OPANYIN KOFI AMONOO & ORS VS NANA AFARI TWAAKO (DECEASED) & ORS

PWAMANG JSC: -

INTRODUCTION

My Lords, Chieftaincy is an age-old institution in Ghana so our republican Constitution, 1992, did not seek to establish it but only guaranteed its existence.

The customary laws and usages relating to Chieftaincy reign supreme in the determination of who is a Chief and there is no longer a legal requirement of government recognition in order to be a Chief.

The Constitution, 1992, under Article 277 defines who a Chief is in the following terms; “In this Chapter unless the context otherwise requires, "chief" means 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 queenmother in accordance with the relevant customary law and usage. ”It is only in areas including the organisation of Houses of Chiefs, jurisdiction in causes or matters affecting Chieftaincy, the keeping of a National Register of Chiefs, and the supporting role of Chiefs in the administration of the republican state that provisions have been made by the Constitution and statute.

As a consequence, our system of law maintains a dichotomy in cases about Chieftaincy.

Disputes as to the content of customary law and usage that determine the validity of enstoolment of a Chief and his status are in the exclusive jurisdiction of the Traditional Councils and Houses of Chiefs, with final appeal to the Supreme Court.

On the other hand, disputes concerning interpretation and enforcement of the enactments on Chieftaincy and related principles of the common law come within the regular jurisdiction of the courts.

This seemingly clear separation in jurisdictions on Chieftaincy however does not play out as such in practice.

There are too many reported cases that on the face are concerned with statutory provisions about Chieftaincy but the actual objectives of the claimants are to attack the status of a Chief, a matter exclusively in the domain of customary law.

This appeal we are considering falls within the jurisdiction of the courts of applying the common law and the interpretation and enforcement of the Chieftaincy Act, 1971 (Act 370) and regulations made thereunder.

That was the statute on Chieftaincy in force at the time the dispute arose.

However, the matters dealt with in the proceedings stem from a petition filed about twenty-five (25) years ago in the Judicial Committee of the Central Regional House of Chiefs to dispute the validity at customary law of t