HIGH COURT, ACCRA
Date: 20 JUNE 1975
ABBAN J
CASES REFERRED TO
(1) Buobuh v. Minister of Interior [1973] 2 G.L.R. 304, C.A.
(2) Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C.
(3) Ahenkorah v. Ofe (1958) 3 W.A.L.R. 145, C.A.
(4) Republic v. Frempong II, Ex parte Ababio II [1973] 1 G.L.R. 208.
(5) Eku alias Condua II v. Acquaah [1963] 1 G.L.R. 271, S.C.
NATURE OF PROCEEDINGS
APPLICATION for an order for enlargement of time under Order 64, r. 6 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), within which to apply for leave to bring an application for an order of certiorari.
COUNSEL
P. A. Adjetey (Dr. de Graft Johnson and T. A. Tagoe with him) for the applicant.
A. A. Forster, Principal State Attorney, for the first and third respondents.
K. Frempong-Buadu for the second respondent.
JUDGMENT OF ABBAN J.
The applicant is asking for an order for enlargement of time, under the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 64, r. 6, within which to apply for leave to bring an application for an order of certiorari. The applicant is Nii Amar II, Dsasetse of Asere and the Acting Asere Mantse. Asere Division, according to the applicant, comprises six subdivisions, including the Nikoi Olai family of Asere Djorshie. But the application was brought by Nii Amar II on his own behalf and on behalf of the entire Asere Division, excluding the said Nikoi Olai family.
I should observe that the application was originally made ex parte and it went before a vacation judge who, on 20 September 1974, ordered that those who would be affected by the result of the application should be served. Following that order copies of the application were served on the Commissioner for Local Government and the Nikoi Olai family of Asere Djorshie. In the course of hearing, and on the motion of the applicant, the Attorney-General was, on 24 April 1975, joined as a party. The Attorney-General, as a matter of fact, was brought in to represent the Government of Ghana; because it was the appointment of a committee of inquiry made in 1958 by the Governor-General and the decision of the Governor-General on the report of the said committee which the applicant intends to seek an order of certiorari to quash. The Nikoi Olai family were also brought in because the said decision appeared to be in their favour as against the other five subdivisions of the Asere Division.
It is, however, not clear why a copy of the application was also served on the Commissioner for Local Government in the face of the order of the learned vacation judge, directing that copies of the application should be served on two persons only. The relevant portion of the order of the learned vacation judge reads:
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I would therefore treat the ex parte motion as one on notice so that the Attorney-General’s office and the Nikoi Olai family of Asere Djorshie represented by its head Felix Kotei Robertson be served forthwith.”
Learned counsel for the applicant in his closing remarks indicated that since the Attorney-General had been made a party the striking out of the Commissioner for Local Government from the proceedings would not materially affect the application.
I think the Commissioner for Local Government, not being the proper person to defend suits or to contest applications brought against the Government or the Republic, a copy of the motion paper and its supporting affidavit should not have been served on him. The State Proceedings Act, 1961 (Act 51), clearly specifies the persons who should defend proceedings brought against the Republic. Section 10 (2) of the said Act provides that:
“Civil proceedings against the Republic may be instituted against the Attorney-General, or any officer authorised in that behalf by him, or any officer specified in that behalf under any law for the time being in force.”
There is nothing on record to show that the Commissioner for Local Government is one of the officers “specified under the law for the time being in force” to defend suits against the Republic; neither is there any evidence that he was authorised by the Attorney-General to receive the motion paper and to contest the application on behalf of the Republic. All that is known is that he was sent a copy of the motion paper after the order of the learned vacation judge and in contravention of the said order.
In the circumstances, I hold that the Commissioner for Local Government was wrongly brought into the proceedings. Accordingly, he will be and he is hereby struck out from the application: see Buobuh v. Minister of Interior [1973] 2 G.L.R. 304, C.A. It follows that whatever ruling that will be given in this matter will affect only the applicant and the said five subdivisions of Asere Division on one hand, and the Nikoi Olai family of Asere Djorshie and the Government of Ghana represented by the Attorney General on the other.
It is important that I set down clearly the proceedings and the decisions which the applicant and the said five subdivisions of Asere intend to question by writ of certiorari and in pursuance of which intention they are asking for an order for enlargement of time in which to apply for leave. They are (as amended by the order of the court, dated 10 March 1975) as follows:
“(a) The Governor-General’s order appointing a committee of inquiry which appeared as Gazette notice No. 1463 published in the Ghana Gazette No. 63 dated 16 July 1958.
(b) The amendment to the Governor-General’s said Order which appeared as Gazette notice No. 1574 published in Ghana Gazette No. 66 dated 26 July 1958.
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(c) The proceedings and report of the said committee which appeared as Gazette notice No. 1987 published in Ghana Gazette No. 81 of 5 September 1959, and the decision of the Governor-General thereon as stated in the said Gazette notice No. 1987.
(d) All consequential orders, processes and notices based on the said decision, report and decision.”
As a result of the proceedings and the report of the committee of inquiry and the decision of the Governor-General referred to in (c) above, the Nikoi Olai family of Asere Djorshie became recognised as a ruling house in addition to Agbon We and Frempong We. Agbon and Frempong We belong to one subdivision, called Daase, while the Nikoi Olai family form the Djorshie subdivision. It appears Agbon and Frempong We and the other subdivisions of Asere Division presented the said recognition given to the Nikoi Olai family by the decision of the Governor-General; but the Governor-General’s said decision has remained in force up to date.
