REPUBLIC v. TEKPERBIAWE DIVISIONAL COUNCIL AND ANOTHER; EX PARTE NENE KORLE II [1972] 1 GLR 199
HIGH COURT ACCRA
Date: 1 NOVEMBER 1971
BEFORE: ABBAN J.
CASES REFERRED TO
(1) Rendall v. Blair (1890) 45 Ch.D. 139; 59 L.J.Ch. 641; 63 L.T. 265; 38 W.R. 689; 6 T.L.R. 386,
C.A.
(2) R. v. Medical Appeal Trinunal; Ex parte Gilmore [1957] 1 Q.B. 574; [1957] 2 W.L.R. 498; 101 S.J.
248; sub nom. Re Gilmore’s Application [1957] 1 All E.R. 796, C.A.
(3) Ahenkora v. Ofe (1957) 3 W.A.L.R. 145 C.A.
(4) Greaves v. Tofield (1880) 14 Ch.D. 563; 50 L.J.Ch. 118; 43 L.T. 100; 28 W.R. 840, C.A.
(5) Webb v. Outrim [1907] A.C. 81; 76 L.J.P.C. 25; 95 L.T. 850; 23 T.L.R. 147, P.C.
(6) Summers (John) & Sons v. Frost [1955] A.C. 740; [1955] 2 W.L.R.825; 99 S.J. 257; [1955] 1 All
E.R. 870, H.L.
(7) The Resident, Ibadan Province v. Lagunju (1954) 14 W.A.C.A. 549.
(8) Enu I v. Biney (1942) 8 W.A.C.A. 70.
(9) In re State Council of Wassaw and Kwamina Enimil (1934) D.Ct.’31-’37, 61.
NATURE OF PROCEEDINGS RULING on an objection to the jurisdiction of the High Court to entertain the applicant’s application for an order of certiorari to quash the proceedings of a traditional council relating to a chieftaincy dispute. The facts are fully stated in the ruling of Abban J.
COUNSEL
U.v. Campbell (Ate Puplampu with him) for the applicant.
I. Amoo-Lamptey for the respondents.
JUDGMENT OF ABBAN J.
The application before the court is for the writ of certiorari directing the respondents, Tekperbiawe
Divisional Council and the Ada Traditional Council to bring up to this court certain proceedings dated 20 April 1971 for the same to be quashed. The applicant further prays for an order prohibiting the two respondents from suspending him or declaring him destooled from his office as a divisional chief.
The events which led to this application are set out in the affidavits filed. The contents of these affidavits show that the applicant had been the recognised divisional chief of Tekperbiawe division of Big Ada, and in November 1970, some members or sections of the said divisional stool led by one Korle Gbettor intending to destool the applicant preferred destoolment charges against him. The charges were lodged with certain elders of the Tekperbiawe divisional stool, and this procedure, on the face of it, purported to comply with the Chieftaincy (Destoolment Proceedings) Regulations, 1963 (L.I. 309), The following are some of the provisions of L.I. 309:
“1. (1) Every Traditional Council shall for its area make and forward to the Minister a list of the
names and any customary posts or titles of all persons who are entitled by custom to give final
approval to the destoolment of a Chief. [p.203] of [1972] 1 GLR 199 (2) For the purpose of these Regulations, the expression ‘elder’ means a person whose name appears on the list forwarded to the Minister under the preceding sub-regulations. 2. A claim or complaint against a Chief may be lodged with an elder of the Stool concerned who shall, within fourteen days of the lodging, summon all the other elders concerned to hear the claim or complaint. 3. At any meeting of the elders concerned,
(a) the elder summoning the meeting shall be the chairman;
(b) the quorum shall be half the number of the elders concerned;
(c) decisions shall be by a simple majority of elders present; and
(d) the chairman shall have an additional or casting vote in the event of an equality of votes.
