REPUBLIC vs. KUMASI TRADITIONAL COUNCIL; EX PARTE NANA KOFI DEI [1973] 2 GLR 73

CASES REFERRED TO

(1) Ampong v. Amankwa [1961] G.L.R. (Pt. II) 736.

(2) R. v. Newington Licensing Justices [1948] 1 K.B. 681; [1948] 1 All E.R. 346; [1948] L.J.R. 1459;

112 J.P. 175; 64 T.L.R. 140; 92 S.J. 168; 48 L.G.R. 200, D.C.

NATURE OF PROCEEDINGS

APPEAL against the judgment of the High Court, Kumasi, which granted an application by the respondent for an order of certiorari to quash the judgment of the Kumasi Traditional Council. The facts are fully set out in the judgment of Anin J.A.

COUNSEL

T. A. Totoe for the appellant.

Agyepong for the respondent.

JUDGMENT OF ANIN J.A.

Thirty years before the institution of the present action in the Kumasi Traditional Council, the defendant-applicant-respondent (hereinafter called the respondent), swore the great oath of Ashanti to the effect that neither the plaintiff-respondent-appellant (hereinafter called simply the appellant) nor any member of his family was a royal of the Ntonso (Oppong Tenteng) stool. The respondent was the occupant of the Ntonso stool both at the time when he swore the great oath, and also 30 years later at the date of filing of the writ of summons herein. But for a period during the Nkrumah regime he was replaced as Ntonsohene by the late Nana Yiadom Boakye Ansah, a kinsman of the appellant. The constitutional status quo was however restored by the Chieftaincy (Amendment) Decree, 1966 (N.L.C.D. 112), which accomplished by one stroke both the summary destoolment of the late Nana Yiadom Boakye Ansah and the reinstatement of the respondent as Ntonsohene. In the inevitable partisan jubilation over the respondent’s reinstatement, his supporters were alleged by the destooled chief to have defamed him and his family (i.e. the Nyomaase branch of the Dako royal stool family of Ntonso) thus:

“(i) Boakye Ansah does not belong to the royal family of Ntonso and therefore cannot be the chief of Ntonso;

(ii) that Nyomaasefuo are slaves, ineligible family that are trying in vain to usurp somebody’s stool.”

The appellant promptly applied for a writ of summons to issue out of the Kumasi Traditional Council against the respondent’s family for “judicial relief in the sum of ¢240 to prove the above-quoted allegations,” and for a ruling about which of the two rival stool houses was entitled to occupy Ntonso stool. The appellant’s application was duly brought to the notice of the respondent for his comments; and he thereupon applied to be substituted for “Nana Akwasua Akyiaa Ababio (Ex Obaapanin of Ntonso) and the Atoaase branch of Dako royal stool family of Ntonso,” the named defendants. The respondent applied for

[p.76] of [1973] 2 GLR 73 substitution for two stated reasons: first he was the reigning Ntonsohene, and secondly he had 30 years previously sworn the great oath and had publicly asserted that neither the said Boakye Ansah nor any member of his family was a royal of the Ntonso stool, and consequently, they were not entitled to occupy that stool. As his earlier great oath had not been responded to by the appellant’s family, the respondent took advantage of this fresh writ and repeated the great oath, thereby challenging the appellant to respond to and join issue on his claim that Boakye Ansah’s family were not royals of the Ntonso stool.

This open challenge was promptly accepted by the appellant’s family; and on 24 August 1967 one Kwabena Wusu-Ansah, who described himself as odehyee, i.e. royal of the Nyomaase branch of the Dako royal stool family of Ntonso duly responded to the respondent’s great oath and counterclaimed that the Nyomaase family are the true royals of the Ntonso (Oppong Tenteng) stool. The Kumasi Traditional Council which had in the mean time received all relevant documents from both parties set down what is described as the “constitutional case involving both parties” for hearing on 3 July 1969. A fortnight later, it pronounced judgment in favour of the appellant herein, and made a customary award of ¢160 against the respondent.

In the court below the respondent herein succeeded in his application for an order of certiorari to be made directing that the proceedings and judgment in the above-named suit in the Kumasi Traditional Council should be quashed forthwith on their removal into the court. The learned judge upheld each of the three grounds upon which the application was based, viz:

“(a) The Kumasi Traditional Council had no jurisdiction to entertain the matter, it not being a cause or matter affecting chieftaincy as defined in section 68 (a) of the Chieftaincy Act, 1961 (Act 81), as amended;

(b) that even if the matter was a cause or matter affecting chieftaincy, as defined in section 68 (a) of Act 81, as amended, the Kumasi Traditional Council had no jurisdiction to entertain the matter, Ntonso being within Nsuta Traditional Council area and not within Kumasi Traditional Council area, vide section 15 (1) of Act 81 as amended;

(c) the Kumasi Traditional Council’s award of ¢160 against the defendant-appellant herein was ultra vires the Kumasi Traditional Council, being in contravention of section 44 of the Chieftaincy Act, 1961, as amended.”

