Is a Cause or Matter Affecting Chieftaincy Arbitrable? An Exegis of a Grey Area of the Law

The institution of chieftaincy has been long established in the legal system of our country. Even before colonization, the various communities in the country were for the lack of better words governed by chiefs and traditional systems.

All post-independence constitutions guaranteed and preserved the institution of chieftaincy as doing otherwise would have caused a “kyphosis” to the administration and governance system introduced into the country.

The 1992 Constitution of Ghana is no exception and unequivocally states as follows;

The institution of chieftaincy, together with its traditional council as established by customary law and usage is hereby guaranteed.[i]

The Report of the Committee of Experts, (Constitution) on Proposals for a Draft Constitution of Ghana paragraph 340 of its Report stated:

340. “The Committee accordingly recommends that (1) the institution of chieftaincy be guaranteed in the Constitution, as in the previous constitutions….

The Supreme Court of Ghana in affirming the position stated by the Experts in Bofour IV v Kuo and Others[ii] unanimously speaking through Dotse JSC held that:

“It was therefore pursuant to the above proposals that article 270 to 277 provisions of the Constitution 1992 which guarantees and regulate the institution of chieftaincy have been provided.”

It is therefore clear that the institution of chieftaincy is entrenched in the very fabric of our democratic dispensation.

This article is essentially to consider a critical institution in our democracy to wit, the institution of chieftaincy and the ultimate aim is to ascertain the arbitrability or otherwise of a cause or matter affecting chieftaincy. This article is structured under the following sub-headings;

1. The regimes of chieftaincy in Ghana
2. Distinction between Cause or Matter Affecting Chieftaincy and Chieftaincy

• Jurisdiction to entertain a cause or matter affecting chieftaincy

1. Arbitration and Customary Law Arbitration
2. Review of the decision in Amma Mansa & Ors. v Yaa Adutwumwaa and Ors[iii]
3. Conclusion

It is our respectful opinion that a cause or matter affecting chieftaincy is not arbitrable and any decision of the superior courts which sought to suggest otherwise is in our view erroneous and is not binding on any court as those decisions were given per incuriam.

THE REGIMES OF CHIEFTAINCY IN GHANA

Chieftaincy in Ghana largely has two regimes, that is the statutory[iv] and customary regimes and it is irrefutable that these regimes run parallel in their operations.  However, the customary regime of chieftaincy must necessarily be in tandem with its statutory regime counterpart; hence the customary regime cannot and should not conflict with the statutory regime. More importantly, the two regimes should not contravene the constitutional provisions as the Constitution, 1992 is supreme and would triumph where any act, omission or law contradicts it. In the case of Nana Adjei Ampofo v The Attorney-General and the President of the National House of Chiefs[v], Date-Bah JSC stated;

“[F]urthermore, the Chieftaincy Act, 2008 (Act 759) makes it abundantly clear that the institution of chieftaincy is not only as established by customary law and usage but as recognized by statute. For instance, s. 57 of the Act on the “definition of a chief” provides in part as follows:

“(1) A chief is a person who, hailing from the appropriate family and lineage, has been validly nominated, elected or selected and enstooled, enskinned or installed as a chief or queen mother in accordance the relevant customary law and usage. (2) A person does not qualify as a chief if that person has been convicted of high treason, treason, high crime or for an offence involving the security of the State, fraud, dishonesty or moral turpitude”. Thus a person who is nominated and enstooled as chief, in accordance with the relevant customary law and usage, would not be a chief, if he has been convicted of any of the offences referred to in s. 57(2). The customary law of chieftaincy cannot thus be applied in contemporary Ghana in its pristine purity, ignoring the impact of statute and of the Constitution.”

He further noted that;

“[A]s already noted, Coussey JA recognized as much in Republic v Techiman Traditional Council, Ex parte Tutu [1982-83] GLR 996 at 999. Chieftaincy is thus not an inviolable obscurantist institution but a part of the contemporary constitutional regime and its incidents must measure up to the standards set in the Constitution. The traditional incidents of chieftaincy cannot therefore be used to shore up a statutory provision which is held by this court to be in breach of a provision in Chapter 5 of the Constitution.”

In essence, the traditional functions, incidents and roles of chiefs or the institution of chieftaincy as established under customary law and traditionally perceived, legally exist only to the extent that they do not conflict with the statutory regime.

