The Republic Vrs The National House Of Cheifs And Another (H1/190/2005) [2006] GHACA 9 (19 May 2006);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL – ACCRA, A.D. 2006
CORAM - OWUSU, JA [PRESIDING]
TWENEBOA-KODUA, JA
OSEI, JA
H1/190/2005
19TH MAY, 2006
THE REPUBLIC
V E R S U S
THE NATIONAL HOUSE OF CHIEFS … RESPONDENT/APPELLANT
EX-PARTE:
OSAHENE KATAKYI BUSUMAKURA III … APPLICANT/RESPONDENT
---------------------------------------------------------------------------
J U D G M E N T
--------------------------------------------------------------------------
OWUSU, JA :- This is an appeal against the ruling of His Lordship R.B. Batu sitting at the High Court, Sekondi, delivered on 29th day of October 2004.
The Applicant/Respondent herein filed a motion pursuant to leave granted him by the court praying for an order of mandamus to compel the Respondent/Appellant herein to insert the name of Osahene Katakyi Bushumakura III, the Applicant, in the National Register of Chiefs in compliance with Section 50 of the Chieftaincy Act of 1971, Act 370.
In the affidavit in support of the motion, the Applicant averred that he was enstooled as Ohene of Takoradi in the Ahanta Traditional Area in the Western Region on 1st March 2003. That subsequently, the particulars of his enstoolment were submitted by the Ahanta Traditional Council to the Registrar of the Western Region House of Chiefs which processed and forwarded same to the National House of Chiefs for same to be inserted in the National House of chiefs Register of Chiefs.
On 19th February, he further averred, his particulars were inserted in the National Register of Chiefs and that he was informed and believed this was done after the Research Committee of the National House of Chiefs had approved of the said particulars.
According to the affidavit, his name was subsequently removed on the ground that the approval by the Research Committee had not gone to the Standing Committee and the full house of the National House of Chiefs before the insertion.
Contending that the insertion of names in the National Register is a mere formality and administrative, he averred that his name should not have been removed from the Register, as he was still the chief of Takoradi. Thus his prayer to the court below for an order to compel the House to re-insert his name.
Attached to the motion paper and affidavit are Exhibits “A” and “B”, Extracts from the National Register of Chiefs and letter from the National House of Chiefs headed – Cancellation of Extracts Nana Akosua Mfrasie II and Osahene Katakyi Bosomakora III respectively.
In the affidavit in opposition, the averments contained in the Applicant’s affidavit were not in substance denied. The insertion of Applicant’s name and subsequent cancellation were admitted except that the Deponent, F.E. Nuamah, Registrar of the National House of Chiefs denied that insertion of names in the National House of chiefs is a mere formality and administrative.
In further denial, he averred that the National house of Chiefs has established and operates a procedure for the registration of chiefs in compliance with Art 270(3)(b) of the 1992 Constitution. That in accordance with the procedure so established, where there is a case pending in respect of a stool, no person shall be registered as chief of that stool until the final determination of the case.
The Deponent averred that he was not in a position to admit or deny that the Applicant was enstooled as Ohene of Takoradi and was indeed the Ohene of Takoradi as at the time he (Applicant) deposed that fact.
He however denied that there is no legal impediment to the registration of the Applicant as chief of Takoradi in that the case pending at the Ahanta Traditional council is one such legal impediment.
The Applicant filed a supplementary affidavit on 17/8/04 to which he attached a letter from Ahanta Traditional Council as Exhibit “C”, the contents of which give notice on the directions of Otumfuo Baidoo Bensoe XV, Ahantahene and president of the Ahanta Traditional Council of the installation of Rev. Dr. Fifi Quayson in private life as the Osahene Katakyi Busumakura III, Divisional Chief of Takoradi.
Having heard both counsel for the Applicant and Respondent, the High Court granted the application and ordered the Registrar of the National House of Chiefs to re-insert or cause to be re-inserted in the National Registrar of Chiefs, the name of the Applicant as Ohene of Takoradi and Divisional chief of Ahanta Traditional Area, within 30 days from the day of delivery of the ruling i.e. 29/10/04.
Dissatisfied with the ruling, the Respondent on 3/11/04 filed Notice of Appeal to this court against same on the grounds that –
i. “The High Court erroneously waived and compromised the satisfaction of the
conditions precedent which are sine qua non to the issue of the prerogative
order of mandamus and which by law cannot be waived or compromised.
ii. “ The High Court lacked jurisdiction to entertain the matter since the
legislature had under a statute given the applicant/respondent a remedy
to appeal to the Supreme Court if the National House of Chiefs refused
to register him as a chief.
iii. “The High Court failed to appreciate the lack of capacity of the applicant/
respondent since his status as a chief was so dubious and had been judicially
settled by the relevant, Traditional Council to be null and void.
iv. “The High Court was wrong in granting the remedy of the prerogative order
of mandamus which was a discretionary remedy given only when an
applicant’s entitlement was unquestionable, since the applicant/respondent
initiated the mandamus proceedings at a time when his status as a chief
was being hotly challenged by a rival claimant before the Ahanta
Traditional Council which later gave Judgment declaring that the
applicant/respondent is not a chief and which Judgment by the said
Traditional Council was brought to the attention of the High Court before
it gave its order of mandamus.
v. “The decision of the High Court amounts to arrogating to itself the power to
determine who is the chief of Takoradi which is a matter outside its
jurisdiction.”
