Republic Vrs. Registrar Agave Traditional Council (C10/05/2023) [2024] GHAHC 397 (17 April 2024)

IN THE HIGH COURT OF JUSTICE HELD IN SOGAKOPE ON THE 17TH DAY OF APRIL, 2024 BEFORE HIS LORDSHIP JUSTICE DANIEL MENSAH, JUSTICE OF THE HIGH COURT SUIT NO: C10/05/2023 THE REPUBLIC -VRS- 1. THE REGISTRAR AGAVE TRADITIONAL COUNCIL, DABALA 2. TOGBEGA XEDIHOR HLITABO IV --- RESPONDENTS 3. TOGBUI LUGU AWADALI IV EX-PARTE: 1. TOGBUI DOSU PASSAH I 2. TOGBUI LOLI I 3. MAMA WOTORBE 4. DUMEGA ISAAC DOE DUSE – DEEGBE 5. BESAVI GBEKLE 3RD RESPONDENT PRESENT. --- APPLICANTS 2ND RESPONDENT REPRESENTED BY TSIAMEGA LINCOLN M. WOYOME. 1 APPLICANTS PRESENT. 2ND APPLICANT REPRESENTED BY AGBOTADUA JEHOVAH DUSE. COUNSEL ABSENT. RULING The present Application filed by the Respondents/Applicants (hereinafter referred to as the Respondents) is for an order to dismiss the suit on the grounds that this Honourable Court lacks Jurisdiction to determine same and also, the Application offends/violates order 55 Rule 3(1), 6(2) of the High Court (Civil Procedure) Rules 2004 (C.I47) and therefore wholly a nullity upon the grounds stated in the accompanying Affidavit and for any further order(s) as this Honourable Court may deem fit. Per the Affidavit filed by the Respondents the following facts emerged: The Applicants filed an Application for an Order by way of prohibition and /or mandamus on the 9th June, 2023 at the Registry of this Court against the Respondents herein. According to the Respondents the said Application for Judicial Review is substantially flawed both in law and facts, and as such, a nullity, unmaintainable and same ought to be dismissed in limine with punitive costs. The Respondents contend that the Applicants have sued Agave Traditional Council (1st Respondent) through its Registrar, which does not exist and as such no action can be taken against that entity. 2 In that regard, any action against a non- existing person or entity is accordingly a nullity. According to the Respondents, Agave Traditional Council does not exist and by Law a Traditional Council is a creation of a statute which is different and distinct from a Traditional Area. The Respondents further contends that on the basis of that fact, the Court has no Jurisdiction to determine the instant Application as the Court’s Jurisdiction has not been properly invoked. Furthermore, the Respondents contend that per a search conducted at the Registry of the Volta Regional House of Chiefs, Ho by their Lawyer dated 14th June, 2023 revealed that, Agave Traditional Council has yet not been inaugurated and therefore it has no Registrar. The said search is attached to the instant Application as Exhibit ‘1’. In addition to the above grounds, the Respondents contend that the Applicants have not complied with the Rules of the Court, which mandates an Applicant to file a Statement of Case within 14 days after an Application for an order of Judicial Review by way of prohibition and / or mandamus has been filed. However, the instant application was filed on the 9th June, 2023 and the Statement of Case filed on 26th June, 2023 contrary to the Rules of this Court per Order 55 Rule 6(2) of C.I 47. The Respondents further contends that the instant Application has not been brought within six (6) months as per Order 55 Rule 3(1) of the High Court (Civil Procedure) Rules, 2004, C.I 47 since the alleged event complained off by the Applicants herein occurred in the year 2002 which is more than six (6) months for bringing up on Application for Judicial Review. On the basis of the above depositions, the Respondents pray the Court to dismiss the Application for Judicial Review with punitive costs. 3 The Applicants filed an Affidavit in Opposition to the instant application by the Respondents rejecting the basis of the Application. The Applicants averred that on the 12th February, 2022 the 1st Applicant was installed as Dufia of Avuto by the 4th & 5th Applicants. The Applicants says that on the 13th February, 2022, they received a Summons from the 2nd Respondent to appear before him to explain the circumstances of the installation as he was not aware of same. The Applicants say that a delegation comprising of 2nd and 3rd Applicants went to meet the 2nd Respondent and his elders. At the meeting the Applicants were made to explain the circumstance of the 1st Applicant installation with specific detail which they did. In fact at the said meeting, the Applicants made it clear that the 4th and 5th Applicants were the sole heads and kingmakers at Avuto and that the notice extended