DISTINCTION BETWEEN CAUSE OR MATTER AFFECTING CHIEFTAINCY & CHIEFTAINCY

Before defining a cause or matter affecting chieftaincy, it is worthy to note that there is a difference between Chieftaincy matters and a cause or matter affecting chieftaincy. Chieftaincy is a generic term and has a broader scope. But a cause or matter affecting chieftaincy, which is a subset of chieftaincy, is prescribed by law and is more specific. In Nana Bronin Abankro V & Anor. v.  Solomon Ntiamoah & Ors.[vi] the Court noted that:

“This ground of appeal seeks to suggest that chieftaincy matters and causes or matters affecting chieftaincy are one and the same; anything concerning chiefs or the chieftaincy institution is a chieftaincy matter. However, for a cause to constitute a cause or matter affecting chieftaincy, it must come within the definition provided by the Courts’ Act, Act 459 and the Chieftaincy Act, Act 759. Chieftaincy matter is a generic word and “cause or matter affecting chieftaincy” is specific.””

Section 117 of the Courts Act, 1993 (Act 459) provides that:

“cause or matter affecting chieftaincy” means any cause, matter, question or dispute relating to any of the following—

(a) nomination, election, selection, installation or deposition of a person as a chief or the claim of a person to be nominated, elected, selected, installed as a chief,

(b)  the destoolment or abdication of a Chief;

(c) the right of any person to take part in the nomination, election, selection, appointment or installation of any person as a Chief or in the deposition of any Chief;

(d) the recovery or delivery of stool property in connection with any such nomination, election, appointment, installation, deposition or abdication;

(e) the constitutional relations under customary law between Chiefs.”

The meaning of a cause or matter affecting chieftaincy as stated above is the same under section 76 of the Chieftaincy Act, 2008 (Act 759). The true test for determining whether an action is a cause or matter affecting chieftaincy is whether in a particular action, evidence will be adduced to determine any of the matters set out above as a primary issue before the court. In Republic v High Court, Koforidua; ex parte Bediako II[vii], the Supreme Court noted that;

“To my mind, the mere fact that the question of whether or not a person is a chief rears its head during an application for certiorari before the High Court does not necessarily constitute the matter one affecting chieftaincy for the purposes of section 57 of Act 459, where such a question arises as a matter secondary to the determination of the fundamental question of whether or not an inferior body had the jurisdiction to  do something, and does not give rise to the necessity to make a final determination of such status and whether or not such a person has been properly nominated, elected and installed according to the applicable custom or usage. In order to constitute a matter one affecting chieftaincy, it must, in my view, be one the determination of which, unless overturned on appeal, would settle once and for all a chieftaincy matter or dispute.”

This indeed reiterates the point that for a matter to be classified as a cause or matter affecting chieftaincy, the primary matter should be one that falls within the scope as mentioned above.

From the definition, any matter that does not fall within the scope of Section 117 of Act 459 or Section 76 of Act 759 will not be a cause or matter affecting chieftaincy. Such matters although affecting the institution of chieftaincy are chieftaincy matters simpliciter but not one of a cause or matter affecting chieftaincy and could be adjudicated upon by the courts. To this end, chieftaincy matters is a generic term which is broader in scope with a cause or matter affecting chieftaincy being a subset of that generic term.

JURISDICTION TO ENTERTAIN A CAUSE OR MATTER AFFECTING CHIEFTAINCY AND OTHER CHIEFTAINCY MATTERS.

We shall discuss this by considering the provisions of the 1992 Constitution, the Chieftaincy Act 2008 (Act 759) and the Courts Act 1993 (Act 459).

1. The 1992 Constitution.

The Constitution unequivocally vests the High Court with original and appellate jurisdictions in all matters, in particular, civil and criminal jurisdiction as well as any other jurisdiction as parliament may by law confer subject to the provisions of the Constitution. Article 140(1) of the 1992 Constitution provides as follows:

“The High Court shall, subject to the provisions of this Constitution, have jurisdiction in all matters and in particular, in civil and criminal matters and such original, appellate and other jurisdiction as may be conferred on it by this Constitution or any other law.” (emphasis ours).

