REPUBLIC vs. HIGH COURT, KOFORIDUA; EX PARTE BEDIAKO II [1997-98] 1 GLR 488

CASES REFERRED TO

(1) Quist v Kwantreng [1961] GLR 605.

(2) Republic v Adansi Traditional Council; Ex parte Nana Akuyie[sic](1) II 2 GLR 126, CA.

(3) Republic v High Court, Denu; Ex parte Avadali IV [1993-94] 1 GLR 561, SC.

(4) Timitimi v Amabebe (1953) 14 WACA 374.

(5) Republic v High Court, Accra; Ex parte Eastwood Ltd [1995-56sic(2)] 1 GLR 689, SC.

NATURE OF PROCEEDINGS

APPLICATION by the applicant, the Oseawuohene of Akyem Abuakwa to the Supreme Court for an order of certiorari to quash the decision of the High Court, Koforidua wherein the High Court quashed the decision of a panel constituted by the applicant and

[p.490] of [1997-98] 1 GLR 488 his elders destooling the interested party. The facts are sufficiently stated in the rulings of Aikins and Akuffo JJSC.

COUNSEL

EA Oduro for the applicant.

Anin Yeboah (with him Amoako Adjei) for the respondent.

JUDGMENT OF AIKINS JSC.

In this cause the applicant is asking for certiorari to bring up and quash the decision of the High Court, Koforidua dated 18 July 1996. The plaint of the applicant is that the High Court judge usurped the jurisdiction of the Akyem Abuakwa Traditional Council when he proceeded to hear and determine the question whether Nana Agyabeng II was a chief or not, and that the judge lacked jurisdiction to determine the issue because it concerns a cause or matter affecting chieftaincy.

Nana Agyabeng II had been elected and installed as chief of Soabe in November 1989. According to him, the applicant had received the customary amount of ¢70,000 from him, and he then swore the oath of allegiance to the applicant who in turn swore the oath to him (the chief). In paragraphs (3), (4), (5), (7), and (8) of his affidavit in support of his application the applicant averred:

“(3) That his installation was not completed as he did not swear the oath of allegiance to me.

(4) That the said odikro elect was neither introduced to the Omanhene of Akyem Abuakwa Traditional Area nor did he swear the oath of allegiance to the Okyehene as required by Akyem Abuakwa customary law and usage.

(5) That because the installation of Nana Adjabeng II had not been completed and therefore he was not a chief, on or about 15 October 1994 the kingmakers of Soabe preferred charges against the said Nana Agyabeng II before me, being the head of the division …

(7) That Nana Agyabeng II submitted himself before a panel of arbitrators where after a proper hearing I found the charges proven against him.

(8) That the kingmakers being the complainants performed the necessary custom and declared him removed or destooled.”

[p.491] of [1997-98] 1 GLR 488

The applicant continued to aver in paragraph (15): “That I contended [at the hearing before the High Court] that [he] was not yet a chief but a mere headman and therefore the destoolment is not governed by the Chieftaincy Act, 1971 (Act 370).”

The respondent, in his affidavit in opposition denied paragraphs (1)-(8) as stated above and averred in paragraphs (13) and (14) of his affidavit that as a chief he attended the Okyeman’s second congress in his capacity as a chief, and travelled with the applicant in his [the respondent’s] nephew’s car; and that in or about March 1995 when the Okyehene paid them a visit the applicant levied all chiefs within his division to pay ¢10,000 together with a live sheep, and he paid his contribution to the applicant who gladly accepted the money and the sheep.

In the High Court the odikro (ie the respondent herein) urged that he was a chief as he had been properly nominated, elected, installed and enstooled as a chief on 13 November 1989; that he performed all customary rites required to be performed and had sworn the oath of allegiance to his elders and the applicant herein in the presence of the Omanhene of Akyem Abuakwa; that he within a period of five years immediately preceding the making of the application before the High Court, joined in and had taken part in all customary and traditional activities in his town, division and the entire Akyem Abuakwa Traditional Area; and that the applicant had no jurisdiction to destool him as a chief.

