NANA ADWOA EFFIA & GODFRED KWOFIE vs. NANA TAIBA II & ors [2009]DLSC2715

Date	2009-11-04
Suit No.	CHIEFTAINCY APPEAL J2/1/2009
Citation No.	[2009]DLSC2715

WOOD (MRS) C.J (PRESIDING)

ANSAH J.S.C

DOTSE J.S.C

ANIN YEBOAH J.S.C

BAFFOE-BONNIE J.S.C.

SIR DENNIS ADJEI FOR THE PETITIONERS/APPELLANTS/APPELLANTS

JOSEPH A. DAWSON FOR THE RESPONDENTS/RESPONDENTS/RESPONDENTS

[2009]DLSC2715
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													<main id="main" class="content" style="min-height: 60rem" >NANA ADWOA EFFIA &amp; GODFRED KWOFIE<o:p></o:p>vs.<o:p></o:p>NANA TAIBA II &amp; ors<o:p></o:p>[SUPREME
COURT]<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">

CHIEFTAINCY
APPEAL J2/1/2009&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 4TH
NOVEMBER, 2009.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>SIR
DENNIS ADJEI FOR THE PETITIONERS/APPELLANTS/APPELLANTS<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">

JOSEPH
A. DAWSON FOR THE RESPONDENTS/RESPONDENTS/RESPONDENTS<o:p></o:p>

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

WOOD
(MRS) C.J (PRESIDING), ANSAH J.S.C, DOTSE J.S.C, ANIN YEBOAH J.S.C,
BAFFOE-BONNIE J.S.C.<o:p></o:p>

</div>J U D G M E N T<o:p></o:p>&nbsp;WOOD (MRS) C.J:<o:p></o:p>On
the 25th of October, 2007, the Judicial Committee of the National House of
Chiefs dismissed the appeal from the adjudicating body of the Western Regional
House of Chiefs, that is’ the Judicial Committee of the House. Dissatisfied,
the petitioners/ appellants are, by way of an appeal to this court, challenging
the said decision on the following grounds:<o:p></o:p>&nbsp;GROUNDS OF APPEAL<o:p></o:p>“1. The Judicial Committee of the
National House of Chiefs erred when they relied on extraneous matters which did
not form part of the record of Appeal to deliver their judgment.<o:p></o:p>&nbsp;2. The Judicial Committee of the National
House of Chiefs erred when they held that the Petitioners/Appellants herein
cannot maintain the present action as their family member had sometime ago
instituted an action against some of the Respondents herein and they should go
to the Judicial committee of the Regional House of Chiefs to continue with the
hearing of the matter.<o:p></o:p>3. The Judicial committee of the
National House of Chiefs erred when they affirmed the position taken by the
Judicial committee of the Regional House of Chiefs that failing to file reply
constitutes an admission of the averments contained in the statement of
Defence.<o:p></o:p>4. The Judicial committee of the
National House of Chiefs erred by affirming the wrong procedure adopted by the
Respondents by allowing the Respondents to orally raise a preliminary objection
to the competence of the petitioners action.<o:p></o:p>5. The judgment is against the weight
of evidence on record.”<o:p></o:p>&nbsp;<o:p></o:p>The
facts which triggered the original action before the Judicial Committee of the
Western Regional House are not at all complex. On the 20th of April 2000, the
appellants filed a petition against the Respondents before this body for the
following reliefs:<o:p></o:p>“A) A declaration that the petitioners
are the owners and Kingmakers of the Royal Sewuah Paramount Stool of Bamiankor.<o:p></o:p>B) A declaration that the purported
nomination, election and enstoolment of Henry Acquah a.k.a. Angama Tu Agyan
without the knowledge, consent and authorization of the Petitioners is null and
void and therefore a nullity.<o:p></o:p>C) An injunction restraining the
Respondents from nominating, electing or enstooling any person as Omanhene of
the Paramount Stool of Bamiankor.<o:p></o:p>D) An injunction restraining the 4th
Respondent from holding himself out as Omanhene of Gwira Traditional Area or
performing the functions associated with that effect.”<o:p></o:p>The
Respondent entered conditional appearance, on the 4th of May 2000, a step the
appellant contends is clearly unwarranted by the procedural rules governing
judicial proceedings before the Committees of the Houses of Chiefs. They did
not take any of the known legal steps which ordinarily should follow the entry
of conditional appearance or appearance under protest as it is alternatively
known, and filed a statement of defence on the19th of April. <o:p></o:p>As
happens to be the norm for parties who have filed for permanent injunctions,
the appellants additionally filed a motion for an order of interim injunction.
It was at the hearing of the interlocutory application, when no memorandum of
agreed issues has been set down for hearing, that the respondent successfully
raised an oral preliminary objection challenging the competency of the petition
on the grounds of lis alibi pendence. Their case was that an action for similar
reliefs was pending before the same forum thus making the instant action
legally incompetent. The appellants unsuccessfully opposed the oral objection;
by not only denying the claim of alibi pendence, but roundly condemning the
practice and procedure by which the preliminary legal point was brought before
the tribunal. They argued strenuously that the application to have the action
dismissed in limine ought to have come by way of a motion on notice strictly
disposed of without resort to any other extraneous matters. <o:p></o:p>The
Ground 4 of appeal therefore raises the issue of whether the preliminary
objection was based on the right practice and procedure, given that it was oral
rather than by way of a motion or summons as envisaged under order 25 rules 2-
4 of the High Court (Civil&nbsp; Procedure)
Rules 1954 (LN140A). The issue of procedural impropriety was one of the main
questions raised before the two lower tribunals, that is, the two Judicial
Committees of the Houses of Chiefs. The Judicial Committee of the National Houses
of Chiefs concluded firmly that from the records, the objection was not brought
specifically under order 25 rule 2 of the High Court Civil Procedure rules. The
appellate tribunal did not address the pertinent subsidiary issues which
informed the trial committee’s conclusion that upheld the plea of lis alibi
pendence. They reasoned tha</main>