REPUBLIC vs. GBI TRADITIONAL COUNCIL; EX PARTE ABAKA VII [1995-96] 1 GLR 702

CASES REFERRED TO

(1) R v Churchwardens of All Saints, Wigan (1876) 1 App Cas 611; 35 LT 381; 41 JP 132.

(2) R v Garland (1870) LR 5 QB 269; 39 LJQB 86; 22 LT 160.

(3) R v Blooer (1760) 2 Burr 1043.

(4) R v London Corpn (1733) 2 Term Rep 182n; 2 Barn KB 398.

(5) R v London Corpn (1829) 9 B & C 1; 4 Man & Ry KB 36.

(6) R v Bedford Level Corpn (1805) 6 East 356; 2 Smith KB 535.

(7) R v Government Stock Investment Co (1878) 3 QBD 442; 47 LJQB 478.

(8) R v Vice- Chancellor of Cambridge University [1558-1774] All ER Rep 232.

(9) R v Bishop of Ely (1788) 2 Term Rep 290; [1775-1802] All ER Rep 70.

(10) R v Colchester Corpn (1788) 2 Term Rep 259; 100 ER 141.

(11) R v Beedle (1834) 3 Ad & EI 467; 111 ER 491.

(12) R v Derby Councillors (1837) 7 Ad & E1 419; 2 Nev & PKD 589; 112 ER 528. (13) R v Chester Corpn (1855) 25 LJQB 61; 26 LTOS 71; sub nom Frost v Chester Corpn 5 E & B 531. (14) R v Cambridge Corpn (1767) 5 Burr 2008.

(15) R v Bedford Corpn (1800) 1 East 79.

(16) R v Barnes Corpn; Ex parte Hutter [1933] 1 KB 668.

[p.705] of [1995-96] 1 GLR 702 (17) Republic v Controller and Accountant-General; Ex parte Dizengoff (WA) Ltd [1974] 1 GLR 337. (18) R v London Corpn (1786) 1 Term Rep 423; 100 ER 96.

(19) R v Griffiths (1882) 106 ER 1358.

(20) R v Tancred’s Charity (1843) 1 LTOS 230.

(21) Dighton v Stratford-on-Avon Corpn (1670) 82 ER 1217.

(22) R v Axbridge Corpn (1777) 2 Cowp 523; 98 ER 1220.

(23) R v Inland Revenue Commissioners; In re Nathan (1884) 12 QBD 461; 53 LJQB 229; 51 LT 46, CA.

NATURE OF PROCEEDINGS

APPLICATION by Togbe Abaka VII for an order of mandamus to compel the respondent, the acting president of the Gbi Traditional Council in the Volta Region, to admit him into membership of the traditional council as the divisional chief of Gbi-Wegbe. The facts are sufficiently stated in the ruling.

COUNSEL

Jones Dotse (with him Miss P Dennis) for the applicant.

Mawudoku for the respondent.

T K Adzoe for the interested party.

JUDGMENT OF ACQUAH J.

The eminent jurist, the late Mr Justice N A Ollennu, in his article, “Chieftaincy Under the Law” published in Essays in Ghanaian Law at p52 described chieftaincy as follows:

“Chieftaincy is an ancient institution, the centre of rich culture, an object of awe and reverence as the active possessor of state power and possessor of the spirit of the ancestors and of the state.”

