REPUBLIC vs. HIGH COURT, SEKONDI; EX PARTE PERKOH II [2001-2002] 2 GLR 460

CASES REFERRED TO

(1) Sam v Noah [1982-83] GLR 1122.

(2) Benyi v Amo [1959] GLR 92.

(3) Smalley v Robey & Co Ltd [1962] 1 QB 577; [1962] 1 All ER 123, CA.

(4) Blacker v Blacker [1960] P 146; [1960] 2 All ER 291, CA.

(5) Palaniappa Chettiar (ARPL) v Arunasalam Chettiar (PLAR) [1962] AC 294; [1962] 2 WLR 1425; sub nom Chettiar v Chettiar (No 2) [1962] 2 All ER 238, PC.

(6) Pritchard, In re; Pritchard v Deacon [1963] Ch 502; [1963] 1 All ER 873, CA.

(7) Republic v Moffat; Ex parte Allotey [1971] 2 GLR 391.

(8) Ware v Ofori-Atta [1959] GLR 181.

APPEAL against the decision of the High Court granting an

[p.463] of [2001-2002] 2 GLR 460 application to attach the appellant, a chief of Kokoase for contempt of court following the filing of an application for interim injunction restraining him from performing his functions as chief as a result of destoolment charges levelled against him at the Wassa Fiase Traditional Council by the respondents. The facts are sufficiently set out in the judgment of Benin JA.

J B Nabarene for the appellant.

D D Gwira for the respondents.

Benin JA. The facts of this case are as follows. On 20 March 1999 seven persons who claimed to be kingmakers of the gyase stool family of Kokoase in the Western Region of Ghana filed what was termed “statement of plaintiff’s case” before the judicial committee of the Wassa Fiase Traditional Council (WFTC) at Tarkwa seeking the destoolment of the respondent-appellant herein as the chief of the said town of Kokoase. During the pendency of that matter, the plaintiffs therein applied for an order of interim injunction against the appellant herein before the traditional council seeking to restrain him “from acting as the chief of Kokoase or parading as such pending the hearing and final determination of the petition herein and for the appointment of the ebusuapanyin as the acting chief. . .” It was filed on 27 July 1999. The record shows that the appellant was served with a copy of this application on 28 July 1999. On 11 August 1999 the applicant-respondent herein applied to the High Court, Sekondi by motion ex parte for leave to serve contempt proceedings on the respondent. The reasons or the grounds for the application are contained in the affidavit in support, and they provide:

“(5) That with the service of a motion for interim injunction against him, I am advised by counsel and verily believe the same to be true that the respondent will cease performing any chiefly duties, eg collecting any money legitimately due to the stool and its people.

(6) That despite the existing motion for interim injunction, the respondent is beating gong gong proclaiming that he has destooled all customary chiefly office holders of Kokoase and saying that he cannot be destooled by the kingmakers or any one else.

(7) The respondent without the knowledge of his elders has collected and pocketed ¢l7 million being compensation paid by Bogoso Gold Ltd for the desecration of tombs, graves and ancestral burial grounds.”

[p.464] of [2001-2002] 2 GLR 460

From the above depositions, it is clear that the sole legal basis for the application was that the appellant continued to perform the functions of a chief notwithstanding the service on him of an application for interim injunction seeking to restrain him from performing any such function. In other words, the respondent’s contention was that the mere filing of an application for an order of interim injunction was sufficient reason to prevent a respondent from continuing to perform as a chief. And that he commits contempt of court if he continues to exercise the functions of a chief from the moment the application is served on him.

For his part the appellant resisted the application on these grounds contained in his affidavit in opposition:

“(4) That I am advised by counsel that the grounds the applicants are relying on to have me committed for contempt have no basis in law.

(5) That no petition has been filed at the traditional council.”

The arguments at the hearing were made around the points raised in the affidavits. It was the contention of counsel for the applicant/respondents that by continuing to parade as a chief despite the service of the application for interim injunction on him, the appellant was showing disrespect to the court. For his part, counsel for the appellant argued that there was no legal basis for the application since no action was pending before the traditional council. Moreover, the appellant had not disobeyed any court order; hence the mere filing and service of an application for interim injunction was not sufficient reason to stop a chief from performing the functions of his office.

