REPUBLIC VRS THE NORTH MO TRADITIONAL COUNCI (SR/DMG/HC/E13/01/2024) [2024] GHACC 310 (27 June 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE DAMONGO, SAVANNA REGION DELEVERED ON 27TH JUNE, 2024 SUIT NO: SR/DMG/HC/E13/01/2024 IN THE MATTER OF AN APPLICATION TO INVOKE THE SUPERVISORY JURISDICTION OF THE HIGH COURT PURSUANT TO ARTICLE 141 OF THE CONSTITUTION, 1992 ORDER 55 RULES 1(a) &(b) AND RULE 7 OF THE HIGH COURT (CIVIL PROCEDURE) RULES, 2004 (C.I. 47) THE REPUBLIC VRS 1. THE NORTH MO TRADITIONAL COUNCIL 2. NNA AKANGBON KINTOR CHIBRINYOR KOORO & Ag. PRESIDENT, NORTH MO TRADITIONAL COUNCIL, BAMBOI RESPONDENTS 3. NNA SOLOMON DOMPEER ANTWI IV PALACE OF CAPENTER KOORO CAPENTER EX-PARTE: 1. NNAA MATHEW KUPOUR PRINCIPAL KINGMAKER & ROYAL FAMILY HEAD OF BWEA-FONG JUGBOI 1 2. NNAA PETER CHIU HEAD AND KINGMAKER BWEA-FONG JUGBOI STOOL, JUGBOI APPLICANTS 3. NNAA KOORO KWESI LAND PRIEST AND KINGMAKER JUGBOI STOOL, JUGBOI STOOL., JUGBOI 4. NNAA KANKAI INSTALLED JUGBOI KOORO PARAMOUNT CHIEF, JUGBOI COUNSEL Salisu Be-Awuribe Issifu for the Applicants Osman Mohammed Amin for the Respondents CORAM Justice Eric Ansah Ankomah JUDGMENT I. INTRODUCTION The occupant of the Jugboi Stool passed on and in a bid to get a new Jugboi installed, confusion ensued among the families and the kingmakers. This led to chieftaincy dispute on the right candidate to occupy the Jugboi stool, the right kingmakers who are eligible to install Jugboi Kooro (chief) and the right process/tradition/custom of installation that has to be followed. The Applicants case is that the 1st, 2nd and 3rd Respondents herein have elevated the Carpenter Kooro as the new Jugboi Kooro as against custom and tradition. 2 The Registrar of the 1st respondent (North Mo Traditional Council) acting on behalf of the Acting President of North Mo Traditional Council caused a letter to be written to the Registrar of the Savanna Region House of Chiefs, Damongo informing him that, the 3rd Respondent Nnaa Solomon Dompeeh Antwi IV has been elevated as Jugboi Kooro. II. RELIEFS SOUGHT BY THE APPLICANTS The Applicants obviously not happy with this letter have filed judicial review applications pursuant to Article 141 of the 1992 constitution and Order 55 Rules 1 (a) and (b), 4 and 7 of the High Court (Civil Procedure) Rules 2004 (C.I. 47) on 4th April 2024. The Applicants caused their counsel to file statement of case on 17th April 2024. The Applicants are seeking for certain orders from the court and I hereby reproduce the reliefs being sought from the court; 1. Certiorari bringing the Letter of the North Mo Traditional Council dated 11th March, 2024 addressed to the Savanna Regional House of Chiefs elevating the Carpenter Kooro, Nana Solomon Dompeer Antwi IV to the Jugboi Stool (Jugboi Kooro) and all other subsequent communications on same for the purpose of being quashed by order of certiorari. 2. An order of prohibition to be issued to the North Mo Traditional Council, Bamboi, to refrain from entertaining or assuming jurisdiction in the nomination, selection, investiture/installation and/or Coronation of the 2nd Respondent, The Carpenter Kooro Nnaa Solomon Dompeer Antwi as the Jugboi Kooro, Paramount Chief of the Jugboi Traditional Area of the North Mo Traditional Council. 3 3. An order of prohibitory injunction restraining the 2nd defendant or anybody acting through him from holding himself out or acting or purporting to act or perform the functions of the Jugboi Kooro upon the said correspondence of Mo Traditional Council. 4. Any other Orders as the Honourable Court may deem appropriate having regard to all the circumstances of the matter. III. APPLICANTS AFFIDAVIT EVIDENCE The Applicants through Nnaa Mathew Kupour of Jugboi deposed to an affidavit in support of the application and I hereby reproduce same for better appreciation of this judgment; 1. That I am Applicant and the Deponent herein. 2. That I have the consent and authority of the other Applicants to depose to this affidavit in support of the Application. 