Learned counsel for the applicant contended that the steps which the applicant and the five subdivisions took, on becoming aware of the Governor-General’s decision, show that the applicant and the five subdivisions never accepted the decision; and being aggrieved by that decision they did all that was possible to bring to the attention of the authorities the injustice which the decision had caused to the five subdivisions of Asere Division and, by a series of correspondence, the applicant tried to have the decision reversed. So that the applicant cannot be said to have been unduly negligent or indolent in bringing the application for certiorari.
It would have been a very simple and straightforward application for an extension of time, if the applicant had rested his case on the causes of the delay. But the applicant put forward a second contention that the proceedings and the report of the committee of inquiry and the decision of the Governor-General on the said report were all void; and consequently the applicant, after all, did not need extension of time. The argument on this contention took the case beyond an ordinary application for extension of time. To establish the validity of the contention, learned counsel for the applicant attacked the said proceedings and the report on a very wide front and developed his argument in such a way that eventually it turned out to be clearly an argument on the merits of the application for leave. Learned counsel for the respondents, in answering the points raised on the contention of nullity, also argued in the same vein as learned counsel for the applicant had done, even though an attempt was made, I think unreasonably, by learned counsel for the applicant to stop them. The result was that I was put in an uneviable and awkward situation where, instead of confining my ruling to matters which normally must be considered in applications of this nature, I was compelled to make a declaration as to whether or not the said decision of the Governor-General was null and void.
With these remarks, I will first outline the submissions put forward against the committee’s report. Learned counsel for the applicant contended that the appointment of the committee of inquiry by the Governor-General, the proceedings and the report of that committee, the final
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decision of the Governor-General on the report and all processes taken after the Governor-General’s final decision were all null and void ab initio, and of no legal effect. Counsel argued that if his contention was accepted then, even though the application for certiorari was not brought within the statutory period of six months of the publication of the Governor-General’s final decision, and the time for doing so expired over fifteen years ago, the applicant would not need an order for enlargement of time. Because a decision or an order which is void ab initio can be quashed at any time. Learned counsel relied on Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C. and on a number of other familiar authorities which clearly approved the principles laid down in Mosi’s case. The grounds upon which learned counsel for the applicant based his contention about the nullity will be dealt with, in detail, in due course.
In the mean time, I will turn to the argument of learned counsel for the respondents. Both counsel strenuously opposed the application and contended that all the matters complained of by the applicant were properly done and were therefore valid; and that the applicant, being out of time, required an order enlarging the time within which to apply for leave to present an application for an order of certiorari to quash them. Learned counsel for the second respondent further argued that even if the proceedings and the report of the committee and the decision of the Governor-General were found to be null and void, the applicant would still need extension of time because the principle that there is no time limit within which a party affected by a void decision may apply to have it set aside, applies only to decisions or orders of courts of record and not to those of inferior tribunals. Consequently all the cases which were decided on the lines of Mosi’s case (supra), and cited by the learned counsel for the applicant, were inapplicable. This argument is most unattractive.
If the argument of learned counsel is accepted the implication would be that the decisions of inferior tribunals, or other judicial bodies, which are not courts of record, are rather superior to those of the courts of record. Even if a void decision of the High Court which is a superior court of record can be set aside at any time on the principles of Mosi’s case (supra), and that lapse of years cannot be a bar for so doing and the aggrieved party is entitled ex debito justitiae to have it set aside, how come that void decisions of inferior tribunals, like a committee of inquiry, cannot be subject to the principles laid down in Mosi’s case? The principles enunciated in Mosi’s case are so fundamental that they cannot in any way be compromised, neither can they tolerate any exception in favour of any court, be it a tribunal or a committee of inquiry. I therefore reject the submission of learned counsel for the second respondent, and I hold that once a decision is void, no matter the court or the tribunal from which it emanates, it is void for all time and, as laid down in Mosi’s case, there will be no time limit within which steps should be taken to quash it.
Before I consider the grounds which learned counsel for the applicant advanced in support of his contention that the decision of the Governor-General was null and void, I will briefly state the facts which led the Governor-General to make that decision. These facts were fully deposed to in the
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affidavits of the applicant. That is to say, the applicant provided sufficient facts upon which this court can safely decide the issue of nullity. The applicant, for example, exhibited quite a number of documents, a judgment and very important correspondence which was exchanged over the years between the government on one hand and the Nikoi Olai family and the five subdivisions on the other. The applicant also exhibited the various petitions which the Nikoi Olai family addressed to successive governments of this country concerning that family’s claim to the divisional stool of Asere.
The motion for the enlargement of time and an ex parte motion for leave to apply for certiorari were all filed on the same date. It seems the latter was filed in an anticipation that the enlargement of time would be granted. In paragraph (4) of the applicant’s affidavit attached to the motion for enlargement of time, the following sentence appeared: “See the main affidavit for leave.” This was an indication that quite apart from the affidavit in support of the enlargement of time, the applicant was also relying on the affidavit for leave. Both affidavits, as I have said, were filed on the same date, 20 July 1974, and in fact they were referred to extensively during the arguments of counsel.
