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NDASUAH AND OTHERS v. ADAZIE AND OTHERS


  • New
  • 1960-01-22
  • HIGH COURT
  • GLR 12-14
  • Print

SMITH J.


Summary

Certiorari?-State Councils?-Validity of dismissals of Captains of Asafu Companies?- Inherent jurisdiction of State Councils in matters affecting welfare of State?-No jurisdiction to enquire into merits?-No jurisdiction to impose penaltiesState Councils (Southern Ghana) Ordinance No. 8 of 1952.

Headnotes

Certain Captains of Asafo Companies of Hotopo Division had been dismissed. They referred the matter to the State Council of Ahanta, alleging that the dismissals had not been effected according to the proper principles of native [p.13] law and custom. The State Council ordered a writ of summons to issue to seventeen individuals, in which writ the plaintiffs (the aggrieved Captains) claimed as follows:?"Plaintiffs, as Asafohenfo of Hotopo Division within the jurisdiction of the Paramount Stool of Ahanta, sue defendants herein jointly and severally to show cause why defendants should declare plaintiffs destooled from office without any reasonable explanation in conformity with customary law and institution."The State Council gave a decision that the plaintiffs had been dismissed in an unconstitutional way by defendants, who were therefore "guilty for their action." The Council then went on to make an order imposing pacification fees, with expenses against the defendants.The seventeen defendants applied to the High Court for an order of certiorari, on the ground that the Council had no jurisdiction to issue a writ of summons, hear the dispute and impose penalties.

Judgement

APPLICATION for a writ of certiorari to issue to quash proceedings of the State Council, Ahanta for lack of jurisdiction.

(His lordship referred to the facts and continued).

Jurisdiction is claimed for the State Council on the basis that the matter is of a "constitutional nature" as defined in section 2 of the State Councils Ordinance, No. 8 of 1952. In my opinion, however, an Asafu Captain is not a " chief "?-a prerequisite before a State Council can hear destoolment charges. It was also argued that the State Council had the right to entertain the matter by virtue of section 2 (c) of the State Councils Ordinance. That subsection merely confers on the State Council power to [p.14] decide on the claim of any person to take part in the ceremony of the installation or destoolment of a chief. An English analogy would be the Committee of Claims which sits to determine claims made by persons to take part in the Coronation ceremony. I agree with counsel for applicants that the State Council had no jurisdiction in the matter under the State Councils Ordinance.

There is, however, the point (unassailable, in my opinion) that a State Council has inherent power to enquire into those matters which affect the welfare of the State and which are governed by the application of customary native law. In the case of Ebratwawu v. Potaisie (unreported) Dennison, J. upheld the decision of the Municipal Court, Sekondi to refer to the State Council, as the body having this inherent power to determine such matters, the question whether the head of a family had been properly elected. If the validity of the election of the head of a family is a proper matter to be referred to a State Council, how much more the dismissal of Asafo Captains.

I agree with Mr. Blay that the State Council would have no power to constitute itself as a court of first instance, so to speak, and to try this particular matter. But the State Council has not in fact done so in the present case. Certain persons (the Asafu Captains) were aggrieved at the method by which they had been dismissed, claiming that the appropriate native custom and law had not been observed. They complained to the State Councilwhich is in my view the proper forum for such mattersand it was for the State Council then to decide whether there had been a valid dismissal or not. The Council was not sitting at first instance to hear and determine dismissal charges, but simply on a reference made to them to see that what had been done had been validly done. There is no conflict, in the circumstances, with the reasoning and ruling (with which I respectfully agree) of Acolatse, J. on a motion for an order of prohibition against the State Council of Shama in the case of The Fishing Community of Aboadzi v. Enum (unreported). It is of no matter in my opinion that the State Council had the complaint brought before it by issuing a writ of summons. That is a purely procedural matter.

In my judgment the State Council had jurisdiction to hear this complaint by the dismissed Asafo Captains, and to decide whether the complaint was justified or not. It had that jurisdiction under its inherent powers to consider, as I have said, matters which affect the welfare of the State and in which principles of native law and custom have to be applied. I do not think that the decision of the State Council that the dismissals were invalid can be questioned by certiorari on the ground of lack of jurisdiction.

As regards the consequential order, however, which is separate from the decision of the State Council, I am of the opinion that the State Council had no jurisdiction to impose penalties on the defendants, and I quash the order made imposing such penalties.

Decision

<P>Application granted in part.</P>

Plaintiff / Appellant

Blay

Defendant / Respondent

Gaisie

Referals

(1)         Ebratwawu v. Potaisie (1954) Divisional Court, Sekondi, unreported.

(2) The Fishing Community of Aboadzie v. Enum (1957) Divisional Court, Sekondi, unreported.

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