Being dissatisfied with the ruling of the Kumasi High Court, the appellant herein has appealed to this court and canvassed three grounds of appeal which amount in effect to a traverse of the above-quoted grounds in support of the original application for certiorari. The first such ground was in the following terms:

[p.77] of [1973] 2 GLR 73

“The meaning of ‘cause or matter affecting chieftaincy’ stated in section 68 (a) of the Chieftaincy Act, 1961 (Act 81), as ‘the election or installation of any person as a Chief’ includes disputes relating to the claim of any person to be a royal, or to be installed a chief in the future, and the court erred in holding that it relates only to a claim by a person to occupy a vacant stool.”

It was common ground between the parties to this appeal that the substantial question before the trial by the Kumasi Traditional Council was the subject-matter of the great oath that had been exchanged between the parties, namely, whether the appellant and his Nyomaase family are royals of the Ntonso (Oppong Tenteng) stool or are slaves and therefore ineligible to occupy that stool. The learned judge had himself made a correct appraisal of the nature of the action by ignoring the form of the writ of summons in the inferior tribunal and addressing his mind to what was the real or substantial issue between the parties. In the course of his judgment he rejected—correctly in my view—learned counsel’s contention that the action was a personal one for slander; and held “that the gravamen of the imputation that the respondent is not a royal of the Ntonso stool and consequently not eligible to the stool should it fall vacant.” Relying on the High Court decision of Charles J. in Ampong v. Amankwa [1961] G.L.R. (Pt. II) 736, he held that the present dispute did not fall within the ambit of the statutory definition of “cause or matter affecting chieftaincy”, since the Ntonso stool was not vacant, and since, in his view, the statutory definition connoted the vacancy of a stool and the existence of a dispute about a person’s entitlement to immediate election or installation as a chief.

For the appellant herein, Mr. Totoe contended that the learned judge erred in placing a restrictive meaning on the words of section 68 (a) of Act 81 defining “cause or matter affecting chieftaincy”; and submitted that a claim to be entitled to be considered to occupy a stool in the future falls within the statutory definition; and that a claim to be a royal of a particular stool constitutes a “cause or matter affecting chieftaincy.” Mr. Agyepong, learned counsel for the respondent herein, on the other hand, relied on Ampong v. Amankwa (supra), for the proposition that, although a claim to be a royal of a stool by implication includes a claim that the applicant is eligible for the stool should it become vacant at some future time, yet it is not a claim to be elected or installed as a chief presently, and consequently such a claim to be a royal and therefore qualified to be enstooled in the future does not fall within the statutory definition of “ a cause or matter affecting chieftaincy.” He canvassed in support of the decision in Ampong v. Amankwa (supra) an argument to the effect that a more liberal interpretation of the phrase in section 68 (a) of Act 81 would be productive of countless disputes and would militate against public policy; consequently a restrictive meaning should be preferred and given to the statutory words under consideration.

[p.78] of [1973] 2 GLR 73

Section 68 of Act 81 defines “cause or matter affecting chieftaincy” as:

“… any cause, matter, question or dispute relating to any of the following – (a) the election or installation of any person as a Chief or the claim of any person to be elected or installed as a Chief;

(b) the destoolment or abdication of any Chief;

(c) the right of any person to take part in the election or installation of any person as a Chief or in the destoolment of any Chief;

(d) the recovery or delivery of Stool property in connection with any such election, installation, destoolment or abdication;

(e) the constitutional relations under customary law between Chiefs.”

For our present purpose it is the second alternative meaning contained in paragraph (a) which is relevant, namely, “the election or installation of any person as a chief or the claim of any person to be elected or installed as a Chief.” (The emphasis is mine.)

In my view, the emphasised words must be given their ordinary grammatical meaning. I interpret them to mean the right of any person to be considered as a candidate for the election or installation as a chief. Among the Akans, a non-royal is, as a rule ineligible to be considered by the electoral body for election or installation as a chief. Consequently, a claim by any person to be a royal of a particular stool raises by necessary implication a question or dispute relating to the claimant’s eligibility to be elected or installed as a chief of that stool. Such a claim to be a royal of a particular stool and ipso facto, to be entitled to be considered as a candidate for election or installation as a chief of that stool, is clearly a “cause or matter affecting chieftaincy” within the ambit of section 68 (a) of Act 81: see now section 66 (a) of the Chieftaincy Act, 1971 (Act 370). It is so, whether or not there is a vacancy on the stool in question. The emphasised words have a static quality about them; and their meaning cannot be held to vary, like the chameleon’s colour, with the prevailing circumstances of a particular stool. To hold otherwise, as did the High Court in Ampong v. Amankwa (supra) and the court below, would lead to the logical conclusion that if one claims to be elected or installed as a chief to a vacant stool, then it is a “cause or matter affecting chieftaincy”; but if one claims to be elected or installed as a chief to a stool in the future (i.e. while the stool is occupied), then it is not: I am sure the legislature did not intend such a result.