The applicant’s case is that when the Gas were living at Ayawaso, the Asere people, with the knowledge and consent of the Ga Traditional Authority, created and consecrated a stool and appointed Nii Nikoi Olai, a war leader and a member of the Nikoi Olai family, to occupy the newly created stool as the first Asere Mantse. Because of the “treachery” and “treason” committed by Nii Nikoi Olai, the Aseres deposed him and installed in his place Nii Amon as the second Asere Mantse. Nii Amon was Nii Nikoi Olai’s half-brother and was also from the Nikoi Olai family. The “reckless and irresponsible life” led by Nii Amon caused his removal as Asere Mantse. Following Nii Amon’s destoolment, the Aseres passed a resolution never again to allow any person from the Nikoi Olai family, the family from which the first and second chiefs of Asere Division had come, to ascend the Asere Divisional stool. It must be noted that members of the Nikoi Olai family took part in the “creation and consecration “of the Asere Divisional stool “which has come to be known as the Nikoi Olai stool.” The said resolution, according to the applicant, was passed with the consent and approval of the Ga Traditional Authority and this was in or about 1800.
After the resolution, Teiko Din was enstooled as Asere Mantse. Teiko Din was succeeded by one Teiko Akortia, popularly known as Akortia Oworsika; and since then, the Asere chiefs have always been elected “from the family to which Teiko Din and Akortia Oworsika belonged and which was divided into the two houses of Frempong We and Agbon We.” So far as the applicant was concerned from 1800 when the Nikoi Olai family were banned and disqualified from “seeking office as Asere Mantse the family, until 1930, never made any claim before the Ga Traditional Authority, protesting against the usurpation of their stool.” In 1930 the Asere wanted a suitable person to occupy the Asere Divisional stool which had become vacant by the death of Mantse D. P. Hammond.
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A dispute arose and was brought before the Ga State Council. That is, Agbon We sued Frempong We before the Ga State Council, and the issue was, which of the two ruling houses was the proper house from which a candidate should be elected and enstooled in succession to the late Mantse D. P. Hammond. The proceedings started in 1930 and judgment was delivered on 21 July 1931 in favour of Agbon We.
While the case between Agbon We and Frempong We was pending before the Ga State Council, the Nikoi Olai family by their motion, dated 28 November 1930, applied to be joined as a party but the application was dismissed. Still undaunted, the Nikoi Olai family, according to the exhibits filed by the applicant, kept on petitioning the successive governments of this country praying that their claim to the divisional stool of Asere be investigated. Paragraphs (7) to (16) of the applicant’s exhibit F showed that by 1944 the Nikoi Olai family had instituted a substantive action against the other two ruiing houses of Frempong We and Agbon We claiming the Asere Divisional stool, and hearing in fact had commenced on the 20 December 1944. Frempong We and Agbon We relying on the judgment of the Ga State Council dated 21 July 1931, exhibit B, raised objection in the nature of estoppel against the claim of the Nikoi Olai family; but the objection was overruled by the Ga State Council in the manner as follows:
“By the claim now before us, this council is asked to determine the relative positions of the two stools named in the said writ. The defendants have now submitted before us certain facts as preliminary objections against the determination of the claim herein. They contended that the cause is res judicata. In other words that this council during 1930 gave a judgment on the identical claim (2). That the state council is not vested with jurisdiction to hear the cause because there is no occupant of the Asere stool. Section 40 of the Native Administration Ordinance was cited by the defendants. The plaintiff on the other hand denies that the cause is res judicata: argues that the cause is amenable to the jurisdiction of the council and that these objections had been made at the wrong stage.
Held after considering these facts, that apart from the fact that the council has heard no evidence from the side of the plaintiff in which the defendants could establish a plea of res judicata there is no proof of any kind to support the fact that there was a judgment on the merits of this case by this council in 1930 or that the claim then and now were identical. Held further that section 40 does not apply because an acting mantse has a corresponding jurisdiction to that of a substantive mantse council is of the opinion that evidence must be heard and the cause determined once and for all. Objections overruled.
(Sgd.) TACKIE TAWIAH II
President, Ga State Council.”
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This ruling was delivered according to paragraph (5) of exhibit F, on 20 December 1944. Frempong We and Agbon We tried to use the administrative machinery of the government of the day to have the ruling reversed. However, at long last, the Nikoi Olai family were given the liberty to go ahead and prosecute their claim. But the Ga State Council would not fix a date for hearing. So the Nikoi Olai family by a further petition, dated 16 September 1953, exhibit K, prayed the Governor to appoint a committee either under section 6 (1) or section 8 (1) of the State Council (Colony and Southern Togoland) Ordinance, 1952 (No. 8 of 1952) “to inquire into and determine the long-standing dispute” between the Nikoi Olai stool family and the Akortia Oworsika stool of Asere: see paragraph(10) of exhibit K.
The Governor by exhibit L, dated 12 January 1954, refused to appoint any committee and indicated that the claim was “a proper matter for consideration by the Ga State Council under the provisions of the State Councils (Colony and Southern Togoland) Ordinance.” With this reply, the ball was back in the court of the Ga State Council; and it was for the said state council to fix a date and hear it. Surprisingly, the case was never heard and it continued pending before that state council, until the Governor-General on 16 July 1958 appointed a committee of inquiry whose proceedings and report have been called in question in the present application. This is a short summary of the facts of the case as presented by the applicant himself.
