REPUBLIC v. CHIEFTAINCY COMMITTEE ON WIAMOASEHENE STOOL AFFAIRS;
EX PARTE OPPONG KWAME AND ANOTHER 321-340 [1971] 1 GLR
IN THE HIGH COURT, ACCRA
27 JANUARY 1971
HAYFRON-BENJAMIN J.
Certiorari—Application—Persons entitled to apply—Conditions for making application—
Proof of peculiar grievance beyond that suffered by the rest of the public—Application to
quash the findings of a chieftaincy committee—Applicant not a party to proceedings
before chieftaincy committee—Findings of chieftaincy committee likely to affect status of
applicant—Whether applicant had sufficient interest in matter before chieftaincy
committee to make the application.
Practice and procedure—Certiorari—Parties—Persons to be made respondents—
Application to quash findings of a chieftaincy committee—Findings subject to
confirmation by the National Liberation Council—Confirmation of findings by the
National Liberation Council—Whether respondents proper parties to the application.
Certiorari—Application—Findings of a body—When an order for certiorari would lie—
Distinction between advisory findings and findings intended to operate—
Recommendations made by a chieftaincy committee subject to confirmation by the
National Liberation Council—Confirmation of recommendations by the council—
Whether recommendations merely advisory or intended to operate—Whether certiorari
would lie to quash the recommendations of the chieftaincy committee or the decision
of the National Liberation Council confirming the recommendations.
Statute—Construction—Application for an order of certiorari—Documents to be filed
under Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 59, r. 7
(1)—Meaning of the words "a copy thereof" in Order 59, r. 7 (1)—Whether the words
referable to "any order, warrant, commitment ... " etc or to proceedings—Supreme
[High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 59, r. 7 (1).
Administrative law—Judicial tribunals—Chieftaincy committee—Confirmation of findings
of the committee by the National Liberation Council—Subsequent reversal of confirmed
findings without hearing parties—Whether National Liberation Council had power to
review its decision—Chieftaincy Act, 1961 (Act 81), ss. 39 and 48.
Natural justice—Judicial tribunal—Right to be heard—Adjudication of an issue—
Confirmation of decision by a superior authority—Subsequent reversal of decision
without hearing the parties—Whether compliance with rules of natural justice—Whether
certiorari would lie to quash such a decision.
HEADNOTES
It is provided by the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A),
Order 59, r. 7 (1) that:
"7. (1) In the case of an application for an order of certiorari to remove any proceedings
for the purpose of their being quashed, the applicant shall not question the validity of
any order, warrant, commitment, conviction, inquisition or record, unless before the
hearing of the motion or summons he has lodged a copy thereof verified by affidavit in
the Registry, or accounts for his failure to do so to the satisfaction of the Court or Judge
hearing the motion or summons."
HEADNOTES
On 22 July 1968 Nana Pim Owusu Ansah, the chief of Wiamoase, was declared
destooled by the Agona Traditional Council as a result of a complaint lodged with the
council by Obaapanin Adjoa Amponsah, the Queenmother of Wiamoase. He appealed
under section 48 (1) of the Chieftaincy Act, 1961 (Act 81), against his destoolment.
While the appeal was pending, Nana Oppong Kwame was enstooled as the chief in
place of the appellant. A committee of the Chieftaincy Secretariat heard the appeal and
sent its findings to the National Liberation Council which, on 28 March 1969, published
a notice in the Local Government Bulletin in which it purported to confirm the findings of
the committee that the appeal should be dismissed. By a subsequent notice published
on 5 September 1969 in the Local Government Bulletin, the National Liberation Council
revoked its earlier decision, and confirmed the decision of the same committee that the
appellant's appeal should be allowed. In consequence of the publication of the [p.323]
second notice, Nana Oppong Kwame and Obaapanin Adjoa Amponsah applied for an
order of certiorari to quash the second decision. They filed copies of the two notices
published and served notices of the application for an order of certiorari on the
committee of the Chieftaincy Secretariat, the Attorney-General and Nana Pim Owusu
Ansah as respondents. The applicants contended that (i) the third respondent did not
obtain the leave of the minister in accordance with section 48 (1) of Act 81 before
appealing against his destoolment, and (ii) the committee and the National Liberation
Council had acted ultra vires the Chieftaincy Act in that the committee had no
jurisdiction to review its earlier decision. They maintained that they had no notice of the
second hearing nor had the third respondent; therefore the whole proceeding was
contrary to natural justice.
The respondents raised a number of objections in opposition to the application; namely,
that (i) the first applicant had no locus standi because he was not a party to the
destoolment proceedings; also that having been enstooled while the third respondent's
appeal was pending, his enstoolment was irregular as an appeal under section 48 (2) of
Act 81 operated as a stay of execution; (ii) they (the respondents) were not proper
parties to the application; (iii) the application could not lie against the committee since it
had to report its findings to the National Liberation Council which had to take the final
decision nor against the findings when they had already been confirmed by the National
Liberation Council; and finally that the applicants had not complied with Order 59, r. 7
(1) in that they did not exhibit a copy of the proceedings which they sought to have
quashed.
Held:
(1) since the first applicant had been enstooled in succession to the third respondent, he
had by the enstoolment acquired rights which would be definitely affected by the
decision of the chieftaincy committee and the National Liberation Council, and as such
had sufficient interest in the subject-matter as to invest him with the necessary locus
standi to make the application. The mere fact that he was not a party to the original
proceedings before both the traditional council and the chieftaincy committee was not a
fatal objection. Dicta of Djabanor J. in Amankwa v. Kyere [1963] 1 G.L.R. 409 at p. 412
considered.
(2) The respondents were proper parties to the application: because (a) the application
was directed at the committee appointed to hear the appeal of the third respondent and
to report its findings to the National Liberation Council, and not to the chieftaincy
secretariat which had been abolished: (b) the application was questioning the validity of
an action by the National Liberation Council, the then government of the day, and it was
only proper that the Attorney-General, in whose name all proceedings against the
Republic may be brought, should be made a party to the application: (c) it was the third
respondent who appealed to the chieftaincy committee, and the decisions of both that
committee and the National Liberation Council would affect his interest.