For example, under section 68 (c) of Act 81, a question or dispute about “the right of any person to take part . . . in the destoolment of any Chief” is “a cause or matter affecting Chieftaincy.” To destool is to remove a reigning chief. Clearly then, the statutory definition of

[p.79] of [1973] 2 GLR 73 a cause or matter affecting chieftaincy, includes disputes or questions for the determination of persons qualified under customary law and usage to participate in the destoolment of a reigning chief. It is my considered view that a “cause or matter affecting chieftaincy” can exist where, for example, under paragraph (c) of section 68 the stool is not vacant but a dispute has arisen as to the eligibility of any person to take part in the destoolment of the reigning chief.

With respect, the High Court decision in Ampong v. Amankwa (supra) was wrong, as it placed an unnecessarily restrictive and imprecise interpretation on the statutory phrase under consideration. The learned High Court judge, Charles J., having correctly observed in that case at p. 740 that “a person’s claim to be a royal by implication includes a claim to be elected or installed as chief on some future occasion if certain events occur,” fell into error in holding that the statutory definition envisaged a claim instanter, and not a claim in futuro. Likewise, in the court below the learned judge fell into error by holding that “a claim to be elected or installed a chief contemplates a pronouncement as to the person for the occupancy of a vacant stool,” and by adopting the restrictive definition of the statutory words laid down in the case of Ampong v. Amankwa (supra).

In my view, the pertinent words of section 68 (a) of Act 81, i.e. “the claim of any person to be elected or installed as a Chief” neither import in themselves the notion of a vacant stool nor envisage the making of a claim instanter. Provided a cause or matter or question or dispute relating to the claim of any person to be elected or installed as a chief is raised, it makes no difference, quoad the statutory definition, whether the claim is made presently to a vacant stool or in futuro (i.e. during the occupancy of the stool). In either case a “cause or matter affecting chieftaincy” is raised within the meaning and contemplation of section 68 (a), of Act 81.

I am not impressed by counsel for the respondent’s further argument based on public policy, and his fear that a reversal of the decision in Ampong v. Amankwa would be productive of endless litigation. Questions or disputes about the claim of a person to be a royal of a particular stool and thereby to be eligible to be elected or installed as a chief affect the personal status, not only of the claimant, but also of all persons standing in relation or privies in blood to him. For example, in the present litigation, an adjudication on the merits by the final tribunal of competent jurisdiction would settle once and for all the “royal status” of the one or other of the two rival families of the Ntonso (Oppong Tenteng) stool. Such a final judgment on the merits would create an estoppel per rem judicatam either in favour of the successful parties and their privies or against the losers and their privies. Additionally, such a final adjudication on personal status would also create an estoppel in rem conclusive against all the world. As far as the Ntonso (Oppong Tenteng) stool is concerned, there is no danger of inumerable suits by many individuals for the determination of their “royal” personal

[p.80] of [1973] 2 GLR 73 status. On the contrary, the pleadings reveal the prospect of litigation between only two competing houses, namely, the Nyomaase (appellant’s) and Atoaase (respondent’s); and final judgment on the merits would settle forever the “royal” or “non-royal” status of, not only the named adversaries, but also their privies in blood. This would be in consonance with the public policy concern for an end to unnecessary litigation.

On another view of the matter, it would not be in the public interest to confine litigation about the “royal” status of claimants to only an interregnum, i.e. when the stool is vacant. There would be clearly the possibility of protracted litigation between rival “royal” houses, which could unduly delay the election and installation of a new chief. Such a trend could possibly create chaos and disorders in the affected traditional area.

Be that as it may, I have not been influenced by public policy considerations in arriving at my interpretation of the material words in section 68 (a) of Act 81. As I have already stressed, the meaning I have placed on the statutory phrase (viz. the right of any person to be considered as a candidate for election or installation as a chief, or his eligibility to be elected or installed as a chief) is the natural, ordinary and grammatical one. I am not impressed by the argument to the contrary that the claim only arises during a vacancy on the stool. There is no justification for the importation of the phrase “vacant stool” into the statutory definition of “cause or matter affecting chieftaincy.” In the result, I hold that the subject-matter of the great oath exchanged between the parties herein is a “cause or matter affecting chieftaincy” within section 68 (a) of Act 81, and that the learned judge erred in holding otherwise.