A cursory look at this provision may erroneously suggest that the High Court has unfettered jurisdiction in all matters. However, a critical look at this provision rightfully shows that the High Court does not have exclusive original jurisdiction in all matters. If the High Court were to have exclusive original jurisdiction in all matters, the framers of the Constitution would have expressly said so just as it was expressly stated for the Supreme Court under Article 130. Granted the High Court has jurisdiction in all matters, is it not superfluous for the framers of the Constitution, 1992 to confer additional jurisdictions on the High Court in other parts of the 1992 Constitution? The Constitution expressly states instances where the High Court would have exclusive original jurisdiction.[viii]

The expression “subject to” has received judicial interpretation by the Supreme Court of Ghana in the case of Edusei v Attorney-General and another[ix]. In that case, the Supreme Court speaking through Acquah JSC and in interpreting “subject to” as found in Article 130(1) of the Constitution, 1992 stated:

“Now, it must be noted that the expression “subject to” appearing at the beginning of article 130(1) of the Constitution,1992 is generally used in legislation to serve as a warning and thereby avoid an apparent conflict between different provisions of the same enactment or between different enactments.”

His Lordship further stated:

“The net result of the above analysis is that where a statutory provision is expressed to be “subject to” another statutory provision or statute, this generally makes the “subject to” provision prevail over the main provision, whenever there appears to be conflict or incongruity in reading the two provisions together”

This presupposes that where the Constitution in some other parts exclusively vests jurisdiction in any person or institution to determine a cause or matter affecting chieftaincy, that person or institution’s right to determine the matter would triumph over the High Court’s general jurisdiction as stated under Article 140(1) of the Constitution, 1992.

Now, the body with jurisdiction to hear a cause or matter affecting chieftaincy can be gleaned from the 1992 Constitution itself. Article 131(4) of the 1992 Constitution provides that:

“An appeal from a decision of the Judicial Committee of the National House of Chiefs shall lie to the Supreme Court with the leave of that Judicial Committee or the Supreme Court.”

Article 273(1) and (2) of the 1992 Constitution provides that:

“(1) The National House of Chiefs shall have appellate jurisdiction in any cause or matter affecting chieftaincy which have been determined by the Regional House of Chiefs in a region, from which appellate jurisdiction there shall be an appeal to the Supreme Court, with the leave of the National House of Chiefs or the Supreme Court.

(2) The appellate jurisdiction of the National House of Chiefs shall be exercised by a Judicial Committee of the National House of Chiefs consisting of five persons appointed by that House from among its members.”

Article 274(3)(d) and (4) of the 1992 Constitution provides that:

“(3) A Regional House of Chiefs shall –

(d) have original jurisdiction in all matters relating to a paramount stool or skin or the occupant of a paramount stool or skin, including a queenmother to a paramount stool or skin;

(4) The original and appellate jurisdiction of a Regional House of Chiefs shall be exercised by a Judicial Committee of the Regional House of Chiefs consisting of three chiefs appointed by the Regional House of Chiefs from among its members.”

A holistic appreciation of the provisions of the Constitution stated above reveals that the original and/or appellate jurisdiction to determine a cause or matter affecting chieftaincy is vested in the judicial committees of the Regional House of Chiefs and the National House of Chiefs and the Supreme Court is only vested with final appellate jurisdiction. Essentially, the Court of Appeal, High Court, Regional Tribunal, Circuit Court and District Court have no original or appellate jurisdiction in a cause or matter affecting chieftaincy. In arriving at this conclusion, we are guided by the rule of interpretation that in interpreting the Constitution, all the provisions must be read as a whole. This rule of constitutional interpretation was echoed by the Supreme Court in National Media Commission v Attorney General[x], where Acquah JSC noted that:

“Accordingly in interpreting the Constitution care must be taken to ensure that all the provisions work together as parts of a functioning whole. The parts must fit together logically to form a rational, internally consistent framework.”

Admittedly, the provisions cited above supra do not state expressly that the judicial committees of the various traditional councils have original jurisdiction to determine a cause or matter affecting chieftaincy. What then is the constitutional basis for the judicial committees of traditional councils to adjudicate a cause or matter affecting chieftaincy? This question will be answered from two angles.

Firstly, a careful look at Article 274(3)(c) of the 1992 Constitution reveals that the traditional councils have original jurisdiction in a cause or matter affecting chieftaincy. The said provision states;

(3) The Regional House of Chiefs shall

(c) hear and determine appeals from the traditional councils within the region in respect of the nomination, election, selection, installation or deposition of a person as a chief (emphasis ours).

