Republic v. Chieftaincy committee on wiamoasehene stool affairs And Another (321-340 [1971] 1 GLR) [1971] UGHC 1 (27 January 1971);
REPUBLIC v. CHIEFTAINCY COMMITTEE ON WIAMOASEHENE STOOL AFFAIRS; EX PARTE OPPONG KWAME AND ANOTHER 321-340 [1971] 1 GLR
IN THE HIGH COURT, ACCRA
27 JANUARY 1971
HAYFRON-BENJAMIN J.
Certiorari—Application—Persons entitled to apply—Conditions for making application—Proof of peculiar grievance beyond that suffered by the rest of the public—Application to quash the findings of a chieftaincy committee—Applicant not a party to proceedings before chieftaincy committee—Findings of chieftaincy committee likely to affect status of applicant—Whether applicant had sufficient interest in matter before chieftaincy committee to make the application.
Practice and procedure—Certiorari—Parties—Persons to be made respondents—Application to quash findings of a chieftaincy committee—Findings subject to confirmation by the National Liberation Council—Confirmation of findings by the National Liberation Council—Whether respondents proper parties to the application.
Certiorari—Application—Findings of a body—When an order for certiorari would lie—Distinction between advisory findings and findings intended to operate—Recommendations made by a chieftaincy committee subject to confirmation by the National Liberation Council—Confirmation of recommendations by the council—Whether recommendations merely advisory or intended to operate—Whether certiorari would lie to quash the recommendations of the chieftaincy committee or the decision of the National Liberation Council confirming the recommendations.
Statute—Construction—Application for an order of certiorari—Documents to be filed under Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 59, r. 7 (1)—Meaning of the words "a copy thereof" in Order 59, r. 7 (1)—Whether the words referable to "any order, warrant, commitment ... " etc or to proceedings—Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 59, r. 7 (1).
Administrative law—Judicial tribunals—Chieftaincy committee—Confirmation of findings of the committee by the National Liberation Council—Subsequent reversal of confirmed findings without hearing parties—Whether National Liberation Council had power to review its decision—Chieftaincy Act, 1961 (Act 81), ss. 39 and 48.
Natural justice—Judicial tribunal—Right to be heard—Adjudication of an issue—Confirmation of decision by a superior authority—Subsequent reversal of decision without hearing the parties—Whether compliance with rules of natural justice—Whether certiorari would lie to quash such a decision.
HEADNOTES
It is provided by the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 59, r. 7 (1) that:
"7. (1) In the case of an application for an order of certiorari to remove any proceedings for the purpose of their being quashed, the applicant shall not question the validity of any order, warrant, commitment, conviction, inquisition or record, unless before the hearing of the motion or summons he has lodged a copy thereof verified by affidavit in the Registry, or accounts for his failure to do so to the satisfaction of the Court or Judge hearing the motion or summons."
HEADNOTES
On 22 July 1968 Nana Pim Owusu Ansah, the chief of Wiamoase, was declared destooled by the Agona Traditional Council as a result of a complaint lodged with the council by Obaapanin Adjoa Amponsah, the Queenmother of Wiamoase. He appealed under section 48 (1) of the Chieftaincy Act, 1961 (Act 81), against his destoolment. While the appeal was pending, Nana Oppong Kwame was enstooled as the chief in place of the appellant. A committee of the Chieftaincy Secretariat heard the appeal and sent its findings to the National Liberation Council which, on 28 March 1969, published a notice in the Local Government Bulletin in which it purported to confirm the findings of the committee that the appeal should be dismissed. By a subsequent notice published on 5 September 1969 in the Local Government Bulletin, the National Liberation Council revoked its earlier decision, and confirmed the decision of the same committee that the appellant's appeal should be allowed. In consequence of the publication of the [p.323] second notice, Nana Oppong Kwame and Obaapanin Adjoa Amponsah applied for an order of certiorari to quash the second decision. They filed copies of the two notices published and served notices of the application for an order of certiorari on the committee of the Chieftaincy Secretariat, the Attorney-General and Nana Pim Owusu Ansah as respondents. The applicants contended that (i) the third respondent did not obtain the leave of the minister in accordance with section 48 (1) of Act 81 before appealing against his destoolment, and (ii) the committee and the National Liberation Council had acted ultra vires the Chieftaincy Act in that the committee had no jurisdiction to review its earlier decision. They maintained that they had no notice of the second hearing nor had the third respondent; therefore the whole proceeding was contrary to natural justice.
The respondents raised a number of objections in opposition to the application; namely, that (i) the first applicant had no locus standi because he was not a party to the destoolment proceedings; also that having been enstooled while the third respondent's appeal was pending, his enstoolment was irregular as an appeal under section 48 (2) of Act 81 operated as a stay of execution; (ii) they (the respondents) were not proper parties to the application; (iii) the application could not lie against the committee since it had to report its findings to the National Liberation Council which had to take the final decision nor against the findings when they had already been confirmed by the National Liberation Council; and finally that the applicants had not complied with Order 59, r. 7 (1) in that they did not exhibit a copy of the proceedings which they sought to have quashed.
Held:
(1) since the first applicant had been enstooled in succession to the third respondent, he had by the enstoolment acquired rights which would be definitely affected by the decision of the chieftaincy committee and the National Liberation Council, and as such had sufficient interest in the subject-matter as to invest him with the necessary locus standi to make the application. The mere fact that he was not a party to the original proceedings before both the traditional council and the chieftaincy committee was not a fatal objection. Dicta of Djabanor J. in Amankwa v. Kyere [1963] 1 G.L.R. 409 at p. 412 considered.
(2) The respondents were proper parties to the application: because (a) the application was directed at the committee appointed to hear the appeal of the third respondent and to report its findings to the National Liberation Council, and not to the chieftaincy secretariat which had been abolished: (b) the application was questioning the validity of an action by the National Liberation Council, the then government of the day, and it was only proper that the Attorney-General, in whose name all proceedings against the Republic may be brought, should be made a party to the application: (c) it was the third respondent who appealed to the chieftaincy committee, and the decisions of both that committee and the National Liberation Council would affect his interest.