The trial court’s ruling was very brief and I can reproduce same here with ease for its full force and effect. It reads:

“The photographs exhibited show the respondent sitting in state as a chief, something he had been asked not to do. A motion had been served on him from desisting to act as a chief, and once the motion had been filed, he had to desist from acting as a chief Counsel for the respondent argued to the contrary, but he did not quote a case to support his stand that a mere filing of a motion did not preclude the respondent from acting as a chief. I grant the application. I order that the respondent be attached for contempt, and I sentence him to prison for one day, and order him to execute a bond of ¢200,000 with one surety to be of good behaviour for six months or in default two months imprisonment with hard labour. To stop further moneys from going into the hands of the respondent, I order the abusuapanyin Yaw Badu, [p.465] of [2001-2002] 2 GLR 460 head of family of the applicant and the respondent to be in charge of moneys which would have been due to the respondent as a chief.”

The respondent-appellant who was dissatisfied with the trial court’s decision and orders appealed to this court on these grounds:

“(a) The decision has no legal basis.

(b) The trial judge erred in holding that the respondent had been restrained from performing his functions as a chief.

(c) The trial judge erred in appointing a receiver for stool moneys.

(d) The trial judge erred in allowing a supplementary affidavit without leave.”

The last ground of appeal was not argued at the trial so it is taken to have been abandoned, therefore there’s no need to say anything about it. Arguing the first ground, counsel for the appellant raised two key points. The first was that there was no originating process before the WFTC, so the application for an order of interim injunction has no legal foundation. Counsel’s contention was that the filing of a statement of case only by the plaintiffs therein was akin to filing a statement of claim in a High Court without a writ of summons. In that situation there would be no proper process before the court.

In his response, counsel for the respondent herein submitted that:

“the position in the present community tribunal or in the judicial committees of the traditional councils especially where parties are not privileged to have the guiding hands of lawyers to represent them, is similar to the former district courts: that is the form of an action is not really important but the substance.”

He cited the case of Sam v Noah [1982-83] GLR 1122. Counsel therefore concluded that “once the appellant understood the nature of the action he was to face from the petitioner’s statement of case, that was enough, even if the form of initiating an action in the traditional councils was no followed.” Counsel’s reason for this argument was that “unlike in the High Courts where the rules are strictly observed the rules are relaxed in the community tribunals, judicial committees of traditional councils . . .”

Regulation 4 of the Chieftaincy (Proceedings and Functions) (Traditional Councils) Regulations, 1972 (LI 798) sets out the procedure for initiating an action before a traditional council. I set the entire regulation 4 out here It provides:

[p.466] of [2001-2002] 2 GLR 460

“4. (1) An action may be commenced in a Traditional Council in one of the following manner;—

(a) by swearing a Chief’s oath or any oath recognised within the area of authority of a Traditional Council;

(b) by writ in the Form set out in the Second Schedule to these Regulations to which the plaintiff shall append his signature or affix his thumbprint.

(c) by any other means recognised by the customary law of a particular locality.

(2) Where the action is commenced by a writ, the writ shall set forth as clearly as possible the nature of the relief sought by the plaintiff and shall state,

(a) the full name of the plaintiff and the capacity in which he is bringing the action;

(b) the address for service of the plaintiff which shall be an address for service;

(c) the names and addresses of all parties who may be directly affected by the action; and

(d) such other particulars as the committee may from time to time direct.

(3) The writ shall be accompanied by a statement of the plaintiff’s case.

(4) The statement of the plaintiff’s case shall—

(a) set forth the facts and particulars upon which the plaintiff seeks to rely; and (b) the names and particulars of the witnesses, if any, whom he intends to call at the hearing.

(5) A copy of the writ and a statement of the plaintiff’s case shall be served on each of the parties mentioned in the writ as directly affected who shall be deemed to be the defendants.”

