HIGH COURT, ACCRA
Date: 12 FEBRUARY 1975
GRIFFTHS-RANDOLPH J
CASES REFERRED TO
(1) Akufo-Addo v. Quashie-Idun, Court of Appeal, 22 July 1968, unreported; digested in (1968) C.C. 109.
(2) R. T. Briscoe (Ghana) Ltd. v. Preko [1964] G.L.R. 322, S.C.
(3) People’s Popular Party v. Attorney-General [1971] 1 G.L.R. 138.
(4) Benneh v. The Republic [1971] 2 G.L.R. 354, C.A.
(5) Nireaha Tamaki v. Baker [1901] A C. 561; 70 L.J.P.C. 66; 84 L.T. 633; 17 T.L.R. 496, P C.
(6) Republic v. Boateng; Ex Parte Adu-Gyamfi II [1972] 1 G.L.R. 317.
(7) Jenkins v. Bushby [1891] 1 Ch. 484, C.A.
(8) Levandowsky v. Attorney-General (No.2) [1971] 1 G.L.R. 49, C.A.
NATURE OF PROCEEDINGS
APPLICATION for an interim injunction or in the alternative a declaratory order in lieu of an injunction.
The facts are fully set out in the ruling.
COUNSEL
Nii Aponsah for the applicant.
Isaac Odoi, Senior State Attorney, for the first and second respondents.
Nelson-Cofie for the third respondent.
JUDGMENT OF GRIFFITHS-RANDOLPH J.
On 31 December 1974, Nii Aponsah, counsel for the plaintiff, issued an ordinary writ of summons against the defendants. It was endorsed with the following statement of claim:
“The plaintiff’s claim as the chief of Nsakina otherwise called Odarteiman is for an order of injunction restraining the first and second defendants, their servants, agents or other persons from granting a police permit or ordering the immediate revocation or recall of any police permit already granted to the third defendant to be outdoored by his servants, agents or supporters as senior sub-chief of Nsakina,
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Sempe Division or to hold any ceremony of outdooring of any chief , in Nsakina village on 2 January 1975 or any other date without the consent and approval of the plaintiff as the only chief of Nsakina village or restraining the third defendant from holding or from allowing his supporters, servants or agents to hold any outdooring ceremony of himself as senior sub-chief in or any other capacity of chief of Nsakina on 2 January 1975 or other date or in the alternative for a declaration that the plaintiff is entitled to an order recalling or revoking any police permit already granted to the third defendant to hold or allow his supporters, servants or agents to hold any outdooring celebration of the third defendant or any other person as senior sub-chief or in any other capacity as chief of Nsakina otherwise known as Odarteiman.”
According to an endorsement on the writ, service of a copy of it was effected on the third defendant on the same day as it was filed; also there is in the docket of the case a letter addressed to the Inspector-General of Police, which accompanied two other copies of the writ intended for service on the Inspector-General of Police and the officer-in-charge of the Nimga Police Station as required by order 9, r. 8 (4) of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), and there is also in the docket a letter from the police informing the senior registrar, who had forwarded the two copies of the writ, that they had been referred to the Attorney-General’s Office.
On 2 January 1975, Nii Aponsah, counsel for the plaintiff, filed a motion on notice for an interim injunction restraining the defendants in the same terms as in the endorsement of claim; and the affidavit in support thereof contained the following important paragraphs:
“(2) That I am informed by the second defendant-respondent and I verily believe that the first and second respondents herein have issued a police permit to the third respondent, his servants, agents or supporters to hold an outdooring celebration in Nsakina village of the third respondent as the senior sub-chief of Nsakina village, Sempe Division on 2 January 1975.
(14) That I have issued a writ of summons against the third respondent for a declaration of title to all and sundry the lands of Nsakina village and a perpetual injunction restraining the third respondent, his servants, agents or other persons privy in title to the third respondent from claiming to hold or alienating any right, title or interest in lands under my stool.
(15) Wherefore it is urgent and I humbly pray that an order of interim injunction or interim declaration be issued by this honourable court as particularised on the notice of motion annexed hereto till the final determination of this suit.”