to the 2nd Respondent was out of respect and courtesy to the overlord and is not a sine qua non to the process of installation. The Applicants say that they were made to re- appear between March and November 2022. According to the Applicants it was not until 15th May, 2023 that they received a communication that a new panel had been constituted to look into the Avuto affairs to be presided over by the 2nd Respondent. The Applicants say that when they first appeared before the said committee chaired by the 2nd Respondent, an altercation erupted between the old and new members and the meeting could not take place leading to an adjournment. Thereafter the meeting was adjourned severally. The Applicants contends that the 2nd and 3rd Respondents have been hostile to them. The Applicants says that the 3rd Respondent is neither a kingmaker to the Avuto Stool nor hail from Avuto. 4 The Applicants further contends that the chieftaincy (Membership of the Regional House of Chiefs Instrument, 2020 (LI 2409) which came into effect on the 5th May, 2020, regulation 15 thereof identified Agave as a paramountcy and a member of the Volta Regional House of Chiefs. According to the Applicants per Section 12(1) & 13(1) there is no requirement for inauguration to pass the text as being claimed by the Respondents. Further, per Article 270 (1) of the 1992 constitution no recognition is required by way of a Traditional Council being inaugurated. The Applicants say that in April 2021, the Agave Traditional Council was inaugurated. In addition, the Applicants contends that the application to dismiss by the Respondents is incompetent, mischievous and a mere jejune hatched by the Respondents to escape responsibilities for their actions. Therefore the Applicants pray for its dismissal. In his oral submissions to this Court, Counsel for the Respondents told the Court that the jurisdiction of the Court has not been properly invoked as the Court cannot make any orders directed at a non-existing entity which is the Defendants/Respondent (Registrar of the Agave Traditional Council). Counsel says that there is no Registrar and that the Council itself has not been inaugurated. Counsel referred to the search from the Volta Regional House of Chiefs, Ho (Exhibit 1) to buttress his point. Counsel further submitted that a Traditional Council is different from a Traditional Area. According to him a Traditional Council is a creation of statute with functions different from a Traditional Area. In that referred, Counsel submitted that one cannot sue a party which does not exist. Counsel in that regard referred this Court to the case of THE REPUBLIC VRS. HIGH COURT ACCRA, EX-PARTE AG 1998-99 SCGLR 614, BALK SHIPPING & 5 SERVICES LTD VRS MINERALS & METAL TRAD CO. OF INDIA & ORS (1996) AER 1017 PER IVANS L. J. According to Counsel the general rule is that an action against a non-existing person is a nullity. On that basis Counsel submitted that this Court cannot determine the judicial review application by the Applicants. Counsel further stated that the instant application have not complied with order 55 r 1 (2) of C.I 47 when a statement of case was filed after 14 days in contravention with the rules of Court. Counsel for the Respondents further contends that the matters the applicants are complaining of took place in the year 2022 and per order 55 rule 3(1) of C.I 47 any application for judicial review should have been brought not later than six (6) months. Referring to paragraphs 5 – 13 of the Applicants’ Affidavit in Opposition, counsel submitted that the application had not been brought within 6 months as stated by the rules. Counsel submitted that the application is a nullity, unmaintainable and same ought to be dismissed. In his opposition to the above prayer by the Respondents, Counsel for the Applicant referred to Article 11 (7) of the 1992 Constitution and submitted that on the 1st July, 2020 the National House of Chiefs laid before Parliament LI 2409 which created a number of traditional areas including the Agave Traditional Area. The date of the entry of force was 5th August, 2020. Counsel refers to Section 12 (1) of Act 759 which states that there shall be a traditional council in each traditional area. Counsel says that there is no law which says that traditional council ought to be inaugurated before it comes into being. Referring to paragraph 14 of their Affidavit in Opposition, Counsel submitted that it was not until 15th May, 2021 that a new panel was constituted so the application had been brought within time. 6 Even