(3) There was a clear distinction between reports which were merely advisory and in respect of which certiorari would not ordinarily lie, and reports and recommendations which would in fact operate, with or without modification, after approval by another authority. Where the National Liberation Council confirmed a recommendation under the Chieftaincy Act, 1961, it was, in such a case, the recommendation of the chieftaincy committee which in fact would operate, and in respect of which certiorari [p.324] would lie. Dicta of Lord Parker C.J. in R. v. Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 Q.B. 864 at p. 881 applied. Dicta of Charles J. in Eku alias Condua III v. Acquaah [1961] G.L.R. 285 disapproved.
(4) Certiorari would lie to quash the findings of an inquiring body whose findings were subject to confirmation by a superior authority which had in fact confirmed such findings. Therefore the fact that the report of the chieftaincy committee had been dealt with by the National Liberation Council would not be sufficient to preclude the court from issuing an order of certiorari to quash the proceedings of the chieftaincy committee. Banks v. Transport Regulation Board (1968-69) 42 A.L.J.R. 64 and Ridge v. Baldwin [1964] A.C. 40, H.L. considered.
(5) The decision or act of the National Liberation Council in confirming, varying or amending the report of the chieftaincy committee could itself be quashed by an order of certiorari. Dicta of Granville Sharp J.A. in Ahenkora v. Ofe (1957) 3 W.A.L.R. 145 at pp. 150-151, C.A.; of Atkin L.J. (as he then was) in R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920), Ltd. [1924] 1 K.B. 171 at p. 205, C.A. and of Lord Parker C.J., Salmon L.J. and Blair J. In re H.K. (An infant) [1967] 2 Q.B. 617 at pp. 630, 633 and 636 respectively considered.
(6) By filing copies of the decisions published in the Local Government Bulletin, the applicants had complied with the provisions of Order 59, r. 7 (1) in that the words "a copy thereof" appearing in the rule refer to the order, commitment, etc. and not to the proceedings. In any case the court was satisfied with the applicants' explanation that the proceedings were not available to them. Dicta of Denning L.J. (as he then was) in R. v. Northum- berland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 All E.R. 122 at pp. 129-130, C.A. considered.
(7) The National Liberation Council had the power to reverse the findings of the chieftaincy committee and dismiss the appeal if it so intended; but having dismissed it and published it as it did on 28 March 1969, the decision was final and conclusive, and it had no authority to review the decision again. Therefore the decision which was published on 5 September 1969 was ultra vires and void. Dicta of Archer J. (as he then was) in Blewey v. Assuah, High Court, Sekondi, 27 October 1967, unreported; digested in (1968) C.C. 31 approved.
Obiter. Even if the National Liberation Council had the necessary authority to review its decision, elementary justice demanded that the parties should have been heard. It would be an improper exercise of power, whether it be administrative, ministerial or judicial to reverse that decision without affording the parties any hearing.
CASES REFERRED TO
(1) R. v. Nicholson [1899] 2 Q.B. 455; 68 L.J.Q.B. 1034; 81 L.T. 257; 64 J.P. 388; 48 W.R. 52; 15 T.L.R. 509; 43 S.J. 744, C.A.
(2) R. v. Manchester Legal Aid Committee; Ex parte R. A. Brand & Co., Ltd. [1952] 2 Q.B. 413; [1952] 1 All E.R. 480; [1952] 1 T.L.R. 476; 96 S.J. 183.
(3) Amankwah v. Kyere [1963] 1 G.L.R. 409.
(4) Clifton Securities Ltd. v. Huntley [1948] W.N. 267; 64 T.L.R. 413; 92 S.J. 499; [1948] 2 All E.R. 283.
[p.325]
(5) Eku alias Condua III v. Acquaah [1961] G.L.R. 285.
(6) Eku alias Condua III v. Acquaah [1963] 1 G.L.R. 271, S.C.
(7) R. v. Statutory Visitors to St. Lawrence Hospital, Caterham; Ex parte Pritchard [1953] 1 W.L.R. 1158; 117 J.P. 458; 97 S.J. 590; [1953] 2 All E.R. 766.
(8) R. v. Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 Q.B. 864; [1967] 3 W.L.R. 348; 111 S.J. 331; [1967] 2 All E.R. 770.
(9) Banks v. Transport Regulation Board (1968-69) 42 A.L.J.R. 64.
(10) Ridge v. Baldwin [1964] A.C. 40; [1963] 2 W.L.R. 935; 127 J.P. 295; 107 S.J. 313; [1963] 2 All E.R. 66, H.L.
(11) Ahenkora v. Ofe (1957) 3 W.A.L.R. 145, C.A.
(12) R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920), Ltd. [1924] 1 K.B. 171; 93 L.J.K.B. 390; 130 L.T. 164; 88 J.P. 13; 39 T.L.R. 715; 68 S.J. 188, C.A.
(13) Durayappah v. Fernando [1967] 2 A.C. 337; [1967] 3 W.L.R. 289. 111 S.J. 397; [1967] 2 All E.R. 152, P.C.
(14) In re H.K. (An Infant) [1967] 2 Q.B. 617; [1967] 2 W.L.R. 962; 111 S.J. 296; [1967] 1 All E.R. 226.
(15) R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 K.B. 338; [1952] 1 T.L.R. 161; 116 J.P. 54; 96 S.J. 29; [1952] 1 All E.R. 122, C.A.
(16) Blewey v. Assuah, High Court, Sekondi, 27 October 1967, unreported; digested in (1968) C.C. 31.
(17) Aidoo v. C.O.P. (No. 3) [1964] G.L.R. 354, S.C.
NATURE OF PROCEEDINGS
APPLICATION for an order of certiorari to quash the recommendations of the Chieftaincy Committee on Wiamoasehene Stool Affairs which were confirmed by the National Liberation Council, but which were subsequently reversed without hearing the parties. The facts are fully set out in the judgment of the court.