The applicant, however, contended that the odikro voluntarily submitted to the jurisdiction of the applicant and that what happened before him was a customary arbitration in which each side paid cash the sum of ¢100,000 as “ntaadwam” before the destoolment charges were heard; and that the odikro could not resile and bring into the court the application before it. He further contended that the odikro was not a chief since he had not sworn the oath of allegiance to him and to the Okyehene.

After hearing both learned counsel for the parties, the court subpoenedsic(3) the registrar of the Akyem Abuakwa Traditional Council to present his records concerning the status of the odikro. The registrar produced two documents: first, “Questionnaire on stools and shrines”—exhibit one, and secondly, “Akyem Abuakwa Traditional Council Record of Chiefs, Queenmothers, Stool Holders, Linguists and Councillors”—exhibit two. The documents

[p.492] of [1997-98] 1 GLR 488 showed that the odikro was enstooled on 13 November 1989 and had sworn the oath of allegiance. The learned High Court judge then said in his ruling:

“The only issue to be resolved in this application is whether the respondent as the Oseawuohene had jurisdiction to hear and determine the destoolment charges which were preferred against the applicant. The operative part of section 15(1) of the Chieftaincy Act, 1971 (Act 370) states: ‘. . . A Traditional Council shall have exclusive jurisdiction to hear and determine any cause or matter affecting chieftaincy, which arises within its area …’ The above quoted provision is still in force and has not been amended or repealed. The next question to answer is, can the parties on their own confer jurisdiction on a party who had no jurisdiction to do what he has no jurisdiction to do?”

The learned judge then referred to two cases, first, Quist v Kwantreng [1961] GLR (Pt II) 605 where the court held, as stated in the headnote, holding (6) that: “parties cannot by consent or by acquiescence confer jurisdiction on a court where it has none otherwise”, and Republic v Adansi Traditional Council; Ex parte Nana Akyie [1974] 2 GLR 126, CA where the court held, as stated in the headnote, holding (3): that:

“Where by reason of any limitation imposed by statute a court or tribunal was without jurisdiction to entertain any particular matter or action, neither the acquiescence nor the express consent of the parties to the case could confer jurisdiction upon the court or tribunal … “ and then held that:

“In this application, it is my considered view that the respondent, as Oseawuohene, had no jurisdiction to entertain, hear and decide the destoolment charges which were preferred against the applicant herein and that the pronouncement he made that the applicant had been destooled was a nullity and it is hereby quashed.”

[p.493] of [1997-98] 1 GLR 488

The applicant has argued in his statement of case: (1) that the High Court acted without jurisdiction when it determined that Nana Kwabena Agyabeng II was a chief because he had exchanged oaths with the applicant; a question relating to the right of a person to take part in the installation of a chief and therefore a cause or matter affecting chieftaincy; (2) that a determination whether the odikro swore the oath of allegiance is a determination of a cause or matter affecting chieftaincy and therefore the High Court had no jurisdiction to determine the issue; and (3) that since there is a dispute whether the odikro-elect swore the oath of allegiance to the Omanhene of the Akyem Abuakwa Tradition[sic](4) Area, the only court or tribunal which can determine the issue is the Akyem Abuakwa Traditional Council’s judicial committee.

I have read the ruling of the High Court judge over and over again, but I have not been able to find that he determined that Nana Kwabena Agyabeng II was a chief because he had exchanged oaths with the applicant or had sworn the oaths of allegiance to the Omanhene of the Akyem Abuakwa Traditional Area. What the applicant averred in the following paragraphs of his supplementary and corrective affidavit filed on 31 July 1995 at the registry of the High Court on his behalf by Osabarima Atwere Bediako of Akyem Wenkyi is:

“(2) That in my affidavit in opposition to the application I deposed that the applicant is an odikro of Soabe.

(3) That by that averment I meant that the applicant is a mere customary chief, that is a headman but not a statutory chief …

(8) That the applicant is therefore not a chief but a mere headman.

(9) That because the applicant is not a chief but a mere headman his name neither appears in the register of chiefs kept by the Akim Abuakwa Traditional Council nor does his name appear in the National Register of Chiefs.

