REPUBLIC v. BOATENG; EX PARTE ADU-GYAMFI II [1972] 1 GLR 317
HIGH COURT, ACCRA
Date: 19 NOVEMBER 1971
BEFORE: HAYFRON-BENJAMIN J.
CASES REFERRED TO
(1) Gray v. Gray [1971] 1 G.L.R. 422.
(2) Republic v. Maikankan [1971] 2 G.L.R. 473, S.C.
(3) Darley v. R. (1846) 12 C1. & F. 520; 8 E.R. 1513.
(4) R. v. Speyer [1916] 1 K.B. 595; 85 L.J.K.B. 630; 114 L.T. 463; 32 T.L.R. 211.
NATURE OF PROCEEDINGS
APPLICATION for an order of prohibition and injunction to restrain the respondent from exercising the functions of a chief. The facts are fully stated in the ruling of Hayfron-Benjamin J.
COUNSEL
T. K. Agadzi for the applicant.
M. K. Ayisi for the respondent.
M. A. F. Ribeiro, Senior State Attorney, for the Attorney-General.
JUDGMENT OF HAYFRON-BENJAMIN J.
The applicant is the abusuapanyin of the Abrade family of Akwatia and a principal kingmaker. He claims that with the queenmother, Obaapanyin Adjoa Dankwa II, he is responsible for the election and enstoolment of the chief of Akwatia. He claims that the application is for himself and on behalf of the Abrade family of Akwatia. This is denied by the respondent who states that “it is not true that the applicant is the head of the Abrade family or a principal kingmaker of the Akwatia stool, or that he brings the action on behalf of the said family. The respondent claims that the head of the Abrade family of Akwatia is Opanyin Kofi Tuda II.”
Lengthy litigation over the enstoolment or the purported enstoolment of the respondent as Akwatiahene was decided by the chieftaincy committee appointed by the National Liberation Council under the provisions of the Chieftaincy Act, 1961 (Act 81), and presided over by Mr. Justice Siriboe. The decision of this committee as confirmed by the National Liberation Council was published in No. 39 of the Local Government Bulletin of 6 September 1968. It reads:
“Entitled: Ohemaa Adjoa II and Others, Plaintiff applicants versus Gyasehene Kwasi Boateng and Asafoatse Kwame Dapaah, Defendant respondents.
Notice is hereby given under subsection (5) of section 39 of the Chieftaincy Act, 1961 (Act 81), that the following findings of the Committee consisting of J. B. Siriboe, Esq. (Chairman), J. B. Braimah, Esq.,
(Kenyasewura) and I. K. Agyeman, M.B.E., Esq., given on the 7th March, 1968 has been confirmed by the National Liberation Council:
(i) that the appeal is allowed and the proceedings and judgment of the Akim Abuakwa Traditional Council given in favour of Kwame Boateng, are hereby set aside as being null and void; (ii) that the Obaapanin be given the chance as custom demands, to make fresh nomination of a suitable candidate bearing in mind that at least she has three chances to do so; [p.322] of [1972] 1 GLR 317
(iii) that since the Akim Abuakwa Traditional Council made no order as to costs, a similar order is made in this appeal (No costs).
By command of the National Liberation Council. 2nd September, 1968.”
The applicant in his affidavit in support of his application has given the full title of the causes which came before the chieftaincy committee. The title is:
“Obaapanyin Adjoa Darkwa II & Ors. Plaintiffs, versus Gyasehene Kwasi Boateng and Defendants,
Asafoatse Kwame Dapaa and Baffour Asare Amankwa II Plaintiff, versus Gyasehene Kwasi Boateng and Kwame Dapaah Defendants, and Opanyin Kwaku Ampofo Plaintiff, versus Opanyin Kofi Tuda II
Defendant.” The applicant states on oath in his affidavit that at the time of the said actions, Kwaku Ampofo was the abusuapayin or head of family, but he has since died. He further states that he, the applicant, represented
the said Kwaku Ampofo at the litigation and was after his death appointed successor to him and made abusuapayin of the Abrade family of Akwatia, a position he has since held. The respondent nowhere denies that the applicant was appointed a successor to Kwaku Ampofo, he only denies that the applicant is the head of the Abrade family.
Kwaku Ampofo it is clear was a party to the dispute, and the applicant is his successor. The person who the respondent claims to be the head of the Abrade family was also a party to the litigation. It is not shown in the title of the case in what capacities either of these two persons took part in the litigation.
However it is clear that the applicant as a representative of Kwaku Ampofo was on the queenmother’s side and litigated in the same interest while Kofi Tuda II was on the respondent’s side and fought in the same interest. It would be unreasonable, to say the least, to require the said Kofi Tuda, even if it is conceded (which is not) that he is the abusuapanyin of the Abrade family to initiate these proceedings.
