REPUBLIC vs. AKUAKU II; EX PARTE CHAYI II [1990]DLCA2299

Date	1990-07-24
Suit No.
Citation No.	[1990]DLCA2299

AMPIAH JA

ESSIEM JA

ADJABENG JJ.A.

JOE REINDORF FOR THE APPLICANT.

E. D. KOM S.A.G. (WITH HIM OFOSU-ASANTE) FOR THE RESPONDENT.

[1990]DLCA2299
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC<o:p></o:p>vs.<o:p></o:p>AKUAKU
II; EX PARTE CHAYI II<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 2
GLR 162<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">

</div>COUNSEL:<o:p></o:p>JOE
REINDORF 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">

E. D.
KOM, S.A.G. (WITH HIM OFOSU-ASANTE) FOR THE RESPONDENT. <o:p></o:p>

AMPIAH,
ESSIEM AND ADJABENG JJ.A. <o:p></o:p>

</div>JUDGMENT
OF ADJABENG J.A.<o:p></o:p>The
applicant whose personal name is Sylvanus Isaac Tetteh Ayekpa claims to be the
Wetsoyi or chief of the Tekperbiawe Division of the Ada Traditional Area in the
Greater Accra Region. The respondent is the paramount chief of the said
traditional area and president of the Ada Traditional Council. On 13 February
1989 the applicant filed an application at the High Court, Accra pursuant to
leave granted by the court earlier, and sought:<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 order
of mandamus addressed to the respondent herein directing him to take all such
steps as are necessary, required or permitted by law to enable the applicant to
take his seat forthwith as a member of the said traditional council to the
intent that the applicant may exercise his rights as such member, including his
right to receive notice of meetings of the said council, to attend the said
meetings and to participate in the deliberations and decisions of the said
council.”<o:p></o:p>The
applicant’s case, as disclosed in his affidavit and statement attached to the
application, is that he was duly nominated and elected as Wetsoyi or chief of
Tekperbiawe in accordance with the requisite applicable customary law and usage
to succeed Nene Korle II, the previous Wetsoyi who had died on or about 26
November 1983, and that he was installed as Wetsoyi on 14 February 1984.
Shortly after his installation, it came to his notice that one Simons Amanortey
Adjaottor was claiming to be Wetsoyi in succession to the said late Nene Korle
II and was passing himself off as Wetsoyi of Tekperbiawe. In order to stop him
from so claiming, an action was taken by the elder who had installed the
applicant, one Odoe Odonkorteye, against the said Simons Amanortey Adjaottor
and two of his elders at the Ada Traditional Council. After a full hearing of
the matter, the judicial committee of the said council declared the applicant
as the duly nominated, elected and installed Wetsoyi of Tekperbiawe in
succession to the late Nene Korle II. The committee also granted an injunction
against the said Adjaottor, who was the third defendant, restraining him from
holding himself out as such Wetsoyi. The said third defendant and the others
appealed to the Greater Accra Regional House of Chiefs against the decision.
The appeal is still pending. Even though this appeal has not yet been disposed
of, the applicant was on 28 August 1987 recognised by the government as Wetsoyi
of Tekperbiawe by a Gazette notice published in the Local Government Bulletin
No. 19 of 28 August 1987 to that effect. The applicant contended that as a
newly installed and recognised chief who qualified as a member of the Ada
Traditional Council, he was entitled to be invited by the registrar of the said
council on the instructions of the respondent to take his seat in the said
council but that the respondent failed, neglected and refused to have him so
invited. He therefore applied to the court below for an order of mandamus to
compel the respondent to ensure the assertion of his rights as a member of the
Ada Traditional Council.<o:p></o:p>The
respondent resisted the application. His main ground seems to be that since the
status of the applicant as the Wetsoyi or chief is being challenged in the
action on appeal at the Greater Accra Regional House of Chiefs, he, the
respondent, is by section 27 of the Chieftaincy Act, 1971 (Act 370) as amended
by the Chieftaincy (Amendment) (No. 2) Decree, 1973 (N.R.C.D. 226), precluded
from causing the applicant to be invited to the meetings of the council. The
respondent then gives an undertaking in paragraph (7) of his affidavit in
opposition that:<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">“Whoever
wins the said pending appeal in the chieftaincy dispute now pending before the
regional house of chiefs at Dodowa will be entitled ex debito justitiae to be
invited to attend the deliberations of the council.”<o:p></o:p>The trial
judge refused the application. The learned judge, however, concluded that “it
is the recognition by the secretary which crowns the chief.” That “stay of
execution, or no stay of execution, the recognition by the secretary would
still hold.” And also that “section 27 of Act 370 as amended by N.R.C.D. 226
has no legal effect on the operation of the Chieftaincy (Amendment) Law, 1985
(P.N.D.C.L. 107).” The trial judge also in the course of his ruling made an
interesting and sweeping statement. He said:<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">“I am of
the opinion that once a chief has been recognised as such by the Secretary for
Chieftaincy Matters, then until the recognition has been withdrawn, he is the
chief properly so-called, notwithstanding any judicial decision to the
contrary, be it the decision of the Supreme Court.”<o:p></o:p><sp</main>