4. (1) The meeting may dismiss the claim or complaint summarily but where the meeting decides that a prima facie case has been made out against the Chief it shall forward a copy of the claim or
complaint together with the decision thereon to the Traditional Council and the elders shall
have the right, to the exclusion of any other person, to appear before the Traditional Council in
the exercise of its jurisdiction under section 15 of the [Chieftaincy] Act [Act 81].” It is to be noted that section 15 of the Chieftaincy Act, 1961 (Act 81), has now been repealed but the same provision has been made in section 15 of the Chieftaincy Act, 1971 (Act 370), which came into effect on
18 September 1971. It appears those elders with whom the destoolment charges were lodged constituted themselves into a council of elders of the Tekperbiawe stool and, with one C. O. C. Amartey as its chairman, convened a meeting as required by regulations 2 and 3 of L.I. 309 and invited the applicant to attend the said meeting and to answer those charges. The applicant on receiving the notice of the meeting, wrote to these elders, challenging their right to convene such a meeting. The applicant’s contention was that those elders intending to inquire into the said charges were not elders as defined by regulation 1(2) of L.I. 309. The said council of elders ignored the applicant’s protest and went into the charges in his absence. They found that a prima facie case had been made out against the applicant. Consequently a copy of the destoolment charges and their findings were submitted to the Ada Traditional Council in accordance with regulation 4 (1) of L.T. 309 (quoted supra).
The Ada Traditional Council having thus become seised of the case, served hearing notice on the
applicant to attend a meeting of the council to defend himself. The applicant appeared before the council and after pleading not liable to the charges, he objected to the procedure which had been adopted by the council of elders of the divisional stool. The traditional council overruled the objection and adjudicated on the destoolment [p.204] of [1972] 1 GLR 199 charges, and declared the applicant destooled. The applicant therefore filed the application under Order 59, rr. 2—4 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), to quash the proceedings, both before the stool elders of Tekperbiawe division and the Ada Traditional Council, as being irregular and to prohibit them from declaring him destooled. Paragraphs (5), (6) and (7) of the applicant’s affidavit read as follows:
“(5) The applicant was subsequently summoned before the Ada Traditional Council before which council he appeared and pleaded not liable to the charges, he further protested at the irregularity of the charges and proceedings before the Tekperbiawe Divisional Council as constituted. (6) Despite the protest of the applicant and without giving him an opportunity to answer to the charges
the Ada Traditional Council adjudicated upon the charges and pronounced him suspended and or
destooled by its judgment and order dated 20th April, 1971. (7) The whole proceedings were irregular, in excess of jurisdiction of both the Tekperbiawe Divisional Council as constituted, and the Ada Traditional Council and in gross violation of the Chieftaincy (Destoolment Proceedings) Regulations, 1963 (L.I. 309), for the reasons stated hereunder.”
The respondents, through their counsel have taken a preliminary objection to the jurisdiction of the High Court to entertain the application. Learned counsel for the respondents contends that the matters which the applicant is complaining about are matters affecting chieftaincy and since exclusive jurisdiction in chieftaincy disputes is reserved for the traditional council, this court is not competent to adjudicate on such matters; and he refers to section 15 (1) of the Chieftaincy Act, 1971 (Act 370), and section 52 of the Courts Act, 1971 (Act 372), in support of his contention. Learned counsel for the applicant contends otherwise. He submits that the court has jurisdiction to hear the application and in doing so the court will not be adjudicating on the merits of the dispute between the parties but will only limit itself to finding out whether the traditional council and the elders of the Tekperbiawe divisional stool in exercising their jurisdiction, have complied with the law and the rules of natural justice.
I think the contention of the learned counsel for the respondents that the traditional council has exclusive jurisdiction to adjudicate on chieftaincy disputes is well-founded. Section 15 (1) of the Chieftaincy Act, 1971 (Act 370), provides that:
“Subject to the provisions of this Act and to any appeal therefrom, a Traditional Council shall have exclusive jurisdiction to hear and determine any cause or matter affecting chieftaincy which arises within its area, not being one to which the Asantehene or a Paramount Chief is a party.”
