THE JUDICIAL POWERS OF THE JUDICIAL COMMITTEE OF A TRADITIONAL COUNCIL

THE JUDICIAL POWERS OF THE JUDICIAL COMMITTEE OF A TRADITIONAL COUNCIL

INTRODUCTION

In Ghana, the institution of chieftaincy, together with its traditional councils as established by customary law and usage is guaranteed. Parliament shall have no power to enact any law which confers on any person or authority the right to accord or withdraw recognition to or from a chief for any purpose whatsoever; or in any way detracts or derogates from the honour and dignity of the institution of chieftaincy[1].

WHO IS A CHIEF

A Chief is a person who, hailing from the appropriate family and lineage, has been validly nominated, elected or selected and enstooled, enkinned or installed as a chief or queenmother in accordance with the relevant customary law and usage[2].

CATEGORIES OF CHIEFS

The categories of chiefs in Ghana includes;

1. a) Paramount Chiefs
2. b) Divisional Chiefs
3. c) Sub-Divisional Chiefs
4. d) Adikrofo and
5. e) Other Chiefs recognized by the National House.

POWER TO PERFORM STATUTORY DUTIES OF A CHIEF

A person shall not be considered to be a chief for the performance of a function under the Chieftaincy Act or any other enactment, unless that person has been registered for the performance of that function in the National Register of chiefs and that person’s name has been published in the Chieftaincy Bulletin[3]. It means that, a Chief is not considered a chief just the performance of a statutory duty under any Status unless the name of such person is entered into the National Register of Chiefs.

THE MEANING OF JUDICIAL COMMITTEE.

Judicial Committee means a committee appointed under sections 25, 28 or 29 of the Chieftaincy Act, 2008[4]. The Judicial responsibilities are imposed by the 1992 Constitution and Statutes such as Act 759 and Court Act, 1993. The Judicial functions engage the chief in the determination of disputes at the judicial committee of traditional council, regional houses of chiefs or the national house of Chiefs.

CAUSES OR MATTERS AFFECTING CHIEFTAINCY.

A cause or matter affecting chieftaincy” is a question or dispute relating to a chief or Chieftancy. It may include the following:[5]

(a) the nomination, election, selection or installation of a person as a chief or the claim of a person to be nominated, elected, selected or installed as a chief,

(b) the deposition or abdication of a chief,

(c) the right of a person to take part in the nomination, election, selection or installation of a person as a chief or in the deposition of a chief,

(d) the recovery or delivery of stool property in connection with the nomination, election, selection, installation, deposition or abdication of a chief, and

(e) the constitutional relations under customary law between chiefs.

MEMBERSHIP OF THE TRADITIONAL COUNCIL

There shall be a Traditional Council in each Traditional Area[6]. The name and members of each Traditional Council shall be stated in the National Register of Chiefs maintained under section 59 of Chieftaincy Act[7]. Any chief below the Paramount chief should be eligible to be admitted as a member of the Traditional Council. In practice, membership is limited to the Divisional Chiefs in many Traditional areas, subject to few exceptions. A Traditional Council shall consist, in addition to the President, of the persons shown in the National Register of Chiefs as the Members of the Traditional Council.[8]

As soon as practicable, after a change occurs in the membership of a Traditional Council, the Council shall notify the Regional House which shall in turn notify the National House and, subject to subsection (3), the National House shall cause the Register to be altered accordingly[9]. Where the National House is satisfied after consultation with the appropriate Regional House that a chief shall, or shall not, be a member of a Traditional Council, the National House shall amend the Register accordingly[10].

THE TERRITORIAL JURISDICTION OF THE JUDICIAL COMMITTEE OF THE TRADITIONAL COUNCIL.

A Traditional Council has exclusive jurisdiction to hear and determine a cause or matter affecting chieftaincy which arises within its area, not being one to which the Asantehene or a paramount chief is a party[11]. In practice, the mere inclusion of the Paramount chief or Queen mother as a party before the Judicial Committee of the Traditional Council does not mean the Traditional Council has no jurisdiction. It is the subject matter of the cause of matter which is used to determine whether the Traditional council is clothed with jurisdiction or not. Parties intentionally make the paramount chief a party to oust the jurisdiction of the Judicial Committee of the Traditional Council. Whereupon, the subject matter of the cause of action revolves on a Divisional, Subdivisional or Odikro stool, the judicial committee within the Traditional Area has the jurisdiction to adjudicate such matter.

The Judicial Committee of the Traditional Council is the right venue and forum to initiate an action in relation to a cause or matter affecting chieftaincy thus including matters affecting Queenmothers, stool, or a skin below the status of the Paramount Chiefs. The judicial power of the Traditional Council is vested in the Judicial Committee. The territorial jurisdiction of the Judicial Committee shall be within the traditional area. Every traditional Council of a Traditional Area has its own Judicial Committee and its powers shall not be extended beyond the territorial borders of the Traditional Area.

