REPUBLIC vs. AWUKU AND ANOTHER; EX PARTE ADIAKU AND ANOTHER [1999-2000] 1 GLR 645

NATURE OF PROCEEDINGS

APPEAL by the appellants, the registrar of the Akpini Traditional Council and the Fiaga of the Logba Traditional Area, respectively against their attachment for contempt of court by the High Court, Ho following the recognition by the ATC of the second appellant as the Fiaga of the LTA. The facts are sufficiently stated in the judgment of Benin JA.

COUNSEL

Mensa Etsi for the appellants.

Nutsugah for J Dotse (with him Ms Alhasan) for the respondents.

JUDGMENT OF SAPONG JSC.

In this appeal everything is centered on the order of 14 July 1997. What was the order made by the High Court, Ho on that day? It is this:

“. . . the application for an order of certorari to quash the judgment of the judicial committee of the Akpini Traditional Council dated 26 May 1995 is granted. It is hereby ordered that the said judgment be brought up to be quashed and it is hereby quashed.”

(The emphasis is mine.)

An order of a court has to be clear and unambiguous. There is nothing in the record of proceedings to even suggest remotely that an application was made to the High Court, Ho for an interpretation of the said order. Once a judgment of a court of competent jurisdiction is quashed, it means the slate is clean. Any act therefore purported to be done thereafter cannot be said to amount to contempt of court. The appellants cannot be said to have disobeyed the High Court, Ho. In the premise the appellants cannot be held for contempt of court and therefore the appeal succeeds. It is accordingly allowed.

JUDGMENT OF ESSILFIE-BONDZIE JA.

I agree.

JUDGMENT OF BENIN JA.

The High Court, Ho quashed the decision of the judicial committee of the Akpini Traditional Council (ATC) whereby it had granted recognition to the second appellant herein as the Fiaga of Logba Traditional Area (LTA). This followed an application

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for certiorari in which it was alleged that a non-member of the Akpini Traditional Council had deliberated in the proceedings leading to the appointment of its judicial committee. This was upheld by the High Court which accordingly quashed the decision of the judicial committee. It must be pointed out that the decision of the judicial committee was based on a writ that was issued before the Akpini Traditional Council.

With the quashing of the decision of the judicial committee, one would have thought that the High Court’s duty had ended and that thenceforth it was the Akpini Traditional Council which was enjoined by law to constitute a fresh judicial Committee to rehear the action which was pending before it following the High Court’s decision. In other words the High Court’s decision left the writ and all pleadings, if any, intact. Thus the Akpini Traditional Council was left free to deal with the matter the way the law and practice permitted it. The High Court’s decision did not, and could not, fetter the hands of the Akpini Traditional Council. At this stage, I deem it fit to refer to the relevant portions of the High Court’s decision; it provides:

“. . . the application for an order of certiorari to quash the judgment of the judicial committee of the Akpini Traditional Council dated 26 May 1995 is granted. It is hereby ordered that the said judgment be brought up to be quashed and it is hereby quashed.”

Costs were also awarded. Thus the only order made were: (1) the quashing of the judgment and costs.

We need not remind ourselves that the High Court has no jurisdiction in chieftaincy matters except in the exercise of its supervisory jurisdiction which it rightly exercised in the application before it. Hence after its decision if the Akpini Traditional Council decided to take fresh steps towards the installation or recognition of any person as the Fiaga of the Logba Traditional Area, the High Court would have no right to stop it in any way and under whatever guise. The High Court should be wary of such indirect means of being called upon to exercise jurisdiction which it clearly does not have. I think the tone has been set for us to deal with the appeal which has turned up precisely on the High Court’s jurisdiction, or

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lack of it, in chieftaincy matters which it exercises ostensibly in the course of its supervisory jurisdiction.

The facts have it that a day or so after the High Court’s decision the Akpini Traditional Council met and at the said meeting the second appellant was introduced by the kingmakers. Or was it he himself who introduced himself to the Akpini Traditional Council as the respondents sought to say? I would consider it unusual and uncustomary having regard to the high status of a fiaga in the traditional set up for a fiaga just to walk into the Akpini Traditional Council meeting without any of his elders or kingmakers and introduce himself to the council. Be that as it may, the Akpini Traditional Council was being called upon to recognise him as the fiaga of the Logba Traditional Area (LTA).

The Akpini Traditional Council obliged and accordingly wrote a letter per its registrar who is the first appellant herein. This letter was addressed to the District Chief Executive (DCE) of the Hohoe District Assembly. It reads:

“RECOGNITION OF FIAGA I have to inform you that the Akpini Traditional Council has on Tuesday, 15 July 1997 given recognition to Togbe Dabra VI as Fiaga of Logba Traditional Area.

Kindly give him the necessary recognition due.”

These acts of the Akpini Traditional Council were interpreted by the applicant-respondents and concurred in by the High Court, Ho to be contemptuous of the High Court’s earlier decision quashing the judgment of the judicial committee of the Akpini Traditional Council. This is where the difficulty with the High Court’s ruling arises. Is it saying that the Akpini Traditional Council had no right to give recognition to the second appellant because of its decision? Is it saying the second appellant could no more go to the Akpini Traditional Council for recognition as Fiaga of the Logba Traditional Area? Since these questions cannot be answered affirmatively, then why relate the Akpini Traditional Council’s action to the decision quashed? I have said earlier that following the High Court’s decision, the writ and all pleadings filed remained valid. And under existing legislations, namely the Chieftaincy Act, 1971 (Act 370) and the Chieftaincy Proceedings and Functions) (Traditional Councils)

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Regulations, 1972 (LI 798), the pendency of an action before a traditional council does not create a stay of any processes relating to the chieftaincy issue before it, nor does it create an injunction. And even if it does and it is violated, the High Court is not given the right to entertain application for contempt directly from an aggrieved person. By rule 13(5) of LI 798 it is only the judicial committee of a traditional council which can certify to the High Court the fact that a contempt has been committed against the traditional council.

