REPUBLIC vs. HIGH COURT, KUMASI; EX PARTE APPIAH AND OTHERS [1997-98] 1 GLR 503

CASES REFERRED TO

(1) Republic v High Court, Accra; Ex parte Laryea [1989-90] 2 GLR 99, SC.

(2) Republic v High Court, Kumasi; Ex parte Fosuhene [1989-90] 2 GLR 315, SC.

(3) Anisminic v Foreign Compensation Commission [1969] 2 AC 147; [1969] 1 All ER 208, HL.

(4) Republic v High Court, Kumasi; Ex parte Nsiah, Supreme Court, 15 November 1994, unreported.

NATURE OF PROCEEDINGS

APPLICATION by the applicants, the Omanhene and the queenmother of Manso Nkwanta, to the Supreme Court for an order of certiorari to quash the interlocutory ruling of the High Court, Kumasi in favour of the respondent, the head of the royal family, restraining the applicants from organising the burial and performing the funeral rites of a deceased member of the family without giving the applicants a hearing. The facts are sufficiently stated in the ruling.

COUNSEL

J K Koduah (with him Addo) for the applicants.

Obeng Manu Snr for the respondent.

JUDGMENT OF AMPIAH JSC.

The applicants herein seek an order of certiorari to have removed to this court for purposes of having them quashed, orders of the High Court, Kumasi dated 2 December 1997.

One Daniel Arthur Mensah of Manso Nkwanta died some time in October this year. The said Daniel Arthur Mensah belonged to the Kyidom royal family of Manso Nkwanta. There is no dispute that all the parties in this application belong to the said Kyidom royal family. It has also not been denied that Opanin Kwasi

[p.506] of [1997-98] 1 GLR 503

Prempeh, the sixth applicant herein and a defendant in the substantive action pending in the High Court, Kumasi, is a uterine brother of the deceased, and that he and the first applicant caused the body of the deceased to be deposited at the mortuary at the Okomfo Anokye Teaching Hospital, Kumasi. A meeting of the Kyidom royal family, excluding the respondent herein, held soon after the death of the deceased to organise his burial and the performance of his funeral rites, decided that the deceased be buried and his funeral rites together with that of one Opanin Yaw Boateng, a member of the family who had died some years ago, be performed between 22 November and 23 November 1997; Daniel Arthur Mensah was to be buried on Saturday, 22 November 1997.

The respondent took objection to his exclusion from the decision making, claiming that as the Kyidomhene and head of the family it was his customary duty to bury Daniel Arthur Mensah and to perform the funeral rites of the deceased members of the family. He therefore took a writ of summons in the High Court, Kumasi claiming against the defendants jointly and severally:

“(1) A declaration that it is contrary to custom to plan the burial of Daniel Arthur Mensah (deceased) and also organise the celebration of the final funeral rites of Opanin Yaw Boateng (deceased) both of Manso Nkwanta without the knowledge and consent of the plaintiff and when the funeral of the late

Omanhene of Manso Nkwanta Nana Antwi Panin II has not yet been celebrated.

(2) An order of injunction stopping the defendants by themselves and all their supporters and sympathisers from going ahead with the uncustomary celebration of the two funerals as planned.

(3) Any other relief as to this honourable court will seem fit.”

(The emphasis is mine.) That was on 11 November 1997, four or five days before the intended burial of the deceased and the performance of the funeral rites of the aforementioned deceased members of the family. The respondent followed this up imme

[p.507] of [1997-98] 1 GLR 503 iately on 19 November 1997 with an application for interim injunction praying for an order: “To stop the respondents and their supporters from going ahead with the burial and celebration of the funeral of Daniel Arthur Mensah on Saturday 22 November 1997 to 23 November 1997 at Manso Nkwanta and also the celebration of the funeral rights of Opanin Yaw Boateng (Decd) also of Nkwanta as planned.”