The jurisdiction conferred on each Traditional Council and shall be exercised by a judicial committee. The Judicial committee of a Traditional area functions within the territory of the Traditional Area and such powers does not extend to another Traditional Area[12]. For instance, the Judicial committee of Atebubu is not clothed with the jurisdiction to sit on matters emanating from Abease Traditional area. This means that the venue of a case, solely depends on the traditional area it emanates from.

THE COMPOSITION AND APPOINTMENT OF THE JUDICIAL COMMITTEE OF THE TRADITIONAL COUNCIL.

The jurisdiction of a Traditional Council shall be exercised by a Judicial Committee comprising three or five members appointed by the Council from their members[13]. A judicial committee shall be appointed by a Traditional Council and shall consist of five persons all of whom shall be members of that Council[14]. A judicial committee shall elect one of their number as Chairman, who shall preside over the committee[15]. A judicial committee shall be duly constituted for the dispatch of its business by not less than three members thereof[16]. The determination of any question before the judicial committee of a Traditional Council shall be by simple majority[17].

The judicial committee members shall be appointed by the full members of the Traditional Council[18]. This connotes that a judicial committee should be appointed at the General meeting of the Traditional Council. Since a general meeting cannot be organized for a sole purpose of appointment of Judicial Committee member due to cost and other factors. A resolution can be held at a general of the council of the members of the that the powers of the General council has been vested in the President of the Traditional Council and therefore, he can do the appointment on behalf of the Council when the need arises. The members of the Traditional Council can also appoint a pool set of members so that anytime a chieftaincy matter is filed at the registry such pool will be given them for adjudication.

The membership of the Judicial Committee of the Traditional Council is coterminous to the membership of the Traditional Council. One cannot be a member of a Judicial Committee without being a member of the Traditional Council.

The first criteria to satisfy to becoming a member of a panel of a Judicial Committee is be a registered member of the Traditional Council. The second step to qualify for an appointment as a member of a Judicial Committee is to swear Judicial Oath, Oath of Secrecy and Oath of membership of the Traditional Council before a Judge. It beholds on member of the Traditional Council who is sworn under such oaths to be guided and hold them in high esteem as its breach can lead to removal from the committee. A chief sworn under these oaths becomes a public officer in respect of sitting in as a committee member and exercising his judicial function. Whether or not a chief is a public officer depends on the context in which the term is used. For the purpose of judicial review or the exercise of the supervisory jurisdiction by the High Court and the Supreme Court, it has been held and established that the position of a chief is not a public office amenable to orders judicial review[19].

The Judicial Committee cannot exercise its judicial functions unless it is properly appointed by the members of the Traditional council. The Judicial Committee at its first meeting shall appoint one of its members as Chairman. The membership of the Committee shall be Three (3) or five (5) in number. The committee cannot transact any business either than adjournment unless Three (3) members attend the sitting.

COMMENCEMENT OF ACTION BEFORE A TRADITIONAL COUNCIL.

An action may be commenced in a Traditional Council in one of the following manner;[20]

1. by swearing a Chief’s oath or any other oath recognized within the area of authority of a Traditional Council; this is where the great oath in the traditional area is evoked before the Registrar of the Traditional Council. The Registrar shall record such an oath and parties involve shall be summon to appear before the judicial committee for the adjudication of the matter.
2. by writ in the Form set out in the Second Schedule to these Regulations to which the plaintiff shall append his signature or affix his thumbprint. This form can be found in the Chieftaincy Act, 2009 and the LI 798. The Plaintiff shall append his/her signature or thumbprint.
3. by any other means recognized by the customary law of a particular locality. This is in accordance with Article 11 of the Constitution of Ghana, 1992.

Where the action is commenced by a writ, the writ shall set forth as clearly as possible the nature of the relief sought by the plaintiff and shall state[21] the full name of the plaintiff and the capacity in which he is bringing the action, the address for service of the plaintiff which shall be an address for service; the names and addresses of all parties who may be directly affected by the action; and such other particulars as the committee may from time to time direct.

The writ shall be accompanied by a statement of the plaintiff’s case[22].

The statement of the plaintiffs’ case shall set forth the facts and particulars upon which the plaintiff seeks to rely; and the names and particulars of the witnesses, if any, whom he intends to call at the hearing[23]. A copy of the writ and a statement of the plaintiff’s case shall be served on each of the parties mentioned in the writ as directly affected who shall be deemed to be the defendants[24].

APPEARANCE AND STATEMENT OF THE DEFENDANT’S CASE.