The rule that only the head of the family can sue or be sued on behalf of the family has been subjected to several exceptions over the years.
In any event I am satisfied and so hold that the applicant having represented Kwaku Ampofo in the earlier litigation and having been elected his successor has sufficient interest in the subject-matter of these proceedings as to vest in him the necessary locus standi to bring and maintain this application.
[p.323] of [1972] 1 GLR 317 The gravemen of the applicant’s complaint can be found in paragraphs (13), (14) and (15) of his affidavit.
These state as follows: “That in spite of the judgment (findings) of the Chieftaincy Secretariat which is still subsisting and without any authority and that of the queenmother [sic.] the respondent has been put on the stool as chief of Akwatia.
(14) The respondent has gone to live in the palace, he calls himself the chief of Akwatia under the stool name of Barima Kwame Boateng II and purports to exercise the functions of the chief of Akwatia contrary to custom and the judgment/findings of the secretariat aforesaid. (15) That this act is against the finding of the Chieftaincy Secretariat and the act is calculated to bring and
is bringing disruption in the town of Akwatia in general and in the Abrade family in particular.”
“These grounds have been summarised in the statement filed on behalf of the applicant in compliance with the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). Order 59, r.2. The grounds on which relief is sought are given as:
“That there is a subsisting judgment against respondent debarring him as chief of Akwatia and that the respondent did not appeal against the judgment and no court of competent jurisdiction has set aside or reviewed the judgment. And that without the consent of the applicant and the queenmother Nana Adjoa Darkwa of Akwatia respondent has occupied the stool and purports to exercise the functions of chief of Akwatia contrary to the judgment/findings of the Chieftaincy Secretariat.”
The relief sought by the applicant is an order of prohibition restraining the respondent from occupying the palace of Akwatia, from calling himself the chief of Akwatia, and also from purporting to exercise the functions of the chief of Akwatia.
Before stating the case put up by the respondents, I must comment on the extremely careless manner in which these papers filed in these proceedings for the applicant have been prepared. All through these papers, reference is made to the judgment or findings of the Chieftaincy Secretariat. A reference to the Local Government Bulletin which has also been filed would have shown those responsible for preparing these papers that the findings were those of the chieftaincy committee and not the secretariat. Further the relief sought as stated in one affidavit is for an order of prohibition against the respondent herein to prevent him from exercising the functions of a chief of Akwatia including his judicial functions and in another affidavit it is “for an order of prohibition against the said respondent to stop him from occupying the palace of Akwatia, and also from purporting to exercise the functions of the chief of Akwatia.” In the statement filed under Order 59, r. 2, however, no mention is made of an order of prohibition, neither is mention made of an order to prevent
[p.324] of [1972] 1 GLR 317 the respondent from residing in the palace or performing any judicial functions.
The case of the respondent is well stated in paragraphs (5)-(12) of his affidavit in opposition. These state:
“(6) That the decision of the chieftaincy committee did not debar me from further election as a chief but gave the queenmother the chance in consultation with the kingmakers to nominate a suitable
candidate for three consecutive times. This is contained in Local Government Bulletin No. 39, exhibit
A. (7) That this order was respected by the Akwatiaman and the candidate of the queenmother was rejected in three consecutive elections by the people according to custom and in terms stated by the decision; I was later accepted by the people and elected a second time. (8) That I was elected according to custom and that I am entitled to live in the palace and exercise my rights as Akwatiahene. (9) That immediately after my election the Okyeman Council approved my appointment and installed me as the chief of Akwatia whereupon I swore the oath of allegiance to the Okyeman Council and a report was accordingly made to the government. (10) That the Ghana Government accepted my election and installation as a chief of Akwatia and revoked
the prohibition order made against me; vide Executive Instruments E.I. 3 and E.I. 4 dated 22 January 1970, which copy is hereto attached and marked exhibit B. (11) That on 23 January 1970, I was recognised by the Ghana Government as Akwatiahene. My appointment as a chief was published in the Local Government Bulletin No. 4 on Friday 23 January 1970. (12) That by virtue of the facts, adduced herein, I am by custom and in law the chief of Akwatia.” The major issues appearing for determination are therefore:
(a) Whether the election of the respondent conformed with the decision or findings or directives of the chieftaincy committee as confirmed by the National Liberation Council.
(b) If it did not so conform with the directives, whether the swearing of the allegiance to the Okyeman Council or the paramount stool rectified the position.
(c) If it did not rectify the position whether the recognition of the respondent by the government and
the publication of that recognition in the Local Government Bulletin is conclusive of the regularity
of his election and installation.