3. That the facts deposed to in this affidavit are matters within my personal knowledge and believe which came to me while performing my function as the Principal Kingmaker of the Jugboi Stool. 4. That to the extent that I depose to any matter(s) which either state(s), suggest(s) or imply(ies) or hint(s) at matter(s) of Law, such matter(s) are as a result of an advice I received from my counsel which advice I verily believe same to be true. 4 5. That at the hearing of this Application, my Counsel shall seek the leave of this Honourable Court to refer to all matters and documents filed in this suit as if same have been attached and exhibited herein and sworn to on oath. 6. That I am the Principal Kingmaker and the lead Authority among the 3 Kingmakers of the Jugboi Stool. 7. That the other two Kingmakers are the Land Priest of the Jugboi Traditional Area, Nnaa Koora Kwesi II and TEOHS shrine Priest, Alhassan Ganny. 8. That the Kingmakers act under the Instructions of the Bwea Clan Head by custom and traditions of the Mo People of Jugboi. 9. That upon the death of the Late Chief of Jugboi, Nnaa Jimah Benkpomgriakpo II in August 2022, the traditional stool has been vacant. 10. That the late chief of the Jugboi Traditional area has since been buried awaiting the final funeral rites to be performed by the succeeding incoming Chief. 11. That the Kingmakers in a meeting with the Royal Family and upon consultations among themselves and the gods, settled on, nominated, elected and traditionally installed Nnaa Kankai known in private life as Nathaniel Kofi Lambert as the succeeding Chief of Jugboi with a deferred date of coronation awaiting the newly appointed chief to perform the final funeral of the late Chief and announce the date of his coronation. 5 12. That the 4th Applicant was validly installed as the Jugboi Kooro f the succeeding Chief of Jugboi. 13. That the 3rd Respondent had cause to complain of the customary installation of the 4th Applicant to the District Police Command who have since been prosecuting Applicants at the District Magistrate Court, Bole on Charges of Installing a Chief of Jugboi without notifying the police contrary to section 1 of the Public Order Act, 1994 (Act 491)- Attached and Exhibited herein as Exhibit A are the summons of the Magistrate Court, CID Form 70. 14. That the 1st Respondent, acting through the 2nd Respondent purportedly elevated the 3rd Respondent to the Jugboi Stool and announce same to the Regional House of Chiefs, Savannah Region. Attached and Exhibited herein as Exhibit 'B' is the Letter the 1st Respondent acting through the 2nd Respondent elevating the 3rd Respondent to the Jugboi Stool and communicating their own actions to the Savannah Regional House of Chiefs, Damongo. 15. That the said elevation of the 3rd Respondent to the Jugboi Stool by the 1st Respondent acting through the 2nd Respondent is arbitrary and palpably wrongful in law as it lacked all the features of a customary process of succession to the Jugboi Stool. 16. That it is against the Custom of the Mo people and in Particular the Jugboi Traditional area for a traditional process of appointing a successor to be made by the Traditional Council. 6 17. That the Traditional Council is purporting to exercise a jurisdiction that they don't have. 18. I am advised by my Lawyer and verily believe same to be true that a Traditional Council has no power whatsoever to elevate, direct or elect or seek to nominate or appoint a Sub-Divisional Chief of the Jugboi Traditional Area to occupy the higher Stool of Jugboi. 19. That it is wrongful on the part of a body such as the 1st Respondent to seek to alter the hallowed customary process of appointing a successor to the Jugboi Stool. 20. I am advised by my Lawyer and verily believe same to be true that this is a good case in which Certiorari will be appropriate remedy to quash the wrongful decisions as here above mentioned. 21. That unless and until this Honourable Court intervenes by issuing the order of Certiorari, the above pieces of injustice against the Jugboi Stool would persist and the 3rd respondent will continue to be the beneficiary. 