Republic Vrs The Judicial Committee [2023] GHAHC 148 (24 May 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE WINNEBA, CENTRAL REGION OF GHANA HELD ON MONDAY, THE 24TH DAY OF MAY, 2023, BEFORE HIS LORDSHIP, JUSTICE ABOAGYE TANDOH, HIGH COURT JUDGE. THE REPUBLIC VS. SUIT NO. E12/002/2022 1. THE JUDICIAL COMMITTEE AWUTU TRADITIONAL COUNCIL AWUTU BREKU. … RESPONDENT EX PARTE: 1. JOHN KOBINA AMISSAH -- APPLICANT 2. ABUSUAPANYIN KOBINA BANAFO – INTERESTED PARTY ____________________________________________________________ JUDGMENT The Applicant by a motion on notice filed an application on the 18th day of August, 2021 praying for an order of Prohibition against the Judicial Committee of the Awutu Traditional Council from hearing the matter filed on 29th day of November 2020 by Abusuapanyin Kobina Banafo, the Interested Party herein and the Plaintiff in the Chieftaincy suit entitled: 1. Abusuapanyin Kobina Banafo – Plaintiff Awutu Bereku V 1. John Kobina Amissah -- Defendants 2. Kwao Aidoo 3. Monarch Aheto. The Applicant further prayed for other orders as the Honourable Court will deem fit and pursuant to ORDER 55 RULES (1)(2)(3)(4) OF 1(C. I. 47). For the avoidance of doubt, ORDER 55 RULES (1)(2)(3)(4) OF 2(C. I. 47) provides thus: Rule 1—Cases Appropriate for Application for Judicial Review An application for (a) an order in the nature of mandamus, prohibition, certiorari or quo warranto; or (b) an injunction restraining a person from acting in any public office in which the person is not entitled to act; or, (c) any other injunction, shall be made by way of an application for judicial review to the High Court. Rule 2—Orders Obtainable by Judicial Review (1) On the hearing of an application for judicial review the High Court may make any of the following orders as the circumstances may require (a) An order for prohibition, certiorari or mandamus; (b) An order restraining a person from acting in any public office in which that person is not entitled to act; (c) Any other injunction; 2 THE HIGH COURT (CIVIL PROCEDURE) RULES, 2004 THE HIGH COURT (CIVIL PROCEDURE) RULES, 2004 (d) A declaration; (e) Payment of damages. (2) In granting an injunction or making a declaration under paragraphs (c) or (d) of subrule (1) of this rule the Court shall have regard to (a) The matter in respect of which relief may be granted by way of prohibition, certiorari or mandamus; (b) The nature of the persons against whom relief may be granted by way of the order; and (c) Whether in all the circumstances of the particular case it would be just and convenient to grant an injunction or make a declaration on an application for judicial review. (3) The Court on an application for judicial review, may award damages to the applicant if the applicant makes a case for damages and if in the opinion of the Court such damages arise from a matter to which the application relates and damages would have been awarded to the applicant in an action begun by the applicant at the time of making the application. Rule 3—Time for making Application (1) The application for judicial review shall be made not later than six months from the date of the occurrence of the event giving grounds for making the application. (2) Where an order of certiorari is sought in respect of any judgment, order, conviction or other proceeding, the date of the occurrence of the event giving grounds for the making of the application shall be taken to be the date of that judgment, order, conviction or proceeding. Rule 4—Mode of Application (1) An application for judicial review shall be made to the High Court by motion. (2) The motion shall be supported by an affidavit by or on behalf of the applicant which shall contain the following particulars (a) the full name, description and address for service of the applicant; (b) the facts upon which the applicant relies; (c) the relief or remedy sought by the applicant and the grounds on which he seeks the relief or remedy; and (d) the full name, description and address for service of the person directly affected by the application. The matter before the Judicial Committee of the Awutu Traditional Council which led to the instant application for an order of Prohibition, was instituted by the Interested Party herein against the Applicant herein and a Defendant therein and two others namely Kwao Aidoo (a.ka. Engineer) and Monarch Aheto for the following reliefs: (a) A declaration that the Defendants not being kingmakers with the exception of the 1st Defendant of the Larbi Ala Royal Asdona family of Awutu do not have the right or authority to install a new “ Odikro” (b) A declaration that the authority to install Odikro for Bentum is vested in the Plaintiff as the Head of the said Royal Labiala family of Awutu Breku. (c) An order annulling or setting aside or nullifying the purported installation of Monarch Aheto, 3rd Defendant as Odikro of Awutu Bentum. (d) An order of perpetual injunction restraining the 3rd Defendant from styling himself out or allowing himself to be referred to or called as Odikro of Awutu Bentum until final determination of this suit. (e) An order of perpetual injunction restraining the Defendants their agents, assigns, privies and any person claiming through them from installing anyone as the Odikro of Awutu