REPUBLIC vs. SEFWI WIAWSO TRADITIONAL COUNCIL; EX PARTE SOMAA I [1997-98] 1 GLR 921

CASES REFERRED TO

(1) Commissioner of Income Tax v Maalschappij de Fijnhouthandel NV (Fynhout) [1974] 1 GLR 283, CA (full bench).

(2) Republic v Agboka VI; Ex parte Deh III [1954-86] 1 GLR 581, CA.

(3) Republic v High Court Judge Wuaku [1991] 1 WASC 841, SC.

(4) Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] LJR 190, CA. (5) R v Barnsley Mebropolitan1(1)sic Borough Council; Ex pane Hook [1976] 1 WLR 1052; [1976] 3 All ER 452, CA.

(6) Republic v Bekwai District Magistrate Grade I; Ex parte Gyamfi [1981] GLR 388. [p.924] of [1997-98] 1 GLR 921 (7) R v Secretary of State for the Home Department; Ex parte Rukshanda Begum [1990] COD 107, CA.

(8) Smalley v Robey & Co [1962] 1 QB 577; [1961] 2 WLR 245; [1962] 1 All ER 133, CA.

NATURE OF PROCEEDINGS

APPLICATION by the applicant, the queenmother of Boinzan for an order of certiorari to quash the proceedings and decision of the Sefwi Wiawso Traditional Council recognising Nana Sae Kwabena as the chief of Boinzan when her action challenging his enstoolment was pending before the judicial committee of the Sefwi Wiawso Traditional Council. The facts are sufficiently set out in the ruling.

COUNSEL

Kwasi Blay for the applicant.

Gertrude Aikins, Principal State Attorney, for Hayfron-Benjamin, Chief State Attorney, for the respondent.

JUDGMENT OF ASIAMAH J.

Consequent upon the ruling of this court on 21 May 1997 granting leave under Order 59, r 2(1) of the High Court (Civil Procedure) Rules, 1954 (LN 140A), the applicant filed her present motion on notice on 2 June 1997 praying for an order of certiorari to quash “the proceedings and decision of the Sefwi Wiawso Traditional Council dated 14 February 1997” on the grounds that “the traditional council had no jurisdiction to sit on the matter”and further that “the said proceedings and decision sinned against section 16(3) of the Chieftaincy Act, 1971 (Act 370).”

Service of the applicant’s motion, an affidavit in support, a statement under Order 59, r 1(2) of LN 140A and other documents were served on the Sefwi Wiawso Traditional Council through its registrar on 3 June 1997. The respondent responded positively to the applicant’s motion and filed a general affidavit in opposition on 11 July 1997. The motion was argued in part on 24 July 1997 and concluded an2(2)sic 30 July 1997.

The applicant’s case is that by the usurpation of her customary power and right to nominate a candidate for the vacant stool of Sefwi Boinzan by the Omanhene of the Sefwi Wiawso Traditional Area in enstooling a chief to occupy the Boinzan stool of which she is the queenmother, she instituted an action against

[p.925] of [1997-98] 1 GLR 921 the said enstoolment and whilst the action is pending before the judicial committee of the Sefwi Wiawso Traditional Council, the traditional council met and took a decision to recognise the disputed enstooled chief as the accredited chief of Sefwi Boinzan. The said decision and recognition are contained in the council’s letter dated 14 February 1997, exhibited as E in this application. It is by this recognition that the de facto chief is enabled presumptuously to sit and participate in the deliberations of the Sefwi Wiawso Traditional Council in his assumed status as chief of Boinzan and krontihene of the Sefwi Wiawso Traditional Council.

The respondent’s reaction to the application is simply that exhibit E only stated an existing fact and the respondent council had not taken any decision which is amenable to judicial review. Counsel for the respondent remonstrated thus:

“Exhibit E is only a report; it is only an administrative action and does not fall foul of any of the grounds which would call for the order of certiorari. A critical look at exhibits 1 and E will establish that exhibit 1 was in connection with chieftaincy and exhibit E which is a reply thereto only states a fact in existence at the time. I say so, because at the time the two exhibits were written there was in existence a properly and legally enstooled chief for Sefwi Boinzan performing his functions as such for over a year. Exhibit 1 was written on the assumption that there was no chief at Sefwi Boinzan at the time or it purported to create that impression. Our submission is that all that exhibit E did was to correct the erroneous impression. It did not create or extinguish any rights whatsoever.”