When Nii Aponsah successfully moved the court on 9 January 1975,the following order was made:
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“It is hereby ordered in the special circumstances of this case that the defendants, their agents, servants, and supporters, etc., be and are hereby restrained from holding any ceremony in respect of outdooring of any chief of Nsakina village between 9 January 1975 and 15 January 1975 when the motion on notice is to be heard.”
Then on 15 January 1975, Nii Aponsah formally moved the court, when he added that his client is the recognised sub-chief of Nsakina village otherwise known as Odarteiman, and drew the attention of the court to page 382 of the Local Government Bulletin (No. 44) dated 28 September 1973 which he produced. He also said that the plaintiff-applicant (hereinafter referred to as the applicant) is therefore not in favour of the grant of a permit to the third defendant-respondent by the second defendant-respondent on the orders of the Inspector-General of Police in connection with the latter’s outdooring as the chief of that same village on the ground that it prejudices the rank and position of the former; and that they are seeking to have the permit recalled, so as to preserve the status quo ante. Further that averments made in the affidavit supporting the motion by the applicant about an assault on him by the supporters of the third defendant-respondent (hereinafter referred to as the third respondent) during the 1973 Homowo festival, and their recent threats to commit acts of vandalism by destroying the sacred shrines and gods at Nsakina have not been denied; also that there is a pending suit No. 1/75 in which the applicant is claiming a declaration of title to the land on which the proposed outdooring celebration was to have been held on 2 January 1975; and that there is therefore an explosive situation at Odarteiman. Furthermore that as the police had been notified of the happenings at the village, the permit ought not to have been issued; and that they do not subscribe to the view expressed in the affidavit in opposition that the court cannot grant the relief sought by his client.
In reply, Mr. Nelson-Cofie, counsel for the third respondent, said that his client’s recognition as a chief with effect from 10 June 1966 is contained in Local Government Bulletin (No. 50 of 1974) at p. 419; also that in view of the recognition by the government, this court is not the proper forum for challenging the status of that chief; and that therefore the plaintiff s application for interim injunction ought not to be entertained by this court. Further that the court is not empowered to make an order of injunction against the Republic, or against an officer of it where it would have the same effect as issuing it against the State: (vide Akufo-Addo v. Quashie-Idun, Court of Appeal, 22 July 1968, unreported; digested in (1968) C.C. 109); also that by virtue of section 13 (1) of the State Proceedings Act, 1961 (Act 51), the court can make a declaratory order, which may be respected, while section 13 (2) expressly forbids the making of an order of injunction against a servant of the State; and that as the court cannot make an order declaring anyone to be or not to be a chief, it will be wrong for it to make an order of injunction against the third respondent, once he has been recognised by the government as a chief.
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Furthermore that it is not clear on the face of the endorsement on the writ whether the injunction sought is interim or perpetual; also that if it is an interim injunction the endorsement is void, while a perpetual injunction is not available to the applicant, because a chief duly recognised cannot be forever prevented from being outdoored; and that although the claim is for an injunction “or in the alternative for a declaration. . .” any order to be made by the court, which will operate to restrain the Republic will be invalid.
Moreover that as regards the apprehension of trouble on the part of the applicant, he who is against the outdooring is likely to be the cause of any unpleasant incidents rather than the third respondent who is to be outdoored; also that the State has to provide protection for a citizen, while he is performing a lawful act; and that the first and second respondents are expected to provide that protection on the occasion of the outdooring ceremony which must not be interfered with.
Then there was an adjournment to 28 January 1975; and at the resumed hearing, the senior state attorney, Mr. Odoi, also replied that after the third respondent had been recognised as the senior sub-chief of Nsakina by the government, he applied on 14 December 1974 to the police for a permit to enable him sit in state; but the application was not granted; also that the Ga Mantse then recommended the issue of the permit, pointing out that the majority of the people at his village were loyal to him, and the ceremony would not include a procession; and that the supporters of the applicant, too, who said they would attend the ceremony, assured the second respondent that there would be no clash.