But this sacred institution which in the days gone-by wielded such tremendous power and authority in its respective spheres of influence, had, through systematic legislation enacted by colonial and postcolonial governments, been effectively pruned of its power and awesomeness, and is now made to symbolise, more of our rich cultural heritage than a patent and effective traditional institution in the governance of the people. The most subtle and effective way by which this result has been achieved is through the provision whereby the functions of a chief are now divided into customary and statutory—a division which was known in the pre-colonial era. By this division the

[p.706] of [1995-96] 1 GLR 702 government does not bother and concern itself with the customary functions of a chief, which functions include pouring libation on the stool on important occasions, receiving customary homage and tribute from subjects, performing all religious duties incidental to chieftaincy, and serving as customary arbitrator or conciliator in inter-family disputes. But for a chief to qualify to perform statutory functions, the said chief must be recognized by the government by a notice published in the Local Government Bulletin. The statutory functions connote functions set out in the Chieftaincy Act, 1971 (Act 370) and any other enactment. These statutory functions require a chief to take a seat at his traditional council or respective house of chiefs, and thereafter perform such function as, for example, a member of that house’s judicial committee, or represent that house on any committee which the house, is by law, required to serve as a member. Membership of a traditional council or a house of chiefs is thus a status symbol of any chief who is worth his salt. It is in furtherance, perhaps, of this objective that Togbe Abaka VII, the applicant in this motion, is seeking an order of mandamus to compel the acting president of the Gbi Traditional Council to admit him into membership of that statutory body.

Both in the body of his motion paper and the accompanying statement, Togbe Abaka VII seeks mandamus to compel the acting president of the Gbi Traditional Council to admit him into membership of that council as established under Act 370. But in the final paragraph of his supporting affidavit filed on 5 July 1989 he prays to be allowed to “take my seat as a member of the Gbi Traditional Council representing Gbi-Wegbe as the divisional chief.” And when Mr Dotse, counsel for Togbe Abaka VII, was moving the motion I inquired from him the exact demand of his client. Mr Dotse replied that his client seeks admission as a divisional chief of Gbi-Wegbe. Togbe Abaka VII is therefore not seeking admission as a member simpliciter of the council, but he is asking the court to compel his admission as a member with a particular status, to wit, divisional chief of Gbi-Wegbe.

The basis of Togbe Abaka VII’s request for mandamus, as set out in his supporting affidavits, is that his status as divisional chief of Gbi-Wegbe is contained in the Local Government Bulletin, No 35 of 1965 which according to him, had not been cancelled nor repealed by any

[p.707] of [1995-96] 1 GLR 702 enactment. Following this publication, he continues, he attempted to take his seat at the Gbi Traditional Council, but the acting president and the registrar of the council prevented him from doing so on grounds that he is not the rightful person to be so admitted. He therefore petitioned the Honourable Provisional National Defence Council Secretary for Chieftaincy Affairs who wrote to the acting president to admit him into membership of that council. But the acting president refused to comply with the said directive and expressed his refusal in a letter he forwarded in reply to that of the Honourable Provisional National Defence Council Secretary’s letter. The applicant therefore realises that unless the acting president is compelled by an order of a court, the latter is bent on denying him admission into the council. Hence the instant application. But the applicant avers that he is fully aware that his claim to that status of the divisional chief of Gbi-Wegbe is being opposed by the Keh stool of Gbi-Wegbe, and that the last of such opposition terminated on 23 November 1988 when Togbe Keh XI and another discontinued suit No 39/87 and paid cost of ¢10,000 to him.

Togbe Worde IV, the acting president of the Gbi Traditional Council in an affidavit opposing the application, swore that the occupant of the Togbe Abaka stool has always had a permanent seat on the Gbi Traditional Council, and that that stool’s membership of the council has never been in dispute. Thus it is never true that Togbe Abaka VII had at any time attempted to attend that council’s meetings and he had been denied access. He then avers that he has no power neither has any power been reposed in him, to admit anyone into membership of the traditional council. He then goes on to aver that if there is any dispute at all about Togbe Abaka VII’s claim to membership of the traditional council, then the problem is in connection with his claim to the status of divisional chief of Gbi-Wegbe in the traditional area, a status which he avers in paragraph (17) of his affidavit, to have been sanctioned by custom and usage to belong to the Keh stool. He further explains that until July 1986, one Togbe Abaka VIII who was occupying the very stool with which the applicant herein is seeking to assert divisional chief status, was a member of the traditional council and attended its meetings as a subdivisional chief of Gbi-Wegbe. He said that this Togbe Abaka VIII wrote to the council abdicating from the Abaka stool; and that if the

