KWAFRAMOAH III vs. SAKRAKYIE II [1995-96] 1 GLR 542

CASES REFERRED TO

(1) Fosuhene v Akore II, Supreme Court, 2 June 1992, unreported.

(2) Pomaa v Fosuhene [1987-88] 1 GLR 244, SC.

(3) Fosuhene v Pomaa [1987-88] 2 GLR 105, SC.

[p.544] of [1995-96] 1 GLR 542

(4) Amoasi III v Twintoh [1987-88] 1 GLR 554, SC.

(5) Kumnipah II v Ayirebi [1987-88] 1 GLR 265, SC.

NATURE OF PROCEEDINGS

APPEAL by the appellants, the queen mother and kingmakers of Adanse in the Ashanti Region, against the decision of the National House of Chiefs overruling their preliminary objection to the assumption of original jurisdiction by the National House of Chiefs over an action brought against them by the respondent for, inter alia, a declaration that he was the incumbent Adansehene on the ground, inter alia, that a similar suit by the respondent was pending before the Ashanti Regional House of Chiefs; and in the result granting the respondent all the reliefs he had sought. The facts are sufficiently stated in the judgment of the court delivered by Abban CJ.

COUNSEL

Totoe for the appellants.

WAN Adumua-Bossman for the respondent.

JUDGMENT OF ABBAN CJ.

The appeal is from the judgment of the National House of Chiefs dated 29 November 1994. The respondent invoked the original jurisdiction of the National House of Chiefs by asking nananom to make certain declarations in his favour. In all, the respondent sought four distinct reliefs. That is, a declaration that he is the present Adansehene; that it is “now not customarily open” to the appellants to accept any nominee from the Adansehemaa for election as Adansehene; that the National House of Chiefs should order the appellants to hand over to the respondent the stool properties and paraphernalia of the Adanse paramount stool and put him in charge of the affairs of the Adanse Traditional Area; and for an order of perpetual injunction restraining the appellants from holding out any other person as the Adansehene.

The appellants, in their answer to the petition, denied the claims of the respondent and pleaded, inter alia, that as far back as 6 June 1985, the respondent filed a practically similar petition before the Ashanti Regional House of Chiefs against the kingmakers of the Adanse paramount stool; and that that petition is still pending before the Ashanti Regional House of Chiefs. The said petition was entitled “Samuel Asante Fosuhene v Baffour Akore II, Krotihene.”

It may be observed that in the petition filed in June 1985 before the

[p.545] of [1995-96] 1 GLR 542

Ashanti Regional House of Chiefs, the respondent petitioned in his, private capacity, while in the present petition the respondent styled himself as Nana Ntiako Sakrakyie II, an indication that he is already an occupant of the stool in question. Furthermore, in that petition, the kingmakers against whom the petition was brought were ten in number including the Adansehemaa; and the present first appellant was not one of them. However, in the National House of Chiefs the respondent petitioned against only four of the kingsmakers, excluding the Adansehemaa but added the first appellant.

In the petition which was before the National House of Chiefs and which is the subject matter of the present appeal, the appellants in their answer, among other things, pleaded that the dispute as to the alleged nomination and election of the respondent had not been resolved and those issues were still pending before the Ashanti Regional House of Chiefs in chieftaincy suit No 1/85 filed by the respondent in 1985 and that the respondent was not entitled to invoke the original jurisdiction of the National House of Chiefs.

When pleadings were supposed to have closed, the respondent filed a motion asking the National House of Chiefs to strike out the answer of the appellants on the ground that it “was a sham defence which did not disclose any reasonable answer to the petition. Or alternatively, the answer should be struck out as a frivolous or vexatious defence or an abuse of process.” After lengthy arguments by counsel, the National House of Chiefs on 29 November 1995 granted the respondent’s motion, struck out the appellants’ answer as “a sham defence disclosing no reasonable answer”; and consequently entered judgment for the “respondent for all the four reliefs sought in his petition.” It is against this judgment that the present appeal was lodged.

In this court, four grounds of appeal were filed by the appellants. Then an additional ground was later filed. Yet a further additional ground was filed on 4 March 1996. By consent of both counsel leave was granted to the appellants to argue those additional grounds as well. The further additional ground raised a question of jurisdiction and we intend to deal with that ground first. It states:

“Because the Ashanti Regional House of Chiefs could have dealt with the respondent’s case, the National House of Chiefs acted without jurisdiction in taking the case at first instance. The judgment of the National House of Chiefs should therefore

[p.546] of [1995-96] 1 GLR 542 be set aside.”

On this ground learned counsel for the appellants argued that the National House of Chiefs could not entertain the petition as a tribunal of first instance and the case was within the original jurisdiction of the Ashanti Regional House of Chiefs. He submitted that the National House of Chiefs could assume original jurisdiction only where the circumstances specified in article 273(5) of the Constitution, 1992 were present. But in the present case, the respondent did not show by his petition that those circumstances outlined in the said article of the Constitution, 1992 had arisen to enable the National House of Chiefs to assume original jurisdiction.

