REPUBLIC vs. WESTERN NZIMA TRADITIONAL COUNCIL; EX PARTE NANA KPANI ACKAH III [1973] 2 GLR 107

CASES REFERRED TO

(1) R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920), Ltd.

[1924] 1 K.B. 171; 93 L.J.K.B. 390; 130 L.T. 164; 88 J.P. 13; 39 T.L.R. 715; 68 S.J. 188; 21 G.L.R. 719, C.A.

(2) R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 K.B. 338;[1952] 1 T.L.R. 161; 116 J.P. 54; 96 S.J. 29; [1952] 1 All E.R. 122; 50 G.L.R. 193, C.A. affirming [1951] 1 K.B. 711; [1951] 1 T.L.R. 270; 115 J.P. 79; 95 S.J. 76; [1951] 1 All E.R. 268.

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(3) R. v. Nat Bell Liquors, Ltd. [1922] 2 A.C. 128; 91 L.J.P.C. 146; 127 L.T. 437; 38 T.L.R.541; 27 Cox C.C. 253, P.C.

(4) Joseph (William) and Sons v. Jebeile Brothers, Court of Appeal, 5 May 1969, unreported;digested in (1969) C.C. 98.

NATURE OF PROCEEDINGS

RULING on the applicant’s application for an order of certiorari to quash the proceedings of a traditional council relating to a chieftaincy dispute for lack of jurisdiction. The facts are fully stated in the ruling.

COUNSEL

J. K. Essiem for the applicant.

R. S. Blay for the respondent.

JUDGMENT OF EDUSEI J.

The applicant herein, Nana Kpani Ackah III of Nuba, was sued before the Western Nzima Traditional Council and the said council after hearing evidence declared him destooled after the Oman of Nuba had agreed to “pay him off” with ¢200.00 which he accepted.

By his application Nana Kpani Ackah III is seeking an order of certiorari to quash the decision of the Western Nzima Traditional Council on the ground of its lack of jurisdiction to hear and determine the matter. Mr. Essiem, counsel for the applicant, has contended that the only competent tribunal that could have inquired into the destoolment charges against the chief was the judicial committee of the Western Nzima Traditional Council and not the whole body of the council.

It is necessary to refer at this stage to the relevant law on the jurisdiction of the traditional council. First, section 15 (1) of the Chieftaincy Act, 1971 (Act 370), reads:

“15. (1) Subject to the provisions of this Act and to any appeal therefrom, a Traditional Council shall have exclusive jurisdiction to hear and determine any cause or matter affecting chieftaincy which arises within its area, not being one to which the Asantehene or a Paramount Chief is a party.

(2) The jurisdiction conferred by this section shall be exercised in accordance with Part V of this Act.”

Secondly, section 28 (1) and (2) which forms part of Part V of the Act states: [His lordship here stated the provisions as set out in the headnote and continued:]

I do not think that there are any difficulties to be encountered in the interpretation of these sections of the Chieftaincy Act, 1971 (Act 370), which I have quoted. Though the jurisdiction in chieftaincy matters affecting a non-paramount chief or the Asantehene shall be with the Traditional Council of the area it is provided by section 28 (2) of the said Act that the said jurisdiction “shall be exercised by a judicial committee of the Traditional Council comprising three or five persons appointed by that Council.” The mandatory character of the section leaves no one in doubt that a chieftaincy cause or matter can be heard and determined by three or five persons of the traditional council who constitute the judicial committee of the council. I do not think that

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the whole body of the council members numbering more than five can lawfully sit on a chieftaincy matter.

In this case the proceedings began on 30 October 1972 with 35 members of the Western Nzima Traditional Council sitting in judgment over the applicant, and on the adjourned date the number of the members who heard evidence had been reduced to 29. In any case it is quite clear from the record that all or almost all the 29 or 35 members of the traditional council heard and decided the case involving the applicant.

Mr. Blay, counsel for the respondents, the Western Nzima Traditional Council, also argued that the traditional council as a body had jurisdiction to hear the chieftaincy matter “but it only erred in the exercise of its jurisdiction.” The only remedy therefore open to the applicant, counsel continued, was by way of appeal. It is now well established that certiorari will lie to quash the decision of an inferior tribunal, where that tribunal has acted outside, or in excess of, its jurisdiction, or where an error of law appears on the face of the record. The question that falls for determination is which authority had jurisdiction to determine the case of the applicant? I think the answer is that three or five persons who constitute the judicial committee of the Western Nzima Traditional Council have jurisdiction to determine it, and the whole corpus of the traditional council numbering 29 or 35 members who heard and determined the matter acted in excess of their jurisdiction and are therefore subject to control by certiorari. The supervisory powers of the High Court exercised through certiorari, prohibition or mandamus were neatly expressed in these words by Atkin L.J. in R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920), Ltd. [1924] 1 K.B. 171 at p. 205, C.A. as follows:

“Wherever any body of persons, having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs.”

