REPUBLIC vs. JUDICIAL COMMITTEE OF GREATER ACCRA REGIONAL HOUSE OF CHIEFS; EX PARTE DOKU III AND OTHERS [1997-1998] 2 GLR 800

CASES REFERRED TO

(1) Kwaframoah III v Sakrakyie II [1996-97] SCGLR 199.

(2) Ansu-Agyei v Fimah [1993-94] 1 GLR 299, SC.

(3) McFoy v United African Co Ltd [1962] AcC 152; [1961] 3 All ER 1169, SPC.

(4) Mosi v Bagyina [1963] 1 GLR 337, SC.

(5) Penkro v Kumnipah llII [1987-88] 1 GLR 558, SC.

(6) Amoasi liII v Twintoh [1987-88] 1 GLR 554, SC.

APPEAL against the decision of the High Court granting the respondent leave to apply for certiorari out of time to enable the court to quash the judgment of the judicial committee of the JGreater Accra Regional House of Chiefs. The facts are sufficiently set out in the judgment of Lamptey JA.

Ivan Quansah for the appellant.

J Ayikoi Otoo for the respondent.

[p.803] of [1997-1998] 2 GLR 800

Lamptey JA. Sometime in 1983 Nii Okopa Doku III and twco others filed a petition in chieftaincy at the Greater Accra Regional House of Chiefs, Dodowa against Nii Amugi II, described as Ga Mantse, and three others. The said Nii Okopa Doku III and the two others are neither paramount chiefs nor divisional chiefs. Indeed, apart from the Nii Amugi who is a paramount chief, none of the other parties to the petition is a paramount chief. In duce course the regional house of chiefs empanelled three members olf the house to hear and determine the petition. Hearing of thce petition commenced before the panel without any objectiorn whatsoever from any of the parties.

However, in the course of the hearing, a member of the panel., Nii Kojo Ababio, was alleged to have made statements which in the opinion of the lawyer for Nii Kraku III disqualified thait member from further participation in the hearing as a panel member. A formal application was made to the panel requesting that member to politely withdraw from further participation in thce proceedings. It does not appear that the panel member withdrevw nor that the committee made any ruling on the objection that was raised. In the circumstances Nii Kraku III and his lawyers took nco further part in the proceedings. The panel continued thce proceedings in their absence and gave judgment for thce petitioners. The present respondent who was one of thce respondents before the Regional House of Chiefs applied to and obtained leave to apply for certiorari out of time to enable thait court to quash the judgment of the judicial committee. It is againsit this decision that Nii Okopa Doku III and the two others hacd appealed to this court.

In view of the matters of law raised and argued, as well as thce submissions made by counsel for the parties, I find it convenienit to deal first with the issue of the jurisdiction of the regional housce of chiefs to hear the petition. I must say that the issue olf jurisdiction was not raised before the judicial committee of thce Greater Accra Regional House of Chiefs up to the time thce respondent herein and his lawyers withdrew from the hearing. Bce that as it may, the rules of court permit and allow the issue olf jurisdiction to be raised whenever and at any time a party felt thce need to do so. Before us, counsel for appellants submitted that thce petition was properly filed in the Greater Accra Regional House olf Chiefs and further that the judicial committee of that house was

[p.804] of [1997-1998] 2 GLR 800 competent to hear and determine it. He argued that since the Ga EvlMantse was made a party to the petition, it was perfectly lawful for the regional house of chiefs to assume jurisdiction in the matter. He contended that the fact that parties are not occupants of paramount stools did not oust the jurisdiction of the judicial committee. He relied on the Supreme Court case of Kwaframoah [liIII v Sakrakyie III [1996-97] SCGLR 119.

In reply, counsel for the respondent, Nii Adjetey Kraku III submitted that the Regional House of Chiefs did not have jurisdiction to hear and determine the petition. He submitted that in the peculiar circumstances, namely where some of the parties are not paramount nor divisional chiefs but only one party was a paramount chief, the proper and lawful forum for filing the petition was the National House of Chiefs. He referred to and relied on the Sakrakyie III case (supra) and the earlier Supreme Court case of Ansu-Agyei v Fimah [1993-94] 1 GLR 299, SC in support of his submission.

