HIGH COURT, KOFORIDUA
Date: 12 SEPTEMBER 1975
QUASHIE-SAM J
CASES REFERRED TO
(1) Sarpong v. Antwi [1971] 2 G.L.R. 378, C.A.
(2) Republic v. Tekperbiawe Divisional Council; Ex parte Nene Korle II [1972] 1 G.L.R. 199.
(3) Anomabu Stool v. Acquah (1957) 3 W.A.L.R. 265, P.C.
(4) Ababio v. Ackumpong (1940) 6 W.A.C.A. 173.
(5) Gyapon v. Osei Kwabena II (1944) 10 W.A.C.A. 213.
(6) Adanji v. Hunvoo (1908) 1 N.L.R. 74.
(7) Cowley (Earl) v. Cowley [1901] A C. 450; 70 L.J.P. 83; 85 L.T. 254; 50 W.R. 81; 17 T.L.R. 725, H.L.
(8) Republic v. Boateng; Ex parte Adu-Gyamfi II [1972] 1 G.L.R. 317.
(9) Republic v. Wiamoasehene Stool Affairs Chieftaincy Committee Ex parte Oppong Kwame [1972] 1 G.L.R. 60, C.A. affirming [1971] 1 G.L.R. 321.
(10) Republic v. Maikankan [1973] 2 G.L.R. 384, C.A.
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NATURE OF PROCEEDINGS
MOTION to dismiss the plaintiffs’ action for, inter alia, an injunction to restrain the first defendant from exercising the functions of a chief. The facts are fully stated in the ruling of the court.
COUNSEL
Dr. Seth Twum for the plaintiffs.
R. D. Amofa for the first defendant.
Dua Sakyi for the second defendant.
JUDGMENT OF QUASHIE-SAM J.
The plaintiffs, by their writ of summons seek the following reliefs, namely:
“(a) Declaration that the first defendant is not a member of the Asona royal family of Osiem and that be has no claim to be installed as a chief of Osiem and has not been installed as such chief.
(b) Injunction restraining the first defendant from exercising the functions of chief of Osiem.
(c) Injunction against the Okyeman Traditional Council to restrain them from recognising the first defendant as chief of Osiem and/or paying any stipends, salary or other remuneration to him in virtue of his claim as chief of Osiem.”
They have also brought a motion for an order for the preservation of stool property and the appointment of a custodian thereof pending the hearing and determination of the suit.
In paragraph (40) of the statement of defence, the defendants have raised an objection to the jurisdiction of this court in entertaining the action and have brought a motion to dismiss the plaintiffs’ action as a preliminary step. It is on this motion that I now give a ruling.
By section 66 of the Chieftaincy Act, 1971 (Act 370),
“’cause or matter affecting chieftaincy’ means any cause, matter, question or dispute relating to any of the following-
(a) the nomination, election, appointment or installation of any person as a Chief or the claim of any person to be nominated, elected, appointed or installed as a Chief;
(b) the destoolment or abdication of any Chief;
(c) the right of any person to take part in the nomination, election, appointment or installation of any person as a Chief or in the destoolment of any Chief;
(d) the recovery or delivery of stool property in connection with any such nomination, election, appointment, installation, destoolment or abdication; (e) the constitutional relations under customary law between Chiefs.”
Looking at the writ of summons therefore, there is no doubt that the declaration sought as to who is entitled to be installed or has been installed as chief, the injunction sought to restrain the first defendant from exercising the functions of a chief and the further injunction sought to restrain the Okyeman Traditional Council from recognising the first defendant as a
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chief or paying him stipends, salary or remuneration as such, are all causes or matters affecting chieftaincy within the meaning of section 66 of Act 370.
The question posed by the application before me is which forum has the jurisdiction to adjudicate upon such matters. Learned counsel for the applicants contends that the High Court has no jurisdiction in such causes or matters, jurisdiction therein having been exclusively conferred on traditional councils by virtue of section 15 of Act 370, which provides:
“(1) Subject to the provisions of this Act and to any appeal therefrom, a Traditional Council shall have exclusive jurisdiction to hear and determine any cause or matter affecting chieftaincy which arises within its area, not being one to which the Asantehene or a Paramount Chief is a party.
(2) The jurisdiction conferred by this section shall be exercised in accordance with Part V of this Act.”