22. That I have annexed a copy of the 1st Respondent's so-called elevation letter as Exhibit B stated above in support of our case. IV. RESPONDENTS AFFIDAVIT EVIDENCE The respondents upon being served with the application filed affidavit in opposition which said affidavit was deposed to by one Abdul Latif Maazu, a law clerk of the Law 7 firm, Legal Trust on 16th April 2024. Strangely, it was on 7th May, 2024 that counsel for the Respondent entered appearance and also filed statement of case. This clearly is anomaly Order 81 of C.I. 47 can cure and I hereby regularize entry of appearance as if filed before the affidavit in opposition was filed. I will now reproduce the affidavit in opposition as filed. 1. That, I am the Deponent herein and that I have the authority of the Respondents herein to swear to this affidavit on matters that have come to my knowledge in the course of my duties unless otherwise stated. 2. That, at the hearing of this application, Counsel for the Respondents shall seek leave of this Honourable Court to refer to the processes so far filed in the action. 3. That the Respondents are vehemently opposed to this instant application. 4. That, the Respondents deny paragraphs 3 and 4 of the Affidavit in Support and in an answer say that, the deponent is not the Principal Kingmaker of the Jugboi stool. 5. That the Respondents deny paragraph 6, 7, 8 and 9 of the Affidavit in Support and say in answer that, the Applicants are not the legitimate kingmakers of Jugboi stool. 6. That, the Respondents further say that, the 3rd Respondents has since been elevated from Carpenter Kooro to the chief of Jugboi in accordance with customs 8 and the long standing practices of the Mo people (SEE EXHIBIT NMTC 1 ATTACHED IS THE MINUTES OF THE MEETING OF THE KINGMAKERS). 7. That, the Respondents deny paragraph 10 of the Affidavit in Support and say in answer that, all traditional rites have been performed after the burial of the former chief of Jugboi. 8. That, the Respondents deny paragraph 11 of the Affidavit in Support and say in answer that, the 3rd Respondent was validly elevated as the new chief of Jugboi and he has since assumed his duties as the chief of Jugboi without any dispute formerly before the 1st Respondent and the 2nd Respondent either against the 3rd Respondent or any other person or persons. 9. That, the Respondents deny paragraph 12 of the Affidavit in Support. 10. That, the Respondents deny paragraph 13 of the Affidavit in Support and say in answer that, the suit at Bole Magistrate court is purely a criminal summons against the 3rd Applicant and some other individuals which has nothing to do with the 3rd Respondent as a chief of Jugboi. 11. That, the 1st Respondents deny paragraph 14 of the Affidavit in Support and say in answer that, the elevation of the 3rd Respondent was customarily done in accordance with the customs of the Mo people and in accordance with the long standing practices relating to the elevation of a chief to the Jugboi stool. 12. The Respondents further say that, the letter by the 1st Respondent to Savannah Regional House of Chiefs is an administrative process which ought to be 9 performed by the 1st Respondent in accordance with law. (EXHIBIT NMTC 2 IS A LETTER OF THE TRADITIONAL COUNCILMAKING REFERENCE TO THE MEETING FOR THE ELEVATION OF THE 3RD RESPONDENTS). 13. That, the Respondents deny paragraphs 15,16,17,18 and 19 and say in an answer that, the 1st Respondent never stated in their correspondence to the Savannah Regional House of Chiefs that, the 1st Respondent elevated the 3rd Respondent. The said letter only seeks to INFORM the Regional House of Chiefs that, the 3rd Respondent has been elevated. 14. That, the 1st Respondent is an administrative body and performs only administrative duties and same was done in this regard. 