The republic v. The judicial committee of the anlo traditional council (C.A. H1/180/2004) [2004] GHACA 28 (25 November 2004);
IN THE SUPRRIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
CIVIL DIVISION
ACCRA – GHANA
CORAM: ADINYIRA (Mrs.) J.A. (Presiding)
AKAMBA J.A.
DOTSE J.A.
C.A. H1/180/2004
ON THURSDAY 25 NOVEMBER 2004
THE REPUBLIC
V.
THE JUDICIAL COMMITTEE OF THE
ANLO TRADITIONAL COUNCIL
EX PARTE: TORGBUI GBORDZOR III APPLICANT/RESPONDENT
1. REGENT JOHNSON DADIVI ANTHONIO -------- INTERESTED/
2. ELDER KOFI AVUTEKPEY ANTHONIO APPELLANTS
3. ELDER R.E.K. ANTHONIO
4. ELDER THOMAS ANTHONIO
5. ELDER GEORGE KOBLA ANTHONIO
6. ELDER EDWARD DUGBATEY ANTHONIO
7. LUCKY ANTHONIO
JUDGEMENT
AKAMBA, J.A.: -On 18th May 2001 the High Court, Denu, presided over by E.M.Boateng, J. granted an application filed by the Applicant/Respondent herein Togbi Gbordzor III, (hereinafter referred to simply as the Respondent) prohibiting the judicial committee of the Anlo Traditional Council from proceeding to hear and determine an interlocutory application for injunction against the aforementioned respondent pending before it.
The facts leading to the ruling of the High Court briefly are that the Appellants herein as Interested Parties filed a petition, on 18th October 1996 before the Judicial Committee of the Traditional Council Anloga against three Defendants/Respondents namely Micheal Dorlefiame Anthonio, Annie Tsikata and C.Y Tetteh, seeking the following reliefs namely:
- A declaration that the Defendants/Respondents therein have acted contrary to custom and from improper motive of attempting to install a non-royal on the Anthonio-Gbordzor Stool of Woe.
- A nullification of the purported nomination and introduction of the 3rd Respondent/Defendant therein to the elders of the town.
- An order for perpetual injunction to restrain the Defendants/Respondents therein , their agents, servants and workmen from putting the said 3rd Respondent/Defendant up as a royal of Anthonio-Gbordzor Stool and thereby present him as a candidate and from anyway seeking to cause havoc to the said stool.
- An injunction order prohibiting the 3rd Respondent/Defendant from parading himself or pretending to be a royal to the said Anthonio–Gbordzor Stool as he is not a royal.”
The Defendants/Respondents filed their defence to the aforementioned petition in which the issue of the eligibility of other lineages like Anthonio, Tettey, Darh and Dotsega to ascend the Anthonio-Gbordzor Stool were raised for determination. These other lineages were there fore joined to the suit a Co- Defendants.
Hearing of the suit subsequently commenced and two of the appellants herein gave evidence and were cross-examined. In the course of the hearing the Defendants/Respondents appointed one Kpeto Kofi Darh as Regent of the stool ( the subject of the dispute) which appointment was communicated to the Registrar of the Anlo Traditional Council Anloga. The Appellants who contend that the appointment of Kpeto Kofi Darh as regent is illegal and calculated to outreach the suit pending before the judicial committee of the Anlo Traditional Council promptly filed an application for interim injunction to restrain the said Kpeto Kofi Darh and the Defendants/Respondents and Co-Defendants. The application was granted by the Judicial Committee on 12/11/98. It is further the case of the Appellants herein that on or about the night of 21/12/99 the Defendants/Respondents, Co-Defendants and the Respondent herein (Kofi Mensah Ahiekpor styling himself as Togbi Gborzor III) and their agents allegedly broke into the stool house and took away some of the stools to an unknown destination without the knowledge, consent and permission of the Regent [1st Appellant]. When the Appellants became aware of the breakage and theft which has been admitted by the 1st Defendant/Respondent, they caused two applications for interlocutory injunction to be filed on 28th December 1999 and 16th January 2000, against the Defendant/Respondent, Co-Defendants, Kpeto Kofi Darh and the Respondent herein. Theses applications are yet to be heard.