(3) There was a clear distinction between reports which were merely advisory and in
respect of which certiorari would not ordinarily lie, and reports and recommendations
which would in fact operate, with or without modification, after approval by another
authority. Where the National Liberation Council confirmed a recommendation under
the Chieftaincy Act, 1961, it was, in such a case, the recommendation of the chieftaincy
committee which in fact would operate, and in respect of which certiorari [p.324] would
lie. Dicta of Lord Parker C.J. in R. v. Criminal Injuries Compensation Board; Ex parte
Lain [1967] 2 Q.B. 864 at p. 881 applied. Dicta of Charles J. in Eku alias Condua III v.
Acquaah [1961] G.L.R. 285 disapproved.
(4) Certiorari would lie to quash the findings of an inquiring body whose findings were
subject to confirmation by a superior authority which had in fact confirmed such findings.
Therefore the fact that the report of the chieftaincy committee had been dealt with by
the National Liberation Council would not be sufficient to preclude the court from issuing
an order of certiorari to quash the proceedings of the chieftaincy committee. Banks v.
Transport Regulation Board (1968-69) 42 A.L.J.R. 64 and Ridge v. Baldwin [1964] A.C.
40, H.L. considered.
(5) The decision or act of the National Liberation Council in confirming, varying or
amending the report of the chieftaincy committee could itself be quashed by an order of
certiorari. Dicta of Granville Sharp J.A. in Ahenkora v. Ofe (1957) 3 W.A.L.R. 145 at pp.
150-151, C.A.; of Atkin L.J. (as he then was) in R. v. Electricity Commissioners; Ex
parte London Electricity Joint Committee Co. (1920), Ltd. [1924] 1 K.B. 171 at p. 205,
C.A. and of Lord Parker C.J., Salmon L.J. and Blair J. In re H.K. (An infant) [1967] 2
Q.B. 617 at pp. 630, 633 and 636 respectively considered.
(6) By filing copies of the decisions published in the Local Government Bulletin, the
applicants had complied with the provisions of Order 59, r. 7 (1) in that the words "a
copy thereof" appearing in the rule refer to the order, commitment, etc. and not to the
proceedings. In any case the court was satisfied with the applicants' explanation that
the proceedings were not available to them. Dicta of Denning L.J. (as he then was) in
R. v. Northum- berland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 All
E.R. 122 at pp. 129-130, C.A. considered.
(7) The National Liberation Council had the power to reverse the findings of the
chieftaincy committee and dismiss the appeal if it so intended; but having dismissed it
and published it as it did on 28 March 1969, the decision was final and conclusive, and
it had no authority to review the decision again. Therefore the decision which was
published on 5 September 1969 was ultra vires and void. Dicta of Archer J. (as he then
was) in Blewey v. Assuah, High Court, Sekondi, 27 October 1967, unreported; digested
in (1968) C.C. 31 approved.
Obiter. Even if the National Liberation Council had the necessary authority to review its
decision, elementary justice demanded that the parties should have been heard. It
would be an improper exercise of power, whether it be administrative, ministerial or
judicial to reverse that decision without affording the parties any hearing.
CASES REFERRED TO
(1) R. v. Nicholson [1899] 2 Q.B. 455; 68 L.J.Q.B. 1034; 81 L.T. 257; 64 J.P. 388; 48
W.R. 52; 15 T.L.R. 509; 43 S.J. 744, C.A.
(2) R. v. Manchester Legal Aid Committee; Ex parte R. A. Brand & Co., Ltd. [1952] 2
Q.B. 413; [1952] 1 All E.R. 480; [1952] 1 T.L.R. 476; 96 S.J. 183.
(3) Amankwah v. Kyere [1963] 1 G.L.R. 409.
(4) Clifton Securities Ltd. v. Huntley [1948] W.N. 267; 64 T.L.R. 413; 92 S.J. 499;
[1948] 2 All E.R. 283.
[p.325]
(5)
Eku alias Condua III v. Acquaah [1961] G.L.R. 285.
(6)
Eku alias Condua III v. Acquaah [1963] 1 G.L.R. 271, S.C.
(7) R. v. Statutory Visitors to St. Lawrence Hospital, Caterham; Ex parte Pritchard
[1953] 1 W.L.R. 1158; 117 J.P. 458; 97 S.J. 590; [1953] 2 All E.R. 766.
(8) R. v. Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 Q.B. 864;
[1967] 3 W.L.R. 348; 111 S.J. 331; [1967] 2 All E.R. 770.
(9)
Banks v. Transport Regulation Board (1968-69) 42 A.L.J.R. 64.
(10) Ridge v. Baldwin [1964] A.C. 40; [1963] 2 W.L.R. 935; 127 J.P. 295; 107 S.J. 313;
[1963] 2 All E.R. 66, H.L.
(11) Ahenkora v. Ofe (1957) 3 W.A.L.R. 145, C.A.
(12) R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co.
(1920), Ltd. [1924] 1 K.B. 171; 93 L.J.K.B. 390; 130 L.T. 164; 88 J.P. 13; 39 T.L.R. 715;
68 S.J. 188, C.A.
(13) Durayappah v. Fernando [1967] 2 A.C. 337; [1967] 3 W.L.R. 289. 111 S.J. 397;
[1967] 2 All E.R. 152, P.C.
(14) In re H.K. (An Infant) [1967] 2 Q.B. 617; [1967] 2 W.L.R. 962; 111 S.J. 296; [1967]
1 All E.R. 226.
(15) R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 K.B.
338; [1952] 1 T.L.R. 161; 116 J.P. 54; 96 S.J. 29; [1952] 1 All E.R. 122, C.A.
(16) Blewey v. Assuah, High Court, Sekondi, 27 October 1967, unreported; digested in
(1968) C.C. 31.
(17) Aidoo v. C.O.P. (No. 3) [1964] G.L.R. 354, S.C.
NATURE OF PROCEEDINGS
APPLICATION for an order of certiorari to quash the recommendations of the
Chieftaincy Committee on Wiamoasehene Stool Affairs which were confirmed by the
National Liberation Council, but which were subsequently reversed without hearing the
parties. The facts are fully set out in the judgment of the court.