Further that the police owe the duty to traditional rulers recognised by the government to protect them when they are performing their traditional customs; also that in this case, the third respondent is entitled to that police protection when sitting in state; but that the police are not concerned with the rival claims of the applicant and the third respondent; and that it was only after satisfying himself that there would be no trouble that the second respondent issued the police permit to the third respondent. Furthermore that it is rather before the Ga Traditional Council that the applicant should have raised the issues which he has put forward in this court. Moreover that there is the certainty that there will be no clash, and the permit issued to the third respondent should not be cancelled by the court. He referred to the Public Order Decree, 1972 (N.R.C.D. 68), s. 8. Nii Aponsah, counsel for the applicant, also made the following further statements:
(1) That under section 8 (2) of N.R.C.D. 68, a public officer is enjoined to give fair and impartial consideration to the application, which implies that the Inspector-General of Police and the chief superintendent who considered the application had to satisfy themselves before issuing the police permit.
(2) That in the affidavit of his client filed on 20 January 1975, which was in reply to that filed by the second respondent on 17
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January 1975, he referred to a letter addressed to the Acting Sempe Mantse by the third respondent on 11 November 1974 and copied to the Inspector-General of Police, containing the threat to “demonstrate what can be termed ‘vandalism’ on Odartei and his family and demand their removal from Nsakina”; also that the Inspector-General of Police therefore knew the intentions of the applicant at the time the application was entertained: and that Mr. Odoi, the senior state attorney, made no comment on the statement said to have been made by the second respondent to the applicant’s supporters; but that if their contention is that there has been a misrepresentation of the facts, then the conflict of issues that arises should be resolved by the taking of evidence.
(3) That it can be inferred from paragraphs (15) and (16) of his client’s affidavit that his supporters had not co-operated with the police; also that Mr. Odoi did not deny that the statements said to have been made by the second respondent to his client’s followers were made by him; and that if it were to be denied, it would be a case of oath against oath, which would be the more reason why the court should hear evidence.
(4) That the following provision of article 173 of the 1969 Constitution:
“Where in this Constitution or in any other law discretionary power is vested in any person or authority,
(a) that discretionary power shall be deemed to imply a duty to be fair and candid;
(b) the exercise of any such discretionary power shall not be arbitrary, capricious or biased, either by
resentment, prejudice or personal dislike and shall be in accordance with due process of law “is still the law notwithstanding the suspension of the Constitution, since it is the “sentiment of the common law which was enacted or codified”; also that the grounds of the officer’s satisfaction have to be disclosed so that the court can make sure that there was justification for it; and that the officer must also act bona fide.
(5) That at first the discretion was exercised against the grant of the permit by the independent judgment of the second respondent; but that later both the first and second respondents “allowed themselves to be influenced unduly” by the Ga Mantse’s letter exhibit 1, thereby “abdicating the right to exercise their discretion to the author of exhibit 1.”
(6) That “the permit should not be granted” because:
“(a) a situation that is likely to induce a breach of the peace has arisen at Nsakina owing to the assault on the applicant by the third respondent’s supporters, which has not been settled customarily;
(b) the third respondent’s threat in his letter dated ff November 1974, made the first respondent aware of the former’s intention to cause a breach of the peace;
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(c) both the first and second respondents have not been unaware of the tension between the applicant and the third respondent, so that the issue of the permit offends article 173(b) of the Constitution;
(b) a cause or matter affecting chieftaincy is a collateral issue is a vis vis is their complaint against the issue of the police permit, which is administrative matter for which this court has jurisdiction under article 113 (2) of the 1969 Constitution (vide R. T. Briscoe (Ghana) Ltd. v. Preko [1964] G.L.R. 322, S.C.).”
