EKU ALIAS CONDUA III vs. ACQUAAH [1968] GLR 412

CASES REFERRED TO

(1) Kokro v. Enum; Kokro v. Tandoh (Consolidated) (1953) 14 W.A.C.A. 313.

(2) Chancery Lane Safe Deposit and Offices Co., Ltd. v. Inland Revenue Commissioners [1966] A.C.

85; [1966] 2 W.L.R. 251; [1966] 1 All E.R. 1; 110 S.J. 35; [1965] T.R. 433; 43 T.C. 83; 44 A.T.C.

450, H.L.

(3) Mutchi v. Annan (1907) Red. 211.

(4) Ababio v. Ackumpong (1940) 6 W.A.C.A. 173.

(5) Akrobotu v. Normeshie (1953) 14 W.A.C.A. 290.

(6) Peacock v. Bell and Kendal (1667) 1 Wms. Saund. 69; 1 Sid. 330; 2 Keb. 226; 85 E.R. 81. (7) Timitimi v. Amabebe (1953) 14 W.A.C.A. 374.

(8) Ahenkora v. Ofe (1957) 3 W.A.L.R. 145, C.A.

(9) London Marine Insurance Association, Re; Smith’s Case (1869) L. R. 4 Ch.App. 611. (10) Tamakloe, Re Estate of; Tamakloe v. Tamakloe, Suit No. 78/44, unreported.

(11) Sackeyfio v. Tagoe (1945) 11 W.A.C.A. 73.

(12) Jones-Nelson v. Ocansey, W.A.C.A., 11 March 1950, unreported.

(13) Richardson v. Eshun (1940) 6 W.A.C.A. 141.

(14) Mayfair Property Co., Re; Bartlett v. Mayfair Property Co. [1898] 2 Ch. 28; 67 L.J.Ch. 337; 78 L.T. 302; 46 W.R. 465; 14 T.L.R. 336; 42 S.J. 430; 5 Mans. 126, C.A.

(15) Salkeld v. Johnson (1848) 2 Ex. 256; Cripps’ Church Cas.148; 3 New Mag.Cas. 48; 18 L.J.Ex. 89;

11 L.T. (o.s.) 180; 12 J.P. 325.

(16) Escoigne Properties Ltd. v. Inland Revenue Commissioners [1958] A.C. 549; [1958] 2 W.L.R. 336;

[1958] 1 All E.R. 406; 102 S.J. 159; [1958] T.R. 37; 37 A.T.C. 41, H.L.

NATURE OF PROCEEDINGS

APPEAL against a decision of the High Court, Sekondi, dismissing an application for an order of certiorari to quash the proceedings and [p.415] of [1968] GLR 412 judgment of the Shama State Council and the Appeal Commissioner wherein judgment was given against the appellant in relation to a dispute as to the headship of the fishing community of Aboasi village. The facts are fully stated in the judgment of Azu Crabbe J.A.

COUNSEL

Dr. de Graft-Johnson for the appellant.

B. J. da Rocha (with him Essien) for the respondent.

JUDGMENT OF AZU CRABBE J.A.

This is an appeal against a decision of Djabanor J. refusing an application for an order of certiorari to remove into the High Court for the purpose of quashing the proceedings and judgment of the Shama State Council dated 19 April 1958 and 3 May 1958, and also the decision of the Appeal Commissioner dated 3 March 1961.

This case has had a very chequered history in our courts, and the facts of the events which culminated into this appeal may be briefly stated: The appellant and the respondent are both members of the fishing community of Aboasi (also referred to as Aboadzie), a village in the Shama State in the Western Region of Ghana. In 1958 a dispute arose between the parties as to the headship of this fishing community, and as to the right to collect tolls from the fishermen who constituted that community. The appellant commenced an action in the High Court, Sekondi, for the determination of the dispute, but the respondent raised an objection to the jurisdiction of the High Court to entertain the action, since, as was contended, the issue in the case raised a question of headship. The respondent’s objection was upheld by Acolatse J. who observed that the case was “one for the state council for Shama to determine who had been lawfully appointed headman of the fishing community of Aboasi.” The appellant’s action was accordingly struck out. Following this exhortation by the learned judge the appellant caused a writ of summons to issue from the Shama State Council against the respondent in which he sought a declaration that he was the headman of the fishing community of Aboasi, and the proper person entitled to collect fishing tolls. After the state council had heard the parties and their witnesses it delivered a judgment on 3 May 1958 whereby it dismissed the appellant’s claim and declared the respondent the caretaker of Aboasi. It was emphasised in the judgment that the respondent did not seek to dispute that the appellant was the headman of the village. Thereupon the appellant appealed from this decision to the court of the Appeal Commissioner who, without giving the appellant the opportunity to be heard, dismissed the appeal on 3 March 1961. The dismissal of the appeal was preceded by a letter by the Government Agent, Sekondi, dated 16 July 1959, in which the appellant was informed that the Minister of

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Justice and Local Government had ruled that the subject-matter of his appeal was “not one of a constitutional nature as defined in the State Council Ordinance.” Consequently, the appellant in time filed an application in the High Court, Sekondi, for an order quashing the decision of the Shama State Council and the Appeal Commissioner, because, as he alleged in his affidavit in support of the application, so long as “these illegal orders and or decisions” remained on the records of the respective tribunals they would prejudice him in the exercise of his rights in respect of the affairs of the community and would further militate against his interest generally.

The main ground upon which the application before the judge was based was stated in these terms:

“That the subject-matter of the claim in the said suit was not a matter of constitutional nature, the said subject-matter being the headship of the fishing community of Aboasi in Shama and the right to collect fishing tolls, and therefore it is not within the jurisdiction as defined by the State Councils Ordinance.”

It is clear from the judgment of the learned judge of the court below that if he had been of the opinion that the State Council of Shama had purported to decide the matter as a constitutional matter, he would have granted the application. He thought that since Acolatse J. did not remit the case to the State Council, but that a fresh action was instituted by the appellant himself before the council, the council did not act in excess of jurisdiction, because it determined the issue before it as in an ordinary case and not as a constitutional matter. He said:

“In my view since the writ before the state council was for a declaration that the applicant was the proper headman of the village, and that this relief has nothing to do with a constitutional matter⎯the state council must be deemed, unless the contrary be proved, to have proceeded on the matter then laid before them in the writ, i.e. for a declaration that one of the parties was the accredited headman of the village⎯which claim was, by virtue of the authority cited, well within the jurisdiction of the said state council.”

In arriving at the conclusion that the state council had jurisdiction in this matter, the learned judge felt himself bound by the decision of the West African Court of Appeal in the consolidated cases of Kokro v. Enum; Kokro v. Tandoh (1953) 14 W.A.C.A. 313. The West African Court of Appeal in that case affirmed the decision of Ragnar Hyne J. delivered on 1 September 1952, that the Shama State Council had jurisdiction to adjudicate in disputes as to who should be declared

[p.417] of [1968] GLR 412 the properly appointed headman of the village of Aboasi, but deciding it not as a matter of a constitutional nature, but as the highest authority in the state in all matters relating to the welfare of the state. It seems to me that the West African Court of Appeal proceeded on the assumption that the state council was merely performing the former function of the paramount chief by confirming or rejecting that appointment. It must be mentioned that the decision of the state council in the Kokro case was set aside on another ground.

I do not wish to speculate as to the conclusion which the learned judge, Djabanor J., would have arrived at had he not found himself hamstrung by the Kokro case. It is indeed unfortunate that he should say that he was bound by a decision of the West African Court of Appeal in view of article 42 (4) of the now suspended Constitution of the First Republic of Ghana, which provided that neither the Supreme Court nor the High Court, was bound to follow the previous decisions of any court on questions of law. I have no desire to participate in the academic controversy raging about the true interpretation of this limb section 4 of article 42 of the 1960 Constitution (see (1964) 1 U.G.L.J. 52 and (1966) 3 U.G.L.J. 139); but I should have thought that when Ghana attained independence in 1957 and it became a sovereign State within the Commonwealth of Nations the newly created courts of this country became no longer bound by decisions of a colonial appeal court, which was not itself a final court. By the Constitution (Consequential Provisions) Act, 1960 (C.A. 8), the Ghana (Appeal to Privy Council) Order in Council, 1957 (L.N. 215), was revoked, and the last judicial link with any court outside the State of the Republic of Ghana was finally broken. By article 41 (1) of the Constitution, 1960, a Supreme Court and a High Court were created and invested with the judicial power of the State. I think it would be a tragedy if the soul of the colonial West African Court of Appeal, which was buried on 6 March 1957, were permitted to keep marching on and rule the courts of an independent Ghana from its grave. In my view the decisions of the West African Court of Appeal, although they are invariably followed, have no more than persuasive force in this country. There can be no doubt, and I think that this can be said in fairness to Djabanor J. that the facts of this case seem indistinguishable from the Kokro case, but in my judgment mere indistinguishability of facts is not a good ground for following a previous decision which is based upon fallacious reasoning: see Chancery Lane Safe Deposit and Offices Co., Ltd. v. Inland Revenue Commissioners [1966] A.C. 85, H.L.

This court will not regard as persuasive any decision of the West African Court of Appeal which it considers to have been wrongly

[p.418] of [1968] GLR 412 decided. The main question in this case is whether the Kokro case was rightly decided?

In this appeal it is common ground that a headman is not a chief as defined by the State Councils (Colony and Southern Togoland) Ordinance, 1952 (No. 8 of 1952). Dr. de Graft-Johnson referred to section 5 (1) of Ordinance No. 8 of 1952 and submitted that the only triable issue which state councils were empowered to try were constitutional matters and matters ancillary thereto. He submitted further that since a headman was not a chief within the definition of the Ordinance anything concerning his appointment was not a matter of a constitutional nature. He further contended that the Kokro case is not supported by anything in the provisions of the Native Administration (Colony) Ordinance of 1927 (Cap. 76, M’Carthy ed.), or the 1952 Ordinance. Dr. de Graft-Johnson finally submitted that the words “in all matters relating to the welfare of the State” used in the Kokro case (supra) at p. 314 would not give the state council authority to exercise judicial functions, because its judicial powers were specifically prescribed in the 1927 and 1952 Ordinances.

For the respondent, Mr. da Rocha submitted that a state council is not a creature of statute; a state council is an independent indigenous institution and that the statutes only took cognisance of the existing institutions. He therefore submitted, and I think I understood him rightly, that a state council had an aboriginal jurisdiction to determine disputes relating to the appointment and the dismissal of a headman, and that the omission to confer this jurisdiction in modern legislation affecting state councils does not destroy this aboriginal jurisdiction. It is an inherent jurisdiction, as it were. Mr. da Rocha contended that the reasoning of Ragnar Hyne J. in the Kokro case as recorded in the Judgment Book IV, Sekondi, 5 July-22 July 1957 at p. 20 is a proper approach to the problem.

What is that approach? The learned judge, Ragnar Hyne J., started by accepting a proposition that no inherent powers of a state council could be taken away except by express enactment, and that neither the Native Authority (Colony) Ordinance, 1944 (No. 21 of 1944), nor the State Councils (Colony and Southern Togoland) Ordinance, 1952 (No. 8 of 1952), divested the state council of its inherent power to inquire into matters relating to the administration and which was governed by native customary law. Ragnar Hyne J. continued his judgment as follows at pp. 22-23:

“In section 2 of Cap. 76 a State Council is defined as the highest native Authority within a State in all matters relating to the welfare and government of the state in accordance with native customary law and its constitution is as described in section 94 of the Ordinance which says that a State Council shall

[p.419] of [1968] GLR 412 be constituted by the Paramount Chief, Divisional Chiefs, Chiefs, Linguists, Headmen, Elders and Councillors who by native customary law form a State Council.

In Ordinance No. 21 of 1944 and 8 of 1952 State Council means ‘the highest Council within a State in which the administration of the State is vested by customary law.’ Under each of these Ordinances the State Council is required to make a declaration specifying who are the members of the Council⎯Presumably therefore, the constitution of a State Council as laid down by section 94 of Cap. 76 is continued.

Under section 24 of Cap. 76 provision was made whereby any dispute arising in relation to the appointment and dismissal of a headman should be enquired into and determined by a Divisional Chief’s Tribunal or the Paramount Chief’s Tribunal whose decision should be final. These Tribunals no longer exist, and the jurisdiction conferred on them by sections 48 and 49 of Cap. 76 is now exercised by native Courts.

These Native Courts however have no jurisdiction to hear and determine matters arising out of the appointment or dismissal of a headman and the special Tribunal which formerly existed cannot be resorted to for the settlement of such dispute.

As I see it there only remains the State Council to which parties can have recourse in such matters. But even so it is not the State Council that appoints a headman nor was it the Paramount Chief’s Tribunal or the Divisional Chief’s Tribunal that made the appointment formerly. The appointment of a Headman was the concern of the particular community in respect of which a headman was to be appointed. The function of the tribunal was when resorted to, merely to decide whether an appointment or dismissal as the case may be, was valid and in accordance with native customary law. If it were not, it would determine accordingly and take such decision as the circumstances required.

