REPUBLIC VRS. KING ODAIFIO WELENTSI III . EX PARTE: SETH OTU OKLEY (E12/226/2023) [2024] GHAHC 161 (22 April 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT ‘B’ HELD IN TEMA IN THE GREATER ACCRA REGION OF THE REPUBLIC OF GHANA BEFORE HER LADYSHIP JUSTICE PATRICIA QUANSAH (JUSTICE OF THE HIGH COURT) ON MONDAY THE 22ND OF APRIL 2024. ________________________________________________________________ SUIT NO. E12/226/2023 IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW IN THE NATURE OF DECLARATIONS, CERTIORARI, MANDAMUS AND INJUNCTION UNDER ORDER 55(1) (C) OF CI 47 AND ARTICLE 23 OF THE 1992 CONSTITUTION AND IN THE MATTER OF THE REPUBLIC VRS THE PRESIDENT, HIS ROYAL MAJESTY KING ODAIFIO WELENTSI III RESPONDENT NUNGUA TRADITIONAL COUNCIL NUNGUA EX PARTE: SETH OTU OKLEY APPLICANT HUMI AKROWA, KATAMANSO RULING – THE REP vrs THE PRESIDENT, NUNGUA TRADITIONAL COUNCIL 1 ________________________________________________________________ APPLICANT PRESENT RESPONDENT REPRESENTED BY NII AFOTEYSRAWA II ________________________________________________________________ RULING ON AN APPLICATION FOR JUDICIAL REVIEW 1. INTRODUCTION [i] The Applicant herein has brought the present application praying this Honourable Court for an order(s) for judicial review in the nature of declarations, certiorari, mandamus and injunction and more specifically (a) A declaration that the induction of Mr Laryea Afotey - Agbo (a member of Ghana’s Parliament) as a member of the Nungua Traditional Council pursuant to his purported installation as a Regent of Katamanso is unlawful, null and void and ought to be reversed. (b) An order of mandamus directed at the President of the Nungua Traditional Council, His Royal Majesty King Odaifio Wolentsi III, to expel or remove the said Laryea Afotey - Agbo as a Member of Nungua Traditional Council and nullifying the purported installation of the RULING – THE REP vrs THE PRESIDENT, NUNGUA TRADITIONAL COUNCIL 2 said Laryea Afotey - Agbo as being contrary to the 1992 Constitution and the Chieftaincy Act, 759 of 2008. (c) An order of injunction restraining the Respondent, his agents, servants or assigns and the said Honorable Laryea Afotey – Agbo from being held out as a Regent of Katamanso and for the said Honourable Laryea Afotey - Agbo, holding himself out as a validly installed Regent of Katamanso. [ii] In the supporting affidavit, the Applicant contended that he was the acting Head of the Adzin - We Family of Katamanso from where Laryea Afotey – Agbo, who holds himself out as a Regent of Katamanso hails; and the Applicant further stated that the stool of Katamanso belonged to the Applicant’s family. [iii] In or around 2018, the Applicant stated that it became necessary for the Katamanso stool to have a Regent appointed and installed because the current Chief of Katamanso, the Father of Laryea Afotey Agbo, had become incapacitated for a considerable length of time. Since customarily and traditionally, the Kingmakers of the Adzin – We family nominated, elected and installed Chiefs, it behoved on the kingmakers of Katamanso and Principal members of the family to also appoint the required Regent, who first had to be presented by the Head of Family as a candidate and would be taken through the procedure of nominating, electing and installing him as a Regent. RULING – THE REP vrs THE PRESIDENT, NUNGUA TRADITIONAL COUNCIL 3 [iv] In the present case however, the said Laryea Afotey – Agbo did not go through the requisite customary processes of being nominated by the Head of Family and presented to the Kingmakers and Principal Members of the Family on his purported appointment as a Regent. Further, apart from the customary procedural illegality of the processes undertaken with respect to the installation of the said Laryea Afotey- Agbo, at the time of his purported appointment, the said Afotey – Agbo was also the NDC Member of Parliament for Kpone Katamanso. [v] According to the Applicant, the Respondent herein, being the President of the Nungua Traditional Council, and also being fully aware of these flagrant illegalities and customary infractions associated with the purported appointment and/or installation of the said Laryea Afotey- Agbo went ahead and inducted the said Afotey – Agbo as the Regent; when he very well knew the installation was contrary to the Constitution and the Chieftaincy Act, Act 792. Subsequently, on the 27th day of August 2017, the said Afotey - Agbo was again