He argued that quite apart from this special conferment of jurisdiction by statute on traditional councils, the High Court is specifically ousted of jurisdiction in causes or matters affecting chieftaincy by the prohibition in section 52 of the Courts Act, 1971 (Act 372), as amended by the Courts (Amendment) Decree, 1972 (N.R.C.D. 101), s. 5 (3), which provides:
“Notwithstanding anything to the contrary in this Act or any other enactment, the High Court, a Circuit and a District Court shall not have jurisdiction to entertain either at first instance or on appeal any cause or matter affecting chieftaincy.”
Before the enactment of Act 370 in 1971, the prevailing Chieftaincy Act was that of 1961 (Act 81), section 15 (1) of which was in identical terms to its equivalent section 15 (1) in the current Chieftaincy Act, 1971 (Act 370), in conferring jurisdiction in chieftaincy causes or matters on traditional councils; equally the definitions of cause or matter affecting chieftaincy in section 68 of Act 81 have not changed and are the same in section 66 of the current Act 370; besides, section 52 of the Courts Act, 1971 (Act 372), is a reproduction of the same provisions as its predecessor, paragraph 66 of the Courts Decree, 1966 (N.L.C.D. 84), prohibiting jurisdiction in the High Court in chieftaincy causes or matters.
Reasoning on these bases, therefore, learned counsel for the defendants submitted that there was a clear intention of the legislature to oust the jurisdiction of the High Court exclusively in favour of the traditional councils as manifested by these various statutory provisions for a decade from 1961 to 1971. He relied on Sarpong v. Antwi [1971] 2 G.L.R. 378, C.A. as the judicial decision on the matter, arguing that by the decision in that case the Court of Appeal had interpreted the cumulative effects of paragraph 66 of the Courts Decree, 1966 (N L.C.D. 84), (now the Courts Act, 1971 (Act 372), s. 52) and section 15 of the Chieftaincy Act, 1961 (Act 81) (now the Chieftaincy Act, 1971 (Act 370), s. 15), to be that the High Court had no jurisdiction in matters or causes affecting chieftaincy. Looking in particular at section 52 of the Courts Act, 1971 (Act 372), he contended that the opening words of that section, “Notwithstanding
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anything to the contrary in this Act or any other enactment” must refer to section 14 (1) (a) of Act 372 and the 1969 Constitution, by which construction, the Courts Act, by its section 52, operated to negate section 14 (1) (a) and article 113 (1) of the Constitution as far as chieftaincy matters are concerned, the effect of which is to oust the High Court of its jurisdiction in such matters.
Developing his arguments, learned counsel touched on the court’s attitude to existing legislation on chieftaincy matters which, in his view, is a decline to exercise jurisdiction in such matters by virtue of the construction placed on similar enactments at different stages. He referred to Republic v. Tekperbiawe Divisional Council; Ex parte Nene Korle II [1972] 1 G.L.R. 199 and pointed out that the provisions of section 88 of the Courts Ordinance, Cap. 4 (1951 Rev.), being similar to those of paragraph 66 of the Courts Decree, 1966 (N.L.C.D. 84), and section 52 of Act 372, the courts must, as they had always done, decline jurisdiction in chieftaincy causes or matters, although counsel observed that in the Tekperbiawe case the statement on the decline to exercise jurisdiction by the High Court was obiter dictum. Referring to section 14 (1) (a) of the Courts Act, 1971 (Act 372), which enacts that “Subject to the provisions of the Constitution and any other enactment the High Court of Justice shall have—(a) an original jurisdiction in all matters”; and section 52 of the same Act which enacts that:
“Notwithstanding anything to the contrary in this Act or any other enactment, the High Court, a Circuit and a District Court shall not have jurisdiction to entertain either at first instance or on appeal any cause or matter affecting chieftaincy,”
Learned counsel submitted that the provisions of those two sections are in conflict.
He went on to show the attitude of the courts when faced with such a conflict. First he referred to the case of Anomabu Stool v. Acquah (1957) 3 W.A.L.R. 265, P.C. in which the Privy Council by construction held that the High Court could not exercise jurisdiction. In that case sections 15 and 88 of the Courts Ordinance, Cap. 4 (1951 Rev.), were in conflict. Section 15 of Cap. 4 enacted that:
“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: Provided that the Admiralty jurisdiction and authority of the Supreme Court shall be exercised by virtue and in pursuance of the provisions of the Colonial Courts of Admiralty Act, 1890.”