The next question which falls for determination in this appeal is whether the Kumasi Traditional Council was seised with jurisdiction to hear this cause or matter affecting chieftaincy. In the court below, the learned judge ruled that the Nsuta Traditional Council, and not the Kumasi Traditional Council, was the competent tribunal with jurisdiction over the matter, in view of section 15 (1) of Act 81, which enacts that: “A Traditional Council shall have jurisdiction to hear and determine any cause or matter affecting chieftaincy which arises within its area, not being one to which the Asantehene or a Paramount Chief is a party.” (The emphasis is mine.) It was common ground between the parties that the Ntonso stool is a sub-stool of Nsuta; and Nsuta constitutes a separate traditional area and council: see sections 11, 12, 14 and Schedule to Act 81. It is also conceded that neither the Asantehene nor a paramount chief is a party to the suit herein. The jurisdiction conferred on a traditional council to entertain a “cause or matter affecting chieftaincy” under section 15 (1) of Act 81 is territorial or local; it is the traditional council of the place where the cause or matter affecting chieftaincy arose which is seised with jurisdiction.

In this appeal, Mr. Totoe, counsel for the appellant conceded that jurisdiction under section 15 (1) of Act 81 is territorial; but argued a

[p.81] of [1973] 2 GLR 73 ground of appeal to the effect that, “since the dispute between the parties was initiated by the swearing of the great oath of Ashanti on the appellant by the respondent,” and “since section 50 (1) of Act 81 confers jurisdiction on only the Kumasi Traditional Council to hear such a case, the court below erred in holding the contrary.”

In the first place it is incorrect to maintain that section 50 (1) of Act 81 creates additional jurisdiction, that is jurisdiction additional to the territorial jurisdiction created by section 15 (1). Section 15 (2) of Act 81 enacts that the mode of exercising jurisdiction under section 15 (1) shall be in accordance with the provisions of Part V of the Act. Section 50 (1)-(3) which are part and parcel of Part V of the Act provide as follows:

“50. (1) Any person swearing a lawful oath recognised by customary law upon or against any person in a cause or matter affecting chieftaincy shall forthwith report the same to a Chief or a Traditional Council having jurisdiction over the oath or the matter in dispute and any such report shall be deemed to institute a cause to determine the matter in dispute.

(2) Any person upon or against whom such an oath has been sworn, whether he responds to the oath or from religious conviction or other reason refuses or fails to respond to the oath, shall report or surrender himself to the Chief or the Traditional Council having jurisdiction over the oath or the matter in dispute.

(3) Unless the person upon or against whom the oath has been sworn enters an appearance in accordance with the preceding subsection, the Traditional Council may require the attendance of that person and thereafter shall proceed to hear and determine the cause.”

Reading the first three subsections of section 50 of Act 81 together, it is clear that they set out the procedure for instituting a cause or matter affecting chieftaincy by the swearing of a lawful oath (e.g. the great oath of Ashanti) before a chief or a traditional council having jurisdiction over the oath or the matter in dispute. They enable such a cause to be instituted by the swearing or exchange of a lawful oath instead of by the normal process of a writ of summons or a written plaint.

On behalf of the appellant, Mr. Totoe submitted that in the case of the swearing or exchange of the great oath of Ashanti, it is only the Asantehene or the Kumasi Traditional Council which has jurisdiction over the oath or matter in dispute; and that the learned judge of the court below erred in ruling that jurisdiction was vested in the Nsuta Traditional Council in this great oath case. Alternatively, Mr. Totoe urged that if the basis of a traditional council’s jurisdiction is solely territorial as provided under section 15 (1), then in the case of the great oath of Ashanti, the locality for jurisdiction purposes is Ashanti as a whole, and the appropriate forum is the Kumasi Traditional Council which is presided over by the Asantehene. Mr. Agyepong, counsel for

[p.82] of [1973] 2 GLR 73 the respondent, canvassed the correctness of the learned judge’s ruling and submitted that the Nsuta Traditional Council had exclusive jurisdiction over the matter since it arose within Nsuta Traditional Area. On the question of which chief has jurisdiction over the great oath of Ashanti, he submitted that all the Amanhene (Paramount Chiefs) of Ashanti have concurrent jurisdiction with the Asantehene. But he could not cite any authority in support of this latter submission.

Capt. R. S. Rattray, the distinguished anthropologist and barrister at-law of Gray’s Inn, London, carried out extensive field research into the histories, constitutions and traditions of the great Amanhene of Ashanti (Asumegya, Bekwai, Juaben, Kokofu, Kumawu, Mampong and Nsuta) and of course the Asantehene. In his monumental work Ashanti Law and Constitution (1969 ed.), we have definite answers to the problem of jurisdiction over great oath cases raised by this appeal. In his analysis of the supreme position, powers and prerogatives of the Asantehene as king of Ashanti, he observes at p. 104 that:

“[E]very subject had a right of appeal to the King’s court; it made the ‘great oath’ of the Kumasi Division supreme; for, although the Amanhene were entitled to hear cases in which it was invoked, the prerogative to impose the sentence was jealously retained by the King. The punishment for its violation was originally death; later, the sentence might, in some cases, be modified by permitting the offender to ‘buy his head’.”