COUNSEL
C. B. Zwennes for the applicants.
M. A. F. Ribeiro, State Attorney, for the first and second respondents.
Dr. Ohene Djan for the third respondent.
JUDGMENT OF HAYFRON-BENJAMIN
This is a hotly contested application for an order of certiorari in respect of certain steps
taken by various bodies in the proceedings concerning the destoolment of Nana Pim
Owusu Ansah, one-time Wiamoasehene, in the Agona Traditional Area, Ashanti. The
bodies concerned are the Agona Traditional Council, the Chieftaincy Committee
presided over by Mr. Justice Siriboe, the Chieftaincy Secretariat and the National
Liberation Council. The applicants are Nana Oppong Kwame, who claims to be the
Wiamoasehene, and Obaapanin Adjoa Amponsah, Queenmother of Wiamoase. The
respondents are the Committee on Wiamoase stool affairs, Chieftaincy Secretariat, the
Attorney-General and Nana Pim Owusu Ansah in respect of whose destoolment these
protracted proceedings originated.
[p.326]
The facts of this case can be found in the numerous affidavits and statements filed in
support of this application. In May 1968, Obaapanin Adjoa Amponsah lodged a
complaint against Okyiame Panin of Wiamoase at the Agona (Ashanti) Traditional
Council. The council met to hear and determine the subject-matter of the complaint in
accordance with the provisions of section 15 of the Chieftaincy Act, 1961 (Act 81). On
22 July 1968, Nana Pim Owusu Ansah was declared destooled as Wiamoasehene by
the council. We are not directly concerned with the proceedings before the Agona
Traditional Council and with the question whether it was mandatory that charges should
have been preferred directly against him. However, it seems to me that the
proceedings contemplated under the Chieftaincy Act and the subsidiary legislation
made thereunder contemplate disciplinary proceedings against a chief and not a trial
eventuating in punishment. Moreover in traditional courts and tribunals, it is the real
issue that matters, and not technical rules relating to parties and procedure. The chief,
i.e. the third respondent, appealed in accordance with the provisions of section 48 (1) of
the Chieftaincy Act, 1961 (Act 81). This subsection provides as amended by the
Chieftaincy (Amendment) Act, 1964 (Act 243), that:
"48. (1) Any party to a cause or matter affecting chieftaincy who is dissatisfied with the
decision of a Traditional Council thereon may,with the leave of the Minister, appeal
against the decision by initiating proceedings before a Committee under section 35 of
this Act within two months after the giving of the decision, or such extended period as
the Minister may allow."
The applicants contend that the third respondent never obtained the leave of the
minister to file his appeal against the decision of the traditional council. The senior
assistant secretary of the office of the Prime Minister has sworn to an affidavit stating
that the said leave was obtained. He, however, does not tell us the date when such
leave was obtained. I do not think it is necessary for me to go into this aspect of the
matter at this stage. The respondent himself does not state whether he obtained the
leave of the minister or not.
The Committee of the Chieftaincy Secretariat which heard the appeal recommended to
the National Liberation Council that in their view, "the appeal should be allowed,
because the decision of the Agonahene and the council declaring the appellant
destooled was unsupported by evidence and also made without jurisdiction. It should
accordingly be set aside as null and void. To promote cordial relations between the
appellant and the Agonahene and his elders, it is recommended that there should be no
order as to costs."
The National Liberation Council in the Local Government Bulletin No. 15 of 28 March
1969 caused the following to be published at P. 110: "Finding of the Chieftaincy
Committee as confirmed by the National Liberation Council Agona (Ashanti) Traditional
Council-Wiamoasehene Stool Affairs [p.327] Entitled: Obaapanin Adjoa Amponsah,
Queenmother, Respondent versus Nana Pim Owusu Ansah, Wiamoasehene, Appellant.
Notice is hereby given under subsection (5) of section 39 of the Chieftaincy Act (Act 81)
that the following finding of the Committee consisting of J. B. Siriboe, Esq., Chairman,
Nana Kwakye Ameyaw II, Techimanhene and I. K. Agyeman, M.B.E., Esq., has been
confirmed by the National Liberation Council `That the appeal should be dismissed'.
On 22 August 1969, the Constitution of the Second Republic of Ghana as promulgated
by the Constituent Assembly came into force. On 5 September 1969, the National
Liberation Council published another notice in the Local Government Bulletin No. 37 at
p. 261 which reads:
“Finding of the Chieftaincy Committee as confirmed by the National Liberation Council
at its meeting held on the 6th August, 1969 Agona (Ashanti) Traditional Council
Wiamoasehene Stool Affairs Entitled: Obaapanin Adjoa Amponsah, Queenmother,
Respondent versus Nana Pim Owusu Ansah, Wiamoasehene, Appellant”
Notice is hereby given under subsection (5) of section 39 of the Chieftaincy Act 1961
(Act 81) that the following finding of the Committee consisting of Justice J. B. Siriboe,
Chairman, Nana Kwakye Ameyaw II, Techimanhene and I. K. Agyeman, M.B.E., Esq.,
has been confirmed by the National Liberation Council. ‘That appeal should be allowed
and in order to promote cordial relations between the appellant and the Agonahene and
his Elders there should be no order as to costs.'
This cancels the notice which appeared at page 110 of the Local Government Bulletin
No. 15 dated the 28th day of March, 1969."
It would seem that the applicants experienced considerable difficulty in deciding on what
reliefs they should seek by way of certiorari. This difficulty seems to have arisen from
the non-disclosure to them of the report and recommendations made by the Chieftaincy
Committee to the National Liberation Council. It was therefore not clear to them or to
anyone not concerned directly in the work of the Chieftaincy Committee or the National
Liberation Council whether the Chieftaincy Committee recommended that the appeal be
allowed or dismissed.
In their affidavit in support of the application for an extension of time the applicants
deposed inter alia:
"(3) That Nana Pim Owusu Ansah appealed against his destoolment to a chieftaincy
committee appointed by the National Liberation Council and after due hearing the
committee dismissed the said appeal against his destoolment and the National
Liberation Council caused notice of the said dismissal to be published in the Local
Government Bulletin No. 15 of 28 March 1969, in accordance with section 39 (5) of the
Chieftaincy Act 1961 (Act 18), . . .
