HIGH COURT, HO
Date: 4 MARCH 1975
ANDOH J
CASES REFERRED TO
(1) Craig v. Kanseen [1943] K.B. 256; [1943] 1 All E.R. 108; 112 LJ.K.B. 228; 168 L.T. 38; 87 S.J. 48, C.A.
(2) Kofi Forfie (chief) v. Barima Kwabena Seifah [1958] A C. 59; [1958] 2 W.L.R. 52; [1958] 1 All E.R. 289n; 102 S.J. 31, PC.
(3) Amoabimaa v. Badu (1957) 2 W.A.L.R. 214, W.A.C.A.
(4) Anlaby v. Praetorius (1888) 20 Q.B.D. 764; 57 L.J.Q.B. 287; 58 L.T. 671; 36 W.R. 487; 4 T.L.R. 439.C.A.
(5) MacFoy v. United Africa Co., Ltd. [1962] AC 152; [1961] 3 W.L.R.1405; 105 S.J. 1067; [1961] 3 All E.R. 1169, PC.
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(6) Ghassoub v. Dizengoff (W.A.) [1962] 2 G.L.R. 133, S.C.
(7) Lazard Brothers & Co. v. Midland Bank, Ltd. [1933] A C. 289;102 LJ.K.B. 191; [1932] All E.R. Rep. 571; 148 L.T. 242; 49 T.L.R. 94; 76 S.J. 888, H.L.
NATURE OF PROCEEDINGS
APPLICATION for certiorari to quash the order for the delivery of stool property made against the applicant by the judicial committee of a traditional council. The facts are sufficiently stated in the ruling.
COUNSEL
Dr. Obed Asamoah for the applicant.
D. M. Akotia for the respondent.
JUDGMENT OF ANDOH J.
In these proceedings Dr. Asamoah moves the court on behalf of the applicant herein for an order of certiorari to bring up to this court with a view to its being quashed an order made by the judicial committee of the Krachi Traditional Council dated 9 August 1974 whereby the committee ordered the applicant to hand over to one Opanyin Kwaku Donkor of Borae No. 2, the black stool of Nchenke and the stool paraphernalia.
The grounds relied on by counsel for the applicant would be referred to in the course of this ruling. Before then, I think it would be necessary to recount briefly the events which gave rise to this application. They are as follows:
In 1973 one Opanyin Kwaku Donkor of Borae No. 2, in whose favour the judicial committee decided that the applicant do hand over the black stool of Nchenke and the stool paraphernalia, sued one Nana Kofi Kokroko II also of Borae No. 2 in the Krachi Traditional Council. The principal relief sought by Opanyin Kwaku Donkor against Nana Kofi Kokroko II was that his enstoolment should be declared null and void by the judicial committee of the Krachi Traditional Council. The ancillary relief sought was that the black stool of Nchenke and the stool paraphernalia were to be collected from Nana Kofi Kokroko II and kept by the Krachi Traditional Council until a new chief was elected and installed.
The applicant herein was a proposed witness for Opanyin Kwaku Donkor, the plaintiff in the suit against Nana Kofi Kokroko II. While the suit was still sub judice and before evidence was taken even from the plaintiff, Nana Kofi Kokroko II, the defendant died. His death was promptly communicated to the judicial committee. Meanwhile the applicant herein as the mankrado of Borae No. 2 assumed full custody and control of the black stool and the stool paraphernalia in accordance with custom until a new chief was installed. In spite of the knowledge possessed by the judicial committee of the death of Nana Kofi Kokroko II which necessitated the committee to adjourn the suit on its own motion on about three occasions, the same committee at one stage and in the absence of an order for substitution, even assuming that the suit did not abate on the death of Nana Kofi Kokroko II, the defendant proceeded to take evidence from the plaintiff and one witness, the President of the Krachi Traditional Council. The applicant herein, in whose custody the black stool of Nchenke
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and the stool paraphernalia were, was not even called as a witness as the plaintiff had intended to do. The judicial committee of the traditional council then gave its judgment headed “Ex parte judgment 9 August 1974.” The ex parte judgment is annexed to the application as exhibit A. In a portion of the judgment (exhibit A) affecting the applicant, the judicial committee ordered inter alia:
“That Nana Kofi Anane, Krontihene or Amankrado [the applicant] of Borae No. 2. is hereby ordered to hand over the Nchenke black stool and its paraphernalia to Opanyin Kwaku Donkor [the plaintiff in that suit] who is the head of the Wonka Clan immediately he enstools a chief.”
