REPUBLIC vs. FREMPONG II & ANOTHER; EX PARTE ABABIO II [1973] 1 GLR 208

CASES REFERRED TO

(1) Ridge v. Baldwin [1964] A.C. 40; [1963] 2 W.L.R. 935; 127 J.P. 295; 107 S.J. 313; [1963] 2 All E.R. 66, H.L.

(2) R. v. Licensing Authority for Goods Vehicles for the Metropolitan Traffic Area; Ex parte Barrett Ltd. [1949] 2 K.B. 17; [1949] L.J.R. 1522; 66 T.L.R. 309; 113 J.P. 202; 93 S.J. 288; [1949] 1 All E.R. 656; 47 L.G.R. 546, D.C.

(3) Breen v. Amalgamated Engineering Union [1971] 2 Q.B. 175; [1971] 2 W.L.R. 742; [1971] 1 All E.R. 1148; 10 K.I.R. 120, C.A.

(4) R. v. Gaming Board for Great Britain; Ex parte Benaim [1970] 2 Q.B. 417; [1970] 2 W.L.R. 1009;

[1970] 2 All E.R. 528, C.A.

(5) In re Pergamon Press Ltd. [1971] Ch. 388; [1970] 3 W.L.R. 792; [1970] 3 All E.R. 535; 114 S.J.

569,C.A.

NATURE OF PROCEEDINGS

APPLICATION for an order of certiorari to quash the decision of the respondents destooling the applicant. The facts are fully stated in the ruling.

COUNSEL

Dr. S. Twum (Joe Reindorf and Frimpong-Buadu with him) for the applicant.

S.K. Amofa for the respondents.

JUDGMENT OF ABBAN J.

The application is for an order for certiorari to quash the decision of Nana Frempong Mposo II of Effiduase and the elders of Nifa Divisional Council, purporting to destool the applicant as the Krontihene of Effiduase. The decision complained of is contained in the proceedings of the meeting of the said Nifa Divisional Council held at Effiduase on 20 August 1972.

The brief facts of this case are that until August 1972, the applicant was the recognised Krontihene of Effiduase. On 20 August 1972 Nana Frempong Mposo II, the Effiduasehene (hereinafter referred to as the first respondent) and his elders, constituting themselves as the Nifa Divisional Council, met at the ahenfie to consider certain matters and to take decisions affecting the said division. In the course of their deliberations, an affidavit which was alleged to have been deposed to by the applicant some time ago in connection with a certain arbitration, was read. The said affidavit was not exhibited in the present application. But from the proceedings at the meeting, it appears some parts of that

[p.210] of [1973] 1 GLR 208 affidavit made references to the conduct of the first respondent at the said arbitration. The first respondent, who was then presiding over the said divisional council meeting, became offended by the contents of this affidavit.

However, some of the elders present at the meeting suggested that the affidavit in question should be ignored. Others insisted that matters raised in the affidavit should be gone into. Having eventually decided to discuss the contents of that affidavit, messengers were sent to summon the applicant to appear before the meeting. The messengers later came back to inform the meeting that they saw the applicant and the applicant said he was on his way to hospital for medical treatment.

One of the elders, to be precise, Opanin Gyateng, felt that it was not right to discuss matters affecting the applicant in the applicant’s absence. He therefore urged upon the meeting to adjourn the discussion for a week to enable the applicant to be present. This wise suggestion was rejected. The meeting then went into recess and resumed at about 4.25 p.m., when discussion about the applicant’s said affidavit was re-opened by the elders. The first respondent, at this juncture, swore what has been described in the proceedings as “the oath of innocence,” and then contended that he was innocent of all that had been said about him in the applicant’s said affidavit.

On the examination of the proceedings of that day, it is found that after the first respondent had sworn the said “oath of innocence,” at least nine of the elders again felt the injustice of continuing with the discussion of the affidavit when the applicant was not present, and they requested the postponement of the discussion. Again, the first respondent and a few of the elders refused to countenance that suggestion. Then, out of the blue, the first respondent got up and made all sorts of allegations, unconnected with what was being discussed, against the applicant. Thereupon, the meeting declared the applicant destooled as Krontihene of Effiduase.