(10) That I am informed and verily believe same to be true that the applicant is not a chief within the definition of a chief in the Chieftaincy Act, 1971 (Act 370) so his destoolment is neither governed by the Act 370 nor the

[p.494] of [1997-98] 1 GLR 488

Chieftaincy (Proceedings and Functions) Traditional Councils Regulations, 1972 (LI 798).”

It seems to me that it was because of the averment in paragraph (9) above that the High Court judge subpoenaed the registrar of the Akyem Abuakwa Traditional Council to produce any document indicating whether or not the respondent herein’s name appears in the register as a chief. Furthermore, the proceedings of the High Court filed by the interested parties in the registry of this court on 8 May 1997 as exhibit KK do not disclose that the registrar led any evidence on the installation of Nana Kwabena Agyabeng II as submitted by learned counsel for the applicant. As rightly pointed out by learned counsel for the respondent, “when the applicants’ counsel sought to ask a question on what happened at the installation of Nana Adjabeng II, the registrar answered simply that he was not present at the said installation and could not therefore answer any such question.”

As pointed out earlier, the learned High Court judge did not make any determination as to whether Nana Agyabeng II had exchanged oaths with the applicant or sworn an oath of allegiance to the Okyehene. What he considered was whether the Oseawuohene had jurisdiction, to entertain, hear and decide the destoolment charges preferred against the odikro.

In my judgment, the trial judge was right in quashing the applicant’s decision destooling the odikro of Soabe because the applicant was meddling with a cause or matter affecting chieftaincy which he lacked the jurisdiction to hear and determine. In the result I would dismiss the application.

JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC.

I am in full agreement with the arguments and conclusions furnished by my learned and respected sister Akuffo JSC as her opinion in this application and I also agree that the application should be dismissed.

JUDGMENT OF ADJABENG JSC.

I have had the opportunity of reading the opinions of my learned brother and sister, Aikins and Akuffo JJSC, in this matter, and I fully agree with the views, conclusion,

[p.495] of [1997-98] 1 GLR 488 and reasons expressed in those opinions. I agree with them that the application be dismissed.

JUDGMENT OF AMUAH JSC.

This is an application by Osabarima Atwere Bediako II, the applicant herein, praying for an order of certiorari to quash the proceedings and ruling of the High Court, Koforidua dated 18 July 1996 which declared that the pronouncement made by Osabarima Atwere Bediako II destooling Nana Kwabena Agyabeng II, the interested party herein, was a nullity. By this ruling the interested party was restored to his former status as the chief of Akyem Soabe.

When the interested party herein, Nana Kwabena Agyabeng II, appeared before the panel headed by Osabarima to answer destoolment charges, Nana Agyabeng II pleaded not liable and raised two defences namely:

(1) That the panel lacked jurisdiction to try him.

(2) That the charges were preferred against him by persons who could not be described as kingmakers of the stool. He claimed that he was a chief duly nominated, elected and installed on 13 November 1989.

In spite of his protest to the jurisdiction of the panel, Osabarima proceeded to entertain the suit and declared him destooled. Nana Agyabeng II would have ignored the decision of the panel but in view of his status he applied to the High Court, Koforidua for an order of certiorari to quash the decision of the panel.

To clothe himself with jurisdiction, Osabarima contended that Nana Agyabeng II was not a chief within the meaning of the Chieftaincy Act, 1970 (Act 370). This made the High Court judge to order the registrar of the Akyem Abuakwa Traditional Council to appear before him with the record of chiefs of the council. After satisfying himself that the name of Nana Agyabeng II appears in the record, the High Court judge proceeded to quash the proceedings and the ruling made by Osabarima’s court. Osabarima is now before this court praying for an order of certiorari to remove the proceedings and the ruling of the High Court dated 18 July 1996 to this court to be quashed.