In order to fully understand and appreciate the submission and arguments of counsel for the parties, it is desirable and necessary to state briefly but concisely, the reasons why Nii Okopa Doku III and two others filed the instant petition in chieftaincy at the Greater Accra Regional House of Chiefs. The petitioners sought a declaration that Nii Adjetey Kraku III was not a chief of Tema;, that is to say, that his nomination, election and enstoolment as chief of Tema was contrary to custom and tradition; and (ii) that the Ga Mantse acted contrary to custom and tradition in permitting Nii Kraku III to swear the oath of allegiance before him. It is not disputed that the Ga Mantse is by law and custom a paramount chief. The Ga Mantse was made a party to the petition because the petitioners alleged that he permitted Nii Kraku III to swear the oath of allegiance to him and before him in public.

One issue that arose for consideration by this court is whether or not the “swearing of an oath” is a cause or matter affecting chieftaincy. The answer to this question is an emphatic, No! The issue of law raised above was stated by the Suprame Court in the case of Ansu-Agyei v Fimah (supra). In the course of his judgment Ampiah JSC at 304 stated as follow: “The two tribunals found thait the refusal to allow an oath of allegiance to be sworn, was not ‘a cause or matter affecting chieftaincy’ as defined by section 66 the Chieftaincy Act, 1971 (Act 370).” It is plain and clear that the relief sought by the petitioners in the petition in so far as it

[p.805] of [1997-1998] 2 GLR 800 affected and involved the Ga Mantse did not raise a dispute on chieftaincy between the parties; in other words, the action against the Ga Mantse was not a cause or matter affecting chieftaincy. That being the true legal position, it becomes clear and plain that the Greater Accra Regional House of Chiefs had no jurisdiction tco hear and determine the plaint against the Ga Mantse. The purported assumption of jurisdiction by the judicial committee oif the house was contrary to law. The hearing and determination was a nullity in law, ab initio. The proceedings can be quashed at any time by a court of competent jurisdiction.

In the circumstances, time did not run and an aggrieved party did not require leave for enlargement of time to enable an application to quash the proceedings to be commenced: see McFoy v United Africa Co Ltd [1962] AC 152 and Mosi v Bagyina [1963] 1 GLR 337, SC referred to and considered by the Supreme Court in the case of Penkro v Kumnipah III [1987-1988] 1 GLR 558 (holding 1), as per Adade and Taylor JJSC:

“The decision of the full bench of the Court of Appeal giver on 30 July 1969 was given without jurisdiction, and was therefore a nullity. And it could be so declared at any time, once it has been brought to the notice of the Supreme Courtl by any means whatever. Since time was irrelevant in thce exercise of such jurisdiction it did not matter when thce Supreme Court became aware of the existence of the void decision . . .”

I must observe that Francois JSC in his dissenting opinion agreed in toto with the principle of law stated above in the following language:

“It is not open to debate that a void judgment can be so declared in the interest of justice and time should not be an impediment. To that extent the principle in Mosi v Bagyina (supra) is not exceptional.”

I have sought to show that the joinder of the Ga Mantse in an action which did not fall within the ambit of a cause or matter in chieftaincy as between the petitioners and the Ga Mantse before the judicial committee of the Greater Accra Regional House of Chiefs was wrong in law. The committee lacked jurisdiction in the matter. The whole proceeding was an nullity in law. This void and null decision or judgment can be set aside as soon as a court

[p.806] of [1997-1998] 2 GLR 800 of competent jurisdiction became aware of it. Time was not a relevant consideration in such a matter. I am satisfied that the judicial committee of the Greater Accra Regional House of Chiefs did not have jurisdiction to hear and determine the petition. It’ s judgment is a nullity.

In law the regional house of chiefs was the wrong forum for the hearing of the cause or matter affecting the nomination, election and installation of Nii Kraku III as Mantse of Tema, a divisional chief. The operative law is that the petition must be heard and determined in the appropriate traditional council acting by its judicial committee. In the present appeal the parties who are not all paramount nor divisional chiefs were put before the wrong forum, a forum which had no legal or lawful authority and power to receive the petition. The judicial committee of the Greater Accra Regional House of Chiefs erred in law in clothing itself with jurisdiction to hear the petition. The hearing and determi nation was a nullity ab initio.

