REPUBLIC vs. GA MANTSE’S CUSTOMARY ARBITRATION TRIBUNAL AND OTHERS; EX PARTE BROWN [1993]DLCA849

REPUBLIC vs. GA MANTSE’S CUSTOMARY ARBITRATION TRIBUNAL AND OTHERS; EX PARTE BRO... [1993]DLCA849

Date	1993-12-09
Suit No.
Citation No.	[1993]DLCA849

ESSIEM JA

BROBBEY JA

FORSTER JA

F A ATTOH FOR THE APPELLANT.

T A TAGOE FOR THE RESPONDENTS.

[1993]DLCA849
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<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">GA MANTSE’S CUSTOMARY ARBITRATION TRIBUNAL AND OTHERS; EX PARTE
BROWN<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1993-94] 1 GLR 76<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: 9
DECEMBER 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p>F A ATTOH FOR THE APPELLANT.<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 A TAGOE FOR THE RESPONDENTS. <o:p></o:p>

ESSIEM, BROBBEY AND FORSTER JJA<o:p></o:p>

</div>JUDGMENT OF FORSTER JA<o:p></o:p>This appeal is from the ruling of Lutterodt J (as she then was)
sitting at the High Court, Accra on 15 February 1990. 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 first respondent’s tribunal in the case of Nii Charbukwei II, Chief of
Anyah v Augustus Kpakpo Brown. At the hearing of the substantive motion the
respondents’ counsel raised a preliminary objection contending that the High
Court had no jurisdiction inasmuch 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 was 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 has delegated his customary function of settling disputes among his
subjects. In the instant case, Nii Charbukwei II, the Anyah Mantse, commenced
an action against the respondent, Augustus Kpakpo Brown, by a “Statement of the
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, apprehensive 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. In R v Electricity
Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924]
1 KB 171 at 205, CA Atkin LJ defining the supervisory jurisdiction in these
matters, 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">“Wherever 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 for the respondents that the writ
of prohibition lies only in respect of tribunals or bodies whose judicial or
quasi-judicial authority is conferred by statute. 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.<o:p></o:p>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. In R v Criminal Injuries Compensation Board; Ex parte
Lain [1967] 2 QB 864 at 884, DC Diplock LJ reacting to the contention that it
is only vested with statutory judicial authority that were amenable to the writ
of certiorari and ipso facto prohibition, 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">“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 the
constitutional struggles of the 17th century, authority has been, generally if
not invariably, conferred upon new kinds of tribunals by or under 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 ancient jurisdiction of the Court of Queen’s Bench has been narrowed merely
because there has been no occasion to exercise it.”<o:p></o:p>(The emphasis is m</main>