REPUBLIC vs. COURT OF APPEAL; EX PARTE EKUNTAN II [1990]DLSC668

Date	1990-06-22
Suit No.
Citation No.	[1990]DLSC668

ADADE JSC

FRANCOIS JSC

WUAKU JSC

AMUA-SEKYI JSC

AIKINS J.S.C.

JAMES AHENKORAH (WITH HIM HACKMAN) FOR THE APPLICANT.

NO APPEARANCE BY OR FOR THE RESPONDENT.

[1990]DLSC668
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC <o:p></o:p>vs. <o:p></o:p>COURT OF APPEAL; EX PARTE EKUNTAN II<o:p></o:p>[SUPREME COURT, ACCRA] <o:p></o:p>[1989-90] 2 GLR 168<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
JUNE 1990<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">

JAMES AHENKORAH (WITH HIM HACKMAN) FOR THE
APPLICANT.<o:p></o:p>

NO APPEARANCE BY OR 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">

ADADE, FRANCOIS, WUAKU, AMUA-SEKYI AND<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ADADE J.S.C.<o:p></o:p>In 1984
the applicant, Nana Kwamena Ekuntan II, was installed as chief of Dwomo in the
Western Region. Before his installation, and during the period when the stool
was vacant, the stool properties, including in particular the stool itself,
were in the possession and custody of his head of family, ebusuapanyin Kobina
Ansah. After his installation, he asked for the stool properties, but somehow
he failed to recover them from the ebusuapanyin. He decided to resort to
self-help. He sent two men, Kofi Annan and Bedu Mbom, to forcibly take them
from the ebusuapanyin. They did and brought them to the chief. Aggrieved, the
ebusuapanyin sued Kofi Annan and Bedu Mbom in the High Court, Sekondi for:<o:p></o:p>(a) a
declaration that the removal of the Dwomo stool from the plaintiff’s custody by
the defendants is unlawful and against custom; and <o:p></o:p>(b) an
order for the return of the said stool to the plaintiff by the defendants.”<o:p></o:p><o:p>&nbsp;</o:p>At the
trial, Nana Ekuntan gave evidence on behalf of the defendants, asserting that
he sent them to collect the stool properties since as the chief he was entitled
to their possession and custody.<o:p></o:p>The High
Court gave judgment for the plaintiff, ebusuapanin Kobina Ansah. The judgment
dated 18 May 1989 ended:<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
chief of Dwomo had no right without the consent of the plaintiff, to instruct
the defendants to remove the stool. I give judgment in favour of the plaintiff
and declare that the removal of the Dwomo stool from the plaintiff’s custody by
the defendants is unlawful. The defendants are hereby ordered to return the
stool to the plaintiff.”<o:p></o:p><o:p>&nbsp;</o:p>From that
judgment , the defendants appealed to the Court of Appeal. They then applied to
the High Court for a stay of execution of the order requesting them to return
the stool to the plaintiff. The High<o:p></o:p>Court
refused the application. The defendants repeated the application in the Court
of Appeal. It is alleged that at the hearing of the application in the Court of
Appeal, the court asked the defendants whether they had complied with the High
Court’s order. Upon being told that this had not been done because the
properties were with Nana Ekuntan who was refusing to give them up, the Court
of Appeal ordered Nana Ekuntan to be arrested on a bench warrant and be
produced in court on 23 April 1990. That order prompted the present application
for certiorari, asking us to quash it on the grounds, inter alia, that the suit
itself is a cause or matter affecting chieftaincy, and that neither the High
Court nor the Court of Appeal has any jurisdiction to entertain it.
Accordingly, all orders made therein by those courts, including in particular
the order for the return of the stool, are void and of no effect.<o:p></o:p>Section
66 of the Chieftaincy Act, 1971 (Act 370) defines a cause or matter affecting
chieftaincy as:<o:p></o:p>“‘Cause
or matter affecting chieftaincy’ means any cause, matter, question or dispute
relating to any of the following— <o:p></o:p>(a) The
nomination, election, appointment or installation of any person as a Chief or
the claim of any person to be nominated, elected, appointed or installed as a
Chief; <o:p></o:p>