The plaintiffs before the WFTC must have decided to use the procedure contained in regulation 4(1)(b), of LI 798. But they failed to issue a writ; they merely filed a statement of case. The question that arises is whether the filing of a statement of case without a writ was proper and that the court could gloss over it since the substance of the relief sought was well explained in the statement of case. As already pointed out, counsel for the respondent submitted that in inferior jurisdictions strict adherence to rules of practice is not required. Let me refer to the case cited by him, namely Sam v Noah (supra). In that case the plaintiff brought an action before the district court by a writ of summons. In the writ he stated what he believed had brought him to

[p.467] of [2001-2002] 2 GLR 460 the court, but by the language used it was quite difficult to comprehend the nature of relief sought. No wonder the trial court thought it was a case in trespass, but the High Court was able to conclude that it was a case for declaration of title. It was for this reason the court said that the court should not be enslaved by the form of action, but must consider the substance thereof.

It is to be noted that in Sam v Noah (supra) there was a proper writ issued, what was lacking was a proper drafting of the reliefs sought. That was what the learned Judge was saying should not prevent the court from finding out precisely what the party wanted from the court. So that case has no bearing on this case at all. In a similar situation much earlier in the case of Benyi v Amo [1959] GLR 92, the court held that one must look at the real issue between the parties and not the mere wording of the plaint. In that case a proper writ had been issued at the native court but the wording of the plaint created some ambiguity as to what precisely was being sought by the plaintiff. In that situation, the court will strive hard to find the real matter that has been placed before it and will not allow itself to be enslaved by the form of the plaint. In both cases that began from inferior courts, the court made sure a proper writ had been filed as required by the rules.

I think where an enactment sets out a procedure for invoking the jurisdiction of a court or tribunal, the party must comply with it or he will be thrown out of court. If I understand counsel for the respondent, the failure to issue a writ was not fatal, in other words it would pass for a mere irregularity, since the process filed clearly establishes the reliefs sough from the WFTC. I know that non-compliance with rules of procedure are treated as irregularity and therefore does not nullify the proceedings. But as held in Smalley v Robey & Co Ltd [1962] 1 QB 577, CA, the proceedings referred to are the steps in the action. But as cautioned in Blacker v Blacker [1960] 2 All ER 291, the provision does not confer authority to authorise the disregard of rules of court. What the rules tolerate by way of infractions are the steps that are taken in action, that is after the appropriate originating process has been filed at the right place and is before the right forum. So for instance where an originating summons was issued in the district registry it was held to be a nullity. See these cases: Chettiar v Chettiar (No 2) [1962] 2 All ER 238, PC and Pritchard In re, Pritchard v Deacon [1963] Ch 502, CA. All that I am trying to say is that when it comes to the originating process, there can be no compromise of the rules by the court. The originating process introduces the cause of action; and the nature of the cause of action, and for that matter the reliefs sought, determines what the right forum should be. Moreover as already pointed out where the

[p.468] of [2001-2002] 2 GLR 460 law maker has set out what procedure a party must follow in order to come before a court or tribunal, the party who seeks to come before that court or tribunal must follow the procedure laid down in the enactment.

In the instant appeal, it is clear that regulation 4(1)(b) of LI 798 states clearly that a plaintiff must come by a writ if he is not coming under customary law and practice. And the form of the writ has even been prescribed by the regulation. The statement of case that the plaintiffs filed is also required by the regulation 4(3) of LI 798 but is in addition to a writ, the statement of case cannot stand on its own. It is even obligatory that the statement of case should accompany the writ, the two are inseparable under the regulation. Indeed, the situation is comparable to filing a statement of claim in the circuit or High Court without a writ of summons. Such a procedure will not be warranted by the rules and will thus be void. A statement of case and for that matter a statement of claim cannot take the place of a writ since their functions are not the same. Be that as it may, that is the requirement of the rules. It is the writ that places a plaintiff before the traditional council and not the statement of case; hence without the writ there would be no action before the traditional council to go into; the writ gives the council the jurisdiction to hear the parties. The High Court was bound to consider the fact that there was no action properly pending before the WFTC and for that reason the application for interim injunction was also not properly before that council. It is not a case where the council had made an order in the proceeding which the appellant herein was said to have violated in which case he could be dealt with even if the proceedings were regarded as a nullity by the High Court. In this case, there was no order made by the council, so the objection raised by the appellant to the legality of the proceedings should have engaged the attention of the High Court since that was the first forum the parties appeared in. If the matter of contempt had been raised before the WFTC in the first instance as required by law, the appellant would have had the opportunity to raise the objection to that council’s jurisdiction because of the absence of a writ of summons. Hence the lower court’s insistence on hearing the contempt application when it was obvious the WFTC itself had no jurisdiction to entertain the case at all, was clearly wrongful assumption of jurisdiction.