In the event I am wrong in the opinion I have expressed above, I would consider the submission of counsel for the appellants to wit, that the issue raised by the appellants for determination of the judicial committee of the Greater Accra Regional House of Chiefs was the issue of the constitutional relationship between the Tema Stool, of the one part, and the Ga Paramount stool, of the other part. He submitted that the issue raised in the petition against the Ga Mantse, a paramount chief, clothed the judicial committee of the Regional House of Chiefs with jurisdiction to hear and determine that issue. He argued that because the paramount stool was made a party to the petition, the judicial committee of the Regional House of Chiefs had jurisdiction in the matter. He referred to and relied on the passage following from the Fimah case (supra) at 304 that: “Once the paramount stool or the occupant of a paramount stool was not made a party, the regional house of chiefs had no jurisdiction in the matter.” Counsel for appellants contended that the passage meant and was intended to mean that if and when a paramount stool or occupant of a paramount stool was sued in a cause or matter affecting chieftaincy, the proper forum for hearing and determining that plaint or petition is the judicial committee of the regional house of chiefs of which the paramount stool or occupant of the paramount stool is a member.

[p.807] of [1997-1998] 2 GLR 800

I hasten to disagree with the interpretation put on the passage by counsel for appellants. The question of jurisdiction is one of law,; the enabling law which conferred jurisdiction on the judicial committee of a regional house of chiefs is section 23 of Act 370. It provides as follows:

“23 (1) Each Regional House of Chiefs shall have the following original and appellate jurisdiction —

(a) original jurisdiction in all matters relating to a paramount stool or the occupant of a paramount stool . . .”

In the instant appeal, the occupant of the Ga Paramount Stool, the Ga Mantse, was sued because it was alleged that he permitted Nii Kraku III to swear an oath of allegiance to him. I have elsewhere held that the swearing of as oath of allegiance is not and cannot give rise to litigation before a judicial committee of the regional house of chiefs. The submission of counsel for the appellants is plainly misconceived.

Further, I do not agree that the petitioners’ petition sought a declaration on the constitutional relationship between the Tema Stool and the Ga Paramount Stool. The complaints of the petitioners as disclosed by the affidavit in support of the petition were two-fold. First, the petitioners sought a declaration that Nii Kraku III was not the customarily enstooled chief of Tema and, second, that the Ga Mantse erred in customary law in permitting Nii Kraku III to swear an oath of allegiance to him; basing themselves on their stand that Nii Kraku III was not the enstooled chief of Tema. I must point out that, contrary to what counsel for the appellants perceived as the real complaint of the petitioners on the issue of the swearing of the oath of allegiance, the petitioners in their petition did admit that a lawfully enstooled chief of Tema is enjoined by custom and tradition to swear an oath of allegiance to the Ga Mantse. On that issue I can do no better than reproduce paragraphs (5), (7), (8) and (9) of the affidavit of the firsit petitioner, Nii Okopa Doku III, as follows:

“(5) The petitioners say that the first respondent is the Ga Mantse and is the paramount chief of the Ga Mashi Area.

(7) The relationship between the Tema Stool and the first respondent stool is that of an alliance which alliance has

[p.808] of [1997-1998] 2 GLR 800 been renewed by the swearing of a certain oath called and described as the kita whenever a new chief is installed.

(8)

(8) The said oath is sworn in the full view of the other chiefs assembled, that is to say an assembly made up of Osu, La, Teshie, Nungua Mantse and others who together constitute the said alliance.

(9) By custom practice and usage ever since the alliance was constituted, the kita has also been regarded as a mode in which the new chief (Tema) is introduced to his fellow chiefs thereby acquiring some form of recognition by others to treat him as a chief.”