There was no appeal from such decision.

The appointment of a Headman required the approval of a Paramount Chief and presumably this requirement under native customary law still exists. The Paramount Chief in turn would no doubt report the appointment if approved by him to the State Council. But, as I have said, the Paramount Chief did not and does not appoint headmen.

It follows therefore that while the State Council can perform the functions of the old tribunal and can give decisions in disputes as to the appointment of a headman it cannot elect a headman for the village of Abuadzie …

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What the learned Judge did in his Judgment was to direct that it was for the Shama State Council to decide who was the headman of Abuadzie, and for the reasons I have given, since there was a dispute as to who should be headman, I agree that the Shama Council is the proper authority to investigate the matter, but not as a matter of a constitutional nature, but as the highest authority in the State in all matters relating to the welfare of the State . . .

As the appointment of a headman is, in my opinion, not a matter of a constitutional nature, and as, in my view also, State Councils must be held to have taken over the functions of Paramount and Divisional Chiefs’ Tribunals relating to disputes in connection with the appointment and dismissal of headmen, the decision of the State Council must be held to be final.

As such an appointment is not a matter of a constitutional nature, it follows that no appeal under section 11 of the State Council (Colony and Southern Togoland) Ordinance 1952 lies.”

The crux of the matter is (1) whether the description of the state council as “the highest Council within a State in which the administration of the State is vested by native customary law” implies jurisdiction to adjudicate upon all issues affecting the rights of parties subject to the customary law; (2) whether state Councils must be held to have taken over the functions of the old paramount and divisional chiefs’ tribunals relating to disputes in connection with the appointment and dismissal of a headman; and (3) whether on the special facts of this case the headman of the fishing community at Aboasi village is the type of headman contemplated by the Native Administration (Colony) Ordinance, 1927.

The words “relating to the welfare and government of the State in accordance with native customary law” which first appeared in the Native Administration (Colony) Ordinance, 1927 (Cap. 76, M’Carthy ed.), s. 2 have the same signification as the words used to describe state council under the Native Authority (Colony) Ordinance, 1944 (No. 21 of 1944), and the State Councils (Colony and Southern Togoland) Ordinance, 1952. These words do not appear in the Gold Coast Native Jurisdiction Ordinance, 1883 (No. 5 of 1883), which was the first enactment affecting aboriginal authorities in this country. This replaced the Native Jurisdiction Ordinance, 1878, which never became law. The stated object of the 1883 legislation as indicated in the long title was to “facilitate and regulate the exercise of certain powers and jurisdiction by Native Authorities”: see Sarbah’s Fanti National Constitution (1906) at pp. 128-129. This Ordinance makes no reference to state councils, but it defines a “head

[p.421] of [1968] GLR 412 chief” as a chief who is not subordinate in his jurisdiction to any other chief; and every head chief could, by virtue of section 5 (4), convene meetings of his chiefs, captains, headmen and other councillors of his stool “for the purpose of consultation on the affairs of his division or any part thereof, and for making bye-laws.” This assemblage of traditional leaders is in every respect similar to what many years later became known as state council. It must be noted that the functions at these meetings were purely consultative or deliberative, and making bye-laws for the welfare and good government of the area within the head chief’s jurisdiction. “Native tribunal” was also defined as a head chief, or the chief of a division, or village, sitting with the captains, headmen, and others, who by native customary law were the councillors, or assistants of such head chief, or chief. The Ordinance conferred in section 10 on the head chief and his councillors the power to “form native tribunals” having jurisdiction to try breaches of approved bye-laws, and to exercise both civil and criminal jurisdiction in certain specified matters. The civil jurisdiction was limited to personal suits in which the claim did not exceed in value seven ounces of gold or £25 sterling, and also to land held under native tenure and succession. It was declared by section 18 that the civil and criminal jurisdictions which the Ordinance sought to facilitate and regulate should “be exclusive of all other native jurisdictions,” and should not be exercised by any other native tribunal on any pretext whatsoever. The membership of the tribunals was composed of the traditional councillors, who wielded both political and judicial powers in the state. An appeal lay from the decisions of the tribunals to the court of the district commissioner.

Having regard to the objects of the Gold Coast Native Jurisdiction Ordinance, 1883, and section 18 thereof, I am inclined to agree with Mr. da Rocha, to this extent, that this first legislation concerning the aboriginal political institutions of this country left untouched the inherent aboriginal jurisdiction of the aboriginal head and his council; it only defined and clarified the extent of the aboriginal ruler’s jurisdiction in civil and criminal matters. This view seems supported by these observations of Griffith C.J. in Mutchi v. Annan (1907) Red. 211 at pp. 216-217:

“It must be borne in mind that the Native Courts which have been brought under this Ordinance are not King’s Courts. They are Native common law Courts existing from time immemorial; their Judges are not appointed by the King or by his representatives; their Court fees and fines go not to the Colonial revenue, but to the Chiefs and Councillors; their prisons are managed by themselves, and their process does not issue in the King’s name but in the name of their respective Chiefs. The Native

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Jurisdiction Ordinance merely regulates those of the Courts to which it applies; it does not abolish and re-establish them, but, taking them as they stand with their customary constitution and customary procedure, it merely cuts down some of the unlimited civil jurisdiction which they possessed, confers upon them certain criminal jurisdiction, and provides for their further regulation; but the Courts remain the Native common law Courts and are not the King’s Courts. So far it has not been disputed that they exist and retain their powers, although within the British Dominions. The reason that they do so exist is because they have been recognised by the Sovereign, not because they are King’s Courts; their survival within the British Dominions is due only to implied recognition by the Crown. In neither of the two Orders in Council is there any express reference to these Courts, there is only IMPLIED RECOGNITION, and their continued existence is due to this implied recognition.”

The chiefs at this time, and many years thereafter, claimed that judicial power was an essential attribute or an inherent function of chiefly office. It seems quite clear, however, that this judicial power was exercised only in the native tribunals, and not at a meeting of chiefs, which, as I have already said, was purely consultative or deliberative. Thus, in 1943, the Blackhall Committee said in its report of the Native Tribunals Committee of Enquiry at p. 5, para. 20:

“A number of these Chiefs hold the view (as one witness expressed it) that ‘a Chief without a Tribunal is like a car without petrol’, and that the loss of their judicial functions would impair their dignity, and lessen their authority.”

In spite of its defects the Gold Coast Native Administration Ordinance, 1883, remained the basis of the administration of justice in the native tribunals until 1927. In that year the Native Administration (Colony) Ordinance, Cap. 76 (M’Carthy ed.), was passed with the object of regulating and placing on a sound basis the powers and jurisdiction of the tribunals in their order of precedence and within their territorial limits with necessary powers for enforcing their judgments and verdicts. The civil and criminal jurisdiction of the tribunals were clearly stated in the provisions of the Ordinance. In this Ordinance a “paramount chief” was defined in the same terms as a “head chief” in the previous enactment, but was in addition a person “elected and installed as such in accordance with native customary law to administer a State.” “Headman” meant “any person chosen by the community of a village, and confirmed or approved by the paramount chief of the State wherein the village is situated in accordance with native customary law, and includes an

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Opanin, Onukpa, Hanua, Hafia, and Nokotoma.” A “State” is defined as “one of the territorial areas of the Colony under the administration of a Paramount Chief”; and a “State Council” was for the first time recognised and defined as “the highest Native Authority within the State in all matters relating to the welfare and government of the State in accordance with native customary law, and its constitution is as described in section 94.” A reference to section 94 reveals that the composition of a state council was practically the same as the membership of the paramount chief’s tribunal. The jurisdiction of a state council is stated in section 95 as follows:

“(1) A State Council shall have and may exercise under this Ordinance the jurisdiction which is in this Ordinance declared to be within its competence; and in the exercise of, or for the purposes of, such jurisdiction the State Council shall be guided, as near as may be, and subject to the provisions of any regulations, by the procedure followed in a Paramount Chief’s Tribunal. And, save as may with respect to certain particular cases otherwise by express enactment be provided, a State Council in the exercise of, or for the purposes of, its jurisdiction as aforesaid shall have powers corresponding to those of a Paramount Chief’s Tribunal.

(2) The like appeals shall lie from a State Council as lie from a Paramount Chief’s Tribunal.

(3) In connection with the jurisdiction exercised by a State Council under this Ordinance, reference in this or in any other Ordinance to Tribunals or to Native Tribunals shall, except where the context otherwise requires, be deemed to include a reference to State Councils.”

Under section 96 both the divisional chief’s tribunal and the paramount chief’s tribunal could transfer certain cases of special importance to the state council for trial.

In my view the 1927 Ordinance gave a state council concurrent jurisdiction with a paramount chief’s Tribunal in special cases, and said nothing to deprive the aboriginal rulers of their inherent power to adjudicate in disputes between their subjects; the Ordinance merely defined the judicial powers of the native tribunals, and in certain respects enlarged these powers. I think it can be said with some justification, as may be implied from Mr. da Rocha’s contention, that both the 1883 and 1927 Ordinances merely regulated the aboriginal institution and did not divest it of its inherent jurisdiction.

Under section 24 of the 1927 Ordinance any dispute concerning the appointment and the dismissal of a headman was to be inquired into by a divisional chief’s tribunal or by a paramount chief’s tribunal,

[p.424] of [1968] GLR 412 whose decision was final. It is important to note that decisions affecting a headman were not appealable to a state council, which by definition, as we have already noticed, was the highest authority in a state. The reason for this limitation on the headman’s right to appeal to the state council was his comparatively insignificant, or very low, status in the traditional hierarchy. One cardinal point is that the state council qua state council, did not adjudicate in disputes arising from the appointment or dismissal of a headman; adjudication was by the paramount or divisional chief’s tribunal. The state council was not a “tribunal” within the definition of section 2 of the Native Administration (Colony) Ordinance: see Ababio v. Ackumpong (1940), 6 W.A.C.A. 173 at p. 176. Its jurisdiction was what had been declared in the Ordinance “to be within its competence.” A careful study of the Ordinance reveals that there were two categories of cases in which a state council was vested with jurisdiction: (a) Inquiry into (i) opposed election and deposition of a paramount chief; (ii) opposed election and deposition of a divisional chief. In each case the decision was subject to the approval of the Governor; (b) trial of the offences of (i) undermining and usurping the authority and position of a paramount or divisional chief, (ii) corruption by a paramount or divisional chief in respect of installation or deposition of a divisional chief; but, be it noted, the headman who committed a similar offence was tried by a tribunal, (iii) aiding and abetting any of the offences in (i) and (ii). It is interesting to note here also that by the provisions of section 31 the offence of usurping the position of a headman was triable only by a tribunal; (iv) the offence of transferring or withdrawing allegiance; (v) swearing a personal oath or fetish oath against a paramount chief, divisional chief or chief; (vi) the offence of improperly detaining stool property, and ignoring an order of the state council to deliver it up; (vii) questions as to whether any property is or is not a stool property; (viii) cases transferred to it by reason of their special importance by either the paramount chief’s tribunal or the divisional chief’s tribunal.

On reading of the various sections under Parts 2, 3, 4, 5, 6 and 10 it becomes plain that the intention of the legislature in the Native Administration (Colony) Ordinance was to vest the state council with jurisdiction in disputes of a political and constitutional nature only between paramount chiefs, divisional chiefs and chiefs. Thus in section 40 of the Ordinance it is provided as follows:

“If any controversy or dispute of a political or constitutional character shall arise between a Paramount Chief and a Divisional Chief or Chief subordinate to him, or between a Divisional Chief and a Chief subordinate to him, the matters in issue shall be heard and determined by the State Council or before the

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Paramount Chief’s Tribunal; provided that the decision of the State Council or Paramount Chief’s Tribunal shall be subject to an appeal to the Governor whose decision shall be final.”

The only ordinary civil cases that would be tried by the state council were those transferred to it under section 96; and an intention to confer any other jurisdiction was expressed by the use of the words “the State Council, on which the necessary jurisdiction is hereby conferred.” Jurisdiction to adjudicate in disputes concerning a headman was reserved for either the divisional chief’s tribunal or the paramount chief’s tribunal; so also jurisdiction in ordinary civil and criminal matters was reserved for the paramount chief’s tribunal or the divisional chief’s tribunal or the chief’s tribunal.

It seems to me, therefore, that it is beyond the possibility of any argument that the state council was vested by the Native Administration (Colony) Ordinance with jurisdiction to interfere in matters relating to the headship of a village community. These were matters within the exclusive jurisdiction of the paramount chief, who had a discretion whether to confirm or approve the appointment of a headman or to dismiss him.

