REPUBLIC vs. PEPRAH AND OTHERS; EX PARTE AGYEIWA [1997-98] 1 GLR 1011

CASES REFERRED TO

(1) Republic v Akim Abuakwa Traditional Council; Ex parte Sakyiraa II [1977] 2 GLR 115.

(2) Republic v Asokore Traditional Council; Ex parte Tiwaa [1976] 2 GLR 231, CA.

(3) Republic v High Court, Accra; Ex parte Laryea [1989-90] 2 GLR 99, SC.

(4) Republic v Akim Abuakwa Traditional Council; Ex parte Antwi [1984-86] 2 GLR 756.

(5) Republic v President, National House of Chiefs; Ex parte Akyemfour II [1983-831(1)[sic]] GLR 19, CA.

(6) Yovuyibor v Attorney-General [1993-94] 2 GLR 343, SC.

NATURE OF PROCEEDINGS

APPLICATION to the High Court, Kumasi by the queenmother of Apagya for an order of certiorari to quash the decision of the respondents, the chief of Apagya and some of the elders of the stool, declaring the applicant destooled as queenmother. The facts are sufficiently set out in the ruling.

COUNSEL

Dennis Adjei for the applicant.

Akosah for the respondents.

JUDGMENT OF QUAYE J.

Pursuant to leave granted by the High Court, Kumasi on 15 January 1997 the applicants herein filed this motion under Order 59, rr 4 and 5 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) for an order of certiorari to quash an alleged oral pronouncement by the respondents purported at destooling the first applicant herein as queenmother of Apagya and the second applicant as head of the Ekuona royal family of Apagya on 29 December 1996. It is the complaint of the applicants that the purported act of the respondents is illegal, ultra vires the respondents and sins against the known tenets of natural justice. The applicants contend that the first applicant has been the incumbent queenmother of Apagya where the first respondent is chief, continuously for the past 25 years. She has been enjoying the rights and privileges of that position, as well as performing the obligations attendant thereto without let, until recently when she

[p.1014] of [1997-98] 1 GLR 1011 voiced disapproval of certain conduct of the first respondent. Since then the first respondent has not relented in finding ways to destool the first applicant.

This anxiety on the part of the first respondent to destool the first applicant came to a head on 9 December 1996 when the first respondent caused the beating of a gong-gong at Apagya to announce publicly, the destoolment of the first applicant and the second applicant from their respective traditional offices as queenmother and Ekuona abusuapanin of Apagya. To demonstrate their battle readiness, the respondents confirmed their action by causing a publication of an advertiser’s announcement in the Pioneer newspaper issue of Monday, 6 January 1997 at p 7. The said publication was in terms as follows: “Advertiser’s Announcement PUBLIC NOTICE NANA OWUSU PEPRAH, Chief of APAGYA near Kodie in the Ashanti Region wish to inform the General Public that NANA YAA AGYEIWAA, hitherto the Queenmother of Apagya has been destooled by the Chief and Elders of Apagya Stool in accordance with Ashanti Custom since 29th of December, 1996.

Consequently, NANA YAA AGYEIWAA has ceased to be the Queenmother of Apagya and anybody who deals with her as the Queenmother of Apagya from 29th of December, 1996 does so at his/her own risk.

NANA OWUSU PEPRAH (CHIEF OF APAGYA)”

Need it be said that it is the above utterance by the first respondent which was manifested or confirmed by the alleged beating of the gong-gong in the principal places at Apagya and the subsequent publication of the destoolment of the first applicant in the Pioneer newspaper which is taken exception of by the applicants, resulting is this application for an order of certiorari to bring the said oral pronouncement and subsequent publication of destoolment of the first applicant up for quashing by this court.

This application, according to counsel for the applicants, is founded on two main grounds. The said grounds are given to be:

[p.1015] of [1997-98] 1 GLR 1011

(1) that the respondents had no jurisdiction on 29 December when they illegally constituted themselves into a body clothed with power to pronounce destoolment of the applicants; and (2) that the respondents acted in breach of natural justice.