The grounds for this application which have been argued by Dr. Asamoah are the following:
(a) That the judicial committee lacked jurisdiction to hear the case between Opanyin Kwaku Donkor and Nana Kofi Kokroko II;
(b) That the judicial committee acted without jurisdiction in making the said order and that the said order is bad in law in that:
(i) On the death of the defendant, Nana Kofi Kokroko II, the action against him abated and therefore there was no action pending before the judicial committee in respect of which the judicial committee could give judgment or issue orders;
(ii) That the reliefs claimed by the plaintiff and the real issues in dispute did not warrant the making of the order. (This ground will not be discussed because of the conclusions reached in grounds (a) and (b) (i)).
Ground (a) of the application imputes lack of jurisdiction to the judicial committee of the Krachi Traditional Council to hear the case between Opanyin Kwaku Donkor and Nana Kofi Kokroko II. What then is embraced in the expression lack of jurisdiction? Jurisdiction itself simply means authority or competence to decide or adjudicate. It follows therefore by necessary implication that lack of jurisdiction means “not having authority, or incompetent to decide or adjudicate.” Lack of jurisdiction may arise in several ways such as where the tribunal which purports to decide a case is improperly constituted; where essential preliminary requirements precedent to vesting jurisdiction in the tribunal have not been observed or where the proceedings have improperly been instituted. It may also arise if the tribunal is incompetent to adjudicate in respect of the parties, the subject-matter itself, or the locality in question. It may also arise where the tribunal having jurisdiction initially in the subject-matter and over the parties, proceeds to make an order beyond its competence during the hearing of the suit. An example of the last situation arises where there is breach of the rules of natural justice – where a man is condemned without being given an opportunity to answer the charge against him or where there has not been an effective service on a party before a decision is given.
In this application having heard Dr. Asamoah in this court what I understand him to mean when he imputes lack of jurisdiction to the
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judicial committee is that the alleged judicial committee of the Krachi Traditional Council has no legal or statutory existence. Now this is a very serious indictment and in view of the remarkable results which may arise if this submission is upheld bearing in mind the fact that the judicial committee of the Krachi Traditional Council has been entertaining and adjudicating cases of a constitutional nature, this court has patiently listened to counsel in order to follow the trend of his arguments. In his attempt to show that the judicial committee of the Krachi Traditional Council has no legal or statutory existence, learned counsel has referred this court to five enactments dealing with the creation of state councils or traditional councils in this area. For the purpose of this application, the court will confine itself as far as practicable, to Krachi. These enactments are the followings:
(1) The State Councils (Colony and Southern Togoland) Ordinance, 1952 (No. 8 of 1952), to be referred to simply hereafter as the Ordinance No. 8 of 1952.
(2) The Chieftaincy Act, 1961 (Act 81), which repealed the Ordinance No. 8 of 1952 and made provision by substituting in place of state councils existing before the coming into force of Act 81, traditional councils. Counsel particularly referred to section 12 (2) of Act 81 where the Minister was empowered to constitute a traditional or joint traditional council for a traditional area without a traditional council.
(3) Local Government Bulletin, No. 48 at p. 404 dated 30 November 1962 by which the Minister of Justice constituted Krachi and Nchumuru as a joint traditional council with headquarters at Krachi pursuant to powers vested in him by section 12 (2) of Act 81.
(4) The Chieftaincy (Amendment) Decree, 1966 (N.L.C.D. 112), which abolished the Krachi-Nchumuru Joint Traditional Council and further reduced the status of the chiefs who thereby reverted to their former status prior to 1966.
(5) The Chieftaincy Act, 1971 (Act 370), and particularly section 12 (1) thereof which provided that traditional councils in existence immediately before the commencement of the Act shall continue in existence for the traditional area in respect of which they existed immediately before the said commencement.
To these enactments I may add the Northern Territories Council Ordinance, 1952 (No. 3 of 1952), and the Native Authority (Krachi Area) Order, 1935.
