Samanpa Vrs Ampofo (GLR 456 – 466) [1992] GHACA 1 (29 October 1992);

SAMANPA v. AMPOFO [1992] 1 GLR 456 – 466

COURT OF APPEAL, ACCRA

29 OCTOBER 1992

LAMPTEY, ESSIEM AND OFORI-BOATENG JJ.A.

Practice and procedure—Review—Traditional council—Review suo motu—Traditional council resolving dispute by deciding occupancy of kronti stool is by rotation between Aduana and Asona clans—Council suo motu reviewing decision next day in absence of parties—New decision excluding Aduana clan from occupancy of kronti stool—Whether procedure permissible in law—Whether second decision a nullity—Native Authority (Colony) Ordinance, 1944 (No. 21 of 1944).

Administrative law—Judicial tribunal—Traditional council—Confirmation of decision—Decision of traditional council in chieftaincy dispute confirmed by both Provincial Commissioner and Governor—Decision subsequently found to be a nullity—Whether confirmation valid.

HEADNOTES

In 1947 the Akim Kotoku State Council (A.K.S.C.) resolved a chieftaincy dispute between the Asona and the Aduana clan by holding that both clans were eligible to occupy the kronti stool of Akim Kotoku.  However, on the following day the A.K.S.C. suo motu and in the absence of the parties reviewed its decision and held that only the Asona clan could occupy the kronti stool.  The Aduana clan, the plaintiffs, appealed against the second decision of the A.K.S.C. to the Commissioner of the Eastern Region under section 26 of the Native Authority (Colony) Ordinance, 1944 (No. 21 of 1944).  The appeal was dismissed.  The Asona clan thus occupied the stool until the plaintiff on behalf of the Aduana clan brought an action in the High Court for a declaration that the second decision was a nullity because it was contrary to the principles of natural justice, and unless that was done the Aduana clan could never hold office.  The defendant entered unconditional appearance for the Asona clan and filed a notice for an order to strike out the plaintiff’s action because it was, inter alia, a chieftaincy matter and furthermore, the second decision had been upheld by the commissioner.  The High Court dismissed the plaintiff’s  action.  The plaintiff then appealed to the Court of Appeal against that decision on the grounds that the Native Authority (Colony) Ordinance, 1944 did not confer the power of review on state councils and therefore the A.K.S.C. had no jurisdiction to review its previous decision.  The defendant however contended that there was an inherent power of review in all cases and that power was in addition to the inherent customary power of review which remained intact unless expressly taken away by statute.

Held, allowing the appeal:

(1) the procedure adopted by the traditional [p.457] council was not warranted by the applicable law because there was no provision in the Native Authority (Colony) Ordinance, 1944 (No. 21 of 1944) which granted the traditional council jurisdiction suo motu to amend its judgment after it had been read in open court, and especially in the absence of the parties.  Furthermore, that procedure could not be justified under customary law.  Accordingly, the second judgment was a nullity.

(2) Under the Native Authority (Colony) Ordinance, 1944 (No. 21 of 1944) the Governor could only affirm a decision of a state council which had been duly given after adjudication.  The evidence however showed that the second judgment was not given after any hearing and therefore when the matter went to the Eastern Regional Provincial Commissioner and subsequently to the Governor the two officials could only deal with the original decision of the council.  Accordingly, they both had no jurisdiction to deal with the second judgment in any way since it was not given in accordance with the provisions of the relevant law. Accordingly, the purported confirmation of the said judgment was itself a nullity.

CASES REFERRED TO

(1) Otu X v. Owuodzi [1987-88] 1 G.L.R. 196, S.C.

(2) Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C.

NATURE OF PROCEEDINGS

APPEAL against the decision of the High Court dismissing the plaintiff’s action for a declaration that the review of a decision given by the Akim Kotoku State Council suo motu and in the absence of the parties was a nullity.  The facts are sufficiently set out in the judgment.

COUNSEL

James Ahenkorah (with him Hackman) for the plaintiff-appellant.

W.A.N. Adumua-Bossman (with him Asafu-Adjaye) for the defendant-respondent.

JUDGMENT OF ESSIEM  J.A.