Section 88 of the same Ordinance provided that:
“The Supreme Court and Magistrates’ Courts shall not have jurisdiction to entertain either as of first instance or on appeal any civil cause or civil matter instituted for—
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(1) the trial of any question relating to the election, installation, deposition, or abdication of any Paramount Chief, Head Chief, or Chief;
(2) the recovery or delivery up of Stool property in connection with any such election, installation, deposition, or abdication;
(3) the trial of any question touching the political or constitutional relations subsisting according to native law and custom between two or more Paramount Chiefs or Head Chiefs, or between two or more Chiefs, or between a Paramount Chief and a Chief, or between a Head Chief and a Chief.”
It will be observed that it is the similar problem posed here by sections 14 (1) (a) and 52 of the Courts Act, 1971, which was faced by the court under the equivalent and almost identical sections 15 and 88 of the Courts Ordinance, Cap. 4 (1951 Rev.), which are reproduced supra.
Secondly learned counsel referred to the case of Omanhene Nkyi Ababio v. Kwamin Ackumpong (1940) 6 W.A.C.A. 173 where in a similar conflict in sections 14 and 17 of the then Courts Ordinance, the court held that the Divisional Court under section 14 possessed jurisdiction but could not exercise that general jurisdiction by virtue of the prohibition in section 17 of that Ordinance.
Learned counsel contended next that a similar situation having arisen in 1944 in the case of Kojo Gyapon v. Osei Kwabena II (1944) 10 W.A.C.A. 213, the court in considering sections 14 and 17 of the Courts Ordinance construed the effect of section 17 to be a restriction on the exercise of jurisdiction conferred by section 14. His submission therefore as far as the Courts Act, 1971, is concerned is that the orthodox approach in the present case should be that section 52 of Act 372 restricts the exercise of jurisdiction by the High Court as conferred on it by section 14 (1) (a) so far as chieftaincy matters are concerned.
Taking the argument from the constitutional point of view, learned counsel referred to article 102 (2) of the 1969 Constitution vesting jurisdiction in all matters civil or criminal generally in the judiciary and to article 113 (1) of the same Constitution from which the full jurisdiction of the High Court in particular is derived in civil and criminal matters, both of which provisions were saved by section 4 (a) of the National Redemption Council (Establishment) Proclamation, 1972, which reads:
“Notwithstanding the suspension of the Constitution, and until provision is otherwise made by law,—
(a) all Courts in existence immediately before the 13 th day of January, 1972 shall continue in existence with the same powers, duties, functions and composition as they had immediately before that date…”
He contended that under this paragraph are saved the provisions of articles 154 and 155 of the 1960 Constitution establishing National and Regional Houses of Chiefs as adjudicating bodies which are given special procedures for the determination of chieftaincy matters, made expressly under Part V of the Chieftaincy Act, 1971 (Act 370), under the Chieftaincy .
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(Proceedings and Functions) (Traditional Councils) Regulations, 1972 (L.I.798), and also under the Chieftaincy (National and Regional Houses of Chiefs) Procedure Rules, 1972 (C.I. 27), and submitted that where jurisdiction is given to other bodies in certain matters, with special procedures, the High Court should not, and will not, exercise jurisdiction. Counsel relied on Adanji v. Hunvoo (1908) 1 N.L.R. 74; Hood Phillips, Constitutional Law of Great Britain (2nd ed.) at pp. 97-98 and Earl of Cowley v. Countess Cowley [1901] A C. 450, H.L.
Referring to clause (c) of the endorsement on the writ of summons which seeks the relief of injunction to restrain the Okyeman Traditional Council (which is the same as the second defendant herein) from recognising the first defendant as chief of Osiem, learned counsel submitted that the Akyem Abuakwa Traditional Council being a political entity or body, if it recognises a political status such as that of a chief, its recognition cannot be questioned in a court of law nor can it be forced to withdraw its recognition. He relied on Starke’s Introduction to International Law (4th ed.) at pp. 110-111. From this viewpoint also, counsel submitted that this court has no jurisdiction to grant the injunction sought by the writ of summons.
Anticipating that this court might lean to some persuasions from the case of Republic v. Boateng; Ex parte Adu-Gyamfi II [1972] 1 G.L.R. 317, in which it was held that the High Court has concurrent jurisdiction with traditional councils and the Houses of Chiefs, counsel reminded this court that that decision of the High Court is not binding on this court as a court of concurrent jurisdiction.
