ODARTEI III vs. BADOO ALIAS KOBLA II [1977]DLHC1382

Date	1977-06-07
Suit No.
Citation No.	[1977]DLHC1382

GRIFFITHS-RANDOLPH J.

M. A. METTLE (NII APONSAH WITH HIM) FOR THE APPLICANT.

T. A. NELSON-COFIE FOR THE RESPONDENTS.

[1977]DLHC1382
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >ODARTEI III <o:p></o:p>vs. <o:p></o:p>BADOO ALIAS KOBLA II <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1977]2 GLR 1<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
7 JUNE 1974<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

M. A. METTLE (NII APONSAH WITH HIM) FOR THE
APPLICANT.<o:p></o:p>

T. A. NELSON-COFIE FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

GRIFFITHS-RANDOLPH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF GRIFFITHS-RANDOLPH J.<o:p></o:p>On 15
January 1974, Nii Aponsah, solicitor on behalf of Nii Odartei III, filed a
motion on notice, “for orders under section 26 of the Arbitration Act, 1961
(Act 38), and under Order 64, r. 13 of the High Court (Civil Procedure) Rules,
1954 (L.N. 140A), to stay execution by the Ga Mantse, his servants or agents
and by the Commissioner responsible for Chieftaincy Affairs pursuant to the Ga
Mantse’s award dated 17 November 1973 and for a further order to set aside the
award aforesaid for want of or excess of jurisdiction and other errors of law.”<o:p></o:p><o:p>&nbsp;</o:p>The
motion paper was accompanied by an affidavit sworn to by the applicant and
photostat copies of a “petition against pending arbitration” addressed to the
Ga Mantse by the applicant dated 14 November 1973, and the arbitration award by
the Ga Mantse dated 17 November 1973. An affidavit in opposition by the Ga
Mantse’s secretary, Nii Nuacoo Nunoo, was also filed on 2 April 1974.<o:p></o:p><o:p>&nbsp;</o:p>When Nii
Aponsah, counsel for the applicant moved the court on 5 April 1974, he
explained that the applicant had been assaulted by the respondent, R. A. Badoo,
during the last Homowo festival; but that the Ga Mantse, who was to arbitrate
over the matter of the assault, had “manifested an intention to deprive the
applicant of his status as the sub-chief of Odarteiman” in the arbitration
award; and that the Ga Mantse had thereby exceeded his authority, because the
status of a chief was a cause or matter affecting chieftaincy: vide section 113
(1) of the Courts Act, 1971 (Act 372), and section 66 of the Chieftaincy Act,
1971 (Act 370). He drew attention to the fact that a “cause or matter affecting
chieftaincy” had received judicial consideration in Republic v. Kumasi
Traditional Council; Ex parte Nana Kofi Dei (1973) 2 G.L.R. 73, C.A. and Anin
v. Ababio (1973) 1 G.L.R. 509. He also pointed out that a “cause or matter
affecting chieftaincy” was to be dealt with by the judicial committee of a
traditional council: vide sections 15 (1) and 28 (2) of Act 370; regulation 2
of the Chieftaincy (Proceedings and Functions) (Traditional Councils)
Regulations, 1972 (L.I. 798); Republic v. Western Nzima Traditional Council; Ex
parte Nana Kpani Ackah III [1973] 2 G.L.R. 107, and that the heading of the
arbitration award showed clearly that it was not an award of the Ga Traditional
Council, so that the award had been improperly procured and should be set aside
for want of jurisdiction: vide section 26 (2) of Act 38; Order 64, r. 13 of
L.N. 140A; Tomfo v. Awona [1973] 2 G.L.R. 437; Republic v. Volta Region
Chieftaincy Committee; Ex parte Asor II [1972] 1 G.L.R. 273 and Republic v.
Tekperbiawe Divisional Council; Ex parte Nene Korle II [1972] 1 G.L.R. 199.<o:p></o:p><o:p>&nbsp;</o:p>Further
hearing was then adjourned to 8 April 1974, when Nii Aponsah, counsel for the
applicant, referred to Tularley v. Abaidoo [1962] 1 G.L.R. 411, S.C.; Aschkar
v. Karam [1972] 1 G.L.R. 1, C.A.; Bakuma v. Ekor, [1972] 1 G.L.R. 133, C.A.;
MacFoy v. United Africa Co., Ltd. [1962] A.C. 152, P.C. and Attorney-General v.
Lord Hotham (1823) 1 Turn. &amp; R. 209, C.A. in which he said the court had
held that “if a limited tribunal exercises jurisdiction which does not belong
to it, the decision amounts to nothing and does not create the necessity of an
appeal.”<o:p></o:p><o:p>&nbsp;</o:p>He also
contended that as section 5 (2) of the Arbitration Act, 1961 (Act 38), did not
entitle an arbitrator to make an award in the nature of a judgment in rem, the
award in this case, which amounted to a decision affecting the status of a
person, flouted that Act; and he explained that the private name of the
applicant had been stated as Jonas Odartei Lamptey in the Local Government
Bulletin No. 44 of 28 September 1973, which had also described his status as
elder of Odarteiwe, thus reducing the applicant’s status. He referred, too, to
the case of Amoku v. Duro (1953) 14 W.A.C.A. 257, and added that the merits of
the award had been founded on a false premise or assumption. He submitted that
“a decision made without jurisdiction cannot found an estoppel, nor where
jurisdiction has been exceeded.”<o:p></o:p><o:p>&nbsp;</o:p>