This is an appeal from the decision of the High Court, Koforidua constituted by Williams J. The said court on 15 October 1987 “struck off ” the plaintiff-appellant’s action upon a preliminary objection raised by the defendant-respondent before that court.

Before I deal with the grounds of appeal, I propose to give the facts of the case and the circumstances leading to the instant appeal. The dispute relates to the office of the krontihene of Akim Kotoku. The action herein was commenced by an originating summons by which the plaintiff sought the following relief from the High Court:

"(1)  A declaration that the decision of the then Akim Kotoku State Council between Obaapanin Afua Donkor, as the [p.458] plaintiff, and F. B. Amoah alias Abrokwa Gyampim, as the defendant, concerning the rival claims of the Aduana and Asona clans to be eligible to the office of krontihene of Akim Kotoku, was a nullity as being contrary to the principles of natural justice.”

The supporting affidavit of the plaintiff, Amma Samanpa spells out the events leading to the action in some detail and I reproduce the same hereunder:

“(1) That I am the plaintiff herein and institute this action as the head of and representing the royal Aduana clan attached to the kronti stool of Akim Kotoku.  The defendant who is the abusuapanin of the Asona clan attached to the said stool is sued as such.

(2) That from the beginning of the founding of the state of Akim Kotoku the office of krontihene of the state had belonged to and been occupied by royals of the Aduana clan of which I am the present head.

(3) That in or about 1943 Nana Darko Gyimah III, the then holder of that office from the Aduana clan, was deposed by the Omanhene thereby rendering the office vacant; consequently in or about 1947 it became necessary to elect another candidate to fill the vacancy.

(4) That the Aduana clan elected one of its members by name Kwame Hemeng to the office but rather surprisingly one F.B. Amoah, alias Abrokwa Gyampim, from the Asona clan, was also elected to the office and both candidates were presented to the then Omanhene, Nana Frempong Manso II.

(5) That the election of these two candidates resulted in a chieftaincy dispute between the Aduana clan and the Asona clan with the Aduana clan claiming to be exclusively entitled to the office while the Asona clan claimed to be entitled to share in it.

(6) That this dispute went for determination to the then Akim Kotoku State Council under the provisions of the Native Authority (Colony) Ordinance, 1944 (No. 21 of 1944) with Obaapanin Afua Donkor, my immediate predecessor in office, as the plaintiff and the said F.B. Amoah, alias Abrokwa Gyampim, and others as the defendants.

(7)  That on 25 July 1947 the council gave judgment in favour of [p.459] the defendants and ordered as follows:

`‘That Amoah be recognised as the krontihene.  That the two houses (Asona and Aduana) become eligible to the office of the krontihene from that date hereof but that for the time being the Aduana stool be made subservient to the Asona stool which now holds the office.’

(8) That the said decision was very distasteful to the Aduana clan; whatever be the case, I am advised by counsel and I verily believe the same to be true that after delivering judgment as aforesaid the matter became closed before the council which became functus officio.

(9) That rather surprisingly, the next day, that is 26 July 1947, the council without hearing both sides afresh or at, any rate, without hearing or giving the Aduana clan the opportunity to be heard, purported to vary or review the decision of 25 July 1947 to the following:

‘That the Asona family only shall henceforth be eligible to the office of the krontihene. That the Aduana house formerly krontihene now owes allegiance to the Omanhene as aduanahene under the present krontihene’s house and further that copies of this variation be served on all parties affected by this order.’

(10) That on the strength of the said judgment varied as aforesaid, the said F.B. Amoah,   alias Abrokwa Gyampim, became the krontihene and was after his death succeeded in that office by two other members of the Asona clan which does not recognise the eligibility of members of the Aduana clan to the office of krontihene.

(11) That the office of krontihene having become vacant since last year with the abdication of Nana Amponsah Antwi of the Asona house as krontihene, I am reliably informed and I verily believe the same to be true that the Asona clan is making preparations to install a candidate from its membership.

(12) That unless and until the so-called variation order of the state council given on 26 July 1947 is declared or held to be a nullity the Aduana clan will forever be held barred from holding the office of krontihene which it had held from time [p.460] immemorial until it was interrupted in 1947 as hereinbefore stated.”