[p.708] of [1995-96] 1 GLR 702 applicant herein is seeking to replace him at the traditional council, the council has no objection to the applicant going through the necessary rites to take over the seat of Togbe Abaka VIII. He also states that the status of the applicant as stated in the Local Government Bulletin, No 35 of 1965 is wrong and that this mistake was rectified by the Chieftaincy (Amendment) (No 2) Decree, 1967 (NLCD 136). Further, the judicial committee of the Gbi Traditional Council had in suit No 2/65 between the Keh stool of Gbi-Wegbe and the applicant herein on this divisional chief status of Gbi-Wegbe, given its judgment in favour of the Keh stool on 17 July 1965. Being aggrieved with this judgment, the applicant applied to the High Court, Ho for certiorari to quash the said judgment. But the High Court, presided over by Kingsley-Nyinah J (as he then was) refused the application. From the matters stated above, the acting president went on, the applicant herein has no claim to the divisional chief status of Gbi-Wegbe; and that since that divisional status belongs to the Keh stool, the present occupant of that stool, in the person of Togbe Keh XI, is the divisional chief of the Gbi-Wegbe and a member of the traditional council in that capacity. In connection with the Provisional National Defence Council Secretary for Chieftaincy Affairs’ letter appealing to the council to admit the applicant as divisional chief of Gbi-Wegbe, the acting president explains that there was a meeting with the honourable secretary to appraise him of the true facts surrounding the false claim of the applicant. And that as a result of this meeting the honourable secretary realised the doubts in the applicant’s claim, and that it was after this meeting that the applicant rushed to this court with the instant application.

The acting president concludes his defence by pointing out that the applicant is seeking by the instant application to obtain a relief he is not entitled to; and that the claim of the applicant is indeed one for the status of the divisional chief of Gbi-Wegbe and not a claim for an admission to the membership of the Gbi Traditional Council. He then contends that a claim for such a relief is a cause or matter affecting chieftaincy within the meaning of Act 370, and therefore one which this court is incompetent to adjudicate upon. He avers to this contention in paragraphs (5) and (23) of his affidavit as follows:

“(5) That if there should be a dispute it would be as regards the status of the applicant as the divisional chief of Gbi-

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Wegbe or as a sub-divisional chief, and such a dispute would be a constitutional issue or a chieftaincy dispute over which the High Court would lack jurisdiction and which in any event cannot be resolved through a writ of mandamus . . .

(23) That I am advised by counsel and believe the same to be true that a dispute as to who is the divisional chief of Gbi-Wegbe is a chieftaincy dispute and a cause or matter which is exclusively within the jurisdiction of the judicial committee of the Gbi Traditional Council and over which the High Court lacks jurisdiction and which in any event cannot be resolved by a writ of mandamus from the High Court.”

Now Togbe Keh XI, referred to by the acting president in his affidavit, joined the application as an interested party to dispute the claim of the applicant. In his 44-paragraph affidavit, opposing the application, Togbe Keh XI deposed that he is currently the occupant of the Keh stool as the divisional chief of Gbi-Wegbe and a member of the Gbi Traditional Council. He said he was enstooled in 1986 in succession to the late Togbe Keh X. He then goes over substantially the same grounds as averred by the acting president and exhibits Gold Coast Chief Lists of 1925-26 to support his stool’s claim to the divisional status of Gbi-Wegbe. He also exhibits various letters, judgments and writ of summons in support of his stand. However, in addition to the matters referred to by him and that of the acting president, Togbe Keh XI avers that there is currently pending at the High Court suit No W/S 50/85 entitled:

“Albert Kwami Akubia Stool father of Abaka Stool of Gbi-Wegbe v (1) The Regent of Keh Stool.