A careful examination of Ordinance No. 8 of 1952 shows that four states were created by the said Ordinance to operate independently as state councils with jurisdiction to determine constitutional matters. The four states are set out clearly under the Second Schedule to the said Ordinance. These states are Akpini, Asogli, Hokpe and Buem. The said Ordinance further reveals beyond any shadow of doubt that Krachi and Nchumuru, with which this application is most closely concerned, were listed with other towns under the First Schedule as divisions with no independent state council of their own. By section 6 of the said Ordinance,
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the Governor reserved the right to appoint a committee of five to determine constitutional matters whenever the occasion warranted it. So therefore the position is that prior to the coming into force of the Chieftaincy Act, 1961 (Act 81), Krachi was a division and not a state, and so was Nchumuru. I may mention here that the Native Authority (Krachi Area) Order, 1935, provided that (1) the area comprised within the limits prescribed in the Schedule to this Order shall be constituted an area for the purposes of Native Authority Ordinance; (2) the Krachiwura and his council shall be the native authority for the said area. The limits of the area shall coincide with these lands subject to Krachiwura of Krachi and occupied by the Nchumuru, Ntrubu, Akrosu, Bassa, Tapa, Apai and Adjade people and with those lands subject to the chiefs of Adeli and Adjuanti. This Ordinance did not confer the trial of constitutional matters and by section 6 of the Ordinance No. 8 of 1952, jurisdiction was vested to try constitutional matters in a committee to be appointed by the Governor. The Chieftaincy Act, 1961, completely repeated Ordinance No. 8 of 1952: see Act 81, s. 69 (1).Section 12 (1) of Act 81 abolished further the institution of state councils and enacted as follows:
“Where immediately before the commencement of this Act a State Council was in existence under an enactment repealed by this Act for an area which substantially corresponds to a traditional area, that Council shall, subject to section 14 of this Act, be the Traditional Council for the area, and shall no longer be known as a State Council.”
Now it is clear from section 12 (1) above that the four states, namely, Akpini, Asogli, Hokpe and Buem had their state councils converted to traditional councils in their traditional area. Krachi and Nchumuru which were divisions had to be provided for if they were to enjoy the same privileges as the four states named above. Section 12 (2) of Act 81 provided as follows:
“Where the preceding subsection does not apply in relation to one or more traditional areas, the Minister may constitute a Council to be the Traditional Council for that area, or those areas jointly, as the case may be.”
The fact that Krachi and Nchumuru had no state council of their own cannot be doubted and so to rectify the anomaly the Minister of Justice by virtue of the powers conferred upon him by section 12 (2) of Act 81 had to act.
By Local Government Bulletin, No. 48 of 30 November 1962 at p. 404 the Minister constituted traditional councils and Krachi and Nchumuru were constituted as a joint traditional council with its headquarters at Krachi. By this Local Government Bulletin, there was no Krachi or Nchumuru Traditional Council. There was only one council for the two areas and that was Krachi-Nchumuru Joint Traditional Council. The status of the chiefs were raised to that of paramount stools at the time.
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This was during the Nkrumah regime. When the government of Dr. Kwame Nkrumah was toppled by the National Liberation Council, N.L.C.D. 112 was passed. This was the Chieftaincy (Amendment) Decree, 1966 (N.L.C.D. 112).The Decree abolished the Krachi-Nchumuru Joint Traditional Council. The two chiefs who had hitherto enjoyed paramountcy were reduced and reverted to their previous ranks. This Decree crucified the Krachi-Nchumuru Joint Traditional Council. The joint traditional council died therefore for all intents and purposes unless later to be reconstituted with Krachi enjoying the status of a traditional council independently of Nchumuru or unless the two areas were to be reconstituted as Krachi-Nchumuru Joint Traditional Council. Now the question which arises for consideration is whether Krachi Traditional Council or Krachi-Nchumuru Joint Traditional Council has been reconstituted since its abolition by N.L.C.D. 112 so as to vest it with jurisdiction either to determine constitutional matters independently of each other or jointly? The Chieftaincy Act, 1971 (Act 370), came into force on 13 September 1971. Learned counsel for the applicant referred to section 12 (1) of the said Act. It reads as follows:
“12. ( 1) There shall be a Traditional Council for each traditional area and the Traditional Councils in existence immediately before the commencement of this Act shall continue in existence for the traditional areas in respect of which they existed immediately before the said commencement.”