The respondent entered an unconditional appearance to the originating summons on 12 March 1986.  Then on 21 March 1986, the respondent filed a motion on notice “for an order striking out the plaintiff 's action.” The grounds stated were that:

“(i)  it is a chieftaincy matter and therefore that this court has no jurisdiction to entertain it;

(ii)  it is frivolous and vexatious; and

(iii) this is not an action which can properly be commenced by originating summons.”

The respondent then filed an affidavit “in opposition” in which he set out his defence to the originating summons.  I reproduce the relevant paragraphs of the said affidavit:

“(2) That I have been served with an originating summons taken out on behalf of the plaintiff.

(3) That the plaintiff in the summons claims to be eligible to the office of krontihene of Akim Kotoku and to bring the action on behalf of the Aduana stool.

(4) That the kronti stool is now vacant and the plaintiff and her family want to claim the right to choose a candidate for the stool, a right which is disputed by the defendant and his family.

(5) That I am advised and verily believe that the real controversy between the parties herein is a chieftaincy matter within the meaning of section 66 of the Chieftaincy Act, 1971 (Act 370) and that therefore this honourable court has no jurisdiction to entertain it by virtue of section 52 of the Courts Act, 1971 (Act 372).

(6) That I am also advised and verily believe that this action is frivolous and vexatious and ought not in any case be entertained even if this honourable court has jurisdiction.

(7) That in 1947 there was a dispute between the plaintiff’s family and the defendant’s family over the choice of a candidate for the kronti stool.

(8) That on 25 July 1947 the Akim Kotoku State Council gave judgment in favour of the defendant's family in the following terms:

[p.461]

‘That Amoah be recognised as the krontihene.  That the two houses (Asona and Aduana) become eligible to the office of the krontihene from that date hereof but that for the time being the Aduana stool be made subservient to the Asona stool which now holds the office.’

(9) That the next day the state council varied or reviewed its judgment in the following terms:

‘That the Asona family only shall henceforth be eligible to the office of the krontihene.  That the Aduana house formerly krontihene now owes allegiance to the Omanhene as aduanahene under the present krontihene’s house and further that copies of this variation be served on all parties affected by this order.’

(10) That the plaintiff’s family appealed against the said judgment as reviewed.

(11) That the appeal was considered by the Commissioner of the Eastern Province which upheld the judgment of the Akim Kotoku State Council as reviewed.  A certified copy of the ruling of the Acting Commissioner of the Eastern Region is annexed hereto and marked A.

(12) That the plaintiff’s family again petitioned the Governor of the Gold Coast through the Chief Commissioner for the Colony who advised the Governor not to intervene.  A certified copy of the memorandum of the Chief Commissioner to the Governor is annexed hereto and marked B.

(13) That I am advised and verily believe that the judgment of the state council as varied on 26 February 1947 having been affirmed on appeal and a petition by the plaintiff’s family against the said judgment having been rejected by the Governor of the Gold Coast the plaintiff’s family cannot now almost 40 years after the event ask the said judgment to be set aside.

(14) That variation made by the state council was perfectly in accord with custom and did not constitute any breach of natural justice.

(15) That I am further advised and verily believe this is not an action which can properly be initiated by originating [p.462] summons.

(16) That this action is frivolous and vexatious having been brought merely to prevent the installation of a new krontihene who has been nominated and elected by the kingmakers of the kronti stool.”

It will be seen from paragraphs (8) and (9) of the affidavit in opposition that after the Akim Kotoku State Council had given a decision in the matter on 25 July 1947, that same council reassembled the following day and reviewed its judgment in the absence of the parties apparently on its own motion.

The original judgment of 25 July 1947 was:

“That Amoah be recognized as the krontihene.  That the two houses (Asona and Aduana) become eligible to the office of the krontihene from that date hereof but that for the time being the Aduana stool be made subservient to the Asona stool which now holds the office.”

Then on the following day, i.e. 26 July 1947, the same council in the absence of the parties “reviewed” its decision and substituted a new decision as follows:

“That the Asona family only shall henceforth be eligible to the office of the krontihene.  That the Aduana house formerly krontihene now owes allegiance to the Omanhene as aduanahene under the present krontihene’s house and further that copies of this variation be served on all parties affected by this order.”

