AMPONG v. AMANKWA AND OTHERS [1961] GLR 736

DIVISION: IN THE HIGH COURT, SEKONDI

DATE: 29TH NOVEMBER, 1961

BEFORE: CHARLES, J.

CASES REFERRED TO

(1) Anomabu Stool v. Acquah & Ors. (1957) 3 W.A.L.R. 265

(2) Adoko v. Edu & Ors. (1958) 3 W.A.L.R. 441

(3) Colonial Bank of Australasia and John Turner v. Willan (1874) L.R. 5 P.C. 417

(4) R. v. Tristram [1902] 1 K.B. 816

(5) R. v. Williams [1914] 1 K.B. 608

NATURE OF PROCEEDINGS

RULING on an application for certiorari to quash the proceedings in the Wasa Amenfi State Council.

COUNSEL

E. B. Gaisie for the defendants-applicants.

S. Baidoo for the respondents.

JUDGMENT OF CHARLES J.

This is an application for an order of certiorari to quash the proceedings and judgment in the above-mentioned matter determined by the Amenfi State Council (hereinafter referred to as “the State Council”). On the 17th October, 1961 I heard a motion ex parte and granted [p.738] of [1961] GLR 736 leave to apply for an order of certiorari to quash the proceedings and judgment in the above-mentioned matter. I also ordered that copies of the motion and all documents filed therewith be served on the State Council and Elder Kofi Ampong the respondents herein, in consequence of which the respondents filed affidavits in opposition to the application. Leave was also granted to the applicant to amend the grounds for the application by adding paragraphs 4 and 5, as well as to file a further affidavit in reply to the affidavits filed by the respondents. The grounds canvassed in support of this application are as follows:—

“1. that the subject-matter of the claim in the said suit was not a matter of a constitutional nature, the said subject-matter being a claim in tort—a letter written by the applicants and dated the 4th of August, 1960, which the respondent claimed has ‘defamed my character with such a letter’—and therefore not within the jurisdiction of the State Council, as the jurisdiction of the State Council is defined by the State Councils (Southern Ghana) Ordinance, 1952;

2. that the claim not being of a constitutional nature the State Council had no power to impose customary constitutional sanctions or customary award of a civil nature;

3. that in entertaining the suit and imposing an award of £G25, one live sheep valued £G4 10s., a bottle of whisky £G1 18s., the State Council exceeded its jurisdiction;

4. that if the subject-matter of the claim in the said suit was a constitutional matter then the court exceeded its jurisdiction by entertaining the suit without issuing a writ of summons;

5. that the court was not properly constituted as many of the members who took part in adjudicating on the said suit have not been declared.

As regards the first ground it was said by the Privy Council in Anomabu Stool v. Acquah & Ors:1(1),

“In considering whether a question or matter relates to political or constitutional relations one applies the test laid down in Vanderpuye v. Botchway (1956) 2 W.A.L.R. 16. What is the real issue?”. It therefore behoves me to determine the real issue between the parties. The letter of the 4th August, 1960, exhibited and marked X and referred to in paragraph I of the reply of the plaintiff-respondent was addressed to the State Council by the applicants. On the 19th August, 1960, the acting secretary of the State Council sent the following reply:

“Ref. No. 135/3 C/57-60.

Wasa Amenfi State Council,

Wasa Akropong.

19th August, 1960

Dear Nana,

Enstoolment of Queen-Mother Wasa Amenfi Paramount Stool

I am directed by the General State Council at its recent meeting held on the 6th of August, 1960, to reply to your letter dated the 4th August, 1960 re enstoolment of Queen-mother for the Wasa Amenfi Paramount Stool. The Council had seriously discussed your letter with the utmost care and wished to inform you that the enstoolment of Nana Affuah Badu as Queen-mother,

[p.739] of [1961] GLR 736 was a direct concern of Nana Kwasi Nyarko Ampim II, Omanhene of the State, which enstoolment was carried out by him without any interference by the Divisional chiefs.

That the Omanhene himself is presently out of town in the United Kingdom to pursue further studies and shall reply to your letter fully when back.

Hoping the situation as now obvious is no more alarming.

I have the honour to be,

Dear Nana,

Your obedient Servant,

(Sgd.) ? ?

Ag. Secretary

Wasa Amenfi State Council Akropong”

On the 29th August, 1960 the plaintiff-respondent lodged the following complaint with the State Council.

“I hereby complain to the State Council Kofi Amankwa and others to come and explain to the hearing of all members of the State Council in the connection of their letter dated 4th day of August, 1960, in which they stated that I am not a royal to the Paramount stool of Wasa Amenfi State — Wasa Akropong. That the letter as addressed to the Council and copies to the various quarters. I hereby say that Nana

Amankwa and others have defamed my character with such a letter.