(2) The President of the Gbi Traditional Council.” in which suit, the Abaka stool is seeking to set aside the High Court’s ruling refusing Abaka VII’s application for certiorari to quash the traditional council’s judgment of 17 July 1965.

Furthermore, Togbe Keh II challenges the applicant’s claim to be

[p.710] of [1995-96] 1 GLR 702 a chief let alone a divisional one. For he avers in his paragraphs (31), (32), (33) and (37) that as far back as 1978 the applicant was destooled as a chief and in his place was enstooled Togbe Abaka VIII, and that since the abdication of Abaka VIII there has been no enstoolment of the applicant as chief to succeed Abaka VIII. Thus assuming without admitting that the Abaka stool is even a divisional chief, the applicant has not been so enstooled to entitle him to claim the said status. The said paragraphs (31), (32), (33) and (37) read:

“(31) That besides all these factors, I know as a fact that the Danorkpedzi clan which owns the Abaka stool cutomarily removed the applicant from the stool in 1978 and installed in his place in July 1978 one Winfred Kwami Adza as Togbe Abaka VIII.

(32) The new chief, Togbe Abaka VIII was customarily nominated, elected and enstooled and later introduced to the chiefs of the Gbi Traditional Council.

(33) That consequent upon his installation, the registrar of the Gbi Traditional Council by a letter dated 13/10/78 notified the Secretary for Chieftaincy Affairs . . .

(37) That I am advised by counsel and verily believe same to be true that even assuming that the Abaka stool is the divisional stool of Wegbe (which is denied) the applicant who can no longer claim to be a chief is not entitled to the remedy he is seeking in this application.”

There is no doubt in my mind that the averments contained in the two opposing affidavits pose weighty and formidable objections to the applicant’s claim. For apart from attacking both the applicant’s claim to the status of a chief and that of a divisional chief, the averments also question the jurisdiction of this court in going into the applicant’s claim, and the propriety of the writ of mandamus for such a relief. Fully aware of the far reaching nature of the objections by the acting president and Togbe Keh XI to his client’s claim, Mr Dotse, counsel for the applicant, in arguing the motion called on the court to concentrate on the materials advanced by his client in support of his claim and then determine the merits of his client’s claim on those materials only. He urged the court not to consider the objections seeking to convert his client’s claim into a chieftaincy dispute. He

[p.711] of [1995-96] 1 GLR 702 argues that the writ of mandamus lies to compel the acting president to admit his client as the divisional chief of Gbi-Wegbe in the Gbi Traditional Council by virtue of the publication contained in the Local Government Bulletin, No 35 of 1965. He pointed out that the fact that his client is so entitled to be admitted as a member of the traditional council is confirmed by the letter of the Provisional National Defence Council Secretary for Chieftaincy Affairs addressed to the respondent. Mr. Mawudoku, counsel for the acting president, and Mr Adzoe, counsel for Togbe Keh XI, all argued that the applicant’s claim is indeed a cause or matter affecting chieftaincy which is justiciable at the appropriate chieftaincy tribunal and not the High Court. They argued that the reliance on the writ of mandamus is misconceived and misdirected, and that they have exhibited enough materials to show that the applicant does not possess the status he is seeking to be admitted into.

I do not believe it can now be doubted that the High Court has no jurisdiction to determine a cause or matter affecting chieftaincy as defined in section 66 of Act 370. However, the applicant herein roots his claim on the Local Government Bulletin, No 35 of 1965, wherein he is described as divisional chief of Gbi-Wegbe. But from the papers filed by the applicant and the two opposing respondents, it is clear that sometime after the applicant’s publication, one Togbe Abaka VIII was later installed on this very Abaka stool. And Mr Dotse even conceded that this Togbe Abaka VIII was a member of the traditional council with the status of a sub-divisional chief of Gbi-Wegbe: see exhibit D attached to the affidavit of Togbe Worde IV filed on 31 July 1989. This means therefore that somewhere along the line, Togbe Abaka VII dropped off the stool and was replaced by Togbe Abaka VIII. By what process and authority then did Togbe Abaka VII claim to be once more a chief and hereby seek an admission as a divisional chief of Gbi-Wegbe? Nowhere in his affidavit supporting his application did he explain how he came back onto the Abaka stool to entitle him to make the instant claim. Thus the contention by Togbe Keh XI that after Togbe Abaka VIII, the applicant herein has no claim to the status of a chief appears to carry some weight.