In this application, learned counsel for the applicant argued that the whole process adopted by the first respondent and the elders of the Nifa Divisional Council in destooling the applicant was most unfair, as the applicant was not given the opportunity to answer the charges which the first respondent brought against the applicant. Counsel submitted that this conduct of the respondents was contrary to the rules of natural justice.

Learned counsel contended further that the applicant was ill and was on his way to the hospital when the messengers arrived at the applicant’s house. It cannot therefore, submitted counsel, be said that the applicant intentionally refused to attend the meeting. And since the respondents were informed of the applicant’s ill-health, it was wrong for them to act in the way they did, especially when the applicant

[p.211] of [1973] 1 GLR 208 was not even aware of those allegations, and the meeting he was required to attend had not previously intended to consider any destoolment charges against him. Counsel then referred to the case of Ridge v. Baldwin [1963] 2 All E.R. 66 at p. 114, H.L. where Lord Hodson re-stated the rules of natural justice.

Learned counsel for the respondents, on the other hand, contended that the applicant was destooled, not because of the charges which the first respondent levelled against him at the meeting, but because he had contemptuously refused to attend the said meeting or “call,” of the respondents. Counsel argued that it was in the oath of allegiance, which the applicant swore to the first respondent when the applicant was enstooled as the Krontihene, that whenever he was called by the first respondent he would attend to the said “call,” and by that oath the respondent was entitled to declare the applicant destooled if the applicant refused to obey any such “call.” Counsel therefore submitted that it was on this basis that the first respondent and his elders at the said meeting declared the applicant destooled since it was found that the applicant was not ill and did not in fact attend any hospital.

On the assumption that the interpretation of the customary oath of allegiance, as stated by counsel for the respondents, is correct, I must first of all consider whether the applicant deliberately refused to attend the meeting or the “call” of the respondents. Careful reading of the record of proceedings at the meeting shows that at no time did any messenger inform the meeting that the applicant had said he would never attend any meeting or “call” of the respondents. The affidavit sworn to by one Kwaku Boateng, the chief sword-bearer, and filed in the present application and being relied upon by the first respondent, states as follows:

“(2) That on 19 August 1972, I, Opanin Kwadjo Afreh, and Opanin Kwadjo Nkonson all sword-bearers, were asked by Nana Mposo to inform all the elders of the Effiduase state to meet at Ahenfie to consider the welfare of the state. This is the customary way of summoning people to meet in the area.

(3) That we went to Nana Osafo Ababio II, the then Krontihene of Effiduase and informed him of the meeting which was scheduled to come on 20 August 1972.

(4) That Nana Osafo Ababio II told us to inform Nana Mposo II that he was not attending any meeting at all with him. We went to him thrice and he repeated the same words.”

In other words, the first respondent is saying that on 19 August 1972 a day previous to the day on which the meeting at which the applicant was destooled was held, the applicant indicated his intention to the first respondent, through some messengers, that he, the applicant, would never attend the meeting scheduled to take place on the said

[p.212] of [1973] 1 GLR 208

20 August 1972. If this is true, then one may ask: why was it that the first respondent did not bring this important piece of information to the notice of his elders at the meeting on 20 August 1972 but should withhold it from them and never reveal it to any one until he was served with the present application? It is significant to note that Kwaku Boateng, the deponent of the affidavit just referred to above, was the very person whom the meeting, on 20 August 1972 sent, together with one Kwadjo Duro, to call the applicant; and it was he, Kwaku Boateng, who went back to tell the meeting that the applicant was on his way to the hospital. Hitherto, it may be asked: if what Kwaku Boateng swore to in his said affidavit was in fact said by the applicant on 19 August 1972 why was it that he, Kwaku Boateng, did not, on 20 August 1972 disclose it at the meeting, or remind the first respondent of it, when the meeting sent him to go and call the applicant?