Learned counsel for the applicant seriously advanced the following arguments to support his contention of nullity. He contended that at the time the Governor-General appointed the committee of inquiry on 16 July 1958, there was no dispute of a constitutional nature pending between the stool of Agbon and Frempong We and the stool of the Nikoi Olai family of Djorshie. The only constitutional dispute pending had been settled by the Ga State Council by its judgment of 21 July 1931 exhibit B; and that the judgment, exhibit B, estopped the Nikoi Olai family from making any claim to the Asere Divisional stool. Learned counsel further argued that since there was no constitutional dispute pending between the parties, the Governor-General could not exercise his power under section 8 (1) of State Councils (Colony and Southern Togoland) Ordinance, 1952 (No. 8 of 1952), and appoint a committee of inquiry. Counsel therefore submitted that the purported appointment of the committee of inquiry on 16 July 1958 was made without jurisdiction and was void ab initio and so were the proceedings and report of the said committee.
It was also contended by learned counsel that in the terms of reference the Governor-General gave the committee of inquiry power to make a determination as to which of the two stools was the Asere Divisional stool. Counsel argued that this term of reference was ultra vires because the Governor-General under the said section 8 (1) of the Ordinance could only invest the committee of inquiry with power “to enquire and report” and not to make a determination of any kind. Learned counsel therefore submitted that since the Governor-General invested the said
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committee with power to determine and since the committee had no jurisdiction under the Ordinance to exercise that power, the whole proceedings and the report of the committee could be declared null and void on that ground also.
I will consider first the estoppel based on the judgment of 21 July 1931 exhibit B. Looking at the issue which the Ga State Council had to try between the Frempong We and Agbon We, as stated in the judgment, exhibit B, and the terms of reference given to the committee of inquiry by the Governor-General, I have no hesitation in concluding that what was involved in the 1930-31 proceedings before the Ga State Council was quite different from the subject of investigation for which the Governor-General appointed the committee of inquiry. The claim before the Ga State Council in the 1930-31 proceedings and the claim which the committee of inquiry was called upon to investigate were not the same. Furthermore, the motion of the Nikoi Olai family for joinder in the 1930-31 proceedings was rejected by the Ga State Council. Thus that family were neither a party nor privy to any of the parties in that dispute. I also find that the Nikoi Olai family, while the 1930-31 proceedings were pending before the Ga State Council, did not do anything to identify themselves with any of the parties in the dispute. The judgment of the Ga State Council of 21 July 1931 cannot therefore operate as estoppel of any kind against Nikoi Olai family.
The next question is, was there a constitutional dispute involving the stool of Agbon and Frempong We and the stool of the Nikoi Olai family pending anywhere at the time the committee of inquiry was appointed? Section 8 (1) of the State Councils (Colony and Southern Togoland) Ordinance, 1952 (No. 8 of 1952), provided as follows:
“8. (1) If in the opinion of the Governor it is inexpedient that a State Council should enquire into any matter of a constitutional nature, or if in his opinion a State Council or a Committee is unable to arrive at a conclusion on such a matter without undue delay, or if such matter is not cognizable by a State Council or a Committee, he may appoint a Committee of Enquiry consisting of three persons, of whom at least two shall be Chiefs, to enquire into such matter, and such Committee of Enquiry shall enquire into the same and shall submit a report thereon to the Governor, who may confirm, vary or refuse to confirm the findings thereof or may remit the matter to the Committee of Enquiry for further consideration with such directions as he may think fit as to the taking of additional evidence or otherwise. The Governor’s decision upon the report shall be final and conclusive.
(2) Where a Committee of Enquiry has been appointed under subsection (1) of this section to enquire into a matter of a constitutional nature, a State Council or a Committee, as the case may be, shall not have jurisdiction over the same, and any proceedings relating to the same then pending before a State Council or a Committee shall thereupon be stayed.”
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From the evidence before me, I find that as at 16 July 1958 the date on which the Governor-General appointed the committee of inquiry, the claim of the Nikoi Olai family to the Asere Divisional stool, which had been pending before the Ga State Council as far back as 1944, had not been heard on its merits or at all by the said council, or by any other judicial body or tribunal. By the said 16 July 1958 the claim of the Nikoi Olai family had been pending before the Ga State Council for nearly fourteen years, without any hope of being heard. The refusal to hear the case for a period of fourteen years, was not only evidence of undue delay on the part of the Ga State Council, but was also an eloquent testimony that the said state council had proved itself “unable to arrive at a conclusion on the matter.” In those circumstances, it was most inexpedient, and even undesirable, to allow the said claim of the Nikoi Olai family to continue pending indefinitely before the Ga State Council. To do so would have amounted to a denial of justice.