On 25th February 2000, the Respondent herein filed an application for an order of prohibition at the High Court, Denu to issue against the judicial committee of the Anlo Traditional Council on grounds that the interlocutory injunctions filed against him [Respondent] were improper.
The Appellants opposed the application for prohibition because one of the issues raised for determination in the substantive suit before the judicial committee of the Anlo Traditional Council was the issue of the eligibility of Tetteh /Ahiekpor lineage which lineage includes the Respondent herein. Nevertheless, the High Court granted the orders prayed for, namely:
- That the interlocutory application was not properly brought before the judicial committee of the Anlo Traditional Council since that application did not comply with all the required procedures for bringing an action before a Traditional Council
- That the applicant was not a member of the suit before the judicial committee of the Anlo Traditional Council and therefore an interim injunction application ought not to have been started against him without first seeking to join him as a party to the main suit before the Anlo Traditional Council.
- That the judicial committee of the Anlo Traditional Council is thereby prohibited from proceeding to hear and determine the interlocutory application for injunction against the applicant.
Aggrieved by the fore going ruling the appellants have appealed on the following grounds:
- The learned judge misconceived the law and the facts in holding that the Applicant/Respondent not being a party to the suit before the judicial committee of Anlo Traditional Council, the Appellants/ 1st to 7th Interested Parties cannot in law bring application for interlocutory injunction against him.
- That the learned judge erred in not appreciating the fact that the issue involved in suit No.1/96 pending before the judicial committee of Anlo Traditional Council was basically the issues of eligibility of the lineage of the parties to ascend the Anthonio-Gbordzor stool.
It is the case of the Respondent herein that the manner by which the Appellants sought to question the eligibility of the Respondent to be a chief in a suit in which another person’s eligibility was being questioned and to which he was not a party and no reliefs were sought against him and which had abated by reason of the death of the person whose eligibility was being contested, did not conform with the requirements of s.15 of the Chieftaincy Act (Act 370) and s. 4 (1) of L:1 798, the Chieftaincy [Proceedings and Functions] [ Traditional Councils] Regulations, 1972. It was therefore argued on behalf of the Respondents that the preconditions necessary to invoke the jurisdiction of the judicial committee, not satisfied, it would be in excess of the jurisdiction of the judicial committee to purport to hear and determine the matter of the Applicant/Respondent’s eligibility as chief upon the application for interlocutory injunction filed by the Appellants. Since heavy premium has been placed on the Chieftaincy Act (Act 370), I will quote the relevant sections here below as follows:-
“15 (1) Subject to the provisions of this Act and to any appeal there from, a Traditional Council shall have exclusive jurisdiction to hear and determine any cause or matter affecting chieftaincy which arises within its area, not being one to which the Asantehene or a Paramount Chief is a party.
(2). The jurisdiction conferred by this section shall be exercised in accordance with part V of this Act.” [Emphasis underlined]
Proceedings before a Traditional Council are regulated by S 28 of Part V of Act 370, which relevant provision enacts:
“28 (1) In exercise of the jurisdiction conferred upon it by section 15 of this Act, a Traditional Council shall subject to the provisions of this section conduct its proceedings according to customary law, but for the purpose of compelling the attendance of parties and witnesses and the production of documents, a Traditional Council shall have the like powers as are possessed by a District Court in the exercise of its civil jurisdiction.
(2). The said jurisdiction shall be exercised by a judicial committee of the Traditional Council comprising three or five persons appointed by that Council; and accordingly the provisions of this Act relating to proceedings and functions of a judicial committee of a Regional House of chiefs shall with such modifications as maybe prescribed by the Minister by regulations made under section 62 of this Act apply to proceedings and functions of a judicial committee of a Traditional Council.
(3). A Traditional Council may in respect of any cause or matter affecting chieftaincy determined by it make any award of a civil nature including any award of amends to an injured person…………”
As to what is meant by “cause or matter affecting chieftaincy,” S 66 states:-
“Cause or matter affecting chieftaincy” means any cause, matter, question or dispute relating to any of the following-
- the nomination, election, appointment or installation of any person as a Chief or the claim of any person to be nominated, elected, appointed or installed as a Chief;
- the destoolment or abdication of any Chief;.
- the right of any person to take part in the nomination, election, appointment or installation of any person as a Chief or in the destoolment of any Chief.