(The emphasis is mine.)

In his chapter on Asumegya he stated at p. 139 that, “the Chief of Asumegya might hear the case. He must, however, at once report the result to the King, who would pass the sentence.” He continued at p. 140, “‘Every Omanhene. . . . was authorized to hear great “oath cases” ‘ . . . The case was decided in the territory of the Chief [i.e. paramount chief] on whose land ‘the oath’ was sworn . . Similarly in the chapter on Bekwai, it is stated at p. 160 that:

“When the Kumasi great ‘oath’ was sworn by subjects of the Bekwai Chief, the case was heard before the Chief and judgement was given by him. A messenger was sent to the King at Kumasi with half the Aseda, [thanksgiving fee]…”

In an illuminating footnote at p. 161, it is disclosed:

“My informant stated that the reason all the Amanhene have the right to hear cases in which the Kumasi great ‘oath’ is involved, is that this ‘oath’ is a National one; it is the Asantefo Ntam [i.e. the oath of all the Ashantis].”

The position was the same in Juaben. At p. 184, it is stated that:

“In the event of the two Juaben subjects swearing the great ‘oath’ of the Asante Hene—

[p.83] of [1973] 2 GLR 73

(a) The case would be heard at Juaben without any special authority from the Asante Hene for doing so.

(b) Judgment might be given.

(c) Sentence might not be passed on the guilty party, but (d) The Asante Hene would be informed of the result of the trial; half of the Aseda would be sent to him, with a report on the case.”

The Amanhene of Kokofu, Kumawu, Mampong and Nsuta exercised similar original jurisdiction over great oath cases arising within their respective states (see pp. 210, 227, 248 and 269).

In his companion work on Religion and Art in Ashanti (1969 ed.) at p. 211 Rattray stated tersely, “all the great Amanhene had the right to hear great oath cases.” The Nsutahene is undoubtedly one of the great Amanhene of Ashanti; as can be seen from Chapter 23 of Rattray’s Ashanti Law and Constitution (supra).

To sum up, then, the uniform customary rule in Ashanti is that, the “great oath” of Ashanti is the Asantefo Ntam (the oath of all the Ashantis); each omanhene has original jurisdiction over great oath cases; and the case is as a rule decided in the first instance in the territory of the paramount chief on whose land the oath was sworn or exchanged; but the Asantehene was customarily entitled to certain fees and to the receipt of the report of the case after the adjudication.

In the premises, the appellant’s contention that the Kumasi Traditional Council has exclusive original jurisdiction over great oath cases (such as the instant case) is without foundation in tradition and customary law. The learned judge was clearly right in holding that the Nsuta Traditional Council is the competent tribunal with territorial jurisdiction over the matter in dispute herein. I would further add that under section 15 (1) of Act 81, jurisdiction in a cause or matter affecting chieftaincy—save in two exceptional cases (i.e. where Asantehene or a paramount chief is a party)—is vested in the traditional council within whose area of jurisdiction the dispute arises. In this case, the dispute arose in the Nsuta Traditional Area (whereof Ntonso is a part); consequently, it is the Nsuta Traditional Council which is seized with jurisdiction to hear the cause or matter. The Kumasi Traditional Council had no jurisdiction to entertain the application. The appeal therefore fails.

In view of the conclusion reached that the trial Kumasi Traditional Council acted without jurisdiction, it is unnecessary to examine in detail the third ground on which the order of certiorari was granted, namely, that the council’s order mulcting the respondent in the sum of ¢160 by way of customary award was bad in law. Even if it had jurisdiction to entertain the matter (which it had not), the council was expressly prohibited by section 44 of Act 81 from imposing a customary award in excess of fifty pounds (i.e. ¢100). The order thus made was ultra vires the council, as being in clear breach of section 44 of Act 81. Mr. Totoe counsel for the appellant honourably conceded the point

[p.84] of [1973] 2 GLR 73 during argument and abandoned a ground of appeal in which he had sought to play down this error apparent on the face of the record. The process of certiorari obviously lies for the removal and quashing of such a manifest error of law apparent on the face of the record as the illegal award complained of here; and the learned judge rightly ordered the erroneous order to be quashed.

I wish at this juncture to comment briefly on substantial pleading and procedural points arising from these proceedings which seem to have escaped the attention of both counsel and the court below. I noticed that the applicant for the order for certiorari to remove the proceedings of the inferior tribunal for the purpose of their being quashed, omitted first, to serve the notice of the motion on the registrar of the inferior court, as he is required to do under Order 59, r. 4 (2) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A); and secondly, to exhibit verified copies of the record of proceedings, judgment and order sought to be quashed, as he was obliged to do under Order 59, r. 7 (1) of L.N. 140A: see also R. v. Newington Licensing Justices [1948] 1 K.B. 681, D.C.

