REPUBLIC vs. SHAI TRADITIONAL COUNCIL; EX PARTE KORDA II [2001-2002] 1 GLR 299

CASES REFERRED TO

(1) Republic v Tekperbiawe Divisional Council Ex parte Nene

[p.301] of [2001-2002] 1 GLR 299

Korle II [1972] 1 GLR 199.

(2) Republic v Boateng; Ex parte Adu-Gyamfi II [1972] 1 GLR 317.

(3) Republic v Awutu Senya Traditional Council; Ex parte Nenyi Amu II [1981] GLR 368.

(4) Republic v Court of Appeal, Accra; Ex parte Sidi [1987-88] 2 GLR 170, SC.

(5) Republic v High Court, Kumasi; Ex parte Abubakari (No 3) [2000] SCGLR 45.

(6) Republic v Committee of Enquiry into Nungua Traditional Affairs; Ex parte Odai IV [1996-97] SCGLR 401.

(7) Republic v High Court, Accra; Ex parte Ploetner [1984-86] 2 GLR 107, SC.

APPLICATION to the High Court, Accra for an order of certiorari to quash the decision of a standing committee of the Shai Traditional Council. The facts are sufficiently set out in the judgment.

VA Ocansey for the applicant.

A Amegatcher for the respondent.

Appau J. This is an application for an order of certiorari initiated by the applicant, Nene Aklersi Korda II, praying the court to bring into this court the decision of the Shai Traditional Council dated 10 November 1999 expelling the applicant from the council for the purpose of quashing same.

The application was supported by an affidavit dated and filed on 11 August 2000, plus a statement stating the grounds of the application. The grounds on which the relief is being sought indicate that the decision of the standing committee of the traditional council was contrary to the rules of natural justice as well as statutory requirements.

In the supporting affidavit, the applicant stated that he was appointed as a divisional chief of the Takakenya Manya-Se in the Shai Traditional Area on 23 September 1982 and had been performing all traditional functions as such including statutory functions as a member of the respondent-council. That on 11 November 1999, a standing committee of the respondent-council purported to expel him from the activities of the council for instigating a riot at a

[p.302] of [2001-2002] 1 GLR 299 durbar during the Ngmayem festival. That the complainant was the acting president who also sat on the standing committee as its chairman. That though he denied the charges levelled against him, the standing committee that was tasked to investigate the matter removed him from the council, thus preventing him from performing his customary and statutory functions as a member of the council. That the said decision of the standing committee was contrary to natural justice and also constituted a breach of the statutory requirements for the determination of the charges preferred against him. The applicant exhibited a certified true copy of the proceedings of the standing committee of the council which contained the decision of the committee. From the record of proceedings, the applicant was rather suspended but not expelled as he indicated in his application.

The respondent filed an affidavit in opposition to the application on 11 October 2000 through the senior registrar of the council. In the said affidavit, the respondent said it did suspend, but did not expel, the applicant from the council for his failure to obey an order of the standing committee of the council, requesting him to pacify the respondent-council with a sheep and four bottles of schnapps. It was also contended in the affidavit in opposition that despite his suspension from the council, the applicant could still perform his traditional or customary functions relating to his office as an “asafoatse”, except that he would not have the privilege of sitting with members of the respondent-council during meetings of the council. The affidavit also indicated that instead of refusing to obey the orders of the standing committee of the council, the applicant should have asked for pardon or for reduction of the fine imposed on him.

The respondent therefore prayed for the dismissal of the application.

In his argument in support of the application, counsel for the applicant said the decision of the respondent-council was wrong in law and contrary to the rules of natural justice. According to him, the procedure adopted in removing him from the council was in breach of statutory requirements. He referred to the case of Republic v Tekperbiawe Divisional Council; Ex parte Nene Korle II [1972] 1 GLR 199.

In his view, the complaint against the applicant should have been dealt with by the judicial committee of the council and not the

[p.303] of [2001-2002] 1 GLR 299 standing committee. He referred to section 15 of the Chieftaincy Act, 1971 (Act 370) and then the Chieftaincy (Proceedings and Functions) (Traditional Councils) Regulations, 1972 (LI 798). He again contended that the committee that took the decision to remove the applicant from the council was composed of by the same people who complained against him, particularly the acting president of the council who also sat on the committee as chairman, an act, which to him, was contrary to the rules of natural justice. Other cases and authorities referred to by counsel for the applicant were: Republic v Boateng; Ex parte Adu-Gyamfi II [1972] 1 GLR 317; Republic v Awutu Senya Traditional Council; Ex parte Nenyi Amu II [1981] GLR 368; Republic v Court of Appeal, Accra; Ex parte Sidi [1987-88] 2 GLR 170 at 188, SC; Act 370 and the Constitution, 1992, art 141.