I think the applicant never, at any time previous to 20 August 1972 told Kwaku Boateng or any messenger of the first respondent, that he, the applicant would never attend the meeting which was to take place on the said 20 August 1972. The contents of the affidavit sworn to by the chief sword bearer, Kwaku Boateng, were an after-thought and were calculated to mislead this court, and I therefore take a very serious view of the conduct of this chief sword-bearer. The truth of the matter is that the applicant was summoned to the meeting on 20 August 1972, when the meeting was in session; and I am satisfied that at the time those messengers arrived at the applicant’s house, the applicant was not well and was leaving for the hospital, and that the first respondent and his elders were duly informed of this.

The first respondent has not challenged the correctness of the proceedings as recorded on 20 August 1972. He appears to have accepted the proceedings as the true record of what took place at the meeting of 20 August 1972. In any event, the first respondent and his elders have already, and officially, acted on the proceedings by bringing them to the notice of the New Juabeng Traditional Council, the District Administrative Officer, Koforidua, the Deputy Superintendent of Police, Koforidua, and the Inspector of Police, Effiduase: see the letter dated 21 August 1972, attached to the first respondent’s affidavit which was filed on 27 November 1972. So that the respondents cannot be heard to say that the said proceedings are inaccurate.

In the circumstances, I hold that the applicant did not intentionally refuse to attend the said meeting. That is, the applicant never breached his oath of allegiance which he swore to the first respondent and his elders. After all, the said oath does not say that even if the applicant is ill and is going to receive medical attention he should, nevertheless, attend first the “call” of the first respondent. The attendance to the first respondent’s “call,” which the oath of allegiance talks about, is subject to good health. In other words, the oath of allegiance which makes it obligatory on a sub-chief to attend the “calls” of his superior

[p.213] of [1973] 1 GLR 208 chief makes exception in cases of ill-health; for I do not see how a person who was ill could have had the peace of mind to attend such a meeting, and what sort of contribution could he have made to the discussions at the meeting in that state of health? Probably, the respondents wanted the applicant to collapse at the meeting since it seems they valued the meeting more than human life.

I am therefore of the opinion that the applicant had just cause for not attending the meeting of the respondents’ “call.” Thus, it was contrary to custom, equity and good conscience for the respondents to have acted in that high handed manner, and to have used the non-appearance of the applicant before the said meeting as basis for declaring him destooled.

However, the matter does not end here. The applicant is contending that the respondents, by the record of proceedings of 20 August 1972, made it quite plain that the applicant was destooled because of certain charges which were brought against him at the said meeting by the first respondent. It may be recalled that just before the destoolment of the applicant was proclaimed at the meeting, the following charges were preferred, verbally, by the first respondent against the applicant:

(a) The applicant some four years ago made uncalled for remarks against the elders of the Nifa Division.

(b) Some time ago the applicant undermined those persons appointed as care-takers of the community centre in the town of Effiduase and caused their accounts to be checked. But auditors found nothing wrong with their accounts.

(c) When the applicant was later on put in charge of the said community centre, the applicant embezzled 80.00 belonging to the centre and he was forced to refund the amount.

(d) The applicant stole a head-gear which was used in decorating a certain deceased person when that deceased person was laid in state.

I have no doubt in my mind that these charges precipitated the decision to destool the applicant. Indeed, the meeting acted on those charges and used them as the grounds for the applicant’s destoolment. Although the respondents deny this, there is ample evidence on record to support this view. The following was recorded immediately after the first respondent had finished recounting the above charges: “The proclamation for his destoolment came on exactly 5.30 p.m. Gong-gong was immediately beaten in the house [meeting] announcing his various charges preferred against him.” (The emphasis is mine.)