Learned counsel further submitted that since there was no Krachi Traditional Council in existence immediately before the coming into force of Act 370, the judicial committee of Krachi Traditional Council acted without jurisdiction in purporting to hear the case. On this submission, I have this to say. The only traditional council created by Local Government Bulletin, No. 48 at p. 404 dated 30 November 1962, was the Krachi-Nchumuru Joint Traditional Council. Neither Krachi nor Nchumuru had a traditional council of its own. It was a joint traditional council until the Chieftaincy (Amendment) Decree, 1966 (N.L.C.D. 112), was passed. The effect of the Decree is obvious. It crucified the Krachi-Nchumuru Joint Traditional Council. Since Krachi-Nchumuru Joint Traditional Council was abolished by N.L.C.D. 112, it cannot be said to have been in existence immediately before the commencement of Act 370. Krachi itself had never before the publication of Local Government Bulletin No. 48 at p. 404 of 30 November 1962, been a traditional council. Even if it could be said to have been a traditional council, it was abolished by N.L.C.D. 112. It follows therefore that there cannot be a Krachi Traditional Council. In fact it does not legally exist. If there is no Krachi Traditional Council then it follows that the judicial committee nominated therefrom is equally non-existent and its orders are consequently a nullity. Exhibit B is a letter from the Volta Regional House of Chiefs. It sets out the traditional councils which are legally considered to be in existence in the Volta Region. The letter dated 19 September 1972 is signed by the Registrar of the
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House of Chiefs and amongst the said traditional councils listed is Krachi Traditional Council. The registrar stated in exhibit B as follows:
“Under section 12, subsection (1) of the Chieftaincy Act. 1971 (Act 370), traditional councils in existence immediately before the commencement of the Act shall continue in existence for the traditional areas in respect of which they existed immediately before the said commencement. By virtue of N.L.C.D. 112 the following are the Traditional Councils which are legally considered to be in existence in the Volta Region.”
The registrar then listed under (1) Krachi Traditional Council with headquarters at Krachikrom. Can this letter emanating as it does from the Volta Regional House of Chiefs, which is based on wrong premises and assumptions, give birth to the Krachi-Nchumuru Traditional Council or for that matter Krachi Traditional Council even though the former has been abolished by N.L.C.D. 112 and the latter had never existed before? The short answer to this question is that exhibit B cannot give birth to what by statute has long been abolished. It is impossible. Mr. Akotia has chosen to remain practically silent in replying to counsel’s submissions contending that this is a matter of pure law. In fact when pressed to assist the court, learned counsel had to concede that the point was unanswerable except to say that the Native Authority (Krachi Area) Order, 1935, seemed inapplicable. I think the history of state councils set up from the 1952 Ordinance to the commencement of Act 370 shows that there is nothing like Krachi Traditional Council. The irony of it all is that Andoh J. whose lot it has been to make this pronouncement is the one before whom the judicial oath was taken by members of the judicial council. I think I was entitled to act on the doctrine of regularity. The Krachi judicial committee is non-existent because there was no Krachi Traditional Council immediately before Act 370. The application will therefore be granted and I order the ex parte judgment to be brought before this court for the purpose of its being quashed. The applicant is entitled ex debito justitiae to have the ex parte judgment quashed.
On the other ground that the order was bad in law in that upon the death of the defendant, Nana Kofi Kokroko II, the judicial committee had no jurisdiction to hear the case. I am shocked to find that the committee had the courage to proceed with the case when it was fully cognisant of the death of Nana Kofi Kokroko II.
The committee should have known that assuming the suit did not abate upon the death of the defendant it was not legally competent to hear the case in the absence of an order for substitution in place of the deceased. Since the suit proceeded upon the death of Nana Kofi Kokroko II, the judgment of the judicial committee is a nullity and even if I had disagreed with the main submission of counsel for the applicant, I would still have granted the application on this ground. The application is hereby granted. There will be no order as to costs.
For cases on void judgments which would entitle any party affected thereby to apply to have same set aside ex debito justitiae: see the following
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cases: Craig v. Kanseen [1943] K.B. 256, C.A.; Kofi Forfie (Chief) v. Barima Kwabena Seifah [1958] 1 All E.R.289n, P.C.; Amoabimaa v. Badu (1957) 2 W.A.L.R. 214 at p. 216, W.A.C.A.; Anlaby v. Praetorious (1888) 20 Q. B. D. 764 at pp. 770 and 771, C.A.; MacFoy v. United Africa Co., Ltd. [1963] 3 All E.R. 1169 at p. 1172, P.C.; Ghassoub v. Dizengoff (W.A.) [1962] 2 G.L.R. 133, S.C. and Lazard Brothers & Co. v. Midland Bank, Ltd. [1932] All E.R. Rep. 571, H.L.
DECISION
Application granted.
S. Y. B.-B.
