BEN AZURE & OTHERS v. THE REGISTRAR, UPPER EAST REGIONAL HOUSE OF CHIEFS & ANOTHER
March 25, 2019
COURT OF APPEAL
GHANA
CORAM
- OWUSU, J.A. (PRESIDING)
- DZAMEFE, J.A.
- WELBOURNE, J.A
Areas of Law
- Civil Procedure
- Administrative Law
March 25, 2019
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
In this Ghana Court of Appeal decision authored by Mariama Owusu, J.A., the court affirmed the High Court, Kumasi’s striking out of a prohibition application and refusal of a joinder in a chieftaincy dispute about the Nangodi Paramountcy. The appellants had sought declarations and injunction against the Interested Party’s enskinment before the Upper East Regional House of Chiefs and alleged bias by its Judicial Committee, leading them to seek judicial review at the High Court. The respondent raised a preliminary objection that, under Section 70 of the Chieftaincy Act, 2008 (Act 759), the Registrar was not a proper party; appellants then sought joinder of the President of the House. The Court of Appeal held that Act 759 prescribes the proper respondent, and that joinder after a preliminary objection would overreach the respondent, relying on Banda v Ayisi, Macfoy v UAC, Standard Bank Offshore Trust and Boyefio v NTHC. The appeal was dismissed.
JUDGMENT
MARIAMA OWUSU, J.A.
On the 8th February, 2017, the High Court, Kumasi struck out the Petitioners/Applicants application for joinder as being incompetent. The court held among other things as follows:
“On the evidence before me, I find that the respondent (the Registrar) is not the proper party to the action initiated by the applicants.
The President of the Upper East Regional House of Chiefs or the Regional House of Chief ought to be the party. And in view of the fact that the Registrar of the Regional House of Chiefs cannot be a party, the action against him is clearly incompetent. And this defect cannot be cured by joining the President to him whilst he still remains a party though he ought not by operation of law.
Now, what is the effect of my refusal to join the President of the Upper East Regional House of Chiefs to this action?
By the present application for joinder, the Petitioners have clearly conceded that they mounted the instant action against the wrong party. That is, the reason why they sought to now join the right party who is the President of the Upper East Regional House of Chiefs. But this court had taken the view that the said President cannot be joined to a party who has no capacity to be a respondent in the action. Consequently, the application has been dismissed. It follows therefore that the legal point taken by the counsel for the respondent means that there is nothing to be determined by this court at this stage because the respondent has no locus stand in this case.
Accordingly, I will not hesitate to strike out the substantive application because it will be an exercise in futility to allow any arguments to be made in respect of the substantive matter when it was clear that the respondent ought not to have been made a party in the first place.
Accordingly, I will strike out the substantive application as being incompetent. I will add that the substantive application has not been determined on the merits. Nothing therefore prevents the applicants from mounting the action against the proper party.
I will award costs of Gh¢5,000.00 against the applicants for the respondent and Gh¢1,500.00 for the interested party.”
Dissatisfied with the Ruling of the High Court, the applicants appealed to the Court of Appeal on the following grounds:
a. The Ruling/Decision of the court is against the weight of evidence.
b. The learned trial Judge erred when he dismissed the Applicants/Appellants’ motion for joinder to join the Pre