An affidavit in opposition was filed on 14 February, 1997. It was deposed to by the first respondent who recited as acting with the consent and concurrence of the second and third respondents. In the said affidavit the respondents claimed that rifts occurred between the first respondent and the first applicant which went before the Akyempemhene, leading to the two highest traditional office holders in Apagya swearing the great oath of Otumfuo to live in peace and harmony. In spite of the oath, however, the applicant conducted herself variously in a way that was not in keeping with her oath of office. Notable among the rebellious acts of the first applicant was her beating of gong-gong.

I have taken pains to refer to the above, it being the originally intended answer of the respondents to the case of the first applicant. In respect of the second applicant, both parties said he was not appointed to any traditional office; hence he was not destooled. The point that stands out clearly, however, is that the respondents completely abandoned the above line of defence altogether. When counsel for the respondents stood to reply to the arguments and submissions on behalf of the applicant, he merely directed attention at an issue which had previously not been contended. By a supplementary affidavit filed by the first respondent, the respondents now claim that searches they conducted in the National House of Chiefs and the Ashanti Regional House of Chiefs revealed the true position regarding the first applicant, that she is not recognised by either house of chiefs as a chief and therefore she cannot in this application seek to invoke provisions, procedures or reliefs that apply to only chiefs. This to say the least is a very interesting development in this application. I shall, however take my time to consider the application as a whole, starting with the submissions made on behalf of the first applicant, and concluding with those on behalf of the respondents.

The applicant is invoking the supervisory jurisdiction of the High Court. Counsel has argued that even though chieftaincy matters per se are the sole preserve of the traditional councils and the houses of chiefs as provided under the Chieftaincy Act, 1971

[p.1016] of [1997-98] 1 GLR 1011

(Act 370), yet the Constitution, 1992 and the Courts Act, 1993 (Act 459) both endow the High Court with supervisory jurisdiction over all inferior or lower courts and tribunals including the chieftaincy tribunals. None of the traditional councils nor the houses of chiefs has supervisory jurisdiction in any chieftaincy matter. Counsel referred to Republic v Akim Abuakwa Traditional Council; Ex parte Sakyiraa II [1977] 2 GLR 115, and also to Republic v Asokore Traditional Council; Ex parte Tiwaa [1976] 2 GLR 231, CA. Upon the above authorities, counsel submitted that the High Court has jurisdiction to quash by prerogative order, decisions of a traditional council. In the instant application the respondents had no jurisdiction; hence any proceedings emanating from them is quashable. Perhaps of much more importance is a definition of the role that the respondents assumed or arrogated to themselves.

In their original affidavit in opposition to this application, the respondents did not attempt to show how many elders met or gathered and took the decision to destool the first applicant. I have undertaken a careful reading of the said affidavit in opposition and, if I am not mistaken, I do not see where they claim any mandate or delegation of authority from the traditional council to act and take decisions on its behalf. This issue is accorded great deal of importance considering that the respondents would be stripped of all pretences if they do not constitute the traditional council, which is the only body recognisable by law and having authority or jurisdiction to depose, or pronounce the first applicant, a queenmother, destooled.

The Chieftaincy (Proceedings and Functions) (Traditional Councils) Regulations, 1972 (LI 798) is very relevant to the determination of the issue. Regulation 1 of 798 states:

“ 1. (1) A Traditional Council established under section 12 of the Chieftaincy Act, 1971 (Act 370) shall have jurisdiction to hear and determine any cause or matter affecting chieftaincy which arises within its area.”

By the above provision, clearly, only the traditional council has power to determine cause affecting chieftaincy within the district of its jurisdiction. Thus no other adjudicating tribunal or court of

[p.1017] of [1997-98] 1 GLR 1011 law can competently assume jurisdiction. While the jurisdiction of the courts is excluded in chieftaincy causes or matters by this provision, the traditional councils are granted exclusive power to adjudicate. I consider it appropriate at this stage to refer also to section 2 of LI 798 which provides: “2. The jurisdiction conferred on each Traditional Council by sections 15 of the Chieftaincy Act and these regulations shall be exercised by a judicial committee.”

In their answer, the respondents did not make any pretence to being the traditional council nor the judicial committee thereof. Their action was neither judicial nor quasi-judicial. They did not purport to act for or on behalf of the traditional council. They therefore simply lacked jurisdiction. In a society ruled by laws and not by the whims of men, no single individual can assume powers that place him outside the confines of the law, so as to act in any way he pleases at any time. Admittedly, there might arise occasions, circumstances, situations or events, where a person would wish there were no laws, so that he could express himself the way he felt; but just imagine, if everyone was to be allowed to express himself as he felt, how chaotic the situation and society at large would be. It is apparent that in this case the honoured respondents allowed themselves to fall headlong into the trappings of lawlessness, and wrongfully assumed or usurped the exclusive powers of the traditional council. Their action was illegal. Their pronouncement of the destoolment of the first applicant is null and void and of no effect for want of jurisdiction.