This brings us to a more serious issue and that is whether the High Court could deal with the contempt application in flagrant disregard to the procedure prescribed by LI 798. Regulation 13 of LI 798 has these relevant provisions:

“(4) A person who does anything in relation to the exercise

[p.469] of [2001-2002] 2 GLR 460 of the judicial functions of a Traditional Council which if done in relation to the District Court will constitute a contempt of that court shall be guilty of contempt of that Council.

(5) Where it appears to the judicial committee that any person has committed contempt of the Traditional Council by which that committee was appointed it shall certify that fact to the High Court and the High Court shall after inquiring into the matter take steps for the punishment of the person in question if it is satisfied that he is guilty of contempt, and shall otherwise acquit that person.”

It follows from the foregoing provisions that it is only the judicial committee of a traditional council that has the right to refer a contempt matter in a case that is pending before it to the High Court; no party to the proceedings is given that right. The judicial committee must be satisfied, albeit prima facie, that there is contempt committed before it can certify that fact to the High Court. The High Court cannot hear an applicant directly without a reference from the traditional council in contempt matters. Thus the High Court ought to have declined jurisdiction to entertain this application. I am mindful of the fact that this point that I have just decided on was not brought to the attention of counsel for the respondent for his reaction thereto as required by rule 8(8) of the Court of Appeal Rules, 1997 (CI 19). But I take consolation in the fact that his court is not resting its decision on this point in deciding this appeal against the respondent. The point, as can be seen, arose from a consideration of the first point raised in this appeal, it was only ancillary to that main issue so the failure to give the respondent prior notice of this point is not fatal within the meaning of rule 8(8) of CI 19. The first point therefore succeeds.

The second point raised under the first ground of appeal was that the mere filing of an application for interim injunction was not sufficient reason to debar a chief from performing the functions of the office as held by the trial court. Counsel for the respondent was of the view that it the chief was not restrained automatically upon being served with an application for interim injunction, he may “alienate stool property so that by the time the motion is finally disposed of he might have dissipated most of the stool properties.” At the court below the respondent’s counsel relied on the case of Republic v Moffat; Ex parte Allotey [1971] 2 GLR 391. It seems it is this authority that has been relied upon for the argument that once a person has been served with an application for interim injunction, he must cease performing the act for which the application has been brought else he is

[p.470] of [2001-2002] 2 GLR 460 automatically guilty of contempt. I think it is about time we put such argument and belief to rest. That case did not in the first place purport to lay down any hard and fast rule that a person served with an application for interim injunction commits contempt of court if he does that very act for which the application has been brought. Moreover the court was careful in emphasising the point that it was only conduct that was likely to bring the administration of justice into disrespect or interfere with any pending litigation that was contempt of court. In that case the court came to that conclusion because of the fact that before the application could be heard the very act for which the application had been brought to prohibit had been performed. It was about outdooring of a person as a chief which they were seeking to restrain, so by outdooring the person whilst the application to restrain it was pending, it amounted to rendering the entire application otiose and exposing the court process to ridicule. In effect the court was saying that the moment the application was served the status quo was to be maintained pending the hearing and determination, or until otherwise ordered by the court. That case will not apply here and if it did lay down any rule that a person was automatically prohibited from doing the very act for which an application has been brought to court against him, that would be too wide a statement to be applied in every case for which reason it cannot be affirmed. And if the status quo is to be maintained pending the hearing and determination of the appeal, then it means the appellant would remain the chief and perform his functions until it has been decided otherwise.