In his reply learned counsel for the plaintiffs started with the last submission made by counsel on the question of recognition of a chief. He submitted that in such a matter public international law has no application, the issue being purely domestic. He maintained that recognition being statutory in procedure under our own law, it is questionable in our courts. In this respect learned counsel referred to the Adu-Gyamfi II case (supra); Republic v. Chieftaincy Committee on Wiamoasehene Stool Affairs; Ex parte Oppong Kwame [1971] 1 G.L.R. 321 (court of first instance) and affirmed by the Court of Appeal in [1972] 1 G.L.R. 60, in all of which recognition was pronounced upon. Upon a careful consideration of the reasoning in all these cases and the submissions before me, I am of the opinion that it would be an improper and dangerous proposition to say that the recognition or otherwise of a chief cannot be tested in the courts as a domestic matter.
The Sarpong v. Antwi case (supra) must be examined as to its effect. That was a case in which the Court of Appeal held that the circuit court had no jurisdiction to entertain an action relating to a cause or matter affecting chieftaincy properly cognisable under section 15 of the Chieftaincy Act, 1961 (Act 81). As counsel for the plaintiffs has observed that decision did not go beyond considerations other than the circuit court’s jurisdiction. In that case I think the Court of Appeal was considering the jurisdiction of the circuit court in particular and the decision cannot be
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said to be of general application, as that court did not have the opportunity to deal specifically with the superior jurisdiction of the High Court. I therefore think that the matter is still open whether or not the High Court, as a superior court, has jurisdiction concurrent with traditional councils in chieftaincy matters, bearing in mind that by section 14 (1) (a) of the Courts Act, 1971 (Act 372), the High Court has an original jurisdiction in all matters generally.
On the contention of special procedures for traditional councils as propounded by learned counsel for the applicants, I am inclined to the submission of opposing counsel that the true proposition is that where a statute creates a special right and provides special procedures for enforcing that right, the clear presumption is that the special procedures must alone be applied. Section 27 of the Courts Act, 1971 (Act 372), enacts:
“For the purposes of clause (4) of article 102 of the Constitution there shall be the following inferior Courts—
(a) Circuit Courts,
(b) District Courts (Grades I and II),
(c) Juvenile Courts,
(d) the National House of Chiefs, and Regional Houses of Chiefs and every Traditional Council, in respect of the jurisdiction of any such House or Council to adjudicate over any cause or matter affecting chieftaincy and
(e) such other inferior Courts as may be established by law.”
By that provision, houses of chiefs and traditional councils are inferior courts which are wings of the judiciary. Counsel submitted that the 1969 Constitution by its articles 153 to 155, only dealt with the National and Regional Houses of Chiefs and left traditional councils for Parliament under article 102 (4) of the Constitution as far as rules and procedures are concerned. He contended that L.I. 798 and C.I. 27 are not by any means special procedures as opposed to the rules as enacted for the various courts in the realm. I am inclined to that view.
As regards the so-called policy attitude of the courts, I am of the same opinion with learned counsel that whatever the courts did was not the result of policy but what the law by statute enjoined and allowed them to pursue at the time, so that if statutes change they, the courts, are bound to change with them. Illustrations are articles 41 and 42 (3) of the 1960 Constitution, sections 29 and 41 of the Courts Act, 1960 (C.A. 9), with limited jurisdiction and the Courts Decree, 1966 (N.L.C.D. 84), para. 27.
This brings me to the crux of the matter under consideration, namely, whether the High Court has jurisdiction to entertain this action. On this issue counsel for the plaintiffs referred to section 4 of the National Redemption Council (Establishment) Proclamation, 1972, which preserved the courts, despite the suspension of the 1969 Constitution. He observed that the only limitation placed on the jurisdiction of the High Court is that concerning a treasonable offence as contained in article 113 (6) of the
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1969 Constitution. He submitted that by reason of article 113 (1) Parliament could add to or enlarge, but not take away, jurisdiction of the High Court as already conferred. That article reads as follows:
“113. ( 1) The High Court of Justice shall have jurisdiction in civil and criminal matters and such other original, appellate and other jurisdiction as may be conferred upon it by this Constitution or any other law.”