(5) of Act 81 by causing the notice of 5 September 1969 to be published after final
determination of the appeal on 28 March 1959, the committee having no jurisdiction to
review their earlier finding.
(6) That suddenly and without previous notice of any proceedings [p.328] pending and
by some inexplicable event a second notice appeared in the Local Government Bulletin
No. 37 of 5 September 1969, purporting to cancel the notice of 28 March 1969, and to
allow the same appeal which had been earlier dismissed by the chieftaincy committee .
..
(9) That the Chieftaincy Committee and the National Liberation Council acted ultra vires
section 39
(10) That the whole proceeding was contrary to natural justice as neither I, nor the
respondent had notice of the second hearing of the appeal although we were entitled to
appear and be heard by virtue of section 36 (4) of Act 81."
They therefore applied for an extension of time to apply for leave to issue an order of
certiorari to remove to this court the decision of the Chieftaincy Committee on
Wiamoashene stool affairs appearing in Local Government Bulletin No. 37 of 5
September 1969.
The applicants were in this state of ignorance until the beginning of December 1970
when the first applicant swore to an affidavit to correct certain facts appearing in his
original affidavit in support of the motion herein. He stated,
"(1) That I am informed and verily believe that Nana Pim Owusu Ansah's appeal to the
Chieftaincy Committee against his destoolment was allowed but that the National
Liberation Council acting under section 39 of the Chieftaincy Act, 1961 (Act 81),
dismissed the said appeal and caused notice of the said dismissal to be published, in
accordance with section 39 (5) of the said Act 81, in the Local Government Bulletin No.
15 of 28 March 1969 . . .
(3) That I am informed and verily believe that the appellant Nana Pim Owusu Ansah
did not obtain leave of the minister to appeal against his destoolment.
Having thus been apprised of the correct facts, the applicants moved to amend both
reliefs sought and the grounds on which they are sought by amending the statement to
read:
"An order to remove into this Honourable Court and quash (i) the whole of the
proceedings and the order or finding thereon made by the Chieftaincy Committee on
Wiamoase Stool Affairs that the appeal of Nana Owusu Ansah of Wiamoase against his
destoolment should be allowed and that in order to promote cordial relations between
the appellant and the Agonahene and his elders there should be no order as to costs
and (ii) the confirmation by the National Liberation Council of the said order or finding
and its publication appearing in the Local Government Bulletin No. 37 of 5 September
1969."
[p.329]
The first question to be decided is whether the applicants have the requisite locus standi
to apply for an order of certiorari. The respondents in their affidavit in opposition to the
application raised the question directly. They said,
"That Nana Oppong Kwame II, was not a party to the dispute between Obaapanin Adjoa
Amponsah and Nana Pim Owusu Ansah, which was heard by a committee appointed by
the government from among members of the Chieftaincy Secretariat, and thus has no
right in law to bring this application seeking for a writ of certiorari; the applicant therefore
has no locus standi in this matter and that the application should be struck off with
costs against him."
The test to be applied was stated by Parker J. (as he then was) in R. v. Manchester
Legal Aid Committee; Ex parte R. A. Brand & Co., Ltd. [1952] 2 Q.B. 413 where the
learned judge at pp. 431-432 adopted the words of A. L. Smith L.J. in the case of R. v.
Nicholson [1899] 2 Q.B. 445 at pp. 470-471, C.A. saying,
"But, assuming certiorari is to be the fitting remedy, as a matter of discretion the
certiorari ought not to go. First, on the ground of delay ... and, second, on the fact that
the applicants have not shown, as it appears by Reg. v. Surrey Justices (1870) L.R. 5
Q.B. 466 they should have shown, that they have a peculiar grievance of their own
beyond some inconvenience suffered by them in common with the rest of the public."
Nana Oppong Kwame having been put on the stool in succession to the respondent and
having thereby acquired rights must be a person directly aggrieved by the decision of
the Chieftaincy Committee or the National Liberation Council allowing the appeal of the
respondent.
The respondents further argued that the applicant, Oppong Kwame, could not have
been regularly enstooled whilst the appeal of Pim Owusu Ansah, the third respondent,
was pending. They placed reliance on section 48 (2) of the Chieftaincy Act, 1961 (Act
81), which provides:
"48. (2) An appeal when brought under the preceding subsection shall, subject to the
provisions of section 56 of this Act and to any order of the Committee as to security for
costs or otherwise, operate as a stay of execution of any judgment or order given by the
Traditional Council until the appeal is finally disposed of."
This section of the Act is in pari materia with section 15 of the State Councils (Ashanti)
Ordinance, 1952 (No. 4 of 1952), now repealed, which was subjected to judicial
interpretation in the case of Amankwah v. Kyere [1963] 1 G.L.R. 409. In that case the
defendant, as Kofiasehene, agreed with his people and elders that a new ahenfie
should be built. Shortly afterwards, however, he was destooled. He appealed against
his destoolment, but while his appeal was still pending the new chief, Nana Sarfo III,
was installed as Kofiasehene in his place. The new chief then entered into a contract
with the plaintiff for the building of the ahenfie. In due course, [p.330] the defendant's
appeal was allowed and he was lawfully re-installed as Kofiasehene. By this time the
plaintiff had built a substantial portion of the ahenfie, but the defendant refused to pay
for the work done alleging that since his appeal had operated as a stay of his
destoolment, Nana Sarfo III had had no capacity to enter into contracts binding upon the
stool. The plaintiff therefore brought an action to recover his money. It was held, inter
alia, as stated in the headnote that,
"(2) A 'stay of execution' simply means to suspend the enforcement of a judgment or
order. It does not take away other rights or prevent the exercise of any remedy or right
which exists apart from the process of the court. The stay therefore could not prevent
the people from choosing a new chief during the interregnum, and once the new chief
was duly and properly installed that new chief had authority and capacity in law to enter
into an agreement binding upon the stool."
Djabanor J. (as he then was), in giving judgment for the plaintiff applied at p. 412 a
dictum of Denning J. (as he then was), in the case of Clifton Securities, Ltd. v. Huntley
[1948] 2 All E.R. 283 where the learned judge at p. 284 said,
"A stay of execution only prevents the plaintiffs from putting into operation the
machinery of law the legal processes of warrants of execution and so forth in order to
regain possession. It does not take away any other rights which they have. It does not
prevent their exercising any right or remedy which they have apart from the process of
the court."