The events leading to the filing of the Respondent’s application in the court below, are borne out by the affidavits in support and in opposition of the motion.
The Respondent was installed as chief of Takoradi under the stool name of Osahene Katakyi Busumakura III. His particulars were transmitted by the Western Regional House of Chiefs after they have been received from the Ahanta Traditional Council in accordance with Section 51(1) of the chieftaincy Act of 1971 (Act 370).
The National House of Chiefs inserted the name of the Respondent in the National Register of Chiefs on 19/2/04 after his enstoolment on 1/3/03.
By a letter dated 22/4/04, the Registrar of the National House of Chiefs informed the Respondent of the cancellation of the Extracts in the Register of the entry made on 19/2/04. This letter was attached to the Respondent’s application as Exhibit “B.”
The contents of this letter are as follows:-
“CANCELLATION OF EXTRACTS – NANA AKOSUA MFRASIE II AND OSAHENE KATAKYI BOSOMAKURA III.
It has been realized the Extracts bearing serial Numbers 860 and 862 have been erroneously issued out to Nana Akosua Mfrasie II and Osahene Katakyi Bosomakura III Divisional Chiefs of Lower Inchaban and Takoradi respectively.
The Extracts were issued out after the Research Committee of the National House of Chiefs had considered the Chieftaincy Declaration Certificate Forms (CD Forms) of Chiefs on 19th February 2004 when in fact, the standing and full House of the National House of Chiefs had not given approval to the decision of the Research Committee.
The issuance of these Extracts is therefore an omission and in the circumstance they should be considered as cancelled and therefore of no effect-----------”
This letter was copied to all concerned i.e. The President
W.R.H.C.
Sekondi.
The Regional Minister,
Western Region,
Sekondi.
The President,
Shama Traditional Council,
Shama.
The President,
Ahanta Traditional Council,
Busua.
The Director,
Office of the President, Chieftaincy Division,
State House,
Accra.
The Chairman,
Research Committee,
N.H.C.
The Regional Police commander,
Western Region,
Sekondi.
On 23/7/04, the Respondent filed an ex-parte application for leave to apply for an order of mandamus following which the pursuant motion was filed.
Counsel for the Appellant first argued grounds (iii)(iv) and (v) together in his statement of case.
The complaint of the Appellant in sum is that the Judge did not exercise his discretion judiciously in granting the order of mandamus in the particular circumstances of the case.
These particular circumstances are that the Applicant’s name was “fraudulently” inserted in the Register of the National House of Chief. The fraud alluded to is that from the extract in which the name of the applicant was entered as chief of Takoradi, date of approval by the National House of chiefs is stated as 19th February 2004. This presupposes that the House met and approved of the C.D. (Chieftaincy Declaration) forms submitted to it after the installation of the Applicant as chief.
According to counsel and indeed this is borne out by Exhibit 7A, a certificate of search conducted by Messrs AMUASEKYI & CO., the search revealed that there had been no meeting of the standing Committee of the National House of Chiefs and therefore no approval had been given on any Chieftaincy Declaration Forms.
It is counsel’s contention that following the search, the Registrar, sensing danger, wrote to the Applicant informing him of the cancellation of his name. He submitted therefore that the High Court Judge failed to appreciate that the Applicant’s name had not been validly entered in the Register.
Counsel attacked that portion of the Judgment which states that:
“I have not been shown any such law passed or subsequent procedure established by the National House of Chiefs to justify the respondent, acting through its Chief Administrator, the Registrar, amending the Register by deleting the applicant’s name. The respondents duty with regard to entering the applicant’s name in the National Register and keeping it there was circumscribed by Act 370.”
His duty was to enter the name of the applicant in the Register once the Western Regional House of Chiefs had notified it of the change in applicant’s status. It had no power to refuse to enter his name in the register or remove his name from the register without the appropriate signal from the Western Regional House of chief.”
Section 50(1) of the Chieftaincy Act (Act 370) states that –
“(1) The National House of Chiefs shall maintain a register to be known as the National
Register of Chiefs; in this part referred to as the Register.
(2) The National House of Chiefs shall cause to be recorded in the Register such
particulars relating to chieftaincy as it may think fit or may be required by this
Act or any other enactment to be recorded thereon.” (emphasis is mine).