This new decision is really the reason for the declaration sought from the court below.  It is important to point out that the applicant appealed to the Commissioner of the Eastern Region under section 26 of the Native Authority (Colony) Ordinance, 1944 (No. 21 of 1944) against the decision of the Akim Kotoku State Council.  In his “finding” the Acting Commissioner for the Eastern Region dealt with the change of judgment of the Akim Kotoku State Council thus:

“That the state council recorded its judgment and order on 25 July 1947 and reviewed its order on the following day.  This rapid ‘volte face’ is hard to understand but I am of the opinion that the order made on the second day was done in order to simplify the situation and to discourage expensive litigation.”

[p.463]

Thus the appeal was dismissed.  There is no explanation why the applicant waited all these years before filing the instant application.  The respondent then on 21 March 1986 filed a motion for an order striking out the plaintiff’s action on the grounds that:

“(i) it is a chieftaincy matter and therefore this court has no jurisdiction to entertain it;

(ii) it is frivolous and vexatious; and

(iii) this is not an action which can properly be commenced by originating summons.”

The court dealt with these points after hearing arguments from counsel on both sides.  It upheld the objection and dismissed the action for a number of reasons.  It is against that decision that this appeal has been brought.

The main point raised before us in support of the appeal was that the Native Authority (Colony) Ordinance, 1944 did not confer the power of review on state councils and therefore the Akim Kotoku State Council had no jurisdiction to review its previous decision.  Even if the state council had power of review, it was argued, it could not do so on its own motion and in the absence of the parties.

It was contended on behalf of the respondents that chiefs exercised a power of review in all cases and that the power to appeal was in addition to the inherent customary power of review and that the power of review remained intact unless expressly taken away by statute.

In Otu X v. Owuodzi [1987-88] 1 G.L.R. 196, S.C. the Supreme Court dealt with “the review jurisdiction of an adjudicating tribunal.”  In that case the National House of Chiefs gave a decision in a chieftaincy matter on 23 October 1985.  On 8 November 1985 the National House of Chiefs “at the invitation of the defendants” reviewed its ruling of 23 October 1985, “set it aside, and proceeded to dismiss the plaintiffs’ petition altogether.” On appeal to the Supreme Court, the court expressed the following opinion in the course of its judgment at 200-201:

“The review jurisdiction of an adjudicating tribunal is not one that is usually conferred by statute.  It is inherent in the tribunal: it is part of its very nature as a tribunal whose raison d'etre is to do justice as between parties to a case before it.  But in order not to appear to be taking sides in the matter, the jurisdiction is not usually invoked on the tribunal's own motion, except in situations where the tribunal is satisfied that the decision sought [p.464] to be reviewed is void... Where the decision is merely voidable, then it were better that the tribunal left it to the parties themselves to initiate the review proceedings, if so advised, care always being taken to ensure that the tribunal does not allow itself to be coaxed into sitting on appeal over its own decision.”

That court concluded that the judicial committee of the National House of Chiefs has power to review its own decisions in appropriate circumstances. In the instant case, the Akim Kotoku State Council in what it called a review, on its own motion and in the absence of the parties, substituted an entirely new decision for the one it had delivered the previous day before the parties.  Unless there is a clear legal authority for this, the council after delivering its decision in the matter would have become functus officio.  In that case the “judgment” of 26 July 1947 would be a nullity because the Akim Kotoku State Council would have acted without jurisdiction since it had by then become functus officio in the matter.

However, the matter is a little more complicated than this.  The applicant appealed to the then Acting Commissioner of the Eastern Region who affirmed the decision of the state council given on 26 July 1947.  In my opinion the two judgments are inconsistent for while the first made members of both the Aduana clan and the Asona clan eligible to ascend the kronti stool of Akim Kotoku, the second judgment limited the holding of that office to members of the Asona clan.  Thus the judgment of 26 July completely changed the decision of the tribunal given the previous day. It denied members of the Aduana clan any right to ascend the kronti stool.  It was therefore a new judgment given by the Akim Kotoku State Council and it did this of its own motion in the absence of the parties.  In my opinion even if it can be said that the council could review its previous decisions this should be done upon application by one of the parties and in the presence of both parties after due notice had been given them for the purpose.  The procedure they adopted is not warranted by any procedure known to the applicable law. It is my opinion that the traditional council had no jurisdiction suo motu to amend its judgment after it had been read in open court, and especially in the absence of the parties.  There is no provision in the Native Authority (Colony) Ordinance, 1944 which permits what the council did.