As the determination of the third issue would involve the effect of recognition by the government of a
chief under the Chieftaincy Act, 1961 (Act 81), and also the continued effectiveness of the Chieftaincy
Act especially the provisions dealing with the power of the government to recognise chiefs,
[p.325] of [1972] 1 GLR 317 I thought it desirable to have the Attorney-General’s department served with the proceedings and invited submissions from that office. Whenever a question arises in court whether or not any statute or any instrument made thereunder is void under article 1 (2) of the Constitution, 1969, or whether any statute or any instrument made thereunder which forms part of the existing law should be read with such modifications to bring it into conformity with the provisions of the Constitution under article 126 I shall direct the Attorney-General’s department
to be served with the necessary documents and shall invite arguments from that department. In India the Code of Civil Procedure, 1908 (Act V of 1908), makes provisions in Order XXVII-A for such a procedure.
The Attorney-General may then apply to join the case as a party; but he need not. He will have notice of the proceedings and may send a representative to present his views on the law to the court in a capacity similar to that of an amicus curiae. I am of the view that even if such a procedure is not specifically enacted in our rules, its observance will help greatly in making uniform the modifications etc., that will be introduced into the existing enactments by the courts.
Before I deal with the major issues, I shall consider a point of procedure which has been raised by the
respondent. The respondent has submitted that the application for prohibition does not lie and that it is misconceived and that the application for injunction is irregular and also misconceived and that these applications should be dismissed in limine. The applicant originally filed an application for leave to apply for an order of prohibition. I was in some doubt whether the position of a chief involved any judicial functions; I intimated to counsel that if it did not I was of the view that his proper remedy would be by way of an injunction.
I however granted leave to apply. Counsel in filing the pursuant notice filed an affidavit by the applicant in which he stated that the respondent, apart from his traditional functions, was also purporting to exercise judicial functions, but counsel did not claim an injunction on his pursuant notice apparently thinking that an injunction ought to be brought by ordinary motion and that it cannot be taken on an originating motion on notice as is required in applications for prerogative orders. On 29 December 1970 before I could rule on his original application for prohibition, he filed an ordinary motion for injunction. I decided therefore to hear arguments on his application for an injunction treating it as an amendment of the application for prohibition. In other words I have treated the applications as one dealing with prohibition or in the alternative an injunction. The application before me is therefore one of an originating motion on notice asking for an order of prohibition or an injunction.
I shall first deal with the respondent’s objection to the application for an injunction. It is quite clear to me that if this is an application for the ordinary equitable remedy of injunction, then it will not normally lie in the absence of the pendency of a substantive writ before the court.
[p.326] of [1972] 1 GLR 317
However if the injunction is part of an application for a prerogative writ the position is different. By
section 9 of the Administration of Justice (Miscellaneous Provisions) Act, 1938, all informations in the nature of quo warranto were abolished in England. Subsection (2) of that section provided that the High Court may grant an injunction restraining any person from acting in an office in which he was not entitled to act and might if the case so required, declare the office vacant. Under subsection (3) of section 9 no proceedings could be taken by any person under that section who would not have been entitled to apply for an information in the nature of quo warranto immediately before the commencement of the Act. The principles on which the new injunction can be issued are the same as those which governed the grant of the old prerogative writ of quo warranto and not in accordance with the substantive equitable principles governing the grant of the equitable injunction. The statutory provisions show that the reform was procedural and not substantive. Order 53, r.9(1) of the White Book, 1970 provides: “9 (1) The procedure in applications under section 9 of the Administration of Justice (Miscellaneous Provisions) Act, 1938, shall be the same as in applications for an order of mandamus and rule 1,3,4 and 5 shall apply so far as applicable to such application.” In Ghana the same rule which deals with application for mandamus deals with prohibition. Order 59
provides for the procedure in prerogative writs and provides in rule 2 (1) that, “No application for an
order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in
accordance with this rule.” It is clear therefore that if section 9 of the Administration of Justice
(Miscellaneous Provisions) Act, 1938, applies to Ghana then the procedure must be under Order 59, r. 2.
When leave is granted to apply for a prerogative writ, the applicant can with leave of the court amend his application. I think therefore that this court has power to treat the motion for injunction as an amendment of the original application for a prerogative writ.
The question is whether or not section 9 of the Administration of Justice (Miscellaneous Provisions) Act, 1938, applies to Ghana. Order 74 of the Rules of Court provides: [His lordship here read the provisions as set out in the headnote and continued:] I am satisfied that the procedure in England up to the time of our Constitution is in force in Ghana so far as no provision is made in our rules and so far as it can conveniently be applied. See Gray v. Gray [1971] 1 G.L.R. 422. Section 9 is clearly procedural and I hold that it is applicable here.