The capacity in which the respondent made his claim was described “. . . as Kyidomhene of Manso Nkwanta.” He contended that “without the knowledge and consent of the plaintiff. . .” neither the burial of the late Daniel Arthur Mensah, nor the final funeral rites of Daniel Arthur Mensah and Opanin Yaw Boateng could be performed. He further contended that not until the final funeral rites of the late Nana Antwi Panin II whom he claimed to be an Omanhene of Manso Nkwanta and also a member of the Kyidom royal family had been performed, the final funeral rites of “lesser” members of the family (including the two deceased members, the subject matter of the action before the court) who had died since Nana Antwi Panin II’s demise could not be performed.

The applicants denied these contentions and averred that the respondent was neither the Kyidomhene nor a head of the family and that the late Nana Antwi Panin II was never an Omanhene and did not die as such. In any case, they contended further, there is no custom which prevented them from burying their dead and from performing their final funeral rites before any other deceased person, be he an ordinary member or a chief.

After hearing submissions on the application, the judge ruled:

“. . . this court grants the order restraining forthwith the respondents, their agents and workmen, from removing the body of Daniel Arthur Mensah for burial and from performing his final funeral rites.”

It then further ordered:

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“. . . that the applicant shall as soon as possible and in any case not more then[sic](1) fourteen days, organise the funeral of the deceased Daniel Arthur Mensah according to custom and get the body removed for burial within fourteen days from today. . .”

It is against these orders that the applicants herein have applied to have them quashed. Their grounds are that:

“(1) The order of the judge was ‘. . . crass and perverse and that the judge by the subterfuge of the orders concluded the litigation instituted by the respondent in the respondent’s favour and thus enabled the respondent to perpetrate fraud on the court . . .’ (2) The judge should have been put on his inquiry as to whether or not without the knowledge and permission of the first applicant no burial of a royal could be held and should have dismissed the application.

(3) The orders were ultra vires and therefore void.

(4) The orders were contrary to public policy.”

In their statement of case, the applicants submitted further that the judge acted in breach of the rules of natural justice. The sum total of the applicants’ submission is that, the judge by these orders has prejudged the main issue and concluded the case without giving the applicants a proper and full hearing and that in so doing he had acted ultra vires and breached the rules of natural justice.

Counsel for the respondent contends that this court lacks jurisdiction to entertain the application since on the face of the record the grounds put forward for this application do not disclose any known grounds for coming by this application. He contends that the grounds only support a case of appeal which the applicants should have resorted to.

“Fraud” could be a ground for setting aside an order or judgment by an order of certiorari, but from the evidence before me I do not think a case of fraud has been established. The orders complained of were made by the judge after submission by counsel. It could therefore not be said that the orders have enabled the respondent to perpetrate fraud on the court. The judge may

[p.509] of [1997-98] 1 GLR 503 have misconceived the issue posed in the application but it cannot be said that the judge was deceived!

An order of certiorari would lie if a court (in that case any judicial or quasi-judicial body including a superior court, except the Supreme Court) acts in excess of jurisdiction or without jurisdiction. Also, where the court acts in breach of the rules of natural justice. And, where there is error on the face of the record, the order of certiorari may be issued to quash the proceedings: see [1989-90] 2 GLR 99, SC and also Anisminic v Foreign Compensation Commission [1969] AC 147, HL.

It however has been said that “where a judge has jurisdiction he has jurisdiction to be wrong as to be right and the corrective machinery in those circumstances is an appeal”—per Francois JSC in Republic v High Court, Kumasi; Ex parte Fosuhene [1989-90] 2 GLR 315, SC. In Anisminic v Foreign Compensation Commission (supra) at 171 Lord Reid observed:

“But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it . . . I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly.”

The applicants contend that the judge by these orders has prejudged the real issue involved in the whole matter and has thus ended the litigation in favour of the respondent without giving the applicants a proper and full hearing on the issue. Thus, denying them a hearing.

It is a breach of the rules of natural justice, where a person or body exercising judicial or quasi-judicial functions fails in its duty

[p.510] of [1997-98] 1 GLR 503 to act in good faith or to listen fairly to both sides or to give fair opportunity to the parties in the controversy adequately to present their case and to correct or contradict any relevant statement prejudicial to their view: see Spackman v Plumstead Board of Works (1885) 10 AC 229, H.L.