However I can see from the exhibits attached to the affidavits of both the applicant and the respondents that this Togbe Abaka VIII wrote to the traditional council on 1 July 1986 abdicating from the

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Abaka stool and stating therein: “That my uncle Joseph Yao Mensah who has been already enstooled and recognised should continue the work of chieftaincy affairs.” This Joseph Yao Mensah is undoubtedly the applicant herein, Togbe Abaka VII, and the enstoolment and recognition obviously refers to the Local Government Bulletin, No 35 of 1965. I have no doubt in my mind that if it is the above paragraph in Abaka VIII’s letter of abdication which is encouraging the applicant to pursue the instant claim, then the applicant has derailed. For chieftaincy is not a private and personal property of the incumbent chief so as to enable him to choose who should take over from him. The choice of a candidate is the sole prerogative of those who are entitled under customary law to nominate, elect and install the appropriate candidate. The stool belongs to the family and it is the elders of the family described as kingmakers who have the right to nominate a candidate. Accordingly if Togbe Abaka VIII has decided to abdicate, he cannot in abdicating usurp the prerogative of the kingmakers of the Abaka stool by nominating anyone in his stead. Thus his nomination, as it were, of Joseph Yao Mensah to take over from him is contrary to custom and in direct violation of section 48(1) of Act 370 as amended by the Chieftaincy (Amendment) Law, 1985 (PNDCL 107). Togbe Abaka VIII should leave the choice of his successor to the kingmakers of the Abaka stool.

But notwithstanding this hiatus created by the installation of Togbe Abaka VIII, is the applicant entitled to the writ of mandamus on the state of materials before me? Mr Dotse invites me to close my eyes to some of the objections of the respondents so as to enable me act within my jurisdiction. For he concedes that if I intend going into most of the objections raised against his client, my jurisdiction would be ousted. I am of the view that if I accede to the request of Mr Dotse, I will be guilty of failing to give adequate consideration to the defence of the respondents. For a court is under a duty to evaluate the merits of the defence so as to determine whether the said defence can avail the respondents.

Now, as a general rule, mandamus is a discretionary remedy. An applicant is therefore not entitled to it as of right, neither is the order issued as a matter of course. The court may thus refuse the order, not only upon the merits, but also by reason of the special circumstances of the case. In R v Churchwardens of All Saints, Wigan (1876) 1 App [p.713] of [1995-96] 1 GLR 702

CAS 611 at 622, HL, Lord Hatherley said: “Upon a prerogative writ there may arise many matters of discretion which may induce the judges to withhold the grant of it, matters connected with delay, or possibly with the conduct of the parties.” And in R v Garland (1870) LR 5 QB 269 at 272 wherein Cockburn CJ in refusing the writ “entirely on the special circumstances of the case”, explained those circumstances to be that:

“the effect of granting the mandamus would be most prejudicial; it would simply be that the trustees would be enabled to evade the discharge of a duty which a court of equity would and must enforce against them.”

