REPUBLIC vs. GA MANTSE’S CUSTOMARY ARBITRATION TRIBUNAL, EX PARTE BROWN [1993]DLCA4894

Date	1993-12-09
Suit No.	[1992-93] 2 G B R 649 – 652
Citation No.	[1993]DLCA4894

ESSIEM JA

BROBBEY JA

FORSTER JA

[1993]DLCA4894
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC<o:p></o:p>vs.<o:p></o:p>GA MANTSE’S CUSTOMARY
ARBITRATION TRIBUNAL, EX PARTE BROWN<o:p></o:p>[COURT
OF APPEAL]<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">

[1992-93] 2 G B R 649 – 652&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 9 DECEMBER 1993<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 1.0pt 0in">

ESSIEM
JA, BROBBEY JA, FORSTER JA<o:p></o:p>

</div>FORSTER JA. <o:p></o:p>This
appeal is from the ruling of Lutterodt J sitting at the High Court, Accra, on
15/2/90. The appellant, in an ex parte motion sought leave of the court to
issue an order of prohibition to restrain the respondents from proceeding
further with the proceedings before the 1st respondent-tribunal, in the case of
Nii Charbukwei II, Chief of Anyah v Augustus Kpakpo Brown.<o:p></o:p>At
the hearing of the substantive motion the respondents’ counsel raised a
preliminary objection contending that the High Court had no jurisdiction in as
much as the Ga Mantse's Customary Arbitration Tribunal (hereinafter called ‘the
tribunal’) was not set up by statute and therefore was not amenable to the
supervisory jurisdiction of the High Court.<o:p></o:p>In
her ruling dated 15 February 1990, the judge held that the respondent-tribunal
was not an adjudicating authority and therefore outside the scope of the writ
of prohibition. She therefore dismissed the application.<o:p></o:p>The
tribunal is an adjudicating body set up by the Ga Mantse to which he had
delegated his customary function of settling disputes among his subjects.<o:p></o:p>In
the instant case, Nii Charbukwei II, the Anyah Mantse, commenced action against
the respondent, Augustus Kpakpo Brown by a “Statement of Plaintiff's case”. The
issue in dispute concerned the right to administer, control and alienate family
lands at Anyah. In the course of the proceedings before the tribunal, the
respondent apprehending that there was real likelihood of bias against him by
the chairman of the tribunal, sought the writ of prohibition to restrain the
tribunal from proceeding further with the proceedings.<o:p></o:p>The
only issue in this appeal is whether the trial judge erred in holding that the
tribunal, not having been set up under a statute, was not subject to the supervisory
jurisdiction of the High Court.<o:p></o:p>In
Rex v Electrictity Commissioners, ex parte London Electricity Joint Committee
Company (1920) Ltd [1924] 1 KB 171 at p 205, Atkin LJ, defining the supervisory
jurisdiction in these matters, said:<o:p></o:p>“Whenever any body of persons having
legal authority to determine questions affecting the rights of subjects, and
having the duty to act judicially, act in excess of their legal authority, they
are subject to the controlling jurisdiction of the King's Bench Division exercised
in these writs.”<o:p></o:p>It
is the contention of counsel that the writ of prohibition lies only in respect
of a tribunal or body whose judicial or quasi-judicial authority is conferred
by statute.<o:p></o:p>My
researches have discovered that the remedy in its very inception was
applicable, among other bodies, to such inferior judicial tribunals that
derived their authority from sources other than statute. Admittedly statutory
sources have overwhelmed the sources of judicial authority, but that is because
in these modern times it is largely the legislature that constitutionally has
become the creator of bodies vested with judicial authority. It is nonetheless
recognised that statute is not the only source of judicial authority.<o:p></o:p>In
R v Criminal Injuries Compensation Board, ex parte Lain [1967] 2 QB 864,
Diplock LJ reacting to the contention that it is only bodies vested with
statutory judicial authority that were amenable to the writ of certiorari and
ipso facto, prohibition, said at page 884:<o:p></o:p>“The earlier history of the writ of
certiorari shows that it was issued to courts whose authority was derived from…
franchise or custom as well as from Act of Parliament… True, since the victory
of Parliament in Constitutional struggles of the 17th Century, authority has
been generally if not invariably, conferred upon new kinds of tribunals by or
under an Act of Parliament and there has been no recent occasion for the High
Court to exercise supervisory jurisdiction over persons whose ultimate
authority to decide matters is derived from any other source. But I see no
reason for holding that the current jurisdiction of the court of Queen's Bench
has been narrowed merely because there has been no occasion to exercise
it."(Emphasis mine.)<o:p></o:p>Thus,
if by the custom of the people a body had been vested with adjudicating
authority, the fact that in modern times conferment of judicial authority by
statute has become the rule, does not deny recognition to such adjudicating
bodies of customary origin.<o:p></o:p>The
laws of Ghana as provided by the 1979 and 1992 constitutions include rules of
customary law, being the rules of law which by custom are applicable to
particular communities in Ghana. The preservation of chieftaincy obviously
includes the recognition of such judicial bodies as are recognised by customary
law as the prerogative of chiefs to establish for the maintenance of peace and
order and to which persons subject to customary law may repair to vindicate
their rights.<o:p></o:p>The
traditional customary courts, by whatever name they may be called, and whose
jurisdiction have not expressly been taken away by statute, are to my mind,
such judicial bodies that are equally amenable to the writs of certiorari and
prohibition.<o:p></o:p>The
emergence of statute law upon the legal scene has not swept away the
rudimentary judicial authority of the chief nor that of any body through which
that authority is exercised.<o:p></o:p>Counsel
for the respondent has contended that the submission to the arbitral
proceedings of the tribunal is entirely at the election of a party and not
compulsory. So also is submission to the jurisdiction of any court, except, of
course, that in default thereof by a party – a defendant - judgment may be
decreed against him.<o:p></o:p>I
do not find any procedural difference regulating procee</main>