Mr. Agyepong, counsel for the respondent herein, explained that the registrar of the Kumasi Traditional Council was unco-operative and that a written application for the supply of the necessary documents to his client went unheeded; and he drew our attention to correspondence on the matter which was exhibited to the High Court. It may well be that the High Court was satisfied with the explanation offered, and might have waived the necessity for exhibiting the record and order complained of, exercising its discretion in the matter under Order 59, r. 7 (1.). But there is no record of this discretion having been exercised. Admittedly, a fairly comprehensive affidavit in opposition sworn to by Mr. John Darkwa, the senior secretary of the Kumasi Traditional Council, was relied upon by the appellant herein. This affidavit contained the gist of the action and a precis of the proceedings and judgment delivered. It may well be that both parties and the learned judge of the High Court regarded Mr. Darkwa’s affidavit as a sufficient substitute for verified copies of the full proceedings and judgment. However, the practice rules contain express provisions in Order 59, r. 7(1) on the point. The rule provides that:

“In the case of an application for an order of certiorari to remove any proceedings for the purpose of their being quashed, the applicant shall not question the validity of any order, warrant, commitment, conviction, inquisition or record, unless before the hearing of the motion or summons he has lodged a copy thereof verified by affidavit in the Registry, or accounts for his failure to do so to the satisfaction of the Court or Judge hearing the motion or summons.”

(The emphasis is mine.) I take this opportunity of drawing the attention of practitioners to this clearly worded rule and hope that it will be

[p.85] of [1973] 2 GLR 73 duly complied with in the future. As far as the problem created by an obstinate, unco-operative registrar of an inferior tribunal is concerned, the proper antidote is for the applicant to compel the recalcitrant registrar by mandamus to produce the record of proceedings and order in his custody.

But the failure to lodge verified copies of the proceedings and orders sought to be quashed will be fatal to the success of an application for certiorari, unless the court for good cause grants an indulgence to the defaulting applicant.

Under Order 59, r. 4 (2) in all applications for the prerogative orders of mandamus, prohibition or certiorari, which relate to any proceedings in or before a court, and whose “object is either to compel the Court or an officer thereof to do any act in relation to the proceedings or to quash them or any order made therein,” the clerk or registrar of the inferior court is a necessary party. The rule stipulates that he should be duly served with the notice of motion or summons after leave has been granted to apply for an order of certiorari (or mandamus or prohibition as the case may be). This rule is obviously beneficial to the applicant; for if the inferior court’s registrar is at the outset served with the notice of the motion or summons, he thereby becomes aware of the pendency of the proceedings in the supervisory court and he cannot be later heard to plead ignorance thereof. Besides, any order made upon the hearing of the application would be more promptly executed by such officer of the inferior tribunal. I wish to draw learned legal practitioners’ attention to these rules and hope that they will be compared with strictly in future.

In conclusion, for the reasons already given, I would dismiss this appeal from the ruling of the court below dated 28 March 1970, save for the variation already indicated that the court below erred in holdings that the subject-matter of the great oath case was not “a cause or matter affecting chieftaincy,” on the untenable ground that the claim was not made in connection with a vacant stool. While I do hold that the matter was a cause or matter affecting chieftaincy, I nevertheless would dismiss this appeal on the simple ground that the Kumasi Traditional Council lacked jurisdiction under section 15 (1) of Act 81 to entertain the matter which arose in the area of jurisdiction of the Nsuta Traditional Counsel.

JUDGMENT OF APALOO J.A.

I also agree that the appeal fails on the ground that the Nsuta Traditional Council and not the Kumasi Traditional Council was the proper forum designated by law to adjudicate this matter. I therefore base myself on the lack of territorial jurisdiction in the latter council to determine the dispute. I however dissent from the judge’s view that this matter was not cognisable by a traditional council because the stool was occupied, not vacant at the date of the suit and therefore it was not “a cause or matter affecting chieftaincy.” In so holding, the learned judge professedly followed the decision of the High Court in Ampong v. Amankwa [1961] G.L.R. (Pt. II) 736. I think that

[p.86] of [1973] 2 GLR 73 decision is neither borne out by the definitive section of Act 81, s. 68 (a) nor any sound policy reasons. One of the matters specifically designated as a chieftaincy dispute and assigned to the determination of a traditional council is by section 68 (c) of Act 81 “the right of any person to take part in the election or installation of any person as a Chief or in the destoolment of any Chief.”