Djabanor J. said further at pp. 412-13 that,
"It seems to me, following, . . . the dictum above quoted, that the stay of execution in
this case only prevented the defendant Nana Kofi Kyere from being ejected from the
stool house and stool farms, and saved him from being made to surrender the stool
properties to the elders who destooled him. I do not think that it kept him on the stool.
The further question now must be: Could the elders and people of Kofiase legally install
another chief while the stay of execution in respect of Nana Kofi Kyere's destoolment
was operating? Following the dictum of Denning J. (as he then was) recited above I
think the answer must be yes. Yes, because the stay of execution does not prevent the
people from exercising any right or remedy which they had apart from the normal
process of executing the decision to destool the defendant. I have no doubt that the
people have the right to choose a chief during the interregnum, and I think they can do
so in spite of the stay of execution.
It may very well be that a more satisfactory arrangement would be for a regent to be
appointed during an interregnum; the Gyasihene for example could be made to act in
the place of the destooled chief pending the hearing and determination of the appeal.
This, however, is a matter [p.331] for the policy-making bodies of the State and not a
court of law. The rights of the applicant as the newly enstooled chief would definitely be
affected by the decision of the Chieftaincy Committee and of the National Liberation
Council, and I hold therefore that he has sufficient interest in the subject-matter as to
invest him with the necessary locus standi to make this application, and further that the
mere fact that he was not a party to the original proceedings before both the traditional
council and the Chieftaincy Committee is not a fatal objection.
The next question to consider is whether the respondents are proper parties to this
application. I have no doubt whatsoever that the third respondent, Nana Pim Owusu
Ansah, is a proper party. He appealed to the Chieftaincy Committee and the decisions
of both the committee and the National Liberation Council directly affect his interests.
The position of the Attorney-General too is quite clear and no objection was taken to his
being made a party to this application. This application is questioning the validity of an
action by the National Liberation Council, the then government of the day, and I think it
is only proper that the Attorney-General, in whose name all proceedings against the
Republic may be brought, should be made a party to this application. The position of
the Chieftaincy Committee, however, must be considered in some detail.
The committee was appointed under section 34 of the Chieftaincy Act, 1961 (Act 81),
which empowered the National Liberation Council to appoint persons to exercise the
original and appellate jurisdiction in chieftaincy matters. For purposes of administration
and the processing of the necessary appeal papers and advising the National Liberation
Council generally on chieftaincy matters, a secretariat was set up with permanent
members. However, when any appeal was lodged, the National Liberation Council had
to appoint the persons who were to constitute the committee for that particular case.
The secretariat has been abolished and nothing has been substituted therefor in the
new Constitution. It is argued on behalf of the respondents therefore that no order of
certiorari can lie against it. This is a misconception. The application is not directed at
the Chieftaincy Secretariat, which was an administrative and advisory body, but at a
committee appointed to hear an appeal and report its findings to the National Liberation
Council.
It is further contended that the application cannot lie against a body which has to report
its findings to another authority which has to take the decision. Reliance is placed on
the case of Eku alias Condua III v. Acquaah [1961] 1 G.L.R. 285 (the ruling in this case
was set aside on appeal by the Supreme Court on other grounds: See Eku alias
Condua III v. Acquaah [1963] 1 G.L.R. 271, S.C.). In that case the High Court was
dealing with the provisions of the Houses of Chiefs (Amendment) Act, 1959 (No. 8 of
1959), which required the Appeal Commissioner to embody his findings in a report and
deliver it to the minister who shall refer the report to the Governor-General. The
Governor-General was given power to confirm, vary or refuse to confirm the findings in
the report, or remit it to the Appeal Commissioner for further consideration. It also
provided that the decision of the Governor-General shall be published in the Gazette,
and when so [p.332] published shall be final and conclusive. Charles J. in giving his
ruling that certiorari does not lie to such a body said at p. 291,
"It is clear that in order to come within the category of a judicial or quasi-judicial tribunal
or authority to whom certiorari may issue, the authority must have the power to
determine questions affecting rights of parties; see R. v. Metropolitan Police
Commissioner, ex p. Parker [1953] 2 All E. R. 717. Unless there is an order or
determination by the body, certiorari will not lie."
The learned judge relied on the case of R. v. Statutory Visitors to St. Lawrence Hospital,
Caterham; Ex parte Pritchard [1953] 2 All E.R. 766. In that case the visitors under
section 11 (4) (a) of the Mental Deficiency Act, 1913 (3 & 4 Geo. 5, c. 28), examined an
infant and submitted a special report to the Board of Control, recommending that the
detention order should be extended. Certiorari to quash the report of the visitors was
refused on the ground that under section 11 (2) of the Act, it was for the Board of
Control and not the visitors to decide whether the continuance of the detention order
was necessary in the interests of the infant and to make an order for that purpose. The
visitors had no power to come to a decision and did not constitute a tribunal. The report
was simply a recommendation and contained the evidence to enable the board to come
to a decision.
With the greatest respect to the learned trial judge, I do not share his views. There is a
clear distinction between reports which are merely advisory and in respect of which
certiorari will not ordinarily lie, and reports and recommendations which will in fact
operate, with or without modification, after approval by another authority. Where the
National Liberation Council confirms a recommendation under the Chieftaincy Act,
1961, it is the recommendation of the Chieftaincy Committee which in fact operates. It
is quite clear from the publications in the Local Government Bulletin that the findings of
the Chieftaincy Committee as confirmed, varied or amended are to operate. I find
support for this view in the words of Lord Parker C.J. in the recent important case of R.
v. Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 Q.B. 864. He said at p.
881.
"Indeed in the Electricity Commissioners case ([1924] 1 K.B. 171), the rights
determined were at any rate not immediately enforceable rights since the scheme laid
down by the commissioners had to be approved by the Minister of Transport and by
resolutions of Parliament. The commissioners nevertheless were held amenable to the
jurisdiction of this court. Moreover, as can be seen from Rex v. Post master-General,
Ex parte Carmichael [1928] 1 K.B. 291 and Rex v. Boycott, Ex parte Keasley [1939] 2
K.B. 651, the remedy is available even though the decision is merely a step as a result
of which legally enforceable rights may be affected."
