Gbekle And 3 Others Vrs, Segbe (E13/37/2023) [2024] GHAHC 396 (15 January 2024)

IN THE HIGH COURT OF JUSTICE HELD IN SOGAKOPE ON THE 15TH DAY OF JANUARY, 2024 BEFORE HIS LORDSHIP JUSTICE DANIEL MENSAH, JUSTICE OF THE HIGH COURT SUIT NO: E13/37/2023 1. ZIKPUITOR BESAVI GBEKLE 2. AGBTADUA JEHOVAH DUSE 3. TSIAME AFETORGBOR PELE SORSORKPLIWO 4. DUMEGA ANTHONY SEGBE --- PLAINTIFFS 5. DUMEGA ISAAC DOE DUSE – DEEGBE Elders and Principal members of Avuto Agave -VRS- ISRAEL SEGBE OF AVUTO/ADUTOR PARTIES: PARTIES PRESENT COUNSEL: --- DEFENDANT MR. ISAAC BARNABAS DZASA ESQ., COUNSEL FOR PLAINTIFFS PRESENT. RULING I have read all the processes filed in pursuance of the application to set aside the writ of summons, statement of claim and the application for interlocutory injunction filed by the defendant/applicant hereinafter referred to as the applicant and written submissions filed on behalf of the parties in the case and concluded that the application has merit. Same is granted in its entirety on the grounds that this court is bereft of jurisdiction to hear same. 1 Full reasons shall be filed at the Registry of the court on Wednesday January 17th, 2024. (SGD.) H/L JUSTICE DANIEL MENSAH (JUSTICE OF THE HIGH COURT) 15:01:2024. IN THE HIGH COURT OF JUSTICE HELD IN SOGAKOPE ON THE 15TH DAY OF JANUARY, 2024 BEFORE HIS LORDSHIP JUSTICE DANIEL MENSAH, JUSTICE OF THE HIGH COURT ______________________________________________________________ _____ SUIT NO: E13/37/2023 1. ZIKPUITOR BESAVI GBEKLE 2. AGBTADUA JEHOVAH DUSE 3. TSIAME AFETORGBOR PELE SORSORKPLIWO 4. DUMEGA ANTHONY SEGBE --- PLAINTIFFS 5. DUMEGA ISAAC DOE DUSE – DEEGBE Elders and Principal members of Avuto Agave --- DEFENDANT -VRS- ISRAEL SEGBE OF AVUTO/ADUTOR PARTIES: PARTIES PRESENT COUNSEL: 2 MR. ISAAC BARNABAS DZASA ESQ., COUNSEL FOR PLAINTIFFS PRESENT. RULING On the 15/1/2024 I gave a ruling granting the application filed by the applicant for setting aside the Writ, Statement of Claim and Interlocutory Injunction and reserved the reasons which I proceed to give as follows: On the 6/4/2024, the Plaintiffs/Respondents (herein after referred to as the Respondents) caused a writ to be issued out of this court against the Applicant herein for; a. Declaration that the Defendant cannot constitute a committee(s) purposely to organize festive celebration events such as this Easter period. b. An order from the Honourable Court to restrain the Defendant from upholding himself as Regent or Dufia (Chief) of Avuto. c. An order to restrain the Defendant from acting in any capacity as the Dufia (Chief) or Regent of Avuto. d. Costs. The above Writ together with its Statement of Claim detailing the background of the case was served on the Applicant together with an Application for an order of Interim Injunction. The Applicant upon being served with the above processes filed an appearance and went on to file the present application praying the court for an order to set aside the Writ of Summons, the Statement of Claim and the Application for Interlocutory Injunction upon the grounds as stated in the accompanying affidavits in support and for such further orders or other order as this court may deem fit. In his affidavit in opposition, the Applicants referred to the Writ, Statement of Claim and Interlocutory Injunction filed by the Respondent praying for an order to restrain him (Applicant) by himself, agents, privies, assigns and anybody claiming through him as the Dutor of Avuto. 3 The Applicant says that the position of Dufia of Avuto is a chieftaincy position and as such the instant action is an issue or matter affecting chieftaincy. The Applicant went on to refer to Section 29(1) of the Chieftaincy Act, 2008 Act 759 which gives exclusive jurisdiction to hear and determine such action within the area on the Traditional Council being a matter in which the Asantehene or a Paramount Chief is not a party. According to the Applicant, because the instant suit is a cause or matter affecting chieftaincy, the High Court lacks the jurisdiction to entertain and determine same. It is in that regard that the Applicant prays for an order setting aside or dismiss same. The Respondents upon being served filed an affidavit in opposition to the present application in which they vehemently opposed the application. In the said affidavit in opposition, the Respondents averred that following the immediate passing of Togbe Afagbedzi Kaledzi I in July, 2012 a Writ was issued against the Applicant and 2 others to restrain them from converting the stool of Avuto at the National House of Chiefs in Suit No. NHC.3/VR/2017. That in or about January 2020, a publication was made with regards to the burial of Ex-Cpl. John Togbi Akakpo Numanyavor where the Applicant was described as Regent Togbi Afagbedzi Kaledzi II, Dufia of Avuto. The Respondents successfully applied to the High Court Sogakope to obtain a ruling restraining the Respondents from using the said chieftaincy title. The Respondents further state that the applicant on April 2023 again had caused another publication to be published in a programme for 2023 Easter celebration now described himself as Regent Afagbedzi Kaledzi Isreal Segbe Dufia of Avuto even though he had not been given the recognition by the Respondents who are kingmakers of Avuto. The Respondents also say that the Applicant has also caused gong-gong to be beaten in the adopted names for the Easter Celebration and other occasion. 