REPUBLIC vs. THE PRESIDENT, BUEM TRADITIONAL COUNCIL, EX PARTE ISUKU II [1987]DLHC2311

Date	1987-01-20
Suit No.
Citation No.	[1987]DLHC2311

FARKYE J.

DOTSE FOR THE APPLICANT.

HAYIBOR FOR THE RESPONDENT.

[1987]DLHC2311
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC<o:p></o:p>vs.<o:p></o:p>THE
PRESIDENT, BUEM TRADITIONAL COUNCIL, EX PARTE ISUKU II<o:p></o:p>[HIGH
COURT, HO]<o:p></o:p>[1991] 1
GLR 455<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 20 JANUARY 1987<o:p></o:p>

</div>COUNSEL:<o:p></o:p>DOTSE FOR
THE APPLICANT.<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">

HAYIBOR
FOR THE RESPONDENT. <o:p></o:p>

</div>JUDGMENT
OF FARKYE J.<o:p></o:p>Having
obtained leave on 14 October 1986 to apply for an order of certiorari to quash
the judgment of the judicial committee of the Buem Traditional Council dated 2
September 1986 in suit No.1/86, the applicant commenced these proceedings by
motion on notice against the judicial committee of the Buem Traditional Council
on 20 October 1986.<o:p></o:p>The short
statement of facts which led to this application is that on or about 6 May
1986, Nana Oyete Akuamoah II, paramount chief of Akpafu Traditional Area, the
respondent in this suit; and Nana Agyagbo, chief of Akpafu-Todzi initiated
action against the applicant herein and eleven others before the judicial
committee of the Buem Traditional Council at Buem. The judicial committee gave
judgment against the applicant and the eleven others and the applicant applied
to this court for an order of certiorari to quash the proceedings and judgment
of the judicial committee dated 2 September 1986 in suit No. 1/86 because the
purported judicial committee was not appointed according to section 28(1) of the
Chieftaincy Act, 1971 (Act 370) and section 3 of the Chieftaincy (Proceedings
and Functions) Traditional Councils Regulations, 1972 (L.I. 798).<o:p></o:p>The
applicant by his affidavit filed on 20 October 1986 exhibited the writ of
summons issued at the judicial committee of the Buem Traditional Council,
Borada-Buem as N.I.1; the statement of claim as N.I. 2; ruling by the judicial
committee for the ex parte judgment as N.I. 3; and a letter from the office of
Igra-Kpakpa Akpafu-Todzi with the heading “Settlement of Akpafu Chieftaincy
Affairs” as N.I. 4.<o:p></o:p>There is
only one important point this court has to deal with. It is the question of
validity of the appointment of the judicial committee which purported to have
decided suit No. 1/86 on 6 October 1986. The case of the applicant is that no
valid judicial committee was appointed and accordingly the members purporting
to hold office as judicial committee members had no warrant to hold office as
such and therefore lacked competence to try suit No.1/86.<o:p></o:p>The
learned counsel for the applicant argued that there are nineteen towns in the
Buem Traditional Area and these nineteen towns form the Buem Traditional
Council. That the power to appoint the members of the judicial committee is
vested in the traditional council and not in any individual person. Learned
counsel based his argument on the case of Republic v. Akuapim Traditional
Council; Ex parte Nyarko III [1975] 2 G.L.R 372 at 375.<o:p></o:p>Learned
counsel, in opposing the application, referred the court to section 28(2) of
Act 370. He argued that the use of the words “appointed by that council” does
not mean that the judicial committee should be appointed at a meeting of the
traditional council, nor does it mean that the traditional council as a body
should appoint the judicial committee. He further argued that the judicial
committee could be appointed by the traditional council not necessarily at a
meeting because neither Act 370 nor L.I. 798 said the traditional council
should appoint members of a judicial committee at a meeting. Members could be
appointed by the president, the registrar of the council and the council itself
not necessarily sitting.<o:p></o:p>Dealing
with the appointment of the members of the judicial committee, I shall refer to
section 28(2) of Act 370 and section 3(1) of L.I. 798. Section 28(2) of Act 370
says: “The said jurisdiction shall be exercised by a judicial committee of the
Traditional Council comprising three or five persons appointed by that
Council.” Section 3(1) of L.I. 798 also states: “A judicial committee shall be
appointed by a Traditional Council and shall consist of five persons all of
whom shall be members of that Council.”<o:p></o:p>The
interpretation of the words “appointed by that council” means that the members
of the judicial committee shall be appointed by the whole traditional council
sitting as a body. The president or the registrar of the traditional council
has no power to appoint members of the judicial committee. If this is done then
that would surely amount to delegation of powers which the two enactments
referred to above do not allow.<o:p></o:p>In the
case of Republic v. Akuapim Traditional Council, Ex parte Nyarko III (supra),
it was decided that the power to appoint members of a judicial committee must
be exercised by the person vested with the power to appoint unless the enabling
provision clearly allows otherwise. Again in the see of Republic v. Kwahu
Traditional Council; Ex parte Nana Obeng Akrofi [1974] 2 G.L.R. 144 it was held
that the only statutory tribunal competent to hear a chieftaincy dispute was the
judicial committee of the Kwahu Tradit</main>