Turning to the facts of this case, it is clearly wrong to say that as soon as a chief is served with an application seeking to restrain him from performing the functions of a chief, he must cease forthwith to perform such functions. Any such decision will be a recipe for chaos and anarchy in the society where the chiefs play key roles in our traditional set up. What will happen then is that a chief’s detractors only have to come up with any case, however frivolous it may be, against him. Then they only have to apply for interim injunction against him, and automatically he ceases to perform as a chief. The chief, in such a situation has not been destooled yet he cannot perform the functions of his office, even though the court has not ordered that. There must not be a vacuum in the position of a chief without going through the well-laid down rules of law and customary practice. Indeed the law makers did not even intend such vacuum to exist unless the legal machinery is fully exhausted. I am here referring to the provision contained in section 27 of the Chieftaincy Act, 1971 (Act 370) which states that:

[p.471] of [2001-2002] 2 GLR 460

“27. An appeal to the National House of Chiefs or to a Regional House of Chiefs shall operate as a stay of execution of the judgment or order appealed against and any other order made consequentially upon it unless the appellate tribunal otherwise directs.”

It is to be noted from this provision that even where a chief has been found liable on a charge to destool him, the law says that if he decides to contest it on appeal he should go on to perform as a chief whilst the appeal is going on unless the appellate court or tribunal decides otherwise. If in a situation where a chief has been found liable to destoolment charges the law permits him to continue to perform the functions of his office, how can the mere filing of an application for interim injunction operate to restrain him from performing the functions of a chief? I think in the absence of legislation or very cogent and convincing reasons, it would be unthinkable to oust a chief, however brief the duration may be, by the mere filing of an application. It is not something worth the thought. And if the application continues to be pending for one, two or more years, then the position is that the chief will not be performing, and since he still remains a chief no new chief can be appointed. The court must prevent such chaotic situation. This point succeeds. For that matter the first ground of appeal is upheld.

The second ground of appeal is closely related to the first one. To say that by the service on the appellant of the motion meant he had been asked not to perform as a chief is, to say the least, absurd and strange. This is because by that the court is saying it is the applicant who determines when the chief must stop performing his functions, rather than a properly constituted and competent chieftaincy tribunal. The applicants themselves were seeking the WFTC to make an order restraining the appellant, meaning they appreciated they themselves could not do that. It is only a judicial body with authority that can order somebody not to do an act. I think this error arose from the lower court’s belief that the mere filing of the application for interim injunction was sufficient to restrain a chief from performing the functions of his office. This ground of appeal succeeds.

The final ground of appeal relates to the trial court’s order directing the head of family to take charge of stool revenue. Counsel’s submission was that the trial court “had no power to appoint a receiver for stool moneys on an application for attachment for contempt. . .” The reply by counsel for the respondent was that since the appellant was convicted for contempt, “the court was right to have appointed the

[p.472] of [2001-2002] 2 GLR 460 ebusuapanyin, Yaw Badu, to receive all moneys due to the family.” This was purely a contempt matter and it did not call for any ancillary reliefs. It was not for the court to determine who should collect moneys due the stool, especially when that was not brought before it for adjudication. As a matter of principle the court should be wary in appointing anybody at all to perform customary functions in relation to a stool. For two possible consequences follow: either the person appointed is by custom not the rightful person to perform that act, in other words the court risks further litigation by allowing one person to usurp the customary functions of another as happened in the case of Ware v Ofori-Atta [1959] GLR 181. The other risk is that the court may stray into a cause or matter affecting chieftaincy which it has no jurisdiction to handle. Stool revenue is part of stool property. And by section 66(d) of Act 370, the recovery of stool property in connection with the destoolment of any person as a chief is a cause or matter affecting chieftaincy. The appellant had been brought before the WFTC on destoolment charges and so any moneys belonging to the stool which otherwise might have come into his hands in his capacity as a chief was also being claimed. The ebusuapanyin though a member of family is not a chief. The question may therefore arise whether in the absence of a substantive chief it is the ebusuapanyin and not another chief who is responsible for collecting and keeping stool money. The court has no power to appoint anybody to collect stool money when there is a chieftaincy dispute on hand, the court should allow the chieftaincy tribunal to deal with such claim for reasons already advanced. But in this case the order was wrong in the contempt proceedings. By the order the court below was effectively granting an order of injunction against the appellant in a chieftaincy matter. This ground also succeeds. The appeal is accordingly allowed.

Appeal allowed.

J N N O