though Counsel for the Applicants concede that a Statement of Case had been filed outside 14 days as stipulated in the rules but to him the cure is what is contained in order 55 rule 6(3) and that it was the Registrar to raise it and not an applicant like this. Counsel referred to order 81 of CI 47 and invited the court to dismiss the application by the Respondents. It is based on the processes filed by the parties and the submissions by both Counsel that this application is being determined. Before attempting to answer the issues raised in this application, it has to be noted that the application brought by the Applicants against the Respondents is in two fold. In respect of the 1st Respondent (The Agave Traditional Council) it is for judicial review in the nature of mandamus to compel the said entity to perform its duties of forwarding the name of the Togbui Dosu Passah I as Chief of Avuto to the National House of Chief for his name to be inserted in the National Register of Chiefs. In respect of the 2nd and 3rd Respondents, the Applicants are seeking prohibition against them in the matter pending at the Traditional Council. To that extent the nature of Applicants’ case against the 1st Respondent and the 2nd and 3rd Respondents are not the same. I now proceed to determine the issues as raised in the application to dismiss. Per the submission by learned Counsel for the Respondents the matters leading to the application by the Applicants occurred in 2022 and by the time the Applicants filed the application for judicial review on 9th June, 2023, six (6) months period from bringing up the issue per order 55 rule 3(1) of CI 47 had long elapsed. For the avoidance of any doubt the said order is reproduced in extensor as follows: Rule 3 – Time for making Application. 7 (1) The application for judicial review shall be made not later than six (6) months from the date of the occurrence if the event giving grounds for making the application. In respect of the basis of bringing the 1st Respondent to this Court, the Applicants per their application for judicial review in the nature of mandamus averred in paragraphs 28 and 29 of their affidavit in support as follows: 28. It is the case of the Applicants that upon the due nomination, selection and installation of the 1st Applicant as Dufia of Avuto, the Respondents had no more than to take steps to process him for registration and gazette in the National Register of Chiefs. 29. That it is the duty of the 1st Respondent to furnish the 1st Applicant with the necessary copies of Chieftaincy Declaration Forms upon request by the Applicants and not to take the Applicants through an arduous process of vetting. From the processes filed in this application, it is obvious that the vetting of the Chieftaincy Declaration Form of the 1st Applicant is still under consideration. The basis of the Applicants application is clearly found in paragraphs 31 and 32 which talks about legal processes of vetting which is causing the delay of the 1st Applicant’s registration as a Chief. It is this fact which according to the application is not known in law that they detent leading to the filing of the present application. From the processes filed even though the 1st Applicant had been installed allegedly on the 12th February, 2022, the process of vetting his installation was pending before a panel since July, 2022 until the presentation of the application for judicial review. In that regard the application by the Applicants is against the refusal to forward the Chieftaincy Declaration Form of the 1st Applicant. That refusal did not occur in 2022 but according to the Applicants in 2023. Judging from the date of the perceived delay in the forwarding of the Chieftaincy Declaration Form of the 1st Applicant to 8 the date of the filing of the application for judicial review, the application cannot be said to have been brought outside the six (6) months period for such application as per order 55 r 3 (10) of CI 47. To that extent the basis for the Respondents objection is with respect to Counsel misconceived. Another leg of the submission is in respect of the 2nd and 3rd Respondents’ appointment to the new panel as members. This event clearly took place in 2023 and judging from the date of the application being 9th June, 2023, the said submissions touching on the prohibition of the two members to sit on the panel has been brought within the (6) six months as stated or envisaged by order 55 r. 3 (1) of CI 47. That would bring me to the other leg of Counsel’s submission that the