At that juncture, there was a further adjournment to 30 January 1975, on which date a further affidavit of the third respondent was filed, containing the following important paragraphs:
“(2) That I am informed and verily believe that instead of replying to the arguments made on my behalf the plaintiff has embarked on fresh arguments all over again;
(3) That I am therefore obliged to point out certain matters for the consideration of the court in order that justice might be done;
(4) That the permit granted to me by the police would merely enable me to ‘sit in state’ and not to demonstrate or go on procession;
(5) That the ‘vandalism’ referred to by the plaintiff concerns acts of lawlessness committed by the followers of the plaintiff;
(6) That the effective date of my enstoolment takes priority over the plaintiff since my application for recognition took over ten years due to the machinations of my opposers;
(8) That I am informed and verily believe that the aspect of the 1969 Constitution dealing with the rights or otherwise of the grant of police permit was copiously dealt with in the case of People’s Popular Party v. Attorney-General [1971] 1 G.L.R. 138 in which the ‘High Court of concurrent jurisdiction said inter alia at p. 152, ‘Now the applicants are asking for an injunction against the police. I do not think an injunction lies against the police. Section 13 of the State Proceedings Act, 1961 (Act 51), prohibits this but authorises the courts to make a declaration of the rights of the parties in lieu of an injunction, and I propose to do just that;
(9) That again in Benneh v. The Republic [1971] 2 G.L.R. 354 at p. 360, the Court of Appeal said, inter alia, ‘In the result, we agree with the conclusion reached by the learned High Court judge that he lacked jurisdiction to entertain the suit; but, instead of the reason advanced by him in support of his decision, we would justify his conclusion on the simple ground that, having regard to the mandatory terms of section 13 (1) proviso (a) and 13 (2) of Act 51, the court lacked jurisdiction to grant the only relief of injunction claimed and that the court could not stultify itself by being called upon to make an order it could not lawfully decree against the defendants herein;
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(10) That I wish to emphasise that whether or not Nsakina and Odarteiman refer to the same geographical area and whether or not there can be sub-chief and senior sub-chief in one area are matters not before this court.”
And in court that day, Nii Aponsah assigned the following reasons why the court ought to make the order of an interim injunction or the interlocutory declaration sought for by his client:
“(a) The fact that the two rival parties were invited to the Nima Police Station and advised to keep the peace, shows that the police were aware of the chieftaincy dispute at Nsakina.
(b) Police cannot purport to contain any breach of the peace only by forcefully suppressing the right of protest of the third respondent’s opponents or by overawing or brow beating the applicant and his people by a show of large or excessive force. They canonly contain any such situation by creating a state of fear at Odarteiman otherwise known as Nsakina. If the only outcome would be to cow my client then the police would be failing in their duty of impartiality imposed on them by section 8 (2) of N.R.C.D. 68.
(c) The persistence of the chieftaincy dispute is prima facie conducive to a breach of the peace; and there has been an ‘actual occurrence of breaches of the peace.’
(b) Section 8 (2) of N.R.C.D. 68 is not at large, so that the police permit is to be granted only where there is no likelihood of a breach of the peace occurring.
(e) In law where the act of an officer of the Republic will operate to infringe the private right of a citizen,
an injunction lies against that officer of the Republic in respect of the breach. Where also the officer of the Republic acts contrary to the conditions of power granted by the Act, and therefore his act may be said to be ultra vires, an injunction lies against such officer notwithstanding the fact that he is an officer of the Republic, because there is a presumption that Parliament did not intend to encourage breaches of private rights or the peace. If he goes beyond the limit of his powers, i.e. acts ultra vires he loses his immunity as an officer of the Republic and cannot be regarded as acting within the purview of his office: (vide Nireaha Tamaki v. Baker [1901] A.C. 561, P.C. where it was said at p. 575 that ‘Their Lordships think that the learned judges have mis-apprehended the true object and scope of the action, and that the fallacy of their judgment is to treat the respondent as if he were the Crown, or acting under the authority of the Crown for the purpose of this action. The object of the action is to restrain the respondent from infringing the appellant’s rights by selling property on which he alleges an interest in assumed pursuance of a statutory authority, the conditions of which, it is alleged, have not been complied with)’.
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(f) The present application is not for a determination as to whether the applicant or the third respondent was the chief of Nsakina; but even if that chieftaincy matter had been involved, the court could deal with it.
(g) The Benneh case was different in that there, the only relief sought was an injunction against the Republic, whereas here either an interim injunction or an interlocutory declaration; and it is sought against a public officer, who is distinct from the Republic. Besides in this case a declaratory judgment will be useful, because although it is not capable of direct enforcement, there is the assumption that ‘a public authority will observe the law when the High Court declares what it is.’
(h)(i). Both the senior state attorney and the third respondent have failed to demonstrate in what manner an injunction which would be issued in this case would bring the Republic to a halt. (ii) Public officers like other citizens are amenable to the jurisdiction of this court. Both the Public Officers Act, 1962 (Act 114), s. 2, and the case of Akufo-Addo v. Quashie-Idun mince no words in saying that public officers can be sued in the execution of their duties; and the refusal of the injunction in that case is distinguishable from this case based on the facts. The order made in that case affected the whole of Ghana, i.e. every lawyer in Ghana but this affects only a small part of it. (iii) A recognised person can be enjoined, so that notwithstanding the recognition of the third respondent, in the circumstances of conflict and high tension currently prevailing in Nsakina or Odarteiman, the court could enjoin him; and it cannot be said that an injunction against him will be an injunction against the Republic: (vide Republic v. Boateng; Ex parte Adu-Gyamfi II [1972] 1 G.L.R. 317) (iv) We pray that the interim injunction should be granted until the full trial of the substantive case.”
