REPUBLIC vs. ASSUA AND OTHERS; EX PARTE BLEWEY AND OTHERS [1973] 2 GLR 283

CASE REFERRED TO

Ahenkora v. Ofe (1957) 3 W.A.L.R. 145, C.A.

NATURE OF PROCEEDINGS

APPEAL against the ruling of Archer J. in the High Court, Sekondi, digested in (1968) C.C. 31 in which it was held that certiorari would not lie to quash the finding or decision of the National Liberation Council published in the Local Government Bulletin, No. 16 of 1967, in respect of the Half Assini Divisional stool.

COUNSEL

J. Mercer for the appellants.

No appearance for the respondent

JUDGMENT OF SOWAH J.A.

Sowah J. A. delivered the judgment of the court. This is an appeal from the ruling of the Sekondi High Court in which the court held that certiorari will not lie to quash the finding or decision of the National Liberation Council published in the Local Government Bulletin, No. 16 of 21 April 1967.

The appellants originally instituted an action against the respondents in the Western Nzima Traditional Council claiming, “recovery of the Half Assini Divisional Stool (property known as the Hoba Kyi, Allongoba family stool) which said stool is the bona fide property of the plaintiffs’ family and which said stool the defendants’ family unlawfully retain in their possession to the detriment of the plaintiffs’ family.”

The traditional council, after hearing evidence, decided that the plaintiffs had established their claim and gave judgment for its recovery. Owing to the turn of events in this appeal it is necessary to highlight some of the reasons given by the traditional council in arriving at its decision. In its own words “the issue before the council to decide is that who was the original founder of the town Awielie now Half Assini.” The council then proceeded to trace the history of the founding of the town of Half Assini and the stool to which the claim was laid. It concluded that Chief Hoba Kyi, an ancestor of the plaintiffs, was the founder and the first occupant of the stool. Thereafter various members of the plaintiffs’ family occupied the stool until the time of one Boto Ackah. It does appear from the judgment for reasons which were not explicit that members of the defendants’ family began to occupy the stool after the death of Boto Ackah and had been in occupation of it up to the time of this litigation. The council has this to say on the defendants’ family occupation:

“It is admitted by the council that the defendants’ ancestors have had long occupation and been recognised by the past and present Amanhene and the Government; but long usage in this country does not imply that the usage is correct or for that matter does not entitle the defendants to ownership of the Half Assini stool. As traditional rulers of this council who are thoroughly conversant with the traditional and ancient history of the towns and villages in the Western Nzima Traditional Council Area and who know the rightful and original owners of the stools of the area, strongly object to the attitude whereby subordinate stools are gifted to members of a different clan other than the rightful owners. The council was of the opinion that the plaintiffs and their witnesses have, with one accord, established a clean and robust claim and therefore unanimously give judgment for the plaintiffs accordingly with costs to be taxed. Plaintiffs to take possession of the stool of Half Assini, the paraphernalia and the lands attached to it.”

The foregoing analysis leaves no doubt as to the issue at stake. The claim for the stool, in effect, was a claim that the plaintiffs’ family were the rightful family to elect and instal the chief of Half Assini from within that family. The stool might have been at one time family property but the judgment showed that at the time of the litigation it was the stool for Half Assini. It had lost its private character, so to speak, with the passage of time.

It is now necessary to consider the most important arguments of counsel in this respect. He argued that the subject-matter of the appellants’ claim not being a cause or matter affecting chieftaincy, the respondents had no right of appeal. Consequently the National Liberation Council lacked jurisdiction to entertain an appeal. The burden of the argument was that the stool was a private family stool and like any other family property such as land, an action would lie to recover it, if it gets into the wrongful possession of another party. If counsel was right, then the plaintiffs were themselves out of court, in that the traditional council lacked jurisdiction to entertain such a claim. But this argument is fallacious as I have already shown from the analysis of the judgment. The stool being claimed, whatever its origin, was now the stool of Half Assini, an important public stool and could not be said to be family property in the narrow acceptation of the word.