In Republic v High Court, Accra; Ex parte Laryea [1989-90] 2 GLR 99, SC the Supreme Court defined jurisdiction to mean the power or authority of the court to give a decision on the issue before it. However, a more precise authority touching on the assumed rule and conduct of the herein respondents is Republic v Akim Abuakwa Traditional Council Ex parte Antwi [1984-86] 2 GLR 756 where Abaka J held, as stated in the headnote, that: “(1) a body which proceeded to determine matters which by statute are reserved to another body must be subject to review by certiorari.” It is clear on the face of this decision that where the respondents purported to do the work of the traditional council, they cannot be excused from blame for the simple reason that they are not the traditional council. The court’s sanctions will [p.1018] of [1997-98] 1 GLR 1011 apply to them as they would the traditional council which did not conduct its affairs judicially.

By law, the only authority vested with jurisdiction to pronounce sanction is the High Court. Witness article 141 of the Constitution, 1992 of Ghana which states: “141. The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority . . . “ This same provision is re-enacted in section 16 of Act 459, in which provision the orders that the High Court may make, depending upon the application, are stated. The supplied words are: “16 . . . and may in the exercise of that jurisdiction issue orders and directions including orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto . . .”

I agree with counsel for the applicants that neither the National House of Chiefs, the regional house of chiefs nor the traditional council or the judicial committee of the traditional council has jurisdiction to issue such orders. In a similar manner that the law makes chieftaincy matters the exclusive domain of the houses of chiefs and the traditional councils, the exercise of supervisory jurisdiction and the issue of orders of habeas corpus, certiorari, quo warranto, mandamus, and prohibition is exclusive to the High Court. The intention here is to check excesses, arbitrariness and infringement of natural justice and ensure the due process of law. It is also to streamline and render the smooth application of customary law side by side the common law and statute. I shall revert to this later for further consideration.

The next issue taken up by counsel for the applicant is that the respondents in purporting to do what they did, acted in breach of natural justice. It was submitted that the first applicant was not confronted with any charges, and none were preferred. Besides, the above, she was not given any hearing at all. Whenever the audi alteram partem rule which is a kingpin in our jurisprudence is infringed, there is said to be want of natural justice. The facts of the case of Republic v Asokore Traditional Council; Ex parte Tiwaa (supra), seem to be similar in a way to the instant case. The queenmother was declared destooled in absentia by the Asokore Traditional Council. Among the points canvassed before the Court of Appeal was the fact that the traditional council did not act judicially because they did not observe the most elementary

[p.1019] of [1997-98] 1 GLR 1011 norms of natural justice. In the judgment of the Court of Appeal read by Apaloo JA (as he then was) the court at 244 quoted from Halsbury’s Laws of England (3rd ed), Vol 30, p 718 para 1368, as follows:

“[a] the parties to the proceedings shall be duly notified when and where they may be heard and shall be given full opportunity of stating their views; [b] the matters in dispute being decided honestly, impartially and without bias [c] by a tribunal no member of which has any interest, either pecuniary or otherwise in the matter.”

The court proceeded at the same page to add that:

“it is also an accepted principle of natural justice, that nobody can be a judge in his own cause. The substantial complainant in this matter was the Omanhene, yet he presided over the proceedings, took part in the so-called adjudication and pronounced the ‘sentence’ of destoolment . . .”

The above reference sums up what actually transpired in the instant case. The applicant says she was not invited to answer any charges. From the affidavit in opposition the first respondent, the chief of Apagya, is carved out as the principal complainant. He finds the first applicant a veritable thorn in his flesh and would very readily not have her hanging around his neck like an albatross. In paragraph (15) of his affidavit in opposition the first respondent states: “(15). That I and my sub-chiefs together with some family members saw the conduct of the first applicant as uncustomary, rebellious and consequently declared her as destooled.”