Quite apart from the undue delay and the unwillingness of the Ga State Council to hear the said claim of that family, the evidence which the applicant himself supplied in this application clearly showed that it would have been most unfair and inexpedient if the Ga State Council had been allowed to adjudicate on that claim. The reason is this: the applicant in his affidavit categorically stated that the banning of the Nikoi Olai family from the Asere Divisional stool was done with the consent and approval of the Ga Traditional Authority, the predecessor of Ga State Council. In a situation like this, was it not plain that the predecessor of the Ga State Council took sides with the other five subdivisions in the dispute, and would it not, in those circumstances, have been embarrassing to the Ga State Council to sit on the case?
I, therefore, hold that as at 16 July 1958 there was a dispute pending between the Nikoi Olai family on one hand and the other two ruling houses – Frempong We and Agbon We on the other before the Ga State Council; and that good and sufficient grounds existed upon which the Governor-General could exercise his discretion under section 8 (1) of the Ordinance and appoint a committee of inquiry. Consequently, the Governor-General had power to appoint the said committee and he did properly exercise that power.
Was the claim or the dispute one “of a constitutional nature”? The claim of the Nikoi Olai family which, as I said, was pending before the Ga State Council can be found in paragraph (7) of the applicant’s exhibit F. It was a claim in which the Nikoi Olai family (sometimes described as the Nikoi Olai stool family) contended, among other things, that their stool was the one which, in accordance with the Ga customary law and usage, ought to be given “the name, style, status and dignity of the divisional stool of Asere in preference to the stool” of Akortia Oworsika (belonging to Frempong We and Agbon We) which had been “erroneously given the recognition as Asere Divisional stool against native customary law and usage.” In the said claim the Nikoi Olai family further asked for “a determination of the relative positions of the two stools in Asere Division.”
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(The emphasis is mine.)
I think the claim raised a question as to the political and constitutional position of the two stools in the Asere Division and it also involved a declaration as to which of the two stools should be accepted and recognised as the Asere Divisional stool. A claim like this, in my opinion, could properly be classified as a matter of “a constitutional nature.”
The interpretation clause – section 2 of the 1952 Ordinance – listed a number of disputes which should be termed matters of a constitutional nature.” Reading through the provisions of the whole Ordinance, I find that it was not the intention of the legislature that the list of the disputes given in section 2 (a)-(e) of the Ordinance should be the only disputes which should be termed matters of “a constitutional nature” within the meaning of section 8 (1) of the Ordinance. That is, the legislature did not intend the said list to be exhaustive; and did not also intend to close the door against or to prevent a dispute which relates to the status of stools and their political and constitutional position in a traditional area from coming within the definition of, “ a matter of a constitutional nature.” As provided in section 2 (e) of the Ordinance, if “political or constitutional relations under customary law between Chiefs,” were within the definition of a “matter of a constitutional nature” then I do not see why a claim or a matter relating to political and constitutional relations under customary law between two stools, could not be “a matter of a constitutional nature.” I, therefore, find that the dispute which was pending before the Ga State Council and for which the Governor-General appointed the committee of inquiry was a matter of a constitutional nature.
Could the Governor-General, in the terms of reference, invest the committee of inquiry with power to determine any issue since the final determination of the dispute, under section 8 (1) of the Ordinance, was the prerogative of the Governor-General himself? I will set out notice No. 1463 of Ghana Gazette No. 63 of 16 July 1958. It reads as follows:
“No. 1463:
The State Councils (Southern Ghana and Southern Togoland) Ordinance, 1952
(No. 8 of 1952)
Appointment of a Committee of Enquiry
It is hereby notified for general information that under section 8 of the State Councils (Southern Ghana and Southern Togoland) Ordinance, 1952 the Governor-General has appointed a Committee of Enquiry consisting of:
N. T. Clerk, Esq………………Chairman Nene Tetteh Eyume II, Divisional Chief, Prampram .. .. Member
Nene Tei Agbe, Bunase, Yilo Krobo………….Member with the following terms of reference:
To enquire into the dispute between the Nikoi Olai Stool of Djorshie We and the Akortia Oworsika Stool of Agbon and Frempong We in the Asere Division of the Ga, State; to determine which of the above two Stools is the Asere Mantse’s Stool, this being
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a matter of a constitutional nature into which it is inexpedient for the Ga State Council to enquire; and to report.”
This notice was later amended by notice No. 1574 of Ghana Gazette No. 66 of 26 July 1958 in the following terms:
“No. 1574
Appointment of a Committee of Enquiry
It is hereby notified for general information that the notice No. 1463 of Gazette No. 63 of 16th July, 1958 is amended by the deletion of
‘Nene Tei Agbe, Bunase, Yilo Krobo’ and the insertion of ‘Nene Kwao Azza III, Mantse of Nyewer Kplade, Yilo Krobo’.
Since N. T. Clerk, Esq. was the chairman of that committee of inquiry I will, for convenience sake, refer to the Committee as the “Clerk Committee.” It is clear from the notice of 16 July 1958, that the terms of reference were in three parts, namely, (i) to inquire, (ii) to determine and (iii) to report. The quarrel of learned counsel for the applicant is about (ii). So far as the terms (i) and (iii) were concerned, the Governor-General had power under section 8 (1) of the Ordinance to include them in the terms of reference, and the Clerk Committee also had jurisdiction to carry them out. Pausing here for a moment, it can safely be said that the proceedings and the report of the Clerk Committee were not null and void so far as the terms of reference (i) and (iii) were concerned. From the affidavit of Nene Tetteh Eyume II, the second member of the Clerk Committee, which affidavit was filed by the applicant as exhibit 2, the committee only made findings and recommendations and submitted them to the Governor-General. It is therefore clear to me that the Clerk Committee left the final determination of the issues to the Governor-General, notwithstanding reference number (ii).