Hoping that the State Council will look into the matter for me.”

On the 20th November, 1960, the State Council through its acting secretary addressed the following letter to the applicant.

“Ref. No. 217/3/C/57-60

Wasa Amenfi State Council

Wasa Akropong.

20th November, 1960

Dear Nana,

Opanin Kofi Ampong & Ors., Versus

Nana Kofi Amankwa & Ors.

This is to inform you that a complaint has been lodged against you by Opanin Kofi Ampong of Wasa

Akropong as a result of a certain letter you had addressed to the State Council re Paramount Stool affairs.

The Council has accepted his letter for discussion and shall be grateful if you will attend the State Council meeting scheduled for Wednesday the 23rd of November, 1960 to enable the said complaint to be gone into amicably. I regret the delay in despatching this letter to you in good time due to the short space of time covered by the Council meeting.

I have the honour to be

Dear Nana,

(Sgd) ? ?

Ag. Secretary

Wasa Amenfi State Council

Akropong”

Nana Kofi Amankwah

Wasa Akropong

[p.740] of [1961] GLR 736

It should be observed that no writ of summons was issued by the State Council to the applicant as a result of the complaint by the plaintiff-respondent, but on the contrary the first applicant was requested by the State Council in its letter of the 20th November, 1960, to attend the State Council meeting on the 23rd November, 1960, the complaint to be gone into “amicably”. It therefore appears that the State Council did not intend to deal with all the allegations contained in the letter of the 4th August, 1960, but only to confine its deliberations to the complaint lodged by the plaintiff-respondent against the defendant-applicants: which was formulated in the form of a “charge” as appears in the copy of proceedings in this matter. The gravamen of the complaint was that the allegation that the plaintiff-respondent was not a royal to the paramount stool of Wasa Amenfi State—Wasa Akropong, was false. The real issue the State Council had to decide was whether or not the plaintiff-respondent was a royal to the paramount stool of Wasa Amenfi State—Wasa Akropong. By the State Council (Southern Ghana) Ordinance, 19522(2) (hereinafter referred to as “the Ordinance”) a “matter of a constitutional nature” means a cause, matter, question or dispute relating to— “(a) the nomination, election or installation of any person as a Chief or the claim of any person to be elected or installed as a Chief; or

(b) the deposition or abdication of any Chief; or

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

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

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

Counsel for the applicants submitted that the issue before the State Council did not come within the definition of “a matter of a constitutional nature”. He contended that the complaint was for the State Council to declare the plaintiff-respondent a royal, but it was not a claim by the plaintiff-respondent to be elected or installed as a chief. Counsel for the respondents in a rather ingenious argument submitted that a claim to be declared a royal is a claim of a right to be elected or installed as a chief because only a royal can be elected or installed as a chief. As there was no claim by the plaintiff-respondent to be elected or installed as a chief there could be no cause, matter, question or dispute relating to any such claim. It is true 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, but this is a claim in futuro and not instanter as envisaged by the definition. I therefore hold that the issue which the State Council purported to decide was not a matter of a constitutional nature as defined by section 2 of the Ordinance. As the State Council awarded the plaintiff-respondent £G25, one live sheep valued at £G4 10s. and a bottle of whisky valued at £G1 18s., I can only conclude that the State Council purported to exercise the powers vested in it by section 9 of the Ordinance in respect of a matter of a constitutional nature, as the only other section which vests a State Council with power to impose any penalty is section 32(2) of the Ordinance, but the penalty is limited to £G5. [p.741] of [1961] GLR 736

Moreover, counsel for the respondents conceded that the State Council was exercising its powers under section 9. I therefore hold that the State Council treated the issue between the parties as a matter of a constitutional nature. Counsel for the applicants also submitted that if the issue was a constitutional matter then the State

Council exceeded its jurisdiction by entertaining the suit without issuing a writ, and he cited the case of Adoko v. Edu & Ors.3(3) in support of his submission. He contended that section 5(2) of the Ordinance enjoins the State Council to conduct its proceedings according to customary law and to exercise the like powers vested in a magistrate’s court (now called a district court) in the exercise of its civil jurisdiction. He alluded to the distinction between the conduct of proceedings and the institution of proceedings, and contended that the conduct of proceedings according to customary law could not include the institution of proceedings according to customary law, and therefore the State Council could only exercise the jurisdiction vested in it by section 5 of the Ordinance, if it issued a writ of summons to institute the proceedings. Counsel for the respondents, on the other hand, submitted that the State Council only resorts to the exercise of powers vested in a magistrate’s court in a civil matter to “compel the attendance of parties and witnesses and the production of documents” if they flout the authority of the State Council after they have appeared voluntarily and not in answer to a writ of summons. He further contended that it was not necessary for a writ of summons to be issued by the State Council before it could exercise its jurisdiction under section 5 of the Ordinance.