In my view the fallacy in Ragnar Hyne J.’s argument that the state councils took over the functions of the old paramount and divisional chiefs’ tribunals in 1944 and therefore could give decisions in matters relating to disputes in connection with the appointment and dismissal of a headman is, with very great respect, clearly revealed by a careful study of the course of events following the enactment of the 1927 Ordinance.

Soon a reform movement began, and in 1942 the government appointed the Blackhall Committee to consider the working and such reforms in the administration of justice in native tribunals as would seem necessary or desirable. The main factor that motivated the reform movement was the chief’s claim to their inherent power to exercise judicial functions. In its report the Blackhall Committee exposes the corruption and the unsatisfactory conditions under which justice was administered in the native tribunals. The committee condemned the illiterate hereditary bench, which was always unwieldy in members, and it said at p. 4, para. 18 in its report: “The conduct of these unwieldy assemblies is not always a model of judicial decorum, for some members stroll in and out of the Court during the hearing while others quietly doze until the end of the case, when they obligingly concur with their colleagues.” The tribunal members shared court fees and fines, and this resulted in unnecessary adjournments and heavy fines. The two fundamental

[p.426] of [1968] GLR 412 recommendations made by the committee were: (1) the Governor-in-Council should appoint members of tribunals, after consulting state councils, in the form of a panel from whom a few should sit together for a given period; (2) that tribunals should be established for areas “not necessarily co-terminus with tribal, divisional or village boundaries.” As regards the presidency of the native tribunal the committee discovered a strong resentment to the prevailing system whereby a chief was ex-officio president, and the feeling was that they should cease to sit on tribunals. The committee accordingly made this suggestion at p. 5, para. 19: “If they are relieved of this duty they will be able to concentrate upon their administrative duties which are of growing importance. They will also avoid incurring the enmity of those they convict or against whom they give judgment.” The committee therefore recommended that as a general rule the paramount chief should not be a member of a tribunal. The appointment of a president should be by the state council, subject to the approval of the Governor-In-Council.

The result of the Blackhall Report (1943) was the enactment of the Native Authority (Colony) Ordinance, 1944 (No. 21 of 1944), and the Native Courts (Colony) Ordinance, 1944 (No. 22 of 1944). The reason for these two enactments was stated in the memorandum to the Bills as set out at pp. 375-376 of the Gold Coast Gazette for the first half-year 1944 (No. 43 of 22 June 1944) as follows:

“One very important fact was disclosed in the enquiry of the Committee, namely, that it was the unanimous desire of Paramount Chiefs and to a certain extent of Divisional Chiefs to be dissociated from most of the judicial functions which they now perform under the present Native Administration Ordinance. This is recorded in paragraphs 19 and 20 of the Report. It will be seen therefore that it would not have been convenient to implement the Committee’s recommendations by amendments to the Native Administration Ordinance as, in it, the administrative and judicial functions of Chiefs are too closely linked together …

Just as it was found to be necessary to produce legislation to govern the administration of justice by Native Courts so it has become necessary to produce a new Ordinance more effectively to secure to Native Authorities their due place in the administration of the Colony and to prescribe their powers and duties, and to assign certain functions to Provincial Councils, and for purposes connected therewith.”

[p.427] of [1968] GLR 412 It thus becomes clear that the object of Ordinance No. 22 of 1944 was to give effect to the wishes of the paramount chiefs and divisional chiefs to relieve them of their judicial functions, and the object of Ordinance No. 21 of 1944 was “more effectively to secure to Native Authorities their due place in the administration of the Colony and to prescribe their powers and duties …”

Under section 3 of Ordinance No. 21 of 1944 the Governor was vested with the power to create a native authority for a specified area and declare the status of such native authority, and who should constitute the authority. The Governor was also empowered to determine who should preside over the proceedings of a native authority and its quorum. The duties and powers of native authorities are stated in section 7 of the Ordinance as follows:

“7. (1) It shall be the duty of every Native Authority to perform the obligations by this Ordinance imposed and generally to maintain peace, order and good government within the area of its authority, and for the fulfilment of this duty a Native Authority shall have the exercise over persons within such area the powers conferred by this Ordinance subject to any limitations imposed by Order under section 4, and such other powers as may be vested in it by virtue of any other Ordinance, and subject to any limitations imposed by Order under section 4 all such persons shall be subject to the authority of the Native Authority.

(2) Every Native Authority shall have all the powers and duties conferred and imposed by native customary law immediately prior to the commencement of this Ordinance upon any native authority within the area of authority of such Native Authority.”

The exercise of these duties and powers was subject to limitation which the Governor was empowered to impose. This provision was contained in section 4 which stated:

“4. When establishing a Native Authority or at any time thereafter, the Governor may by Order direct⎯ (a) that a Native Authority shall exercise only such of the powers conferred by this Ordinance as he may specify;

(b) that none or only certain of the powers conferred by this Ordinance shall be exercised within any area specified by him;

(c) that none or only certain of the powers conferred by this Ordinance shall be exercised over any persons or class of persons specified by him; and while

[p.428] of [1968] GLR 412 any such Order is in force the Native Authority concerned shall exercise the powers conferred by this Ordinance subject to the limitations imposed by the Order.”

The definition of “state” remained the same as before, and “state council” was defined as “the highest Council within a State in which the administration of the State is vested by native customary law.” Under section 24 a state council could make a declaration of its membership to the Governor, and it does not appear that the intention of the legislature at this time was to restrict membership to only traditional members. The state council could as necessity arose vary its declaration. The judicial functions of the state council was now expressly limited to constitutional matters, and appeals from its decision lay to the Provincial Commissioner in his administrative capacity. A “matter of a constitutional nature” was defined in section 2 to mean:

“a question or matter relating to⎯ (a) the election, installation, deposition, or abdication of any Chief, or the right of any person to take part in any such election, installation or deposition; or (b) the recovery or delivery of Stool property in connection with any such election, installation, deposition, or abdication; or (c) political or constitutional relations under native customary law between Chiefs.”

Other judicial powers within the state were to be exercised by the native courts established under the Native Courts (Colony) Ordinance, 1944. The only power which the state councils continued to enjoy by virtue of native customary law was the compelling of attendance of witnesses and parties for the purposes of the inquiries held by them. By section 76 of Ordinance No. 21 of 1944, the Native Administration (Colony) Ordinance, 1927 (Cap. 76 M’Carthy ed.), was repealed, and all rights and liabilities of any native authority established under that Ordinance were assumed by the new native authority established in the same area.

The Native Courts (Colony) Ordinance, 1944 (No. 22 of 1944), was passed simultaneously with the Native Authority (Colony) Ordinance, 1944. By section 3 of the Native Courts (Colony) Ordinance, 1944, the Governor-in-Council could constitute native courts (both courts of first instance and appellate native courts), and he appointed persons who were to be ex-officio or otherwise members of the native courts. The appointments were however made only

[p.429] of [1968] GLR 412 on the recommendation of the native authority exercising authority within the area of the jurisdiction of the native court concerned. The presidents of the native courts were appointed by the native authority from the members of the court as constituted by the Governor. The paramount chief was no longer the automatic president of the court. Section 6 (1) prohibited persons other than those appointed by the Governor from holding court proceedings, and section 6 (2) states:

“6. (2) Any person not being appointed under section 4 who shall hold himself forth as having or shall falsely pretend or claim to have, any authority to take part in any proceedings of a Native Court shall be guilty of an offence and on summary conviction thereof or on conviction thereof by a grade A Native Court shall be liable to a fine of twenty-five pounds or to imprisonment for three months or to both.”

The full jurisdiction of every native court was set out in the order of the Governor-in-Council establishing it in all cases in which the parties were persons subject to the jurisdiction of the native courts. For the purpose of exercising this jurisdiction different grades of courts were created and designated A, B, C, and D. It was provided by section 14 (3) that all civil causes other than land causes were to be tried and determined by a native court having jurisdiction over the area in which the defendant resided at the time when the cause of action arose. A Land Court was created in the Supreme Court to deal with land causes. It seems to me that section 71, which is the last section in the Ordinance, clears any doubt about the fate of the old tribunals. The section states:

“71. Where in any Ordinance reference is made to a Native Tribunal under the provisions of the Native Administrative (Colony) Ordinance such reference shall be deemed to be a reference to a Native Court constituted under the provisions of this Ordinance, and any reference to a Paramount Chief’s Tribunal, a Divisional Chief’s Tribunal or a Chief’s Tribunal under the Native Administration (Colony) Ordinance shall be deemed to be a reference to a Native Court of a corresponding grade constituted under the provisions of this Ordinance.”

In the First and Second Schedules to the Ordinance the limits of jurisdiction and power of the different grades of the native courts are set out. Reading together sections 4, 6, 13 and 71 it becomes plain beyond argument, in my judgment, that there was no longer in the Colony any body which could constitute itself into a tribunal

[p.430] of [1968] GLR 412 to administer native customary law in any manner, except in accordance with the provisions of the Native Courts (Colony) Ordinance 1944. In the Native Authority (Colony) Ordinance, 1944, “Native Court” was defined as “a Court established under the Native Courts (Colony) Ordinance, 1944,” It seems, therefore, that the state council could not from 1944 onward legally arrogate to itself the functions of the old paramount and divisional chiefs’ tribunals. Unless it was otherwise provided by statute, it sounds really illogical to say that the state council could after 1944 assume jurisdiction over disputes relating to headship, when before that year such disputes were specifically excluded from its jurisdiction. Moreover I think the fallacy in the argument that the state council took over the functions of the old tribunals becomes more patent now that we know from the memorandum of the draft bills to the Ordinances Nos. 21 and 22 that it was the definite intention of the legislature to give effect to the wishes of the chiefs by dissociating them from most of their judicial functions which they formerly exercised in the native tribunals. Any conclusion, therefore, based upon an inference that the state council assumed the adjudicating functions of the old tribunals, could, in my judgment, be not only at variance with the intention of the legislature, but would, with the greatest respect, be absurd. For how could the Ordinance be interpreted to mean that the chiefs had assumed the responsibility of adjudicating disputes between their subjects after that Ordinance had been passed, at their own request, to relieve them of that responsibility? As is stated in Maxwell on Interpretation of Statutes (11th ed.), p. 1, “the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded ‘according to the intent of them that made it’.”

I may here pause and consider briefly the position of the aboriginal institution in the evolution of our judicial systems. The state council had lost its true traditional character; it had become a creature of statute, and its president was not necessarily the paramount chief. Its jurisdiction was prescribed by Ordinance. The chiefs’ tribunals had been abolished, and new native courts created by the Governor-in-Council. The jurisdictions of these native courts were prescribed by the Governor’s order creating them, and members were appointed by the Governor. Qualification to serve on the native court was no longer dependent on traditional status. By section 6 of the Native Courts (Colony) Ordinance, 1944, any person who falsely pretended or claimed to have any authority to hold a court committed an offence. It seems to me, therefore, that as from 1944 there was no elbow room in which any chief could exercise an inherent judicial power. This, I think, is made clear

[p.431] of [1968] GLR 412 by the judgment of Korsah J. (as he then was) in Akrobotu v. Normeshie (1953) 14 W.A.C.A. 290 at p. 291 where he said:

“Prior to the coming into operation of the Native Courts (Colony) Ordinance, 1944, the Native Tribunals of the Chiefs exercised what was acknowledged by the Native Administration Ordinance, 1927, to be the inherent jurisdiction of the Chiefs, merely regulated by that Ordinance. But now by section 3 of the Native Courts (Colony) Ordinance, 1944, it is provided that: ⎯ ‘The Governor in Council may by order provide for the constitution of Native Courts which shall exercise jurisdiction in accordance with this Ordinance within such area as may be defined in the order’ etc . . .

It follows that jurisdiction of Native Courts now having been conferred by Statute, the burden of proof, whether a particular Native Court can exercise jurisdiction in matter before it, is upon the party who asserts the jurisdiction.”

In the Native Authority Ordinance a clear distinction was made between the functions of the native authorities and the state council, but this distinction was practically obscured by the identical membership of the two councils. The defects in this system, particularly the native authorities, were in 1949 dealt with in the Report of the Committee of Constitutional Reform. In this report a remedy was suggested for “the defects in the existing system of local government, “ and in paragraph 83 thereof it is stated:

“As an indication of the new life before them, the new councils should no longer be called `Native Authorities’ ⎯ a term which has caused much open and covered resentment in the past. They should be called ‘Local Authorities’ which is what they have always been. The separate and distinct councils which will remain and which will retain the power to declare native customary laws, and to settle constitutional disputes connected with stools, should henceforth be all called ‘State Councils’ throughout the Colony, Ashanti and the Northern Territories.”

It is important to emphasise the functions which the committee suggested ought to be assigned to state councils.

The committee further considered the relationship between state councils and local authorities and states in its report as follows:

“174. Before the Native Authority and Native Courts Ordinances came into force, the traditional authorities were engaged in:

(a) Customary and constitutional functions.

[p.432] of [1968] GLR 412

(b) Political matters.

(c) Local government functions and general administration.