The Western Nzima Traditional Council having jurisdiction to determine the said chieftaincy matter by their judicial committee acted in excess of their jurisdiction when the whole council of 29 or 35 members sat on the case.

It can, I suppose, be argued also that there is an error of law apparent on the face of the record. The law lays it down (and it is provided by the Chieftaincy Act, 1971) that the jurisdiction in chieftaincy matters conferred on the traditional council must be exercised by its judicial committee of three or five persons appointed by the council. There is nothing on record that the council appointed either three or five members to determine the case but it is on record that about 29 or 35 members of the council heard and gave a decision affecting the applicant. This is, in my view, an error of law apparent on the face of the record because the law required three or five members of the traditional council to determine a chieftaincy matter.

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Thus in R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 All E.R. 122, C.A. the Court of Appeal affirmed the decision of the High Court and held that certiorari lay to quash the decision of a statutory tribunal not only where the tribunal had exceeded its jurisdiction but also where an error of law appeared on the face of the record. In his judgment Denning L.J. (as he then was) stated at p. 128:

“Of recent years the scope of certiorari seems to have been somewhat forgotten. It has been supposed to be confined to the correction of excess of jurisdiction, and not to extend to the correction of errors of law, and several learned judges have said as much. But the Lord Chief Justice has, in the present case, restored certiorari to its rightful position and shown that it can be used to correct errors of law which appear on the face of the record, even though they do not go to jurisdiction.”

I do not think that the contention put forward by Mr. Blay can pass muster in this particular case – that the traditional council had jurisdiction “but only erred in the exercise of its jurisdiction” and therefore the remedy was by way of appeal. I am prepared, however, to accept the proposition that if the tribunal had jurisdiction to determine the matter but only erred on a point of law when exercising its jurisdiction, the remedy that is open to an aggrieved person in the circumstances will be to appeal and not to proceed by certiorari. Thus in R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1951] 1 K.B. 711 Lord Goddard C.J. in explaining Lord Sumner in R. v. Nat Bell Liquors Ltd. [1922] 2 A.C. 128, P.C. as to the grounds upon which a superior court can interfere with the decision of an inferior tribunal in certiorari proceedings said at p. 719:

“Lord Sumner pointed out that if the inferior court was acting within its jurisdiction the superior court could only examine the order, and could not consider evidence to show that the order was come to by some process of reasoning which was incorrect, or by the admission of evidence that was not admissible, or even on the ground that there was no evidence at all, because all these were matters of appeal.”

In the instant application I am not called upon to decide on the evaluation of evidence nor am I required to adjudicate on the merits of the case before the traditional council, as if this court is sitting in its appellate jurisdiction. I am being asked simply to say that the Western Nzima Traditional Council that gave the decision was not clothed with jurisdiction or that they exceeded the bounds of their jurisdiction and therefore the decision cannot stand. I was referred to the case of Joseph (William) and Sons v. Jebeile Brothers, Court of Appeal, 5 May 1969, unreported; digested in (1969) C.C. 98 in which I was personally involved at the District Court, Kumasi, some nine years ago. I, myself,

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as counsel, argued for the appellants therein when the rent assessment committee stated a case for the opinion of the rent magistrate. I am fully conversant with the facts of the case. I have, however, read the judgment of the Court of Appeal in the Jebeile case and the majority judgment upheld the High Court judge that certiorari lay to quash the decision of the rent magistrate since there was an error of law on the face of the record though the dissenting judgment of Azu Crabbe J.A. (as he then was) decided the contrary that certiorari did not lie because the High Court, in the certiorari proceedings before it, decided on the merit of the case by referring to evidence on record. I do not see how the Jebeile case advances the argument of Mr. Blay. The Jebeile case is, however, instructive and will repay fruitful dividend if studied carefully by counsel when certiorari proceedings are under consideration. It does not here, in my judgment, assist Mr. Blay in his contention.

But there is a great body of decided cases that where an inferior tribunal has no jurisdiction or acts in excess of its jurisdiction certiorari will lie. I have said enough to show that the Western Nzima Traditional Council consisting of 29 or 35 members that heard and determined the applicant’s case acted in excess of their jurisdiction, or I have almost said that they acted without jurisdiction since the judicial committee of the traditional council shall consist of three or five persons. Mr. Blay made another important point to which I needs must refer—that the applicant has acted under the decision of the traditional council by accepting ¢200.00 as compensation and he is therefore estopped from bringing this application. This is a seemingly formidable contention but can a decision which is not given by a competent authority bind a person? If it cannot, then I hold the view that anything done under it is equally otiose, and bereft of any validity. It is in a sense null and void. Since this matter is not before me on appeal I cannot make any specific order about it. The interested party may resort to some other appropriate remedy for the recovery of his money.

It seems to me for the reasons I have given that there is good and sufficient ground for my holding that in the circumstances of this application it is open to this court, in the exercise of its supervisory powers, to make an order that the decision of the Western Nzima Traditional Council given on 6 November 1972 be brought into this court to be quashed. Costs of this application are assessed at ¢100.00 against the respondents.

DECISION

Application granted.

S.O.