The symbol of chieftaincy in Ghana and more particularly Southern Ghana and Ashanti is the stool. The occupant for the time derives his authority and power by reason of his occupation of the stool. If for lawful reasons he is destooled, he loses the office and status and all the attributes of a chief. There is therefore no comparison between the stool and private family property and indeed if family property becomes attached to a stool it loses its character as family property and becomes stool property at customary law and by virtue of section 52 of the Chieftaincy Act, 1961 (Act 81).

Thus clearly this action fell within the ambit of a cause or matter affecting chieftaincy and jurisdiction to entertain the claim was conferred by section 15 of the Chieftaincy Act, 1961. The defendants having lost the action, had a right of appeal, under section 48 of the Act which they duly exercised.

The next argument of counsel was that the sole commissioner having been appointed to hear the appeal and having affirmed the decision of the traditional council it was wrong for the National Liberation Council to reverse his findings. The first alleged error sprang from the legal scope of power conferred on the National Liberation Council under section 39 of the Act. Learned counsel submitted that under that section the National Liberation Council was incompetent to reverse a finding of the sole commissioner and substitute its own findings; the reversal was therefore ultra vires the National Liberation Council. The second alleged error in law was that the National Liberation Council breached the rules of natural justice by not either taking further evidence or hearing further argument from the parties before reversing the findings of the sole commissioner.

The first of these arguments was presented before the learned judge of the High Court and he rejected it in a most lucid passage of his judgment. It concerned the meaning of the word “amend” in section 39 of subsection (4) of the Chieftaincy Act, 1961. It is necessary to set out the section in extenso:

“(1) The findings of a Committee on any application under this Part of this Act shall be embodied in a report and delivered to the National Liberation Council.

(2) If it appears to the National Liberation Council that the findings in the report are correct the Council shall confirm the report.

(3) If it appears to the National Liberation Council that the findings are substantially correct, but require

to be varied in certain respects the Council shall confirm the findings as so varied.

(4) In any other case, the National Liberation Council shall either remit the matter to the Committee, for further consideration and the taking of such further evidence as the Council may direct, or shall amend the findings as it thinks fit.

(5) Where the National Liberation Council confirms or amends the findings of a Committee, a notice of the findings as confirmed or amended— (a) shall be published in the Local Government Bulletin and when so published shall be conclusive; and (b) shall be sent to the appropriate House of Chiefs.”

First the National Liberation Council is given the power to confirm the findings of the committee if it considers the findings substantially correct; secondly though the findings may be substantially correct, it had the power to vary them in certain respects and to confirm the findings as varied. Finally it had the power either to remit the findings to the commissioner for reconsideration or further consideration or “to amend the findings as it thinks fit.”

The meaning of the word “amend” can only be gathered from the context of the section. It seems that the only reasonable interpretation of the word “amend” within the meaning of section 39 is, to change completely or to substitute an entirely different finding from that of the commissioner. This meaning becomes clearer when the word is placed in juxtaposition with “vary” in subsection (3). We agree with the learned judge that the word “amend” must be given a “very wide meaning to embrace a change completely or substitute differently.”

As to an answer to that arm of argument that there was a breach of natural justice, we would refer to a passage in Ahenkora v. Ofe (1957) 3 W.A.L.R. 145 at p. 151, C.A. per Granville Sharp J.A.:

“I do not think that it can be questioned that the committee of inquiry is a judicial tribunal, and I am of opinion that the Governor’s act in considering the report of the committee and deciding what step to take upon it is part and parcel of the inquiry; necessary to effect its purpose. The decision must be made judicially and without consideration of extraneous or irrelevant matters and is a judicial act.”

If the National Liberation Council’s act in considering the report is part of the inquiry, which we think it is, then there was not the need to hear further argument. It had before it the whole of the proceedings of the sole commissioner and his report and probably the proceedings and decision of the traditional council. It is presumably on these proceedings and the report that it did arrive at the decision to reject the findings of the sole commissioner. It has not been argued that the National Liberation Council took extraneous matters into consideration before arriving at that decision.

We are of the view that the decision being the final process in the inquiry there was not the necessity for a further hearing of the parties and that there was no breach of any rule of natural justice.

Accordingly we are of the view that the learned judge’s ruling was right and we dismiss the appeal.

DECISION

Appeal dismissed.

S.E.K.