Bentum. (f) An order of award of costs incidental to the institution of this action. (g) An order of grant of any other reliefs that the Honourable Court may deem fit to grant in the circumstances. According to the Applicant, Awutu Bentum is just a small village, whose membership are all bonafide members of the Nachey Kowa gates of the Larbi Ala Asona family of Awutu Breku and the Applicant herein is a member of the Nachey Kowa gate of the Awutu Bentum. The Applicant contends that Awutu Breku Larbi Ala Asona family is made is made up of three (3) gates, namely Nachey Kowa, Nachey Asemedi and Asemekor. And that the members of Nachey Kowa gates are found mainly at Awutu Bentum, Obrachire and Bawjiase, whilst members of Asemedi are at Awutu Breku and Abam and that of Asemkor in Awutu Odiesum and Bontroase. The Applicant further contends that, it has been the long customary practice of Larbi Ala Asona family that each gate has its own head of family, for which John Kobina Amissah (1st Defendant therein) is the head of the Nachey Kowa gate, Kwaku Abam the head of the Nachey Asemedi gate and Kobena Anderson the head of the Asemiakor gate. According to the Applicant, by custom, none of these three gates is a host of a black stool hence there is no occupant of a stool either as a chief or a king. The gates are led by a head of a family with the Plaintiff being the overall head of the Larbi Ala Asona family of Awutu Breku. The Applicant states that, from a very long practice, Awutu Bentum, a town within the Nachey Kowa gate of Larbi Ala Asona family of Awutu Breku, is always managed and supervised by a head ordinarily described as “ Odikro” on behalf of the head of the family of Nachey Kowa gate. That this “Odikro” or Head is appointed by the elders of the Nachey Kowa’s gate and introduced to the overall Larbi Ala Asona family at a particular time, who accept same without any reservation. The Applicant further contends that the “Odikro” of Awutu Bentum is always appointed among members of Nachey Kowa gate of the Larbi Ala Asona family of Awutu Bentum. And that the appointed person does not come from a particular kindred group to which a stool belongs, but one who has distinguished himself among the members of Nachey Kowa gate of Awutu Bentum. According to the Applicant, the immediate past Odikro (deceased) Nai Bentum was appointed by elders such as Martha AMoah, Samuel Kwao Aidoo, Kofi barnor, Kwaku Mensah pobee, Afia Akabi, Kwao Aidoo, all principal members of the Nachey Kowa gate together with Nai Asena Kekebi, the immediate past head of family of the Nachey Kowa gate of the Lardi Ala Asona. The Applicant further states that no “Odikro” of Awutu Bentum is an occupant of a black stool of royalty; hence the Odikro does not swear an oath of allegiance to any traditional authority, especially the Awutu Traditional Council. The Applicant contends that the ‘Odikro’ of Awutu Bentum does not perform any function on behalf of any divisional chief of Larbi Ala Asona family of Awutu Breku and only acts as a supervisor or caretaker on behalf of the larger Nachey Kowa gate at Awutu Bentum. According to the Applicant, the Odikro of Awutu Bentum does not fall within the definition of “Chief” under article 277 of the 1992 constitution of the Republic of Ghana as well as section 57(1) of chieftaincy Act (2008) Act 759. The Applicant states that, the instant application is to stop the Respondent from hearing and giving judgment which is illegal, and entirely without jurisdiction, yet it will not stop unless prohibited by an order of this Honourable Court from doing so. The Interested party, Abusuapayin Kobina Banafo of house H/No. B110/02, Awutu Bereku within the Awutu Traditional Area in the Central Region, opposed the motion. The Interested Party in his affidavit in opposition to the motion considered same to be frivolous, vexatious, and unmeritorious and abuse of the judicial process. In responding to paragraphs 8,9,10,11,12,13.14,15,16 and 17 of the affidavit in support of the application, the Interested Party avers that, he earlier on commenced an action before the judicial committee of the Awutu Traditional Council on the same subject matter and one Afia Akabi acting through the applicant’s lawyer filed an application for prohibition before the High Court Agona Swedru. The Interested Party states that the court granted the application prohibiting the further hearing of the said cause or matter and pursuant to that decision by the High Court, Agona Swedru, he filed an action before the High Court, Agona Swedru against the applicant herein and two others, that the subject matter of the suit before the High Court Agona Swedru was essentially the same as the subject matter of the suit that came before the judicial committee of the Awutu Traditional Council. According to the Interested Party, the Defendants in the suit filed an application to have the matter dismissed for lack of jurisdiction and the High Court, Agona Swedru on 5th May, 2020 dismissed the suit for lack of Jurisdiction. The Interested Party avers that, the High Court, Agona Swedru in dismissing the suit stated as follows: “I will strike out the writ of summons and statement of claim filed by the plaintiff on the 27/6/19 for want of jurisdiction for it is a cause or matter affecting chieftaincy.”