By way of prefatory remarks, I would say that in view of the Local Government Bulletins (Nos. 44 of 1973 and 50 of 1974), the court has to take judicial notice of the fact that the applicant and the third respondent are the recognised sub-chief and senior sub-chief respectively of the Nsakina village. The court is also not unaware of the contention of both the applicant and the second respondent that Nsakina and Odarteiman are one and the same village, and that Nii Amugi, Ga Mantse, whom the Akan would describe as the Asasewura as far as the Ga lands including those two villages are concerned, has pointed out in a letter to the Inspector-General of Police dated 10 December 1974 that Odarteiman is not Nsakina.
However, neither the issue as to whether it is proper to have both a sub-chief and a senior sub-chief at Nsakina, nor whether it is the applicant or the third respondent who is the chief of that village, nor whether Nsakina and Odarteiman are names given to one village under the Sempe
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stool or two different Sempe villages, is for the determination of the court in this instance, as was averred by the third respondent in his affidavit filed on 30 January 1975, and admitted by the applicant’s counsel that same day.
It is crystal clear, therefore, that the matters for the consideration of this court are:
(1) Whether or not the second respondent acted within his rights in issuing the police permit to the third respondent and his followers or both in connection with the outdooring ceremony which was to have taken place on 2 January 1975, and if he acted ultra vires, whether or not the court can make an interim order revoking it and restraining the first and second respondents as well as all other superior police officers from issuing any permit to the third respondent or his supporters for any outdooring ceremony or celebration in connection with his recognition as the senior sub-chief or in any other capacity of chief of Nsakina “without the consent and approval of the applicant as the only chief of Nsakina village”;
(2) whether or not in the alternative, the court will be justified in making an interim order of injunction restraining the third respondent and his agents from carrying out the celebration connected with his outdooring; and
(3) whether or not as another alternative this is a proper case for the making or issuing of “a declaration that the applicant is entitled to an order recalling or revoking any police permit already granted to the third respondent to hold or allow his supporters, servants or agents to hold any outdooring celebration of the third respondent or any other persons as senior sub-chief or in any other capacity as chief of Nsakina otherwise known as Odarteiman.”
I do wish to reiterate that the court is not required to establish the correct status of the third respondent, or the true identity of Nsakina. It is also pertinent to state that it has been disclosed that the police permit has in fact been issued, and that therefore if the court were to decide that it could make the kind of declaration called for by the applicant, the declaration would be simply this that “the plaintiff-applicant is entitled to an order recalling or revoking the police permit issued to the third respondent by the second respondent.”
I should first of all deal with the propriety or incorrectness of making an order of interim injunction as requested by the plaintiff-applicant; and it is relevant to my approach to refer to the submissions of counsel on that score. According to Nii Aponsah, counsel for the applicant, an injunction lies against an officer of the Republic, whose act infringes the rights of a citizen, or who acts ultra vires: (vide Nereaha Tamaki v. Baker [1901] A.C. 561, P.C., where it was held that the appellant was entitled to sue for an injunction until his title was extinguished according to law, and the court had jurisdiction to decide whether the respondent’s action was within his statutory powers); also an injunction may be granted
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against a chief: (vide Republic v. Boateng, Ex parte Adu-Gyamfi II [1972] 1 G.L.R. 317); and in view of an explosive situation at Nsakina due to a chieftaincy dispute between the applicant and the third respondent because of which his client was assaulted by the third respondent’s followers during the last Homowo festival, also an alleged threat of the third respondent to commit sacrilege by demolishing the sacred shrines and gods of his client, and a suit filed by the applicant against the third respondent claiming a declaration of title to all the lands of Nsakina village, besides the failure of the third respondent to demonstrate in what manner an injunction in this case would bring the Republic to a halt, it is expedient to grant the interim injunction.