In reply to the applicant’s counsel’s submissions, counsel for the respondent contended that the applicant was not a member of the traditional council as of right but on sufferance and therefore his continuous membership on the council was subject to good behaviour. Counsel said, as an “asafoatse”, the applicant is not a chief, properly so-called. He referred to sections 49 and 66 of Act 370 on the definition of a “chief” and a “cause or matter affecting chieftaincy” and submitted that what the standing committee dealt with was not a cause or matter affecting chieftaincy so it was not a matter for the judicial committee of the council. Counsel referred to the Tekperbiawe case (supra) and other cases cited by counsel for the applicant in his arguments and contended that those cases had no bearing at all to the present one. He therefore called for the dismissal of the application.

What this court has to find out in determining this application are the following:

(i) whether or not the applicant is a chief in the proper sense of the word;

(ii) whether or not it is the judicial committee and not a standing committee that should have gone into the complaint against the applicant;

(iii) whether or not the decision of the council was contrary to the rules of natural justice; and

(iv) whether or not certiorari would lie to quash the decision of the standing committee.

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I will deal with the above issues one after the other beginning from the first.

The definition of a “chief” as provided under article 277 of the Constitution, 1992 which is the supreme law of the land is as follows:

“277. . . . ‘chief’ means a person, who, hailing from the appropriate family and lineage, has been validly nominated, elected or selected and enstooled, enskinned or installed as a chief or queenmother in accordance with the relevant customary law and usage.”

There are several categories of chiefs recognised under our law as provided under section 49 of Act 370. The different categories in hierarchical order are:

(a) the Asantehene and paramount chiefs;

(b) divisional chiefs;

(c) sub-divisional chiefs;

(d) adikrofo; and

(e) such other chiefs not falling within any of the preceding categories as are recognised by the regional house of chiefs.

From the records before me, the applicant who is described as Nene Aklersi Korda II is a recognised chief within the Shai Traditional Area; that is why he goes with the title Nene Aklersi Korda II. As a divisional chief of the Takakenya Manya-Se of the Shai Traditional Area as he described himself in the affidavit in support of the application, his position falls squarely within the category of chiefs called sub-divisional chiefs as provided under section 49 of Act 370. Even in the certified true copy of the proceedings which the applicant wants to set aside or have quashed, the standing committee described the applicant as a chief and member of the traditional council. This is what the committee said at p 3, para 5 of the record of proceedings:

“By committee: When you were leaving the durbar grounds as a chief and a member of the Shai Traditional Council, did you inform any of the members or Nene Apperkon, the chairman of the Ngmayem Planning Committee about the situation and why you have decided to leave?”

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In fact, throughout the deliberations of the standing committee, the applicant was described as a chief and he attended the committee’s sittings with his elders. This means that his position was derived from customary law and usage as it was his family which nominated, elected and enstooled or installed him as such. See also the review decision of the Supreme Court in the case of Republic v High Court, Kumasi; Ex parte Abubakari (No 3) [2000] SCGLR 45 at 46, holding (2). The fact that the title “asafoatse” is used to describe him is not a derogation of his position as a chief within the Shai Traditional Area as that title is the one used for some sub-divisional chiefs in some traditional areas. The claim by counsel for the respondent that the applicant is not a chief properly so-called and that his membership on the council is not as of right but on sufferance subject to good behaviour is therefore untenable as same is not supported by any evidence on the record.

On the second issue, the contention of counsel for the applicant was that the matter leading to the applicant’s suspension should have been determined by the judicial committee of the Shai Traditional Council and not by a standing committee. Counsel made reference to LI 798 and other decided cases including Republic v Tekperbiawe Divisional Council; Ex parte Nene Korle II (supra) in support of his contention.

This view was opposed by counsel for the respondent who said what transpired before the standing committee was not a cause or matter affecting chieftaincy so it was not a matter that falls under or within the ambit of a judicial committee.

I fully share the view of counsel for the respondent as against that of the applicant that the matter that was determined by the standing committee of the Shai Traditional Council was not a cause or matter affecting chieftaincy as provided under section 66 of Act 370 since it did not border on the election, enstoolment, installation or destoolment of the applicant as a chief or on anything affecting his position as such. What the standing committee of the Shai Traditional Council delved into was an alleged misconduct of the applicant, as a member of the council during the celebration of their annual festival, and had nothing to do with the applicant’s position as an “asafoatse” or a divisional chief, properly elected and enstooled or installed by his family. It was therefore not a matter that should have been determined by the judicial committee of the

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Shai Traditional Council. The court therefore does not find anything wrong with the standing committee of the council investigating an alleged misconduct of one of its members which does not affect his traditional position as a chief.