COUNSEL
C. B. Zwennes for the applicants.
M. A. F. Ribeiro, State Attorney, for the first and second respondents.
Dr. Ohene Djan for the third respondent.
JUDGMENT OF HAYFRON-BENJAMIN
This is a hotly contested application for an order of certiorari in respect of certain steps taken by various bodies in the proceedings concerning the destoolment of Nana Pim Owusu Ansah, one-time Wiamoasehene, in the Agona Traditional Area, Ashanti. The bodies concerned are the Agona Traditional Council, the Chieftaincy Committee presided over by Mr. Justice Siriboe, the Chieftaincy Secretariat and the National Liberation Council. The applicants are Nana Oppong Kwame, who claims to be the Wiamoasehene, and Obaapanin Adjoa Amponsah, Queenmother of Wiamoase. The respondents are the Committee on Wiamoase stool affairs, Chieftaincy Secretariat, the Attorney-General and Nana Pim Owusu Ansah in respect of whose destoolment these protracted proceedings originated.
[p.326]
The facts of this case can be found in the numerous affidavits and statements filed in support of this application. In May 1968, Obaapanin Adjoa Amponsah lodged a complaint against Okyiame Panin of Wiamoase at the Agona (Ashanti) Traditional Council. The council met to hear and determine the subject-matter of the complaint in accordance with the provisions of section 15 of the Chieftaincy Act, 1961 (Act 81). On 22 July 1968, Nana Pim Owusu Ansah was declared destooled as Wiamoasehene by the council. We are not directly concerned with the proceedings before the Agona Traditional Council and with the question whether it was mandatory that charges should have been preferred directly against him. However, it seems to me that the proceedings contemplated under the Chieftaincy Act and the subsidiary legislation made thereunder contemplate disciplinary proceedings against a chief and not a trial eventuating in punishment. Moreover in traditional courts and tribunals, it is the real issue that matters, and not technical rules relating to parties and procedure. The chief, i.e. the third respondent, appealed in accordance with the provisions of section 48 (1) of the Chieftaincy Act, 1961 (Act 81). This subsection provides as amended by the Chieftaincy (Amendment) Act, 1964 (Act 243), that:
"48. (1) Any party to a cause or matter affecting chieftaincy who is dissatisfied with the decision of a Traditional Council thereon may,with the leave of the Minister, appeal against the decision by initiating proceedings before a Committee under section 35 of this Act within two months after the giving of the decision, or such extended period as the Minister may allow."
The applicants contend that the third respondent never obtained the leave of the minister to file his appeal against the decision of the traditional council. The senior assistant secretary of the office of the Prime Minister has sworn to an affidavit stating that the said leave was obtained. He, however, does not tell us the date when such leave was obtained. I do not think it is necessary for me to go into this aspect of the matter at this stage. The respondent himself does not state whether he obtained the leave of the minister or not.
The Committee of the Chieftaincy Secretariat which heard the appeal recommended to the National Liberation Council that in their view, "the appeal should be allowed, because the decision of the Agonahene and the council declaring the appellant destooled was unsupported by evidence and also made without jurisdiction. It should accordingly be set aside as null and void. To promote cordial relations between the appellant and the Agonahene and his elders, it is recommended that there should be no order as to costs."
The National Liberation Council in the Local Government Bulletin No. 15 of 28 March 1969 caused the following to be published at P. 110: "Finding of the Chieftaincy Committee as confirmed by the National Liberation Council Agona (Ashanti) Traditional Council-Wiamoasehene Stool Affairs [p.327] Entitled: Obaapanin Adjoa Amponsah, Queenmother, Respondent versus Nana Pim Owusu Ansah, Wiamoasehene, Appellant.
Notice is hereby given under subsection (5) of section 39 of the Chieftaincy Act (Act 81) that the following finding of the Committee consisting of J. B. Siriboe, Esq., Chairman, Nana Kwakye Ameyaw II, Techimanhene and I. K. Agyeman, M.B.E., Esq., has been confirmed by the National Liberation Council `That the appeal should be dismissed'.
On 22 August 1969, the Constitution of the Second Republic of Ghana as promulgated by the Constituent Assembly came into force. On 5 September 1969, the National Liberation Council published another notice in the Local Government Bulletin No. 37 at p. 261 which reads:
“Finding of the Chieftaincy Committee as confirmed by the National Liberation Council at its meeting held on the 6th August, 1969 Agona (Ashanti) Traditional Council Wiamoasehene Stool Affairs Entitled: Obaapanin Adjoa Amponsah, Queenmother, Respondent versus Nana Pim Owusu Ansah, Wiamoasehene, Appellant”
Notice is hereby given under subsection (5) of section 39 of the Chieftaincy Act 1961 (Act 81) that the following finding of the Committee consisting of Justice J. B. Siriboe, Chairman, Nana Kwakye Ameyaw II, Techimanhene and I. K. Agyeman, M.B.E., Esq., has been confirmed by the National Liberation Council. ‘That appeal should be allowed and in order to promote cordial relations between the appellant and the Agonahene and his Elders there should be no order as to costs.'
This cancels the notice which appeared at page 110 of the Local Government Bulletin No. 15 dated the 28th day of March, 1969."
It would seem that the applicants experienced considerable difficulty in deciding on what reliefs they should seek by way of certiorari. This difficulty seems to have arisen from the non-disclosure to them of the report and recommendations made by the Chieftaincy Committee to the National Liberation Council. It was therefore not clear to them or to anyone not concerned directly in the work of the Chieftaincy Committee or the National Liberation Council whether the Chieftaincy Committee recommended that the appeal be allowed or dismissed.