The two exhibits, 1 and E, were written by the Sefwi Wiawso District Assembly and the Sefwi Wiawso Traditional Council, respectively. For the purpose of elucidation I would reproduce relevant portions of these two documents. Exhibit 1 states:

“DECISIONS TAKEN AT DISEC’S MEETING WITH THE QUEENMOTHER AND ABUSUAPANYIN OF SEFWI BOINZAN AND THEIR SUPPORTERS

[p.926] of [1997-98] 1 GLR 921

We wish to take the liberty to recap the major decisions which were taken at the above meeting held on Monday, 2 September 1996 at Sefwi Wiawso District Assembly Hall in relation to Sefwi Boinzan Stool Affairs:

(i) ‘The REGSEC directive to the effect that the persons should desist from comporting themselves as chiefs of Boinzan still holds and as such whoever flouts this directive will be drastically dealt with.

The traditional council is to assist to ensure strict compliance with the said directive.’

(ii) ‘…the traditional council is to be prevailed upon to ensure that a joint inventory is taken of the said stool regalia and proper care taken of them …”

And exhibit E reads as follows:

“BOINZAN AFFAIRS With reference to your letter . . . of 3 September 1996, I write to inform you that at a meeting of some of the chiefs of the traditional area, it was decided that owing to the fact that Nana Sae Kwabena was enstooled as the chief of Boinzan and krontihene of the Sefwi Wiawso Traditional Area, and did accordingly take his oath of allegiance to the Omanhene of the Sefwi Wiawso Traditional Area, the traditional council do recognise him as such under the stool name of Nana Yaw Ntaadu III.”

Exhibit 1 was signed by the district cordinating officer on behalf of the District Chief Executive of the Sefwi Wiawso District Assembly and a copy of it was served on the Sefwi Wiawso Traditional Council. And exhibit E was signed by the Acting President of the Sefwi Wiawso Traditional Council; it was addressed to the District Chief Executive of Sefwi Wiawso. The acronyms “DISEC” and “REGSEC” appearing in exhibit 1 stand for the District Security Council and the Regional Security Council, respectively. The former is chaired by the district chief executive and the latter, the regional minister.

It is easily discernible from exhibit 1 which was written on 3 September 1996 that there was no chief at Sefwi Boinzan then.

[p.927] of [1997-98] 1 GLR 921

And but for exhibit E, Nana Sae Kwabena would not have held himself out as chief of Boinzan by the stool name of Nana Yaw Ntaadu III in view of the existence of paragraph (i) of exhibit 1. Furthermore, it is this same traditional council which had empanelled a judicial committee in accordance with section 28(2) of the Chieftaincy Act, 1971 (Act 370) to hear and determine the enstoolment dispute between the queenmother of Boinzan and the opposing faction. But before the judicial committee so appointed by the respondent in this action had completed its work, the respondent came with exhibit E in flagrant disregard of exhibit 1 and the work it had assigned to its judicial committee.

Counsel for the respondent wants to believe that exhibit E forms part of the administrative functions of the traditional council and such an administrative action cannot be the subject for a judicial review. In support of her view, counsel referred to the case of Commissioner of Income Tax v Maatschappij de Finjnhouthandel N V (Fynhout) [1974] 1 GLR 283 at 300, CA (full bench) where the full bench of the Court of Appeal per Azu Crabbe CJ said:

“In my judgment, had the Court of Appeal put the proper question to itself, it would, in the absence of any objection, have come inevitably to the conclusion that the commissioner had only acted in his administrative capacity, and that certiorari would not lie to challenge his provisional assessment.”

The court’s attention was also drawn to the case of Republic v Agboka VI: Ex parte Deh III [1984-86] 1 GLR 581, which held per Francois JSC at 586, CA thus: “It is also well established that certiorari does not lie in respect of purely administrative matters.”

Apparent in these two cases is that administrative actions cannot be amenable to the supervisory jurisdiction of the High Court even if the administrative action complained of works injustice and also violates the common law right of the victim of the administrative act. But for a cognate authority in the Supreme Court case of the Republic v High Court Judge Wuaku 1 WASC 841, SC this court would have been disconcertingly

[p.928] of [1997-98] 1 GLR 921 obliged to follow the Commissioner of Income Tax case (supra) as a binding authority. In this case, it was held that certiorari would lie to quash a decision that is patently unreasonable. The Supreme Court has adopted what has come to be known as the Wednesbury Principle resulting from the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, CA. By the Wednesbury Principle:

“decisions of persons or bodies which perform public duties or functions will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no such person or body properly directing itself on the relevant law and acting reasonably could have reached that decision.”