The objection to the application for an order of prohibition must now be considered. The applicant in one of his affidavits states”that apart from his traditional functions the respondent has also purported to exercise his judicial powers over the town and the subjects.” The question that arises is whether prohibition lies to prevent a person from exercising judicial functions generally or only from exercising judicial functions in respect or specific causes. Blackstone in his Commentaries on the Laws of England, Vol. III, p.112 says: [p.327] of [1972] 1 GLR 317
“A prohibition is a writ issuing properly only out of the court of king’s bench being the king’s prerogative writ; but, for the furtherance of justice, it may now also be had in some case out of the court of chancery, common pleas, or exchequer; directed to the judge and parties of a suit in any inferior court, commanding them to cease from the prosecution thereof, upon a suggestion that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court.”
Close examination of the cases shows that it has never been granted to prohibit a person from exercising judicial functions generally. I am not now prepared to say that it should never be granted, all that I say at the moment is that in this particular case prohibition is not an appropriate remedy.
When the learned state attorney representing the Attorney-General appeared he raised two points
regarding the jurisdiction of this court. I decided to hear him even though he had been invited by the court for his views on the continued operation of the Chieftaincy Act, 1961 (Act 81). The first point he raised had also been raised by the respondent in his affidavit in opposition. It was submitted that the
subject-matter of the application being a cause or matter affecting chieftaincy, the High Court had no
jurisdiction. Reliance was placed on paragraph 66 of the Courts Decree, 1966 (N.L.C.D. 84), which
provided that:
“Notwithstanding anything to the contrary contained in this or any other enactment, the High, Circuit and District Courts shall not have jurisdiction to entertain either as of first instance or on appeal any civil cause or matter instituted for—
(a) the trial of any question relating to the election, installation, deposition or abdication of any Chief whatsoever; (b) the recovery or delivery of stool or skin property in connection with any such election, installation, deposition or abdication; or (c) the trial of any question touching the political or constitutional relations subsisting according to customary law between such Chiefs.” The paragraph has since the arguments were presented in this case been repealed and substantially
re-enacted in section 52 of the Courts Act, 1971 (Act 372), which provides that:
“Notwithstanding anything to the contrary in this Act or any other enactment the Court of Appeal, 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.”
This prohibition is also enacted in sections 15 and 22 (1) of the Chieftaincy Act, 1971 (Act 370).
It is quite clear that Parliament having the power to establish inferior and traditional courts, section 52 operates effectively to divest the circuit [p.328] of [1972] 1 GLR 317 and district courts of jurisdiction in chieftaincy matters. The Position is not the same in the case of the Court of Appeal and the High Court. These are courts established by the Constitution, and by article 102
(2) it is specifically provided that:
“The Judiciary shall have jurisdiction in all matters civil and criminal including matters relating to this Constitution, and such other matters in respect of which Parliament may by or under an Act of Parliament confer jurisdiction on the Judiciary.”
It is quite clear therefore that Parliament can only add to but not to take away the jurisdiction of the
superior courts which has been conferred by the Constitution.
The jurisdiction of the High Court as established under the Constitution is spelt out in articles 113 and 114 of the Constitution and I set out the relevant provisions in extenso:
“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. (2) The High Court of Justice shall have jurisdiction to determine any matter relating to industrial and labour disputes and administrative complaints. (3) Parliament shall, by or under an Act of Parliament, make provision for the exercise of the jurisdiction conferred on the High Court of Justice by the provisions of the immediately preceding clause.” Clauses (4), (5) and (6) are not presently relevant and are omitted.
“114. The High Court of Justice shall have supervisory jurisdiction over all inferior and traditional Courts in Ghana and any adjudicating authority and in the exercise of its supervisory jurisdiction shall have power to issue such directions, orders or writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto as it may consider appropriate for the purposes of enforcing or securing the enforcement of its supervisory powers.” The High Court has also certain special jurisdiction conferred on it by the Constitution, e.g. for the enforcement of the fundamental human rights under article 28. It is not necessary here to consider such
special jurisdiction.
It is quite clear from the foregoing provisions that the High Court is vested with original jurisdiction in all matters and section 13 (1) of the Courts Act, 1971 (Act 372), makes this quite clear. It is argued however that the provisions of articles 154 and 155 of the Constitution operate to divest the High Court of that jurisdiction. Articles 154, 155 and 161 provide that:
[p.329] of [1972] 1 GLR 317
“154. (1) There shall be established a National House of Chiefs.