Learned counsel for the respondent in his reply contended that the same objection was raised by the appellants in the National House of Chiefs which considered it and eventually overruled it. Counsel further submitted that it was clear to the National House of Chiefs that this same objection had also been raised by the appellants in an earlier appeal before the Supreme Court in Fosuhene v Akore II, Supreme Court, 2 June 1992, unreported and that the Supreme Court on that occasion overruled the objection.

Thus, contended counsel, it is irrelevant that the respondent did not plead the circumstances envisaged in article 213 (5) of the Constitution, 1992 or did not plead the said judgment of the Supreme Court as res judicata. Learned counsel for the respondent again submitted that the appellants raised their objection in its present form only on the spur of the moment and without previous notification. Nevertheless, learned counsel contended that the arguments before the Supreme Court in the Fosuhene case (supra), contained the reason why the Ashanti Regional House of Chiefs was disqualified from hearing the petition, the reason being a real likelihood of bias on the part of the Ashanti Regional House of Chiefs against the respondent.

It is important that at this stage, records should be set straight. The dispute concerning the paramount stool of Adanse has had a very checkered history. As will be seen presently, this is about the third time the Supreme Court has been called upon to adjudicate on some aspect of that dispute. The first time was on 17 June 1987 in chieftaincy appeal No 3/1986 and the second was on 2 June 1992 in chieftaincy appeal No 1/91.

The respondent had filed motion in suit No 1/85 asking the Ashanti

[p.547] of [1995-96] 1 GLR 542

Regional House of Chiefs to enter judgment for him in the said suit on the ground that the defendants in the suit had admitted that the respondent was the Adansehene-elect. That motion was dismissed by the Ashanti Regional House of Chiefs on 22 July 1985. The respondent appealed to the National House of Chiefs which reversed the decision of the Ashanti Regional House of Chiefs. But the defendants appealed to the Supreme Court which on 17 June 1987 in Pomaa v Fosuhene [1987-88] 1 GLR 244, SC allowed the appeal and sent the petition back to the Ashanti Regional House of Chiefs for hearing on its merit.

Subsequently, the respondent filed an application, civil motion No 14/87, calling upon the Supreme Court to review its judgment in Pomaa v Fosuhene (supra). The Supreme Court (coram Sowah CJ, Adade, Taylor and Francois JJSC and Abban JA) on 26 November 1987 in Fosuhene v Pomaa [1987-88] 2 GLR 105, SC dismissed the application for review. Back to the Ashanti Regional House of Chiefs, the respondent, bent on not allowing the Ashanti Regional House of Chiefs to hear the case on its merit, started filing motions, one after the other before the Ashanti Regional House of Chiefs and the High Court, Kumasi constituted by Lartey J (as he then was). In the long run all those motions were dismissed.

The respondent then appealed to the National House of Chiefs which also dismissed the appeal. Still undaunted, he appealed to the Supreme Court. The Supreme Court (coram Wuaku, Amua-Sekyi, Osei-Hwere, Bamford-Addo and Charles Hayfron-Benjamin JJSC in Fosuhene v Akore II (supra) on 2 June 1992 (chieftaincy appeal No 1/91) dismissed the respondent’s appeal and directed the respondent to go back to the Ashanti Regional House of Chiefs for the hearing of his petition on its merit. That was the time this court had the second opportunity to hold that the proper forum where the respondent must resort to for the adjudication of his petition on its merit was the Ashanti Regional House of Chiefs.

It cannot therefore be denied that the respondent’s original petition filed against some of the present appellants in 1985 is still pending before the Ashanti Regional House of Chiefs. The respondent has not discontinued that action. In other words, instead of the respondent pursuing the petition before the Ashanti Regional House of Chiefs, he chose to file a fresh petition before the National House of Chiefs. The question then is, could the National House of Chiefs assume original

[p.548] of [1995-96] 1 GLR 542 jurisdiction to hear the respondent’s fresh petition?

The National House of Chiefs generally has appellate jurisdiction in matters relating to chieftaincy which have been determined by a regional house of chiefs. It is after the National House of Chiefs has exercised its appellate jurisdiction that a further appeal lies to this court with the leave of the National House of Chiefs or this court. The original jurisdiction of the National House of Chiefs can be invoked only if the situations outlined in article 273(5) of the Constitution, 1992 arise. The article states:

“(5) A Judicial Committee of the National House of Chiefs shall have original jurisdiction in any cause or matter affecting chieftaincy—

(a) which lies within the competence of two or more Regional Houses of Chiefs; or

(b) which is not properly within the jurisdiction of a Regional House of Chiefs; or

(c) which cannot otherwise be dealt with by a Regional House of Chiefs.”