The modern trend of the direction of the law, therefore, is that not all administrative actions are outside the operational ambit of judicial review. Where there is a common law right, for example the right of work or the right to nominate a candidate to a vacant stool by a stool queenmother, any administrative action taken to deprive a person of that right would amount to a contemptuous usurpation of the common law right and such an action is amenable to the jurisdiction of the High Court. Lord Denning MR describing the right of a stall holder as a common law right in the case of R v Barnsley Metropolitan Borough Council; Ex parte Hook [19761] 1 WLR 1052 at 1057, CA in an action for an order of certiorari to set aside the market manager’s purported administrative action of terminating the stallholder’s market licence said:

“It is not be taken away except for a just cause and then only in accordance with the provisions of natural justice. I do not mind whether the market-holder is exercising a judicial or an administrative function. A stallholder counts on this right in order to enable him to earn his living. It is not to be taken away except for just cause and in accordance with natural justice.”

In a nutshell, the High Court has power to review the exercise of an administrative power where the action so taken amounts to

[p.929] of [1997-98] 1 GLR 921 an abuse of power, for example, where the action was taken in bad faith or where there is a mistake in construing the limits of the power or where there is a procedural irregularity or unreasonableness verging on an absurdity.

The next point that was raised by the respondent’s counsel was that “the applicant failed to comply with the statutory requirement antecedent to the relief she is claiming” in that the motion for leave under Order 59, r 2 of LN 140A was not accompanied by a statement. Order 59, r 2 of LN 140A reads as follows:

“(2) An application for such leave … shall be made ex parte … and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought and by affidavits verifying the facts relied on .”

Counsel seriously contended that “without the ‘statement’ the application was baseless in the first place. Consequently, the leave granted by the honourable court on 21 May 1997 was baseless and a nullity.” Counsel relied on the High Court case of Republic v Bekwai District Magistrate Grade I; Ex parte Gyamfi [1981] GLR3(3)sic 388. In that case, the application for leave brought under Order 59, rr 1 and 2 of LN 140A was without a statement. This omission was realised by counsel for the applicant and on the hearing of the motion on notice the applicant’s counsel informed the court that he had filed the statement that morning to regularise the application. The court (Quashie-Sam J) viewed this approach with disfavour and expressed its judgment on the failure of the applicant to accompany his ex parte motion with a statement in compliance with Order 59, r 2 of LN 140A at 392 as follows:

“ … the fundamental nature of the statutory statement in an application for what is called a prerogative writ cannot be over-emphasised. In my view the rules are so constructed that the statement goes to the very root of such an application. It is therefore my opinion that in the absence of the statutory statement as a necessary requisite, the application for leave ab initio was improperly before the court. It follows therefore that the order made on 14

[p.930] of [1997-98] 1 GLR 921

February 1980 granting leave was made per incuriam. That situation cannot be regularised or rectified by the belated subsequent filing of the requisite statutory statement, nor can the imperfection be cured by the application of Order 70 of the Rules.”

The slip-up that befell the applicant in the afore-mentioned case seems to be the bane of the applicant in our present case. No statement was filed by the applicant with the ex parte application yet the application for leave was granted by this very court. In the Ex parte Gyamfi case (supra) the judgment did not state the contents of the supporting affidavit. In our present case, the information that was required to be given in the statement to accompany the ex parte motion was fully stated in the affidavit that was filed with the application. Order 59, r 2 (2) of LN 140A which was not fully complied with in form by the application states:

“(2) An application for such leave … shall be made ex parte to the court . . . and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on … “

And the affidavit accompanying the ex parte motion filed on 12 May 1997 contains “the name and description of the applicant the relief sought and the grounds on which it is sought” in the prelude and paragraphs (1) to (6) thereof. It must be stated and emphasised here that the purpose of the statement and the affidavit in Order 59, r 2(2) of LN 140A is to give enough information at this stage for the court or judge to decide on the necessity of the application so as to eliminate frivolous, vexatious or hopeless applications for judicial review and to ensure that an applicant is only allowed to proceed to a substantive hearing if the court is satisfied that there is a case fit for further investigation at a full inter partes hearing: see the 1995 edition of the White Book, Vol 1, pp 852-853 and R v Secretary of State for the Home Department: Ex parte Rakshanda Begum [1990] COD 107, CA. It is for the court to exercise its discretion here and the rules have

[p.931] of [1997-98] 1 GLR 921 set the guidelines for the court. And so where the only defect of the application is in form but in spirit the necessary information that the court needs to know to enable it to properly exercise its judicial discretion is present in some other form in the application, say in the affidavit, the court would be justified in granting the ex parte application.