- the recovery or delivery of stool property in connection with any such nomination, election, appointment, installation, destoolment or abdication;
- The constitutional relations under customary law between Chiefs.”
On the other hand the High Court of justice derives its jurisdiction from the Constitution 1992 which enacts that;
“140 (1) The High Court shall subject to the provisions of this Constitution, have jurisdiction in all matters and in particular, in civil and criminal matters and such original, appellate and other jurisdiction as may be conferred on it by this constitution or any other law.”
The other components of the jurisdiction of the High Court are not relevant to the present appeal hence they are omitted. The Courts Act (Acts 459) reproduces the afore-mentioned jurisdiction of the High Court; hence it would be mere repetition to state it.
The clear meaning of the foregoing is that the High Court has been granted jurisdiction which is but subject to the Constitution, in all matters and in particular in civil and criminal matters and such other original, appellate and other jurisdiction as may be conferred on it by the Constitution or any other law. I have no doubt in my mind after reading Act 370 especially S 15 [1] and [2] and S.28 [1], [2] and [3] thereof together with Article 140 [1] of the Constitution 1992 as well as S 15 [1] of Act 459, the Courts Act, that jurisdiction in chieftaincy matters is the exclusive preserve of the various judicial committees of traditional councils. Chieftaincy is no doubt a customary law institution safeguarded and guaranteed under our Constitution. It is not a creature of statute but one merely recognized and guaranteed by statute. It draws its strength and existence from customary practice and usage and therein lays its cohesion. The Constitution 1992 together with the Chieftaincy Act 1971, have created the forum by which the rights and duties pertaining to chieftaincy as an institution would be ventilated under a specific tribunal, to wit, the judicial committees of the various Traditional Councils or Regional Houses of Chiefs or National House of Chiefs as the case may be. On this score, I am buttressed in my view firstly by this court’s decision in Tobah vs Kweikumah (1981) GLRD 59 and secondly by the recent Supreme Court ruling, though obiter, in Suit No CM 73/2003 entitled In the matter of the Parliamentary election for Wulensi Constituency Held on 7th December 2000, delivered on 15th January 2003 (unreported). Hear what Dr. Seth Twum JSC said:
“As Learned Counsel for Respondent pointed out our Constitution is replete with examples where it has created new rights not previously known to the common law and has provided special forums and procedures for their enforcement. For example Article 2 (1) creates a right to have an enactment or an act inconsistent with the Constitution set aside. The forum for its enforcement is the Supreme Court and the procedure prescribed by the Supreme Court rules, is a writ. Another example is article 33 of the Constitution. This is for the protection of the fundamental human rights and freedoms guaranteed under the Constitution. This right did not exist at common law. We may also mention the regime of judicial committees of the traditional councils for the adjudication of causes or matters affecting chieftaincy under the Constitution. In the case of chieftaincy disputes the law specifically gives exclusive jurisdiction to these judicial committees with ultimate appeal to the Supreme Court under articles 273 – 275 of the Constitution and the Chieftaincy Act 1971 ( Act 370).” [ Emphasis underlined]
It is now therefore settled that chieftaincy matters are the exclusive preserve of the judicial committees of the various traditional councils and the High Court does not have any concurrent jurisdiction with the afore mentioned traditional councils on such matters, as was previously held in cases such as Rep vs Boateng; Ex Parte Adu Gyamfi (1972) 1 GLR 317: Moosi vs Boateng (1975) 2 GLR 396, among others.
There is no doubt that the parties in this appeal are engulfed one way or the other in a chieftaincy dispute centered around the alleged installation of a non royal on the Anthonio- Gbordzor stool of Woe. Another issue in contention is that the Applicant/Respondent was not specifically made a party in the on-going proceedings prior to the filing of the application for injunction to issue against him. The Appellants on the other hand counter that the Applicant/Respondent was holding himself out as a chief and ought to be restrained. Be that as it may, what is in issue before this court is whether or not an application for a writ of prohibition could properly issue against the Anlo Traditional Council and thereby barring it from hearing and determining the motion for injunction pending before it.