I now proceed as follows: The interested party relied on section 66(a) of Act 370 which reads:

[p.496] of [1997-98] 1 GLR 488

“‘cause or matter affecting chieftaincy’ means any cause, matter, question or dispute relating to any of the following— (a) the nomination, election, appointment or installation of any person as a Chief or the claim of a person to be nominated, elected, appointed or installed as a Chief.”

This section gave him protection from molestation by Osabarima’s panel since exclusive jurisdiction has been granted to the judicial committees of the traditional councils to hear and determine such matters. Osabarima’s panel lacked jurisdiction to hear and determine the matter before it; and so was the High Court which investigated the status of the interested party: see section 57 of the Courts Act, 1993 (Act 459) also Republic v High Court, Denu, Ex parte Avadali IV [1993-94] 1 GLR 561, SC.

The second defence of the interested party was that those who brought the action were not kingmakers of the stool. This vital issue should have been considered by the panel but they failed to do so. I would have sent the case back for trial afresh after quashing the speaking orders of the panel, but since the panel lacked jurisdiction to hear and determine the chieftaincy matter, I hold the view that the proceedings of the panel and the speaking orders destooling the interested party are a nullity. I agree with the learned High Court judge on this issue.

I now come to the issue raised by Osabarima in the High Court that the parties willingly submitted to his jurisdiction and paid the arbitration fee of ¢100,000 each. Here too Osabarima misapprehended the law for as was held by Ollennu J (as he then was), as stated in the headnote, in the case Quist v Kwantreng [1961] 2 GLR (Part II) 605: “parties cannot by consent or by acquiescence confer jurisdiction on a court where it has none otherwise.” This view was also followed in the case of Republic v Adansi Traditional Council; Ex parte Nana Akyie [1974] 2 GLR 126, CA where the Court of Appeal held, as stated in the headnote, that:

“(3) Where by the reason of any limitation imposed by statute a court or tribunal was without jurisdiction to entertain any particular matter or action, neither the acquiescence nor the express consent of the parties to the case

[p.497] of [1997-98] 1 GLR 488 could confer jurisdiction upon the court or tribunal nor could consent give that forum jurisdiction if a condition which went to jurisdiction had not been performed or fulfilled.”

In this case as stated above, the destoolment charges which were preferred related to causes or matters affecting chieftaincy: see sections 15 and 66 of Act 370. Osabarima’s court, not being a judicial committee of the Akyem Abuakwa Traditional Council, cannot hear and determine them.

In the result, I perfectly agree with the judgment or ruling of the High Court which quashed the pronouncement made by Osabarima that the interested party has been destooled. The application made by Osabarima Atwere Bediako II is refused.

JUDGMENT OF AKUFFO JSC.

Section 15(1) of the Chieftaincy Act, 1971 (Act 370) stipulates that:

“15. (1) 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 in its area, not being one to which the Asantehene or a Paramount Chief is a party.”

Section 57 of the Courts Act, 1993 (Act 459) also provides that:

“57. Subject to the provisions of the Constitution, the Court of Appeal, the High Court, Regional Tribunal, a Circuit and Community Tribunal shall not have jurisdiction to entertain either at first instance or on appeal any cause or matter affecting chieftaincy.”

Section 117 of Act 459 interprets the phrase “cause or matter affecting chieftaincy” to mean”… any cause, matter, question or dispute relating to any of the following:

“(a) nomination, election, selection, installation or deposition of a person as a chief or the claim of a person to be nominated, elected, selected, installed as a chief;

(b) the destoolment or abdication of any Chief;

[p.498] of [1997-98] 1 GLR 488

(c) the right of any person to take part in the nomination, election, selection, appointment or installation of any person as a Chief or in the deposition of any Chief … “ In the case of Republic v High Court Denu; Ex parte Avadali IV [1993-94] 1 GLR 561, SC this court held that, in determining whether or not a matter before a court is one affecting chieftaincy, what is important is the substance of that matter, rather than the form in which it is couched. In the instant application, the case of the applicant is that the learned High Court judge, although clothed with the jurisdiction to consider the application brought before him for certiorari, committed an error when, in the course of determining the application before him, the judge contrary to section 57 of Act 459 entered into an inquiry to ascertain whether or not Baffour Kwabena Agyabeng is a chief and, thereby, exceeded his jurisdiction. Basically the grounds on which the applicant herein seeks an order of certiorari are that the High Court judge had no jurisdiction to determine a cause or matter effecting[sic](5) chieftaincy and therefore there is an error of law apparent on the face of the record. Consequently, the sole question that we need to determine in this application is whether or not the substance of the matter before the learned High Court judge was effectively a cause or matter, question or dispute affecting chieftaincy.