I am not unaware of the position of the High Courts regarding orders of certiorari against their orders or judgments. The High Court as a superior court has jurisdiction to hear and determine all matters except “causes or matters affecting chieftaincy” as defined under section 66 of the Chieftaincy Act, 1971 (Act 370)—vide article 140(1) of the Constitution, 1992. There is however power given to the Supreme Court to exercise supervisory jurisdiction over all courts (including the High Court) and any adjudicating authority and may in the exercise of such jurisdiction issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory power—vide article 132 of the Constitution, 1992. Consequently, if it is found that the High Court in exercising its jurisdiction has breached any of the rules of natural justice or on the face of its orders erred in law, or has acted in excess of its jurisdiction or lacks jurisdiction in the matter it has acted on, this court would have power to order the removal of those proceedings before it for the purpose of having those proceedings quashed. It must be stated however that a prayer for the grant of certiorari must be considered from a very broad perspective and that being a discretionary power, it must be shown that there is a real justification for its grant.

The crux of the respondent’s claim as appears in both his writ of summons and the application for interim injunction is that “without his knowledge and consent”:

(i) no burial of a deceased member of the Kyidom family could be carried out;

(ii) no final funeral rites of deceased royals of the family could be performed; and

(iii) not until the final funeral rites of the late Nana Antwi Panin II have been performed, no other funeral rites of members who have died after the death of the said Nana Antwi Panin II could be performed.

This, according to the respondent, is the custom of the Kyidom people. Of course the applicants deny this; they cited occasions

[p.511] of [1997-98] 1 GLR 503 where people have been buried and their funeral rites performed since the death of Nana Antwi Panin II. They further contended that the said Nana Antwi Panin II was never an Omanhene of Manso Nkwanta.

The pertinent question that arose in the matter was whether there was any such custom as claimed by the respondent and what the rights of the parties are under such custom if it really existed. Without the proper determination of the issue by oral or other evidence, it would be wrong to permit the burial of any person or the performance of any funeral rites. The respondent himself on the claim and application, did not ask that he should be permitted to go and bury any person or perform that person’s funeral rites. His only complaint was that no such burial or performance of funeral rites should take place, “without his knowledge and consent” (The emphasis is mine.) He does not claim the sole right to bury or perform the funeral rites of Daniel Arthur Mensah.

Whether or not the respondent is still the Kyidomhene is, in my opinion, a cause or matter affecting chieftaincy. The power to enstool, destool, suspend or appoint a person to act in a chiefly position is a matter for those who “make” and ‘unmake’ a chief, ie the kingmakers. It is this body of persons who alone can declare a chief enstooled, destooled or suspended. In this respect, it must be made clear to the chieftaincy tribunals that their function consists only in determining whether a case has been made for the enstoolment, destoolment, abdication, or suspension of any particular person and to so declare accordingly. If the respondent’s right to bury or be consulted in such burials or funeral rites has been based only on his chiefly position as the Kyidomhene, I would probably have come to the conclusion that since there is a dispute pending on that issue before a chieftaincy tribunal, the High Court could not have been competent to pronounce on the matter. The respondent also claims to be the head of the Kyidom royal family. Whether this is true or not, the applicants seem to agree that the Kyidomhene, although a subordinate of the Omanhene, occupies the headship of the Kyidom family; it is on the same basis that Opanin Kwasi Boafo, the alleged acting Kyidomhene, claims to be the head of that family.

In the orders complained of, not only did the court restrain the applicants (herein) from removing the body of Daniel Arthur

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Mensah for burial and from performing his final funeral rites but it went further to order that: “the applicant (ie the respondent) shall as soon as possible, and in any case not more than fourteen days, organise the funeral of the deceased Daniel Arthur Mensah according to custom and get the body removed for burial within fourteen days from today.”