(Emphasis supplied) attached as Exhibit ‘KBI’ a certified true copy of the ruling delivered on 5th May, 2020. He contends that the decision of the High Court, Agona Swedru has not been appealed against and by that the appropriate forum for the determination of this suit is the judicial committee of the Awutu Traditional Council, Respondent herein. According to the Interested party, a grant of prohibition order will mean that there will be no forum for him to seek redress regarding the subject matter of the suit before the Respondent which the High Court Agona Swedru has declared as cause or matter affecting chieftaincy. According to the Interested Party, the instant application by the Applicant has been brought in bad faith and same should be dismissed. THE SCOPE OF THE SUPERVISORY JURISDICTION OF THE HIGH COURT. At this stage, it is pertinent to discuss the scope of the Supervisory jurisdiction of the High Court as enshrined in Article 141 of the 1992 Constitution of the Republic of Ghana. This will further establish the parameters of such applications by way of judicial review seeking to remedy a judicial or administrative wrong or abuse. See : Order 55 of THE HIGH COURT (CIVIL PROCEDURE) RULES, 2004 In the case of TEMA DEVELOPMENT CORPORATION & MUSAH v. ATTA BAFFOUR3, the Supreme Court held, per Wood JSC (as she then was) quoting from the judgment of Lord Diplock at page 949 of the report in the case of COUNCIL OF CIVIL SERVICE UNIONS AND OTHERS V. MINISTER FOR THE CIVIL SERVICE4of the ambit of judicial review noted thus: “To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either (a) by altering rights or obligations of that person which are enforceable by or against him in private law or (b) by depriving him of some benefit or advantage which either (i) he has in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational ground for withdrawing it on which he has been given an opportunity to comment or (ii) he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn…. The learned Author S. A Brobbey in his book “ The Law of Chieftaincy in Ghana” at page 32 defined a ‘Chief’ as the leader of a tribe or clan who has been duly installed as the head or leader according to the customs of his traditional area” 4 [2005-2006] SCGLR 121 [1984] 3 All. ER 935 In the instant application before me, I critically examined the affidavit evidence adduced the respective parties and find that the matter before court was a cause or matter affecting chieftaincy contrary to what the Applicant was urging on the court in his quest to obtain an order of prohibition against the Respondent. Interestingly, the Applicant described their Odikro – like leader as a caretaker position which is not different from the Odikro or chief of a village. See Awutu v Tettey [2011]] 1 SGGLR 366. In practice, the subject matter of chieftaincy litigation that is pursued in a judicial committee or the courts is encapsulated by the expression “cause or matter affecting chieftaincy in this chapter, discussion on “cause or matter affecting chieftaincy” relate to cases involving chiefs and chieftaincy that end in judicial determination or interpretation by judicial committees or the superior courts. Section 66 of the Chieftaincy Act, 1971 (Act 370), stated thus: “cause or matter affecting chieftaincy’ means any cause, matter, question or dispute relating to any of the following: a) 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; b) the destoolment or abdication of any Chief; c) 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; d) the recovery or delivery of stool property in connection with any such nomination, election, appointment, installation, destoolment or abdication; e) the constitutional relations under customary law between chiefs”. Indeed, the relief being sought by the Plaintiff against the Defendants in the matter before the Respondent at the Awutu Traditional Council borders solely on a matter and cause affecting chieftaincy as rightly argued for and on behalf of the Interested Party. From the foregoing, I find that the Respondent (The Judicial Committee of the Awutu Traditional Council operated within its jurisdiction in a cause or matter affecting chieftaincy. The prerogative relief of prohibition or certiorari by way of judicial relief will not avail the Applicant to prohibit the Respondent from carrying out its lawful duty. Upon consideration of the affidavits evidence adduced before me, the issue is a matter or cause affecting chieftaincy and same can rightly be resolved through the Traditional system or the Traditional Council through the Regional House of Chiefs to the National House of Chiefs and through their respective Judicial Committees. Accordingly, the application pursuant to Order 55 of C. I. 47 to prohibit the Judicial Committee of the Awutu Traditional Council is devoid of merit and same is refused. Cost of GH¢3,000.00 is awarded against the Applicant in favour of the Interested Parties. JUSTICE ABOAGYE TANDOH HIGH COURT JUDGE. COUNSEL KWESI NDOM DAMPSON ESQ, HOLDING THE BRIEF OF JOSEPH ESUA TEKYI ESQ, FOR THE APPLICANT. FRANCIS BOA ESSILFIE ESQ, HOLDING THE BRIEF OF DANIEL ARTHUR ESQ, FOR THE INTERESTED PARTY. NO LEGAL REPRESENTATION FOR THE RESPONDENT. /PAG/ 12