A defendant upon whom a writ and a statement of the plaintiff’s case are served shall, if he wishes to contest the case, within Ten (10) days of such service, or within such time as the judicial committee may upon terms direct, file a statement of the defendant’s case which shall be signed by the defendant[25].The statement of the defendant’s case shall set forth the facts and particulars upon which the defendant seeks to rely; and the names and particulars of the witnesses, if any, whom he intends to call to the hearing.[26]

The Judicial Committee may, after receipt of the statement of the defendant’s case or where the defendant does not file any statement of defence, at the expiration of the time within which to file the statement of defence, appoint a time at which the parties shall appear before the judicial committee for hearing of the action[27].

The parties shall at the trial call any witness of whom notice has been given, and may with leave of the judicial committee call any other witness[28]. A judicial committee may on its own motion call any witness whose evidence, in its opinion is likely to assist the committee[29]. Where a plaintiff fails to appear at the time of trial the judicial committee may strike out the case[30].Where a defendant fails to appear at the time of the trial the judicial committee may, if it thinks fit, proceed to hear the case and give its decision[31]. A judicial committee may within 14 days set aside a decision given in the absence of a defendant if it is satisfied that an application in that behalf is upon good cause[32]. The case is heard by calling witness to give evidence as is done in courts and a decision is given. If a defendant was absent the hearing after being served, he will have 14 days to set aside a decision given in his/her absence.

THE POWER OF THE JUDICIAL COMMITTEE OF TRADITIONAL COUNCIL

A judicial committee may make any award of a civil nature, including awards to an injured person in any cause or matter affecting chieftaincy determined by the judicial committee[33].A judicial committee shall have no power to impose a fine or sentence involving the imprisonment of any person[34]. Any person in favour of whom an award or order has been made by a judicial committee shall apply to the Registrar of the Traditional Council to effect the enforcement of the award or order[35]. The Registrar shall on receipt of the application apply to the District Court to enforce the judgment or order[36]. The Registrar shall in forwarding the application to the District Court attach to it a certified true copy of the judgment or order[37]. The District Court shall on receipt of the application and on payment of the necessary fees by the person in whose favour the judgment or order was made effect the execution.

The judicial committee of the Traditional Council awards and orders are enforced by the District Court upon application to it by the Registrar.

A contempt made to the Judicial Committee will be referred to the High Court and shall make enquires into the matter for the punishment of the person in question if it is satisfied that he/she is guilty of contempt.

 

APPEALS FROM THE JUDICIAL COMMITTEE OF TRADITIONAL COUNCIL

A person aggrieved by a judgment or an order given or made by a Traditional Council in a cause or matter affecting chieftaincy may appeal to the relevant Regional House as of right against the judgment or order. An appeal to a Regional House against a judgment, decision or order of a Traditional Council shall be lodged within thirty days after the date of delivery of the judgment, decision or order appealed against, unless the Regional House extends the period for a further period not exceeding thirty days from the date of expiry of the period of appeal[38]. An appeal from the judicial committee of a Traditional Council lies in the Judicial Committee of the Regional House of chiefs within which the Traditional council belongs to.

An appeal to the Regional House of Chiefs against a judgement or ruling of the Judicial Committee of a Traditional Council shall be lodged within 30 days after the day of the delivery of the judgement or ruling.

The same procedure is done in an appeal from the Regional House to the National House.

The notice of appeal shall be filed at Traditional Council through the Registrar of the Traditional Council. The heading of the notice of appeal shall be the Judicial Committee of the Regional House. The notice of appeal shall contain the grounds of appeal and should be signed by the applicant therein.

The registrar of the Traditional Council upon receiving the notice of appeal shall file it and cause same to be served on the parties.

The Registrar of the Traditional council shall officially notify the Registrar of the Regional House of Chiefs and forward a copy of the notice of appeal shall be attached to the letter of notification.

The Registrar of the Traditional Council shall notify the Registrar of the Regional House of Chief on the date on which the notice of appeal was served on the parties.

The Registrar of the Traditional council shall write to parties inviting them for Settlement of Records.

During this meeting the parties in the case shall instruct the Registrar of the Traditional Council to forward all documents including the proceedings, rulings, judgements and Exhibits to the Regional House of Chiefs. All parties must be present at this meeting either in person or representative capacity.

Parties shall agree that the Record of Appeal should comprise all pleadings filed before the Judicial Committee of the Traditional Council and evidence of both parties. Judgement and rulings delivered be forwarded to the Regional House of Chiefs.

Parties will agree that all pleadings in the case, Evidence of the parties, Exhibits, Judgement and Notice of Appeal form the Records Appeal to the Regional House of Chiefs.