This definition envisaged a class of persons who have, by custom, certain rights in relation to the election and destoolment of a chief. To determine the right of such a class of persons the vacancy or not of a stool can make little or no difference. True, such class of persons have a contingent right to the stool in the sense that they might legitimately be elected to the stool. But that contingent right does not affect their vested right to be considered as a member of the class entitled “to take part in the election or installation of any person as a Chief.” The right of any member of that class is a vested legal right and is justiciable in legal proceedings. It is that right that the appellant asserted in the proceedings which culminated in this appeal. On an ordinary construction of the statute, such dispute falls plainly within a “cause or matter affecting chieftaincy.” The fact that the statute does not designate such entitled persons as royals is wholly beside the point. I see no warrant for the suggestion that their rights become cognisable by the judicial forum charged with determining it only after they were elected and installed a chief.

It must also be borne in mind that section 68 (a) contemplates two situations, namely first, when there is a dispute after an election and installation has actually taken place; and secondly, when no such installation has occurred but the dispute relates to the claim of any person to be elected or installed. In the first situation, a person can only be installed a chief on a vacant stool and the vacancy or otherwise on a stool on this limb may well be relevant. In the second situation, the right asserted is the bare one of eligibility to be elected and installed. To adjudicate on this question, the vacancy or otherwise on the stool is a wholly irrelevant factor. Yet it is a cause or matter affecting chieftaincy within the ordinary wording and true intendment of the statute. To say therefore that jurisdiction arises only when a royal claims to be actually elected or installed a chief, seems to me, with respect, to confuse two issues which the legislature has taken care to provide for separately by disjunctive phraseology.

I have looked at the Chieftaincy Act, 1961 (Act 81), as a whole and see nothing either in the object or scheme which limits a dispute affecting chieftaincy only to those involving vacant stools. As a pure policy question, that construction runs counter to the true object of the Act because that Act seeks to consign to traditional authorities, justiciable questions which by their background and expertise, they rather than the established courts are better suited to handle and the Courts Acts have consistently denied jurisdiction to the courts including the High Court to entertain suits “in any cause or matter affecting

[p.87] of [1973] 2 GLR 73 hieftaincy.” If the construction in Ampong v. Amankwa (supra) is right, it would mean that there is no forum in our judicial set-up clothed with jurisdiction to determine the instant dispute, which is, whether the appellant was a royal and therefore eligible to be elected and installed on the Ntonso stool, or whether he was one of the persons entitled to take part in the election and installation of a chief on that stool. Such a right as the appellant asserts, is worth its weight in gold but whereas the legislature carefully provides a forum for determining even the most trivial disputes, it is said that no forum exists for agitating the present claim.

I feel no doubt whatsoever that the construction put on a cause or matter affecting chieftaincy” by Charles J. in Ampong v. Amankwa was wrong and I find myself entirely in accord with the view expressed on that judgment by my brother Anin J.A. as well as his general interpretation of a chieftaincy dispute. The decision in Ampong v. Amankwa has stood for twelve years, but its life is wholly undeserved. It ought to be and is hereby overruled. But as I said before, I am satisfied that the Kumasi Traditional Council has no territorial jurisdiction in this matter and accordingly concur that this appeal be dismissed.

JUDGMENT OF SOWAH J.A.

I have had the pleasure of reading the main judgment in this appeal and though I agree that the appeal be dismissed, I regret, I am unable to associate myself with some of the reasons, more particularly those relating to the interpretation of section 68 (a) of the Chieftaincy Act, 1961 (Act 81).

The facts of this matter have been very ably set out in the main judgment; it will therefore be otiose to reiterate them. It does seem rather paradoxical that a provision designed to aid the construction of a section of the Act must itself give rise to difficulties of interpretation and has itself to be interpreted.

Section 15 of the Act 81 reads as follows:

“15. (1) A Traditional Council shall have jurisdiction to hear and determine any cause or matter affecting chieftaincy which arises within its area, not being one to which the Asantehene or a Paramount Chief is a party.

(2) The jurisdiction conferred by this section shall be exercised in accordance with Part V of this Act.”

As an aid to the construction of it, section 68 provides:

“68. In this Act—’Asantehene’ means the occupant of the Golden Stool of Ashanti;

‘cause or matter affecting chieftaincy’ means any cause, matter, question or dispute relating to any of the following— (a) the election or installation of any person as a Chief or the claim of any person to be elected or installed as a Chief;

(b) the destoolment or abdication of any Chief;

[p.88] of [1973] 2 GLR 73

(c) the right of any person to take part in the election or installation of any person as a Chief or in the destoolment of any Chief;

(d) the recovery or delivery of Stool property in connection with any such election, installation, destoolment or abdication;

(e) the constitutional relations under customary law between Chiefs . . .”

(The emphasis is mine.)