Thus chieftaincy dispute which should normally be commenced by petition in the regional house of chiefs can be brought straight to the National House of Chiefs provided the petitioner, who intends to invoke its original jurisdiction, is able to establish that the circumstances envisaged by article 273(5) of the Constitution, 1992 have arisen. In other words, it is incumbent on the petitioner who is desirous of invoking the original jurisdiction of the National House of Chiefs to show, at least, in his petition that the regional house of chiefs which under normal circumstances should assume original jurisdiction cannot do so due to one or more of the reasons spelt out in article 273(5) of the Constitution, 1992. It has to be made clear that the original jurisdiction of the National House of Chiefs cannot be invoked as of right and that anyone who intends to invoke its original jurisdiction has to bring himself within the ambit of the provisions of article 273(5) of the Constitution, 1992.

The respondent herein, unfortunately, never gave the slightest indication in his petition as to the reason why he was compelled to invoke the original jurisdiction of the National House of Chiefs. The respondent ought to have at least alleged in his petition that because of

[p.549] of [1995-96] 1 GLR 542 this or that the dispute could “not otherwise be dealt with” by the Ashanti Regional House of Chiefs.

On the other hand, the appellants in their answer to the petition, paragraph (14), raised objection contending that: “on the facts and particulars the petitioner [the respondent herein] is not entitled to invoke the jurisdiction of the house to hear this petition and it should accordingly be dismissed.”

It can be seen that the question of jurisdiction was not raised on the spur of the moment as contended by learned counsel for the respondent. It was raised at the very first possible opportunity in the answer. This plea should have put the respondent on his guard and should have compelled the respondent to amend his petition or file a reply disclosing the reasons why he had by-passed the Ashanti Regional House of Chiefs which had original jurisdiction to hear the respondent’s case. This would have also given opportunity to the National House of Chiefs to decide whether the reasons so pleaded fell within the provisions of article 273(5) of the Constitution, 1992 or not.

It is on record that when the National House of Chiefs was about to hear the respondent’s application to strike out the appellants’ answer as not having disclosed any reasonable defence, learned counsel for the appellants had a second opportunity to raise a preliminary objection in an attempt to draw the attention of nananom to the appellants’ plea in paragraph (14) of the answer that nananom were not entitled to take the case at first instance. Nananom faced with this preliminary objection of learned counsel for the appellants sought refuge under the judgment of this court entitled Fosuhene v. Akore II (supra) and overruled the said objection in the following terms:

“In any case in this particular case he [Mr Bossman] is fortified by the authority in Fosuhene v Akore II, Supreme Court, 2 June 1992, unreported which ruled, inter alia, that:

‘It is my view that on the principle above, all the members of the Ashanti Regional House of Chiefs would be disqualified from adjudicating upon the appellant’s petition.’

Majority of their lordships agreed with this view. This then was the view of the Supreme Court and we consider ourselves bound by it without going into the intricacies of the law. We

[p.550] of [1995-96] 1 GLR 542 therefore consider this case properly before us under article 273 (5) of the Constitution, 1992.”

(The emphasis is mine.)

With the greatest respect to nananom, it seems to us that they did not grasp the ratio in the judgment of the Supreme Court in Fosuhene v Akore II (supra). Nananom might have been inadvertently misled by the submissions of learned counsel for the respondent. We have had the benefit of reading carefully that judgment.

The Supreme Court in that judgment never held that the Ashanti Regional House of Chiefs was disqualified from adjudicating on the respondent’s petition as a tribunal of first instance. On the contrary, the Supreme Court was unanimous that the proper forum which the respondent must resort to was the Ashanti Regional House of Chiefs. We will demonstrate this by quoting portions of the Supreme Court judgment in question. In his judgment Amua-Sekyi JSC concluded as follows:

“He [the respondent herein] lodged an appeal with the National House of Chiefs and, as it appears, simultaneously applied to the High Court, Kumasi for an order of prohibition. He [the respondent herein] failed in both the High Court and before the National House of Chiefs. This appeal is from the decision of the latter. We have read with utmost care the record of proceedings submitted to us as well as the written submissions of counsel for the appellant [the respondent herein]. We have found nothing to support the appellant’s [the respondent’s] contention of a real likelihood of bias. We consider the appeal as being without merit and accordingly dismiss it.”

In the course of her judgment Bamford-Addo JSC also stated:

“The High Court cannot assume that the National House of Chiefs was a forum open to the appellant [the respondent herein]. The High Court was therefore right in saying that the regional house, in the circumstances of this case, was a forum of necessity as it was at that time the only normal and proper forum, since the appellant [the respondent herein] had not raised the issue that he even qualifies to use the alternative forum. In any case, his lordship ruled specifically that there

[p.551] of [1995-96] 1 GLR 542 was no likelihood of bias which was the main issue in the prohibition proceedings.”