(d) Judicial functions.

175. In the past, owing to the very narrow range of services required, this system worked well, and the traditional authorities were able to maintain their sovereignty . . .

178. The position created by the Native Authority Ordinances and Native Courts Ordinances is that there are now three separate functional bodies: ⎯

(i) The State Councils, dealing with functions (a) and (b) as listed above;

(ii) Native Authorities, carrying out local government functions; and (iii) Native Courts.

The personnel of the three bodies is almost always identical, and in consequence the division of functions is very much obscured.

179. We recommend therefore that a clear distinction should be made between the functions of State Councils and the new local authorities, and that all local government functions should be assigned to the local authorities . . .

182. State Councils should have the power to make declarations having the force of law on all customary and constitutional matters and on subjects affecting the social and cultural life of the people, such as marriage laws, inheritance, etc., subject always to proper control. State Councils should also be clothed with traditional power in customary law and the Oath should be preserved to them.”

The recommendations of the committee on local authorities and state councils were generally accepted by the government and as a result the Local Government Ordinance, 1951 (No. 29 of 1951), i.e. Cap. 64 (1951 Rev.) was passed. This became law on 12 January 1952, and it repealed the Native Authority (Colony) Ordinance, 1944, except its provisions relating to state councils which were to remain in force until repealed by another Ordinance. All local government functions and general administration which were formerly performed by the native authorities were transferred to the local government councils. A radical change was made in the membership of the councils which was to include largely non-traditional members.

The separation of the state council from the local government councils was effected by the State Councils (Colony and Southern

[p.433] of [1968] GLR 412

Togoland) Ordinance, 1952 (No. 8 of 1952). This was the Ordinance which was interpreted in the Kokro case, and it was still in force in 1958 when the Shama State Council purported to adjudicate in this case. The Ordinance dealt exclusively with state councils. The definitions of “state” and “state council” in this Ordinance were, in relation to the Colony, the same as they were in the Native Authority (Colony) Ordinance of 1944. Neither was any change effected in the membership of the state council, and its jurisdiction to adjudicate continued to be restricted to constitutional matters, and was more elaborately defined in section 2 as follows:

“2. In this Ordinance, unless the context otherwise requires⎯ . . . ‘matter of a constitutional nature’ means a cause, matter, question or dispute relating to⎯ (a) the nomination, election or installation of any person as a Chief or the claim of any person to be elected or installed as a Chief; or (b) the deposition or abdication of any Chief; or (c) the right of any person to take part in the election or installation of any person as a Chief or in the deposition of any Chief; or (d) the recovery or delivery of Stool property in connection with any such election, installation, deposition or abdication; or

(e) political or constitutional relations under customary law between Chiefs.”

“Native Court” still meant, in relation to the Colony, “a Native Court established under the provisions of the Native Courts (Colony) Ordinance, 1944,” and, therefore, the provision of section 6 of that Ordinance which forbade the holding of unauthorised courts still applied.

An interpretation or a definition clause is an aid to the interpretation of the statute in which it occurs, and should be taken as declaring what may be comprehended within the term where the subject-matter and circumstances require that it should be so comprehended. Where the word defined is declared to “mean,” the meaning ascribed to it by the definition is taken to be explanatory and therefore prima facie restrictive: Craies on Statute Law (6th ed.) at p. 212. I am unable to discover anything in the State Councils (Colony and Southern Togoland) Ordinance, 1952, which extends the meaning of the expression “matter of a constitutional nature” beyond the meaning given to that term by section 2 of the Ordinance.

With all due deference to Ragnar Hyne J., I think that he failed to give any consideration to the historical background of Ordinance

[p.434] of [1968] GLR 412

No. 21 of 1944 and this no doubt led him to make the erroneous statement that “Under each of these Ordinances the State Council is required to make a declaration specifying who are the members of the Council⎯Presumably therefore, the constitution of a State Council as laid down by section 94 of Cap. 76 is continued.” Under section 94 (1) of the Native Administration (Colony) Ordinance, Cap. 76 (M’Carthy ed.), the persons “who by native customary law form the State Council” were specified. The paramount chief was by virtue of subsection (2) the president of the state council and in his absence the state council was to be presided over “by the person authorised by native customary law in that behalf.” But it does not appear from the provisions of section 24 of the Native Authority (Colony) Ordinance, 1944, and section 3 of the Ordinance No. 8 of 1952 that the intention of the legislature was that the traditional membership of the state council should necessarily continue. The state council could now vary its membership, and under the 1952 legislation it was free to determine the person who should preside over its deliberations. Such person need not necessarily be a chief. The declaration of the membership of a state council must be with the consent of at least two-thirds of the members of such state council; and unless such a declaration was made the state council could not exercise any of its statutory powers.

With respect, I do not think, as Ragnar Hyne J. observed, that the constitution of a state council as laid down by section 94 of Cap. 76 was intended to continue under the Native Authority (Colony) Ordinance, 1944, and the State Councils (Colony and Southern Togoland) Ordinance, 1952; there is no provision in these later Ordinances similar to section 95 of Cap. 76. Under the Native Authority (Colony) Ordinance, 1944, and the State Councils (Colony and Southern Togoland) Ordinance, 1952, the state councils had no jurisdiction to determine any dispute, except disputes in constitutional matters as defined in section 2.

The declared objects of the State Councils (Colony and Southern Togoland) Ordinance was “to prescribe the powers and duties” of state councils in the Colony and Southern Togoland, and I do not think that by 1952 it was open to anyone to argue that the state council could exercise any other powers in addition to those conferred by this Ordinance. The rule of jurisdiction, stated as far back as 1667 in the case of Peacock v. Bell and Kendal (1667) 1 Wms. Saund. at p. 74, is that “nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specifically appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged.” I am unable to concur in the view stated in the judgment

[p.435] of [1968] GLR 412 of Apaloo J.A. that express words are necessary to take away the jurisdiction of the state council. The state council or the native court, in my opinion, is an inferior tribunal, and is not presumed to have any jurisdiction but that which is expressly provided: per Coussey J.A. in Timitimi v. Amabebe (1953) 14 W.A.C.A. 374 at p. 376. The case of Ahenkora v. Ofe (1957) 3 W.A.L.R., 145, C.A. decided definitely that a state council sitting in its judicial capacity is a “court of inferior jurisdiction,” and in the course of his judgment van Lare Ag.C.J. made this significant observation at p. 158 that: “State Councils are themselves a creation of statute and exercise only powers conferred upon them by statute.” I am satisfied that in interpreting the State Councils (Colony and Southern Togoland) Ordinance, 1952, the state council cannot be regarded as a superior court in any shape or form. In my view, if the submission that the state council had an inherent jurisdiction in 1958 to adjudicate in an ordinary suit were to be upheld then the whole object and policy of the legislative reforms from 1944 would have been defeated. “It is not the duty of a Court of law,” said Selwyn L.J. in In re London Marine Insurance Association; Smith’s Case (1869) L.R. 4 Ch.App. 611 at p. 614, “to be astute to find out ways in which the object of an Act of the Legislature may be defeated.”

That this would be contrary to the intention of the legislature is, in my opinion, made manifest by the provisions of section 10 of the State Councils (Colony and Southern Togoland) Ordinance, 1952, which referred only to the mode in which any judgment or order of the state council could be enforced in a matter of a constitutional nature. There was no provision in the Ordinance that prescribed any method by which a judgment or order of a state council in a case other than a case of a constitutional nature, could be executed. But by section 38 of the Native Courts (Colony) Ordinance, 1944, it was provided that:

“38. Any judgment or order given or made by a Native Court in a civil cause or matter may be enforced by seizure and sale of the property of the person condemned therein, or by such other methods of enforcing judgments and orders as may be prescribed by Regulations.”

The provisions of section 38 did not apply to a judgment or order of the state council. It would seem to follow, therefore, that a judgment of the state council in a case other than a case of a constitutional character, as defined, would be a brutum fulmen.

I think that the position of traditional institutions in the modern judicial system of Ghana is correctly summed-up in the following

[p.436] of [1968] GLR 412 words of Professor W. B. Harvey in his new book Law and Social Change in Ghana (1966) at p. 200:

“The several Native Courts ordinances firmly rejected the traditional claims of the chiefs to judicial powers as inherent attributes of their offices. Whereas the earlier pattern had involved the recognition of courts existing under the indigenous regimes, the reform ordinances provided that Native Courts for prescribed areas were to be established by order of the Governor in Council. Appointments of persons as members of a court were to be made similarly. The Colony Ordinance recognized that the Governor in Council might appoint persons who would be members of a court by virtue of their holding certain traditional offices. This does not, however, obscure the fact that authority to serve derived basically from the Government. The only gesture to the traditional authorities formally incorporated in the Colony Ordinance was the requirement that appointments should not be made until the Governor in Council had considered any recommendations offered by the Native Authority exercising authority within the area of jurisdiction of the Native Court. The Native Authority was also authorized to designate the president of the Court or a president for each division from among the Governor’s appointees.”

It seems to me, with respect, that by May 1958 the state council had no legal authority to adjudicate upon a dispute which was not of a constitutional nature, and it could not assume jurisdiction to do so based on the fact of its being “the highest Native Authority within the State in all matters relating to the welfare of the State” or “the highest council within a State in which the administration of the State is vested by customary law.” In my judgment, the phrase “in all matters relating to the welfare and government of the State,” which was first used in the Native Administration (Colony) Ordinance to describe the state council, referred only to executive and administrative functions, which were transferred to the local government councils established under the Local Government Ordinance, 1951. The judicial functions of the state were conferred on the native courts established under the Native Courts (Colony) Ordinance, 1944. Nowhere in his judgment did Ragnar Hyne J., appear to have given any consideration to the provisions of the Native Courts (Colony) Ordinance, 1944. Had he done so, he would have noticed that under section 6 no person other than a person appointed by the Governor-in-Council could hold a court to administer the customary law; and further, he would have noticed that under

[p.437] of [1968] GLR 412 section 14 (3) of that Ordinance all civil causes other than land causes were to be tried and determined by a native court within the jurisdiction in which the defendant lived. Furthermore, he would have noticed in section 31 of the State Councils (Colony and Southern Togoland) Ordinance, 1952, that the power to hold customary arbitration was the only extra-judicial act that was preserved for the chief. Consequently I hold, with the greatest respect to both Ragnar Hyne J. and the West African Court of Appeal, that the Kokro case was wrongly decided.

There is, I believe, one final important point which I think has been overlooked by counsel for the respondent. And that point is: “Is the headman of the fishing community of Aboasi the type of headman contemplated by the Native Administration (Colony) Ordinance, 1927?” In other words, has he any locus standi in the political and constitutional set-up of the Shama State? In Fante land the aboriginal headman, so to speak, would be called either the Odzikuro or penin which is equivalent to opanin in Twi as appears in the statutory definition. In Fanti National Constitution written in 1906 Sarbah describes the origins of the village and the position of its headman. He states at pp. 3-7:

“Most of the towns scattered over the whole of Guinea have grown from villages originally founded and occupied by single family groups. As each family gets larger and the households increase in number, the village community grows, and its general affairs are guided and controlled by the patriarch of the family, who, now headman of the village, is assisted by a council composed of the eldest members of each family group or household, and other fit and proper persons, who are generally old men.

… The founder of the village or his successor is now called Odzikuro (owner of the village), who, in looking after the village affairs, is assisted by the Penin of the new settlers, and thus arises the village council. The different family groups become the village community, and in all public matters the village council, composed of the Penin of each important households, acts, the Odzikuro being president of such council . . .

Land acquired by the founder and the settlers together is held by the village community, and becomes attached to the stool of the person for the time being head of the village. All the inhabitants of the village have each of them a proportionate share in such lands as common property, without any possession or title to distinct portions. From the moment a tribal community settles down finally upon a definite tract of land, the land begins to be the basis of society in place of kinship. The Odzikuro,

[p.438] of [1968] GLR 412 with the village council, has the control of such land, but each person has the right to cultivate any portion of it, and having done so or settled on it, he may not be removed by any single individual unless the council so decrees.”

Sarbah further states at pp. 7-8:

“It will be found that the headman of the village community is generally a member of the family which founded the village, and has succeeded to that post by virtue of his right as head of the founder’s family; but inasmuch as he rules over the whole community, the inhabitants, through the village council, have the right to reject any one proposed as headman if deemed unsuitable for the post, and, passing over the original family, can select a fit and proper person from another family whose connection with the village is ancient.

And so all things being equal, preference is given to families according to priority of settlement.”