What was brought before the said High Court was an application by Baffour Kwabena Agyabeng II, one of the interested parties herein, invoking the supervisory jurisdiction of the High Court and praying for an order of certiorari quashing a ‘‘judgment’’ given by Baffour Atwere Bediako II, the Oseawuohene of Akyem Abuakwa (the applicant herein), whereby the said Baffour Kwabena Agyabeng II was declared to have been destooled as chief of Soabe. The sole ground for that application was that the Oseawuohene had no jurisdiction to hear the destoolment charges and declare Baffour Kwabena Agyabeng II destooled, since the Oseawuohene was not the judicial committee of the Akyem Abuakwa Traditional Council.

In his affidavit in opposition to the application in the High Court, exhibit K4, the Oseawuohene, in effect, admitted destooling Baffour Kwabena Agyabeng II. He, however, contended in

[p.499] of [1997-98] 1 GLR 488 paragraphs (12) and (13) of the said affidavit that he had not constituted himself into a judicial committee of the traditional council but, rather, he had heard the matter as the president of a panel of arbitrators to which al thel[sic](6) parties had voluntarily submitted themselves. Subsequently, however, the Oseawuohene deposed to a supplementary affidavit, exhibit K5, to the effect that Baffour Kwabena Agyabeng II is a mere headman rather than a statutory chief, since his installation had not been duly completed by his swearing an oath before him (the Oseawuohene) and the Okyehene, in accordance with the applicable custom and usage, and that his name appears in neither the Akim Abuakwa register of chiefs nor the National Register of Chiefs. He contended, therefore, that the destoolment of Baffour Kwabena Agyabeng II was not governed by Act 370 or the Chieftaincy (Proceedings and Functions) Traditional Councils Regulations, 1972 (LI 798). It needs to be noted that in the document laying destoolment charges against Baffour Kwabena Agyabeng II, he had been described throughout as “the odikro of Soabe.”

In an affidavit in opposition to the averments deposed in the said supplementary affidavit, Baffour Kwabena Agyabeng sought to counter the allegations made in the supplementary affidavit and show that he is, indeed, a chief and that he has been treated as a chief, has been performing the functions of a chief and his name appears on the Okyeman record of chiefs. Attached to that affidavit were:

(a) a document dated 8 October 1987 addressed to the applicant herein, signed by the state secretary and headed “Okyeman’s Organisational Chart—Record of Chiefs”, which included the odikro of Soabe within the hierarchy that falls under the Oseawuo division;

(b) a completed form headed “Akyem Abuakwa Traditional Council Record of Chiefs, Queenmothers, Stool Holders, Linguists and Councillors”, bearing two signatures both dated 26 February 1990, and showing, inter alia, the name Baffour Agyabeng II and giving the date of his enstoolment or appointment as 13 November 1989; and

(c) another completed form entitled “Questionnaire On Stool/Skins (Revised)” wherein Baffour Kwabena

[p.500] of [1997-98] 1 GLR 488

Agyabeng is shown as the “present” occupant of the Soabe stool.

By the averment set out in his supplementary affidavit, the Oseawuohene thus sought to put into question the status of Baffour Kwabena Agyabeng II and the High Court judge could not proceed with determining whether or not to grant the application for certiorari without first satisfying himself as to that status. According to the applicant, the ascertainment of such status involved an inquiry into a matter affecting chieftaincy and, once such inquiry became necessary in the course of the hearing of the application, the High Court ought to have declined jurisdiction. Consequently, in his statement of case, counsel for the applicant argued that the ascertainment by the High Court judge that Baffour Kwabena Agyabeng II was a chief and, therefore, certiorari could issue as prayed, necessarily amounted to a determination that the latter had been nominated, elected and installed as odikro of Soabe in accordance with the applicable custom and usage and that, that being so, the High Court judge was in contravention of the statutory limitation of the jurisdiction in such matters.