Even though the first respondent stated that he sent for the first applicant, this averment was vehemently denied by the applicant. Notwithstanding, the respondents have not suggested that they made charges against the first applicant which they communicated to her. To the extent therefore that no charges were preferred against the first applicant, and she was not given an opportunity to answer any charges against her, and in is so far as the first respondent acted as judge in his own cause, there is

[p.1020] of [1997-98] 1 GLR 1011 enough material before me to uphold the submission of counsel for the applicants that the decision that was taken by the respondents against the first applicant was not in accordance with the known and acceptable norms of natural justice. The decision emanating from that proceeding is therefore quashable by an order of certiorari.

The next issue is whether the first applicant is a chief and therefore properly before this court. It has been argued by counsel for the applicant, Mr Dennis Adjei, that the first applicant is a chief and recognised as such under the existing laws. If this allegation is correct, then he submits, she cannot be destooled except by the processes laid down in LI 798 and other applicable laws. Mr Akosah of counsel for the respondents however contends otherwise. He relies solely on the result of searches he conducted in the National House of Chiefs and the Ashanti Regional House of Chiefs and submits that to the extent that the first applicant’s name does not appear in any of the registers of chiefs, then she is not a chief.

To unravel the knots in this case I shall turn to the law. Act 370 in section 48 shows who a chief is. The section provides:

48. (1) A Chief is an individual who has, in accordance with customary law, been nominated, elected and installed as a Chief or as the case may be appointed and installed as such and whose name for the time being appears as a Chief on the National Register of Chiefs:

Provided that no person shall be deemed to be a Chief for the purposes of the exercise by him of any function under this Act or under any other enactment, unless he has been recognised as such by the Minister by notice published in the Local Government Bulletin.

(2) Subject to the foregoing subsection (1) the name of any person who has been installed as a Chief shall be entered by the National House of Chiefs in the National Register of Chiefs not later than one month from the date of the receipt of the notification of such installation.”

Section 49 gives categories of chiefs. These include (a) the Asantehene and paramount chiefs; (b) divisional chiefs; (c) sub

[p.1021] of [1997-98] 1 GLR 1011 divisional chiefs; (d) adikrofo; and (e) such other chiefs not falling within any of the preceding categories as are recognised by the regional houses of chiefs.

Counsel for the applicant has strongly sought to debunk the premise of the submission by Mr Akosah that in so far as the first applicant’s name does not appear in the National Register of Chiefs, then she is not a chief. Mr Adjei’s contention that the search conducted by the respondents ought to have gone a step lower to the traditional council, is with the greatest deference to counsel, without much merit. The provision in Act 370 talks of only one National Register of Chiefs into which record of anyone who calls himself or herself a chief is to be made. The law does not say, or suggest, with respect, that only the Asantehene and the paramount chiefs should have their particulars recorded in the National Register. Neither does Act 370 suggest that a register should be kept at each level of chiefs, so that the National House of Chiefs would keep a register for only its members; a regional house of chiefs would keep a register for regional chiefs, and for the traditional council to keep a register for adikrofo and other chiefs. It is for uniformity that the law provides for one omnibus document known as the National Register of Chiefs. This document is to be kept in the National House of Chiefs and will contain particulars of all chiefs. By this reasoning, therefore the first applicant, if her name does not appear, and she is not particularised in the register, is not recognised as chief.

The immediate preceding statement however is not a conclusive finding of fact. It is the conclusion that is drawn looking at Act 370 per se. That Act was passed in 1971. Since that date there have been significant improvement in the law. The most notable change is found in chapter 22 of the Constitution, 1992 which is the chapter that deals with chieftaincy. By article 277 of the Constitution, 1992 a,2(2)[sic] “‘chief’ means a person, who, hailing from the appropriate family and lineage, has been validly nominated, elected or selected and enstooled, enskinned or installed as a chief or queenmother in accordance with the relevant customary law and usage”

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Comparatively, the provision under chapter 22 of the Constitution, 1992 is by and large different from that under Act 370. The constitutional provision strips the definition of conditions bordering on publication in the Gazette, recognition by a minister and the recording of the name and other particulars of the chief in the National Register of Chiefs.