The Constitution 1992 in Article 141 confers upon the High Court supervisory jurisdiction over all lower courts and any adjudicating authority. The High Court may in the exercise of this jurisdiction issue orders and directions for enforcing these supervisory powers. It appears to me that this provision preserves the common law powers of the High Court to intervene in its supervisory capacity by the prerogative writs just as was observed in a corresponding context by Abban J. (as he then was) in Republic vs Tekperbiawe Divisional Council (1972) 1 GLR 205 ,which I fully endorse and adopt. The principle here is that statutes are not presumed to make any alterations to the common law or else they would expressly say so in the Act. In other words, any intended alterations must be made by clear and explicit words to that effect. Therefore, in the absence of any express words to alter the application of the prerogative writs it is only reasonable to conclude that the prerogative writs remain a proper means by which the supervisory jurisdiction of the High Court may be invoked to deal with appropriate excesses of legal authority by lower tribunals. However it is important to underscore the fact that any resort to the prerogative writs must comply with essential preliminary requirements. The Respondents had sought a writ of prohibition from the High Court. It is apparent that any person can seek an order of prohibition and such applicant need not show that he is a ‘person aggrieved’, or has any personal interest in the matters See R v. Minister of Health; Ex Parte Villiers (1936) 1 AER 817 DC.
The Respondents application was primarily based on the alleged ground of lack of jurisdiction on the part of the Anlo Traditional Council to entertain the motion for injunction to issue against him since he was not a ‘party’ to the action before the tribunal. Lack of jurisdiction is certainly a recognized ground for which an order of prohibition may issue. For the order to issue, the jurisdictional defect must be total as opposed to latent or veiled defects. Latent or veiled defect can be overlooked or glossed over or waived, but total defect amounts to a total lack of jurisdiction. It amounts to a total defect and therefore a total lack of jurisdiction where the tribunal lacks competence by reason of the status of the parties or the nature of the subject matter. [Underlined for emphasis]: See Jones v. Owen (1848) 5 D & L 669 @ 674.
The Respondent’s complaint relates to his status since he is not a party to the action in the sense that he has not formally been brought into the substantive suit. The general rule as to parties is for the plaintiff to show that his own interests are in some way peculiarly affected by the defendant’s conduct to warrant the court’s intervention. So that in an action ‘not only must there be a plaintiff whose legal interests are affected sufficiently to enable him sue,; the defendant must be one whose legal interests are sufficiently affected by the plaintiff’s claim (or whose conduct could be sufficiently affected by judgment in the plaintiff’s favour)’: See de Smith’s Judicial Review of Administrative Action, 4th Edition, page 510 on Parties to Proceedings. There is no suggestion that the application for injunction cited the Respondent as an agent, servant, workman, heir or assign of any of the existing parties to bring him under the coverage of an injunction restraint based on a grant against the principal party. I think that on this issue of the status alone the High Court could intervene as it did. Professor de Smith in his book, Judicial Review of Administrative Action 4th Edition at page 472 has expressed some doubt as to whether injunctions or otherwise could be granted by the High Court where Parliament has conferred upon the designated tribunal exclusive jurisdiction over the matters in issue. This is what he states: ‘The High Court will be unable to intervene by injunction or otherwise if Parliament has, expressly or by implication, conferred upon the designated tribunal exclusive jurisdiction over the matters in issue.’ It is my candid opinion that since total lack of jurisdiction can arise from either of two alternatives or both, that is to say, either from a lack of status by the party/ies or from the nature of the subject matter, Professor de Smith’s opinion would come into play if the only reason for the application is a lack of jurisdiction on account of the nature of the subject matter. The present complaint based as it were on the lack of status on the part of the respondent, the High Court properly entertained the application and also dealt appropriately with same. I therefore find no merit on the first ground of appeal and dismiss same.
The second ground equally lacks merit so long as the Respondent’s capacity has not been such as brings him into the suit. If the Respondent’s legal interests are sufficiently affected by the plaintiff’s claim he would apply to join as a party. Alternatively, if the plaintiff finds that the dispute will directly affect the Respondent’s legal rights or his pocket, he ought to cause him to be joined in the suit. Failure to do this will deprive the judicial committee the power to deal directly with him. In the overall I hereby dismiss the appeal in its entirety. The Respondent is entitled to his costs.
J.B.AKAMBA.