I cannot agree with counsel’s arguments. Essentially, in the application before it, the High Court was not being called upon at first instance or on appeal to adjudicate upon the status of Baffour Kwabena Agyabeng II. Nor was it being called upon to make a declaration on his status. All that the court was called upon to do was to quash the purported destoolment of Baffour Kwabena Agyabeng II by reason of the Oseawuohene lacking the requisite statutory jurisdiction to adjudicate upon the destoolment charges and declare him destooled. Although it appears that no records were kept of the proceedings before the Oseawuohene, the charges made against the odikro were in writing and it will be clearly seen therefrom that they were destoolment charges. In his first affidavit before the High Court, ie exhibit K4 herein, the Oseawuohene did not deny having purported to destool the odikro, although the panel set up by him did not constitute the judicial committee of the Akim Abuakwa Traditional Council. Indeed, it seems to me that the raising of the question of whether or not the odikro was a properly installed chief was merely a red herring and an afterthought.

[p.501] of [1997-98] 1 GLR 488

To my mind, the mere fact that the question of whether or not a person is a chief rears its head during an application for certiorari before the High Court does not necessarily constitute the matter one affecting chieftaincy for the purposes of section 57 of Act 459, where such a question arises as a matter secondary to the determination of the fundamental question of whether or not an inferior body had the jurisdiction to do something, and does not give rise to the necessity to make a final determination of such status and whether or not such a person has been properly nominated, elected and installed according to the applicable custom or usage. In order to constitute a matter one affecting chieftaincy, it must, in my view, be one the determination of which, unless overturned on appeal, would settle once and for all a chieftaincy matter or dispute.

From the record before us, it does not appear to me that either the question raised by the Oseawuohene’s supplementary affidavit or the reception of testimony from the registrar, transformed the substance of the matter before the High Court from an application for certiorari into a cause or matter or a question or dispute affecting chieftaincy. Certainly, looking at the record, the High Court cannot be said to have assumed, or purported to assume, the jurisdiction to settle finally, authoritatively or categorically, the status of Baffour Kwabena Agyabeng II. It is seems to me to be quite clear from the ruling made by the learned High Court judge that he never lost sight of the nature of the matter before him. Thus, in the ruling, he stated as follows: “The only issue to be resolved in this application is whether the respondent as Oseawuohene had jurisdiction to hear and determine the destoolment charges that were preferred against the applicant.” And the only ruling the court made in the application was that:

“. . . it is my considered view that the respondent, as Oseawuohene had no jurisdiction to entertain, hear and decide the destoolment charges which were preferred against the applicant herein and that the pronouncement he made that the applicant had been destooled was a nullity and it is hereby quashed.”

[p.502] of [1997-98] 1 GLR 488

In the celebrated case of Timitimi v Amabebe (1953) 14 WACA 374 at 376 the court stressed that: “ … want of jurisdiction is not to be presumed as to a court of superior jurisdiction; nothing is out of its jurisdiction but that which specially appears to be so.” This dictum was quoted with approval by my esteemed brother, Charles Hayfron-Benjamin JSC in his ruling on behalf of this court in the case of Republic v High Court, Accra; Ex parte Eastwood Ltd [1995-96] 1 GLR 689, SC wherein he went on to say at 698 that:

“If therefore there is an error of law appearing on the face of the record of a superior court which warrants intervention by this court by the exercise of our supervisory jurisdiction, it must be such an error as goes to the wrong assumption of jurisdiction or the error is so obvious as to make the decision a nullity.”

In my view, the High Court judge, in the matter before him, did not overstep the bounds of his jurisdiction, nor does the record show such error as would merit an order of certiorari. I will, therefore, decline the application herein.

DECISION

Application dismissed.

Endnotes

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