In their affidavit in support of the application for an extension of time the applicants deposed inter alia:
"(3) That Nana Pim Owusu Ansah appealed against his destoolment to a chieftaincy committee appointed by the National Liberation Council and after due hearing the committee dismissed the said appeal against his destoolment and the National Liberation Council caused notice of the said dismissal to be published in the Local Government Bulletin No. 15 of 28 March 1969, in accordance with section 39 (5) of the Chieftaincy Act 1961 (Act 18), . . .
(5) of Act 81 by causing the notice of 5 September 1969 to be published after final determination of the appeal on 28 March 1959, the committee having no jurisdiction to review their earlier finding.
(6) That suddenly and without previous notice of any proceedings [p.328] pending and by some inexplicable event a second notice appeared in the Local Government Bulletin No. 37 of 5 September 1969, purporting to cancel the notice of 28 March 1969, and to allow the same appeal which had been earlier dismissed by the chieftaincy committee . . .
(9) That the Chieftaincy Committee and the National Liberation Council acted ultra vires section 39
(10) That the whole proceeding was contrary to natural justice as neither I, nor the respondent had notice of the second hearing of the appeal although we were entitled to appear and be heard by virtue of section 36 (4) of Act 81."
They therefore applied for an extension of time to apply for leave to issue an order of certiorari to remove to this court the decision of the Chieftaincy Committee on Wiamoashene stool affairs appearing in Local Government Bulletin No. 37 of 5 September 1969.
The applicants were in this state of ignorance until the beginning of December 1970 when the first applicant swore to an affidavit to correct certain facts appearing in his original affidavit in support of the motion herein. He stated,
"(1) That I am informed and verily believe that Nana Pim Owusu Ansah's appeal to the Chieftaincy Committee against his destoolment was allowed but that the National Liberation Council acting under section 39 of the Chieftaincy Act, 1961 (Act 81), dismissed the said appeal and caused notice of the said dismissal to be published, in accordance with section 39 (5) of the said Act 81, in the Local Government Bulletin No. 15 of 28 March 1969 . . .
(3) That I am informed and verily believe that the appellant Nana Pim Owusu Ansah did not obtain leave of the minister to appeal against his destoolment.
Having thus been apprised of the correct facts, the applicants moved to amend both reliefs sought and the grounds on which they are sought by amending the statement to read:
"An order to remove into this Honourable Court and quash (i) the whole of the proceedings and the order or finding thereon made by the Chieftaincy Committee on Wiamoase Stool Affairs that the appeal of Nana Owusu Ansah of Wiamoase against his destoolment should be allowed and that in order to promote cordial relations between the appellant and the Agonahene and his elders there should be no order as to costs and (ii) the confirmation by the National Liberation Council of the said order or finding and its publication appearing in the Local Government Bulletin No. 37 of 5 September 1969."
[p.329]
The first question to be decided is whether the applicants have the requisite locus standi to apply for an order of certiorari. The respondents in their affidavit in opposition to the application raised the question directly. They said,
"That Nana Oppong Kwame II, was not a party to the dispute between Obaapanin Adjoa Amponsah and Nana Pim Owusu Ansah, which was heard by a committee appointed by the government from among members of the Chieftaincy Secretariat, and thus has no right in law to bring this application seeking for a writ of certiorari; the applicant therefore has no locus standi in this matter and that the application should be struck off with costs against him."
The test to be applied was stated by Parker J. (as he then was) in R. v. Manchester Legal Aid Committee; Ex parte R. A. Brand & Co., Ltd. [1952] 2 Q.B. 413 where the learned judge at pp. 431-432 adopted the words of A. L. Smith L.J. in the case of R. v. Nicholson [1899] 2 Q.B. 445 at pp. 470-471, C.A. saying,
"But, assuming certiorari is to be the fitting remedy, as a matter of discretion the certiorari ought not to go. First, on the ground of delay ... and, second, on the fact that the applicants have not shown, as it appears by Reg. v. Surrey Justices (1870) L.R. 5 Q.B. 466 they should have shown, that they have a peculiar grievance of their own beyond some inconvenience suffered by them in common with the rest of the public."
Nana Oppong Kwame having been put on the stool in succession to the respondent and having thereby acquired rights must be a person directly aggrieved by the decision of the Chieftaincy Committee or the National Liberation Council allowing the appeal of the respondent.
The respondents further argued that the applicant, Oppong Kwame, could not have been regularly enstooled whilst the appeal of Pim Owusu Ansah, the third respondent, was pending. They placed reliance on section 48 (2) of the Chieftaincy Act, 1961 (Act 81), which provides:
"48. (2) An appeal when brought under the preceding subsection shall, subject to the provisions of section 56 of this Act and to any order of the Committee as to security for costs or otherwise, operate as a stay of execution of any judgment or order given by the Traditional Council until the appeal is finally disposed of."
This section of the Act is in pari materia with section 15 of the State Councils (Ashanti) Ordinance, 1952 (No. 4 of 1952), now repealed, which was subjected to judicial interpretation in the case of Amankwah v. Kyere [1963] 1 G.L.R. 409. In that case the defendant, as Kofiasehene, agreed with his people and elders that a new ahenfie should be built. Shortly afterwards, however, he was destooled. He appealed against his destoolment, but while his appeal was still pending the new chief, Nana Sarfo III, was installed as Kofiasehene in his place. The new chief then entered into a contract with the plaintiff for the building of the ahenfie. In due course, [p.330] the defendant's appeal was allowed and he was lawfully re-installed as Kofiasehene. By this time the plaintiff had built a substantial portion of the ahenfie, but the defendant refused to pay for the work done alleging that since his appeal had operated as a stay of his destoolment, Nana Sarfo III had had no capacity to enter into contracts binding upon the stool. The plaintiff therefore brought an action to recover his money. It was held, inter alia, as stated in the headnote that,
"(2) A 'stay of execution' simply means to suspend the enforcement of a judgment or order. It does not take away other rights or prevent the exercise of any remedy or right which exists apart from the process of the court. The stay therefore could not prevent the people from choosing a new chief during the interregnum, and once the new chief was duly and properly installed that new chief had authority and capacity in law to enter into an agreement binding upon the stool."