Section 52 of the Courts Act, 1971 (Act 372), reads as follows: [His lordship here read the provisions as set out in the headnote and continued:] [p.205] of [1972] 1 GLR 199 The definition of the expression “any cause or matter affecting chieftaincy” is provided in section 113 of
the said Act and in that respect, section 52 should be read and construed with section 113.
While conceding that the High Court has no jurisdiction to adjudicate on matters involving chieftaincy by virtue of sections 52 and 113 of Act 372, can it also be said that it has no supervisory jurisdiction over the traditional council which is the competent forum for the adjudication of such matters. My view is that the provisions of these two sections of Act 372 should not be construed so as to affect the common law powers of the High Court to supervise the judicial activities of the traditional council and that the High Court can be called upon to exercise these supervisory powers where the traditional council has acted in excess of jurisdiction, or without jurisdiction, by the use of certiorari and prohibition: Whenever a person is empowered by an enactment to exercise judicial or quasi-judicial functions in any matters, his exercise of those functions is within the scope of certiorari and prohibition at common law; and the enactment entrusting him with such functions should not be construed as having ousted the common law supervisory jurisdiction of the High Court, unless the enactment concerned clearly says so. Statutes are not presumed to make any alteration in the common law, otherwise than the Act expressly declares. That is to say, in all
general matters the law will presume that the Act did not intend to make any alteration, for if Parliament had had that design they would have expressed it in the Act. In Rendall v. Blair (1890) 45 Ch.D. 139 at p. 155, C.A., Bowen L.J. made the following significant remarks. He said: “Such legislation is possible; but I think we ought not to assume without the clearest language that Parliament intended to destroy common law rights of Her Majesty’s subjects by placing them at the mercy of an irresponsible tribunal or irresponsible department of the State.” In Re Gilmore’s Application [1957] 1 All E.R. 796, C.A. Denning L.J. (as he then was) stated the position very succinctly when he said at p. 801 that “on looking again into the old books I find it very well settled that the remedy by certiorari is never taken away by any statute except by the most clear and explict words.” The same view was expressed in the case of Ahenkora v. Ofe (1957) 3 W.A.L.R. 145, C.A. by Granville Sharp J.A. and van Lare Ag.C.J., Adumua-Bossman J. (as he then was) dissenting on this point. In that case, it was contended, inter alia, that since section 88 of the Courts Ordinance, Cap. 4 (1951 Rev.), excluded the jurisdiction of the High Court to entertain either at first instance or on appeal any civil cause or matter instituted for the trial of election, installation or deposition of a chief, the High Court had no jurisdiction to entertain certiorari proceedings which touched on such matters. (The emphasis is mine). In his judgment Granville Sharp J.A. said at pp. 151-152:
“That there is a strong leaning against construing a statute so as to oust or restrict the jurisdiction of the superior courts cannot be doubted, … [p.206] of [1972] 1 GLR 199 Considering, as I do, the expressions used in section 88, 1 cannot find any language that makes it clear that the intention is that in no circumstances can the High Court intervene simply because the tribunal whose
conduct is being impugned has been engaged upon an inquiry into a matter falling within the categories described in the subsections…. The presumption against an intention to oust or restrict jurisdiction is, as I have said, strong, and statutes evincing a tendency to do this must therefore be, and always have been, strictly construed. In the case of Goldsack v. Shore ([1950] 1 K.B. 708) Lord Evershed M.R. said: ‘I accept the submission that the jurisdiction of the King’s Courts must not be taken to be excluded unless there is quite clear language in the act alleged to have that effect’.”
van Lare Ag.C.J. who concurred in the judgment of Granville Sharp J. A. said at p. 154:
“I desire to take the liberty of expressing my opinion on the effect of the Courts Ordinance, s. 88, in respect of which there appear to be divergent views by various judges.