This provision clearly shows that the Regional House of Chiefs may determine on appeal a cause or matter affecting chieftaincy after it has been adjudicated or determined by the traditional council. It is only fair to assume that the traditional council in that instance would be exercising an original jurisdiction for their decisions to be subject to appeal to the Regional House of Chiefs. This assumption is made on the basis that the traditional council is practically the “lowest” lower court in terms of hierarchy of courts to determine a cause or matter affecting chieftaincy. See Section 39 of the Courts Act, 1993 (Act 459).

Secondly, Article 270 of the 1992 Constitution empowers Parliament to enact laws which would vest the traditional council to determine the nomination, election, selection, installation or deposition of a chief (these form some of the components of a cause or matter affecting chieftaincy). The said provision provides:

(2) Parliament shall have no power to enact any law which-

(a) confers on any person or authority the right to accord or withdraw recognition to or from a chief for any purpose whatsoever; or

(b) in any way detracts or derogates from the honour and dignity of the institution of chieftaincy.

(3) Nothing in or done under the authority of any law shall be held to be inconsistent with, or in contravention of, clause (1) or (2) of this article if the law makes provision for-

(a) the determination, in accordance with the appropriate customary law and usage, by a traditional council, a Regional House of Chiefs or a Chieftaincy Committee of any of them, of the validity of the nomination, election, selection, installation or deposition of a person as a chief;

(b) a traditional council or a Regional House of Chiefs or the National House of Chiefs to establish and operate a procedure for the registration of chiefs and the public notification in the Gazette or otherwise of the status of persons as chiefs in Ghana.

Therefore, Parliament may on the basis of Article 270(3)(a) of the 1992 Constitution empower the traditional councils of the various communities to determine a cause or matter affecting chieftaincy. Has Parliament exercised this prerogative? The answer is YES and this would lead us to a discussion of the Chieftaincy Act, 2008 (Act 759) and the Courts Act, 1993 (Act 459).

1. The Chieftaincy Act, 2008 (Act 759)

Section 29 of the Chieftaincy Act, 2008 (Act 759) which is on the jurisdiction of the Traditional Councils provides that;

“(1) Subject to this Act, a Traditional Council has exclusive jurisdiction to hear and determine a cause or matter affecting chieftaincy which arises within its area, not being one to which the Asantehene or a paramount chief is a party.

(2) The jurisdiction of a Traditional Council shall be exercised by a Judicial Committee comprising three or five members appointed by the Council from their members.

(3) A person aggrieved by a judgment or an order given or made by a Traditional Council in a cause or matter affecting chieftaincy may appeal to the relevant Regional House as of right against the judgment or order.

(4) An appeal to a Regional House against a judgment, decision or order of a Traditional Council shall be lodged within thirty days after the date of delivery of the judgment, decision or order appealed against, unless the Regional House extends the period for a further period not exceeding thirty days from the date of expiry of the period of appeal.”

It is pursuant to Article 270(3)(a) of the 1992 Constitution that Parliament has enacted section 29 of Act 759 to vest the judicial committee of the various traditional council jurisdiction to entertain a cause or matter affecting chieftaincy.

1. The Courts Act, 1993 (Act 459)

Section 57 of the Courts Act 1993 (Act 459) on the limitation of jurisdiction in chieftaincy matters provides that:

“Subject to the provisions of the Constitution, the Court of Appeal, the High Court, Regional Tribunal, a Circuit and Community Tribunal shall not have jurisdiction to entertain either at first instance or on appeal any cause or matter affecting chieftaincy.”

From the relevant provisions of Acts 459 and 759 cited supra, Parliament by employing words ousting the jurisdiction of the traditional courts except the Supreme Court as final appellate court in a cause or matter affecting chieftaincy, must be taken as a restatement of the conclusions reached and supported by the Constitution itself. For within the limits of the 1992 Constitution, as discussed above, the jurisdiction of the traditional courts except the Supreme Court has been ousted in respect of a cause or matter affecting chieftaincy. These legislative acts of Parliament are valid because they are within the limits laid down in the Constitution.

It must be noted that there is a rebuttable presumption that Parliament is knowledgeable and that the legislature in the promulgation of laws comply with the laws of the land. By this presumption the legislature is presumed to know all that is necessary to produce a rational and effective piece of legislation and that includes the existing state of the law before coming up with a new legislation.

It is on these bases that Section 57 of the Courts Act, 1993 (Act 459) and Section 29 of the Chieftaincy Act, 2008 (Act 759) remain constitutional.

