REPUBLIC vs. HIGH COURT, KOFORIDUA; EX PARTE BEDIAKO II [1997]DLSC3623

Date	1997-07-23
Suit No.	[1997-98] 1 GLR 488
Citation No.	[1997]DLSC3623

AIKINS JSC

CHARLES HAYFRON-BENJAMIN JSC

ADJABENG JSC

AMUAH JSC

AKUFFO JSC

EA ODURO FOR THE APPLICANT.

ANIN YEBOAH (WITH HIM AMOAKO ADJEI) FOR THE RESPONDENT

[1997]DLSC3623
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC <o:p></o:p>vs. <o:p></o:p>HIGH COURT, KOFORIDUA;
EX PARTE BEDIAKO II<o:p></o:p>[SUPREME
COURT, ACCRA]<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">

[1997-98] 1 GLR 488&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; &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: 23 JULY 1997<o:p></o:p>

ANIN
YEBOAH (WITH HIM AMOAKO ADJEI) FOR THE RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;
<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">

AIKINS
JSC, CHARLES HAYFRON-BENJAMIN JSC, ADJABENG JSC, AMUAH JSC AND AKUFFO JSC<o:p></o:p>

</div>JUDGMENT OF AIKINS JSC. <o:p></o:p>In
this cause the applicant is asking for certiorari to bring up and quash the
decision of the High Court, Koforidua dated 18 July 1996. The plaint of the
applicant is that the High Court judge usurped the jurisdiction of the Akyem
Abuakwa Traditional Council when he proceeded to hear and determine the question
whether Nana Agyabeng II was a chief or not, and that the judge lacked
jurisdiction to determine the issue because it concerns a cause or matter
affecting chieftaincy. Nana Agyabeng II had been elected and installed as chief
of Soabe in November 1989. According to him, the applicant had received the
customary amount of ¢70,000 from him, and he then swore the oath of allegiance
to the applicant who in turn swore the oath to him (the chief). In paragraphs
(3), (4), (5), (7), and (8) of his affidavit in support of his application the
applicant averred:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>“(3)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That his installation was not completed
as he did not swear the oath of allegiance to me.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>(4)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the said odikro elect was neither
introduced to the Omanhene of Akyem Abuakwa Traditional Area nor did he swear
the oath of allegiance to the Okyehene as required by Akyem Abuakwa customary
law and usage.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>(5)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That because the installation of Nana
Adjabeng II had not been completed and therefore he was not a chief, on or
about 15 October 1994 the kingmakers of Soabe preferred charges against the
said Nana Agyabeng II before me, being the head of the division ...&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>(7)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That Nana Agyabeng II submitted himself
before a panel of arbitrators where after a proper hearing I found the charges
proven against him.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>(8)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the kingmakers being the
complainants performed the necessary custom and declared him removed or
destooled.”<o:p></o:p>The
applicant continued to aver in paragraph (15): <o:p></o:p>“That I contended [at the hearing
before the High Court] that [he] was not yet a chief but a mere headman and
therefore the destoolment is not governed by the Chieftaincy Act, 1971 (Act
370).” <o:p></o:p>The
respondent, in his affidavit in opposition denied paragraphs (1)-(8) as stated
above and averred in paragraphs (13) and (14) of his affidavit that as a chief
he attended the Okyeman’s second congress in his capacity as a chief, and
travelled with the applicant in his [the respondent’s] nephew’s car; and that in
or about March 1995 when the Okyehene paid them a visit the applicant levied
all chiefs within his division to pay ¢10,000 together with a live sheep, and
he paid his contribution to the applicant who gladly accepted the money and the
sheep. <o:p></o:p>In
the High Court the odikro (ie the respondent herein) urged that he was a chief
as he had been properly nominated, elected, installed and enstooled as a chief
on 13 November 1989; that he performed all customary rites required to be
performed and had sworn the oath of allegiance to his elders and the applicant
herein in the presence of the Omanhene of Akyem Abuakwa; that he within a
period of five years immediately preceding the making of the application before
the High Court, joined in and had taken part in all customary and traditional
activities in his town, division and the entire Akyem Abuakwa Traditional Area;
and that the applicant had no jurisdiction to destool him as a chief. <o:p></o:p>The
applicant, however, contended that the odikro voluntarily submitted to the
jurisdiction of the applicant and that what happened before him was a customary
arbitration in which each side paid cash the sum of ¢100,000 as “ntaadwam”
before the destoolment charges were heard; and that the odikro could not resile
and bring into the court the application before it. He further contended that
the odikro was not a chief since he had not sworn the oath of allegiance to him
and to the Okyehene. <o:p></o:p>After
hearing both learned counsel for the parties, the court subpoenedsic(3) the
registrar of the Akyem Abuakwa Traditional Council to present his records
concerning the status of the odikro. The registrar produced two documents:
first, “Questionnaire on stools and shrines”—exhibit one, and secondly,<o:p></o:p>“Akyem
Abuakwa Traditional Council Record of Chiefs, Queenmothers, Stool Holders,
Linguists and Councillors”—exhibit two. The documents showed that the odikro
was enstooled on 13 November 1989 and had sworn the oath of allegiance. The
learned High Court judge then said in his ruling: <o:p></o:p>“The only issue to be resolved in this
application is whether the respondent as the Oseawuohene had jurisdiction to
hear and determine the destoolment charges which were preferred against the
applicant. The operative part of section 15(1) of the Chieftaincy Act, 1971 </main>