BUADI AND OTHERS vs. AMOO II [1982]DLHC2111

Date	1982-03-09
Suit No.
Citation No.	[1982]DLHC2111

TWUMASI J.

B. K. ESSEL FOR THE PLAINTIFFS.

W. A. H. AMARTEIFIO FOR THE DEFENDANT.

[1982]DLHC2111
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													<main id="main" class="content" style="min-height: 60rem" >BUADI AND OTHERS <o:p></o:p>vs. <o:p></o:p>AMOO II <o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p>[1982-83] GLR 120<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 MARCH 1982<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. K. ESSEL FOR THE PLAINTIFFS. <o:p></o:p>

W. A. H. AMARTEIFIO FOR THE DEFENDANT.<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>Twumasi
J. The claim by the plaintiffs is for: (a) a declaration that the defendant is
not a chief, that is to say, he has never been nominated, elected and installed
as a chief according to Egyambra custom and usage and (b) an injunction
restraining the defendant from posing or acting as the chief of Egyambra. The
jurisdiction of this court to entertain this action has been questioned by
counsel for the defendant on the ground that it is a chieftaincy matter where
jurisdiction is reserved exclusively to the traditional courts of the country. Counsel
for the defendant, consciously or unconsciously, argues the complete disregard
of the supervisory jurisdiction of the High Court under article 126 of the
suspended Constitution, 1979 of the Third Republic of Ghana which jurisdiction
has been saved by section 19 of the Provisional National Defence Council
Proclamation, 1981. Under article 126 of the said Constitution the High Court
has power to issue writs or orders in the nature of quo warranto as it may
consider appropriate for the purposes of enforcing or securing the enforcement
of its supervisory powers. Care must always be taken not to label an action
before a court as a chieftaincy matter merely because reference is made in the
writ or statement of claim to a chief, or nomination, election or installation
of a chief. The test in all cases should be “what is the real relief being
sought by the writ?” If the writ in this action is carefully examined, it would
be realised by the examiner that the relief being sought by the plaintiffs is
quo warranto. The writ seeks an order to restrain the defendant from exercising
the functions of a chief under the provisions of the Chieftaincy Act, 1971 (Act
370). It must be observed in parenthesis, that the office of a chief is a
public office created by statute.<o:p></o:p>It
follows, therefore, that the High Court has power to supervise the operation of
Act 370 by ensuring that a person who does not qualify as a chief does not
exercise any function of a chief under the statute. Prior to the enactment of
the Administration of Justice (Miscellaneous Provisions) Act, 1938 an
information in the nature of quo warranto could be exhibited either by the
Attorney-General or by leave of the court, to challenge the usurpation of a
public office. In 1938 the information in the nature of quo warranto was
abolished by section 9(1) of the 1938 Act, but section 9(2) of the Act provided
that in any case where any person acts in an office in which he is not entitled
to act, and an information in the nature of quo warranto would but for the provisions
of the Act have laid against him, the High Court may grant an injunction
restraining him from so acting and may (if the case so requires) declare the
office to be vacant.<o:p></o:p><o:p>&nbsp;</o:p>Since
there are no statutory provisions on quo warranto in Ghana, our courts must
follow the practice in England. In Republic v. Boateng; Ex parte Adu-Gyamfi II
[1972] 1 G.L.R. 317, Hayfron-Benjamin J. (as he then was) held, and rightly in
my view, that an injunction under section 9 of the English Act would lie to
restrain a person from exercising the functions of a chief because chieftaincy
is a public institution constitutionally guaranteed.<o:p></o:p><o:p>&nbsp;</o:p>Under the
provisions of section 48 of Act 370 no person can exercise the functions of a
chief unless he 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. All that a High Court must and can do in an action for injunction to
restrain a particular person from acting as a chief, is to find out as a fact
whether the person concerned has, in fact, been nominated, elected and
installed as a chief or as the case may be appointed and installed as such and
that his name appears on the register of chiefs. In this exercise the High
Court does not thereby usurp the jurisdiction of traditional councils. The
jurisdiction of traditional councils under section 15 of Act 370 is to hear and
determine, inter alia, disputes relating to the nomination, election,
installation of any person as a chief. There is a world of difference between
hearing and determining disputes relating to the nomination, etc. of any person
as a chief and finding out as a fact whether any person has been nominated,
elected and installed as a chief of [1982-83] GLR 120-126 or appointed and installed as such. In my view, if the High
court has no jurisdiction to make a fact-finding of this nature the result
would be a complete deprivation of the supervisory jurisdiction of the court in
issuing injunctions in the nature of quo warranto. It is for the foregoing
reasons that I overrule the objection to the jurisdiction of this court over
the instant case:<o:p></o:p><o:p>&nbsp;</o:p>The facts
of the case make interes</main>