I am of the opinion that the effect of this section is not such as to exclude the supervisory jurisdiction
exercised by the Supreme [High] Court over inferior tribunals concerned with the matters mentioned in that section and, in particular, over state councils, or committees of inquiry appointed under the State Council Ordinance.”
To my mind, the construction which the majority of Court of Appeal put on section 88 of the Courts
Ordinance, Cap. 4 (1951 Rev.), in Ahenkora’s case (supra) is sound in every respect and the same
construction ought to be put on sections 52 and 113 of the Courts Act, 1971 (Act 372). Because, even
though the Courts Ordinance, Cap. 4, has been repealed, the provisions of this section 88 have been saved by every subsequent new enactment on the structure and the jurisdiction of the courts in the country. The Courts Act, 1960 (C.A. 9), as subsequently amended by the Courts (Amendment) Act, 1962 (Act 130), came to replace the Courts Ordinance, Cap. 4. But section 41 of the Courts Act, 1960 (C.A. 9), restored the provisions of section 88 of Cap. 4, and paragraph 66 of the Courts Decree, 1966 (N.L.C.D. 84), which Decree succeeded the Courts Act, 1960 (C.A. 9), re-enacted the provisions of section 41 of the Courts Act, 1960. Now sections 52 and 113 of the new Courts Act, 1971 (the last saving provisions) have for all practical purposes, made the same provision as was made in paragraph 66 of the Courts Decree, 1966 (N.L.C.D. 84). Comparing the words used in section 88 of the Courts Ordinance, Cap. 4 with those used in all the various subsequent new Courts Acts — including sections 52 and 113 of the Courts Act, 1971— one would not fail to realise that they are all similar in terms.
Indeed many of the words and the expressions used in those sections of the subsequent Courts Acts, seem to have been borrowed from the language of section 88 of the Courts Ordinance, Cap. 4, and I do not think that the legislature used those expressions and words, in sections
[p.207] of [1972] 1 GLR 199 52 and 113 of the new Courts Act, 1971 (Act 372), in a sense different from that given to section 88 of the Courts Ordinance, Cap. 4, by the Court of Appeal in Ahenkora’s case. It is well established that where an Act has received a judicial construction putting a certain meaning on its words, and the legislature in pari materia uses the same words, there is a presumption that the legislature used those words intending to express the meaning which it knew had been put upon the same words before; and unless there is something to rebut that presumption, the Act should be so construed even if the words were such that they might originally have been construed otherwise. For instance, in Greaves v. Tofield (1880) 14 Ch.D. 563, C.A. a landowner by deed charged his land with a life annuity which was never registered under the Judgments Act, 1855 (18 & 19 Vict., c. 15), s. 12; he subsequently mortgaged the property to a third person, who took with notice of the annuity; it was held that, as that section was in terms similar to the clauses in the Registry Acts which had been decided not to make an unregistered conveyance void as against a subsequent purchaser who had notice, the legislature must be taken to have used the words in
the later Act in the sense given to them by those decisions, and that the annuities, therefore were valid as against the mortgagee.
In Webb v. Outrim [1907] A.C. 81 at p. 89, the Privy Council said:
“It is quite true, as observed by Griffith C.J., in the above-mentioned case of D’Emden v. Pedder (1
Commonwealth L. R. 91 at p. 110) that: ‘When a particular form of legislative enactment, which has
received authoritative interpretation, whether by judicial decision or by a long course of practice, is adopted in the framing of a later statute, it is a sound rule of construction to hold that the words so adopted were intended by the Legislature to bear the meaning which has been so put upon them’.”
See also John Summers & Sons Ltd. v. Frost [1955] A.C. 740 at p. 760, H.L. My examination of the new Courts Act has not revealed anything which should rebut the presumption that the words and the expressions in sections 52 and 113 of the said Act are used in the meaning which has been judicially put on them, and they must therefore be construed in the same way as section 88 of the old Cap. 4.