I do not think that anyone can doubt that the headman described by Sarbah is the aboriginal head defined as such in the 1927 Ordinance. Now, granted that the composition of the state council in 1927 continued to be the same after 1944, can it be argued on the special facts of this case that the appellant in this appeal is an aboriginal or the traditional headman as described by Sarbah? I think not. The appellant’s title to headship is founded upon exhibit A/KE. 1, and he made this clear in the affidavit in support of his application in the High Court. In paragraph (3) of the affidavit he alleged his root of title as follows:

“That my headmanship derives from the fact that my predecessors were the leaders of a community of fishermen who settled at Aboasi for the purpose of fishing and on land granted by the Odikro of Jomo the land owner as evidenced by an agreement made between the said Odikro of Jomo and the immediate predecessors and another person. I exhibit herewith a copy of the said agreement marked A (same as KE.1).”

The agreement which is dated 5 March 1917 is, in my judgment, a licence granted by the Odikro of Jomo to the fishing community of Aboasi to fish in the territorial waters of Shama (this includes Jomo), and to dry their fishing nets upon the foreshore and also “to beach their canoes and land their fish upon any portion of the beach within the said stool of Shama.” It was made plain that the agreement did not convey any right to minerals or precious stones nor the right to farm upon the land. There can be no doubt, therefore, that the fishing community of Aboasi to which both parties in

[p.439] of [1968] GLR 412 this appeal belong have no proprietary interest whatsoever in any piece of land in the village called Aboasi. They are strangers and licensees on that part of a land which they occupy within the Shama State. It seems to me that a distinction must be drawn between the headman of the fishing community of Aboasi village and the headman of Aboasi village, who is the odikro or penin of the village. The former has no constitutional status, and is therefore not entitled to a seat on the state council, whilst the latter is the aboriginal head of the entire people of the village, such as the headman contemplated by both the Native Jurisdiction (Colony) Ordinance and the Native Administration (Colony) Ordinance. Surely, it is the latter type of headman, who has a stool, that can have constitutional rights and obligations in the aboriginal state and could take his place at the state council. In the circumstances, it seems to me that even if it is conceded that the state council had since 1944 a residuary jurisdiction to adjudicate in “stool disputes and other matters of a constitutional nature,” it is clear that it had no jurisdiction to entertain the suit in this case, which raises only a pure question of fact. In this case the right of the appellant as headman of the fishing Community of Aboasi village is not disputed by the respondent, and the sole issue is whether the appellant, a person who has no constitutional status in the village, has in fact been removed or suspended. I cannot see how on the facts of this case any state council can turn this pure issue of fact into a matter of customary law and a constitutional issue so as to assume jurisdiction, which, in my judgment, it does not possess in any case.

At the time when the present case came to be decided on 3 May 1958, the Native Courts (Colony) Ordinance, 1944, was still in force. The action was commenced by the issue of a writ of summons, and the claim was for a declaration of a right vested in the plaintiff. Before 1944 such a claim, if the appellant was a traditional headman could have been heard either in the divisional chief’s tribunal or the paramount chief’s tribunal, each of which was composed of traditional members. As I have said earlier, it is common ground in this appeal that the dispute between the parties was not of a constitutional nature and therefore, in my view, the jurisdiction of the state council was ousted. The only judicial organs within the body politic that could have determined this dispute therefore, would be either the native courts or the Supreme Court. Looking through the Second Schedule to the Native Courts (Colony) Ordinance, 1944, it is clear that none of the different grades of native courts had jurisdiction to entertain the plaintiff’s action. The plaintiff’s claim was in substance one for a declaration of right, and it follows therefore that the only court that could entertain his claim

[p.440] of [1968] GLR 412 was the Divisional Court, Sekondi, which, by virtue of section 15 of the Courts Ordinance, Cap. 4 (1951 Rev.), had jurisdiction to make a declaratory judgment or order, subject only to the limitations prescribed under sections 18 and 88 of the Ordinance. These limitations could not apply to this case, because it is agreed (1) that the claim was not “properly cognisable” by a native court, and (2) that it was not of a constitutional nature. Section 88 particularly would be no obstacle to the High Court exercising jurisdiction, because the headman of Aboasi fishing community is not a “chief” within the meaning of the Courts Ordinance or the State Councils (Colony and Southern Togoland) Ordinance, 1952; and moreover, being a stranger and licensee, he would have no place whatsoever on the Shama State Council. In short, he has no traditional status. Under section 89 of the Courts Ordinance the Divisional Court could, during the hearing, refer any question of native law and custom which might arise to a native court within the area for determination, and the Divisional Court would be free either to accept or reject the report of the native court: see Re Estate of Tamakloe; Tamakloe v. Tamakloe, Suit No. 78/44, unreported; Sackeyfio v. Tagoe (1945)11 W.A.C.A. 73; Jones-Nelson v. Ocansey, W.A.C.A., 11 March 1950, unreported. Or, alternatively, the Divisional Court could invoke the provisions of section 87 (2) of the Courts Ordinance. It must not be forgotten, however, that the Divisional Court had concurrent jurisdiction with the native courts in all matters cognisable by a native court and it was only restrained from exercising the jurisdiction it possessed, where there was a native court competent to entertain that suit. Thus in Richardson v. Eshun (1940) 6 W.A.C.A. 141, it was held that a land suit based upon customary law was not one which was properly cognisable by a native court, because it involved complicated measurements and interpretation of plans and other documents⎯questions which were quite unsuitable for decision by a native tribunal. The appeal court therefore made a “strong recommendation” that the case be transferred to the Divisional Court for trial.

The ultimate decision in this case depends, in my view, upon the true construction of the various enactments affecting the judicial powers of the aboriginal rulers. I have, therefore, endeavoured in this judgment to examine fully the history of the relevant Ordinances in order to discover the “framework of circumstances” in which the State Councils (Colony and Southern Togoland) Ordinance, 1952, was passed, and the defect which the legislature sought to correct. For, as Lindley M.R. said in Re Mayfair Property Co.; Bartlett v. Mayfair Property Co. [1898] 2 Ch. 28 at p. 35, C.A.:

[p.441] of [1968] GLR 412

“In order properly to interpret any statute it is as necessary now as it was when Lord Coke reported Heydon’s Case ((1584) 3 Rep. 7a) to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief.”

In Salkeld v. Johnson (1848) 2 Ex. 256 at p. 272, Pollock C. B. also said this on the construction of statutes:

“These questions depend upon the construction of the act of Parliament, which, unfortunately, has been so penned as to give rise to a very remarkable difference of opinion amongst the judges …

We propose to construe the act of Parliament, according to the legal rules for the interpretation of statutes, principally by the words of the statute itself, which we are to read in their ordinary sense, and only modify or alter so far as it may be necessary to avoid some manifest absurdity or incongruity, but no further. It is proper also to consider the state of the law which it proposes or purports to alter, the mischiefs which existed, and which it was intended to remedy, and the nature of the remedy provided, and to look at the statutes in pari materia as a means of explaining this statute. These are the proper modes of ascertaining the intention of the legislature.. .”

Before proceeding to examine the words of the statute which were to be construed, the learned Chief Baron first considered the state of the law at the time which the Act was intended to alter.

In Escoigne Properties Ltd. v. Inland Revenue Commissioners [1958] A.C. 549, H.L., Lord Denning also gave some broad hints on the construction of statutes. He said at p. 565:

“A statute is not passed in a vacuum, but in a framework of circumstances, so as to give a remedy for a known state of affairs. To arrive at its true meaning, you should know the circumstances with reference to which the words were used: and what was the object, appearing from those circumstances, which Parliament had in view. That was emphasized by Lord Blackburn in River Wear Commissioners v. Adamson ((1877) 2 App.Cas. 743, 763-765) and by the Earl of Halsbury L.C. in Eastman Photographic Materials Co. Ltd. v.

Comptroller-General of Patents, Designs and Trade Marks ([1898] A.C. 571, 575-576) in passages which are worth reading time and again.”

He said at p. 566 that the courts would know the circumstances with reference to which the words were used by taking “judicial

[p.442] of [1968] GLR 412 notice of the previous state of the law and of other matters generally known to well-informed people.”

My examination of the historical background has made it clear to me beyond doubt that the mischief with which the legislature was dealing was the exercise of judicial functions by the chiefs. This, as the historical evidence shows, often generated a great deal of ill-feeling between the chiefs and their subjects, and it sometimes led to political unrest and destoolments. In the Report of the Committee on Constitutional Reform (1949), for example, the committee drew attention to this fact in the following passages:

“219. Hitherto, the administration of what are really local courts, but are commonly called Native Courts or Native Tribunals, has been associated with Native Authorities. This position has arisen because there was, under the traditional administration of the country, no real differentiation of the functions of government. Under the Native Courts Ordinances, a step was taken to separate judicial functions from local administration, but since the members of the panels of the local bench are usually also members of the traditional authority, their link with the administration has not been completely severed.

220. The administration of justice at this level has been one of the causes of friction between members of the community, of distrust of the traditional authorities, and, in the past, it has been one of the underlying causes of destoolment…”

The remedy provided by the legislature was to break the inherent judicial power of the chiefs so as to stop them from adjudicating in ordinary litigation. The object and policy of the various Ordinances was to restrict the jurisdiction of the chiefs to constitutional matters, and the State Councils (Colony and Southern Togoland) Ordinance, 1952, was intended to give effect to that object. In my judgment, it behoves this court, therefore, to advance the remedy provided by the legislature and to suppress all subtle attempts aimed at circumventing the provisions of the State Councils (Colony and Southern Togoland) Ordinance, 1952. We would indeed be leaning backward if we were to hold that in 1952 or 1958 the state council could invoke an inherent jurisdiction to try ordinary civil cases.

For the above reasons I have come to the conclusion that Djabanor J. with all due respect, erred when he held that the Shama State Council had jurisdiction to determine, as an ordinary suit, the issue whether the applicant was the accredited headman of Aboasi village. Accordingly I hold that the decisions of the Shama State Council and the Appeal Commissioner were a nullity. I would, therefore, allow the appeal and set aside the judgment of Djabanor J.

[p.443] of [1968] GLR 412 together with any order as to costs. The costs in the Shama State Council and the Divisional Court, Sekondi, if paid, are to be refunded to the appellant. I would make an order removing into this court for the purpose of their being quashed the proceedings and judgment of the Shama State Council dated 19 April 1958, and the decision of the Appeal Commissioner in the same case dated 3 March 1961, and the same are accordingly quashed. The appellant to have his costs in this court.

JUDGMENT OF APALOO J.A.

The question to be decided in this appeal is: Whether a state council has, since the passage of the Native Courts (Colony) Ordinance, 1944, and the Native Authority (Colony) Ordinance, 1944, jurisdiction to hear a dispute relating to the appointment or deposition of a headman? It is not in dispute that an issue relating to the appointment or deposition of a headman is not included in the statutory definition of a “constitutional matter” as defined by Ordinance No. 21 of 1944 or the State Councils (Colony and Southern Togoland) Ordinance, 1952. It is plain therefore that a state council cannot in virtue of either legislation entertain any justiciable issue relating to the appointment or deposition of a headman. If a state council can, with competence, entertain and adjudicate upon such a matter, it must found its power on some authority other than either of those statutes.

The argument put forward on behalf of the respondent in this case, is that the state council has such a power and that such power is inherent and is independent of the power conferred on that body by the 1944 or 1952 legislation. It said by Mr. da Rocha ad nauseam that the state council is not a creature of statute and that it has certain inherent powers. Those powers should not be deemed to be abrogated by statute unless this is done expressly.

A contention almost identical and certainly akin to the one addressed to us by Mr. da Rocha, found favour with Ragnar Hyne J. in 1952 in the case of Kokro v. Enum; Kokro v. Tandoh (Consolidated), unreported. To the question whether a state council can adjudicate on a dispute relating to the appointment of a headman aside of the statutory jurisdiction conferred by the Native Administration (Colony) Ordinance, Ragnar Hyne J. gave an affirmative answer, the rationale of that decision being that the state council exercises jurisdiction, not because it is a matter of a constitutional nature within the meaning of the Ordinance, “but as the highest authority in the State in all matters relating to the welfare of the State.” The West African Court of Appeal a year later, that is, in 1953, reported in (1953) 14 W.A.C.A. 313, thought that Ragnar Hyne J.’s answer was right and his reasoning was approved. By a rather

[p.444] of [1968] GLR 412 unusual coincidence, the question which fell to be decided before Djabanor J. from whose decision this appeal has been brought, is the same question which both Ragnar Hyne J. and the West African Court of Appeal answered affirmatively a few years back and not only in respect of the same state council⎯the Shama State Council, but also in respect of the headship of the self-same village⎯Aboadzie.

As is only to be expected, the attention of the learned judge was drawn to the Kokro case and predictably enough, he gave the question before him the same answer and in the process, held himself bound by that case. To the extent that he held himself bound by a decision of the West African Court of Appeal in 1965, I agree with Azu Crabbe J.A. that Djabanor J. was in error. Political autonomy brought in its train judicial emancipation and article 42 (4) of the suspended Constitution enabled judges to depart, if they saw fit, from decisions given even by the most exalted of courts in colonial days. But judicial conservatism is such that most of the pre-independence decisions will continue to be followed but the justification this must be that those decisions are right not because of any binding efficacy that they possess. But in so far as Azu Crabbe J.A. thinks that the conclusion of the Kokro case was based on fallacious reasoning, I respectfully differ from him. As I am soon to show, that decision was right and was correctly followed by Djabanor J.