It is plain and beyond argument that the petitioners themselves admit and therefore have not called in question the constitutional relationship between the Tema Stool and the Ga Paramount Stool. They have declared that there exist in Ga Mashie an alliance oif chiefs. They further state as custom, practice and usage the swearing in public of the kita by an incumbent chief of Tema to the Ga Mantse. In the light of the above admission it doss not lie in the mouth of counsel for appellants to contend that the petitioners sought a declaration on the constitutional relationship between the Tema stool and the Ga paramount stool. The real and true issue in controversy between the petitioners and the Ga Mantse was stated at paragraph (14) of the first petitioner’s said affidavit as follows:

“(14) The petitioners say that some time on or about the 4 October 1980 the first respondent knowingly permitted the third respondent to renew the oath of allegiance between the Tema Stool and the Ga Mashie Stool when the first respondent knew or ought to have known that the fourth respondent is neither the Mantsce nor the holder of any traditional post within the Tema Traditional Area.”

It will be seen therefore from the above statement that a lawfully installed chief of Tema is enjoined by custom and tradition to swear an oath the kita to the Ga Mantse sitting in public. The complaint by the petitioners was that Nii Kraku III is not Tema Mantse and does not hold any traditional post within the Tema

[p.809] of [1997-1998] 2 GLR 800

Traditional Area. The submission of counsel for appellants on this issue is misconceived.

The other ground of appeal was that the judge of the lower court erred in law in granting the respondent leave to institute proceedings in certiorari. He submitted that the court lacked jurisdiction to hear and grant the application. He contended that three similar applications for leave to bring and institute certioranri proceedings had been dismissed by the High Court differently constituted. He pointed out that one such application was dismissed by the very and same judge that granted the application, the subject-matter now on appeal. He submitted that once the High Court dismissed an application it became functus officio in the matter. The right of an aggrieved party was not a right to repeat the application in the High Court; but a right to appeal against the dismissal. Counsel for respondent did not agree with the sub mission made. He contended that none of the earlier applications that was dismissed was heard on the merits. In those circumstan ces, he contended that the application could properly be repeated for it to be contested and argued on the merits. A ruling must be given in the matter by the court. The ruling can be appealed against by an aggrieved party.

I entirely agree with counsel for respondent that unless and until an application is contested and argued on the merits and a ruling is given on it, it cannot be deemed to have been dismissed; in the sense that it cannot be repeated. The dismissal of such an application cannot constitute res judicata in law. I need not burden this judgment with a list of decided cases on res judicata.

I cannot conclude this judgment without making two serious observations. The first is to deal with the complaint made against the hand-written judgment, namely that it does not bear the signatures of all the members of the panel. I think that in considering this serious complaint one must critically and carefully examine the proceedings of that date, i.e. Wednesday, 7 October 1992. The record shows that all the three members: “(1) Nene Haute Awah IllII – —Chairman; (2) Nii Kojo Ababio —Member; (3) Nii ? ? ? – —Member””; were present. In attendance was Mr C K A Anson as counsel-recorder. The record shows which of the parties were present and which were absent. Then follows the note on representation—“”Quansah for the petitioners. No representation for the respondents.” The judgment recorded was indeed very brief and was as follows: “Judgment.

[p.810] of [1997-1998] 2 GLR 800

Judgment given for the petitioners. Reliefs asked for granted in fall. Reasons for the judgment to be given later.” The issue of costs to be awarded was then fully considered by the panel. At the end of the handwritten proceedings appeared the signature of only the chairman.

I do not think the fact that the other members of the panel did not also sign the hand-written record, ipso facto, made that judgment a nullity. I am not sure whether or not the complaint should have related to the fact that at the date of the hearing of the appliction by the High Court, Accra the panel had failed and or neglected to provide the written reasons for the judgment. It is my candid opinion that if a tribunal or a court undertakes to provide written reasons for a case that is contested before it, the tribunal or court must in the larger interest of justice deliver its reasons in writing within reasonable time. In the instant appeal this was not done; and written reasons had not been delivered to date.

The second observation I feel I must make is as follows. I note that the parties willingly submitted to the jurisdiction of the regional house of chiefs. Indeed, the parties did not raise any objection to the composition of the panel to hear and determine the petition. The hearing commenced before the panel chaired by Nii Awah III. In the course of the hearing, the respondent, acting by his lawyer, formally raised an objection against the member continuing to sit and hear the petition. They took the position that the respondent would not and could not continue to take any further part in the proceedings if the member of the panel persisted in sitting as a member. The respondent and his lawyer expected the panel to rule on their objection. I reproduce from the record the relevant passage at page 11 as follows: “The respondents by their counsel, have raised an objection to the continued presence of Nii Kojo Ababio on the panel by reason of his open declaration of interest in the suit and a submission was formally made to that effect which was recorded by Mr Anson, counsel for the judicial committee,; and a ruling on that submission has been pending for well over four months.”