Djabanor J. (as he then was), in giving judgment for the plaintiff applied at p. 412 a dictum of Denning J. (as he then was), in the case of Clifton Securities, Ltd. v. Huntley [1948] 2 All E.R. 283 where the learned judge at p. 284 said,
"A stay of execution only prevents the plaintiffs from putting into operation the machinery of law the legal processes of warrants of execution and so forth in order to regain possession. It does not take away any other rights which they have. It does not prevent their exercising any right or remedy which they have apart from the process of the court."
Djabanor J. said further at pp. 412-13 that,
"It seems to me, following, . . . the dictum above quoted, that the stay of execution in this case only prevented the defendant Nana Kofi Kyere from being ejected from the stool house and stool farms, and saved him from being made to surrender the stool properties to the elders who destooled him. I do not think that it kept him on the stool.
The further question now must be: Could the elders and people of Kofiase legally install another chief while the stay of execution in respect of Nana Kofi Kyere's destoolment was operating? Following the dictum of Denning J. (as he then was) recited above I think the answer must be yes. Yes, because the stay of execution does not prevent the people from exercising any right or remedy which they had apart from the normal process of executing the decision to destool the defendant. I have no doubt that the people have the right to choose a chief during the interregnum, and I think they can do so in spite of the stay of execution.
It may very well be that a more satisfactory arrangement would be for a regent to be appointed during an interregnum; the Gyasihene for example could be made to act in the place of the destooled chief pending the hearing and determination of the appeal. This, however, is a matter [p.331] for the policy-making bodies of the State and not a court of law. The rights of the applicant as the newly enstooled chief would definitely be affected by the decision of the Chieftaincy Committee and of the National Liberation Council, and I hold therefore that he has sufficient interest in the subject-matter as to invest him with the necessary locus standi to make this application, and further that the mere fact that he was not a party to the original proceedings before both the traditional council and the Chieftaincy Committee is not a fatal objection.
The next question to consider is whether the respondents are proper parties to this application. I have no doubt whatsoever that the third respondent, Nana Pim Owusu Ansah, is a proper party. He appealed to the Chieftaincy Committee and the decisions of both the committee and the National Liberation Council directly affect his interests. The position of the Attorney-General too is quite clear and no objection was taken to his being made a party to this application. This application is questioning the validity of an action by the National Liberation Council, the then government of the day, and I think it is only proper that the Attorney-General, in whose name all proceedings against the Republic may be brought, should be made a party to this application. The position of the Chieftaincy Committee, however, must be considered in some detail.
The committee was appointed under section 34 of the Chieftaincy Act, 1961 (Act 81), which empowered the National Liberation Council to appoint persons to exercise the original and appellate jurisdiction in chieftaincy matters. For purposes of administration and the processing of the necessary appeal papers and advising the National Liberation Council generally on chieftaincy matters, a secretariat was set up with permanent members. However, when any appeal was lodged, the National Liberation Council had to appoint the persons who were to constitute the committee for that particular case. The secretariat has been abolished and nothing has been substituted therefor in the new Constitution. It is argued on behalf of the respondents therefore that no order of certiorari can lie against it. This is a misconception. The application is not directed at the Chieftaincy Secretariat, which was an administrative and advisory body, but at a committee appointed to hear an appeal and report its findings to the National Liberation Council.
It is further contended that the application cannot lie against a body which has to report its findings to another authority which has to take the decision. Reliance is placed on the case of Eku alias Condua III v. Acquaah [1961] 1 G.L.R. 285 (the ruling in this case was set aside on appeal by the Supreme Court on other grounds: See Eku alias Condua III v. Acquaah [1963] 1 G.L.R. 271, S.C.). In that case the High Court was dealing with the provisions of the Houses of Chiefs (Amendment) Act, 1959 (No. 8 of 1959), which required the Appeal Commissioner to embody his findings in a report and deliver it to the minister who shall refer the report to the Governor-General. The Governor-General was given power to confirm, vary or refuse to confirm the findings in the report, or remit it to the Appeal Commissioner for further consideration. It also provided that the decision of the Governor-General shall be published in the Gazette, and when so [p.332] published shall be final and conclusive. Charles J. in giving his ruling that certiorari does not lie to such a body said at p. 291,
"It is clear that in order to come within the category of a judicial or quasi-judicial tribunal or authority to whom certiorari may issue, the authority must have the power to determine questions affecting rights of parties; see R. v. Metropolitan Police Commissioner, ex p. Parker [1953] 2 All E. R. 717. Unless there is an order or determination by the body, certiorari will not lie."
The learned judge relied on the case of R. v. Statutory Visitors to St. Lawrence Hospital, Caterham; Ex parte Pritchard [1953] 2 All E.R. 766. In that case the visitors under section 11 (4) (a) of the Mental Deficiency Act, 1913 (3 & 4 Geo. 5, c. 28), examined an infant and submitted a special report to the Board of Control, recommending that the detention order should be extended. Certiorari to quash the report of the visitors was refused on the ground that under section 11 (2) of the Act, it was for the Board of Control and not the visitors to decide whether the continuance of the detention order was necessary in the interests of the infant and to make an order for that purpose. The visitors had no power to come to a decision and did not constitute a tribunal. The report was simply a recommendation and contained the evidence to enable the board to come to a decision.
With the greatest respect to the learned trial judge, I do not share his views. There is a clear distinction between reports which are merely advisory and in respect of which certiorari will not ordinarily lie, and reports and recommendations which will in fact operate, with or without modification, after approval by another authority. Where the National Liberation Council confirms a recommendation under the Chieftaincy Act, 1961, it is the recommendation of the Chieftaincy Committee which in fact operates. It is quite clear from the publications in the Local Government Bulletin that the findings of the Chieftaincy Committee as confirmed, varied or amended are to operate. I find support for this view in the words of Lord Parker C.J. in the recent important case of R. v. Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 Q.B. 864. He said at p. 881.
