REPUBLIC vs. FODOME TRADITIONAL COUNCIL; EXPARTE ASEM AND OTHER [1991]DLCA2301

Date	1991-01-31
Suit No.
Citation No.	[1991]DLCA2301

LAMPTEY JA

ESSIEM JA

AMUAH JJ.A.

ADZOE FOR THE APPELLANTS.

NUTIFAFA KUENYEHIA (WITH HIM BROWN LARBI AND NUTSUKPUI) FOR THE RESPONDENTS.

[1991]DLCA2301
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC<o:p></o:p>vs.<o:p></o:p>FODOME
TRADITIONAL COUNCIL; EXPARTE ASEM AND OTHER<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 1
GLR 45<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: 31 JANUARY 1991<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ADZOE FOR
THE APPELLANTS.<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">

NUTIFAFA
KUENYEHIA (WITH HIM BROWN LARBI AND NUTSUKPUI) FOR THE RESPONDENTS. <o:p></o:p>

LAMPTEY,
ESSIEM AND AMUAH JJ.A. <o:p></o:p>

</div>JUDGMENT
OF LAMPTEY J.A.<o:p></o:p>On 16
September 1985, Togbe Gbedegbleme Honu III, Paramount Chief of Fodome
Traditional Area and ten other persons assisted by a recorder constituted
themselves into a “Fodome Traditional Council” and proceeded “to settle a
dispute between the Anyigbe and Dzise clans of Fodome Amele in a cause or
matter affecting chieftaincy.” The proceedings were recorded by a Mr. Nazarious
B. Klu who was appointed for that purpose. The council after hearing evidence
from the parties and their witnesses delivered its “judgment” on the same date.
The Anyigbe clan represented by David Akabua Asem and two others lost the
action. They were aggrieved and dissatisfied with the “judgment” of the Fodome
Traditional Council. Pursuant to leave granted them by the High Court, Ho they
successfully obtained an order of that court quashing and setting aside the
“judgment” of the said Fodome Traditional Council. The representatives of the
Dzise clan were aggrieved by the judgment of the High Court, Ho and appealed to
this court on a number of grounds.<o:p></o:p>Before us
one ground of appeal that was argued was formulated as follows: “2 That the
learned trial judge erred in law when he held that certiorari could issue to
quash the proceedings of the Fodome Traditional Council.” Learned counsel for
the appellants stated that what the council referred to and described in the
proceedings as “Fodome Traditional Council” was not and had never been a
traditional council established and constituted pursuant to the Chieftaincy
Act, 1971 (Act 370). He stated that the body that was described and referred to
in the proceedings as “Fodome Traditional Council” was an assembly of chiefs of
the Fodome Traditional Area that met from time to time to deliberate on matters
affecting the welfare and progress of the Fodome Traditional Area. He contended
that the Fodome Traditional Council was not known to the law because it was not
a creature of statute. He submitted that the Fodome Traditional Council that
“settled” the chieftaincy matter was not an adjudicating body. The writ of
certiorari did not lie to quash its proceedings. Learned counsel for the
respondents argued the contrary.<o:p></o:p>He
contended that the procedure adopted and followed by the Fodome Traditional
Council left no doubt that it was engaged in adjudicating in a cause or matter
affecting chieftaincy. He submitted that the learned trial judge was right in
holding that in the circumstances a writ of certiorari was available to the
applicants before him.<o:p></o:p>The gravamen
of the complaint of the appellants brought into sharp focus a consideration of
the status of the “Fodome Traditional Council” that dealt with the plaint of
the Anyigbe clan of Amele. Was there evidence before that court seeming to show
and establish the status of the Fodome Traditional Council? I do not find from
the record of appeal that before the High Court, Ho issue was joined between
the parties on the status of the “Fodome Traditional Council.” The issue was
only raised in passing by learned counsel for the appellants. He did not
canvass it with any conviction or force of persuasion. The issue was therefore
not seriously argued and urged before the High Court. The learned trial judge
did not consider that issue and did not make any finding on it in his judgment.
It seems to me that it was not sufficient proof of that fact for learned
counsel for the parties to make a statement, without more, during the hearing
that there was not in existence a lawfully constituted Fodome Traditional
Council. I feel strongly that on an issue such as the one now raised and
seriously canvassed before this court, evidence should have been adduced and
placed before the court of first instance seeking prove and establish the fact
of the non-existence of a Fodome Traditional Council properly and lawfully
so-called. In this respect, I must state that the creation of traditional
councils derives from section 12 of the Chieftaincy Act, 1971 (Act 370), which
provides as follows:<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">“12. (1)
There shall be a Traditional Council for each traditional area and the
Traditional Councils in existence immediately before the commencement of this
Act shall continue in existence for the traditional areas in respect of which
they existed immediately before the said commencement.”<o:p></o:p>The Act then
provided for the keeping of information and records appertaining to traditional
councils created and brought into existence under section 12 (2) as follows:
“(2) The name of every Traditional Council shall be shown in the National
Register of Chiefs maintained under section 50 of this Act.”<o:p></o:p>It will
be noted that Act 370 made adequate provision for the creation of new
traditional councils as well as for the recognition and continuation in force
of traditional councils in existence as at 17 September 1971. The legal
position is that once a traditional council</main>