(2) The House of Chiefs of each Region shall elect as members of the National House of Chiefs five chiefs from the Region. (3) The National House of Chiefs shall, subject to the provisions of clause (3) of article 105 of this Constitution (a) have appellate jurisdiction in any matter relating to chieftaincy which has been determined by the House of Chiefs in a Region from which appellate jurisdiction there shall be an appeal, with the leave of the Supreme Court or of the National House of
Chiefs to the Supreme Court; and (b) advise any person or authority charged with any responsibility under this Constitution or any other law for any matter relating to or affecting Chieftaincy ….
155. (1) There shall be established in and for each Region a House of Chiefs which shall:
(a) have original jurisdiction in all matters relating to a paramount Stool or the occupant of a paramount Stool; (b) hear and determine, subject to the provisions of clause (3)of article 105 of this Constitution, appeals from the highest Traditional Councils within the area of authority of the Traditional Authority within which they are established, in respect of the nomination, election, installation or deposition of any person as a chief; (c) perform in and for the Region such other functions as may be conferred upon it by or under the authority of an Act of Parliament . . .” “161. Subject to the provisions of this Constitution, Parliament may by or under an Act of Parliament provide for the performance of functions by the Councils established under this Chapter.” I do not find anything in these articles to support the view that the High Court was deprived of
jurisdiction by the Constitution in chieftaincy matters, and that the exclusive jurisdiction in such matters was vested by the Constitution in the House of Chiefs or the Traditional Councils. Wherever the Constitution vested exclusive jurisdiction it stated it expressly, e.g. article 106 (1), which provides that the Supreme Court shall have “original jurisdiction, to the exclusion of all other Courts,” in matters relating to the enforcement or interpretation of the Constitution. It is clear to me therefore that the High Court as established under the Constitution has concurrent jurisdiction in chieftaincy matters. [p.330] of [1972] 1 GLR 317
It is submitted further that the provisions of article 105 (3) shows that the Constitution establishes a
regime in chieftaincy matters, i.e. that only the Supreme Court among the courts constituting the Superior Courts of Judicature is vested with jurisdiction in chieftaincy matters. Article 105 (3) provides that, “The Supreme Court shall have appellate jurisdiction to hear and determine any matter which has been determined by the National House of Chiefs.”
It is clear that all that is established by the Constitution is that where a chieftaincy matter commences in a traditional council or a house of chiefs appeal proceedings lie therefrom ultimately to the Supreme Court through the National House of Chiefs. If, however, the proceedings are commenced in the High Court proceedings lie from there to the Court of Appeal and thereafter to the Supreme Court as in all other civil proceedings. I am satisfied that the High Court has concurrent jurisdiction in chieftaincy matters and that this court has jurisdiction to entertain this application. The next point as to jurisdiction raised by the learned state attorney is that as a question relating to the enforcement or interpretation of the Constitution is involved in the determination of this application the jurisdiction of this court is ousted and that the question should be referred to the Supreme Court for determination under the provisions of article 106 (2). It is submitted that such question arises twice in this application. The first is in determining the jurisdiction of the court to hear the application and secondly in determining what effect the Constitution has had on powers of the government over the recognition of chiefs. There is a vast distinction between applying the Constitution and enforcing or interpreting the Constitution.
Article 126 (a) includes the “Constitution” among the laws of Ghana. Article 1 (2) of the Constitution
provides that it shall be the supreme law and any other law found to be inconsistent with any of its
provisions shall, to the extent of the inconsistency, be void and of no effect. The Constitution is itself in force already. There can be no action to enforce it as such. The Constitution confers rights, e.g. the
fundamental human rights under Chapter Four, and also imposes duties such as the duty of ministers to declare their assets. An action taken to enforce these rights and duties can properly be said to be a matter relating to the enforcement of the Constitution. Further questions of interpretation arise only where there is a doubt as to the meaning to be attached to any of the provisions of the Constitution.
To say that every time the Constitution is applied it is being enforced would lead to absurd results. The Superior Courts are established by the Constitution, their jurisdiction is defined by the Constitution. In every case they must determine even if sub silentio the question whether or not they have jurisdiction, i.e. they must apply the provisions of the Constitution dealing with the jurisdiction to the issues raised in the proceedings. [p.331] of [1972] 1 GLR 317 To suggest that every such exercise involves the enforcement of the Constitution would mean that every
case or application brought before the courts must be referred to the Supreme Court to determine the preliminary questions of jurisdiction. This clearly would be absurd. Furthermore the process of decision making is to apply a rule of law to the facts as found by the tribunal. In ascertaining what rule is applicable the court or judge would determine its validity albeit sub silentio by reference to article 1 (2) of the Constitution, i.e. the judge would determine whether the rule of law to be applied is in conformity with the provisions of the Constitution; for if it is contrary to the Constitution it ceases to be a rule of law;
it is void and of no effect and cannot and ought not to be applied to any case. If it is suggested that every such exercise, which takes place in every case, sometimes several times in one case, is an interpretation or enforcement of the Constitution, then every time a court finds a rule of law it must refer it to the Supreme Court for determination as to its validity. Such a procedure was frowned upon by the Supreme Court itself in Republic v. Maikankan [1971] 2 G.L.R. 473, S.C.