The Court’s Ordinance4(4) has been repealed by the Court’s Act, 1960,5(5) but section 89(4) of the Courts Act, 1960, provides that the rules in force in the magistrates’ courts immediately before the commencement of that Act shall with the necessary modifications apply in the district courts until provision is otherwise made. As no provisions have been made, the rules of civil procedure contained in the second schedule to the Courts Ordinance apply to proceedings referred to in section 5 of the Ordinance. I cannot agree with counsel for the respondents that the State Council should only exercise the powers of a magistrate’s (district) court to compel attendance of parties if they flout the authority of the court, as the district courts have no authority to compel the attendance of parties in a civil suit if they fail to appear. (See Order 35 of the said rules). I am of the opinion that rules of civil procedure in force in the magistrates’ (district) courts apply to proceedings of a constitutional nature before a state council and unless a suit is commenced by a writ of summons issued by the state secretary then the suit is not properly before the state council.

[p.742] of [1961] GLR 736

Jurisdiction means the conditions on which the right or powers of a tribunal to determine a matter depends. In Colonial Bank of Australasia and John Turner v. Willan6(6) it is stated:

“But these conditions may be founded either on the character and constitution of the tribunal, or upon the nature of the subject-matter of the inquiry, or upon certain proceedings which have been made essential preliminaries to the inquiry”. It therefore follows that a tribunal may be acting without jurisdiction (a) where it is not properly constituted, and (b) where the subject-matter of the enquiry is beyond its scope by reason of the absence of some essential preliminary. In my opinion the issue of a writ of summons is a condition precedent to the right of the state council to adjudicate in a constitutional matter and as the issue was not properly before the State Council when it purported to exercise jurisdiction without fulfilling the condition precedent, I hold the State Council acted in excess of its jurisdiction: see R. v. Tristram.7(7)

Counsel for the applicants submitted that the State Council was not properly constituted as four members of the panel were not declared in accordance with the provisions of section 3 of the Ordinance, and as the list of declared members number 43 and only nineteen of them formed the panel this was a contravention of section 4 of the Ordinance which provides:

“No business under the provisions of section 5 or 13 of this Ordinance shall be transacted at any meeting of a State Council unless at least half the members of such Council are either present at such meeting or are represented thereat in accordance with custom.” In reply to the court, the acting state secretary admitted that no person was authorised to sit as a member. However, there is no allegation in the affidavits filed by the first applicants that any objection to the competence of the State Council was taken at the hearing nor did he state that at the date of the hearing he was without knowledge of the facts alleged to disqualify the four members from sitting on the panel. In R. v. Williams8(8) Channell J. in the course of his judgment said:

“In my view the writ is discretionary. A party may by his conduct preclude himself from claiming the writ ex debito justitiae, no matter whether the proceedings which he seeks to quash are void or voidable. If they are void it is true that no conduct of his will validate them; but such considerations do not affect the principles on which the Court acts in granting or refusing the writ of certiorari. This special remedy will not be granted ex debito justitiae to a person who fails to state in his evidence on moving for the rule nisi that at the time of the proceedings impugned he was unware of the facts on which he relies to impugn them. By failing so to do a party grieved precludes himself from the right to have the writ ex debito justitiae and reduces his postition to that of one of the public having no particular interest in the matter”. It is true that the applicants filed a motion before the State Council objecting to four other members

(who were declared) joining the panel on

[p.743] of [1961] GLR 736 the ground of bias, but the motion was dismissed. According to the record of proceedings after the motion had been dismissed the applicants took no further part in the proceedings. This distinguishes the facts in this case from those in R. v. Williams, supra, because in R. v. Williams the applicant took part in the hearing and was convicted and he was thereby precluded from impugning the proceedings on the ground that there was no allegation that he was unaware of the facts on which he relied to impugn the proceedings. In other words he was not allowed to approbate and then reprobate. In this application before me as the applicants did not take any part in the actual hearing of the suit they cannot be deemed to be precluded from claiming the order ex debito justitiae, as they did not by their conduct waive the objection and acquiesce in the exercise of jurisdiction by the State Council. If the applicants had taken part in the actual hearing I would have held that they were precluded by their conduct from impugning the proceedings as there is no allegation in the affidavits that they were unaware of the facts on which they rely to impugn the proceedings. For these reasons the motion is granted as prayed. The entire proceedings including the consequential orders are to be quashed forthwith on their removal into this court.

The plaintiff-respondent is ordered to pay to the applicants costs fixed at twenty guineas inclusive of fee to counsel.

DECISION

Application granted.