ARBITRATION AND CUSTOMARY LAW ARBITRATATION

Brown and Marriot, in their book, ADR Principles and Practice define arbitration as a private mechanism for the resolution of disputes which takes place in private, pursuant to an agreement between two or more parties, under which the parties agree to be bound by the decision given by the arbitrator according to law, after being enforceable at law. Also, Bernstein & Wood in their book, HANDBOOK OF ARBITRATION PRACTICE provides that:

Where two or more persons agree that a dispute or potential dispute between them shall be decided in a legally binding way by one or more impartial persons in a judicial manner, that it is upon evidence put before him or them, the agreement is called an arbitration.

Arbitration, as one of the alternative dispute resolutions is well entrenched in Ghana’s legal system and its constitutionality is not in question as this process does not ultimately seek to usurp the judicial powers of the courts. In the past, the courts tended to be suspicious of arbitration, fearing that arbitration agreements might be used to oust the jurisdiction of the court. However, in recent years the courts have treated arbitration with much less suspicion. This was reflected in the English House of Lords case of Bremer Vulkan Schiffbau v South India Shipping[xi]. The court pronounced that courts and arbitrators are in the same business, namely the administration of justice. The only difference is that the courts are in the public and the arbitrators in the private sector of the industry.

The Alternative Dispute Resolution, 2010 (Act 798) defines arbitration as the voluntary submission of a dispute to one or more impartial persons for a final and binding determination.[xii]

Customary arbitration

Customary arbitration is defined as the voluntary submission of a dispute, whether or not relating to a written agreement for a final binding determination under Part Three of the Act.[xiii] Customary arbitration has long been recognized by our courts and this was emphatically stated in the case of Pong v Mante[xiv]. The court held that;

“The importance of the practice whereby natives of this country constitute themselves into ad hoc tribunals popularly known and called known and called arbitrations for the purposes of amicably settling disputes informally between them or their neighbours has long been recognized as an essential part of our legal system; provided all the essential characteristics of holding a valid arbitration are present, the courts will undoubtedly enforce any awards published by such ad hoc bodies.”

Under customary law, there are five (5) essential characteristics of arbitration as stated in Budu II v Caesar[xv] namely;

1. A voluntary submission of the dispute by the parties to Arbitrators for the purpose of having the dispute decided informally but on the merits.
2. Prior agreement by both parties to accept the award of the arbitration
3. The award must not be arbitrary but must be arrived at after the hearing of both sides in a judicial manner
4. The practice and procedure for the time being followed in the native Court or Tribunal of the area must be followed as nearly as possible.
5. Publication of the award.

Similarly, in Dzasimatu v Dokosi,[xvi] the Supreme Court held that a customary arbitration is binding if;

1. The submission of the dispute was voluntary
2. The parties agreed to be boundby the decision whichever way it went.
3. The rules of Natural Justice were followed;although the Arbitrator need not follow any formal procedures
4. The Arbitrator acted within jurisdiction
5. The decision or award was made known

It must be emphasized that where these essential elements are not satisfied, then, any purported decision given by the customary arbitrator will not be binding.

The Legislature presumptively knowledgeable as it is, has excluded certain matters from the scope and ambit of arbitration. Section 1 of Act 798 which is headed “Application” expressly states that certain matters are not subject to Act 798 (ie. Act 798 does not apply to those matters) as those matters could only be adjudicated upon by the courts or specialized institutions. Such matters include ones relating to;

1. national or public interest
2. the environment
3. the enforcement and interpretation of the Constitution
4. any other matter that by law cannot be settled by an alternative dispute resolution method.

In statutory interpretation, recourse could be made to headings as an aid to interpretation although primarily, headings are intended for ease of reference only. [xvii] Hence, it is not erroneous for us to refer to the heading of section 1 of Act 798 in this discussion. The heading of section 1 of Act 798 shows clearly the extent to which the Act may apply and that the Act is not applicable in all instances/matters.

How then do we determine any other matter that by law cannot be settled by an alternative dispute resolution method? This will require an exegesis of section 29 of the Chieftaincy Act, 2008 (Act 759).

A critical look at Section 29(1) of the Chieftaincy Act, 2008 (Act 759)

The question of whether a cause or matter affecting chieftaincy can be submitted to arbitration including customary law arbitration requires a careful review of section 29(1) of the Chieftaincy Act, 2008 (Act 759). For the avoidance of doubt, the text of the section shall be reproduced.