4 The respondents say that the activities of the applicant within Avuto is likely to disturb the peace of the community and it is as a result that they (respondents) had applied to this honourable court to restrain the applicant and his minions from conducting themselves in any manner likely to disturb the peace of Avuto. In that regard the Respondent prays the court to dismiss the application. On the 23/10/2023 when the application was called for hearing this court ordered both counsel to file any written submissions touching on the present application which order was duly complied. It is in respect of the processes filed in the application together with the Written Submissions by both Counsel that the instant Application is being determined. In his written Submissions to this Court, Counsel for the Applicant referred this Court to the reliefs being claimed by the Respondents in their Writ, the Statement of Claim and the Interlocutory Injunction which all related to the Applicant as Regent or Dufia (Chief) of Avuto and also from acting in the said capacity thereof. Counsel submitted that Regent or Dufia (Chief) of Avuto that the Applicant was claiming is a chiefly position and thus a cause or matter affecting chieftaincy as per section 29(1) of Act 759. Counsel further submitted that the High Court lacks jurisdiction to determine the action purposely and particularly aimed at disenabling the Applicant from performing his chiefly position as Regent or Dufia of Avuto. In that regard, Counsel referred to the case of Republic Vrs Adansi Traditional Council Ex parte Nana Ayie II 1974 2 GLR 126 CA indicating that a plea of jurisdiction can be taken at any time after appeal even though same was not raised at the Trial Court. Counsel for the Applicant refers to the Respondents Affidavit in Opposition in which they admitted having caused a Writ to be issued at the National House of Chiefs in Suit No. NHC3/VR/2017. Counsel referred to Section 76 of Act 759 which section defines cause or matter affecting chieftaincy to include the dispute filed in the High Court Sogakope. 5 To buttress his point, counsel for the Applicant referred to Section 76 (a) of the chieftaincy Act, 2008 Act 759 which provides as follows: “A cause or matter affecting chieftaincy” means a cause, matter, question or dispute relating 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”. Counsel further referred to the case of IN RE OGUAA PARAMOUNT STOOL: GARGRAH- VRS- CENTRAL REGIONAL HOUSE OF CHIEFS & HAIZEL [2005-2006] SCGLR 193 @ 214, PAGE 232 of the law of chieftaincy in Ghana by His Lordship S.A BROBBEY JSC. Counsel for the Applicant concluded his submissions by referring to Section 57 of the Courts Act, 1993 (Act 459) as amended by Act 620 that a High Court has no jurisdiction to entertain either at first instance or an appeal any cause or matter affecting chieftaincy and invited the Court to dismiss the Writ, Statement of Claim and Interlocutory Injunction filed by the Respondents in limine. In his reply to the Submissions, Counsel for the Respondents referred to the suit at the National House of Chiefs and gave the basis for it by virtue of section 273(5) of the 1992 constitution. Counsel further referred to an earlier order by the High Court Sogakope dated 4th April, 2020 in which the Applicant was restrained from using the title of a Regent or Dufia of Avuto. The said order of the Court according to Counsel is in direct contravention of the Applicant publication using the said titles or names to organize the 2023 Easter programme. It is to prevent the breach of the peace and chaos that the Application for Injunction was being brought. Counsel for the Respondents say that in the Suit of the National House of Chiefs, the Applicant has not asserted that he has been installed as a Chief or Regent. In that regard Counsel referred to the learned Brobbey at page 232 that a matter would constitute chieftaincy in the case of IN RE NUNGUA CHIEFTANCY AFFAIRS; ODAI AYIKU IV VRS ATTORNEY GENERAL (BORKELEY LARWEH XIV APPLICANT) (2010) SCGLR 413 @ 423 that…… 6 “If evidence on how the party was nominated, elected, selected, enstooled or enskinned, deposed or abdicated has to be adduced before the issue raised in the case can be determined, then the case is