inducted into office as a Member of the Nungua Traditional Council; and the Applicant tendered in evidence pictures, as Exhibit SO "1" series to demonstrate the said induction ceremony. [vi] The Applicant continued to state that when the report of the installation of Laryea Afotey – Agbo got to the Ministry of Chieftaincy Affairs, the Minister, in a letter dated the 4th of December 2018, addressed to the President of the Nungua Traditional Council, the Respondent herein and copied to the Chief of Staff, Jubilee House, the President, Greater Accra Regional House of Chiefs and Nii Laryea Afotey - Agbo (MP) himself, the Minister was said to have instructed the Respondent herein to nullify the installation and induction of Nii RULING – THE REP vrs THE PRESIDENT, NUNGUA TRADITIONAL COUNCIL 4 Laryea Afotey-Agbo and to remove or expel him as a Member of the Nungua Traditional Council. A copy of the said letter was attached as Exhibit SO “2”. [vii] in spite of the above, the Respondent has refused and/or neglected to comply with the directives in the letter from the Ministry and continues to engage in illegalities. It was based mainly on the above, among others, that the Applicant herein prayed for the above judicial review to remedy the litany of illegalities, procedural irregularities and improprieties allegedly committed by the Respondent and further prayed the Court to quash and cancel the induction of Nii Laryea Afotey - Agbo as a Member of the Nungua Traditional Council and to reverse his recognition as Regent of Katamanso; as well as to restrain the said Laryea Afotey - Agbo from holding himself out as a Regent of Katamanso. [viii] In effect, the Applicant prayed for the following: (a) A declaration that the Respondent is inducting of Nii Laryea Afotey- Agbo, a sitting Member of Parliament despite the procedural and customary improprieties of his installation or appointment despite his capacity is tainted with flagrant illegalities and to that extent wrongful and amenable to the order of certiorari. (b) An order of certiorari quashing the insertion of the name of Laryea Afotey - Agbo as a Regent of Katamanso after his induction and for a deletion of same. (c) An order for mandamus directed at the Respondent to remove the name Nii Laryea Afotey - Agbo as a Regent of Katamanso. RULING – THE REP vrs THE PRESIDENT, NUNGUA TRADITIONAL COUNCIL 5 (d) An order of perpetual injunction restraining the President of the Nungua Traditional Council, his servants, agents or assigns from recognizing the said Nii Laryea Afotey Agbo as Regent of Katamanso. (e) A further order of Injunction restraining the said Nii Laryea Afotey- Agbo, his Cohorts, Supporters, Agents and Assigns from holding himself out as a Regent of Katamanso. (f) Any further or other Reliefs as this Honourable Court will deem fit. 2. AFFIDAVIT IN OPPOSITION [ix] The Respondent filed an affidavit in opposition, denying all the averments of the Applicant; and thereafter filed a preliminary legal objection on the following grounds: a) The instant Application for Judicial Review was filed in breach of order 55 rule 3 (1) of C.I. 47 on mandatory time limit for filing an application for judicial review to the High Courts and thus renders the entire application incompetent and strips this honourable court of jurisdiction to hear same. b) The instant application for judicial review as at the date it came up for hearing was incompetent for being in breach of order 55 rule 6 (2) of C.I. 47 on the mandatory time limit for filing of a statement of case in Judicial Review proceedings; and RULING – THE REP vrs THE PRESIDENT, NUNGUA TRADITIONAL COUNCIL 6 c) This honourable court lacks the jurisdiction to hear, adjudicate or determine allegations bothering on a cause or matter affecting chieftaincy within the domain of traditional councils and stools as raised by the facts of the instant application. d) The Respondent in exercise of his traditional authority according to custom is not amenable to the Judicial Review jurisdiction of the High Court since he is not a Public Officer and his acts as chief or President of Nungua Traditional Council are not public acts as envisaged by the rules. 