REPUBLIC vs. KOMENDA TRADITIONAL COUNCIL AND ANOTHER; EX PARTE PRAH II [1980]DLHC1632

Date	1980-05-28
Suit No.
Citation No.	[1980]DLHC1632

OSEI-HWERE J.

J. B. SHORT FOR THE APPLICANT.

SAM BADDOO FOR THE FIRST RESPONDENT.

J. D. HAMMOND FOR THE SECOND RESPONDENT.

[1980]DLHC1632
																																						<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" >REPUBLIC <o:p></o:p>vs. <o:p></o:p>KOMENDA TRADITIONAL COUNCIL AND ANOTHER; EX PARTE PRAH II<o:p></o:p>[HIGH COURT, CAPE COAST] <o:p></o:p>[1980] GLR 759<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:
28 MAY 1980<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">

J. B. SHORT FOR THE APPLICANT.<o:p></o:p>

SAM BADDOO FOR THE FIRST RESPONDENT.<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">

OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>Kwesi
Essiah, the plaintiff, issued a writ against Nana Kweku Prah II, the defendant,
for a declaration that his purported destoolment as the Ebusuapanyin of the
Nsona Stool Family of Dominase by the defendant is null and void. The action
was commenced before the judicial committee of the Komenda Traditional Council
and it was pending there as a part-heard suit, when the defendant, the
applicant herein, brought the instant motion seeking an order of prohibition to
stop the judicial committee of the Komenda Traditional Council from further
hearing the suit. The ground on which the relief is sought (as amended) is
stated 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">“The
subject-matter of the suit not being a matter of constitutional nature within
the meaning of section 66 of the Chieftaincy Act, 1971 (Act 370), the council
cannot invoke the provisions of section 28 (1) as on attached writ of summons.”<o:p></o:p><o:p>&nbsp;</o:p>The main
argument of the applicant’s counsel is that the plaintiff, Kwesi Essiah
(hereinafter to be referred to as the respondent) not being a chief, his
removal as head of family would not entitle him to issue a writ before the
judicial committee of the traditional council, as its jurisdiction is limited
to causes or matters affecting chieftaincy within the definition in section 66
of the Chieftaincy Act, 1971. Counsel for the applicant does not deny the
inherent jurisdiction of the traditional council to go into the respondent’s
complaint in a customary manner, but contends that the exercise of this
jurisdiction should be without recourse to initiating proceedings by a writ to
compel the attendance of the defendant in the suit as contemplated under
section 28 (1) of Act 370.<o:p></o:p><o:p>&nbsp;</o:p>It is
axiomatic to state that nothing is within the jurisdiction of an inferior
tribunal save that which has been expressly conferred on it by statute. It was,
however, recognised by Ollennu J. (as he then was) in Adoko v. Edu (1958) 3
W.A.L.R. 441 that a state council, as the highest council in the state, had
inherent jurisdiction and powers to hear and determine matters which cannot be
described as “matters of a constitutional nature” (as defined under the then
relevant Ordinance, i.e. the Southern Ghana) States Councils Ordinance, 1952
(c. 8 of 1952), and which were in no way affected by the enactment of the said
States Councils Ordinance. He thought, however, that the procedural means for
exercising such inherent jurisdiction which is over and above that conferred by
the Ordinance might be found within section 32 of the Ordinance which imposed a
duty on every person who is subject to the jurisdiction of a state council or a
chief, to assist in carrying out the duties imposed upon such state councils or
chiefs by the Ordinance or by customary law when required to do so, on pain of
committing the offence prescribed in section 32 (2). These relevant provisions
are now preserved in section 17 of Act 370.<o:p></o:p><o:p>&nbsp;</o:p>This pet
proposition of the applicant’s counsel about the inherent powers of traditional
councils which Ollennu J. adumbrated in Adoko v. Edu (supra) was also brought
up by counsel before me in the case of Republic v. Central Regional House of
Chiefs; Ex parte Anfoh VIII, High Court, Cape Coast, 29 June 1979, unreported.
There I expressed the view that where an enactment has excluded the judicial
committee of the Central Regional House of Chiefs from exercising jurisdiction
in a cause or matter affecting chieftaincy, it cannot pretend to assume
jurisdiction over the matter under its inherent jurisdiction.<o:p></o:p><o:p>&nbsp;</o:p>The
decisive question in this motion is whether or not the respondent, as the
Ebusuapanyin of the Nsona Stool Family of Dominase, is a “chief “whose removal
or destoolment can be the subject of inquiry and adjudication by the judicial
committee </main>