HIGH COURT, KUMASI
Date: 28 OCTOBER 1974
KORANTENG-ADDOW J
CASE REFERRED TO
Renner v. Thensu (1930) 1 W.A.C.A. 77.
NATURE OF PROCEEDINGS
APPLICATION for an order of certiorari to quash a ruling of the Western Regional House of Chiefs. The facts are sufficiently set out in the ruling.
COUNSEL
Dankwa Dwamena (with him Brobbey) for the applicant.
R. S. Blay for the respondent.
JUDGMENT OF KORANGTENG-ADDOW J.
The applicant commenced an action appertaining to a chieftaincy dispute at the Sefwi-Wiawso Traditional Council some time 1968 and won. The respondent (the defendant in the action) appealed against the decision of the traditional council and the appeal was heard by a chieftaincy committee presided over by Siriboe J. The appeal was allowed and an order for retrial was made. The new trial was heard by another committee headed by Siriboe J. the hearing having commenced on 20 November 1968. The hearing was concluded and a decision was made in favour of the respondent, that is to say, the defendant in the suit. That decision, however, was not confirmed by the government as required by section 39 of the Chieftaincy Act, 1961 (Act 81). Meanwhile the Chieftaincy Act, 1971 (Act 370), was passed and it repealed Act 81 as subsequently amended. Under the new Act such decisions required no confirmation by the government for their effectiveness: see Act 370, ss. 22—25. Again Act 370 provided by section 67 (2) that all cases pending before a chieftaincy committee at the time the Act came into force were to be deemed to be pending before the appropriate regional house of chiefs. By a hearing notice dated 27 July 1973, this matter was fixed before the Western Regional House of Chiefs for mention as one of such matters on 21 August 1973. On that day there was some debate as to what was to be done in the matter. Counsel for the plaintiff (the present applicant), put forward the view that although the Siriboe Committee completed its hearing of the matter and gave a decision, since that decision was not confirmed before the passage of Act 370, the decision was abortive and that the case had to be heard afresh. The Western Regional House of Chiefs were however of a different view. They considered the matter conclusively decided and therefore made a ruling adopting the Siriboe Committee findings. It is against that ruling that these proceedings were instituted.
The applicant applied to this court for an order of certiorari to quash the ruling of the Western Regional House of Chiefs on four grounds. At the hearing of the application, however, counsel for the applicants dwelt on the first of those grounds which, expounded, amounted to the presence of an apparent error of law on the face of the ruling.
The conclusion of the house, namely, that:
“This committee holds the view that the present government is the successor in title to the National Liberation Council government so far as chieftaincy matters are concerned, and is therefore entitled to give effect to the findings of the Siriboe Committee so long as they are conclusive,
[p.3] of [1975] 1 GLR 1
is erroneous in law. There is no doubt that factually, and in law, the houses of chiefs are the successors to the erstwhile committees of the Chieftaincy Secretariat as asserted by the Western Regional House of Chiefs. It is, however, obviously wrong to posit the conclusion that because such houses of chiefs were created by the Chieftaincy Act, 1971 (Act 370), they can give effect to any decisions of the committees of the Chieftaincy Secretariat. As provided by Act 81 the findings of the committees of the Chieftaincy Secretariat were not given effect to by the committees themselves. The committees only had to submit their findings to the government to act upon them. As soon as they made and submitted their findings, it is my view that they became functus officio. They had no more part to play in the matter. The government either had to confirm or reject or vary their findings. It was when the findings were confirmed that they became effective (see Act 81, s. 59). Since they were not confirmed before Act 370 came into force, it is my view that they could no more be confirmed, for Act 370, which repealed Act 81, abrogated section 39 of Act 81 and did not re-enact a similar provision in its place. The view of the Western Regional House of Chiefs, namely, that the findings of the Siriboe Committee could be submitted to the Commissioner responsible for Chieftaincy Affairs for necessary action, is an error in law. It is my view that although the Siriboe Committee heard the matter and made their findings, since the government did not confirm those findings they were still-born and remain in a legal limbo.
Although I have held above that after making their findings the Siriboe Committee became functus officio, in law the matter was still pending before the committee at the time Act 370 was passed into law on 17 September 1971, because, as rightly submitted by learned counsel for the respondent at the Western Regional House of Chiefs, the matter had not been finally disposed of by the committee. In answer to this same question in a case the circumstances of which were similar to those in this case the West African Court of Appeal said:
“A clear answer to this question is found in the judgment of Jessel M. R. in Fordham v. Clagett 20 Ch. D. at page 653. The passage runs ‘Then the 15th section says: “For the purpose of winding up and terminating all matters which at the commencement of this Act may be pending in the late Insolvent Debtors Court, etc., the following provisions shall have effect.” What is the meaning of the word “pending”? In my opinion it includes every insolvency in which any proceeding can by any possibility be taken. That I think is the meaning of the word “pending” . . . A cause is said to be pending in a Court of Justice when any proceedings can be taken in it. That is the test. If you can take any proceeding it is pending. “Pending” does not mean that it has not been tried. It may have been tried years ago. In fact in the days of the old Court of Chancery, we were familiar with cases which had been tried fifty or even one hundred years before and which were still pending. Some times, no doubt, they require a
[p.4] of [1975] 1 GLR 1
process which we call reviving, but which the Scotch call waking up; but nevertheless they were pending suits, and all such causes have been transferred to the High Court of Justice under the words “causes which shall be pending” in the 22nd section of the Judicature Act, 1873, when the word “pending” is used in this large sense’.”
See Renner v. Thensu (1930) 1 W.A.C.A. 77 at p. 78. Since the case was pending when Act 370 came into being it fell among cases which had to be dealt with in accordance with the provisions of section 67 (2) of the Act. It had to be “deemed to be pending before the House of Chiefs within whose Region the subject-matter of the proceedings arose and shall be proceeded with and determined by that House in accordance with this Act.”
If that be the case, then the Western Regional House of Chiefs was bound to hear the case de novo. They had to take evidence for that is the only way in which a tribunal may “proceed with a matter” and “determine” it. To hold that,
“the findings of the Siriboe Committee would be adopted in whole: there will be no hearing de novo of the matter, and the committee will submit the findings of the Siriboe Committee to the Commissioner responsible for Chieftaincy Affairs for necessary action,” is also definitely an error on the face of the ruling. In the first place it errs against the provisions of section 67 (2) of Act 370. Again section 67 (2) says the proceeding before the house of chiefs should be “in accordance with this Act”—meaning Act 370. And there is no provision in the Act calling upon the house of chiefs to submit their findings to a Commissioner responsible for Chieftaincy Affairs for implementation.
For the above reasons the application would be granted and it is granted accordingly. It is ordered that the ruling of the Western Regional House of Chiefs in the matter be quashed.
There will be costs of 400. 00 awarded in favour of the applicants.
DECISION
Application granted with costs.
J. D.