Under Section 4 of the Chieftaincy Act, the National House of chiefs is given power to make standing orders for the regulation and orderly conduct of its business and under this power, the House has its own standing orders.
Under Sect 56(ii) of the standing Orders, the Research Committee of the National House is mandated to “study Chieftaincy Declaration Forms for enstoolments, extolments, abdications and death of Chiefs submitted from the Regional House of Chiefs under Section 51(1) of the Chieftaincy Act 1971 (Act 370) for entry in the National Register of Chiefs------------”
In compliance with Article 270(3)(b) of the 1992 Constitution, the National House of Chiefs has established and operates a procedure for the registration of Chiefs.
In accordance with the procedure so established, where there is a case pending in respect of the stool no person shall be registered as Chief of that stool until the final determination of the case.”
The grant of an order of Mandamus is as a general rule a matter for the discretion of the court. The court may well have the power, but in a particular case may think that it is not advisable to grant a writ of Mandamus, which is discretionary. See the case of R. VRS. LEICESTER UNION {1899} 2 Q.B. p. 632 per Darling J. at pages 637 and 638.
In the case of REPUBLIC VRS. NATIONAL HOUSE OF CHIEFS, KUMASI & Another; EX-PARTE: KUSI-APEA {1984 – 86}, this court held that –
“A recourse to Mandamus when the appellant’s status was so dubious and had not been judicially settled or statutorily recognized was a clearly misconceived strategy and the High Court was therefore right in refusing the remedy of an order of Mandamus which was a discretionary remedy given when an applicant’s entitlement was unquestionable----------”
In the application before the court below I would not say that the Applicant’s status as a Chief was dubious but how his name came to be inserted in the Register as Chief of Takoradi is not very clear when the procedure before the insertion had not been completed.
In Exhibit “B”, headed cancellation of Extracts----------------------------------, the
Registrar of the National House informs the Applicant and one another that the Extracts bearing serial Numbers 860 and 862 have been erroneously issued out to them.
Was this a genuine mistake as the Registrar made it appear on the face of the Exhibit or was the insertion done in a dubious manner as the Appellant would want the court to believe?
Whatever the answer is, the name was not properly inserted in the Register thus its subsequent cancellation.
Again, the status of the applicant had not been judicially determined. As at the time the name was inserted there was a challenge to his enstoolment before the Judicial Committee of Ahanta Traditional Council. In the circumstances, was it advisable to order re-insertion of the name in the Register before the determination of that case? I would say no, it was not.
I am mindful of the fact that the case before the Judicial Committee had been pronounced upon before the ruling.
The Judgment of the Committee had adjudged that since Nana Busumakura II, was the incumbent chief of Takoradi from the Amua Ekua’s section of the family and
died as the reigning chief, it was then the turn of Adjua Amoanu’s section of the family to elect and install a chief of Takoradi.
In effect the Applicant was not the proper person to be elected and installed as chief of Takoradi.
The court nevertheless went ahead and granted the application for the reason that the applicant had filed an appeal against the Judgment of the Judicial Committee which Judgment operates as a stay under Section 27 of the Chieftaincy Act as amended by the Chieftaincy (Amendment) (No.2) Decree of 1973, (N.R.C.D. 226).
Still, what the court overlooked or failed to appreciate is that with the pendency of the appeal, the applicant’s status as a chief was judicially unsettled.
Secondly, with the decision of the Ahanta Traditional Council, the Trial Court should not have ordered the re-insertion of the Applicant’s name in the Register.
At the hearing of the application, the court was made aware that there was a case pending in respect of the stool of which the Applicant claimed to be the occupant as his enstoolment was being challenged by arrival claimant.
Indeed, from Exhibit “2” headed TAKORADI STOOL AFFAIRS at a General meeting of the National House held on 13th July 2004, the House decided that the registration of Osahene Katakyi Bosomakura III be put on hold till the final determination of the case pending before the Judicial Committee in which the Applicant’s installation was being challenged.
This decision of the House and the pendency of the appeal militated against the exercise of the court’s discretion in granting the application. See REPUBLIC VRS. NATIONAL HOUSE OF CHIEFS AND OTHERS; EX-PARTE: FABIL AND OTHERS {1984 – 86}2 GLR 731.
The entering of the name of chiefs in the National House Register, I think is not a mere formality and therefore automatic on presentation of the C.D. forms to the House. If there is a legal impediment to justify non-registration, the name will not be registered. Hence the duty of the Research Committee to study and approve of the C.D. forms which approval had to be endorsed by the whole house.
Ground V seems to have been abandoned as council did not argue same in his statement of case. This ground touched on the Jurisdiction of the Court in entertaining the application as the order sought for and made amounted to arrogating to itself the power to determine who is the Chief of Takoradi, a matter outside the court’s jurisdiction.