Having disposed of the preliminary points in respect of jurisdiction and procedure, I shall now consider the major issues raised in this application. As I have stated earlier on in this judgment the first of these is whether the election of the respondent is in accordance with the Siriboe Committee’s finding and recommendations as contained in No. 39 of the Local Government Bulletin 1968. The most relevant portion of the findings is where the committee recommended that the obaapanyin be given the chance of nominating a suitable candidate bearing in mind that at least she has three chances to do so. I am of the view that all that the committee meant was that the queenmother was to be allowed to nominate a suitable candidate for the stool according to custom. The respondent says in paragraph (6) of his affidavit that the decision of the chieftaincy committee gave the queenmother the chance in consultation with the kingmakers to nominate a suitable candidate three consecutive times. Both parties seem to believe that the committee’s recommendation was a statement of the totality of the queenmother’s rights and that apart from having three chances she had no further rights. The committee was obviously stating the minimum of her rights, otherwise the term “at least” would be meaningless. The rejection of the queenmother’s candidates on three consecutive occasions does not exhaust the queenmother’s rights; she is not thereby debarred from participating in the election of a candidate. The committee did not say that. The committee’s recommendation means that in the election of a candidate for the stool the proper customary procedure should be followed. The customary procedure among the Akim Abuakwa is described by Danquah in his Akan Laws and Customs, pp. 110-112. The customary rules in this regard can be briefly stated:
(1) It is for the royal family, sometimes consisting of two or more houses, to have a candidate for the
stool. [p.332] of [1972] 1 GLR 317
(2) The acceptance of a person’s candidature is by the people or the subjects of the stool.
(3) The candidate need not be the closest in blood with the deceased chief; any one belonging to the
royal family can be chosen so long as he has no defects and is otherwise acceptable to the people.
(4) The formal act of choice is by the queenmother.
Danquah then describes the actual ceremony of election at pp. 111-112 and says:
“After the funeral obsequies of a Chief, or the final determination of the deposition of an unwanted Chief, all who must have a voice in the election of the new Chief assemble in the public place at the invitation of the Chief who is Regent ex-officio. Thereupon, the sub-Chiefs, Elders and Councillors of the town, together with the Captains of the Asafo Companies, call upon the female head, or in her absence, the male head of the Royal Family, to name a person fit for the stool. The members of the Royal Family would then retire into council with a view to consult on the question of the proper person to be elected for the stool. The Head of Family is, however, the moving spirit of the whole. On the return of the Head of the Royal Family with her people, she names a suitable candidate for election. If the nominee is acceptable to the sub-Chiefs, Elders and Councillors assembled, the name is submitted to the meeting, and the general approval of the Asafo or ‘Werempi’ Company (of young men) obtained. If he is not acceptable, the Asafo or ‘Werempi’ Company would signify their disapproval through their respective captains, and their opinion being in consonance with
that of the sub-Chiefs, Elders, and Councillors the Head of the Royal Family would have to make other suggestions until the proper candidate desired by the people would be nominated and accepted.” Danquah states in a footnote at p. 112 that the foregoing is the “statement of the theory of ‘the choice of a Stool heir by the Queenmother’ [but that] in practice,…. the most important chiefs or councillors of a Stool would meet in a secret conclave of which meeting the queen-mother might be a member, and there agree on the person for election. The nominee being thus agreed upon, the election in a public assembly of all the chiefs and people would result in the appointment of the candidate unanimously chosen. The queenmother’s voice is sought in the nomination because of her natural position as the mother or grandmother (mater familias) of all the Stool heirs.”
Danquah states that the procedure for the election of a chief is democratic. It is democratic not in the
sense that there is a counting of heads, but because of the extensive consultations of interested parties, and also of the [p.333] of [1972] 1 GLR 317 genuine efforts at arriving at a consensus especially between the royal family as personified in the queenmother and the people, i.e. the asafo, and the elders and councillors of the stool. A candidate for the stool must be acceptable to these two groups. Where the queenmother’s candidate is not acceptable to the people, she must find another candidate and meanwhile the stool would remain vacant. The people themselves cannot nominate a person for election. It is quite clear from the respondent’s own affidavit that he was not nominated by the queenmother or by the royal family. I hold therefore that his election and installation as a chief of Akwatia were irregular and contrary to custom. The next issue raised in these
proceedings is whether the installation and the swearing of the oath of allegiance to the paramount stool cured the defect in the election of the respondent. Danquah at p. 112 says of a person who has been duly elected chief, “But the elected is as yet little more than an ordinary member of the Royal Family. There remains the ceremony of swearing-in, and then the grander and more solemn ceremony of installation.”