On the other hand, Mr. Nelson-Cofie, counsel for the third respondent, maintained that the order cannot be made against the respondents, as it was held in the case of Akufo-Addo v. Quashie-Idun, Court of Appeal, 22 July 1968, unreported; digested in (1968) C.C. 109 that an injunction cannot be made against the Republic or an officer of it where it would have the same effect as issuing it against the State, also since section 13 (2) of the State Proceedings Act, 1961 (Act 51), expressly forbids the making of an order of injunction against a servant of the State: vide People’s Popular Party v. Attorney-General [1971] 1 G.L.R. 138 where it was held that there should be no injunction against the police; also Benneh v. The Republic [1971] 2 G.L.R. 354, C.A. where the appellant issued a writ of summons in the High Court under article 28 of the 1969 Constitution for an order of injunction to restrain the respondents or their agents from going into execution, the basis of the claim being that the Investigation and Forfeiture of Assets (Further Implementation of Commissions’ Findings) (No. 3) Decree, 1969 (N.L.C.D. 400), was repugnant to articles 12 and 18 of the said Constitution and therefore void by virtue of article 1(2) of the Constitution, and the Court of Appeal agreed with the High Court judge that “he lacked jurisdiction to entertain the suit”; and because the court not having jurisdiction to make an order declaring anyone to be a chief or not to be a chief, inferentially cannot also make an order of injunction against the third respondent, who has received government recognition.
The senior state attorney, Mr. Odoi, counsel for the first and second respondents, too, was not in favour of the injunction order since, as he was at pains to explain, the police had acted impartially and indeed judiciously in granting the permit.
To preclude misunderstanding, I would opine that a right is either the liberty of acting or abstaining from acting in a certain manner or the power of compelling a specific person to do or abstain from doing a particular thing, and for the infringement of which there should be a legal sanction, whether the one who commits the violation is a chief or a public officer or other person or the State; and the aggrieved person in order to arrest the situation or curb the violation resorts to an application to the court for an order of injunction; but whereas it is still available to him as against some offenders, section 21 of the United Kingdom Crown Proceedings Act, 1947 (10 & 11 Geo. 6, c. 44), which provides that
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an injunction cannot be granted against the Crown; and also section 13 (2) of the State Proceedings Act, 1961 (Act 51), which reads:
“13. (2) The court shall not in any civil proceedings grant any injunction or make any order against a servant of the Republic if the effect of granting the injunction or making the order would be to grant relief against the Republic which would not have been obtained in proceedings against the Republic,”
Forbid the making of an order of injunction against the Republic or a servant of it where it will have the effect of operating against the State, so that it is my considered view that subject to that qualification, an action can be brought against a servant of the Republic in respect of something he has done amiss while performing his public duties; also that Nireaha Tamaki v. Baker (supra) called in aid by Nii Aponsah, is still good law, and the People’s Popular Party case (supra) does not involve any departure from the strict principle of that clear cut decision; and that the law has also been authoritatively laid down in a good few other cases.
There is not an atom of doubt in my mind therefore that in the light of the affidavit evidence of the parties and submissions of counsel, the order of interim injunction sought against the first and second respondents cannot be granted; but as sure as eggs are eggs, an injunction whether interim or perpetual can in certain cases be granted in favour of one chief against another chief, or one person against another; and nothing could give me greater pleasure than to grant the order where the former’s right is being violated by the latter with impunity. However, in order that it may be granted, there must be clear evidence of the existence of the right and the infringement of it.
In this case, the injunction which the applicant wishes to obtain, according to the endorsement of the claim on the writ, is against the first and second respondents, i.e. to restrain those two police officers from issuing a police permit or recalling it if already issued; and it is because the third respondent does not grant or issue police permits, that an interim injunction cannot be issued against him to restrain him from granting or issuing a police permit to himself or his supporters for his outdooring ceremony; but in the application now being considered by the court, the applicant seeks either an interim injunction restraining the first and second respondents from issuing the police permit or to renegue it if it has already been issued, and as an alternative to that interim injunction, an interim injunction against the third respondent restraining him and his agents, etc. from holding or allowing his followers to hold any outdooring ceremony of himself as a senior sub-chief in or any other capacity of chief of Nsakina.