Learned counsel for the respondent, Mr. Adumua-Bossman, had argued that there was an inherent power of review by the chief in all cases and that this inherent power of review had not been expressly taken [p.465] away by statute and that the power to appeal was in addition to the customary power of review.

It is too well settled that customary law does that which is reasonable.  To my mind, it is unreasonable for any adjudicating body to change a decision it had pronounced in open court, after the parties had left the court and without any application to that effect by any of the parties.  It is too dangerous for such a practice to be indorsed by the court in the absence of clear legal provisions warranting such a procedure.  Even if the traditional council is said to have jurisdiction to review its own decision, it can only do so before the parties after due notice had been given to them.  As Adade J.S.C. said in Otu X v. Owuodzi (supra) at 200:

“. . . in order not to appear to be taking sides in the matter, the jurisdiction is not usually invoked on the tribunal’s own motion, except in situations where the tribunal is satisfied that the decision sought to be reviewed is void.”

What the traditional council did in this case was not to review a void decision: it was to substitute a new one for the one read previously in open court.  The traditional council had no jurisdiction in my opinion to do that and it consequently acted without jurisdiction.  The second judgment is therefore in my opinion a nullity having been given without jurisdiction.  However, this judgment was affirmed by the Governor in exercise of his appellate jurisdiction under the then existing law, namely the Native Authority (Colony) Ordinance, 1944.

I have looked at the Native Authority (Colony) Ordinance, 1944 and I am of the view that the Governor can only affirm a decision of a state council which has been duly given after adjudication.  The record in this case shows that the second judgment was not given after any hearing and as I have already said there is no provision under the Ordinance which empowers the state council to do that.  It is my view that when the matter went to the Eastern Regional Provincial Commissioner and subsequently to the Governor, the two officials could only deal with the original decision of the council.  It is therefore my view that both the Provincial Commissioner and the Governor had no jurisdiction to deal with the second judgment in any way since that judgment was not given in accordance with the provisions of the relevant law, namely Ordinance No. 21 of 1944.  Thus the purported confirmation of the said judgment is itself a nullity.

In Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C. holding (4), it is stated:

[p.466]

“(4) Where a judgment or an order is void either because it is given or made without jurisdiction or because it is not warranted by any law or rule or procedure, the party affected is entitled ex debito justitiae to have it set aside, and the court or a judge is under a legal obligation to set it aside, either suo motu or on the application of the party affected.  No judicial discretion arises here.  The power of the court or a judge to set aside any such judgment or order is derived from the inherent jurisdiction of the court to set aside its own void orders and it is irrespective of any expressed power of review vested in the court or a judge; and the constitution of the court is for this purpose immaterial.  Further, there is no time limit in which the party affected by a void order or judgment may apply to have it set aside.”

Thus the purported judgment of the Akim Kotoku State Council delivered on 26 July 1947 and purported to be a review of the council’s decision given on 25 July 1947 is hereby set aside as the same was given without jurisdiction and is consequently a nullity.

The confirmation of the council’s decision by the Governor should be limited to the council’s decision of 25 July 1947, namely:

“That Amoah be recognised as the krontihene.  That the two houses (Asona and Aduana) become eligible to the office of the krontihene from the date hereof (i.e. 25 July 1947) but that for the time being the Aduana stool be made subservient to the Asona stool which now holds the office.”

I shall therefore allow the appeal and remit the case to the High Court, Koforidua to deal with the case before it.

JUDGMENT OF LAMPTEY J.A.

I agree.

JUDGMENT OF OFORI-BOATENG J.A.

I also agree.

DECISION

Appeal allowed.

M.C.N. N.