The learned author goes on at p. 113 that “The next custom is installation. This is a solemn ceremony
done with great privacy, and almost always at night. It may properly be called the ceremony of
enstoolment, as being the occasion on which the new chief is ceremonially placed on his ancestral stool.” He continues at p. 114 that:
“After this solemn ceremony the new chief is worthy enough to regard himself as the most elevated person amongst his peers, and he is now endowed with the right and correlative duty to rule and govern his dominions with the advice and counsel of the members of the Administration.”
From these passages it is clear that the swearing of the oath of allegiance and the installation are essential formalities for the enstoolment of a chief. However there is nothing found in these passages that would suggest that the oath or an installation can operate to deprive the queenmother or the head of the stool family of their basic right to nominate the chief for election. Danquah puts the position beyond doubt in a passage appearing at p. 122 of his book. He states:
“As remarked elsewhere a stool comes into being as the private property of a more or less private family.
This family in time rises to the position of rulers of a people-a group of clans or a whole tribe. These people are governed by the Stool, but they are governed with their own consent. The Stool, however, throughout its existence belongs to the Family for or by whom it was founded. Hence the Head of the Stool family is de jure custodian or owner of both the Stool and the Family. Consequently, if the people desire a new member of the Stool Family to rule them they have to approach the legal head of the family to nominate a fit person to sit on the Stool and rule them. The stool does not belong to the people, and when a thing does not belong to you you cannot do what you like with it, but if the one who actually occupies the property thereby acquires rights over you, then, naturally, a corresponding duty arises.” [p.334] of [1972] 1 GLR 317 I am of the view therefore that the mere fact that there has been installation and the swearing of the oath of allegiance does not validate an election done by bodies other than the stool family as represented by the queenmother and the head of family. I hold therefore that the installation of or the swearing of the oath to the Okyeman Council by the respondent did not rectify the invalidity in his nomination as a chief.
The last major issue is whether the recognition of the respondent made him a chief notwithstanding that his enstoolment under customary law is invalid. The publication in the Local Government Bulletin, No. 4 was dated 23 January 1970, i.e. before the Chieftaincy Act, 1971 (Act 370). I shall therefore first consider the position under the Chieftaincy Act, 1961 (Act 81), as far as the status of the respondent is concerned.
Section 1 of that Act (Act 81) provides that:
“(1). A Chief is an individual who –
(a) has been nominated, elected and installed as a Chief in accordance with customary law, and
(b) is recognised as a Chief by the Minister responsible for Local Government (in this Act referred to as ‘the Minister’).” It is clear from this section that before the Constitution came into force, a person had to be recognised by the government before he became a chief. The position immediately before the change of government in 1966 has been described by the Constitutional Commission set up by the National Liberation Council at p. 176 in para. 645 of their report and recommendations. They say:
“We have given careful thought to the present practice whereby Government gives official recognition to the installation, enstoolment and destoolment of chiefs. In our view the perpetuation of this practice, as borne out by recent developments under the Convention People’s Party Government, would only tend to make the chiefs mere puppets and play-things in the hands of politicians. Chiefs are made or unmade by their people and not by the government.”
Act 81 is part of the existing law, and its provisions are to be read with such modifications, exceptions
etc., as would bring it in conformity with the Constitution. I postponed this judgment for such a long time to enable me to consider the new Chieftaincy Act, 1971 (Act 370), which was in the process of being passed by Parliament. Section 48 of the 1971 Act provides that:
“(1) A Chief is an individual who has, in accordance with customary law, been nominated, elected and installed as a Chief or as the case may be appointed and installed as such and whose name for the time being appears as a Chief on the National Register of Chiefs: Provided that no person shall be deemed to be a Chief for the purposes of the exercise by him of any function under this Act or under any other enactment, unless he had been recognised as such by the Minister by notice published in the local Government Bulletin.” [p.335] of [1972] 1 GLR 317 Section 52 (1) provides that:
“If it appears to him to be necessary so to do in the interests of public order the Minister may by executive instrument-
(a) prohibit any person who is not a Chief (whether or not he was formerly, a Chief) from purporting to exercise any functions of a Chief, (b) require that no person shall treat as a Chief a person subject to such prohibition.”
The foregoing shows that a person can be regularly enstooled as a chief in accordance with custom and registered on the National Register of Chiefs, without being a chief for the purposes of performing functions under the Act such as being a member of the House of Chiefs, because the government does not recognise him. He cannot be a member of the divisional councils set up under the Act; he cannot be a member of the regional, district, or local councils under the Local Administration Act, 1971 (Act 359), or a member of the traditional council unless he is recognised by the government. He cannot sell or dispose of stool land because such disposition is voidable unless made with the consent of the traditional council.