The next question for determination is whether where a finding or decision of one body
is subject to confirmation of another superior authority, and the superior authority has in
fact confirmed the finding or [p.333] decision certiorari can issue to quash the
proceedings before the inquiring body. In the case of Banks v. Transport Regulation
Board (1968-69) 42 A.L.J.R. 64, the Transport Board had revoked the taxi-cab licence
of the applicant. The decision of the board was subject to confirmation by the
Governor-in-Council; the Governor-in-Council had confirmed the decision of the board.
The appellant applied for an order of certiorari to quash the order of the board. The
Supreme Court of the State of Victoria upheld the board's preliminary objection that
since the Governor-in-Council had confirmed the decision, certiorari would not lie. On
appeal, the High Court of Australia held that the fact that the Governor-in-Council had
made an order approving the decision of the board did not deprive the appellant of the
protection of the prerogative writ of certiorari against the proceedings of the board.
Again in Ridge v. Baldwin [1964] A.C. 40, H.L., the appellant's appointment as a chief
constable of a borough police force was subject to the Police Acts and regulations. He
was dismissed for negligence by the watch committee after criminal proceedings in
which he was acquitted. It is not necessary to go into the facts of these prosecutions.
Section 191 (4) of the Municipal Corporations Act, 1882 (45 & 46 Vict., c. 50), provides
that:
"The watch committee . . . may at any time suspend, and . . . dismiss, any borough
constable whom they think negligent in the discharge of his duty, or otherwise unfit for
the same."
The appellant appealed against his dismissal to the Home Secretary under the Police
(Appeals) Act, 1927 (17 & 18 Geo. 5, c. 19), and the regulations made thereunder.
Section 2 (2) of the Act provides thus:
"The Secretary of State after considering the notice of appeal and any other documents
submitted to him by the appellant and the respondent . . . and the report (if any) of the
person or persons holding the inquiry shall by order either—
(a) allow the appeal; or
(b) dismiss the appeal; or
(c) vary the punishment . . ."
And by section 2 (3) it is provided that the decision upon such appeal by the Secretary
of State is to be "final and binding upon all the parties." The Home Secretary's decision
was that there was sufficient material on which the watch committee could properly
exercise their power of dismissal under section 191 (4), and accordingly dismissed the
appeal. It was held that this did not prevent a challenge to the validity of the decision of
the watch committee.
In the present application, the report of the Chieftaincy Committee had been dealt with
by the National Liberation Council and I do not think that factor alone would preclude
this court from issuing an order of certiorari to quash the proceedings of the Chieftaincy
Committee.
The next point of substance and importance to consider is whether the decision or act
of the National Liberation Council in confirming or varying or amending the report of the
Chieftaincy Committee can itself [p.334] be quashed by an order of certiorari. The
answer, it is submitted for the Attorney-General, turns on whether or not the act of the
National Liberation Council can be termed ministerial and administrative, or judicial or
quasi-judicial. Section 39 of the Chieftaincy Act, 1961, prescribes what the National
Liberation Council were to do with the report of the Chieftaincy Committee. It provides,
"(2) If it appears to the National Liberation Council that the findings in the report are
correct they shall confirm the report.
(3) If it appears to the National Liberation Council that the findings are substantially
correct, but require to be varied in certain respects they shall confirm the findings as so
varied.
(4) In any other case the National Liberation Council shall either remit the matter to the
Committee for further consideration and the taking of such further evidence as the
National Liberation Council may direct, or shall amend the findings as they think fit.”
It is quite clear that the National Liberation Council was to determine the correctness or
otherwise of the findings contained in the report. I think it is too late in the day to hold
that certiorari does not lie against such a body. In Ahenkora v. Ofe (1957) 3 W.A.L.R.
145, C.A., Granville Sharp J.A. said at pages 150-151:
"It is clear from the wording of the section [section 8 of State Councils (Southern
Ghana) [Ordinance] that it is the duty of the Governor upon a consideration of the
report to decide between four courses: rejection, variation, confirmation of the findings
of the report, or whether to remit for further hearing upon directions. In arriving at his
decision I would hold that he must act judicially without taking into consideration
extraneous or irrelevant matters.
The decision is followed by a purely administrative act, namely, the announcement of
his decision in the Gazette to which I have referred . . .
I do not think that it can be questioned that the committee of inquiry is a judicial
tribunal, and I am of opinion that the Governor's act in considering the report of the
committee and deciding what step to take upon it is part and parcel of the inquiry;
necessary to effect its purpose. The decision must be made judicially and without
consideration of extraneous or irrelevant matters and is a judicial act."
I think that most of these objections have been taken because of some misconception
of the scope of the order of certiorari which has been brought about by the way and
manner the English courts had hitherto treated Lord Atkin's famous dictum in R. v.
Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920), Ltd.
[1924] 1 K.B. 171, C.A. His pronouncement had hitherto been considered as the locus
classicus on the subject. However, later cases have shown that the scope of certiorari
is considerably wider than what the courts had thought, and [p.335] several unrealistic
and technical anomalies formerly though inherent in certiorari proceedings have been
swept away. In the R. v. Electricity Commissioners case (supra) Atkin L.J. (as he then
was) said at page 205:
"Wherever any body of persons having legal authority to determine questions affecting
the rights of subjects, and having the duty to act judicially, act in excess of their legal
authority they are subject to the controlling jurisdiction of the King's Bench Division
exercised in these writs."
This statement used to be read as exhaustive of the scope of prohibition and certiorari,
although it was always conceded that they were also available on grounds other than
excess of jurisdiction, namely, error of law on the face of the record and denial of
natural justice. As a result, it was accepted that the writs would issue only in respect of
a body of persons whose authority was legal in the sense of statutory; whose authority
was to determine questions, not simply to investigate or advise or recommend; whose
authority was only to determine questions affecting rights not licences or lesser
interests; and who were under the duty to act judicially as a result of a clear indication in
the legislation that the power should be exercised in a judicial manner such indication
could seldom simply be implied from the nature of the power itself but must be found
super added to it.