I will say that those conditions as appear under the Act 370 are merely for administrative purposes and in certain instances might tend to conflict with the substance of a chief. The institution of chieftaincy is potentially customary, yet by the operation of law, a person who has completed all the customary procedure of becoming a chief was denied recognition if he did not also complete the administrative formalities. In Republic v The President, National House Of Chiefs; Ex parte Akyemfour II [1982-83] GLR 10, CA the Court of Appeal held, as stated in the headnote, that:

“the duty to maintain a register as laid down in section 50(1) of the Chieftaincy Act, 1971 (Act 370) and the discretion given by section 50(2) to the National House of Chiefs (N.H.C.) to insert in the register certain information relating to chieftaincy . . . were all purely administrative functions . . .”

Perhaps, it was the realisation of such difficulty and conflict which led the framers of our Constitution, 1992 to remove those administrative trappings from the definition of a chief.

The question still remains whether in the face of the constitutional provision Act 370 is relevant. The Constitution, 1992 itself provides the answer. Article 11 of the Constitution, 1992 defines the laws of Ghana as including the existing law. I think Act 370 qualifies and is continued in effect as an existing law. With regard to the operation of the existing law, article 11(6) of the Constitution, 1992 provides a cache which enjoins us to construe the existing laws:

“ . . . with [such] modifications, adaptations, qualifications and exceptions necessary to bring it into conformity with the provisions of this Constitution, or otherwise to give

[p.1023] of [1997-98] 1 GLR 1011 effect to, or enable effect to be given to, any changes effected by this Constitution.”

See Yovuyibor v Attorney-General [1993-94] 2 GLR 343 at 352, SC per Edward Wiredu JSC. The Constitution, 1992 by article 1(2) makes the Constitution the supreme law of Ghana “and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency be void.”

These provisions are very clear, unambiguous and do not render themselves of any difficulty of understanding. It stands to reason therefore that where the Constitution, 1992 defines who is a chief differently from the definition provided under Act 370, the conflict that arises must surely be resolved in favour of the constitutional provision. I will say therefore at this stage without any fear of contradiction, that under the present laws a chief includes a queenmother; a chief is a chief whether he has been published in the Local Government Bulletin or not; he is a chief nonetheless whether or not he has been formally recognised by the minister; and not the least, whether or not his name is recorded in the National Registrar of Chiefs. To state the present position in more positive terms, the current law does not impose any imperative of recording a person’s name in the National Register of Chiefs. It is therefore not essential that the first applicant’s name should appear in the National Register of Chiefs. She is not any less a queenmother if her name does not appear in it.

I will at this stage examine the conduct of the parties. The respondents have not sought to deny that the first applicant is their queenmother of 25 years standing. The fact that the respondents accepted the first applicant, and recognised and treated her as the incumbent queenmother and a working partner for all these years must operate as estoppel against them. It is also a fact, true to nature, in human affairs that a person cannot be destooled or removed from office or any position unless he actually held that position. If he did not hold that position, he could not be removed from it. If the first applicant was not the queenmother of Apagya, then the first respondent chief, his elders and family members would not go to the trouble of destooling her. A person cannot resign from a post he did not hold. It is therefore my candid view that the fact that the respondents considered it worthwhile

[p.1024] of [1997-98] 1 GLR 1011 to pronounce the applicant destooled presupposes that they recognised her as holder of this position from which they purported to destool her. It does not lie in the mouths of the respondents therefore to deny an obvious fact.

Having held that the first applicant is the queenmother of Apagya, and therefore a chief under the laws of Ghana, she is entitled to all the protections provided by law. She can only be removed from that office in terms as provided in Part V of Act 370, LI 798 and any other applicable law not inconsistent with the Constitution, 1992.

To conclude, I must find out whether there is sufficient ground on which to grant the application, or whether it should be dismissed. The consideration here was stated in the headnote of Republic v Akim Abuakwa Traditional Council; Ex parte Sakyiraa (supra) that:

“(7) . . . In dealing with applications of this nature, therefore, the court’s primary concern was limited to finding out whether those responsible for exercising that customary or statutory right have not abused their power.”

In the instant application, I rule they have. Accordingly, I make the order and proceed to quash the purported destoolment of the first applicant by the respondents. The case in respect of the second applicant was abandoned; hence I make no finding or order in his respect.

DECISION Application granted. SA

Endnotes

1 (Popup – Footnote) 1 same in original.

2 (Popup – Footnote) 2 same in the original.