"Indeed in the Electricity Commissioners case ([1924] 1 K.B. 171), the rights determined were at any rate not immediately enforceable rights since the scheme laid down by the commissioners had to be approved by the Minister of Transport and by resolutions of Parliament. The commissioners nevertheless were held amenable to the jurisdiction of this court. Moreover, as can be seen from Rex v. Post master-General, Ex parte Carmichael [1928] 1 K.B. 291 and Rex v. Boycott, Ex parte Keasley [1939] 2 K.B. 651, the remedy is available even though the decision is merely a step as a result of which legally enforceable rights may be affected."
The next question for determination is whether where a finding or decision of one body is subject to confirmation of another superior authority, and the superior authority has in fact confirmed the finding or [p.333] decision certiorari can issue to quash the proceedings before the inquiring body. In the case of Banks v. Transport Regulation Board (1968-69) 42 A.L.J.R. 64, the Transport Board had revoked the taxi-cab licence of the applicant. The decision of the board was subject to confirmation by the Governor-in-Council; the Governor-in-Council had confirmed the decision of the board. The appellant applied for an order of certiorari to quash the order of the board. The Supreme Court of the State of Victoria upheld the board's preliminary objection that since the Governor-in-Council had confirmed the decision, certiorari would not lie. On appeal, the High Court of Australia held that the fact that the Governor-in-Council had made an order approving the decision of the board did not deprive the appellant of the protection of the prerogative writ of certiorari against the proceedings of the board.
Again in Ridge v. Baldwin [1964] A.C. 40, H.L., the appellant's appointment as a chief constable of a borough police force was subject to the Police Acts and regulations. He was dismissed for negligence by the watch committee after criminal proceedings in which he was acquitted. It is not necessary to go into the facts of these prosecutions. Section 191 (4) of the Municipal Corporations Act, 1882 (45 & 46 Vict., c. 50), provides that:
"The watch committee . . . may at any time suspend, and . . . dismiss, any borough constable whom they think negligent in the discharge of his duty, or otherwise unfit for the same."
The appellant appealed against his dismissal to the Home Secretary under the Police (Appeals) Act, 1927 (17 & 18 Geo. 5, c. 19), and the regulations made thereunder. Section 2 (2) of the Act provides thus:
"The Secretary of State after considering the notice of appeal and any other documents submitted to him by the appellant and the respondent . . . and the report (if any) of the person or persons holding the inquiry shall by order either—
(a) allow the appeal; or
(b) dismiss the appeal; or
(c) vary the punishment . . ."
And by section 2 (3) it is provided that the decision upon such appeal by the Secretary of State is to be "final and binding upon all the parties." The Home Secretary's decision was that there was sufficient material on which the watch committee could properly exercise their power of dismissal under section 191 (4), and accordingly dismissed the appeal. It was held that this did not prevent a challenge to the validity of the decision of the watch committee.
In the present application, the report of the Chieftaincy Committee had been dealt with by the National Liberation Council and I do not think that factor alone would preclude this court from issuing an order of certiorari to quash the proceedings of the Chieftaincy Committee.
The next point of substance and importance to consider is whether the decision or act of the National Liberation Council in confirming or varying or amending the report of the Chieftaincy Committee can itself [p.334] be quashed by an order of certiorari. The answer, it is submitted for the Attorney-General, turns on whether or not the act of the National Liberation Council can be termed ministerial and administrative, or judicial or quasi-judicial. Section 39 of the Chieftaincy Act, 1961, prescribes what the National Liberation Council were to do with the report of the Chieftaincy Committee. It provides,
"(2) If it appears to the National Liberation Council that the findings in the report are correct they shall confirm the report.
(3) If it appears to the National Liberation Council that the findings are substantially correct, but require to be varied in certain respects they shall confirm the findings as so varied.
(4) In any other case the National Liberation Council shall either remit the matter to the Committee for further consideration and the taking of such further evidence as the National Liberation Council may direct, or shall amend the findings as they think fit.”
It is quite clear that the National Liberation Council was to determine the correctness or otherwise of the findings contained in the report. I think it is too late in the day to hold that certiorari does not lie against such a body. In Ahenkora v. Ofe (1957) 3 W.A.L.R. 145, C.A., Granville Sharp J.A. said at pages 150-151:
"It is clear from the wording of the section [section 8 of State Councils (Southern Ghana) [Ordinance] that it is the duty of the Governor upon a consideration of the report to decide between four courses: rejection, variation, confirmation of the findings of the report, or whether to remit for further hearing upon directions. In arriving at his decision I would hold that he must act judicially without taking into consideration extraneous or irrelevant matters.
The decision is followed by a purely administrative act, namely, the announcement of his decision in the Gazette to which I have referred . . .
I do not think that it can be questioned that the committee of inquiry is a judicial tribunal, and I am of opinion that the Governor's act in considering the report of the committee and deciding what step to take upon it is part and parcel of the inquiry; necessary to effect its purpose. The decision must be made judicially and without consideration of extraneous or irrelevant matters and is a judicial act."
I think that most of these objections have been taken because of some misconception of the scope of the order of certiorari which has been brought about by the way and manner the English courts had hitherto treated Lord Atkin's famous dictum in R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920), Ltd. [1924] 1 K.B. 171, C.A. His pronouncement had hitherto been considered as the locus classicus on the subject. However, later cases have shown that the scope of certiorari is considerably wider than what the courts had thought, and [p.335] several unrealistic and technical anomalies formerly though inherent in certiorari proceedings have been swept away. In the R. v. Electricity Commissioners case (supra) Atkin L.J. (as he then was) said at page 205:
"Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs."
This statement used to be read as exhaustive of the scope of prohibition and certiorari, although it was always conceded that they were also available on grounds other than excess of jurisdiction, namely, error of law on the face of the record and denial of natural justice. As a result, it was accepted that the writs would issue only in respect of a body of persons whose authority was legal in the sense of statutory; whose authority was to determine questions, not simply to investigate or advise or recommend; whose authority was only to determine questions affecting rights not licences or lesser interests; and who were under the duty to act judicially as a result of a clear indication in the legislation that the power should be exercised in a judicial manner such indication could seldom simply be implied from the nature of the power itself but must be found super added to it.