However, in respect of the instant application, the law is settled that mandamus will lie to restore, admit or elect a person to an office of a public nature. Accordingly, an order of mandamus will lie to compel the restoration of a person to an office or franchise, whether spiritual or temporal, of which he has been wrongfully dispossessed provided the office or franchise is of a public nature: see R v Blooer (1760) 2 Burr 1043; as for example to the office of a mayor, town clerk or other municipal position: see R v London Corpn (1733) 2 Term Rep 182, to academic degrees, to a fellowship of a college where there is no visitor, or to the office of a parish clerk. Mandamus also lies to admit to such an office or franchise a person who has a right thereto but has never had possession. Thus in R v London Corpn (1829) 4 Man & Ry KB 36, mandamus was issued to admit to the office of elderman of the city of London a candidate duly elected at a court of wardmote. And in R v Bedford Level Corpn (1805) 6 East 356 mandamus was issued to admit to the office of registrar of a corporation the candidate who obtained the majority of legal votes. Mandamus was also issued to admit to the directorship of a registered company, the candidate elected by a show of hands: see R v Government Stock Investment Co (1878) 3 QBD 442.

Furthermore, mandamus even lies to command an election to offices of a public nature in accordance with the rule that, whenever it is the duty of a person or corporation to do an act, the court will order it to be done. Thus in R v Vice-Chancellor of Cambridge University [1558-1774] All ER Rep 232, mandamus was granted to compel the vice-chancellor to complete the election of the Earl of Hardwicke as

[p.714] of [1995-96] 1 GLR 702 high steward of the university by affixing the seal of the university to his appointment. Wilmot J in concurring with Lord Mansfield CJ said at 235 of the report:

“If there was a clear right in Lord Hardwicke, the court ought to find out a suitable and adequate remedy, and even to have made a precedent if they could not have found one, for where there was a right, law and justice required that there should be a remedy or other. . . . It follows that we ought to grant the mandamus in the manner it was originally prayed, viz., a mandamus to be directed to the keepers of the common seal of the university commanding and requiring them to put and affix the seal to the diploma or instrument appointing the Earl of Hardwicke high steward of the university, pursuant to the tenor of the grace passed in senate on Mar. 30, 1765.”

And in R v Bishop of Ely [1775-1802] All ER Rep 70 mandamus was also granted to compel the Bishop of Ely to appoint one of two persons elected by the fellows, to the office of master of Peterhouse in Cambridge.

However in all situations where mandamus had been granted to restore, admit or elect a person to an office, the office in question had been vacant. For mandamus will not be granted unless the said office is vacant. If the said office is full the applicant has to seek injunction, quo warranto or other remedy to oust the one in possession. As it is explained in Halsbury’s Laws of England (3rd ed), Vol 11, para 165 at p 88.

“Office must be vacant: A mandamus to restore, admit or elect to an office will not be granted unless the office is vacant. If the office is in fact full, proceedings must be taken by way of injunction or election petition to oust the party in possession. A mandamus will go only on the supposition that there is nobody holding the office in question.”

Thus in R v Colchester Corpn (1788) 100 ER 141, mandamus to admit a recorder was refused because there was a recorder de facto, and the applicant was directed to proceed by quo warranto. Similarly in R v Beedle (1834) 111 ER 491 two candidates stood an election for an office. One was declared elected and sworn into office. The other

[p.715] of [1995-96] 1 GLR 702 candidate contending that he had legal majority applied by mandamus to compel his admission into that office. It was held that once the other candidate had been sworn into office mandamus did not lie and that he should proceed by way of quo warranto. And finally in R v Derby Councillors (1837) 112 ER 528 where a losing candidate to an elective office came by mandamus to have him sworn into office notwithstanding the fact that the opposing candidate had already been admitted into that office, it was held that assuming his objections were well-founded, mandamus could not go once the office was full and one to which a quo warrant might be brought. See also R v Chester Corpn (1855) 25 LJ QB 61.