He contended that where a provision is made elsewhere which is in conflict with the provisions of the Constitution as continued in force by the National Redemption Council (Establishment) Proclamation, 1972, s. 4, it must give way to the Constitution. In this respect counsel drew attention to a distinction to be drawn between conflicts in the same Act or enactment on the one hand and provisions elsewhere which per se are in conflict with the Constitution. He argued that the question here is not what course the court should take or what it ought to do, if section 14 of the Courts Act, 1971 (Act 372), conflicts with section 52 of the same Act or with section 15 of Act 370, but whether section 52 of the Courts Act and section 15 of the Chieftaincy Act, 1971, are in conflict with, and offend against, article 113 (1) of the Constitution. Counsel relied on the case of the Republic v. Maikankan [1973] 2 G.L.R. 384 at p. 406 where the Court of Appeal declared:
“By providing for leave before an appeal could be lodged in the Court of Appeal from a decision of the High Court of Justice, paragraph (a) of subsection (5) of section 10 of the Courts Act, 1971 (Act 372), is in conflict with the provisions of clause (2) of article 110 of the 1969 Constitution. The jurisdiction to hear and determine appeals from the High Court of Justice is conferred on the Court of Appeal not by the provisions of section 10 of the Courts Act, 1971, but by the provisions of article 110 of the 1969 Constitution. Parliament could only confer ‘other appellate jurisdiction’ which the Courts Act, 1971, does in respect of appeals to the Court of Appeal from the circuit courts. And the provisions of the 1969 Constitution in this wise prevail over those of the Courts Act, 1971.”
Counsel contended that section 52 of the Courts Act, 1971 (Act 372), and section 15 of the Chieftaincy Act, 1971 (Act 370), being both in conflict with article 113 (1) of the Constitution, this court should so declare by virtue of article 1 (2) of the Constitution, inasmuch as those conflicting provisions cannot operate to amend the Constitution by virtue of article 169 thereof.
Counsel for the second defendant in siding with the submissions of counsel for the first defendant presented substantially similar arguments against jurisdiction which I would like to consider in one respect only since I have already dealt with all other aspects of his contentions.
I think that where the Constitution intends to exclude jurisdiction it will do so expressly as it did in article 106 (1) of the 1969 Constitution.
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The Chieftaincy Act, 1960 (Act 81), was enacted under the First Republican Constitution, 1960, whose manner of distributing jurisdiction for the courts was different from that of the Second Republican Constitution. The relevant provision in the 1960 Republican Constitution provided by article 42 (3) that, “the High Court shall have such original and appellate jurisdiction as may be provided for by law.” Whereas the 1969 Constitution provided by article 113 (1) that:
“The High Court of Justice shall have jurisdiction in civil and criminal matters and such other original, appellate and other jurisdiction as may be conferred upon it by this Constitution or any other law.”
The difference between those enactments is clearly that whereas in the 1960 Constitution everything was left to Parliament to give jurisdiction, the 1969 Constitution itself conferred the jurisdiction. So that under the 1960 Constitution, Parliament could confer or withhold jurisdiction quite legitimately, for instance, as it did in the case of the Chieftaincy Act, 1960 (Act 81), and in section 39 of the Courts Act, 1960 (C.A. 9). But under the 1969 Constitution the position is altered by the Constitution itself, to which must submit all subsequent enactments such as section 52 of the Courts Act, 1971 (Act 372), and section 15 of the Chieftaincy Act, 1971 (Act 370). There is certainly no doubt that the jurisdiction of the High Court is derived from article 113 (1) of the Constitution by the provisions of which Parliament can only enlarge and not subtract from its jurisdiction. It follows that any enactment which purports to subtract from the jurisdiction as already conferred by the Constitution must, to that extent, give place to the Constitution. From the submissions and arguments so ably presented by learned counsel for the parties, that is the situation in which I find section 52 of the Courts Act, 1971 (Act 372), and section 15 of the Chieftaincy Act, 1971 (Act 370). They each offend against the Constitution in so far as jurisdiction of the High Court is concerned. In this respect I wish to adopt the decision of Hayfron-Benjamin J. (as he then was) in the matter of Republic v. Boateng; Ex parte Adu-Gyamfi II [1972] 1 G.L.R. 317.
In the result I hold that the High Court has jurisdiction concurrent with a traditional council or a house of chiefs to entertain any cause or matter affecting chieftaincy as defined in section 66 of the Chieftaincy Act, 1971 (Act 370). This court is therefore properly seised of the present action.
DECISION
Action to proceed.
S. O