The question is, under what custom was the respondent being allowed to bury the deceased? In any case, the respondent did not ask that he be permitted to bury or perform the funeral rites of the deceased Daniel Arthur Mensah. His claim was that without his knowledge and consent, the applicants should not be allowed to bury Daniel Arthur Mensah or perform the final funeral rites of the deceased persons. Further, the respondent claimed that the funeral rites could not be performed until that of the late Nana Antwi Panin II have been performed, yet the order allowed the respondent to organise the funeral of the deceased Daniel Arthur Mensah. It is the effect of these orders that has prompted the applicants to say that the judge has prejudged the issue in the substantive case and concluded the litigation in favour of the respondent. As stated before, the issues in the case require oral or documentary evidence. By giving the respondent the right to go and bury Daniel Arthur Mensah and perform his funeral rites, the judge has determined not only the custom but also who has the right to bury the deceased. What else is there to be determined? By the orders also, the court has given to the respondent what he had not asked for in either his claim or the application. He has thus shown bias in favour of the respondent.

Counsel for the respondent has argued that to “. . . organise . . . according to custom” in the orders, means to consult with either the applicants or other members of the family before the burial or the performance of the funeral rites. This is a bold attempt to salvage a hopeless situation. I am not convinced by that argument. The question of burial of the deceased and the performance of his final funeral rites arise only after the custom has been determined.

I am satisfied that not only were the orders outside the claim and the application before the court, but they were also made

[p.513] of [1997-98] 1 GLR 503 without giving the applicants a full and proper hearing in the matter. By these orders the rights of the applicants were curtailed, for, no sooner had these orders been made than the respondent brought an application to commit the sixth applicant for contempt for refusing to release the death certificate to him to enable him remove the deceased from the Okomfo Anokye Hospital for burial. By indirectly declaring the right of the respondent to bury, it can be presumed quite rightly that the respondent’s assertions are correct even without oral or documentary evidence. This is borne out by the clear omission of the issue pertaining to the nature of the custom in the issues filed subsequently by the respondent in the substantive case. It renders the counterclaim nugatory.

A court may, on an interlocutory application dispose of the case by determining the main issue, but that cannot be done where the application only seeks to restrain in the interim the doing of an act. On the evidence before me, I am satisfied that the judge acted prejudicially and in error by making those orders and that by those orders, the applicants have been denied a fair and proper hearing. This conduct infringes the rules of natural justice. The orders therefore cannot stand. I order that the orders be removed and brought to this court for the purposes of their being quashed. Having come to this conclusion, I do not think it is necessary for me to determine any of the grounds for the relief sought.

An appeal has been made for the burial of the deceased on grounds of public policy. In the Supreme Court case of Republic v High Court, Kumasi; Ex parte, Nsiah, Supreme Court, Accra, 15 November 1994, unreported, the court had occasion to pronounce on this aspect of the law. It observed among other things that: “. . . on grounds of public policy it is inexpedient to leave the body unburied.” It accordingly ordered the release of the body for burial. That case may not be on all fours with the instant one but looking at the circumstances of this case and the prayer in this application, I think it would be unjust not to grant the request. The respondent is only one of the other prominent personalities in the family and who collectively have a responsibility over deceased members of the family. The first applicant admittedly, is the paramount chief, the overlord of the respondent and for that matter a very important person in the royal family; in fact he is the chief

[p.514] of [1997-98] 1 GLR 503 mourner (see exhibit NBKA) attached to the supplementary affidavit of the applicants). There is also the second applicant who is the queenmother to the first applicant; also a prominent member of the family. The sixth applicant is the uterine brother of the deceased and together with the first applicant caused the deceased to be deposited at the mortuary, bearing all the initial expenses of the burial and funeral. The respondent alone, whatever his position, cannot claim to have exclusive right of burial and performance of the funeral rights of the deceased Daniel Arthur Mensah even if the right to bury is eventually determined in his favour. Apparently that is why he had not claimed to bury the deceased. Consequently, no special damage or hardship would be caused to him by an order for the burial of the deceased. If there is any, he has not established it on the evidence. I agree that it is in the interest of the family, the public and the deceased person himself that the deceased be buried as soon as possible. I would order therefore that the applicants together with the rest of the family remove the body of the deceased Daniel Arthur Mensah from the mortuary and have it buried. Not to prejudice whatever customary rights remain to be determined in the action, I would not make any order respecting the payment of the mortuary fees. I see that the applicants have counterclaimed for damages: This would necessarily include such fees and any other bills pending.

I will make no order as to costs.

DECISION Application granted.

Endnotes

1 (Popup – Footnote) [sic] same in original.