REPUBLIC v. ADA TRADITIONAL COUNCIL EX PARTE NENE OKUNNO II [1971] 1 GLR 412

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 22 JANUARY 1971

BEFORE: ABBAN J.

CASE REFERRED TO

Price v. Humphries [1958] 2 Q.B. 353; [1958] 3 W.L.R. 304; 122 J.P. 423; 102 S.J. 583; [1958] 2 All E.R. 725, D.C.

NATURE OF PROCEEDINGS

APPLICATION for prohibition to prohibit the Ada Traditional Council from hearing destoolment charges filed against a divisional chief.

COUNSEL

Akotia for the applicant.

Allotei-Cofie for the complainant.

No appearance by or on behalf of the respondent.

JUDGMENT OF ABBAN J.

The applicant herein sought for two reliefs, namely:

“(a) An order of certiorari to have the order of Ada Traditional Council dated 2nd May, 1968 quashed.

(b) An order prohibiting the said Traditional Council from hearing the charges of deposition filed against him by the complainant.”

Briefly, the applicant herein is Nene Tsiatey Lanuer Okunno II, Divisional Chief of the Danmebiawe Division of Ada. The complainant, a member of Danmebiawe Division, believing that the applicant had committed certain customary offences, filed charges of deposition against him before the Ada Traditional Council. The applicant appeared before the said council and pleaded not liable to those charges. The traditional council then made an interlocutory order suspending the applicant as a chief pending the hearing of the said charges. The charges are yet to be gone into by the Ada Traditional Council. But, in the meantime, the applicant has brought the present application asking for the reliefs above stated. It must be noted that learned counsel for the applicant in due course had to abandon that part of the application dealing with certiorari, because it became obvious that he was out of time so far as certiorari was concerned since the application was not made within six months after 2 May 1968 (see the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 59, r. 3). And since no enlargement of time was granted the application for certiorari was found to be grossly misconceived. Consequently arguments were heard only in respect of the order for prohibition.

It was contended by learned counsel for the applicant that the Ada Traditional Council is not properly seised of the complainant’s destoolment charges as those charges were not first gone into by the stool elders of the applicant before they were lodged with the Ada Traditional Council. Counsel therefore submitted that the procedure adopted in bringing the matter before the council was contrary to the provisions of the Chieftaincy (Destoolment Proceedings) Regulations, 1963 (L.I. 309), and in those circumstances the Ada Traditional Council cannot exercise jurisdiction over the matter. [p.415] of [1971] 1 GLR 412

Learned counsel for the complainant in his reply submitted that the charges were duly lodged with the Ada Traditional Council. He contended that exhibit B attached to the supplemental affidavit filed in opposition by the complainant showed that the meeting of the stool elders of the applicant was held on 7 March 1967 and following the outcome thereof, the elders authorised and empowered the complainant to lodge the charges with the traditional council. Learned counsel further contended that the list of the applicant’s stool elders was submitted to the Ada Traditional Council in terms of regulation 1 of L.I. 309 and that the elders, whose names appear on that list, actually sat and adjudicated on the charges on the dates shown in exhibit B. Learned counsel therefore submitted that the Ada Traditional Council was properly seised of the destoolment charges dated 22 March 1967 and 27 October 1967 respectively. Counsel also argued that in any case the applicant ought to have raised his objection on the first occasion he appeared before the Ada Traditional Council, and since he failed to do so, the applicant is estopped by laches from raising the objection now. In connection with this last contention counsel relied on the case of Price v. Humphries [1958] 2 Q.B. 353, D.C.

I must say at this stage that the present case is distinguishable from Price v. Humphries. Price, an officer of Ministry of Pensions and National Insurance, preferred two informations against Humphries under the National Insurance Act, 1946 (9 & 10 Geo. 6, c. 67), section 52 (1) for making false representations for the purpose of obtaining sick benefits for himself. Humphries pleaded not guilty to the offences as set out in the informations. Section 53 (1) of the National Insurance Act, 1946, provided that no prosecution under the Act could be instituted except, “by or with the consent of the Minister or by an inspector or other officer authorised in that behalf by special or general directions of the Minister.” The trial took place before the Worcestershire justices. The prosecution proved or sought to prove the substance of the case and after the case for the prosecution had closed, the solicitor for Humphries submitted that there was no case to answer. His grounds were that the prosecution had failed to prove that the proceedings were instituted by or with the consent of the Minister of Pensions and National Insurance and that the case of the prosecution having been closed, evidence of consent or authority could not be admitted. This submission was upheld by the justices. But on a case stated, the Divisional Court, held that it was the duty of the clerk to justices on application being made to him for issue of the summons to see that the requirements of section 53 (1) of the National Insurance Act, 1946, had been complied with and unless objection was taken by the accused before the prosecution closed their case, the court should have acted on the presumption that this duty had been discharged. The case was therefore sent back to the justices to proceed with it.