A person might have been declared a chief by the highest court in the land, i.e. the Supreme Court
whether on appeal from the decision of the High Court through the Court of Appeal or from the decision of the National House of Chiefs; he would yet not be able to exercise the duties of a chief under any enactment unless he is recognised by the minister. Such a person may even be banished from his area by the minister under section 52.
Fortunately I am not presently called upon to pronounce on the validity of these and other provisions of the Chieftaincy Act, 1971. I however confess that I find no guidance whatsoever in its provisions in
dealing with the provisions of the Chieftaincy Act, 1961 (Act 81), vis-a-vis the Constitution. Article 153 of the Constitution provides in clear and unambiguous language that, “The institution of chieftaincy together with its Traditional Councils as established by customary law and usage is hereby guaranteed.” It is obvious therefore that a person becomes a chief when he is elected, installed etc., according to that “customary law and usage” referred to in the said article 153 of the Constitution. Article 126 (3) of the Constitution dealing with the laws of Ghana defines customary law as “the rules of law which by custom are applicable to particular communities in Ghana.” The minister may choose to recognise the person enstooled, but the minister’s recognition would be declaratory only and not constitutive. The recognition by the minister may be evidence, even prima facie evidence, of such enstoolment but certainly not conclusive evidence of the regularity of the enstoolment. This prima facie evidence like a presumption can be rebutted by cogent evidence showing that no regular enstoolment has taken place. A judgment of a court of competent jurisdiction declaring a person as regularly enstooled shall, if there has not been any destoolment subsequently, be conclusive proof [p.336] of [1972] 1 GLR 317 that the person is a chief, notwithstanding the fact that the minister has recognised another person. I shall therefore read Act 81 with an exception, namely, that with the coming into force of the Constitution, 1969, recognition by the minister is no longer essential to the validity of enstoolment of chiefs. A chief therefore under Act 81 after the Constitution is one who has been nominated, elected and installed as a chief according to customary law. I therefore hold that the recognition given by the minister of the
enstoolment of the respondent did not operate to cure the defect in his enstoolment.
I have already decided that the remedy by prohibition usually does not lie to prohibit a person from
generally exercising judicial functions. It is more appropriate in particular cases. I shall now consider
whether an injunction under section 9 of the Administration of Justice (Miscellaneous Provisions) Act, 1938, will lie. To justify a grant of injunction under this section, the office must be one of a public nature; the holder must have already exercised the office.
The starting point of any consideration of this part must start with the words of Tindal C.J. in Darley v. R. (1846) 12 C1. & F. 520. He said at pp. 541-542:
“After the consideration of all the cases and dicta on this subject, the result appears to be, that this
proceeding by information in the nature of quo warranto will lie for usurping any office, whether created by charter alone, or by the Crown, with the consent of Parliament, provided the office be of a public nature, and a substantive office, not merely the function or employment of a deputy or servant held at the will and pleasure of others.”
Lord Reading C.J. in R. v. Speyer [1916] 1 K.B. 606 adopted the words of Tindal C.J. and said at p. 609: “The test to be applied is whether there has been usurpation of an office of a public nature and an office substantive in character, that is, an office independent in title. This decision [that is Darley v. R.] is an authority against the proposition argued by the Attorney-General. It establishes that, whereas formerly a quo warranto was held to lie only where there was an usurpation of a prerogative of the Crown or of a right of franchise, a proceeding by information in the nature of quo warranto has long since been extended beyond that limit and is a remedy available to private persons within the limits stated by Tindal C.J. and subject
always to the discretion of the court to refuse or grant it.” It is clear that chieftaincy is a public institution having been guaranteed under the Constitution. I hold therefore that an injunction under section 9 of the Administration of Justice (Miscellaneous Provisions) Act, 1938, would lie. de Smith in his Judicial Control of Administrative Action, 1968 (2nd ed.), p. 480 remarks that there is not a single reported case of an injunction under this section in England. He gives the reasons for this state of affairs as public apathy or alternatively a commendable [p.337] of [1972] 1 GLR 317 absence of the litigious spirit and also the presence of other remedies. In Ghana no use has been made of
this remedy. The reason is that there are remedies for challenging all offices and it has not been thought necessary to have recourse to this procedure. Now that I have held that the High Court has concurrent jurisdiction in chieftaincy matters, the position may well change and more applications under this rule may be made challenging the usurpation of positions on stools. I grant the injunction prayed for. The applicant will have his costs which I assess at N¢200.00.
DECISION
Application for injunction granted.