In view of this, what further evidence is required to prove that the applicant was in fact destooled because of the charges the first respondent brought against him at that meeting? The meeting having clearly recorded its reasons for destooling the applicant, it is not open to the first respondent, and for that matter, any elder of the divisional council

[p.214] of [1973] 1 GLR 208 who was present at the meeting, to throw over those reasons. The applicant who is affected by the decision is entitled to go by the stated reasons, and the respondents are estopped from adding to, varying or contradicting the reasons which they have clearly and unambiguously stated as the grounds for declaring the applicant destooled. In the circumstances, I do not think it is right to accept affidavit evidence calculated to show that the reasons for destooling the applicant are different from what have been recorded in the proceedings. In R. v. Licensing Authority for Goods Vehicles for the Metropolitan Traffic Area; Ex parte Barrett Ltd. [1949] 2 K.B. 17 at p. 22, Lord Goddard C.J. said:

“. . . Where the language of the tribunal . . . is clear and there is no ambiguity, it would be quite wrong for this court to entertain affidavit evidence or other matter to try to explain that the tribunal, whether it is justices or any other tribunal, meant something different from what it said.”

This dictum of Lord Goddard, was referred to with respectful approval by Lord Denning M.R., in the recent case of Breen v. Amalgamated Engineering Union [1971] 1 All E.R. 1148, C.A. In that case, Lord Denning M.R., reading his dissenting judgment, held that it was not open to a district committee of a trade union to throw over the reason which that committee had stated in its letter, addressed to Mr. B., telling Mr. B. the reason why the said district committee decided not to approve the election of Mr. B. by his fellow members as a shop steward. At p. 1156 of the report the learned Master of Rolls made the following observation:

“on principle it seems to me that, when a committee or body of persons, who are entrusted with a decision, give reasons for it in writing which are clear and unambiguous, then it is not open to the individual members of that body, be they one or many, to give evidence to add to, vary or contradict the reasons which have been given authoritatively on behalf of all. If that were permitted, one of them might say one thing: another another; and no one would know which was correct, especially when the evidence comes years after the meeting, as happened here. More important, the party affected by the decision is entitled to go by the stated reasons. It is on the basis of them that he determines whether to accept the decision or to challenge it. It would be unfair to him to allow individual members of the committee to go back on the stated reasons.”

I therefore hold that the respondents are bound by the reasons recorded in the proceedings of 20 August 1972, as the grounds for destooling the applicant, and that is, the applicant was destooled on the “various charges preferred against him” at the meeting.

[p.215] of [1973] 1 GLR 208

The next question is whether it was right for the respondents to destool the applicant on those charges when those charges had not even been brought to the notice of the applicant. The answer is obvious. When a body like the Nifa Divisional Council, is sitting to decide matters which may affect the rights and status of one of its members or his standing in the community, such a body is under a duty to act fairly, and if there is a failure to observe the rules of natural justice, as in the present case, the court will intervene. See R. v. Gaming Board for Great Britain; Ex parte Benaim [1970] 2 Q.B. 417; and also In re Pergamon Press Ltd. [1971] Ch. 388 at p. 399, C.A. per Lord Denning M.R.

The respondents herein condemned the applicant without giving him notice of the charges of the alleged misconduct and without giving him the opportunity of being heard in defence. There is no doubt that the respondents at the meeting purported to exercise quasi-judicial functions, so far as those charges were concerned; and it was therefore incumbent upon them to observe the rules of natural justice. I am not saying that they should have conducted their inquiry in the nature of trial nor that they were bound by the rules of evidence. But they should, at least, as I have said, have acted fairly by giving him the chance of answering those charges of which he had never been informed and had not the slightest idea that they would be brought against him at the meeting. The failure on the part of the respondents to give opportunity to the applicant to defend those destoolment charges was fatal. Consequently, their decision, proclaiming the applicant destooled, cannot stand.

In the result, I will grant the application. Let the decision made by Nana Frempong Mposo II, Chief of Effiduase, and his elders, at the meeting of the Nifa Divisional Council held at the Effiduase Ahenfie, and which decision is contained in the proceedings, dated 20 August 1972, declaring the applicant destooled as the Krontihene of Effiduase, be brought to this court and the same be quashed. The applicant is awarded costs which I assess at ¢95.00, inclusive.

DECISION

Application granted.

S.E.K.