The above is an extract from a letter dated 24 September 1992 to the registrar of the house of chiefs who had sent “hearing notice” to the respondent. There does not appear that the panel read a ruling on the objection raised by th’e respondent when it sat on 7

[p.811] of [1997-1998] 2 GLR 800

October 1992 to deliver its judgment on the petition. It must be noted that the letter from the lawyer acting for the respondent was received by the registrar on 25 September 1992; twelve days after this letter was received, judgment was given on the petition. In my humble opinion, the panel was in law enjoined to deliver a ruling on the objection before it became functus officio, that is to say, before it delivered its judgment on the petition on 7 October 1992. The failure or neglect on the part of the panel to deliver a ruling on the objection cannot be excused on any known legal ground. Indeed in the said letter from the lawyer of the respondent the view I have expressed above was expressly made clear as the passage following shows:

“We cannot approbate and reprobate in one breath by appearing before the panel as presently constituted . . . If and when the ruling is given per incuriam or wrong in law and/or equity, we shall advise ourselves.”

The registrar of the house of chiefs was in duty bound to place this letter before the panel and the opinion of Mr Anson, the counsel to the house, sought on it. It is my view that the moment an objection was raised as to the continued participation of a member of the panel in the proceedings, a ruling should be given before the panel became functus officio. Since a ruling was not delivered, my opinion is that the proceedings cannot be said to be completed; to the extent that the panel had not fully and completely dealt with all the issues both of law and fact raised for its impartial and fanir consideration.

If the opinion I have expressed is correct, then it is trite law that time is irrelevant in instituting any proceedings seeking to attack and impeach the proceedings of the judicial committee that heard and determined the petition filed by Nii Okopa Doku and two others.

It is for all the reasons I gave given above that I dismiss the instant appeal.

Brobbey JA. I am also of the view that there is no merit is this appeal. The facts of the case have been clearly set out in the judgment of the president of this panel and so I do not need to repeat them. There are three simple reasons for my opinion that the appeal should be dismissed.

[p.812] of [1997-1998] 2 GLR 800

In the first place, it is not disputed that the Tema stool was a divisional stool; and that a dispute which involved a chief of the divisional stool could only be heard in the judicial committee of a traditional council.

On the other hand the Ga Mantse, who was made a party to the suit, was a paramount chief whose dispute could not be tried by a traditional council but by a regional house of chiefs. This case thus becomes one which falls squarely to be determined under article 273 (5) of the Constitution, 1992 which provides that:

“(5) A Judicial Committee of the National House of Chiefs shall have original jurisdiction in any cause or matter affecting chieftaincy —

(b) which is not properly within the jurisdiction of a Regional House of Chiefs; or

(c) which cannot be dealt with by a Regional House of Chiefs.”

The judicial committee of the Greater Accra Regional House of Chiefs could not hear this petition because of the status of the Tema Stool which is that of a divisional one. The judicial committee of the Tema Traditional Council too could not hear the petition because of the status of the Ga Mantse which is a paramount one. In the circumstances, the only forum in which the petition should have been heard was the judicial committee of the National House of Chiefs. This is the view I hold, if it were to be the case that the Ga Mantse was properly joined to the case.

The wording of article 273 (5) of the Constitution, 1992 is the same as the wording of article 179 (5) of the Constitution, 1979. When a similar issue arose in Ansu-Agyei v Fimah [1993-94] 1 GLR 299, SC, it was held that the proper forum was the judicial committee of the National House of Chiefs. Counsael fpfopr thee appella- nts sought to distinguish that case from the instant one by con- tending that that case was decided on its facts. But the principle on the ground on which the case was decided was that if the case could not properly be decided by the regional house or could not otherwise be decided by a regional house and yet that case involved paramount stool or the occupant of a paramount stool, it was the judicial committee of the National House of Chiefs which has jurisdiction to hear it. The facts of the instant case raise issues similar to that raised in that Supreme Court case and therefore the underlvying pnrincrinple on the basis of which that case was decided

[p.813] of [1997-1998] 2 GLR 800 can equally be applied to the facts of the instant case.