Azu Crabbe J.A. has painstakingly researched into the legislation dealing with aboriginal authorities in this country, commencing with the Native Jurisdiction Ordinance, 1883, right through to the State Councils (Colony and Southern Togoland) Ordinance, 1952. His researches enabled him to concur with the submission of Mr. da Rocha that the earlier pieces of legislation concerning aboriginal political institutions left untouched the inherent jurisdiction of the chief and his council. He found support for this view in the observations of Griffiths C.J. in Mutchi v. Annan (1907) Red. 211 at p. 216 in which the learned Chief Justice, inter alia, said:

“The Native Jurisdiction Ordinance merely regulates those of the Courts to which it applies; it does not abolish and re-establish them, but, taking them as they stand with their customary constitution and customary procedure, it merely cuts down some of the unlimited civil jurisdiction which they possessed.”

By and large, that view is correct and I also concur in it. It seems to me to accord with British Colonial Policy of preserving and developing indigenous institutions.

[p.445] of [1968] GLR 412

It cannot be gainsaid that one of the well entrenched aboriginal institutions which the British met on their assumption of jurisdiction in this country, is the chief and his councillors. Although the Native Jurisdiction Ordinance did not advert to it eo nomine, it was known that when the chief sat with his councillors to exercise any of the powers of government, it was a state council. The Native Administration (Colony) Ordinance of 1927 which superseded the 1883 legislation, for the first time, gave statutory recognition to a state council and defined it “as the highest Native Authority within the State in all matters relating to the welfare and government of the State in accordance with native customary law.” It seems to me that this definition impliedly acknowledges that the state council was sovereign in its own sphere had exercised all the powers which, in more sophisticated societies, are exercised by different organs of state.

It cannot be doubted that the state council as the “highest native authority” exercised judicial, legislative and executive powers. True, the combination of all these three powers in one entity, offends against the classical formulation known as the doctrine of separation of powers by the distinguished French jurist Montesquieu. But it is hardly to be expected that a society, which in the celebrated words of Sir Henry Maine in his Ancient Law (The World’s Classics) at p. 141, was then “moving from Status to Contract” would order its affairs in accordance with any rigid political theory. Conformably with British Colonial policy, the exercise of these powers was acknowledged. The very first legislation that was enacted to “facilitate and regulate the exercise” of these powers, namely, the Gold Coast Native Jurisdiction Ordinance, 1883 (No. 5 of 1883), gave its blessings to their exercise. Thus section 5 of that Ordinance entitles the head chief and his councillors to make bye-laws, section 10 entitles them to hold tribunals and to adjudicate disputes, and section 26 enables them to exercise a number of ministerial powers.

The Ordinance of 1883 continued to regulate the exercise of sovereign powers by indigenous authorities subject to the overall sovereignty of the Colonial Government until 1927 when a new Ordinance was passed. This new Ordinance which was operative only in that part of the country designated as the Colony, did not effect any major breakthrough in British Colonial policy or its attitude to native institutions. It continued, as its forerunner the 1883 Ordinance had done, to regulate the exercise of powers by indigenous institutions and the wording of its preamble followed closely the preamble of the 1883 Ordinance. The noticeable changes this latter Ordinance made, were to provide for different grades of tribunals and to specify their jurisdiction. From the point of

[p.446] of [1968] GLR 412 view of jurisdiction, the highest tribunal that emerged was the paramount chief’s tribunal. The state council which for the first time was acknowledged in its own right, was given powers co-ordinate with that of the paramount chief’s tribunal. This judicial power was exercisable only if the matter was thought to be important and called for determination by “the highest native authority,” to use the words of the Ordinance. Although section 96 of the 1927 Ordinance used language which suggests that the exercise of judicial powers by the state council was by imperial fiat, this was not the case. In my opinion, it was a mere statutory recognition of what was a fait accompli.

I think by and large, it is true to say that the chief and his councillors, now going by the statutory appellation of native tribunal or the chief and his councillors also styled the state council, were responsible for dispensing justice between indigenous persons of this country christened by the Ordinance, as “natives.” As a result of legislation passed in 1944, this was to be no more. It seems to me therefore that in approaching the 1944 legislation, sight should not be lost of the fact, that the inherent powers which these indigenous institutions exercised and which the Ordinances of 1883 and 1927 regulated, should be deemed to remain unless they are taken away, either expressly or by necessary implication. In view of the known and declared British policy of preserving indigenous institutions, I for my part, will lean heavily against any abrogation of such powers, unless the evidence of this is of the clearest.

It seems tolerably clear that what occasioned the passage of the 1944 Ordinance which in general took away from the chief and his elders their ancient right of administering justice between their subjects was the report submitted to the Governor by a committee appointed to consider the working of the native tribunals. This is the Blackhall Report dated 1 May 1943. The committee was appointed on 19 December 1942 and its terms of reference as stated at p. 1 of the report were to consider⎯ “(a) the constitution, jurisdiction and procedure of native tribunals;

(b) the working of native tribunals in urban and other areas of a non-tribal or mixed tribal character and their suitability therefor;

(c) the procedure for dealing with land disputes including appeals in such cases;

(d) generally, such reforms in the administration of justice in native tribunals as may seem necessary or desirable.”

[p.447] of [1968] GLR 412

At that date, although the personnel of both institutions were invariably the same, the native tribunal and the state council were two different institutions and were statutorily acknowledged as such. It is also to be remembered that like the native tribunals, the state council exercised judicial powers. But it is worthy of note that the terms of reference of the committee related exclusively to native tribunals. Stool disputes and other matters of a constitutional nature did not come within the purview of this committee and this was acknowledged by it. It seems to me important that this fact should be borne in mind when the scope and purpose of the ensuing legislation fall to be considered.

The Blackhall Report highlighted some deficiences in the working of the native tribunals and noted some personal failings in its personnel. It made a number of recommendations the most relevant of which is that chiefs qua chiefs should be relieved of their judicial powers in the tribunals. Instead of the unwieldy number, it recommended a panel system and suggested a quorum. The recommendations of the Blackhall Committee, in the main, were accepted and its sequel was the passage in 1944 of the Native Courts (Colony) Ordinance. Broadly speaking, this legislation achieved its objective in that a chief and traditional office-holders ceased to exercise judicial powers by virtue of their office. But it seems to me that the native courts remained indigenous institutions exercising the aboriginal jurisdiction which had hitherto been exercised by the chief and his councillors. The law administrable in native courts remained customary law and its procedure continued to be governed as before, by customary law.

While the native tribunals were transformed into native courts and suffered a major shake-up in terms of personnel, the twin legislation which was also passed in 1944 to prescribe the powers of the native authorities, namely, the Native Authority (Colony) Ordinance, 1944, hardly touched upon the personnel of the state councils. The co-ordinate jurisdiction which state councils had before with the paramount chief’s tribunal went with the demise of the latter and in this wise, it may be said that the state councils were, in a sense, truncated by Ordinance No. 21 of 1944 inasmuch as they were bereft of power to dispense justice in “ordinary suits” between persons subject to its jurisdiction. But to the exclusion of all other judicial tribunals, they continued to exercise judicial powers in “stool disputes and other matters of a constitutional nature.” The personnel of the state council continued as before to be the paramount chief, divisional chiefs, chiefs, linguists, headmen, elders and councillors. There was, as before, no quorum and the composition of the council continued to be as unwieldy

[p.448] of [1968] GLR 412 as the former membership of the native tribunals. The state council continued to exercise as before, its inherent customary power of compelling the attendance of parties and witnesses.

I therefore cannot find it in my heart to agree with Azu Crabbe J.A. that by 1944, the state council lost its true traditional character and had become a creature of statute. The evidence proves the contrary. It seems to me hardly sound to say that because a statute recognised an aboriginal institution and regulated or diminished some of its powers, it lost its traditional character. In the case of Mutchi v. Annan (supra) Griffith C.J. expressed the view that notwithstanding the Native Jurisdiction (Colony) Ordinance which regulated and cut down some of the unlimited jurisdiction which the chiefs’ tribunals hitherto exercised, they remained nevertheless “Native Common Law Courts.” I understand Azu Crabbe J.A., to concur in that view as I do myself. With profound respect to Azu Crabbe J.A., I do not think that the state council ever lost its traditional character. Indeed it continued post 1944 by statutory definition to be, as before, “the highest council within a State in which the administration of the State is vested by native customary law.”

I have tried to ascertain what traditional institution would have resolved a dispute relating to the appointment or deposition of a headman at various periods. That the status of a headman is a traditional one and acknowledged as such seems to me beyond question. Ordinance No. 5 of 1883 includes it with other stool functionaries in the constitution of a “native tribunal.” The Native Administration (Colony) Ordinance, 1927, by section 94 includes a headman among the persons who could lawfully constitute a state council and defines him as “a person chosen by the community of a village, and confirmed or approved by the Paramount Chief of the State wherein the village is situated.” If this dispute had arisen in say 1844, it cannot be gainsaid that it would properly be cognisable by the “head chief” and his councillors who then went by the statutory appellation of a “native tribunal.” If instead the litigation had arisen in 1928 after the coming into force of the Native Administration (Colony) Ordinance, Cap. 76 (M’Carthy ed.), the dispute would have been determined in accordance with section 24 of that Ordinance either by a divisional chief’s tribunal or by the paramount chief’s tribunal or if the matter was particularly important, by the state council. If the dispute arose in say 1950, the only extant traditional institution to whose adjudication the matter could be submitted, was the state council. This is because the divisional and the paramount chiefs’ tribunals had ceased to exist. Both Azu Crabbe J.A. and I are in agreement that the

[p.449] of [1968] GLR 412 jurisdiction conferred on the new native courts is such that they cannot entertain a suit relating to the appointment or dismissal of a headman.

In those circumstances, I should have thought that there could be no question about the competence of the state council to entertain jurisdiction in such a cause. But this seemingly unarguable point became arguable because Ordinance No. 21 of 1944 and the State Councils (Colony and Southern Togoland) Ordinance of 1952 both of which conferred statutory jurisdiction on state councils in “constitutional matters” gave a definition of a “matter of a constitutional nature” in terms which exclude a headman. Accordingly, Dr. de Graft Johnson for the appellant, argued that since a headman is not a chief within the meaning of the 1952 Ordinance, a dispute relating to his deposition cannot be a constitutional matter as statutorily defined. Therefore he says, absence of statutory jurisdiction, means no jurisdiction at all. That argument is attractively simple but is, in my judgment, entirely superficial. A contention such as this shows little appreciation of the policy which informed British attitude towards indigenous institutions. It also plainly ignores the genesis and evolution of the institution called “the chief and his councillors,” part of which by evolution, came to be known as the state council.

Having held that the state council is a traditional institution with inherent powers, I cannot accept an argument which implies that such powers can be thrown away by a side-wind. Had I felt able to share the view of Azu Crabbe J.A. that a dispute relating to the appointment or deposition of a headman could be entertained by the High Court under section 15 of the Courts Ordinance, Cap. 4 (1951 Rev.), I would have succeeded in persuading myself that the traditional jurisdiction of the state council was impliedly taken away. But I am clearly of the view that the High Court had no jurisdiction in this matter.

It seems plain to me that what the Courts Ordinance, 1876, established was a pluralistic legal system in which various matters were assigned to English law or customary law. British or British trained judges concerned themselves with the administration of the common law, imperial and other enactments, while the administration of the customary law was left almost entirely to indigenous institutions. The matter in controversy in this case is: Was the appellant, who ex concesis was validly appointed headman of Aboadzie, removed from that office in accordance with customary law? A headman, if duly appointed took his place in the state

[p.450] of [1968] GLR 412 council and vacated it if properly removed. The customary formalities necessary for his appointment or dismissal are matters peculiarly within the knowledge of such persons as form the state councils. It would be wholly foreign to British or British trained judges. I can scarcely conceive any matters less suitable for trial by the British High Court and more suitable for trial by a state council.

My view of this matter is considerably strengthened by the wording of section 15 of the Courts Ordinance, Cap. 4 (1951 Rev.), which is supposed to confer jurisdiction on the High Court to entertain a dispute relating to the election or deposition of a headman. It reads:

“The Supreme Court shall be a Superior Court of Record, and in addition to any other jurisdictions conferred by this or any other Ordinance, shall, within the Gold Coast and subject as in this Ordinance mentioned, possess and exercise all the jurisdiction powers and authorities which are vested in or capable of being exercised by Her Majesty’s High Court of Justice in England.”