Statement of Case attached to the application for judicial review was filed outside the 14 days period limited for filing such statements. Order 55 rule 6(2) of CI 47 provides as follows; 6. (2) Within 14 days after filing the notice of application, the Applicants shall file such number of copies of the applicants’ statement of case as the Registrar shall determine setting out fully his arguments and relevant status or decided cases he wishes the court to consider. By the clear wording of this order, an Applicant ought to file a Statement of Case within 14 days after filing a notice of the application. In this application, the Applicants filed the notice on the 9th June, 2023. It took the Applicants up to 26th June, 2023 before filing a Statement of Case. That was more than the 14 days period allowed for such statement to be filed. The Applicants in my view had up to the 23rd June, 2023 to file that statement which they did not do. Per order 55 r. 6(3) of CI 47, the Registrar of the Court ought to have certified the fact to the Court. The Registrar did not do this. If the Registrar had done so, this Court could have dismissed the application if it so wishes. 9 The Applicant has since 26th June, 2023 rectified the said anomaly every suit demands that the substance of a matter ought to be dealt with. I have looked at the order referred to by Counsel and do not see how this can be fatal to the instant application. By far the most thorny issue is whether the 1st Respondent is a legal entity. There is no doubt that per LI 2409 there is specific mention of Agave Traditional Area but the mention of same does not mean the existence of Agave Traditional Council. Per Section 12 (1) and (2) of Act 759 appears the following; 12. (1) There shall be a Traditional Council in each Traditional Areas. (2) The name and member of each Traditional Council shall be stated in the National House of Chiefs maintained under Section 59 of this Act. Judging from the above per LI 2409, there shall be a Traditional Council for the Agave Traditional Area with its name and members stated in the National Register of Chiefs maintained under Section 59 of the Act. Throughout the hearing of the application, the Applicants could not satisfy me about these two (2) criterion. First the Agave Traditional Council name has been stated in the National Register of Chiefs nor its members. The applicants have argued rather strenuously that the mention of Agave Traditional Area implies that there is a Traditional Council for same. I do not agree with the Applicants on this interpretation. Per Section 12 of Act 759 for there to be in existence of a Traditional Council, the said traditional council ought to have its names stated in the National Register of Chiefs as per Section 59 of 10 the Act as well as its members. There has not been any such indication in this application. The question to pose at this juncture is how a Traditional Council could come into being. In my respectful view the said Traditional Council ought to be inaugurated with its members by the Minister or Ministry of Chieftaincy before same could function as such. In this application there has not been any such evidence. What is more there is no Registrar for the said traditional council who is to see to the day to day administration of the council. Having heard both counsel on their submissions touching on this matter viz a viz the material available to me, I find as a fact that the Agave Traditional Council has not been put in place and that explains why the Volta Regional House of Chiefs per exhibit 1 revealed that no such traditional council has been put in place. This outcome of the search from the Volta Regional House of Chiefs is in all accord with the relevant laws of Chieftaincy as per Act 759. In the circumstances I find that the Applicants have brought a non-existent party to Court and same to that affect is a nullity. The 2nd and 3rd Respondents appear to me were acting as members of the said Traditional Council which does not exist. The effect of this conclusion by me suggest that the jurisdiction of this Court has not been properly invoked and that the application for judicial review in the nature of mandamus and prohibition is a nullity. Same is accordingly dismissed. I would entreat both parties to take steps to put in place the Agave Traditional Council so that no vacuum is created having recognized the Agave Traditional Area per LI 2409. There would be no order as to costs. 11 (SGD.) H/L JUSTICE DANIEL MENSAH (JUSTICE OF THE HIGH COURT) 17:04:2024. 12