On the third issue, counsel for the applicant maintained that the decision of the traditional council was contrary to the rules of natural justice as the applicant was not given a proper hearing before a judicial committee and again, it were the same people who complained against him who sat on the matter to determine his fate. Though the rules of natural justice as known in legal language or circles have no precise boundaries, they have generally been subsumed under two main headings, viz (1) The audi alteram partem rule; and (2) The nemo judex in re sua or in causa sua rule. What these rules simply mean is that decision-makers must act fairly in good faith and without bias and must afford each party the opportunity to adequately state his case. To avoid bias and ensure fairness, a person is not supposed to sit as a judge in a matter in which he has an interest. In the instant case, the claim by the applicant that he was not given adequate hearing is not borne by the facts on the record. The certified true copy of the proceedings attached to this application by the applicant himself shows clearly that he was adequately represented during the deliberations as he as made to explain his case in the presence of his own family elders.

With regard to the second leg of the applicant’s claim that the chairman of the standing committee was the complainant in the case and that his inclusion on the standing committee was a breach of natural justice, I do not, with the greatest respect to counsel for the applicant, share this view. In my opinion, the paramount chief and acting president of the Shai Traditional Council, Nene Magai Kassah VII, who presided over the standing committee that delved into the matter could not be described as the complainant in the case. In fact what happened on the day in question (ie during the festival), which led to the formation of the standing committee occurred in the full glare of all members of the traditional council and other invitees present. It is not a question of something happening between the president of the council and the applicant which the president later reported to the council. What the acting president of the council did was to form a committee to investigate the circumstances leading to the riots which nearly marred the fes-

[p.307] of [2001-2002] 1 GLR 299 tival which was attended by government dignitaries.

Though it would have been appropriate or desirable if the acting president of the council who directed that the causes of the riots be investigated, had not himself sat on the committee as a member-chairman, no miscarriage of justice was occasioned by his inclusion. In fact, the applicant has not demonstrated in any way to the court that the committee was biased against him because of the inclusion of the president of the council, for which it would be said that the rules of natural justice had been breached. Whilst the court shares the view of counsel for the applicant that it was undesirable for the president of the council to have sat on the committee, the court does not share his conclusion that the inclusion of the president occasioned a miscarriage of justice or did breach the natural justice rule of “nemo judex in causa sua.”

On the fourth and last issue as to whether or not certiorari would lie in this case, the authorities are legion that certiorari is a prerogative order sought by way of an application for judicial review to the High Court challenging the legality of decisions taken by inferior courts, tribunals and other bodies carrying out functions of a judicial nature though not necessarily judicial bodies, on the grounds that the decision was ultra vires, that it had been taken in breach of the rules of natural justice or that there was an error apparent on the face of the record. See Osborn’s Concise Law Dictionary (8th ed), edited by Leslie Rutherford & Sheila Bone at p 64; Republic v Committee of Enquiry into Nungua Traditional Affairs; Ex parte Odai IV [1996-97] SCGLR 401 at 402-403 and Republic v High Court, Accra; Ex parte Ploetner [1984-86] 2 GLR 107, SC.

In the case of Ex parte Odai IV (supra), the Supreme Court, under holding (1) of the headnotes, stated, among others, as follows:

“. . . any fact-finding tribunal or commission of inquiry whether statutory or not, which has made any decision based on evidence affecting rights of subjects, would be acting judicially and would thus be amenable to the supervisory jurisdiction of the courts.”

In the instant action, though the standing committee of the Shai Traditional Council in investigating the causes of the riots, was not acting as a judicial committee, what it did on the day in question

[p.308] of [2001-2002] 1 GLR 299 could be properly described as a judicial action as it was a competent authority meant to take a decision affecting the rights of the applicant as a sitting member of the Shai Traditional Council upon consideration of facts and circumstances, thus making its decision amenable to certiorari proceedings.

The question then is, did the decision or action of the standing committee of the Shai Traditional Council constitute or fall into any of the grounds stated above for which an application for certiorari should be resorted to? Simply put, did the committee breach any of the rules of natural justice, or did it act ultra vires its powers or was there an error apparent on the face of the record for which an order of certiorari should be sought to quash same?