Recently the requirement of super-added duty to act judicially has been disclosed as a heresy in Ridge v. Baldwin (supra) and Durayappah v. Fernando [1967] 2 A.C. 337, P.C. Thus it seems that the courts will proceed now on a presumption that certain types of power must be exercised in accordance with the rules of natural justice, and thus, prima facie come within the scope of certiorari, unless Parliament has shown a clear intention to the contrary.
In Ghana, the Constitution, 1969, has put certain fetters on the right of Parliament to do so-see article 173 of the Constitution. However, even in England it seems that the courts are re-asserting their ancient powers to prevent abuse of power. In the case of In re H.K. (An infant) [1967] 2 Q.B. 617, Lord Parker C.J. dealing with the powers and duties of immigration officers under the Commonwealth Immigrants Act, 1962 (10 & 11 Eliz. 2, c. 21), said at p. 630:
"I myself think that even if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, nor merely bringing one's mind to bear on the problem, but acting fairly; and to the limited extent that the circumstances of any particular case allow, and within the legislative framework under which [p.336] the administrator is working, only to that limited extent do the so called rules of natural justice apply, which in a case such as this is merely a duty to act fairly. I appreciate that in saying that it may be said that one is going further than is permitted on the decided cases because heretofore at any rate the decisions of the courts do seem to have drawn a strict line in these matters according to whether there is or is not a duty to act judicially or quasi-judicially."
Salmon L.J. in the same case at p. 633 said:
"Of course, an immigration officer is acting in an administrative rather than a judicial capacity. What, however, is a quasi-judicial capacity has, so far as I know, never been exhaustively defined. It seems to me to cover at any rate a case where the circumstances in which a person who is called upon to exercise a statutory power and make a decision affecting basic rights of others are such that the law impliedly imposes upon him a duty to act fairly."
Blair J. put the matter beyond doubt when he said at p. 636:
"I would only say that an immigration officer having assumed the jurisdiction granted by those provisions is in a position where it is his duty to exercise that assumed jurisdiction, whether it be administrative, executive or quasi-judicial, fairly, by which I mean applying his mind dispassionately to a fair analysis of the particular problem and the information available to him in analysing it. If in any hypothetical case, and in any real case, this court was satisfied that an immigration officer was not so doing, then in my view mandamus would lie."
The process of liberalisation is by no means complete. In the infant democracy of Ghana it is exceptionally important that the courts should not put fetters on their own ability to protect the fundamental human rights so admirably enshrined in the Constitution of the Second Republic, by adopting highly technical and artificial limitations on their powers, limitations which are being rapidly discarded even in monarchial regimes. Democracy in the last analysis, receives its sustenance from remedial laws and procedures; it is the availability of effective and reasonably quick remedies for doing justice that gives meaning to democracy. The High Court of Ghana has been given power under article 28 of the Constitution to issue writs and orders in the nature of habeas corpus, certiorari,etc., as it may consider appropriate for the purposes of enforcing, or securing the enforcement of fundamental human rights. It has also been given supervisory powers over all adjudicating authority under article 114 of the Constitution exercisable by the same writs and orders. To restrict these powers by adopting self-imposed limitations would considerably impair the power of the courts to perform and fulfil their duties of securing the enforcement of fundamental freedoms and supervising other adjudicating authorities. I do not propose to do so.
[p.337]
Having decided that the proper parties are before the court, and further that certiorari can properly issue to quash the proceedings of the Chieftaincy Committee and the National Liberation Council, I must now consider whether the facts in this case warrant such an order as the one prayed for. As I have said it seemed that the applicants were in some difficulty as to what to include in their statement because of the non - availability of the record of the proceedings before the Chieftaincy Committee. They were therefore constrained, when at last apprised of the real and correct position, to apply for leave to amend their statement and file a supplementary affidavit. I decided to hear arguments before deciding to grant leave to amend, I now grant the leave. I do so because from the arguments, it seems clear to me that something went wrong in the proceedings somewhere, and that the National Liberation Council might have acted without jurisdiction in deciding to reverse their earlier decision, in which case I would consider the applicants entitled to have the order of certiorari issue ex debito justitiae.
The respondents have taken the point that it is mandatory for the applicants to exhibit a copy of the proceedings which they seek to quash and rely on Order 59, r. 7 (1) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). It provides: [His lordship here read the provisions as set out in the headnote and continued: ]
I am of the view that the words "a copy thereof" appearing in this rule refer to the order, commitment, etc., and not to the proceedings. The applicants filed copies of the notices published by the National Liberation Council on 28 March 1969, and 5 September 1969. I am also satisfied with the explanation for their inability to produce the record of the proceedings.
In R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 All E.R. 122 at pp. 129-130, C.A., Denning L.J. (as he then was), discussed exhaustively the procedures adopted by the King's Bench in its early days in applications for certiorari and prohibition. He said:
"Next I will turn to the orders of justices in civil matters. The Court of King's Bench was never so strict about these as it was about convictions. It did not require a detailed speaking record to be sent up to them. The record had to contain everything necessary to show that the justices had jurisdiction to deal with the matter, and it had to set out their adjudication, but it was not necessary to set out either the evidence or the reasons. If a point of law arose, however, on which either party desired the ruling of the King's Bench, he could ask the justices to make a speaking order, that is, to make a special entry on the record of the reasons for their judgment ... I now come to the orders of statutory tribunals. The Court of King's Bench has from very early times exercised control over the orders of statutory tribunals, just as it has done over the orders of justices. The earliest instances that I have found are the orders of the commissioners of [p.338] sewers, who were set up by statute in 1531 to see to the repairs of sea walls and so forth. The Court of King's Bench used on certiorari to quash the orders of the commissioners for errors on the face of them, such as when they failed to set out the facts necessary to show that they had jurisdiction in the matter, or when they contained some error in point of law... It appears that the Court of King's Bench always insisted that the record should contain, or recite, the document or information which initiated the proceedings and thus gave the tribunal its jurisdiction and also the document which contained their adjudication."