It cannot be supposed that Her Majesty’s High Court in England can exercise jurisdiction to determine the lawfulness or otherwise of the deposition of a “native headman” in a colony and it is not suggested that any Ordinance specifically conferred jurisdiction on the High Court in this country. On the contrary, section 88 of the Courts Ordinance, expressly forbids the High Court entertaining causes or matters relating to elections and constitutional relations between chiefs. It is answered in this case that as a headman is, by statutory definition, not a chief, this prohibition does not apply to him. But if as seems the case, the object of this provision is to remove from the High Court matters which the personnel of such court were by training ill-fitted to determine, it would seem to me wholly incongruous, that the legislature should have thought them competent to determine a cognate issue in respect of a “chief” of much inferior rank.

It does not therefore surprise me that when the issue relating to the appointment of a headman came before Ragner Hyne, a British judge, he, not unconscious of the limitations of his background and training, felt no difficulty in concluding that he had no jurisdiction and that the state council of Shama had. That view was unanimously endorsed by the West African Court of Appeal, again constituted by British or British trained judges. I feel no doubt at all that the High Court of 1958 had no jurisdiction to entertain this matter. It is perhaps somewhat ironical that a court constituted by indigenous people should be invited to use

[p.451] of [1968] GLR 412

British intervention in this country as a lever for denying to traditional institutions, powers which British judges themselves freely concede them.

My conclusion is, that the state council as the “highest authority in the State in all matters relating to the welfare of the State” traditionally exercised judicial powers including the power to determine a dispute relating to the appointment or dismissal of a headman. Although some of the inherent judicial powers of the state council were cut down by legislation, the one which enables it to adjudicate on a dispute relating to the deposition of a headman survived, this power not having been taken away expressly or impliedly, by being conferred on another judicial body. It follows that, in my judgment, such power was, in 1958, lawfully exercisable by the Shama State Council and was so exercised. In my judgment the order made by that council consequent upon such determination was lawful and cannot be questioned by an order of certiorari.

I hold therefore that the Kokro case was rightly decided both by the High Court and the West African Court of Appeal and that Djabanor J. was right in following that decision.

I have, I believe, given sufficient reasons why I think this appeal should not succeed. My brother Azu Crabbe however thinks that if contrary to his view, the state council retained a residuary jurisdiction to entertain a dispute relating to the appointment or dismissal of a headman, it could not exercise such jurisdiction to determine the instant dispute inasmuch as the appellant was not the type of headman defined by Sarbah or the one contemplated by the 1927 Ordinance. He says, a distinction must be drawn between the headman of the fishing community of Aboasi village and the headman of Aboasi village, who is the odikro or penin of the village. The former, he says, has no constitutional position while “the latter is the aboriginal head of the entire people of the village.” It is difficult to see the basis for this distinction. It is certainly not suggested in the evidence that Aboasi has two headmen, one of whom superintends only the fishing community, while there is another with political responsibility for the whole village. Both the meagre evidence which was produced in the court below and the argument presented to us on both sides, proceeded on the footing that there was only one headman in whom the administration of the village is vested. The appellant’s claim was that he was such headman and contested his deposition on the ground that it was unconstitutional and offended against custom. The respondent conceded that the appellant was at one time such headman, but claims that he was customarily removed from that position. In so far as the evidence on record provides any clue, the appellant was deposed because

[p.452] of [1968] GLR 412 he broke faith with the elders and councillors who appointed him to that position and refused to attend their calls. That, incidentally, is a ground on which even a chief may be destooled.

Azu Crabbe J.A. seems to find reinforcement for his view that the appellant’s headship was non-political by reason of the fact that the fishing community of Aboasi, originally entered upon the land by the leave and licence of the chief of Jomo and he adverts to the fact that the inhabitants of Aboasi have no proprietary interest in the land on which the village stands. He says, they are strangers and licensees on part of land within the Shama State. I feel difficulty in following how this fact can be relevant in determining whether or not the appellant occupied a constitutional position according to customary law. True, chiefs and headmen are often the owners of the land in the towns and villages on which they exercise administrative authority but this is not a legal requirement. The entitlement to political office is not necessarily dependent on ownership of land and this fact is recognised by the 1927 Ordinance which defines a headman “as a person chosen by the community of a village, and confirmed or approved by the Paramount Chief . . .” The judgment of the state council which is sought to be vacated by this appeal, recites the testimony of the appellant that “he was made a headman by the elders and councillors (Omanfo) of the village of Aboasi . . . “ That fact, as I have said, as conceded by the respondent, who for his part, claimed that it was the same functionaries who in accordance with custom, relieved the appellant of that position. In my opinion, the circumstance that the community of Aboasi have no proprietary interest in the land of the village is irrelevant to the issue canvassed in this appeal.

As I have already pointed out, Azu Crabbe J.A. and I are in agreement that the issue which the parties sought to be determined between them, cannot properly be cognisable by any of the grades of native court established by the 1944 Ordinance. It would seem however that we are not in accord on the reason for this. Azu Crabbe J.A. at p. 439 ante, propounds that issue in this way: “the sole issue is whether the appellant, a person who has no constitutional status in the village, has in fact been removed or suspended.” He saw no reason why a state council could turn “this pure issue of fact into a matter of customary law and a constitutional issue” in order to enable it to assume jurisdiction. If this is a correct way of looking at the issue joined between the parties, then it is impossible to understand why my brother Azu Crabbe was of opinion that a native court was incompetent to determine the issue. It cannot, I think, be argued that a native court has no jurisdiction to determine a non-political issue of fact or a question of mixed fact and customary

[p.453] of [1968] GLR 412 law. If the controversy between the parties had been whether the appellant, who is a head of the family has been removed in accordance with custom, can it be doubted that the native court could, with competence, determine such a matter? In my opinion, the true reason why the post 1944 native court has no jurisdiction to determine the instant dispute, is because it raises an issue relating to a constitutional or political status in accordance with native custom and it is those matters which the 1944 legislation designedly kept out of the native courts.

But in fairness to my brother Azu Crabbe, the basis of his judgment is that by reason of the legislation passed in 1944, a state council has no jurisdiction to determine a dispute relating to the appointment or dismissal of a headman inasmuch as it is not a “constitutional matter” within the meaning of Ordinance No. 21 of 1944 and has no inherent jurisdiction to do so. That conclusion involves an acceptance of the contention of Dr. de Graft Johnson which I, for my part, unreservedly reject. In that wise, it is fair to say that Azu Crabbe J.A.’s view that the appellant has no constitutional status in Aboasi, is obiter only.

As I understand the judgment which my brother Lassey is about to deliver, he like me, rejects the basic proposition of Dr. de Graft Johnson that the state council lost its traditional jurisdiction after 1944 simply because a headman was left out in the statutory definition of a chief. He thinks, and I hope I got him rightly, that notwithstanding the 1944 legislation, the state council has traditional jurisdiction to determine a dispute relating to the appointment or dismissal of a headman. That being so, on the only matter which was agitated before us, the respondent should succeed. He however, as I understand his judgment, concludes this matter against the respondent on the ground that the headship of Aboasi is not a constitutional office. Accordingly, my brother Lassey founds his judgment on a matter which was obiter in the judgment of Azu Crabbe J.A.

As I have said repeatedly, the fact that the appellant occupied a constitutional position was asserted by him and acquiesced in by the respondent. I have already referred to evidence which justifies the unanimity which the parties arrived at on this matter. In those circumstances, to conclude this matter against the respondent on a hypothesis mutually rejected by the parties, would seem to me to offend against justice. True, the proviso to rule 8 (6) of the Supreme Court Rules, 1962 (L.I. 218), entitles this court to rest its decision on any ground whatsoever, but the proviso to that rule says:

[p.454] of [1968] GLR 412

“the Court shall not rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.”

Not only was it never the appellant’s case that he was a headman with no constitutional position, but the respondent was given no opportunity to contest the case on that ground.

The curious result of this case, is, that my brother Lassey and I accept the respondent’s contention that the state council of Shama has an inherent jurisdiction to determine post 1944, a dispute relating to the appointment or dismissal of a headman. Azu Crabbe J.A. and Lassey hold that the headship of Aboasi is not a political office. Azu Crabbe J.A. and I are in agreement that a native court has no jurisdiction to entertain this dispute. Lassey J.A. thinks that it has, but concurs that the appeal be allowed and the matter remitted to the High Court for rehearing.

I have given reasons why I think the High Court has no jurisdiction to entertain this dispute and why the native court is equally without jurisdiction. On this latter conclusion Azu Crabbe J.A. is with me. I have also ventilated to the full, why I think the state council is the proper forum to determine this dispute. That being so, the appeal against the refusal of certiorari should fail and I would, for my part, dismiss it with costs.

JUDGMENT OF LASSEY J.A.

I have had the opportunity and privilege of reading beforehand the opinions delivered this morning in this appeal by my learned brethren Azu Crabbe and Apaloo. I only desire to concern myself with what seems to me to be the pertinent point of difference between the two opinions given on the material issue raised in the appeal and at the same time endeavour to explain in some measure the reason why I find myself in agreement with the conclusion reached by Azu Crabbe J.A. that this appeal should be allowed.

This appeal which is of interest, firstly for the information it gives about incidents of ownership of land in this country, and secondly the traditional history of such occupation, is from the judgment of the High Court, Sekondi, and it involved a dispute as to the appointment or election of a headman for a fishing community which had for a very long time settled on a piece of a coastal land belonging to the Jomo stool in the Shama Traditional Area in the Western Region of Ghana. This fishing community settlement is in a village called Aboasi or Aboadzie. It is not, however, clear from the recorded proceedings whether, apart from this particular

[p.455] of [1968] GLR 412 fishing community, there are other inhabitants living in this same village.

The dispute out of which the instant appeal arose was of long standing. In earlier proceedings commenced in the High Court, Sekondi, before Ragnar Hyne J. in or about the year 1952 in which the real issue was which of the contestants to the headship of the fishing community of Aboasi or Aboadzie was properly elected and entitled to represent the said fishing community in all matters affecting the welfare of the community as such, the learned judge held in those earlier proceedings that the High Court had no jurisdiction over the particular matter in dispute, and directed that the matter be referred to the Shama State Council which had the necessary jurisdiction to determine who had been lawfully appointed headman for the fishing community of Aboasi or Aboadzie village in the Shama State.

There was an appeal against the decision given by Rapar Hyne J. and eventually the whole of the proceedings came before the then West African Court of Appeal in the consolidated suits entitled:

1. Kofi Kokro ]

2. Kwasi Baisie ]

3. Kwesi Nyameky ]

4. Kojo Nyame ] Appellants

5. Kobina Condua ] 6. J. A. Yankum of Aboadzie for Themselves and ] as representing the Fishing Community of Aboadzie, ] v.

Kofi Enum of Aboadzie, Respondent And 1. Kofi Kokro ] 2. Kwasi Baisie ] 3. Kwesi Nyamekye ] 4. Kojo Nyame ] Appellants 5. Kobina Condua ] 6. J. A. Yankum for Themselves and as ] representing the Fishing Community of Aboadzie, ] v.

1. Kofi Tandoh 2. Kofi Enum 3. Kwaw Agyim 4. Kwamina Abban 5. Kweku Aryaa, all of Aboadzie (Consolidated). Respondents [p.456] of [1968] GLR 412 The West African Court of Appeal in a judgment delivered in May 1953 affirmed the ruling of Ragnar Hyne J. by remitting the case to the Divisional Court, Sekondi, for re-hearing of the motion after the case had been referred back to the Shama Council which was required to determine who had been appointed headman.

After this decision by the West African Court of Appeal one would have expected that any future dispute between would-be claimants to the status of headman of the fishing community of Aboasi or Aboadzie would readily know what appropriate tribunal to go to for the settlement or adjudication of their dispute. On the contrary, the certiorari proceedings terminating in this present appeal clearly show that both Ragnar Hyne’s decision as well as that of the West African Court of Appeal affirming it given subsequently that the state council was the proper forum with jurisdiction to try a dispute of the type raised in this appeal did not find favour with some sections of the rival claimants, hence the commencement of fresh certiorari proceedings in the High Court, Sekondi, which raised identically the same issue as that which had before been raised in the earlier proceedings just mentioned. In arriving at his decision Djabanor J. felt that both the reasoning and the conclusions reached by Ragnar Hyne J. and the West African Court of Appeal were right, and therefore, he refused to make the order of certiorari sought, his reason, of course, being that the matter in dispute between the rival claimants herein was properly cognisable before the Shama State Council as, in his opinion, it was of a constitutional nature.

Azu Crabbe J.A. in his judgment is firmly of the view that the Shama State Council could not have jurisdiction to determine in these proceedings who was the properly elected person to be headman for the fishing community of Aboasi (Aboadzie) village. I could gather three main reasons which have led him to take this view of the matter: The first is that any aboriginal residuary powers which the state council might have exercised whilst sitting as a tribunal of first instance to adjudicate on matters relating to the appointment, election or dismissal from office of a headman of a village had been expressly taken away by statutory provision when headman had been left out from the category of chiefs as defined in the provisions of the Ordinance; the second reason is that the office or status of the headman of the fishing community of Aboasi (Aboadzie) is not a traditional one and therefore any dispute between the rival claimants to that office was not of a constitutional nature; and thirdly that the suit or proceedings herein are in the nature of an ordinary personal suit between parties seeking an order of

[p.457] of [1968] GLR 412 the court for a declaration of their appointment or status, and for that matter according to the hierarchy of our court system the appropriate tribunal with jurisdiction to pronounce upon such dispute is the High Court, as there was no competent native court which had the necessary jurisdiction in the area in question at the time of the dispute.