JUSTICE OF APPEAL
ADINYIRA (Mrs.) J.A.: I fully concur in the reasoning and conclusions, which my brother Akamba has just read. I however wish to add a few words of my own. In arguing this appeal, the appellants in their statement of case submitted that:
‘The learned High Court having granted an order prohibiting the Judicial Committee of the Anlo Traditional Council to hear the appellants’ application was indirectly saying that the Judicial Committee did not have jurisdiction to hear the application. This position we contend is wrong in law.’’
It is my respectful opinion that the appellants have truly misconceived the principles upon which prohibition is granted. To restate the grounds upon which prohibition may be granted, I would say that prohibition lies to restrain an inferior court or tribunal from continuing proceedings in excess of its jurisdiction, or where it lacks jurisdiction and also from breaching the rules of natural justice. It is on this lack of jurisdiction that the appellants are claiming that the order of prohibition made by the High Court meant the High Court was indirectly preventing the Judicial Committee from performing its statutory functions under Section 15 (1) of the Chieftaincy Act, (Act 370) This statement by the appellants, shows appellants do not appreciate the full meaning of the term ‘lack of jurisdiction.:
‘Lack of jurisdiction’ by an adjudicating body, ordinarily means that body has no jurisdiction in the nature of the subject matter. A typical example is that a High Court has no original jurisdiction in chieftaincy matters. It therefore means a High Court cannot exercise original jurisdiction to determine a cause or matter affecting chieftaincy. Another meaning of ‘lack of jurisdiction’ is where a court or tribunal that has jurisdiction in a cause or matter may be said to lack jurisdiction where certain condition precedent for its jurisdiction to be invoked or exercised has not been fulfilled or satisfied. For example, the issue of a writ of summons or other processes known to rules of court and customary law, a person not being a party to a suit or action or proceedings, or where no service of writ or pleadings has been effected on a party. In the case of Barclays Bank v. Ghana Cable Co Ltd and Others, [1998-1999] SCGLR 1, it was held in (holding 1) that ‘since on the facts, the defendants have not been served with the writ of summons issued by the plaintiff bank, the High Court had no jurisdiction to enter final judgment against them’. In the case of In Anisminic Ltd. V. The Foreign Commission & Another [1969] 1 All ER 208 HL at page 233, Lord Pearce held that:
‘‘ There may be an absence of those formalities or things which are condition precedent to the tribunal having any jurisdiction to embark on an enquiry or the tribunal may at the end make an order that it has no jurisdiction to make….Any of these things would cause its purported decision to be a nullity. ’’
In the instant appeal before us the respondent was not a party to the suit no 1/96 pending before the Judicial Committee in respect of which a motion of interim injunction was brought against him. He therefore had two options, either to appear before the Judicial Committee and protest or to apply to the High Court for an order of prohibition to restrain it from hearing the matter. He chose the second option and as my brother Akamba said in his judgment ‘‘the present complaint based as it were on the lack of status on the part of the respondent, the High Court properly entertained the application and properly dealt with same.’’
In my opinion if the motion for interim injunction before the Judicial Committee had been against the appellants who are parties to the substantive suit and the relief sought was to be extended to the respondent as a privy to the acts complained of, then, the complaint of the latter of not being a party to the action would have been futile. But once the appellants chose to proceed against the respondent separately, the respondent not being a party to that action can rightly protest to the High Court, which has supervisory jurisdiction over the Judicial Committee.
In the circumstances I would also dismiss the appeal.
S.O.A. ADINYIRA (Mrs.)
JUSTICE OF APEAL
DOTSE, J.A. : - This is to confirm that as a member of the Court of Appeal panel hearing suit No. H1/180/04 entitled :
The Republic
Vrs.
The Judicial Committee,
Anlo Traditional Council,
Ex-Parte: Togbi Gbordzor III – Applicant
1st Respondent.
The Regent Johnson Dadivi Anthonio & 6 Others – Interested Parties/Appellant.
I have had the chance of reading the head judgement of my brother AKAMBA, J.A. and I am in full agreement and have nothing more to add.
I have also read before hand the opinion of ADINYIRA, J.A. [MRS.] Presiding and I agree with her opinions as well.
Dated this 23-11-04.
J. DOTSE
JUSTICE OF APPEAL
COUNSEL:
Doe Tsikata for Respondent.
Wisdom Anthonio for Appellants.