The rationale underlying the principle that mandamus cannot lie to compel an admission to an office which is full is that once there is no vacancy in the office to be filled by virtue of its been full, the question of compelling a person to be admitted therein does not arise. The court would in effect be stultifying itself by making an order which is incapable of being performed. Thus the only way for such an applicant to achieve his objective is to oust the one who had occupied that office; other than this, he cannot obtain the court’s assistance in his quest for admission to that office. The legal position is explained in de Smith’s Judicial Review of Administrative Action (3rd ed) at pp 499-500 as follows: “Mandamus will not, in general, issue to compel a respondent to do what is impossible in law or in fact. Thus, it will not issue to order the filling of an office that has already been filled, or to require one who is functus officio to do what he was formerly obliged to do.”

However where the holder of the office came by a procedure for election which in law is void, the office would be deemed to be vacant and mandamus will issue commanding an election to that office: See R v Cambridge Corpn (1767) 5 Burr 2008; R v Bedford Corpn (1800) 1 East 79 and R v Barnes Corpn; Ex parte Hutter [1933] 1 KB 668. For once the procedure or election is void, it is in law a nullity and nothing emanates therefrom to support whoever came by such a void process.

It is also settled that where the respondent has good cause for refusing to admit, restore or elect the applicant to the office, mandamus

[p.716] of [1995-96] 1 GLR 702 will not lie to compel him to do so. For, it is a general defence to a writ of mandamus if the respondent has justifiable reasons for refusing to perform the duty the applicant is seeking to compel its performance: see Republic v Controller and Accountant-General; Ex parte Dizengoff (WA) Ltd [1974] 1 GLR 337. Thus in R v London Corpn (1786) 100 ER 96, the applicant who had been irregularly suspended by the respondent came by mandamus to seek his restoration to the office of clerk of the Bridge House Estates in London. The court refused the application on grounds that there was good cause for his suspension. Similarly in R v Griffiths (1882) 106 ER 1358 the court refused to grant peremptory mandamus because the respondent had good cause for their action. See also cases like R v Tancred’s Charity (1843) 1 LTOS 230; Dighton v Stratford-on-Avon Corpn (1670) 82 ER 1217 and R v Axbridge Corpn (1777) 98 ER 1220.

Bearing in mind, then, the above statements of the legal position, what are the merits of this application? First, from the affidavits of the acting president and that of Togbe Keh XI, it is clear that the status of the divisional chief of Gbi-Wegbe is currently held by Togbe Keh XI. In paragraphs (5) and (40) of Togbe Keh XI’s affidavit filed on 6 February 1990 he avers:

“(5) That the divisional stool of Gbi-Wegbe has been from time immemorial the Keh stool and that the Abaka stool has always been a sub-divisional stool.

(40) That I am the rightful divisional chief of Gbi-Wegbe, having succeeded Togbe Keh X.”

And although Togbe Abaka VII in his affidavit of 15 March 1990 denies paragraph (40) he did not deny paragraph (5). Moreover, in exhibit D filed along with the affidavit of Togbe Wordie IV on 31 July 1989, which exhibit is the minute of the meeting of Gbi Traditional Council of 29 March 1979, the applicant’s Togbe Abaka VIII is recorded as a member of the council with a status of sub-divisional chief, while Togbe Keh X is recorded as a member with the status of a divisional chief. Mr Dotse in his argument conceded that Togbe Abaka VIII was a member of the Gbi Traditional Council as a sub-divisional chief of Gbi-Wegbe. I am therefore satisfied and do find that Togbe Keh XI the successor of Togbe Keh X is currently holding the status of the divisional chief of Gbi-Wegbe at the Traditional Council.

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I have to make it clear that this finding does not confer any validity on the said status of Togbe Keh XI. For as to whether Togbe Keh XI is indeed qualified to hold that status as opposed to Togbe Abaka VII is a matter I am not determining and in fact incompetent to determine. The effect of my finding is that the status of the divisional chief of Gbi-Wegbe is currently occupied by Togbe Keh XI who also claims to be equally entitled thereto. So that assuming the said status is a public one, it is currently full and not vacant. The applicant cannot therefore be admitted to that very status occupied, rightly or wrongly, by Togbe Keh XI unless the applicant takes steps to oust him from the position. As explained in the passage quoted from Halsbury’s Laws of England (3rd ed), Vol II, para 165 at p 88: “a mandamus will go only on the supposition that there is nobody holding the office in question.” And at page 148 of the same volume of Halsbury’s Laws of England; the learned author re-emphasises the point that where the office or position is in fact full, mandamus will not be granted.