There is no doubt in my mind from the facts which constitute the background of the dispute in this appeal which facts have been sufficiently stated by my brother Azu Crabbe and also from his researches into the history of various legislative enactments dealing with the aboriginal authorities in this country, that before the coming into being of the Native Jurisdiction Ordinance of 1883, the first legislation of its kind which started making some slight inroads into the absolute inherent power or jurisdiction exercised over all matters by the chief and his council, that the state council was for all practical purposes the highest authority which exercised judicial, legislative and executive powers in all matters affecting the welfare of the people in the state. As Apaloo J.A. rightly pointed out the notion of the doctrine of separation of powers was unknown in those early days in our gradual evolution. It is, however, apparent that the number of enactments made from time to time after 1883 and up to about 1952 have only seriously curtailed the absolute powers of adjudication which our traditional rulers once exercised in all matters affecting the well-being of their people. I do share Azu Crabbe J.A.’s view that those aboriginal powers were not taken away entirely by statute but were limited to constitutional matters only. In this regard Apaloo J.A. is also right in holding that the various statutory enactments only modified or regulated the exercise of some of the aboriginal or inherent powers of the traditional authorities like the state council, and that they were never intended to abrogate altogether those powers.

In my opinion, state councils in this country would still appear to have jurisdiction to adjudicate on all matters of a constitutional nature arising in the state, unless a statute expressly provides to the contrary. It is on account of this that I take the view that if the status or office of the headman of the fishing community of the village of Aboasi (Aboadzie) is that of a constitutional or political nature or if the issues between the parties herein are purely a question or matter relating to political or constitutional relations under native customary law the appropriate tribunal in the state to determine matters of that nature would be the state council.

It was said that because a headman is no longer included in the statutory definition of a chief therefore any headman no matter what the nature of his status or office cannot be regarded as a chief

[p.458] of [1968] GLR 412 in the traditional sense and therefore any dispute relating to the election or destoolment of a headman would not be a matter properly cognisable by a state council. In my opinion it is not necessary that a statute should define a natural ruler to be a chief before he can be called or recognised as a traditional chief or ruler as opposed to a mere head of a section of the community. To my mind a headman’s inclusion in the category of chiefs by statute is solely so for the purpose of the particular statutory requirement. The fact that at a later stage he is dropped out from the definition of chiefs does not necessarily strip him of the traditional role or functions he once performed as a chief before he was accorded statutory recognition as a chief and which same traditional or constitutional functions he in fact still performs notwithstanding the fact that he was no more recognised as such by statute. De facto he is still a chief though by definition of statute he is not and therefore in my opinion if a dispute should arise as to his election or dismissal as a headman the proper tribunal with power to go into such matter in dispute would be the state council and not the High Court. Therefore if I were to agree with my brother Apaloo’s view that the headman of the fishing community of Aboasi (Aboadzie) village is a chief in the traditional sense, I would unhesitantly hold that the state council of Shama would be the proper forum to determine the issue in dispute between the rival claimants to such an office in the village. It is because I do not think that he is a chief with any traditional or constitutional functions that I am inclined to the view that a dispute in relation to his office is a mere civil or ordinary suit determinable by the ordinary courts of law of the land.

The main issue in this case as has been pointed out in the two judgments just read concerns the election or appointment of a person to the office of headman for the fishing community in Aboasi (Aboadzie) village. The suit in which eventually the appeal arises was instituted in the Shama State Council by the appellant who claimed that as the immediate successor to the late Condua II of the fishing community of Aboasi according to native custom he is entitled to a declaration that he had been properly elected and installed to the office of headman. I may also point out here that headship of the fishing community of Aboasi (Aboadzie) village carries with it the privilege or right to demand and collect tolls and other dues from members of the community. The total sum thus collected or part thereof, I think, is used in paying the land dues mentioned in clause (2) of the agreement, exhibit A or KE. 1. This is the written agreement by virtue of which the fishing community is permitted to occupy and live in the village of Aboasi or Aboadzie for the purpose of fishing in the waters along the coast.

[p.459] of [1968] GLR 412

The respondent on his part, disputed the right of the appellant to be elected headman or his purported election and installation. Thus it becomes clear that the first matter for consideration is what is the real nature of the office of the headman of this fishing community at Aboasi? In other words, does the office of this headman carry with it political or constitutional responsibilities or functions under native customary law? Or is it an ordinary office without any such constitutional or political functions or privileges? The prior consideration and determination of this matter is very fundamental to the determination of the issue as to which court has jurisdiction over the real matter in dispute. The mere fact that the parties to the dispute have agreed that the election to the office of headman of the village of Aboasi is done according to native custom and therefore such a headman is a “chief” in the constitutional structure of the Shama Traditional Area is not binding on the court which is inquiring into the matter in dispute. In my opinion the court is still bound to find out if the status of the headman of this type is a constitutional one or not.

Much of the difficulty surrounding this case relates to the use of the term or title “headman.” It is a term to which one has to give some elastic interpretation when it is applied as an appellation or title to describe the holder of an office. It is a popular, but not a legal term; it is used in local parlance as a somewhat grandiloquent appellation for native chiefs. The term “headman” is the English translation of our vernacular words “Onukpa,” “Amega,” “Odikro” or “Panyin,” etc. These are titles to the holders of the traditional office of headmen in our villages in various parts of the country. This type of headman is in fact a small chief in the village and his office is political or constitutional in character. A perusal of the chiefs’ lists published by the erstwhile Native Affairs Department of the then Gold Coast shows that the “Odikro, Onukpa,” “Amega” or “Panyin” is given a place in the chiefdom in the particular traditional authority or area. The headman of the particular village who is in fact a natural ruler is also known by the customary or traditional title of “Onukpa,” “Amega,” “Odikro” or “Panyin” and he is the chief of the lowest grade in the hierarchy of chiefs in the particular chiefdom. This type of headman is in most cases either the leader or the founder of the particular village or is appointed from amongst the subjects of the paramount stool to be headman of the village. He is not in my opinion a mere head of a section of a community. His office or status is recognised as part of the traditional structure of the state of which the village of which he is the head is an integral part.

[p.460] of [1968] GLR 412

The history of the earliest settlement of the fishing community at Aboasi or Aboadzie village shows that the fishermen of whom Chief Condua I was the leader came to settle along the particular coast line for the sole purpose of fishing. In order to obtain land to live on, permission was granted them by the chief or odikro of Jomo, the owners of the Aboasi village, to live on the land and fish in the sea. It is not clear from the record where the ancestors of the present fishing community migrated from before they came and settled at Aboasi or Aboadzie. What is obvious is that after they had lived on this piece of Jomo stool land for some time, a written agreement was executed between them and the representatives of the Jomo stool granting them leave to stay on the land indefinitely on condition that they paid a certain sum in the nature of tolls or dues.

It is clear that members of the fishing community at Aboasi cannot be the original founders of the said village so as to constitute their headman the natural ruler or a small traditional chief. If in fact they were the founders there will be no need for them to sign a document on the land, which is essentially part of the State of Shama. It can, however, be assumed that as members of this fishing community had lived for many generations in this village their headman is bound to be recognised as such by the stool of Jomo and the Paramount Chief of Shama. But the pertinent question is this: does the fact that the office of the headman of the fishing community of Aboasi has for a very long time been recognised as such by the traditional authorities of the Shama State make it part of the traditional structure of the Shama State? Or is their headman automatically accorded the status of a chief in the chiefdom of the State of Shama? For my part, I find it difficult to regard the headman of the fishing community of Aboasi village as a traditional chief in the State of Shama. In my opinion, members of the community of which he is the head are essentially mere licensees living on another’s land.

All along the shores of this country abound examples of settlements of fishing communities which have been granted land to live on so as to be able to carry on their business of fishing in the sea nearby. In some cases the members of the fishing community are the aboriginal inhabitants of the particular territory. The Tema fishing community at the modern Tema village is a typical example. In other cases, the fishermen are stranger-tenants or licensees owing allegiance only to their licensors or grantors, and the right to be on another’s land usually carries with it the customary duty to pay some dues thereby acknowledging the suzerainty of the

[p.461] of [1968] GLR 412 overlord or owner of the land. In this respect the office of the headman of such a fishing community cannot be said to be of a traditional or political nature. The position of the headman of the fishing community of the village of Aboasi is in my view, equivalent in rank to that of the headman of either the Ada fishing community in Accra or the Anlo fishing community at Amakom near Cape Coast in the Central Region. In either case the headman is only a sectional head of his community in the area, and therefore his election or deposition is purely an internal matter for the members of the community, although custom requires that after his election as headman he may be outdoored and introduced to the traditional authorities in the area.

The traditional headman of a village community is generally the leader of the families which founded the particular village, and has succeeded to that post by virtue of his right as head of the whole community. Together with his elders he rules over the entire community and is subject only to the superior stool, if any, on whose land the village is situated. There is nothing in the recorded proceedings to show that the predecessor of Chief Condua was the first person who founded the village of Aboasi or ruled the whole of that village through councillors of his own. The fact that the plaintiff-appellant or his predecessor clothes himself with the title of a chief does not automatically make him a chief in the traditional sense as I understand it. In my opinion, it is only a title of dignity with which he chooses to distinguish himself from the rest of the fishing community living at Aboasi (Aboadzie).

In the Ga State, for example, a community of settlers known as the Brazilian community whose ancestors migrated from Brazil, have for many generations lived among the Gas and have altogether so identified themselves with the Gas that they have become integrated into the Ga Traditional State with the result that even the courts have had to declare that in all matters relating to their personal affairs they are governed by the customary laws of the Ga people. They form an integral part of the Ga State and their headman Nii Azuma can sit in the Ga State Council not in his capacity as being the headman of the Brazilians in Accra but as being a Ga man or subject. In this case the material before us does not show that the headman of the fishing community of Aboasi has been integrated or assimilated into the Shama traditional institution. It is because of the above stated reasons that I cannot conceive how the headman of the fishing community of Aboasi village can properly call himself a chief in the chiefdom of the Shama State. His office or status as headman of his stranger community is different in character from

[p.462] of [1968] GLR 412 the “odikro” with whom his ancestor negotiated for the land on which the community now lives.

The custom alleged by the appellant was that, when the office of headman became vacant, a member of his family was entitled to fill the vacant office. The difficulty which led to the trouble was that the respondent also claimed that it was his family’s turn to appoint a headman in succession to the previous occupant. In this connection, it was never disputed that the appointment to headship remained in the fishing community and that such an appointment was entirely the business for the fishing community alone. According to custom the appointment was not made by or with the approval of the aboriginal authorities of Shama, the result being that the headman is not a head chief who can take his place in the Shama State Council. His authority to govern or control is only recognised by the fishing community alone and not the aboriginal inhabitants of the village. In my opinion all that the appellant’s claim amounted to was that he was the only rightful headman of the fishing community of Aboasi or Aboadzie village by native law and custom of the members of the said fishing community and that the respondent was not. In my view, on the strength of the material before us in this case, the appellant’s claim is purely a dispute not as to chieftaincy as such, but a claim to mere dignity or a position of honour or of primacy among a particular section of the whole of the fishing community living in the village of Aboasi or Aboadzie. He is not the natural ruler of the whole of the village, including the aboriginal inhabitants or subjects of the Jomo stool, if any, living there.

The appellant here, in my view, was only asking the court for a declaration establishing a claim to a bare title, dignity, apart from the right or privilege to exact fishing tolls which was attached to appointment to the office of headman. To my mind, this purely is an ordinary personal suit which is cognisable before the appropriate native court of the area, or by the High Court in the absence of a native court with competent jurisdiction. The issue involved both as to jurisdiction and as to the nature of the appellant’s office or status is not a chieftaincy dispute so as to be cognisable by the Shama State Council. It is in this regard that I share the view point expressed by my brother Azu Crabbe that considering the nature of the appellant’s claim, as none of the different grades of the native courts in the particular area had jurisdiction to entertain such a claim to a mere empty title to honour or primacy, it follows that the only court that could entertain such a claim was the Divisional Court, Sekondi. The Shama State Council has no jurisdiction to

[p.463] of [1968] GLR 412 try an ordinary suit which raises no constitutional or chieftaincy dispute.

In the result, I concur in the judgment delivered by Azu Crabbe J.A. that the appeal should be allowed and the judgment appealed from should be set aside.

DECISION

Appeal allowed.

K.T.