almost certainly a cause or matter affecting chieftaincy”. Counsel further referred to the case of IN RE OSU STOOL; AKO NORTEI (MANKRALO OF OSU) VRS NORTEI OWUO II (Intervener) [2005-2006], SCGLR 28. Counsel concluded that the case before the Court is not a cause or matter affecting chieftaincy could therefore invited the Court to dismiss the Application. The main point raised in this Application as gleaned from the processes filed and the submissions urged by both counsel for the parties is whether judging from the processes filed in the case, the matter to be decided would involve the inquisition of a cause or matter affecting chieftaincy. Historically, the definition of a cause or matter affecting chieftaincy started with the enactment of the Courts ordinance cap 4 (1951 Rev). Section 88 defined what a cause or matter affecting chieftaincy was. Upon Ghana attaining independence, various shave been statutes have been passed. For instance, section 66 of Act 370 defined what the meaning of the phrase meant. Section 76 of the chieftaincy Act (Act 759) passed in 2008 defines “cause or matter affecting chieftaincy as “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 nominated, elected, selected or installed as a chief, (b) The deposition or abdication of a chief. (c) The right of any person to take part in the nomination, election, selection, appointment or installation of any person as a chief or in the deposition of any chief, 7 (d) The recovery or delivery of stool property in connection with any such nomination, election, appointment, installation, deposition or abdication, (e) The constitutional relations under customary law between chiefs. The Courts Act 1993 (Act 459) Section 117 defines a cause or matter affecting chieftaincy in the same context as Section 76 of Act 759. It has to be noted further that ‘’a cause or matter affecting chieftaincy has been judicially pronounced in a number of cases to mean principally, disputes and or question relating to nomination, selection, installation or deposition of a chief and matters affecting chieftaincy. In the case of AMONOO VRS. CENTRAL HOUSE OF CHIEFS (2003 – 2005) 1 GLR 577 for instance the text or definition of a cause or matter affecting chieftaincy was given as a “question or dispute” or contented matter or cause in the sense of a justiciable controversy, with respect to an actual challenge to the nomination, election, appointment, installation of a person as a chief or his or her destoolment. Generally, it is the nature of a Plaintiff claim before the court that principally determines the context of the action. As a general rule a mere incidence of what purports or appears to be a cause or matter affecting chieftaincy is not sufficient to oust the jurisdiction of the High Court. Judging from the Writ before me, the Respondents have sued as Elders and Principal Members of the Avuto Agave. The main plaint of their claim is the fact that the Applicant was holding himself as a Regent and Dufia of Avuto even though according to the Respondent, he (Applicant) had not been installed as such. The Respondents referred to suit a pending at the National House of Chiefs in which the claim by the Applicants and his family are being determined. Principally the instant action brought before this court is in reference to the celebration of the organization of festive celebration during the Easter during the pendency of the chieftaincy petition before the National House of Chiefs. 8 Per the processes filed before this Court in this application. Vis – a – vis the submissions urged upon me in this application, it becomes evident that the claim by the Applicant as Regent or Dufia of Avuto is in serious contention. It is the view of the Respondents that no such appointment has been made to enable anyone to claim that position. It appears the Applicant denies the said claim. The claim that someone has been appointed to that position of a Regent or Dufia of Avuto is a claim to a chiefly position. In my respectful view, it is only after the trial had determine whether the Applicant has been installed to that position or not, that a court such as this can go ahead to restrain the Applicant from acting in that capacity. The act of going into the question whether the applicant had been installed as a Regent or Dufia in any view is clearly a dispute or question relating to a cause or matter affecting chieftaincy. The High Court has been prohibited clearly from entertaining any cause or matter affecting chieftaincy such that this court is bereft of jurisdiction to entertain this matter no matter how it has been couched. It is in this vein that I decline jurisdiction and set aside the Writ, Statement of Claim and Application for Interlocutory Injunction for lack of jurisdiction. (SGD.) H/L JUSTICE DANIEL MENSAH (JUSTICE OF THE HIGH COURT) 15:01:2024. 9