal Family stool property now in possession of the defendant in the suit herein, the Ajumako Traditional Council granted the injunction to be placed on the said royal stool properties.
The council further ordered that an inventory of the stool properties attached to the stool of Odoben should be taken and handed over to Kwesie Baidoo the son of late Kwesie Andam, deceased of Odoben to keep them.
The secretary, Nana Kweku Mensah, Nana Ofosu Boafo and Nana Adow II, Odikro of Owani together with chief-linguist, Nana Kobina Ninsin to go to Odoben on Thursday to take the inventory.
Assistant Superintendent of Police, Saltpond would be contacted for his assistance in dispatching this order of the council.
(Sgd.) Nana Kwamina Hammah Ababio President Ajumako Traditional Council.”
The respondent alleged that the order was read over to him but when he asked for a copy, the chief bailiff declined, saying that there was no copy available for service upon him. Thereupon he refused to hand over to the bailiff the Odoben Agona royal family stool properties in his possession. His other reasons for refusal were, firstly, that he had lodged an interlocutory appeal against the order to the Central Region House of Chiefs, the appellate court, in that traditional area, and the appellate court had instructed the Ajumako Traditional Council to suspend its
[p.100] of [1971] 1 GLR 98
order and refrain from carrying it out; secondly, the order read over to him differed in a material particular from the oral order made in council; thirdly, the persons named in the order who were to take inventory of the stool property were not present with the chief bailiff and the policemen and neither was the person to take over after the inventory. His refusal thus sparked off these proceedings in the Cape Coast High Court where the trial was on affidavits.
The learned High Court judge, after hearing argument of counsel in support of the affidavit, held that the lodgment of an appeal against the order operated as a stay of execution of the order of the Ajumako Traditional Council; further, that the respondent had shown reasonable grounds for non-compliance with the said order. The learned judge observed that the chief bailiff was not a person named in the order and in attempting to take inventory of the stool property, he acted ultra vires. It also afforded the respondent sufficient cause for declining to comply with the order.
Mr. Moore argued the numerous grounds of appeal filed by him; the summary being: that the learned trial judge was wrong in upholding the respondent’s contention that the appeal lodged by the respondent operated as a stay of execution because in his view there was no valid appeal subsisting within the meaning of section 48, subsection (2) of the Chieftaincy Act, 1961 (Act 81), as the prior leave of the minister which is a condition precedent to an appeal properly being instituted, had not been obtained by the respondent. Mr. Moore further argued that the respondent gave different reasons for his refusal to the chief bailiff from those given in his affidavit.
It is necessary in a case such as this to examine the legal validity of the basis of the order sought to be enforced, for without legal basis, the respondent could not be guilty of contempt for non-compliance. The powers of the Traditional Council, in exercise of its jurisdiction in proceedings before it, are contained in sections 43 to 47 of the Act. Mr. Moore sought to base the order on section 46 (1) and (2) of Act 81; the said section reads as follows:
“46 (1) Any judgment or order given or made by a Traditional Council in a cause or matter affecting chieftaincy may be enforced by seizure and sale of the property of the person condemned therein.
(2) The Traditional Council shall not itself issue a writ of execution, but shall forward a copy of the judgment or order and a request for execution, together with the necessary fees, to a court, and the court shall take such steps and issue such process as may be necessary for the purpose of the execution.”
Upon a true interpretation of section 46 (1), the order alleged to have been made upon it by the Ajumako Traditional Council is incompetent. In our view, the judgments or orders or both envisaged in the section are those capable of being enforced by seizure and sale, in other words, by a process which, in the High Court, can be enforced by a writ of fieri
[p.101] of [1971] 1 GLR 98
facias. The section does not empower the council to make the interim order it purported to make. In this connection, it may be observed that even in the High Court, the power to make such interim orders, as are contained in the council’s order, have been specifically conferred under Order 50, r. 5 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A).
It does appear, however, that in Part 6 of the Chieftaincy Act, 1961, there are special provisions dealing with stool property. Section 54 forbids the seizure of stool property in execution at the suit of any person. Section 55 which at first blush appears germane, reads as follows:
“55 (1) Where a decision of a Traditional Council involves the recovery of Stool Property and no appeal is lodged with a Committee under Part V of this Act, the Traditional Council may order the delivery up of the Stool property to the persons entitled.
(2) The order shall specify the Stool property; and a copy of the order shall forthwith be served upon the person required to deliver up possession of the Stool property, who shall be guilty of an offence if he fails without reasonable excuse to comply with it.”
Mr. Moore, however, indicated that his application was not based upon the section and it is not difficult to appreciate counsel’s disinclination to attempt to rely on this provision.
To invoke the penal provision of the section, the prerequisites contained in subsection (2) must exist, namely, the order must specify the properties intended to be seized and there must have been prior service of the order upon the delinquent. It appears even doubtful if contempt proceedings can in the first instance lie as the section contains a penalty for refusal to obey a speaking order. In our view, the interim order of the Ajumako Traditional Council purported to be enforced cannot come within the purview of section 46 (1) of Act 81, and is unenforceable under it.
We are also of the view that if the order were valid, the respondent showed good and sufficient cause for not complying with the order. The said order specifically named persons who should take inventory of the stool paraphernalia and the person to whom custody should be given. These persons, upon the affidavit of the chief bailiff, were not present. We think the respondent was justified in not handing over sacred stool properties to strangers or persons who had no right to them.
It was for these reasons that we dismissed the appeal.
DECISION
Appeal dismissed.
N. A. Y.