CONDITIONS OF APPEAL

The Appellant is to deposit an amount towards the preparation and compilation of the Appeal Record. The Appellant is to pay certain sum in cash or in lieu thereof enter into bond in like sum with two sureties to be justified for the due prosecution of the appeal.

The condition is to be fulfilled on an agreed date.

FULFILMENT OR NON-FULFILMENT OF CONDITIONS OF APPEAL.

An appellant who fails to fulfil the conditions of appeal on the agreed date may lead to dismissal of the appeal.

The Registrar of the Traditional Council shall write to a letter of non-fulfilment to the Registrar of the Regional House of Chiefs when an appellant fails to fulfill the conditions of appeal.

The Registrar of the Traditional Council shall compile all pleadings, proceedings and exhibits and forward same to the Regional House upon the fulfilment of conditions of appeal by the Appellant.

The Registrar of the Traditional Council shall notify parties that records of appeal has been sent to the Registrar of the Regional House and therefore all correspondence in regards the case shall emanate from the Regional House.

The jurisdiction of the judicial committee of the Traditional Council if not properly invoked can lead to a possible strike out of a case before this adjudicatory body and therefore parties are advised to take proper steps in appearing before the judicial committee with regards to chieftaincy matters.

COMPILED BY:

RICHARD APPIAH KUBI.

SENIOR REGISTRAR

ATEBUBU TRADITIONAL COUNCIL

appiahkubithesis@gmail.com

0240478605

STATUTES AND CASES CITED

1. The Constitution of Ghana, 1992.
2. The Chieftaincy Act, 2008, Act 957
3. Republic v High Court Registrar, Kumasi; Exparte Yiadom

ACKNOWLEDGMENT

My heartfelt gratitude goes to Ohempon Dr. Yeboah Asiamah, Atebubumanhene and all the members of the Atebubu Traditional Council for their unwavering support and encouragement throughout this journey.

Grateful to Essel Eva Yenyi of Ghana law School, Kumasi Campus for editing and typing this script.

I am profoundly grateful to Mr. Alfred Dodoo and Ahmed Ibrahim (Regional Registrars) and Mr. Stephen Owusu, Research Officer at the National House of Chiefs for their mentorship and guidance, which have significantly impacted my professional growth.

I am equally thankful to Mr. A.K. Essien Esq., Counsel for the Greater Accra Regional House of Chiefs, for his mentorship.

I am sincerely thankful to Kingsley Adjei and Bismark Oppong Korang of Ghana Law School.

DEDICATION

To my adorable wife Helina Appiah Kubi.

[1] Article 270 (1) of the Constitution of Ghana, 1992

[2] Article 277 of the Constitution of Ghana, 1992 and Section 57 of the Chieftaincy Act, 2008 

[3] Section 58 (5) of Chieftaincy Act, 2008 (Act 759)

[4] Section 76 Chieftaincy Act, 2008 (Act 759

[5] Section 76 of the Chieftaincy Act 759, and Section 117 (1) of the Court Act, 1993 (Act 459)

[6] Section 12 (1) Chieftaincy Act, 2008.

[7] Section 12 (2) of Chieftaincy Act, 2008

[8] Section 14(1) of the Chieftaincy Act, 2008.

[9] Section 14 (2) of the Chieftaincy Act, 2008

[10] Section 14 (3) of the Chieftaincy Act, 2008

[11] Section 29 (1) Chieftaincy Act, 2008,

[12] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798) Regulation 2

 

[13] Section 29(2) of the Chieftaincy Act, 2008

[14] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798) Regulation 3(1)

[15] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798) Regulation 3(2)

[16] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798) Regulation 3 (3)

[17] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798) Regulation 3 (4)

[18] Republic v The President, Buem Traditional Council, Ex parte Isuku II (1991) 1 GLR 455

[19] Republic v High Court Registrar, Kumasi; Exparte Yiadom.

[20] Chieftaincy (Proceedings and Functions) (Traditional Councils) Regulations, 1972 (LI 798). Regulation 4(1)

[21] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798). Regulation 4(2)

[22] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798). Regulation 4(3)

[23] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798). Regulation 4(4)

[24] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798). Regulation 4(5)

[25] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798). Regulation 5(1)

[26] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798). Regulation 5(2)

[27] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798). Regulation 6

[28] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798). Regulation 8(1)

[29] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798). Regulation 8(2)

[30] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798). Regulation 8(3)

[31] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798). Regulation 8(4)

[32] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798). Regulation 8(5)

[33] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798). Regulation 9 (1)

[34] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798). Regulation 9 (2)

[35] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798). Regulation 9 (3)

[36] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798). Regulation 9 (4)

[37] Chieftaincy (Proceedings and Funct1ons) (Traditional Councils) Regulations, 1972 (LI 798). Regulation 9 (5)

[38] Section 29 of Chieftaincy Act, 2008