HACKMAN AND OTHERS vs. OBRESI V AND OTHERS [1980]DLHC1586

Date	1980-09-25
Suit No.
Citation No.	[1980]DLHC1586

TWUMASI J.

EWUSI-WILSON FOR THE APPLICANT.

A. H. SACKEYFIO FOR THE RESPONDENTS.

[1980]DLHC1586
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													<main id="main" class="content" style="min-height: 60rem" >HACKMAN AND OTHERS <o:p></o:p>vs. <o:p></o:p>OBRESI V AND OTHERS<o:p></o:p>[HIGH COURT, CAPE COAST] <o:p></o:p>[1980] GLR 658<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:
25
SEPTEMBER 1981<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">

EWUSI-WILSON FOR THE APPLICANT.<o:p></o:p>

A. H. SACKEYFIO 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">

TWUMASI J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TWUMASI J.<o:p></o:p>This is
an application for an order of interim injunction in the nature of quo warrant
to restrain the defendants from celebrating an annual festival at Otuam. The
major burden of this proceeding, is to inquire whether or not there is a chief
at Otuam in the Ekumfi Otuam Traditional Area. The plaintiff in this case
contends that there has been no chief at Otuam since the death of Nana Ewusi
Kwansa XIII, the former occupant of the Otuam stool. The defendants deny this
allegation. Pending the final determination of the suit, the plaintiff seeks an
interim injunction to restrain the defendants from celebrating the annual
festival of Otuam known as the Akwambo festival. One fact which is judicially
noticed is that in the traditional set-up of this country. The celebration of a
festival is an important customary function in which the chief of the area
concerned plays a vital and an indispensable role. He has a very sacred role to
play in the performance of customary rites. The plaintiff’s case is that since
there is no chief at Otuam, the annual Akwambo festival cannot be celebrated by
the defendants who contend that there is a chief at Otuam; and that he is Nana
Ewusi Kwansa XIII who is competent to authorise the celebration of the said
festival. The defendants say that the latter has been nominated, elected and
installed as the chief of Otuam and the application being made by the plaintiff
is incompetent. The defendants also submit that inasmuch as the applicant did
not seek leave of the court by an ex parte motion, the application is
incompetent. I, however, overruled the latter submission on the ground that
failure to seek prior leave of the court was not such a serious irregularity as
to vitiate the proceedings if the court felt that there was a certain degree of
urgency about the application and also if the application was in the court’s
view not frivolous and vexatious.<o:p></o:p><o:p>&nbsp;</o:p>With
regard to the main issue, it has been submitted on behalf of the defendants
that this court has no jurisdiction to entertain it. The argument is that it is
a cause or matter affecting chieftaincy in which the traditional council or the
Central Regional House of Chiefs has exclusive jurisdiction. I do not venture
to quarrel or refute the argument that the High Court or, for that matter, the
ordinary courts lack jurisdiction to entertain causes and matters affecting
chieftaincy. This question has been settled by the Court of Appeal in the case
of Tobah v. Kwekumah [1981] G.L.R. 648, C.A. Section 15 (1) of the Chieftaincy
Act, 1971 (Act 370), grants to traditional councils this exclusive
jurisdiction. But section 66 of the Act defines cause or matter affecting
chieftaincy, among other things, as:<o:p></o:p>“. . .
any cause, matter, question or dispute relating to any of the following:<o:p></o:p>(a) the
nomination, election, appointment or installation of any person as a Chief or
the claim of any person to be nominated, elected, appointed or installed as a
Chief.”<o:p></o:p><o:p>&nbsp;</o:p>This
definition is quite clear and unambiguous. But sight should not be lost of the
supervisory jurisdiction of the High Court. Nor should it be forgotten that
chieftaincy affairs are governed by statute and that the High Court in exercise
of its supervisory jurisdiction, has power to issue injunction to prevent any
person from exercising functions which he is not entitled to exercise under a
statute. Every jurisdiction is prescribed by statute. The Chieftaincy Act,
1971, is an Act of Parliament which creates the office of a chief and defines
who is a chief. Section 48 (1) of the Act defines a chief as:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“ . . .
an individual who has, in accordance with customary law, been nominated,
elected and installed as a Chief or as the case may be appointed and installed
as such and whose name for the time being appears as a Chief on the National
Register of Chiefs:<o:p></o:p><o:p>&nbsp;</o:p>Provided
that no person shall be deemed to be a Chief for the purposes of the exercise
by him of any function under this Act or under an</main>