REPUBLIC vs. STOOL LANDS BOUNDARIES SETTLEMENT COMMISSION; EX PARTE ASIBU [1981]DLHC2189

Date	1981-02-09
Suit No.
Citation No.	[1981]DLHC2189

CECILIA KORANTENG-ADDOW J.

B. J. DA ROCHA FOR THE APPLICANT.

NO REPRESENTATION FOR THE RESPONDENT.

[1981]DLHC2189
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC <o:p></o:p>vs. <o:p></o:p>STOOL LANDS BOUNDARIES SETTLEMENT COMMISSION; EX PARTE ASIBU <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1982-83] GLR 1040<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:
9 FEBRUARY 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">

B. J. DA ROCHA, FOR THE APPLICANT. <o:p></o:p>

NO REPRESENTATION FOR THE 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">

CECILIA KORANTENG-ADDOW J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF KORANTENG-ADDOW J.<o:p></o:p>By
article 114 (1) of the Constitution, 1979 the judicial power of Ghana is vested
in the judiciary, and no organ or agency of the executive or legislature has
any final judicial, power. The Stool Lands Boundaries Settlement Decree, 1973
(NRCD 172), s. 4 confers judicial power on the Stool Lands Boundaries
Settlement Commissioner to hear and determine questions or disputes relating to
the boundaries of stool lands. In this application, Mr. da Rocha has submitted
that NRCD 172 is inconsistent with article 114 of the Constitution, 1979
because the commissioner is an organ or agency of the Ministry of Lands which
is part of the executive. He has therefore called upon the court to prohibit
the commissioner from hearing this case and to refer the matter to the Supreme
Court for its opinion.<o:p></o:p><o:p>&nbsp;</o:p>The
applicant in this matter is one of the parties in a boundary dispute which is
before the commissioner.<o:p></o:p>The
dispute is entitled: “In the matter of the boundary dispute between Gomoa
Fetteh and Awutu and Co. and (1) Nai Odupong Awushie Tetteh II, Ebla Odefey of
Awutu Traditional Area, Awutu, (2) Nai Kwaku Bentum II, Ema Twufi Odefey of
Awutu and Wulomo Mensah of Amanfrom Odupong-Kpehe Market (Kasewa), Senya Breku
Paramount Stool . . .” During the course of the hearing by the commissioner,
counsel drew his attention to the provisions of the Constitution, 1979, and
invited him to refer the matter to the Supreme Court under article 118(2) of
the Constitution, 1979. The commissioner ruled that he has jurisdiction and
proceeded to hear the matter. But in fairness to him, Mr da Rocha told the
court that since this application was served on the commissioner, he has
suspended further hearing pending the outcome of these proceedings.<o:p></o:p><o:p>&nbsp;</o:p>I must
say that there are no counter arguments to these submissions. Even though an
affidavit in opposition was filed on behalf of the respondent by the registrar
of the commissioner, the Attorney-General’s representative who has been
appearing on his behalf did not attend court to reply to submissions by counsel
for the applicant. So I had no assistance from that quarter. I was constrained
to hear the matter after some adjournments.<o:p></o:p><o:p>&nbsp;</o:p>There is
no dispute about the status of the Stool Lands Boundaries Settlement Commissioner.
It is an administrative tribunal, and from the provisions of the NRCD 172, it
is plain that it is enmeshed in the administrative machinery of the Ministry of
Lands and an agency or organ of that ministry. Even though the commissioner is
appointed by the government on the advice of the Judicial Council, when he
wants to resign his office, the letter of resignation shall be addressed to the
Minister of Lands and he may be removed or suspended from office by the
Minister responsible for Lands, with the approval of the government: see
section 2 (3) of NRCD 172.<o:p></o:p><o:p>&nbsp;</o:p>By
section 3 (1) the commissioner’s remuneration shall be determined by the
Minister responsible for Lands in consultation with the government. It is clear
that the Minister responsible for Lands has to find solution to these boundary
disputes, but he does not want to be responsible for the decisions. The
commissioner is therefore the machinery set up to decide these cases, by
finding the facts and applying legal rules. This is the inference I make from
sections 5 (2) and 9 of the Decree. By section 5 (2) questions or disputes
arising as to whether any land is in a particular traditional area shall be
referred to the commissioner by the Minister responsible for Lands; he will
also transfer to the commissioner any uncompleted work commenced by any
commissioner appointed under previous enactments. By section 9 the commissioner
shall submit his findings to the Minister responsible for Lands, and the
minister shall publish the findings or decision in accordance with the
provisions of the Decree.<o:p></o:p><o:p>&nbsp;</o:p>