So far, the applicant relied on a Local Government Bulletin to show that he is the sub-chief of Nsakina, and the third respondent, too, relied on another Local Government Bulletin to establish his status as senior sub-chief of Nsakina. Hence it is rather preposterous for Nii Aponsah, counsel for the applicant, to say that the consent and approval of the applicant “as the only chief of Nsakina” must be obtained before
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the police issue a permit to the third respondent; and apart from the reasons advanced by Nii Aponsah in favour of the grant of the interim injunction (i.e. the deplorable state of affairs at Nsakina which is likely to induce a breach of the peace, etc.) he was deftly silent about what the applicant’s right was which he alleges is being infringed, although the impression was created that the alleged right of his client is the right to preserve his rank and position as a sub-chief of Nsakina, and that the alleged infringement of it is the alleged prejudice which will be caused to it by the holding of the outdooring ceremony of the third respondent as the senior sub-chief of that village. Therefore at this stage of the proceedings, I am engulfed in a morass of doubt as to the true identity of that right, there being practically no tangible evidence to establish it; and I have the most perfect conviction that it cannot reasonably be said that the third respondent ought to be restrained from exercising his inalienable right of making use of the permit already issued to him or asking in the foreseeable or distant future for a police permit that may be necessary for any celebration dictated by custom, which will involve him in his capacity as the recognised senior sub-chief of Nsakina. Hence the applicant has failed to convince this court that by the ceremony of outdooring of the third respondent as the senior sub-chief of Nsakina, the right of the plaintiff-applicant as sub-chief of Nsakina will be infringed, so that an order of interim injunction can justifiably be made against the third respondent. Consequently, I am not disposed to make against any of the respondents an order of interim injunction, which to my mind, will be utterly at variance with justice, with the result that the applicant has come to grief as far as that equitable relief is concerned.
I shall next advert to the declaratory order, which may be made against the Crown or the State in lieu of an injunction, as provided in section 21 of the United Kingdom Crown Proceedings Act, 1947, and section 13 of Act 51 respectively; and to be candid, I should make no scruple to grant such an order where there has been a flagrant disregard for the right of the individual arising from the injudicious exercise of discretion on the part of the government or a person or a public officer purporting to act on behalf of the State.
Of course, the relevant statutory provision, which currently regulates the issue of a police permit is section 8 of the Public Order Decree, 1972 (N.R.C.D. 68), which provides that:
“8. (1) Any person who intends —
(a) to hold or form any meeting or procession; or
(b) to celebrate any traditional custom, in any public place shall first apply to a superior police officer for permission to do so.
(2) The superior police officer shall consider the application fairly and impartially, and shall issue a permit authorising the meeting, procession or celebration unless he is satisfied upon reasonable grounds that it is likely to cause a breach of the peace or to be prejudicial to national security.”
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And needless to say, this section re-enacted section 6 (1) of the Public Order Act, 1961 (Act 58), which is as follows:
“6. (1) Any person who desires,
(a) to celebrate any traditional custom; or
(b) to hold or form any meeting or procession in any public place, shall first apply to a police officer not below the rank of Assistant Superintendent of Police, or other authorised public officer for permission to do so; and if such officer is satisfied that the celebration, meeting or procession is not likely to cause a breach of the peace, he may issue a permit authorising the celebration, meeting or procession. . .
The latter Act having been repealed by the former.
Nii Aponsah therefore was re-echoing the words of the Decree when he said that the public officer is enjoined to give fair and impartial consideration to the application, which implied that the Inspector-General of Police and the chief superintendent, who considered the application, had to satisfy themselves before issuing the police permit. He stated further that it behoves the public officer to act candidly and bona fide, also to disclose the grounds on which he claims to be satisfied so as to afford the court the opportunity of inquiring into them to see whether the discretion has been properly exercised, or whether he has been arbitrary, capricious or biased (doubtless having in mind the observations of Hayfron-Benjamin J. (as he then was) in the People’s Popular Party case (supra)) and that the section allows the permit to be issued only where there is not the likelihood of a breach of the peace occurring.
Fuhermore that here the two police officers (i.e. the first and second respondents) could not have satisfied themselves, because they had been put au fait of the third respondent’s threat to commit a breach of the peace; also his client’s supporters had not been co-operative as contended by the police, and in view of the statement attributed to the second respondent by his client’s followers; but rather in anticipation of trouble, they had refused to grant the permit until they abdicated the right to satisfy themselves to Nii Amugi, the Ga Mantse.