On ground I, counsel submitted that the conditions which must exist before an order of mandamus can be sought and properly granted were not present in the applicant’s case. These conditions he set them out as stated by Ollenu J. (as he then was) in the case of IN RE-COMPLAINT TO POLICE – BY BOTWE AND MENSAH {1959} GLR 457 as –
- There must be a legal right
- A Distinctive demand and
- Effectiveness of the order
Indeed the order of Mandamus will issue to the end that justice may be done, in all
cases where there is a specific legal right and no specific legal remedy for enforcing that right. It may even issue where, although there is an alternative legal remedy, that mode of redress is less convenient, beneficial and effectual.
In the Applicant’s case, the order could not and should not have been issued because his legal right as a chief is still unsettled.
This leads me on to the last ground of appeal that because under section 50(7), “Any person aggrieved by the refusal of the National House of chiefs to register him as a chief may within thirty days after the decision appeal against the decision to the Supreme Court,” the applicant’s remedy lies in an appeal to the supreme court. The High court therefore lacked jurisdiction to entertain the application for mandamus.
Is the Applicant’s case one of refusal to register? I do not think so. The decision of the House was that for stated reason the registration must be put on hold. The reason being, the determination of the challenge to his installation. Assuming that he could appeal against that decision, is that right of appeal a bar to his application to the High Court for an order of Mandamus? Definitely not. As I have already stated, an order of Mandamus will issue where there is an alternative legal remedy which under the circumstances, is less convenient, beneficial and effectual. See R.V. THOMAS (1892} 1 Q.B. 426. In that case, although there was a right of appeal in the matter in question, Mandamus was granted as being in the circumstances, the more satisfactory and effectual remedy.
There is no doubt that an application for Mandamus will be more convenient, beneficial and effectual remedy to the Applicant if he had a legal right which he wanted to enforce. In the case of REPUBLIC VRS. LANDS COMMISSION; EX PARTE: VANDERPUYE ORGLE ESTATES LTD. (1998 – 99} SC GLR 677 at 679 the Supreme Court held per Hayforn-Benjamin JSC:
“Wherever there is a danger or threat that an interest, whether proprietary or otherwise, will be prejudiced or unlawfully interfered with, mandamus will lie……………Even where there is an alternative process, it is not an inflexible rule that the statutory procedure so laid down must necessarily be followed………………”
This ground of Appeal therefore fails.
Turning to the Respondent’s case in his statement, he raised objection to the standing orders of the House of Chiefs annexed to the Appellant’s statement of case on the ground that same did not form part of the evidence in the court below. That the application was determined on affidavit evidence. Counsel therefore called upon the court to disregard the standing orders which according to him was annexed without leave of court as fresh evidence.
Under rule 26(1) of the Court of appeal Rules C.I. 19, “It is not open as of right to any party to an appeal to adduce new evidence in support of his original case but, in the interest of justice, the court may allow or require new evidence to be adduced; such evidence shall be in the form of oral examination in court, an affidavit or a deposition taken before an examiner or commissioner as the court may direct.
The standing Orders was not attached as fresh evidence. I think it was attached for guidance and ease of reference by the court. Why do I say so? The Research Committee which was referred to by both the Applicant and the Respondent in their affidavits, is established under the standing orders made in pursuance of the Chieftaincy Act for the regulation and orderly conduct of its business.
The Respondent contends that the Research Committee studied and approved the C.D. forms of the Respondent before his name was inserted in the National Register of Chiefs. Counsel therefore submitted that the removal of the Respondent’s name from the Register was not a mere mistake but an illegality which the High Court has power to compel the Appellant House to correct.
The Appellant in his affidavit in opposition to the application also referred to the Research Committee which first studies and approves of the C.D. forms.
The standing orders annexed to the statement, is not annexed as fresh evidence for which leave should have been sought before annexing same.
I have already held that the High Court indeed had the power to compel the Appellant to re-insert the Respondent’s name if it was advisable in the circumstances. Indeed an order of Mandamus will issue to the end that justice may be done, in all cases where there is a specific legal right. I have already come to the conclusion that the insertion of the Applicant’s name in the Register is not automatic upon presentation of the C.D. forms as the trial court concluded.
On the merits, the Appellant’s appeal succeeds on grounds (i), (iii) and (iv) while ground (ii) is dismissed and ground (v) abandoned. The Order of Mandamus issued by the court below is hereby set aside.
R.C. OWUSU
JUSTICE OF APPEAL
I agree.
K. TWENEBOA-KODUA
JUSTICE OF APPEAL
I also agree. J.A. OSEI
JUSTICE OF APPEAL
COUNSEL - MR. J. DAWSON FOR APPELLANT/RESPONDENT.
MR. E. AIKINS (C.S.A.) FOR THE RESPONDENT/APPELLANT.
~eb~