In this case, it is stated that the report of the Chieftaincy Committee incorporating their proceedings and findings were sent to the National Liberation Council and are not available to the parties. I would have ordered its production in court, if the secretary to the committee had not himself filed a copy of these proceedings. A perusal of this report does not show the facts necessary to show the jurisdiction of the Chieftaincy Committee in this matter. The Chieftaincy Act, 1961, is quite explicit in requiring the leave of the minister before any appeal is brought to the Chieftaincy Committee. As I have said, the report of the committee nowhere shows that such leave was applied for or obtained, and if so when. The secretary has, however, sworn to an affidavit that the leave was given, and the applicants have denied this. The third respondent, who was the appellant has kept a judicious silence on this matter. In view of what I am about to say I do not think it would be necessary to decide the question whether leave was obtained or not. I would however say that where an inferior tribunal asserts jurisdiction in any matter, the burden is on those who claim that that tribunal has the requisite jurisdiction to prove it. In this, the position of the superior courts is different. There the burden is on the party who asserts that the superior court had no jurisdiction to establish a lack of jurisdiction. I might have, therefore, if I was minded to decide this question, ordered a further inquiry into the question whether leave of the minister was obtained or not. It would then have been necessary to produce an authenticated copy of the minister's order granting leave to appeal. I would not have considered as sufficient an affidavit of the secretary attached to the Chieftaincy Secretariat.
The National Liberation Council considered the report of the Chieftaincy Committee and published their decision in the Local Government Bulletin of 28 March 1969, dismissing the appeal. It has been urged before me that the National Liberation Council had no power to reverse or set aside the findings of the Chieftaincy Committee because their powers are limited to confirming the decision, varying it, amending it, or remitting the same to the committee for further evidence. This point was raised in the case of Blewey v. Assuah, High Court, Sekondi, 27 October 1967, unreported; digested in (1968) C.C. 31. There Archer J. (as he then was) said,
"In this respect I think the word amend has been used in a different sense from the word vary in subsection (3). The word’ amend' in the context must not be given a narrow meaning but a very wide meaning [p.339] to embrace `to change completely,' or `substitute something different.' This is so because if the council is of the opinion that the findings are not substantially correct or not correct at all, and I repeat not correct at all, it can only substitute what is correct.... My intuitive conviction is that draftsman in his enthusiasm to save words and not to be labour the courts with elaborate construction of a multiplicity of verbs, chose the word ‘amend’ for simplicity and brevity in the hope that word would be construed in the light and context of the whole of section 39 of the Act."
I agree with the observations of the learned judge and I hold that the National Liberation Council was entirely within its powers to reverse the findings of the Chieftaincy Committee if so minded, and dismiss the appeal.
Now having dismissed the appeal and having had it published in the Local Government Bulletin of 28 March 1969, the decision was by the operation of section 39 (5) final and conclusive. On 5 September 1969, the National Liberation Council published another decision cancelling the first one. The question is whether the National Liberation Council had power to take another decision in the matter and have it published.
It is contended before me that the National Liberation Council discovered that it had made a mistake and sought to correct that mistake by publishing the second decision. There is no dispute that the National Liberation Council took a decision at first that the appeal should be dismissed. The secretary in his affidavit puts this beyond controversy. He states: . . .
"(9) That the National Liberation Council decided that the appeal should be dismissed.
(10) That the Chieftaincy Secretariat caused a publication to this effect to be made in the Local Government Bulletin No. 15 dated 28th March, 1969"
The Secretary has sought to explain what happened in his affidavit, where he states:
"(11) That after the said publication, the Chieftaincy Secretariat informed the National Liberation Council that its decision was not in accordance with the findings of the committee.
(12) That the National Liberation Council realising its mistake, corrected it by confirming the original finding of the Chieftaincy Committee, that the appeal should be allowed and in order to promote cordial relations between the appellant and the Agonahene and his elders, there should be no order as to costs."
It will be seen therefore, that the first publication was in actual fact the decision of the National Liberation Council. The secretary does not suggest that the Chieftaincy Secretariat in publishing the decision made a mistake in publishing a wrong one. What is suggested is that the National Liberation Council were persuaded by the Chieftaincy Secretariat that they had [p.340] made a mistake. I do not think that the National Liberation Council having published its decision was clothed with the necessary authority to review it again. I hold therefore that the decision which was published on 5 September 1969 was ultra vires and void.
I would further hold that even if the National Liberation Council had the necessary authority to review its decision, elementary justice demanded that the parties should have been heard. It is a different proposition to suggest that in considering the report of the Chieftaincy Committee the parties need not be heard. At that stage none of the parties knew of the findings of the commissioner and it may very well be that the rules of natural justice would not apply at that stage. I leave this point open. However, when the decision has been published and rights have been acquired thereunder, I do not think it is a proper exercise of power,whether it be administrative, ministerial or judicial, to reverse that decision without affording the parties any hearing. I think the ordinary man in the street would think it strange to say the least, that a person acquitted by a court on a charge has been carried off to jail on the same charge because the judge had surreptitiously amended his finding some six months later. What to the man in the street would be offensive to current ideas of fair play and justice would weigh considerably with the courts in deciding whether justice has been done according to law: See Aidoo v. C.O.P. (No.3) [1964] G.L.R. 354, S.C. decided by the Supreme Court on 22 May 1964. I would grant the application and quash by certiorari, the decision of the National Liberation Council published in the Local Government Bulletin dated 5 September 1969. The applicants will have their costs which I assess at N¢200.00.
DECISION
Application granted. Second decision of National Liberation
Council quashed.
K.T.