15. The Respondents say that, paragraph 20 and 21 are denied and say in an answer that, there is no dispute challenging the elevation of the 3rd Respondent and as such, this court should not be invited to deal with matters which were never brought before any adjudicating body. 16. The Respondent further say that, the order been sort from this honourable is mainly to invite this court to adjudicate on a cause or matter affecting chieftaincy. 17. That, I am advised and verily belief same to be true that, this is a cause or matter affecting chieftaincy and this honourable court lacks jurisdiction to entertain such matters. 18. That, I have been advised by counsel and verily believe same to be true that, the 1st Respondent did not breach any law and therefore, the transfer of information 10 which is undisputed is not qualified to be quashed by the order been sort by the applicants. 19. That in the circumstances, the instant application is frivolous, incompetent and should be dismissed with punitive cost. V. JURISDICTION OF THIS COURT Article 141 of the 1992 constitution of Ghana vest the High Court with original jurisdiction to determine applications for orders of judicial review and it states as follows: “The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority; and may, in the exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory powers” This constitutional provision vest the High Court with supervisory jurisdiction over orders of lower adjudicating authorities as well as other administrative bodies or institutions. It is worth noting that The Courts (Amendment) Act (Act 620) section 39 defines lower courts to include The National House of Chiefs, Regional House of Chiefs and every Traditional Council in respect of the jurisdiction of any such House or Council to adjudicate over any cause or matter affecting chieftaincy. 11 Aside this constitutional provision, there are other laws that also grant the High Court original jurisdiction in judicial review applications. See; High Court (Civil Procedure) Rules, 2004 (CI 47), Order 55 rule 1 (a). See also; Section 16 of the Courts Act (Act 459) as amended. I must add that the National House of Chiefs, Regional House of Chiefs and Traditional Councils adjudicate chieftaincy cases through its Judicial Committees. Flowing from this the Applicants are in the proper forum since this court exercises its judicial review authority over lower courts including the 1st Respondent The North Mo Traditional Council. VI. CHALLENGE OF THE TITLE OF THIS APPLICATION I must state that the 2nd and 3rd respondents are chiefs’ not public officers or any adjudicating body or institution for judicial review orders to be invoked on their actions or omissions. The 3rd respondent did not author exhibit B for him to be made respondent in this case. At best the 2nd and 3rd respondents could have been described as interested parties and not respondents in this application. I will hereby strike out their names on the application as respondents and rather rely on Order 81 of C.I. 47 to correct the title of the application by making the 2nd and 3rd respondents as the 1st and 2nd interested parties respectively. VII. ANALYSIS OF THE LAW 12 Application for orders of judicial review in the nature of certiorari is to correct errors of law and not errors of fact. Thus where the error complained of is not error of law, the Court will not grant such application. See the case of; Republic v Court of Appeal, Accra; Ex Parte Tsatsu Tsikata [2005-2006] SCGLR 612 Holding 4 See also the case of; Republic v Court Of Appeal, Accra; Ex Parte Ghana Cable Ltd (Barclays Bank of Ghana Ltd Interested Party) [2005-2006] SCGLR 107 Holding 3. The Supreme Court speaking through Pwamang JSC in the case of Republic v High Court (Commercial Division) Sunyani; Exparte Alfredina Ofori and Another (J5 36 of 2016) [2016] GHSC 94 (3 November 2016) laid the grounds upon which the court will exercise its discretion to quash a decision of a court by writ of certiorari as follows: The grounds upon which this court will exercise its discretion and quash a decision of a court by a writ of certiorari are as follows; (i) Where the