Moreover that a declaratory judgment in this case ought to be given as the police cannot forcefully suppress the right of protest of the third respondent; also it would be to his client’s advantage since the police officers may observe the law as it will be enunciated by the court.
However, Mr. Nelson-Cofie, counsel for the third respondent, (who conceded that by virtue of section 13 of Act 51 there can be given a declaratory judgment, which may be respected) maintained that this is not an appropriate case in which a declaratory order should be made, and that it would be of no avail to the applicant.
Mr. Odoi, the, senior state attorney, also does not approve of the making of a declaratory order, because the police owed a duty to protect the traditional rulers when carrying out their traditional customs, and they had been perfectly satisfied before issuing the permit.
[p.15] of [1975] 2 GLR 1
In my view, it is of some relevance to refer to the case of Jenkins v, Bushby [1891] 1 Ch. 484 at p. 495, C.A. where Kay L.J. said:
“Of course, in a question of discretion, authorities are not of much value. No two cases are exactly alike, and even if they were, the Court cannot be bound by a previous decision, to exercise its discretion in a particular way, because that would be in effect putting an end to the discretion,”
and to section 8 of N.R.C.D. 68. It seems necessary, too, to me, to examine:
(a) the nature of the application made, and the purpose for which the permit was required; and (b) how the discretion in this case was exercised. As regards the former, the third respondent, the Ga Mantse and the police all say it was to enable the third respondent to sit in state only; but Nii Aponsah, counsel for the applicant, says it was to facilitate the threat of vandalism of the third respondent and his supporters; and I would hazard the guess that the alleged threat was a hoax or bluff, and the true nature of the ceremony for which the permit was required was a “sitting-in-state” ceremony as confirmed by the Ga Mantse, who knows best about Ga traditional customs.
As to the latter, when the application reached the Nima Police Station, both the applicant and the third respondent together with their followers were invited by the second respondent to the police station, where there was a confrontation between the supporters of the two sub-chiefs. According to the second respondent, he talked with both sides, and he was assured even by the third respondent’s supporters in the absence of the third respondent who did not honour the invitation, that there would be no clash; also Nii Ga wrote explaining that there would be no procession and recommending the issue of the permit; and on being satisfied that there would be no clash, the permit was issued; but Nii Aponsah says that his client’s men gave no such assurance, and that at the time of the issue there was rather an explosive situation, so that the permit ought not to have been issued. Howbeit, that is the opinion of the applicant’s counsel, who is perfectly entitled to it; but for him to say that it was the Ga Mantse who made up the minds of the police officers, postulates that the two highly trained officers were incapable of duly exercising their discretion and I am diametrically opposed to that view. I surmise that it was not only Nii Ga’s letter, but also the favourable result of the usual independent police inquiry or investigation which must have been carried out, and above all the firm conviction of the police that there was really no cause for alarm that influenced the decision of the police in granting the permit.
Moreover the courts are not enamoured of making orders which cannot be enforced, as may safely be inferred from the following dicta of Apaloo J.A. in Levandowsky v. Attorney-General (No. 2) [1971] 1 G.L.R 49 at p. 50, C.A. “It seems to us plain that we cannot stultify ourselves by making any orders which cannot be lawfully enforced and if as counsel admits, he cannot competently levy execution against the respondent, then this application is pointless”; and of Koi Larbi J.S.C. (as he then was) in Benneh v. The Republic [1971] 2 G.L.R. 354 at p. 360, C.A. “the court
[p.16] of [1975] 2 GLR 1
could not stultify itself by being called upon to make an order it could not lawfully decree against the defendant herein,” and this court is no exception.
Besides from the facts I have so far been able to glean from the evidence given by affidavit, and what counsel have said, I do not feel like gratifying Nii Aponsah by making a declaratory order for the recall or revocation of the permit said to have been issued by the second respondent to the third respondent and his supporters or both.
In the result, I have no alternative, but to dismiss the application for interim injunction or interim declaratory order; and I award 025.00 costs to each of the defendants-respondents.
DECISION
Application for interim injunction and declaratory order in lieu of injunction refused.
S. Y. B.-B.