Recently the requirement of super-added duty to act judicially has been disclosed as a
heresy in Ridge v. Baldwin (supra) and Durayappah v. Fernando [1967] 2 A.C. 337,
P.C. Thus it seems that the courts will proceed now on a presumption that certain types
of power must be exercised in accordance with the rules of natural justice, and thus,
prima facie come within the scope of certiorari, unless Parliament has shown a clear
intention to the contrary.
In Ghana, the Constitution, 1969, has put certain fetters on the right of Parliament to do
so-see article 173 of the Constitution. However, even in England it seems that the
courts are re-asserting their ancient powers to prevent abuse of power. In the case of
In re H.K. (An infant) [1967] 2 Q.B. 617, Lord Parker C.J. dealing with the powers and
duties of immigration officers under the Commonwealth Immigrants Act, 1962 (10 & 11
Eliz. 2, c. 21), said at p. 630:
"I myself think that even if an immigration officer is not in a judicial or quasi-judicial
capacity, he must at any rate give the immigrant an opportunity of satisfying him of the
matters in the subsection, and for that purpose let the immigrant know what his
immediate impression is so that the immigrant can disabuse him. That is not, as I see
it, a question of acting or being required to act judicially, but of being required to act
fairly. Good administration and an honest or bona fide decision must, as it seems to
me, require not merely impartiality, nor merely bringing one's mind to bear on the
problem, but acting fairly; and to the limited extent that the circumstances of any
particular case allow, and within the legislative framework under which [p.336] the
administrator is working, only to that limited extent do the so called rules of natural
justice apply, which in a case such as this is merely a duty to act fairly. I appreciate that
in saying that it may be said that one is going further than is permitted on the decided
cases because heretofore at any rate the decisions of the courts do seem to have
drawn a strict line in these matters according to whether there is or is not a duty to act
judicially or quasi-judicially."
Salmon L.J. in the same case at p. 633 said:
"Of course, an immigration officer is acting in an administrative rather than a judicial
capacity. What, however, is a quasi-judicial capacity has, so far as I know, never been
exhaustively defined. It seems to me to cover at any rate a case where the
circumstances in which a person who is called upon to exercise a statutory power and
make a decision affecting basic rights of others are such that the law impliedly imposes
upon him a duty to act fairly."
Blair J. put the matter beyond doubt when he said at p. 636:
"I would only say that an immigration officer having assumed the jurisdiction granted by
those provisions is in a position where it is his duty to exercise that assumed
jurisdiction, whether it be administrative, executive or quasi-judicial, fairly, by which I
mean applying his mind dispassionately to a fair analysis of the particular problem and
the information available to him in analysing it. If in any hypothetical case, and in any
real case, this court was satisfied that an immigration officer was not so doing, then in
my view mandamus would lie."
The process of liberalisation is by no means complete. In the infant democracy of
Ghana it is exceptionally important that the courts should not put fetters on their own
ability to protect the fundamental human rights so admirably enshrined in the
Constitution of the Second Republic, by adopting highly technical and artificial
limitations on their powers, limitations which are being rapidly discarded even in
monarchial regimes. Democracy in the last analysis, receives its sustenance from
remedial laws and procedures; it is the availability of effective and reasonably quick
remedies for doing justice that gives meaning to democracy. The High Court of Ghana
has been given power under article 28 of the Constitution to issue writs and orders in
the nature of habeas corpus, certiorari,etc., as it may consider appropriate for the
purposes of enforcing, or securing the enforcement of fundamental human rights. It has
also been given supervisory powers over all adjudicating authority under article 114 of
the Constitution exercisable by the same writs and orders. To restrict these powers by
adopting self-imposed limitations would considerably impair the power of the courts to
perform and fulfil their duties of securing the enforcement of fundamental freedoms and
supervising other adjudicating authorities. I do not propose to do so.
[p.337]
Having decided that the proper parties are before the court, and further that certiorari
can properly issue to quash the proceedings of the Chieftaincy Committee and the
National Liberation Council, I must now consider whether the facts in this case warrant
such an order as the one prayed for. As I have said it seemed that the applicants were
in some difficulty as to what to include in their statement because of the non availability of the record of the proceedings before the Chieftaincy Committee. They
were therefore constrained, when at last apprised of the real and correct position, to
apply for leave to amend their statement and file a supplementary affidavit. I decided to
hear arguments before deciding to grant leave to amend, I now grant the leave. I do so
because from the arguments, it seems clear to me that something went wrong in the
proceedings somewhere, and that the National Liberation Council might have acted
without jurisdiction in deciding to reverse their earlier decision, in which case I would
consider the applicants entitled to have the order of certiorari issue ex debito justitiae.
The respondents have taken the point that it is mandatory for the applicants to exhibit a
copy of the proceedings which they seek to quash and rely on Order 59, r. 7 (1) of the
Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). It provides: [His
lordship here read the provisions as set out in the headnote and continued: ]
I am of the view that the words "a copy thereof" appearing in this rule refer to the order,
commitment, etc., and not to the proceedings. The applicants filed copies of the notices
published by the National Liberation Council on 28 March 1969, and 5 September
1969. I am also satisfied with the explanation for their inability to produce the record of
the proceedings.
In R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 All
E.R. 122 at pp. 129-130, C.A., Denning L.J. (as he then was), discussed exhaustively
the procedures adopted by the King's Bench in its early days in applications for
certiorari and prohibition. He said:
"Next I will turn to the orders of justices in civil matters. The Court of King's Bench was
never so strict about these as it was about convictions. It did not require a detailed
speaking record to be sent up to them. The record had to contain everything necessary
to show that the justices had jurisdiction to deal with the matter, and it had to set out
their adjudication, but it was not necessary to set out either the evidence or the
reasons. If a point of law arose, however, on which either party desired the ruling of the
King's Bench, he could ask the justices to make a speaking order, that is, to make a
special entry on the record of the reasons for their judgment ... I now come to the
orders of statutory tribunals. The Court of King's Bench has from very early times
exercised control over the orders of statutory tribunals, just as it has done over the
orders of justices. The earliest instances that I have found are the orders of the
commissioners of [p.338] sewers, who were set up by statute in 1531 to see to the
repairs of sea walls and so forth. The Court of King's Bench used on certiorari to quash
the orders of the commissioners for errors on the face of them, such as when they failed
to set out the facts necessary to show that they had jurisdiction in the matter, or when
they contained some error in point of law... It appears that the Court of King's Bench
always insisted that the record should contain, or recite, the document or information
which initiated the proceedings and thus gave the tribunal its jurisdiction and also the
document which contained their adjudication."