With regard to the rules of natural justice, this court has already concluded that there was no breach of the rules of natural justice as the applicant was given a hearing and again there was no demonstration on his part that there was a miscarriage of justice by the inclusion of the acting president of the council on the committee.

However, after a careful consideration of the facts before me, particularly with regard to the certified true copy of the proceedings on the investigations by the committee, I am strongly of the view that the committee did act ultra vires its powers as it went far beyond the confines of its terms of reference as clearly stated in the proceedings itself. To make matters clearer, it would be meaningful if I quote verbatim from the proceedings itself instead of using my own words to describe or sum up what I mean by the committee acting ultra vires its powers.

The title of the record of proceedings is as follows: “Proceedings on investigations by a five (5) man committee on the recent disturbances and fighting at the durbar grounds during the Ngmayem festival on Saturday, 3 October 1999.”

Then after naming the committee members and those in attendance the proceedings went on: “Case in Brief: During this year’s durbar of chiefs to climax the Ngmayem festival of the chiefs and people of Shai, a fight ensued which brought about disturbances and embarrassment to all and sundry including the VIPs present, ie Regional Ministers, Ministers of State, MPs, District Chief Executives and other dignitaries. This disconcerting scene was also captured by the Ghana Television cameras and was telecast

[p.309] of [2001-2002] 1 GLR 299 live. This therefore compelled the Ag President, Nene Magai Kassah VII to appoint a five (5) man committee to conduct investigations to ascertain the alleged root cause of the incident involving Nene Aklersi Korda II a member of the Shai Traditional Council who it was rumoured was the master brain behind the trouble.”

Then in the last page of the proceedings, ie p 4, it was provided:

“By Committee: By leaving the durbar grounds unceremoniously and returning with a changed attire is against tradition and norms. Secondly, the committee has noted with concern your attitude towards them during the deliberations and therefore requests you and your elders to provide 2 sheep and 4 bottles of schnapps as fine.”

From the records, after the fine was slapped on the applicant and his elders, they retired from the committee’s sitting and returned where the applicant told the committee members that since he had not done anything wrong to warrant a fine, he would not pay same.

The committee then went on as follows:

“Committee’s recommendations: The work of this committee was to find out the causes of the commotion at the durbar grounds and to redress the situation to avoid future occurrence. We have however noted with concern your attitude and unco-operative approach during deliberations since the committee and your own elders have on several occasions had to caution you. This committee is only conducting investigations.

But for establishing the fact that as a member of the judicial council you left the durbar grounds and changed and returned in ordinary attire when all other members were glued to their seats trying to find solution to the riots with the assistance of the police, and showing gross disrespect to Neneme of this committee headed by the acting president and paramount chief of Shai and your failure to provide the sheep and drinks, you are hereby suspended from taking part in traditional council activities.”

(The emphasis is mine.)

The question is, if the committee which was a standing one, was

[p.310] of [2001-2002] 1 GLR 299 only appointed to investigate the causes of the riots and to make recommendations to the council, then why did it impose a fine on the applicant including his elders who had done nothing wrong and who were not part of the investigations? Again, if the fact-finding committee (as I understand the standing committee to be) did come out with findings of impropriety on the part of the applicant why it did not make recommendations to the traditional council as a whole on the necessary action to take against the applicant but decided on its own to fine the applicant and his elders who had done nothing and finally, to suspend him from deliberations of the council upon his refusal to pay the fine? This is where the court thinks the committee went wrong, because as a standing committee, it had no jurisdiction or power to impose a fine on the applicant and his elders. In my view, the authority of the standing committee was limited to investigating the causes of the riots and making recommendations to the traditional council for the council to take a collective final decision.

For arrogating to itself powers that it was not clothed with, I think the standing committee acted ultra vires for which its decision is amenable to the supervisory jurisdiction of the court by certiorari proceedings. It is immaterial whether the punishment imposed on the applicant is proper or not. What is important is whether or not the body that imposed the punishment had the authority or power to do so, and in this case, the view of the court is that apart from the traditional council itself, which can suspend any of its members for showing gross disrespect to the council, the standing committee, qua committee, cannot undertake this responsibility without being expressly authorised to do so. It is only in this area that I think the committee went wrong for which certiorari must lie.

I therefore order that the undated decision of the standing committee of the council be brought to this court for the purpose of it being quashed and same is hereby quashed. This order of the court does not preclude the Shai Traditional Council from taking the necessary steps to address the situation within the ambits of its powers so as to ensure that peace and sanity prevail within the council. There will be no order as to costs.

Application granted.

EKD-O