THE MINISTRY OF LOCAL GOVERNMENT AND ANOTHER vs. NANA KWARTENG PANIN AKOSA II AND ANOTHER [2011]DLCA3091

THE MINISTRY OF LOCAL GOVERNMENT AND ANOTHER vs. NANA KWARTENG PANIN AKOSA II AN... [2011]DLCA3091

Date	2011-06-24
Suit No.	CIVIL APPEAL NO. H1/25/2010
Citation No.	[2011]DLCA3091

MARIAMA OWUSU (MISS) J.A. (PRESIDING)

F.G. KORBIEH J.A.

IRENE C. DANQUAH (MS.) J.A.

[2011]DLCA3091
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													<main id="main" class="content" style="min-height: 60rem" >THE MINISTRY OF LOCAL
GOVERNMENT AND ANOTHER<o:p></o:p>vs.<o:p></o:p>NANA KWARTENG PANIN
AKOSA II AND ANOTHER<o:p></o:p>&nbsp;[COURT OF APPEAL, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL
APPEAL NO. H1/25/2010&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; &nbsp;&nbsp;&nbsp;DATE: 24TH
JUNE, 2011<o:p></o:p>

</div>COUNSEL:&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; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<o:p>&nbsp;</o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGEMENT<o:p></o:p>

</div>F.G. KORBIEH, J.A.&nbsp; <o:p></o:p>The
facts giving rise to this appeal may be summarized as follows: the 1st
plaintiff/respondent (the “odikro” of Twedie) and the 2nd
plaintiff/respondent (who described himself as a management committee member of
the Twedie stool) sued out a writ in the registry of the trial High Court in
Kumasi seeking the following reliefs:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
“1. A declaration that the inauguration ceremony held on the 29/2/2008
naming Foase as the district capital of the Atwima Kwanwoma District Assembly
was illegitimate and same was null and void as the Executive Instrument No. 10
of 2007 which was passed pursuant to Atwima Kwanwoma District Assembly
(Establishment) Instrument, 2007 (L.I. 1853) never made or mentioned Foase the
District Capital<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
“2. In the alternative, a declaration that in terms of the level of
infrastructural facilities and developments and the fact that Twedie was the
local political seat of the colonial administration within the Atwima Kwanwoma
Traditional Area since 1946, Twedie should have been the district capital of
the Atwima Kwanwoma District Assembly and not Foase.<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
“3. In the further alternative, a declaration that the discretion and or
decision creating and making Foase the district capital of the Atwima Kwanwoma
District Assembly was unfair, injudicious, arbitrary, uncandid, capricious and biased.&nbsp; <o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
“4. An order of interim injunction restraining the 3rd
defendant from purporting to act as the District Chief Executive of the alleged
Foase District Assembly and for a further order temporarily restraining any
member of the said assembly from acting or purporting to act or perform any
duty(s) of the assembly during the pendency of this suit until otherwise
ordered by this court.”<o:p></o:p>The
case of the plaintiffs/respondents (hereinafter only referred to as the
respondents) before the trial court was that Twedie had originally been created
as the district capital of the Atwima Kwanwoma District/ Traditional Area per
Local Government (Atwima Kwanwoma District Assembly) (Establishment)
Instrument, 2007 (L.I. 1853) and the relevant E.I.; that but contrary to this
legislative instrument, Foase was rather inaugurated as the district capital
which was illegitimate and hence null and void; that since Twedie used to have
an Area Council during the colonial era, it should been designated the capital
instead of Foase; that there are a number of infrastructural and social amenities
in Twedie which cannot be found at Foase; that the respondents had been told
that Twedie (being the largest town in the area) would be made the capital;
that the sudden change from Twedie to Foase was without social, political or
legal justification; that the defendants had no reasonable, probable or
legitimate defence to the suit. The response of defendants/appellants (hereinafter
only referred to as the appellants) to these allegations came in the form of
two separate statements of defence filed by the 3rd defendant and
the 1st and 2nd appellants respectively. The main thrust
of the 3rd defendant’s defence was in three parts, to wit that the
plaintiffs lacked the capacity to institute the action; that the court lacked
the jurisdiction to entertain the action and that L.I. 1853 had named Foase
(and not Twedie) as the district capital of the Atwima Kwanwoma district.&nbsp; The 1st and 2nd appellants
filed a common statement of defence which contended that the President had the
power to create new districts and name their capitals; that if Twedie used to
be the local political seat of the colonial administration, things had changed;
and that the choice of Foase was a well-considered decision. At the close of
pleadings the issues set down for trial were the following:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; “1. Whether or not the President
judiciously exercised his powers as entrenched in the Constitution when he
created Foase as the district capital within the Atwima Kwanwoma District
Assembly. &nbsp;<o:p></o:p>