Section 29(1) of Act 759 provides that:

“Subject to this Act, a Traditional Council has exclusive jurisdiction to hear and determine a cause or matter affecting chieftaincy which arises within its area, not being one to which the Asantehene or a paramount chief is a party.”

In interpreting a statute, whether under the modern purposive approach to interpretation or under the golden rules of triangular interpretation, words used in a statute must be accorded their ordinary and natural meaning except where it will lead to absurdity.

However, where words are employed in their technical or special sense, the technical or special meaning will be accorded to those words. And in the case where the application of the literal, ordinary, natural, or grammatical meaning will lead to absurdity, we resort to the secondary meaning which the words are capable of bearing. And this is the golden rule of interpretation.

A careful reading of Section 29(1) reveals that the Judicial Committee of the Traditional Council has been vested with an exclusive original jurisdiction to entertain a cause or matter affecting chieftaincy. And by the use of the word “exclusive” in the provision, it means that the Judicial Committee of the Traditional Council does not share this original jurisdiction with any other body or any court.

Again, in interpreting a statute, the interpreter is allowed to call in aids to interpret a provision. And by aids to interpretation, it includes presumptions. There is a presumption that Parliament does not use words in vain. By this presumption, Parliament does not use words which have no practical effect. Put differently, the lawmaker does not speak in vain and that statutes must be construed as a whole to give effect to every word used in it.

In Edusei v Attorney General[xviii], Acquah JSC noted when interpreting Article 33(1) and 130(1) of the 1992 Constitution that:

“Now in the instant case, in respect of article 130(1), the main part thereof show that the Supreme Court has exclusive original jurisdiction in respect of the matters set out in sub-clause (a) and (b) thereunder. And under sub-clause (a), the exclusive original jurisdiction is in respect of the interpretation and enforcement of all the provisions of the Constitution.

But then article 33(1) as conclusively confirmed by article 140(2) of the 1992 Constitution, shows that the High Court also has original jurisdiction in the enforcement of the human rights and freedoms provisions in chapter five of the Constitution. In that situation, the main part of article 130(1) which talks of the Supreme Court’s exclusive and the emphasis is on the word “exclusive”, original jurisdiction in the enforcement of ALL the provisions of the Constitution, which by that must necessarily include those on fundamental human rights, cannot be reconciled with the allocation of the same original jurisdiction in human rights provisions to the High Court in articles 33(1) and 140(2). In other words, if that jurisdiction is exclusive to the Supreme Court, as the main part of article 130(1) provides, then that exclusive original jurisdiction cannot be shared with the High Court nor any other court.” (Emphasis mine)

Admittedly, this decision is on the interpretation of the Constitution. However, one could see the employment of the presumption that words are not used in vain in here, in that, the Supreme Court construed Article 130(1) of the 1992 Constitution in a manner which gave effect to the word “exclusive” as stated in that provision.  By parity of reasoning, one must construe section 29(1) of the Chieftaincy Act in a manner that will give effect to the words “exclusive jurisdiction” as appearing in the provision. Any interpretation which does not give effect to the words “exclusive jurisdiction” would have to be rejected.

Accordingly, in light with Edusei v Attorney General, and considering section 29(1) of the Chieftaincy Act, the Judicial Committee of the Traditional Council has original jurisdiction to the exclusion of all other courts to entertain all causes or matters affecting chieftaincy. This jurisdiction cannot be shared with any court or anybody or person(s). After all, we are enjoined by section 10(4) of the Interpretation Act 2009 (Act 792) to interpret the laws of Ghana in a purposive manner. Section 10(4) of Act 792 provides that:

“Without prejudice to any other provision of this section, a Court shall construe or interpret a provision of the Constitution or any other law in a manner

(a) that promotes the rule of law and the values of good governance,

(b) that advances human rights and fundamental freedoms,

(c) that permits the creative development of the provisions of the Constitution and the laws of Ghana, and

(d) that avoids technicalities and recourse to niceties of form and language which defeat the purpose and spirit of the Constitution and of the laws of Ghana.”

 REVIEW OF THE DECISION IN AMMA MANSA & ORS V NANA YAA ADUTWUMWAA AND ORS

The superior courts of judicature pursuant to Article 125 (3) of the 1992 Constitution and as repositories of legal wisdom have rendered opinions on the arbitrability or otherwise of a cause or matter affecting chieftaincy. Relevant to the discussion would be the review of the case cited supra.