3. PRELIMINARY LEGAL OBJECTION [x] Order 55 rule 3 (1) provides: Time for making application (1) An 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. First of all, the Applicant herein contended at paragraph 7 that it was some time in 2018 or thereabout that it became necessary to have a Regent appointed in the stead of the chief of Katamanso, who was ailing and had become incapacitated. Then at paragraph 13 of the same supporting affidavit also, he Applicant again averred that Laryea Afotey – Agbo, who had been purportedly appointed as the Regent of Katamanso was inducted into the Nungua Traditional Council on the 27th of August 2017. RULING – THE REP vrs THE PRESIDENT, NUNGUA TRADITIONAL COUNCIL 7 [xi] These two acts or proceedings above are the two specific acts/proceedings that the Applicant complains about, mainly on the grounds that the said Regent, being a member or a current member of Ghana’s Parliament cannot be appointed as a Regent because he is a politician and cannot embroil himself in chieftaincy matters in accordance with the 1992 Constitution and the Chieftaincy Act, 2008, Act 759. [xii] However, from the dates indicated above, these acts took place in or about 2017 and 2018, and they fall after the six months period mandated by the rules. Indeed, Counsel for the Applicant admitted that the events in question took place on the 27th of August 2017; but submitted that a party could apply for extension of time in such situations and further cited Kwami Tetteh’s book and The Rep v High Court, Kumasi Exparte Abubakari (No. 1) [1998 – 1999] SCGLR 84 among others. [xiii] In the present case however, I see no application on record for extension of time to make the present application and neither is there any oral application on record to that effect. Again, Counsel for the Applicant himself submitted that the preliminary objection as to the time limited for making an application for judicial review was made before the actual application was to be moved, offering the Applicant’s Counsel no opportunity to speak. If same had been admitted, at what period in time was the Applicant’s Counsel going to seek the leave of the Court for an extension of time to make the application for judicial review that he had already filed before the Court and as cited in the Ex parte Abubakari case supra? [xiv] In the unreported case of Manford Gyansa-Lutterodt v Afam Concept (Civil Appeal no. J4/62/2022) dated the 20th of March 2024, the Apex Court, per Darko Asare JSC held: RULING – THE REP vrs THE PRESIDENT, NUNGUA TRADITIONAL COUNCIL 8 “ After all, it has often been said that jurisdiction goes to the root of every proceeding. If therefore a court's jurisdiction has not been properly invoked, then that court has undoubtedly no means of entertaining the particular proceedings before it. Even if neither Party has raised the issue of jurisdiction, it is the duty of the court to raise and determine it. The above principle of the law has been amplified by Acquah JSC (as he then was) in the case of Attorney General (No. 2) vs. Tsatsu Tsikata (No. 2) [2001-2002] SCGLR 620, at page 646 where after affirming the time- honoured proposition of the law that jurisdiction is so fundamental that its absence nullifies all ensuing proceedings, then went on to express himself as follows:- "It is therefore trite knowledge that the first duty of every judge in any proceedings is to satisfy himself that he has jurisdiction in the matter before him. For the issue of jurisdiction can be raised at any time, even after judgment. Thus whether the parties raise the issue of jurisdiction or not, the court is duty bound to consider it. And where the issue is not raised, the court is to raise it suo motu and call upon the parties to address that issue." [xv] In the case of DOKU vrs PRESBYTERIAN CHURCH OF GHANA [2005-2006] SCGLR 700 at 704, Sophia Akuffo JSC (as she then was) had this to say: “It is not for nothing that rules of court procedure stipulate time limits… however because it is also in the public interest that there should be an end to litigation, the rules of court have set time limits to guide litigants with a view to achieving certainty and procedural RULING – THE REP vrs THE PRESIDENT, NUNGUA TRADITIONAL COUNCIL 9 integrity. Otherwise… any litigant may conveniently take his time to decide when to resurrect the litigation … Time limits are too important for this court to ignore…” [xvi] I therefore hold that the present application was brought and or made in contravention of order 55 of CI 47 and is thus incompetent before this Court. [xvii] The above notwithstanding, I wish to address the following issues to put the matters before me to rest once and for all. In so doing, I find