On the authority of the Fimah case (supra) and the clear terms of article 273 (5) of the Constitution, 1992 the only forum for the determination of the dispute involving the parties in the instant case was the judicial committee of the National House of Chiefs.

On the other hand if the view is taken that the Ga Mantse was not properly joined as a party, then for reasons stated in the judgment of the president, the Tema Traditional Council will be the forum to hear the case since the dispute involved a chief of the divisional stool, i.e. Nii Okopa Doku III. Irrespective of the stand taken, I hold the view that the judicial committee of the Greater Accra Regional House of Chiefs had no jurisdiction to have heard the petition involving the parties in the instant case. The determination of that suit by the judicial committee of the Greater Accra Regional House of Chiefs was a nullity, void and unenforceable for want of jurisdiction. Where a decision is void, time can not run in respect of the steps to be taken to set it aside. The reason for this is simple. If the decision is void, it is as if it has never existed. Mosi v Bagyina [1963] 2 GLR 337, SC held that the decision may be ignored or it must be set aside ex debito justitiae by the party affected by it. It is equally irrelevant that the issue of jurisdiction would appear to have been raised for the first time in this court because the well-established authority is that jurisdiction can be raised at any time of the proceedings: See Amoasi III v Twintoh [1987-8 8] 1 GLR 554, SC where the issue of jurisdiction was raised for the first time in the Supreme Court and yet it was upheld.

There can be no legally sustainable objection to any step taken to set aside a judgment like that of the judicial committee of the Greater Accra Regional House of Chiefs, when that judgment is palpably void. For this reason alone the appeal should fail.

This case raised two more points which should not be ignored. The first is the objection raised against the participation of the James Town Mantse in hearing the petition. I agree with the views expressed by the president of the panel in the judgment on this issue. The objection should have been expressly considered by the chief against whom the objection was raised and his reaction recorded. He did not react to the objection. All that was said therefore stood against him. On the basis of the facts in that objection, the James Town Mantse should not have sat on this case at all. He should have declined jurisdiction to hear that case since

[p.814] of [1997-1998] 2 GLR 800 by his silence, he seemed to have had no answer to the allegation levelled against him. If he had any replies to them, he should have stated them. A judgment given by the judicial committee with him sitting on the panel could not be held to bind those who objected with stated grounds, to his inclusion on the panel of adjudicators.

The second point is that the judgment complained against was not signed by members of the panel.

Counsel for the appellants sought to explain that away by arguing that all that the adju- dicators were required to do in terms of the Chieftaincy (National and Regional House of Chiefs) Procedure Rules, 1972 (CI 27), s 11 was for them to deliver its judgment. On this issue I differ from the views expressed by the president of this panel in his judgment. How can a member of this panel be said to have agreed, disagreed, consented, dissented or concurred in the judgment if that panel member has not signed it? If a member of a panel which heard and concluded a case does not append his signature to the eventual judgment, there will be nothing to indicate that he even partici- pated in the preparation and delivery of that judgment. Such a jud- gment like the instant one of the judicial committee of the regional house of chiefs, with very uncertain connection, to the panel members cannot be held against the litigating parties to that case.

It was for these and for other reasons stated in the judgment of the president of this panel that I hold the v‘iew that the appeal fails and should be dismissed. The dispute should be heard in the judicial committee of the Tema Traditional Council, provided the Ga Mantse was wrongly joined; and if the petitioner accepts the position that the dispute may be decided in court without making the Ga Mantse a party to the case.

On the other hand if the petitioner believes that the Ga Mantse should be made a party as a condition for the proper determination of the dispute, then the forum for hearing the case should be the judicial committee of the National House of Chiefs.

I would leave the decision to join or not to join the Ga Mantse to the petitioner-respondent because that will determine where the case should be heard, i.e. in the traditional council or the National House of Chiefs.

Forster JA. I agree with the judgment read by my brother Lamptey JA.

Appeal dismissed.

LSNA