In this case, the 1^st Respondent who was the Queen mother of Kenyasi No. 1 had nominated one Osei Kofi Abiri (5^th Respondent) to succeed the late Omanhene of Kenyasi No. 1 as custom demands. The appellants aggrieved by the decision of the Queen mother invoked the GREAT OATH (Ntamkese) of the Asantehene and the Queen mother responded accordingly. By virtue of invoking the great oath, the matter went before the Asanteman Council presided over by Otumfuo II who gave a decision in favour of the Queen mother to the effect that customarily, it was the duty of the Queen mother to nominate from the appropriate family, a successor to the stool anytime it was vacant.

Essentially, the Asanteman Council ruled that Osei Kofi Abiri was appropriately nominated as the successor to the late Omanhene of Kenyasi No. 1. The appellants agreed with the decision of the Asanteman Council but in an interesting twist, invoked the original jurisdiction of the Brong Ahafo Regional House of Chiefs (BARHOC) to determine the chieftaincy dispute since in their view the Asanteman Council presided over by Otumfuo II did not have jurisdiction to deal with the matter.

The BARHOC on an application by the Respondents to dismiss the petition filed by the Appellants, duly dismissed same on grounds that the substance of the petition filed was same as the one determined by the Asanteman Council presided over by Otumfuo II, hence the appellants were estopped by the decision of the Asanteman Council.

The Appellants aggrieved by the decision of the judicial committee of BARHOC filed a certiorari application at the High Court to quash the said decision. The High Court refused the said application and the appellants unsuccessfully appealed to the Court of Appeal.

It was against the decision of the Court of Appeal that the appellants further appealed to the Supreme Court.  The appellants argued that the matter which the Asanteman Council presided over by Otumfuo II determined was a cause or matter affecting chieftaincy and under Article 274(3)(d) of the Constitution, 1992 and section 28 of Act 759, it was the judicial committee of the Regional House of Chief which had jurisdiction to determine the dispute. Counsel for the Respondents contended that the Asanteman Council was competent to deal with the dispute.

The Supreme Court held that the proceedings that took place at the Asanteman Council was not initiated under article 274(3(d) of the 1992 Constitution and section 28 of Act 759 but rather the action was commenced as a result of the invocation of the Great Oath of Asantehene and was conducted as a necessary customary practice arising from the swearing of the oath of Otumfuo. The court further held that the Asanteman Council satisfied some of the key requirements of a valid customary arbitration. The court further held that although the parties did not choose their arbitrator, the key elements of customary arbitration were satisfied because the parties as subjects of the Golden Stool of Asante ought to have known that once you invoke the great oath of Otumfuo whether you like it or not, the Asanteman Council would adjudicate the matter.

With the greatest of respect, we humbly disagree with the decision of the Supreme Court. The Supreme Court did not refute the argument that what happened before the Asanteman Council was a cause or matter affecting chieftaincy. However, in their view, the Asanteman Council was the appropriate forum in the circumstance. The position of the law as clearly spelt is that where jurisdiction is conferred on a body to adjudicate a matter or where the law states emphatically, the procedure for prosecuting a claim, none other body or procedure ought to be adopted. This principle was echoed in the case of The Republic v High Court, Ho; ex parte Attorney General and Prof. Margaret Kwaku and 4 ors (Interested parties)[xix].

In that case, the Interested parties instituted an action at the High Court, Ho, purporting to enforce their fundamental human rights under Article 33 of the 1992 Constitution and Order 67 of the High Court Civil Procedure Rules, 2004 (CI 47). However, substantively, their action was to challenge the election of John Peter Amewu as the Member of Parliament elect for the Hohoe Constituency. The High Court granted the reliefs of the interested parties and the Attorney-General invoked the supervisory jurisdiction of the Supreme Court to quash the decision rendered by the High Court. The Supreme Court in unanimously granting the application of certiorari and speaking through Torkornoo JSC (as she then was) held that;

“The law as constitutionally and statutorily provided and judicially considered by this apex court in a plethora of decisions, does not permit the interested parties to include reliefs 1(f), 2 and 3 in the reliefs sought in their apparent human rights action when these reliefs were purporting to challenge the due election of John Peter Amewu as the Member of Parliament elect for the Hohoe Constituency.

Substantively therefore, the jurisdiction of the High Court conferred by article 99 of the Constitution, 1992 and Section 16 of PNDCL 284 of 1992, for the determination of a parliamentary dispute, is fundamentally different from a human right action pursuant to article 33(1) of the Constitution, 1992”.