In any case, the inclusion of a direction for determination in the terms of reference was of no consequence. Would the applicant have complained if the word “find” instead of the word “determine” had been used in that term of reference? In fact, there is nothing in section 8 (1) which prevented the Governor-General from using the word “determine” in framing the term of reference. Section 8 (1), however, envisaged that a committee of inquiry in the course of its investigation could make findings of fact and also determine the issues involved in the dispute before arriving at their conclusions and recommendations. I am, therefore, of the opinion that, having regard to the nature of the claim of the Nikoi Olai family, it was within the competency of the Governor-General to include in the terms of reference a direction as to determination of issues in the way he did. The Clerk Committee was, in the circumstances, properly and validly invested with those terms of reference, and it had jurisdiction to do what the terms of reference required of it. Consequently, I hold that the proceedings and the report of the Clerk Committee were not a nullity. They were valid and the Governor-General could act upon them.
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The next point taken by learned counsel for the applicant was that even if it was held that the appointment of the committee of inquiry, the terms of reference given to the committee and the proceedings and report of the committee were all valid, the decision of the Governor-General as published in the Ghana Gazette of 5 September 1959, could still not be valid. Because the Governor-General did not base his said decision on the findings and on the recommendations of the said committee. Learned counsel, relying on the affidavit of Nene Tetteh Eyume II, already referred to, argued that the Governor-General did not take the findings made by the committee into account but he based his decision on extraneous matters and on a “meaningless assessment of the report of the committee.” Counsel submitted that since the Governor-General disregarded the findings of the committee, he could not be said to have acted in good faith and, in the circumstances, his decision was arbitrary and capricious rather than judicial; and it was therefore null and void.
The Governor-General’s duties, on the receipt of the report of the committee of inquiry, were clearly spelt out in section 8 (1) of the Ordinance. That is, upon the consideration of the said report the Governor-General could “confirm, vary, refuse to confirm the findings thereof’; or he could send the report back to the committee “for further consideration with such directions as he may think fit as to the taking of additional evidence or otherwise.” I agree with learned counsel for the applicant that the Governor-General’s act of considering the report of the committee and deciding what step to take upon it was part of the inquiry. Thus his decision must be made judicially, and in good faith and without consideration of irrelevant matters: see Ahenkora v. Ofe (1958) 3 W.A.L.R. 145, C.A. But in the present application, the applicant did not exhibit a copy of the proceedings and the report of the Clerk Committee for me to peruse to find out whether there was substance in the contention of learned counsel. The affidavit of Nene Eyume II alone formed the basis of counsel’s contention on this point. I will here quote the relevant portions of the said affidavit, exhibit 2:
“(3) That we concluded our findings successfully and submitted our report with recommendations signed by all members of the committee.
(4) That consequently a Gazette came out being Gazette No. 81 and dated 5 September 1959 and stated as being in pursuance of No. 1987 report of a committee of inquiry.
(5) That the said Gazette appeared to have completely ignored our findings of fact and the recommendations made therein.
(6) That when the Gazette came out I and one other member of the said committee sent a telegram protesting against the said Gazette notice.”
The affidavit, exhibit 2, did not disclose the name of the other member who was supposed to have joined in the protest. It did not also reveal the identity of the person to whom the telegram of protest was sent. Nene Eyume II did not positively state that the decision ignored the findings of
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the committee. He said the decision appeared to have ignored the findings. At any rate, there is nothing in the affidavit of Nene Eyume II to indicate that the third member also protested against the decision or that the third member considered the decision of the Governor-General as being contrary to the findings and recommendations of the committee. I do not believe that any protest was sent by Nene Tetteh Eyume II to anybody. I reject paragraphs (5) and 6) of the affidavit of Nene Eyume II and I will put no reliance whatsoever on them. Indeed, in the absence of the report of the committee of inquiry and without seeing the said report, it will be most dangerous to conclude that the decision of the Governor-General could not be supported by the findings of the committee. In the circumstances, I do not accept the submission of learned counsel for the applicant that the decision of the Governor-General was “arbitrary and capricious.”
As a matter of fact on the applicant’s own evidence, and even ignoring the evidence of the Nikoi Olai family, the decision of the Governor-General could not be anything but fair. I take it that the applicant and the five subdivisions of the Asere Division have been consistent throughout the years about the history of the Asere Divisional stool and also about the events which led to the disqualification of the members of the Nikoi Olai family from ascending the Asere Divisional stool. If that is the case (and it cannot be otherwise) then I take it that before the Clerk Committee they presented the same evidence which they have put before me in the present application. So that the proceedings and the report of the Clerk committee would contain the very evidence or facts which the applicant has sworn to in his affidavits in support of the present application. Any fair-minded person in the position of the Governor-General, reading from the record of the proceedings, the evidence of the five subdivisions about the way the Nikoi Olai stool family were barred from the divisional stool, would have raised his eye-brows. It was the right of the Aseres to take any decision as to which family or families should be entitled to occupy the Asere Divisional stool. But the decision must be taken, not only in accordance with customary law, but also in conformity with the principles of equity and natural justice.