Another case in favour of the applicant is that of The Resident, Ibadan Province v. Lagunju (1954) 14
W.A.C.A. 549. Here, the West African Court of Appeal held that certiorari proceedings did not determine any chieftaincy disputes but were merely a method of enforcing the performance of the judicial function under the Chieftaincy Disputes (Preclusion of Courts) Ordinance, 1948, and that the Ordinance did not take away the common law right of the subject. Foster-Sutton P. who read the unanimous judgment of the court said at p. 553:
“In my view proceedings by way of certiorari taken with the object of compelling the executive to perform its quasi judicial function of holding due inquiry, cannot be said to be a cause or matter instituted for the determination of any question relating to the selection or [p.208] of [1972] 1 GLR 199 appointment of a chief within the meaning of the Ordinance … it is merely a means of compelling the performance of a statutory duty, and I do not think it was the intention of the legislature to deprive the subject of this common law right, . . .”
Learned counsel for the respondents relied on the case of Enu I v. Biney (1942) 8 W.A.C.A. 70 and
submitted that it is on all fours with the present case. With due respect to learned counsel, that case is distinguishable from the one under consideration. The facts as appearing at p. 71 in the judgment of the court show that the plaintiffs-appellants in that case brought a substantive action in the Supreme Court (High Court) Cape Coast asking for certain reliefs including a declaration “that the defendant is not entitled either by native law or under the Native Administration Ordinance to exercise any of the powers of a Paramount Chief in the SubDivisions of Upper Town, Saltpond, Low Town, Saltpond, Biriwa, and Nkusukum-Amansi, in the State of Nkusukum.” There was no doubt that the action was one instituted to determine whether the defendant in that case had been properly elected and installed as a paramount chief of the state of Nkusukum. The West African Court of Appeal therefore had no difficulty in holding that the High Court was precluded by section 26 of the Native Administration Ordinance from adjudicating on the matter as the suit fell within the exclusive jurisdiction of the then State Council by virtue of section 75 (1) of the Courts Ordinance.
What is before this court is not a substantive suit as in the case of Enu I, but an application for the writ of prohibition and certiorari in which the applicant is merely questioning the validity of the proceedings of the traditional council. The High Court in hearing the application will not concern itself with the merits of the destoolment charges before the traditional council. The main concern of the High Court will be to find out whether or not the council of elders of the Tekperbiawe divisional stool and the Ada Traditional Council — being inferior tribunals — in adjudicating on those destoolment charges, acted judicially or exceeded their jurisdiction or whether they so conducted themselves as to justify the interference of the High Court. However, even if the facts in Enu’s case (supra) are not distinguishable from those in the present case, I will still prefer to follow the later decision of the same West African Court of Appeal in the case of The Resident, Ibadan Province v. Lagunju already referred to. The principles enunciated in the latter case were referred to with respectful approval by the majority of the Court of Appeal in Ahenkora’s case (supra). Learned counsel for the respondents also relied on the judgment of the Divisional Court, Accra, dated 10 February 1934, In re State Council of Wassaw and Kwamina Enimil (1934) D.Ct. ‘31-’37, p. 61. But that judgment, although it is a judgment of an eminent Chief Justice, is only persuasive and it is not binding on this court, because it is a judgment of a court of concurrent jurisdiction.
I am therefore of the view that even though the provisions of sections 52 and 113 of the Courts Act, 1971 (Act 372), oust the jurisdiction of the High Court from hearing either at first instance or on appeal, disputes [p.209] of [1972] 1 GLR 199 involving chieftaincy there is nothing in those sections which excludes or limits the common law powers of the High Court to intervene in its supervisory capacity by the use of prerogative writs. This common law power has in fact been preserved by article 114 of the Constitution, 1969. I may even venture to say that any attempt to construe these sections so as to exclude the supervisory jurisdiction of the High Court would be inconsistent with the provisions of article 114.
In the circumstances, I hold that this court has jurisdiction to entertain the application. The preliminary objection therefore fails and it is accordingly overruled. The merits of the application will be heard.
DECISION
Preliminary objection overruled.