Charles Hayfron-Benjamin JSC after considering the submissions of both counsel in the case said: “In a more straightforward language the courts ought not to permit a failure of justice for want of a judge or in the present appeal for want of court. The Ashanti Regional House of Chiefs was the proper forum and there the petition had to be heard and determined. Lartey J (as he then was) therefore dismissed the application for the order of prohibition and stated that the ‘respondents [members of the judicial committee of the Ashanti Regional House of Chiefs] should feel free to hear and determine the dispute in a judicial manner. . .’ If the appellant [the respondent herein] was aggrieved by this ruling, he had a right of appeal. This he [the respondent herein] failed to do. I therefore hold that the ruling of Lartey J (as he then was) was binding on both the judicial committee of the Ashanti Regional House of Chiefs and the chieftaincy tribunal of the National House of Chiefs … I have read the lucid factual analysis of the matters concerned with this appeal in the opinion of my learned and respected brother Amua-Sekyi JSC, and I agree with his reasoning and conclusions. . .”

Incidentally, the other two justices, Wuaku and Osei-Hwere JJSC, agreed with the conclusions reached by the other three justices. From the portions of the three judgments we have quoted above, it is obvious that the Supreme Court never held that the members of the Ashanti Regional House of Chiefs were disqualified from adjudicating on the respondent’s petition. The conclusion arrived at by the Supreme Court in that judgment was that the Supreme Court found nothing to support the present respondent’s contention of a real likelihood of bias on the part of the Ashanti Regional House of Chiefs and that “the latter should feel free to hear and determine” on its merit the respondent’s petition No 1/1985 still pending before the Ashanti Regional House of Chiefs. But the respondent chose to ignore the said judgment of the Supreme Court referred to supra, and filed a fresh petition in the National House of Chiefs, the subject matter of the present appeal.

With due respect, nananom erred in holding that they were bound by

[p.552] of [1995-96] 1 GLR 542 the Supreme Court judgment of 2 June 1992 to exercise original jurisdiction in the matter. The portion of the said Supreme Court judgment quoted by nananom in their ruling and on which nananom relied as binding on them was an obiter dictum which appeared in the judgment of my learned and respected brother Charles Hayfron-Benjamin JSC; and not being the ratio decidendi it had no binding force.

If nananom had had the benefit of good guidance from learned counsel, they would have construed the said judgment properly and would not have hastily concluded that they were fortified by the “authority in chieftaincy appeal No 1/91 of 2 June 1992, Fosuhene v Akore II (supra)” to assume original jurisdiction in the matter. Since nananom relied solely on the said judgment to appropriate to themselves original jurisdiction in the matter, and since it has been clearly shown that that judgment could not, by any stretch of the imagination, have empowered them to do so, there was therefore no basis whatsoever for refusing to accede to the preliminary objection raised earlier on before them by learned counsel for the appellants, namely nananom had no jurisdiction to assume original jurisdiction in the matter.

Furthermore, the conditions under which the National House of Chiefs could have taken the petition at first instance as specified in article 273(5) of the Constitution, 1992 were not even present or satisfied by the respondent and so the respondent could not even have brought his case within the provisions of that article.

This ground of jurisdiction really disposes of the appeal and there is therefore no need to go further into the other grounds of appeal. If a tribunal adjudicates on a dispute over which it has no jurisdiction, its decision thereon is a nullity and the party affected by it is entitled ex debito justitiae to have it set aside. The appellants herein were entitled to raise the question of jurisdiction at any stage of the litigation, even at the Supreme Court level. However, in the case of the appellants, they raised the objection timeously: see Amoasi III v Twintoh [1987-88] 1 GLR 554, SC.

This was a so-called chieftaincy dispute which was adjudicated upon by the Eguafo Traditional Council. It went on appeal to the Central Regional House of Chiefs, then on further appeal to the National House of Chiefs. In all those tribunals, the question of jurisdiction was

[p.553] of [1995-96] 1 GLR 542 never raised. But it was raised for the first time in the Supreme Court and the Supreme Court held that the appellant was entitled to do so; and since the Eguafo Traditional Council had no jurisdiction to adjudicate on the dispute because the dispute was about headship of a family and was not a “cause or matter affecting chieftaincy” its judgment and all the subsequent ones were a nullity. See also Kumnipah II v Ayirebi [1987-88] 1 GLR 265, SC. The same thing can be said of the judgment of the National House of Chiefs, currently under attack in this appeal. Since the National House of Chiefs had no original jurisdiction to entertain the petition, the judgment appealed from cannot stand. It is a complete nullity.

We would in the circumstances allow the appeal and set aside the judgment of the National House of Chiefs dated 29 November 1994.

DECISION

Appeal allowed.

DRKS