The crust of the Supreme Court’s reasoning was that since Article 99 of the 1992 Constitution and Section 16 of PNDCL 284 had clearly spelt out the procedure for addressing parliamentary election disputes, the interested parties and the High Court fell in error when they used article 33 of the 1992 Constitution and Order 67 of CI 47 (a procedure for enforcing personal fundamental human rights) to address the parliamentary election dispute.

The Supreme Court had in an earlier decision addressed the issue whether or not a cause or matter affecting chieftaincy could be customarily arbitrated upon. That was in the case of Darko and Ano. v Amoah.[xx] In that case, the plaintiff on his return from abroad received a protest from the defendant (head of family) who had publicly declared at Osino before potential witnesses that the plaintiffs and all other descendants of Gyankoramaa were not members of the Osino Asona clan and heirs or heiresses to the Osino-Panin ruling stool of Osino.

Essentially, the defendant alleged that the plaintiffs and others did not hail from the appropriate family and lineage and as such could not be nominated, selected or enstooled as a chief to the Osino Stool. The suit was commenced at the Kyebi Executive and Amantoomiensa Council where the defendant moved for its dismissal on grounds of res judicata but the application failed. Subsequently, the defendant applied for a transfer of the suit to the judicial committee of the Akim Abuakwa Traditional Council where he raised a preliminary issue of res judicata and same failed once again. On commenting about the appropriateness of the transfer of the suit to the judicial committee of the Akim Abuakwa Traditional council, Taylor JSC held that;

“In this case, however, the plaintiffs sued the defendant before the Kyebi Executive and Amantoomiensa Council.

This is clearly an institution that has no judicial function to perform on chieftaincy matters and on an objection to its jurisdiction being successfully raised the matter was transferred to the appropriate council, the Kyebi Traditional Council, which heard the matter on its merits and decided in favour of the plaintiffs, the appellants herein, that they are in effect royals of the Osino stool.”

Amua-Sekyi JSC in the same case noted as follows;

“There is nothing on record to show that the proceedings of the Kyebi Council in either the complaint of 1971 or that of 1973 were an arbitration. In each case, the council assumed a customary jurisdiction which, if it ever existed, has been taken away by statute. It is worthy of note that when the question of jurisdiction was raised, reference was made to the late Dr Danquah’s Akyem Abuakwa Handbook in an attempt to show that the council had jurisdiction to deal with the complaint before it”.

Similarly, in the case of Republic v Arbitration Committee of the Central Regional House of Chiefs per the Traditional Registrar; ex parte Nana Boadi Mensah Bonsu II & Nana Etuafo Edu IV[xxi] the Court of Appeal per Honyenuga JA (as he then was) held that the arbitration committee lacked jurisdiction to determine a chieftaincy dispute in the form of a cause or matter affecting chieftaincy and as such the High Court should have issued the order of certiorari to quash that decision.

With respect to the case under review, the Supreme Court after acknowledging that the matter before the Asanteman Council presided over by Otumfuo II was a cause or matter affecting chieftaincy ought to have quashed the decision rendered by the council as the appropriate forum to have determined the matter was the judicial committee of the BAHROC. This is so because, the Constitution and the Chieftaincy Act have clearly stipulated the procedure and forum for determining a cause or matter affecting chieftaincy and that procedure or forum does not include the Asanteman Council.

 

CONCLUSION

It is absolutely clear from the above discussion that a cause or matter affecting chieftaincy is one which is not subject to arbitration but rather such matters fall squarely within the precinct of the judicial committees of the various traditional councils, regional house of chiefs and national house of chiefs.

The Supreme Court as the apex court of the land only has final appellate jurisdiction in such matters. It should be noted that inasmuch as chiefs have the power to act as arbitrators in customary arbitration where the parties consent to[xxii], and also, the fact that Act 798 makes customary arbitration applicable to resolve certain disputes[xxiii] such powers should not be extended to include causes or matters affecting chieftaincy as such interpretation would violate the clear provisions of the Constitution.

It is also our respectful opinion that the Supreme Court erroneously decided the Amma Mansa case because the decision was made in blatant disregard of clear constitutional and statutory provisions. It is our humble plea that when the Supreme Court gets the opportunity to address the issue again, they purge themselves of the wrong done.

 

The post Is a Cause or Matter Affecting Chieftaincy Arbitrable? An Exegis of a Grey Area of the Law appeared first on Citinewsroom - Comprehensive News in Ghana.

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