It will be observed that in Price v. Humphries the solicitor for the accused allowed the complainant to lead evidence and then closed his case before raising the objection about the failure to obtain the necessary

[p.416] of [1971] 1 GLR 412 consent. The objection did not go to the merits of the case but it was one which went only to procedure. The court made it clear that where what is in issue is simply the question whether proceedings are properly authorised, then it is a matter of procedure. So that if the defence wants to challenge that and take objection, the objection should be taken before the case for the prosecution is closed. In the instant application the complainant has not even opened his case before the Ada Traditional Council. No evidence has been led by him to substantiate the charges. The case is about to be heard on its merits. In the circumstances, I think this is the proper time for the applicant to raise the objection to the proceedings. I am therefore of the view that the applicant herein has raised the objection timeously and this is exactly what the Divisional Court had expected the defendant’s counsel in Price v. Humphries to do

The next question to be considered is whether or not the condition precedent laid down in L.I. 309 was complied with before the destoolment charges were brought before the Ada Traditional Council. By section 67 of the Chieftaincy Act, 1961 (Act 81), the minister responsible for chieftaincy affairs is empowered to make regulations governing the procedure for the destoolment of chiefs. In exercise of this power the Minister of Justice who was then responsible for chieftaincy affairs published the Chieftaincy (Destoolment Proceedings) Regulations, 1963 (L.I. 309). These regulations make it obligatory on every traditional council to make and forward to the minister “a list of the names and … titles of all persons who are entitled by custom to give final approval to the destoolment of a Chief.” The regulations also provide that all complaints against a chief should be lodged with an elder of the stool who should, within fourteen days of the lodging of the said complaint, summon all the other elders concerned to hear the complaint. An elder in this context is defined as a person whose name appears on the list forwarded to the minister and approved by the minister. The procedure at the meeting and functions of the elders at such meetings are spelt out in regulations 3 and 4 of L.I. 309 [as set out in the headnote]. That is after the recognised elders have gone into the destoolment charges and have decided that a prima facie case has been made out against the chief concerned, they have to forward a copy of the complaint together with their decision thereon to the traditional council. At that stage the traditional council becomes properly seised of the case and can proceed to adjudicate on the charges.

In the present case, there is nothing on record to show that a list of the names of the stool elders of the applicant was forwarded by the Ada Traditional Council to the minister for his approval in terms of the regulation 1 (1) of L.I. 309. Both counsel seem to agree that a list was prepared and sent by the stool elders to the Ada Traditional Council. But it is clear that no such list has ever been forwarded by the traditional council to the minister for his approval. Moreover a copy of the said list was never produced and the names of persons on that list are therefore not known. The number of persons constituting the stool elders on the

[p.417] of [1971] 1 GLR 412 alleged list is also not known. This is important, because assuming that exhibit B is a genuine document and assuming that these persons who met were stool elders, without knowing the total number of persons approved and designated “stool elders,” the court cannot decide whether those elders who met on those dates as indicated in the said exhibit B formed a quorum as required by regulation 3 (b) of L.I. 309. At any rate, I very much doubt whether exhibit B attached to the complainant’s supplemental affidavit is a genuine document. I say so because the complainant’s earlier contention was that the provisions of L.I. 309 were irrelevant and that there was no necessity for him to comply with them. I refer particularly to paragraphs (5) and (6) of the complainant’s affidavit in opposition filed on 27 October 1970. Surprisingly, after the submissions of counsel for the applicant had been heard and the application adjourned for the complainant’s counsel to reply and which submissions were mainly based on L.I. 309, the complainant filed this exhibit B. The only purpose of this exhibit B, as I can see, is to show that the respondent, the traditional council, after all complied with the procedure laid down in L.I. 309. I consider this as an after-thought in view of paragraphs (5) and (6) of the complainant’s original affidavit. In fact the authenticity of supplemental affidavit is highly suspicious.

The secretary to the Ada Traditional Council was served with a copy of this application and despite hearing notices served on him, he failed to appear or to swear to an affidavit denying the applicant’s allegations. In my view, before the secretary to the traditional council allows charges of deposition against a chief to be filed before the council, it is his duty to satisfy himself that the requirements of L.I. 309 have been duly observed. In this connection the Secretary to the Ada Traditional Council failed. In the circumstances, I hold that the complainant did not comply with the regulations laid down in L.I. 309 before the destoolment charges were lodged with the Ada Traditional Council. The procedure adopted by the complainant was not only arbitrary but also contrary to law; and that, the Ada Traditional Council has no jurisdiction to entertain the complaint and to adjudicate thereon. The application will therefore be granted. The Ada Traditional Council is hereby prohibited from hearing the charges of deposition filed by the complainant with the said council and dated 22 March 1967 and 27 October 1967 respectively.

In view of the fact that all the parties involved are members of the same family, I will not make any order as to costs.

DECISION

Application granted.

Prohibition to issue.

J. D.