In this case, it is stated that the report of the Chieftaincy Committee incorporating their
proceedings and findings were sent to the National Liberation Council and are not
available to the parties. I would have ordered its production in court, if the secretary to
the committee had not himself filed a copy of these proceedings. A perusal of this
report does not show the facts necessary to show the jurisdiction of the Chieftaincy
Committee in this matter. The Chieftaincy Act, 1961, is quite explicit in requiring the
leave of the minister before any appeal is brought to the Chieftaincy Committee. As I
have said, the report of the committee nowhere shows that such leave was applied for
or obtained, and if so when. The secretary has, however, sworn to an affidavit that the
leave was given, and the applicants have denied this. The third respondent, who was
the appellant has kept a judicious silence on this matter. In view of what I am about to
say I do not think it would be necessary to decide the question whether leave was
obtained or not. I would however say that where an inferior tribunal asserts jurisdiction
in any matter, the burden is on those who claim that that tribunal has the requisite
jurisdiction to prove it. In this, the position of the superior courts is different. There the
burden is on the party who asserts that the superior court had no jurisdiction to establish
a lack of jurisdiction. I might have, therefore, if I was minded to decide this question,
ordered a further inquiry into the question whether leave of the minister was obtained or
not. It would then have been necessary to produce an authenticated copy of the
minister's order granting leave to appeal. I would not have considered as sufficient an
affidavit of the secretary attached to the Chieftaincy Secretariat.
The National Liberation Council considered the report of the Chieftaincy Committee
and published their decision in the Local Government Bulletin of 28 March 1969,
dismissing the appeal. It has been urged before me that the National Liberation Council
had no power to reverse or set aside the findings of the Chieftaincy Committee because
their powers are limited to confirming the decision, varying it, amending it, or remitting
the same to the committee for further evidence. This point was raised in the case of
Blewey v. Assuah, High Court, Sekondi, 27 October 1967, unreported; digested in
(1968) C.C. 31. There Archer J. (as he then was) said,
"In this respect I think the word amend has been used in a different sense from the word
vary in subsection (3). The word’ amend' in the context must not be given a narrow
meaning but a very wide meaning [p.339] to embrace `to change completely,' or
`substitute something different.' This is so because if the council is of the opinion that
the findings are not substantially correct or not correct at all, and I repeat not correct at
all, it can only substitute what is correct.... My intuitive conviction is that draftsman in his
enthusiasm to save words and not to be labour the courts with elaborate construction of
a multiplicity of verbs, chose the word ‘amend’ for simplicity and brevity in the hope that
word would be construed in the light and context of the whole of section 39 of the Act."
I agree with the observations of the learned judge and I hold that the National Liberation
Council was entirely within its powers to reverse the findings of the Chieftaincy
Committee if so minded, and dismiss the appeal.
Now having dismissed the appeal and having had it published in the Local Government
Bulletin of 28 March 1969, the decision was by the operation of section 39 (5) final and
conclusive. On 5 September 1969, the National Liberation Council published another
decision cancelling the first one. The question is whether the National Liberation
Council had power to take another decision in the matter and have it published.
It is contended before me that the National Liberation Council discovered that it had
made a mistake and sought to correct that mistake by publishing the second decision.
There is no dispute that the National Liberation Council took a decision at first that the
appeal should be dismissed. The secretary in his affidavit puts this beyond
controversy. He states: . . .
"(9) That the National Liberation Council decided that the appeal should be dismissed.
(10) That the Chieftaincy Secretariat caused a publication to this effect to be made in
the Local Government Bulletin No. 15 dated 28th March, 1969"
The Secretary has sought to explain what happened in his affidavit, where he states:
"(11) That after the said publication, the Chieftaincy Secretariat informed the National
Liberation Council that its decision was not in accordance with the findings of the
committee.
(12) That the National Liberation Council realising its mistake, corrected it by confirming
the original finding of the Chieftaincy Committee, that the appeal should be allowed and
in order to promote cordial relations between the appellant and the Agonahene and his
elders, there should be no order as to costs."
It will be seen therefore, that the first publication was in actual fact the decision of the
National Liberation Council. The secretary does not suggest that the Chieftaincy
Secretariat in publishing the decision made a mistake in publishing a wrong one. What
is suggested is that the National Liberation Council were persuaded by the Chieftaincy
Secretariat that they had [p.340] made a mistake. I do not think that the National
Liberation Council having published its decision was clothed with the necessary
authority to review it again. I hold therefore that the decision which was published on 5
September 1969 was ultra vires and void.
I would further hold that even if the National Liberation Council had the necessary
authority to review its decision, elementary justice demanded that the parties should
have been heard. It is a different proposition to suggest that in considering the report of
the Chieftaincy Committee the parties need not be heard. At that stage none of the
parties knew of the findings of the commissioner and it may very well be that the rules of
natural justice would not apply at that stage. I leave this point open. However, when the
decision has been published and rights have been acquired thereunder, I do not think it
is a proper exercise of power,whether it be administrative, ministerial or judicial, to
reverse that decision without affording the parties any hearing. I think the ordinary man
in the street would think it strange to say the least, that a person acquitted by a court on
a charge has been carried off to jail on the same charge because the judge had
surreptitiously amended his finding some six months later. What to the man in the
street would be offensive to current ideas of fair play and justice would weigh
considerably with the courts in deciding whether justice has been done according to
law: See Aidoo v. C.O.P. (No.3) [1964] G.L.R. 354, S.C. decided by the Supreme Court
on 22 May 1964. I would grant the application and quash by certiorari, the decision of
the National Liberation Council published in the Local Government Bulletin dated 5
September 1969. The applicants will have their costs which I assess at N¢200.00.
DECISION
Application granted. Second decision of National Liberation
Council quashed.
K.T.