court or tribunal that gave the decision acted without jurisdiction or in excess of jurisdiction. (ii) Where the court or tribunal acted in breach of the rules of natural justice. (iii) Where the court or tribunal committed a grievous error of law that goes to jurisdiction and which error is apparent on the face of the record and (iv) Where the court or tribunal contravenes the Wednesbury principles on reasonableness. For a better appreciation of this ruling, I hereby reproduce the content of the said letter which is the subject matter of this 8judicial review applications (exhibit B). The letter was 13 written on the letter head of North Mo Traditional Council with reference no. NMTC/S.R/VOL.1/01 dated 11th March 2024 and it goes like this; THE REGISTRAR SAVANNAH REGION HOUSE OF CHIEFS DAMONGO SAVANNA REGION DEAR SIR, ELEVATION OF CARPENTER KOORO SOLOMON DOMPEEH ANTWI IV TO THE JUGBOI STOOL I have been directed by the Ag. President of the North Mo Traditional Council and Chibrinyour Kooro, Nnaa Akangbon Kintor II to kindly inform your outfit that, Nnaa Solomon Dompeeh Antwi IV, Carpenter Kooro has been elevated to the Jugboi stool (Jugboi Kooro). It is the hope of Nnaa Ag. President that you treat this letter with urgency. Counting on your usual cooperation. Thank you. THE REGISTRAR SGD 14 (BABINAH LAMME DANIEL) NORTH MO TRADITIONAL COUNCIL BAMBOI. CC ALL MEMBERS NORTH MO TRADITIONAL COUNCIL BAMBOI This exhibit B was addressed to the Registrar of The Savanna Region House of Chiefs. With due deference to learned counsel for the Applicants, this letter is only given information to the Savanna Region House of Chiefs about the elevation of the Carpenter Kooro to Jugboi Kooro and nothing more. The letter does not discuss how the said Carpenter Kooro was elevated. It does not also discuss who elevated Carpenter Kooro to Jugboi Kooro. Again there is no scintilla of evidence in exhibit B to suggest the kingmakers who elevated the Carpenter Kooro and the process or any customary procedure that were used in elevating him. The letter does not also suggest that the author elevated the Kooro or constituted a body to elevate the Carpenter Kooro without notice to the Kingmakers. The letter again is not an order or a ruling that affect the rights and obligations of the kingmakers of the Jugboi Kooro. As to whether the information being conveyed in exhibit B is true or not, it is not judicial application in the nature of certiorari that has to be invoked to quash the content since exhibit B is not judgment, order, or a decision taken without notice to the kingmakers of Jugboi Stool. 15 Certiorari applications usually will not look at the merits of the case as done in appeals but rather on jurisdictional issues, errors of law patent on the face of the records and abuse of the natural justice rule. The orders flowing from certiorari may not determine the substance or merits of the suit hence the need not to abuse it in its application. See REPUBLIC v COURT OF APPEAL, ACCRA; EX PARTE GHANA CABLE LTD (BARCLAYS BANK GHANA LTD-INTERESTED PARTY) [2005-2006] SCGLR 525 @529 I must state that, certiorari is a residual remedy held in reserve. The order of certiorari will not be granted under circumstances where an alternative remedy exist for the Applicant. If the Applicants want to contest the chieftaincy matter as to who qualifies to be the installed as Jugboi Kooro or who are the kingmakers of the Jugboi stool, the remedy is to pursue it at the Judicial Committee of the Regional House of Chiefs or any such forum that has jurisdiction. I must state that this court has no authority or jurisdiction to meddle in cause and matter affecting chieftaincy and the authorities are legion. See; Kwadwo Fosu v Nana Osei Akoto CIVIL APPEAL NO. J4/26/2020 Delivered on 1st February, 2023. See also; In Re Nungua Chieftaincy Affairs, Nii Odai Ayiku IV v Attorney General & Wor Nii Bortelabi Borketey Laweh XIV [2010] SCGLR 413 16 Section 76 of the Chieftaincy Act, 2008 defines cause or matter affecting chieftaincy as