On the showing of the five subdivisions the said “solemn resolution,” passed in or about 1800, banned from the Asere stool not only Nii Nikoi Olai and Nii Amon, the two offenders, but also all the members of the Nikoi Olai family who were living at the time and who had nothing to do with the “treachery, treason, acts of recklessness and irresponsibility” committed by those two members of the family. It is clear from the facts deposed to by the applicant himself that those members of the Nikoi Olai family living at that time were not called upon to show cause why they also should not be disqualified in the same way as Nii Nikoi Olai and Nii Amon. If two members of the family had misconducted themselves and disgraced the Asere people why should, in the course of passing a “solemn resolution” against them, other innocent members of the family, who had nothing to do with the said offences and who had done nothing to disgrace the Aseres, be included in the resolution, and their right to
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the divisional stool taken away without giving them the chance of being heard.
In my view, it was not fair and just that because of the offences committed by two members of the family, a decision should be taken so as to alter not only the status of that family in the Asere Division, but also to take away the right of the innocent members of that family to the said stool, and consequently their right to ascend the stool, when those innocent members had had no opportunity, and could not have had opportunity, to be heard at the meeting at which the alleged “solemn resolution” was supposed to have been passed and approved by the Ga Traditional Authority.
I must here repeat what I said in the case of Republic v. Frempong II; Ex parte Ababio II [1973] 1 G.L.R. 208 at p. 215:
“The next question is whether it was right for the respondents to destool the applicant on those charges when those charges had not even been brought to the notice of the applicant. The answer is obvious. When a body like the Nifa Divisional Council, is sitting to decide matters which may affect the rights and status of one of its members or his standing in the community, such a body is under a duty to act fairly, and if there is a failure to observe the rules of natural justice, as in the present case, the court will intervene.”
The above principles apply with equal force to any decision-making body or authority like the Asere Divisional Council and the Ga Traditional Authority. I therefore hold that the “solemn resolution” passed in 1800, so far as it purported to affect persons other than Nii Nikoi Olai and Nii Amon, was not only contrary to custom, equity and good conscience, but was also in defiance of the rules of natural justice, and is as void as anything can be. A decision which is void is void for all time and a lapse of any number of years cannot change it into a valid decision.
As I have said before, since the evidence of the five subdivisions before the committee of inquiry must have been substantially the same as the evidence which they have produced to support the instant application, and since that evidence must have been incorporated in the proceedings and the report of the Clerk Committee, any Governor-General considering judicially and with an unbiased mind this type of evidence in the report, and without even looking at the evidence of the Nikoi Olai family, would definitely have found in favour of that family. Even if the contents of the affidavit of Nene Eyume II were true, does Nene Eyume II want this court to understand that, in spite of the evidence of the five subdivisions themselves that the “solemn resolution of 1800” was their basis for disputing the claim of the Nikoi Olai family to the Asere Divisional stool and which “solemn resolution,” as I have tried to point out, could not and cannot stand the test of the principles of natural justice so far as the innocent members of the Nikoi Olai family were concerned, and in spite of the injustice which was apparert on the face of that “solemn resolution,” the Clerk Committee went ahead and recommended that the disqualification or the ban should continue to operate against the innocent members
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of that family and that the Governor-General should reject the claim of the Nikoi Olai family to the Asere Divisional stool?
If this is what Nene Eyume II and his two colleagues did then, I am afraid, it was they who rather unreasonably ignored the evidence before them and failed to do what was just and proper in the circumstances; and in that respect the Governor-General could rightly refuse to accept their recommendations. So that whichever way one looks at the case, the five subdivisions could not and cannot have any valid objection against the decision of the Governor-General. In my opinion, the decision of the Governor-General as published in the Ghana Gazette of 5 September 1959 under Notice No. 1987 was not only just but also made bona fide and was not a nullity. I therefore hold that the applicant needs enlargement of time before he can bring an application for leave to apply for an order of certiorari to question the decision of the Governor-General, the proceedings and the report of the said committee of inquiry.
Learned counsel for the applicant, as I stated earlier on, submitted that the batch of correspondence exhibited by the applicant showed that the applicant and the five subdivisions of Asere had not slept over their rights since the publication of the Governor-General’s decision on 5 September 1959; and the court must therefore exercise its discretion in favour of the applicant and grant the said extension of time. In an application for extension of time the court has to consider whether or not having regard to all the circumstances which led to the making of the application the delay was reasonable, excusable and bona fide: see Eku alias Condua III v. Acquaah [1963] 1 G.L.R. 271, S.C. At p. 273 of the report Ollennu J.S.C. (as he then was) reading the judgment of the court said:
“in an application for enlargement of time under Order 64, r. 6 the sole question the court has to decide is whether or not the delay by an applicant to do an act or take any proceedings, is bona fide, reasonable, or excusable such that refusal to enlarge the statutory period would result in injustice to the applicant. In deciding that issue, the court must take into consideration all the history and circumstances which led to the application to enable it to determine whether or not the grant of the application in a particular case can appear to be a judicial exercise of its discretion.”