The difference of view relates to the meaning of section 68 (a). I do not consider however that this provision can be construed in isolation and divorced from the rest of the Act; that is to say whether or not the words in the paragraph are capable of the broader or more expansive meaning being attributed to them or what has been described as the restrictive meaning, can be ascertained from the whole of the Act.

We must perforce therefore revert to general principles of interpretation, namely, that in the construction of a provision of an Act, it is important to read the Act as a whole and not only to relate each provision with other provisions of the Act but to endeavour to harmonise them having regard to the intent and objects of the Act.

Before I embark on an examination of the provisions it is necessary to give a brief review of the general procedures by which a chief is nominated and installed. The details of these procedures may differ from state to state and may perhaps be more pronounced as between an Akan state and a Ga state but there is a common feature which runs through all of them, namely, until the death of an incumbent chief, no one including even the king-makers or the Gyase can say with absolute certainty who the chief’s successor in office will be. In other words one institution unknown to chieftaincy is that of an heir apparent to the stool.

Thus on the demise, abdication or the destoolment of the incumbent the stool becomes vacant. In many an Akan state, the elders led by the queenmother proceed to consult, consider the merits of various candidates eligible for election (candidates must of course come from the royal house) and finally nominate one for election and installation to the vacant stool. Where peace and concord prevail there will be no difficulty with the ritual of election or installation. More often than not there is disharmony amongst the king-makers or the Gyase and two or more candidates are nominated for election and installation.

If I may be permitted to give an example from more familiar grounds there are in all the divisions in the Ga state and even in the paramountcy, “houses” which are designated “ruling houses”; when the stool is vacant in a division it is from one of the ruling houses in that division that the successor chief is elected and installed. In ordinary circumstances, election of a chief should rotate from one house to the other, followed by the third house if there is a third. It is this system

[p.89] of [1973] 2 GLR 73 of rotation which has been the cause of difficulties in the harmonious election and installation of a chief and has been pregnant with litigation. On a vacancy occurring two or more houses put up a claim to be the nominating and electing house and proceed to nominate and elect their candidate for the stool resulting usually in disputes as to who is the rightful candidate to occupy the stool.

It is in my view one of the principal objects of Act 81, to make provisions for the orderly resolution of such disputes, namely, which of the candidates has properly, in accordance with custom, been elected and installed as chief.

Part I of Act 81 deals with the interesting question, who is a chief and section 1 (1) answers:

“1. (1) A Chief is an individual who— (a) has been nominated, elected and installed as a Chief in accordance with customary law, and (b) is recognized as a chief by the Minister . . .”

Parts II to Part IV, are designed to make provisions for the orderly administration of traditional areas and for the settlement of disputes within those areas. They created a hierarchy of councils; first divisional councils, then the traditional councils and the house of chiefs.

For our purpose Part V appears to be the pertinent provision. It is headed “Proceedings Affecting Chieftaincy.” It provides the venue for disputes affecting chieftaincy. The ambit of its jurisdiction is contained in section 15 which reads as follows:

“15. (1) A Traditional Council shall have jurisdiction to hear and determine any cause or matter affecting chieftaincy which arises within its area, not being one to which the Asantehene or a Paramount Chief is a party.

(2) The jurisdiction conferred by this section shall be exercised in accordance with Part V of this Act.”

An important observation upon a review of the Act is that it concerns itself with matters relating to disputes arising as to who is a chief or an individual’s claim that he has either been elected and installed a chief or that he is the rightful person to be so elected and installed. There is no provision in the Act for the determination of the question who a royal is, except where the royal claims that he has properly been elected and installed a chief.

It is said the words “any cause or matter affecting chieftaincy” should be given their ordinary grammatical meaning; a proposition to which I fully subscribe; but I think the key to the meaning of these words is given by section 1 of the Act already referred to.

In my view section 68 (a) deals with two sets of situations, first where a proper party feels aggrieved with the nominations, election and installation of a chief and challenges the propriety of such election and installation as not being in accordance with the particular custom of the area; or secondly, where the party himself claims that he has

[p.90] of [1973] 2 GLR 73 been properly nominated, elected and installed a chief and that claim is challenged by a third party resulting in a dispute between them which calls for resolution as provided for under the Act. I consider that no party can validly make such a claim when there is an incumbent on the stool: I believe it is not the object of the Act to foster and promote litigation in the one institution in the country which is already and notoriously bedevilled with disputes and litigation.

It follows from the above discussion that I approve of the decision in Ampong v. Amankwa [1961] G.L.R. (Pt. II) 736 and consider also that the learned High Court judge was right in his interpretation of the relevant provision and in adopting the decision in the Ampong case. I will however dismiss the appeal also on the ground that the Kumasi Traditional Council has no jurisdiction within the meaning of the Chieftaincy Act to entertain the claim

DECISION

Judgment of High Court varied.

Appeal dismissed.

S.Y.B.-B.