follows: In this Act unless the context otherwise requires, "cause or matter affecting chieftaincy" means a cause, matter, question or dispute relating to any of the following (a) the nomination, election, selection or installation of a person as a chief or the claim of a person to be nominated, elected, selected or installed as a chief, (b) the deposition or abdication of a chief, (c) the right of a person to take part in the nomination, election, selection or installation of a person as a chief or in the deposition of a chief, (d) the recovery or delivery of stool property in connection with the nomination, election, selection, installation, deposition or abdication of a chief, and (e) the constitutional relations under customary law between chiefs . Certainly, exhibit B is not the deed of the Judicial Committee of the North Mo Traditional Council and neither is it the decision of the North Mo Traditional Council. It is rather the deed of the Acting President of North Mo Traditional Council informing the Savanna Region House of Chiefs through its Registrar of the state of affairs of the Jugboi Kooro to his knowledge. The document is therefore not amenable to judicial review orders since it is merely conveying a message that the Carpenter Kooro has been elevated to Jugboi Kooro. It is not an order, judgment or pronouncement on any chieftaincy matter. 17 It must be borne in mind that judicial review application of certiorari is used to correct errors of law apparent on the face of the record and not errors of fact. Thus where the error complained of is not error of law, the Court will not grant such application. See the case of; Republic v Court of Appeal, Accra; Ex Parte Tsatsu Tsikata [2005-2006] SCGLR 612 Holding 4. See also; Republic v Court of Appeal, Accra; Ex Parte Ghana Cable Ltd (Barclays Bank of Ghana Ltd Interested Party) [2005-2006] SCGLR 107 Holding 3. The content of exhibit B does not raise any error of law apparent on the face of the record for it to be quashed. The conveyance of this mere information has not breached any natural justice rule since it is not a matter that was heard and decision taken. I must hasten to add that hearing of chieftaincy cases, rulings, decisions and judgments are at the behest of the various Judicial Committees of the various Houses of Chiefs and Traditional Councils. It is these decisions, rulings and orders made without jurisdiction or in excess of jurisdiction that are amenable to judicial review order. Again, when such adjudicating bodies breach the natural justice rule or make errors of law apparent on the face of the record that this court jurisdiction may be invoked to correct them. Again, the applicants by law are required to state the reliefs they are seeking in the affidavit attached to the application pursuant to Order 55 (4) (2) (c) but this was not complied with though from the body of the motion, the applicants’ reliefs were stated. Order 55 rule 4 (2) (c) of C.I. 47 states that; 18 (2) The motion shall be supported by an affidavit by or on behalf of the applicant which shall contain the following particulars (c) The reliefs or remedy sought by the applicant and grounds on which he seeks the relief or remedy. Where a statute has provided a right with remedies and has also provided a procedure to follow in order to secure the right or remedy, it is only that procedure which must be followed. The failure to comply with the procedure would be fatal to the case. See the case of; Tularly v Abaidoo [1962] 1GLR 411 SC See also; Republic v High Court (General Jurisdiction, Accra) Ex-Parte The Minister for Interior and Anor (Ashok Kumar Sivaram- Interested Party) [2018] 122 GMJ 63 SC I do not see any merit whatsoever in this application and I hereby dismiss it in its entirety. I award a minimal cost of Two Thousand Ghana (GHs 2000. 00) against the Applicants in favour of the Respondents as agreed on by counsel for the parties. JUSTICE ERIC ANSAH ANKOMAH JUSTICE OF THE HIGH COURT TAMALE WITH ADDITIONAL RESPONSIBILITY IN DAMONGO 19