THE REPUBLIC vs. THE JUDICIAL COMMITTEE OF THE GA TRADITIONAL COUNCIL, ADJIY TETTEH EX-PARTE: NETTEY [2000]DLCA6621

THE REPUBLIC vs. THE JUDICIAL COMMITTEE OF THE GA TRADITIONAL COUNCIL, ADJIY TET... [2000]DLCA6621

Date	2000-07-20
Suit No.	CIVIL APPEAL NO. 151/99
Citation No.	[2000]DLCA6621

BENIN JA (PRESIDING)

TWUMASI JA.

FARKYE JA.

OWUSU-ANSAH FOR THE APPELLANT

AYIKOI-OTOO FOR THE RESPONDENT

[2000]DLCA6621
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>THE JUDICIAL
COMMITTEE OF THE GA TRADITIONAL COUNCIL, ADJIY TETTEH<o:p></o:p>EX-PARTE: NETTEY<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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APPEAL NO. 151/99&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: 20TH JULY, 2000<o:p></o:p>

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RESPONDENT. <o:p></o:p>

BENIN JA (PRESIDING), TWUMASI JA.,
FARKYE JA.<o:p></o:p>

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</div>TWUMASI,
JA: <o:p></o:p>This
is an appeal from the ruling of the High Court Accra, delivered on the 11th
November 1998. The court granted to the respondents an order of certiorari
sought by them to quash a decision of the Judicial Committee of the Ga
Traditional Council, given on the 22nd October 1997. The parties to the
proceedings before the Judicial Committee had filed affidavits in respect of
the issue of whether the party who had instituted the proceedings had locus
standi or capacity to do so. When the case came on for hearing, the committee
adopted a procedure very much unique for its brevity and simplicity. Questions
were addressed to the parties to indicate whether they had any oral evidence to
add to their respective affidavits and each of them said they had none. With this
response, the committee concluded the proceedings and fixed a date for ruling.
On the due date, the committee gave a final decision on the merits based on the
affidavits. The defeated side, the respondents herein immediately commenced
certiorari proceedings before the High Court, Accra on the following grounds:— <o:p></o:p>“(1)
There is error apparent on the face of the record in that the trial judicial
committee failed to take VIVA VOCE evidence on the issue of capacity thereby
depriving the applicant (the respondent herein) the opportunity of establishing
his capacity with cogent evidence in accordance with legal principles. <o:p></o:p>(2)
The Judicial Committee not having taken evidence had no basis in declaring the
interested party as Nii Larbi Mensah IV Sempe Asofotse of Nii Larbi Mensah
Stool Family of Sempe and Ablekuma”. <o:p></o:p>The
High Court, constituted by Gbadegbe J (as he then was) predictably granted the
application for certiorari and quashed the decision of the Judicial Committee
on the following grounds stated in his ruling at p.65 of the record of appeal
and I quote: <o:p></o:p>“There
being no denial that the facts on which the issue of capacity was based was
challenged in my view the tribunal was duty bound to give the parties the
opportunity of hearing their various depositions raised by cross-examination.
Authority aside, I think that there can be no denial that depositions when not
admitted must be proved by oral evidence. So therefore where as in this case
the tribunal instead of doing that which was the only lawful avenue open to it,
rather left this to the parties, I think that this discloses a manifest error
on the record, Exhibit A”. <o:p></o:p>The
appellants impugned this ruling by this appeal on two grounds but argued only
the second which was as follows:— <o:p></o:p>“The
learned trial High Court Judge erred in law in holding that the Judicial Committee
ought to have taken VIVA VOCE evidence in spite of the fact that the parties at
the hearing openly said they did not have anything to add to what they had
disposed to in their respective affidavits.” <o:p></o:p>Arguing
the appeal on this ground counsel for the appellants contended that the
judicial committee acted right because, as he put it, “the judicial committees
are inferior tribunals and are therefore entitled to conduct their proceedings
summarily, they are also entitled to conduct their proceedings according to
customary law.” He quoted in support section 28 of the Chieftaincy Act, 1971
(Act 370) (replaced) which provides that: <o:p></o:p>“28
(1) In exercise of the jurisdiction conferred upon it by section 15 of this
Act, a Traditional Council shall subject to the provisions of this section
conduct its proceedings according to customary law.....” <o:p></o:p>Customary
Law is defined under section 18(1) of the Interpretation Act, 1960 (CA9) as
follows:— <o:p></o:p>“18(1)
Customary law as comprised in the laws of Ghana consists of rules of law which
by custom are applicable to particular communities in Ghana, not being rules
included in the common law under any enactment providing for the assimilation
of such rules of customary law as are suitable for general application”. <o:p></o:p>