In this case, the complaint was that the Akpini Traditional Council had given recognition to the appellant as the Fiaga of the Logba Traditional Area. There was nothing that prevented the Akpini Traditional Council from doing that. The High Court’s decision quashed a previous decision of the Akpini Traditional Council to give him recognition; it did not impose any further restriction on the Akpini Traditional Council from giving recognition to the second appellant, and for that matter any other qualified person, as the Fiaga of the Logba Traditional Area; that is, a person who has been duly nominated, elected and installed as chief. And indeed the High Court could not even have made such an order for that would be delving into a cause or matter affecting chieftaincy. The High Court did not impose any restraint on the Akpini Traditional council, so that any subsequent action of the Akpini Traditional Council would only be exercisable in the light of its statutory functions. It could not be said to be acting on the strength of the judgment which had been quashed. The tone of the letter communicating the recognition given to the appellant with effect from 15 July 1997, a date after the High Court’s decision, confirms this. And this letter alone should be enough for the inference to be drawn that the Akpini Traditional Council wag giving Togbe Dabra VI fresh recognition from the date of its meeting, which it was perfectly entitled to do in the absence of any restraining order or process against it. The pendency of the writ was no bar.

I believe the High Court misconstrued the effect of its own decision and also was dismayed by what it termed the “indecent haste” with which the recognition was given just a day or so after its judgment. Even if that recognition was given just an hour after its decision it was of no moment so long as the Akpini Traditional Council did not purport to act on the judgment which had been quashed and there was nothing to restrain its hands. There was a

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basic misconception if one reads the High Court judgment carefully. The High Court mistakenly took the view that it was the judgment of the judicial committee of the Akpini Traditional Council which empowered the Akpini Traditional Council to give the second appellant recognition. No, its wrong. A chief does not derive his position from the judicial committee, he derives it from his kingmakers who have to present him to the traditional council. And if the traditional council is satisfied that he is properly nominated, elected, installed, or what have you, as a chief, it gives him recognition with or without the pendency of a formal writ or any form of action against him. It was the failure to appreciate this that led the High Court into that conclusion believing, albeit erroneously, that since the second appellant derived his recognition from the judgment of the Akpini Traditional Council’s judicial committee, and the said judgment had been quashed, then there was no basis for the Akpini Traditional Council to give him recognition. The basis for their recognition was that he had been nominated, elected and installed as chief and this is all that the Akpini Traditional council required in order to give him recognition, the pendency of the writ notwithstanding. It did not require the decision of the judicial committee of the Akpini Traditional Council to give “validity to the nomination, election and installation of the second appellant as the Fiaga of the Logba Traditional Area”, as counsel for the respondents submitted. They could therefore not be charged with contempt of the High Court.

At worst, they could be accused of being in contempt of the Volta Regional house of Chiefs before which the appeal from the decision of the Akpini Traditional Council’s judicial committee was said to be pending. But that issue is not before us so I need not go any further.

There is a point which needs to be commented upon. It is contained in the affidavit of the first appellant who is the registrar of the Akpini Traditional Council. The said affidavit filed before the High Court on 11 November 1997 has this relevant deposition: “That I did not personally recognise Phanuel Alorka as Togbe Dabra VI, Fiaga of Logba.” The registrar was telling the High Court that he was only an administrator acting in an official capacity and on the directives and instructions of the Akpini Traditional Council. Thus he did not do anything personally to be brought before the High Court for contempt.

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The registrar of a traditional council, like the registrars of the various houses of chiefs, is a public officer. The registrars perform such duties as they are directed by the relevant body of chiefs to which they are attached: see for instance section 55 (2) of Act 370. Among other duties, registrars of traditional councils are to effect the enforcement of an award or order of the judicial committee; see regulation 9 (3), (4) and (5) of LI 798, and to record minutes of the committee: see regulation 15 of LI 798. In carrying out these statutory duties, if the judicial committee commits an error or is found to have been in contempt, it is not the registrar who is answerable but the relevant traditional council. The registrar is not a member of the council, he is only a public officer and if he writes something on the instruction of the council, he will be performing a legitimate statutory function for which he commits no error, nor is he liable for it. And indeed, section 61 of Act 370 makes it abundantly clear that it is the traditional council as a person or its president as its representative, who is responsible in an action brought by or against the council. The registrar, and for that matter no other officer attached to the council, is answerable for the acts and omissions of the council.

In this action, the registrar made it clear in the said letter that it was the Akpini Traditional Council which had taken the decision to recognise the second appellant. He wrote that letter as a statutory duty and thus committed no wrong. He could only have been held liable if there was an order of court against him as a person or his office preventing him from doing the particular act he is accused of.

In the result, the High Court had no basis to entertain the application for contempt since no order or judgment or decision etc of the court was violated. The appeal succeeds accordingly.

DECISION

Appeal allowed.

LSNA