REPUBLIC vs. GBI TRADITIONAL COUNCIL; EX PARTE ABAKA VII [1991]DLHC600

Date	1991-04-11
Suit No.
Citation No.	[1991]DLHC600

ACQUAH J

JONES DOTSE (WITH HIM MISS P DENNIS) FOR THE APPLICANT.

MAWUDOKU FOR THE RESPONDENT.

T K ADZOE FOR THE INTERESTED PARTY.

[1991]DLHC600
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">REPUBLIC<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">GBI TRADITIONAL COUNCIL; EX PARTE ABAKA VII<o:p></o:p>[HIGH COURT, HO]<o:p></o:p>[1995-96] 1 GLR 702<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: 11 APRIL
1991<o:p></o:p>

</div>COUNSEL:<o:p></o:p>JONES DOTSE (WITH HIM MISS P DENNIS) FOR THE APPLICANT.<o:p></o:p>MAWUDOKU FOR THE RESPONDENT.<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">

T K ADZOE FOR THE INTERESTED
PARTY. <o:p></o:p>

ACQUAH J<o:p></o:p>

</div>JUDGMENT OF ACQUAH J.<o:p></o:p>The eminent jurist, the late Mr Justice N A Ollennu, in his
article, “Chieftaincy Under the Law” published in Essays in Ghanaian Law at p52
described chieftaincy 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">“Chieftaincy is an ancient institution, the centre of rich
culture, an object of awe and reverence as the active possessor of state power
and possessor of the spirit of the ancestors and of the state.”<o:p></o:p>But this sacred institution which in the days gone-by wielded such
tremendous power and authority in its respective spheres of influence, had,
through systematic legislation enacted by colonial and postcolonial
governments, been effectively pruned of its power and awesomeness, and is now
made to symbolise, more of our rich cultural heritage than a patent and effective
traditional institution in the governance of the people. The most subtle and
effective way by which this result has been achieved is through the provision
whereby the functions of a chief are now divided into customary and statutory—a
division which was known in the pre-colonial era. By this division the
government does not bother and concern itself with the customary functions of a
chief, which functions include pouring libation on the stool on important
occasions, receiving customary homage and tribute from subjects, performing all
religious duties incidental to chieftaincy, and serving as customary arbitrator
or conciliator in inter-family disputes. But for a chief to qualify to perform
statutory functions, the said chief must be recognized by the government by a
notice published in the Local Government Bulletin. The statutory functions
connote functions set out in the Chieftaincy Act, 1971 (Act 370) and any other
enactment. These statutory functions require a chief to take a seat at his
traditional council or respective house of chiefs, and thereafter perform such
function as, for example, a member of that house’s judicial committee, or
represent that house on any committee which the house, is by law, required to
serve as a member. Membership of a traditional council or a house of chiefs is
thus a status symbol of any chief who is worth his salt. It is in furtherance,
perhaps, of this objective that Togbe Abaka VII, the applicant in this motion,
is seeking an order of mandamus to compel the acting president of the Gbi
Traditional Council to admit him into membership of that statutory body.<o:p></o:p>Both in the body of his motion paper and the accompanying
statement, Togbe Abaka VII seeks mandamus to compel the acting president of the
Gbi Traditional Council to admit him into membership of that council as
established under Act 370. But in the final paragraph of his supporting
affidavit filed on 5 July 1989 he prays to be allowed to “take my seat as a
member of the Gbi Traditional Council representing Gbi-Wegbe as the divisional
chief.” And when Mr Dotse, counsel for Togbe Abaka VII, was moving the motion I
inquired from him the exact demand of his client. Mr Dotse replied that his
client seeks admission as a divisional chief of Gbi-Wegbe. Togbe Abaka VII is therefore
not seeking admission as a member simpliciter of the council, but he is asking
the court to compel his admission as a member with a particular status, to wit,
divisional chief of Gbi-Wegbe.<o:p></o:p>The basis of Togbe Abaka VII’s request for mandamus, as set out in
his supporting affidavits, is that his status as divisional chief of Gbi-Wegbe
is contained in the Local Government Bulletin, No 35 of 1965 which according to
him, had not been cancelled nor repealed by any enactment. Following this
publication, he continues, he attempted to take his seat at the Gbi Traditional
Council, but the acting president and the registrar of the council prevented
him from doing so on grounds that he is not the rightful person to be so
admitted. He therefore petitioned the Honourable Provisional National Defence
Council Secretary for Chieftaincy Affairs who wrote to the acting president to
admit him into membership of that council. But the acting president refused to
comply with the said directive and expressed his refusal in a letter he
forwarded in reply to that of the Honourable Provisional National Defence
Council Secretary’s letter. The applicant therefore realises that unless the
acting president is compelled by an order of a court, the latter is bent on
denying him admission into the council. Hence the instant application. But the
applicant avers that he is fully aware that his claim to that status of the
divisional chief of Gbi-Wegbe is being opposed by the Keh stool of Gbi-Wegbe,
and that the last of such opposition terminated on 23 November 1988 when Togbe
Keh XI and another discontinued suit No 39/87 and paid cost of ¢10,000 to him.<o:p></o:p>