Secondly, the acting president in his affidavit had argued that the Chieftaincy Amendment (No 2) Decree, 1967 (NLCD 136) had rectified what he termed the error in the Local Government Bulletin, No 35 of 1965 relied upon by the applicant. This NLCD 136 exhibited by the acting president as part of his exhibit A, gives credence to the claim of the Togbe Keh stool at Wegbe. Furthermore, the acting president also exhibits a judgment of the Gbi Traditional Council dated 17 July 1965 wherein that council had in the said judgment, that is exhibit B, confirmed the status of the Keh stool as the divisional chief of Gbi-Wegbe. In the teeth of these exhibits, how can the respondent be compelled to admit the applicant to occupy the very status which the council on the available materials had felt convinced that the applicant is not entitled to? I am therefore satisfied and do find that the acting president has good cause to refuse to admit the applicant as a divisional chief of Gbi-Wegbe.

But a more fundamental obstacle to the applicant’s prayer is that once Togbe Keh XI had opposed the application and claimed that he is the divisional chief of Gbi-Wegbe at the Gbi Traditional Council, and the applicant is equally pressing for admission to the same status, I cannot grant the applicant’s prayer without determining which of the two, that is the applicant and Togbe Keh XI, is entitled to the status of the divisional chief of Gbi-Wegbe. In other words, assuming for the

[p.718] of [1995-96] 1 GLR 702 meantime that the applicant is validly installed as a chief, I have to examine the constitutional relationship between these two chiefs at Gbi-Wegbe so as to decide which of them is entitled to the status in dispute. And as section 66(e) of Act 370 has it:

“66. . . .’Cause or matter affecting chieftaincy’ means any cause, matter, question or dispute relating to any of the following— (e) the constitutional relations under customary law between Chiefs.”

Thus the inquiry I have to undertake before deciding the claim of the applicant will drag me into matters I have no jurisdiction to deal with. It is certainly this aspect of the matter which leads Mr Dotse to plead with the court not to entertain the contentions of the respondents.

Having regard to the matters averred to in the two affidavits in opposition, I have no doubt in my mind that mandamus is inapplicable and cannot be employed to enable the applicant to acquire a status which is violently disputed by the stool of Togbe Keh. The proper forum to vindicate his claim is the judicial committee of the Gbi Traditional Council. Thus even if all the prerequisites for granting the order of mandamus had been established by the applicant, I would exercise my discretion against the issue of the order.

In R v Commissioners of Inland Revenue; In re Nathan (1884) 12 QBD 461 at 475, CA Lord Breth MR said:

“Where there is no specific remedy by which justice can be done, the court will grant a mandamus, but where there is a specific remedy by which the subject will get justice by a judicial decision of the Courts, then it is within the reason of the rule, that if there is such a remedy a mandamus ought not to issue.”

And in de Smith’s Judicial Review of Administrative Action (3rd ed) at p 501, the learned author writes: “Mandamus has always been regarded as an extraordinary, residuary and ‘suppletory’ remedy, to be granted only when there is no other means of obtaining justice. Even though all the requirements for securing the remedy have been satisfied by the applicant, the court will decline to exercise its discretion in his favour if a specific alternative remedy; ‘equally convenient,

[p.719] of [1995-96] 1 GLR 702 beneficial and effectual’ is available.”

For the above reasons I am of the view that the applicant is not entitled to the relief he hereby seeks. Consequently, the application is dismissed.

DECISION

Application dismissed.

DRKS