that the Applicant’s Counsel in seeking to establish before the Court that the appointment of the present Regent did not follow the regular and laid down procedures for the appointment of Regents at Katamanso cited cases in support of the principle that lapse of time can never render valid that which is void ab initio; but I see no illegality perpetrated by the appointment of a Regent for the Katamanso stool. [xviii] Regency has been defined as follows: “… A regent (from Latin regens' ruling, governing') is a person appointed to govern a state pro tempore (Latin for 'for the time being') because the monarch is a minor, absent, incapacitated or unable to discharge the powers and duties of the monarchy, or the throne is vacant and the new monarch has not yet been determined. One variation is in the Monarchy of Liechtenstein, where a competent monarch may choose to assign regency to their of-age heir, handing over the majority of their responsibilities to prepare the heir for future succession. The rule of a regent or regents is called a regency”. RULING – THE REP vrs THE PRESIDENT, NUNGUA TRADITIONAL COUNCIL 10 See Wikipedia, The Free Encyclopedia According to the Black’s Law Dictionary, 6th Edition, Centennial Edition (1891- 1991) “A regent is … one who vicariously administers the government of Kingdom, in the name of the king, during the latter’s minority or other disability”. [xviii] In Act 759, section 76, a “cause or matter affecting chieftaincy” means a cause, matter, question or dispute relating to any of the following (a) 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) (c) The deposition or abdication of chief; The right of any person to take part in the nomination, election, selection or installation of any person as a chief or in the deposition of a Chief; (d) The recovery or delivery of stool property in connection with any such nomination, election, installation, deposition or abdication of a chief; and (e) The constitutional relations under customary law between Chiefs.” RULING – THE REP vrs THE PRESIDENT, NUNGUA TRADITIONAL COUNCIL 11 In the current law, the word “appointment” has been taken out, and in my candid opinion, rightly so because at least in Ghana chiefs are not appointed unlike a regent who is appointed in the minority, absence, or disability of a chief or queen. See the case of In Re Oguaa Paramount Stool; Garbrah vrs. Central Regional House of Chiefs and Haizel (2005-2005) SCGLR 193 per Prof. Ocran JSC (of blessed memory) [xix] It is trite that Regents are appointed and they are not taken through the rigorous processes of being installed chiefs. They are therefore not Chiefs. Having thus established that Regents are not chiefs, they ought not style themselves as such. Further, order 4 rule 9 (1) of the High Court (Civil Procedure) Rules, 2004, CI 47 emphasizes that point and provides thus: “The occupant of a stool or skin or, where the stool or skin is vacant, the regent or caretaker of that stool or skin… (Emphasis is mine) A Regent is therefore a caretaker and not a chief and this Court therefore refuses to exercise her discretion in favour of the Applicants in making any determination on this matter; especially, based on the efflux of time. From 2017 till 2023, when the present application was filed is an unreasonably long period of time to seek judicial review and also upon relying on cases such as Boyefio vrs NTHC Properties Ltd [1996-97] SCGLR 531, where it was held: “The law was clear that where an enactment had prescribed a special procedure by which something was to be done, it was by that procedure alone that was to be followed…” RULING – THE REP vrs THE PRESIDENT, NUNGUA TRADITIONAL COUNCIL 12 I also rely on the case of In Good News Co-operative vrs Grace Amoyaw & Frederick Amoyaw [2019] 131 GMJ @ 228, where the court further held: “The Courts are indeed there to enforce the law and it is the avowed duty of same to make sure litigants play the game by the rules.” 4. CONCLUSION [xx] For the above reason, the present application before the Court be and is hereby dismissed with costs of Gh¢5,000.00 in favour of the Respondent herein. SGD. JUSTICE PATRICIA QUANSAH HIGH COURT ‘B’ TEMA GREATER ACCRA REGION. 22ND APRIL 2024. COUNSEL: JERRY JOHN KOFI ASIEDU, COUNSEL FOR THE RESPONDENT PRESENT RULING – THE REP vrs THE PRESIDENT, NUNGUA TRADITIONAL COUNCIL 13 COUNSEL FOR THE APPLICANT ABSENT RULING – THE REP vrs THE PRESIDENT, NUNGUA TRADITIONAL COUNCIL 14