The applicant contended that when those letters of protest were sent to the authorities after the publication of the decision “hopes were held out” to them that the decision would be reviewed. But it was impossible for them to pursue the matter because of “the political climate” at that time. It may then be asked, why is it that the applicant and the five subdivisions did not take steps to have the decision set aside after the collapse of the Nkrumah regime in 1966? The applicant and those sub-divisions throughout the N.L.C. regime when the political climate had become very congenial for people to pursue freely and without inhibition their rights in the courts sat mute and unconcerned. Again, throughout the Busia regime nothing was done by the applicant about the decision. It was not until after the death of Nii Akrama II on 10 July
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1974 and only when they became aware that the Nikoi Olai family were ‘seriously preparing to proclaim an Asere Mantse in the next day or so” that the present application was hurriedly brought.
What I find in this case is that the applicant and the five subdivisions never really intended to challenge the decision of the Governor-General on the Clerk report; otherwise they would not have taken any advantage or benefit which the decision conferred on them. The said decision as published in the Ghana Gazette No. 81 of 5 September 1959 under Notice No.1987 was in the terms as follows:
“No. 1987
1. The claims of the Nikoi Olai Stool of the Djorshie-We and of the Akortia Oworsika Stool of the Agbon-We and Frempong-We to the Asere Mantse’s Stool are indistinguishable and unseverable and accordingly the Asere Mantse’s Stool shall be occupied conjointly by the stools of the two claimants; and to give effect to this the present occupier of the Asere Mantse’s Stool namely, Nii Akrama II of Agbon-We shall continue to occupy the Asere Mantse’s Stool until his death, deposition or abdication whichever shall first occur. Thereafter the Stool shall be occupied in rotation in the following order:
(i) The Nikoi Olai Stool of the Djorshie-We.
(ii) The Akortia Oworsika Stool of the Agbon-We and Frempong-We (the candidate for enstoolment to be selected by the Frempong-We).
(iii) The Nikoi Olai Stool of the Djorshie-We.
(iv) The Akortia Oworsika Stool of the Agbon-We and Frempong-We (the candidate for enstoolment to be selected by the Agbon-We).
2. No alienation or other disposal of the Asere Mantse’s Stool property shall be undertaken or made without the prior consent of the head of the Djorshie-We and the head of the Agbon-We and Frempong-We.”
It will be recalled that by virtue of the above decision the following executive instrument (E.I. 268), exhibited by the respondents as A was also published by the Minister of Justice in or about December 1960:
“E.I. 268.
Nii Akrama II, Asere Mantse (Recognition of Enstoolment) Order, 1960
WHEREAS Robert Okai Tagoe was customarily enstooled on the Stool of Akortia Oworsika of Agbon and Frempong We under the Stool name of Nii Akrama II:
AND WHEREAS the findings of the Committee appointed to enquire into the dispute between the Nikoi Olai Stool of Djorshie We and the Akortia Oworsika Stool of Agbon and Frempong We that Nii
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Akrama II of Agbon We should occupy the Asere Mantse Stool until his death, deposition or abdication, were accepted and published as Notice No 1987 of Gazette No. 81 of September, 1959:
Now THEREFORE in exercise of the powers conferred on the President by section 2 of the Chiefs,(Recongnition) Act, 1959 (No.11) and delegated to the Minister of Justice, this Order is made with the approval of the Cabinet this 14th day of December, 1960.
NII AKRAMA II is hereby recognised as the Asere Mantse and any person failing to recognise the said Nii Akrama II as Asere Mantse commits an offence against the Chiefs (Recognition) Act, 1959 (No.11) and shall be liable accordingly.
By Command of the President.
Sgd. A.E.A. OFORI-ATTA
Minister of Justice.”
(The emphasis is mine.)
It must be noted that the last Asere Mantse, Nii Akrama II was the person mentioned in the Gazette of 5 September 1959 and in E.I. 268; and it was in the process of implementing the decision of 5 September
1959 that E.I. 268 was published. The decision and E.I. 268 permitted Nii Akrama II, a candidate favourable to the applicant and the five subdivisions, to occupy the Asere Mantse’s stool until “his death, deposition or abdication whichever shall first occur.” Strangely enough, the five subdivisions neither quarrelled with the first part of the decision nor with the provisions of E.I 263. On the contrary, they took advantage of those provisions and of the first part of the Governor-General’s decision. But now that the said Nii Akrama II is dead and the time has come for the other parts of the decision to be implemented, the applicant and those five subdivisions have rushed to court to set aside the very decision, which they tacitly accepted, and part of which they unequivocally agreed to its implementation. I think the applicant and the five subdivisions are guilty of bad faith.
Furthermore, having regard to the circumstances of this case, the delay of fifteen years from 15 September 1959 to 18 September 1974, or for eight years from 1966 to 1974, was not only unreasonable and inexcusable, but also not bona fide; and indeed no injustice will be caused to the applicant and the said subdivisions in any way if the application for enlargement of time is refused. I will not therefore exercise my discreation in favour of the applicant. Accordingly, the application will be and is hereby dismissed.
The second respondent, the Nikoi Olai family, will be entitled to costs which I fix at 370.00. I award no costs in favour of the Attorney-General and the Commissioner for Local Government.
DECISION
Application dismissed.
S.O.