In the English case of Smalley v Robey & Co [1962] 2 WLR 245, CA, service of an incomplete copy of a writ but which was accompanied with another document which substantially remedied the omissions was considered to be merely irregular and did not make the writ bad. Justice demands that a mere irregularity should not stand in the way of the courts “to prevent injustice being caused to one party by mindless adherence to technicalities in the rules of procedure”: see The White Book (1995 ed), Vol 1, p 10.

The omission of the “statement” in the ex parte application in our present case was a mere irregularity, for the ex parte application showed in the affidavit filed that there is a point fit for further investigation on a full inter partes basis. Order 70, r 7 of LN 140A which states: “1. Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the court or a judge shall so direct…” gives the court power to cure irregularities consisting of failures to comply with the rules—failures which are not of a more fundamental kind. This irregularity was ameliorated in the substantive motion because the notice of the motion included the statement in faithful compliance with Order 59, r 5(1) of LN 140A.

It is worth noting at this stage that the Court of Appeal in the Agboka case (supra) at 586 went further and said that:

“One must not lose sight of the fact that a prayer for the grant of certiorari must be considered from a very broad perspective. Being a discretionary power if must be shown that there is real justification for its grant.”

There is indeed “real justification” for the grant of certiorari if a public body like a traditional council in its administrative function performs unreasonably. The respondent not only acted unreason

[p.932] of [1997-98] 1 GLR 921 ably but also presumptuously when being fully aware that the judicial committee it had itself appointed to go into the Boinzan chieftaincy dispute had not yet completed its inquiry wrote exhibit E admitting Nana Sae Kwabena into the traditional council. The case of Republic v High Court Judge Wuaku (supra) frowns upon such conduct and whether the public body is exercising judicial or quasi-judicial or administrative function, certiorari would issue to quash an unreasonable act. This case is a Supreme Court decision and takes precedence over the Agboka case (supra) which is a Court of Appeal decision.

On the question of taking “fresh step”, by filing an affidavit in opposition in the ordinary way without availing itself of Order 70, r 3 of LN 140A, the respondent waived whatever irregularity that existed in the ex parte application and this act by itself amounted to taking fresh step by the respondent. A fortiori Order 70, r 3 of LN 140A requires that a party seeking to set aside proceedings for irregularity must come by summons or notice. The rule reads as follows: “3. Where an application is made to set aside proceedings for irregularity, the several objections intended to be insisted upon shall be stated in the summons or notice of motion”

The non-compliance with Order 70, r 3 of LN 140A is distinguishable from the omission of a statement in the ex parte application for the grant of leave to apply for judicial review. In the earlier situation there was an application as required by the rules. And whatever was left undone in that application was remedied by the affidavit that accompanied the application. But in the respondent’s purported objection there was no application at all. Neither in form nor in spirit did the objection comply with the rules. The objection has no form or base to exist and therefore it cannot have an effectual consequence.

In my judgment, the respondent acted unreasonably, presumptuously and or contemptuously in its alleged administrative action of recognising Nana Sae Kwabena as chief of Boinzan and or admitting him into the Sefwi Wiawso Traditional Council while the objection to his alleged enstoolment to occupy the vacant Boinzan stool is still sub judice at the judicial committee of the Sefwi Wiawso Traditional Council. The application for judicial review is well grounded both in equity and common sense and it

[p.933] of [1997-98] 1 GLR 921 is granted. The letter written on 14 February 1997 exhibit E giving such recognition is declared null and void and it is hereby quashed.

I award ¢600,000 costs against the respondent.

DECISION Application granted.

EEA.

Endnotes

1 (Popup – Footnote) 1 same in original.

2 (Popup – Footnote) 2 same in original.

3 (Popup – Footnote) 3 same in original.