REPUBLIC v GA MANTSE'S CUSTOMARY ARBITRATION TRIBUNAL, EX PARTE BROWN
1993
COURT OF APPEAL
GHANA
CORAM
- ESSIEM,
- BROBBEY,
- FORSTER JJA
Areas of Law
- Administrative Law
- Civil Procedure
1993
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
On appeal from the High Court in Accra, the Court of Appeal addressed whether the Ga Mantse’s Customary Arbitration Tribunal, hearing a dispute between Nii Charbukwei II (Anyah Mantse) and Augustus Kpakpo Brown over control and alienation of family lands, was subject to the High Court’s supervisory jurisdiction. The High Court (Lutterodt J) had dismissed Brown’s ex parte application for a writ of prohibition, reasoning that the tribunal, not created by statute, was outside the scope of prohibition. The appellate court, drawing on Atkin LJ’s test in Electricity Commissioners and Diplock LJ’s analysis in Lain, and recognizing that Ghana’s 1979 and 1992 Constitutions incorporate customary law and preserve chieftaincy, held that customary tribunals endowed with judicial authority are public adjudicating bodies amenable to certiorari and prohibition. The appeal was allowed and the matter remitted for the High Court to determine the merits of the prohibition motion.
This appeal is from the ruling of Lutterodt J sitting at the High Court, Accra, on 15/2/90. The appellant, in an ex parte motion sought leave of the court to issue an order of prohibition to restrain the respondents from proceeding further with the proceedings before the 1st respondent-tribunal, in the case of Nii Charbukwei II, Chief of Anyah v Augustus Kpakpo Brown.
At the hearing of the substantive motion the respondents’ counsel raised a preliminary objection contending that the High Court had no jurisdiction in as much as the Ga Mantse's Customary Arbitration Tribunal (hereinafter called ‘the tribunal’) was not set up by statute and therefore was not amenable to the supervisory jurisdiction of the High Court.
In her ruling dated 15 February 1990, the judge held that the respondent-tribunal was not an adjudicating authority and therefore outside the scope of the writ of prohibition. She therefore dismissed the application.
The tribunal is an adjudicating body set up by the Ga Mantse to which he had delegated his customary function of settling disputes among his subjects.
In the instant case, Nii Charbukwei II, the Anyah Mantse, commenced action against the respondent, Augustus Kpakpo Brown by a “Statement of Plaintiff's case”. The issue in dispute concerned the right to administer, control and alienate family lands at Anyah. In the course of the proceedings before the tribunal, the respondent apprehending that there was real likelihood of bias against him by the chairman of the tribunal, sought the writ of prohibition to restrain the tribunal from proceeding further with the proceedings.
The only issue in this appeal is whether the trial judge erred in holding that the tribunal, not having been set up under a statute, was not subject to the supervisory jurisdiction of the High Court.
In Rex v Electrictity Commissioners, ex parte London Electricity Joint Committee Company (1920) Ltd [1924] 1 KB 171 at p 205, Atkin LJ, defining the supervisory jurisdiction in these matters, said:
"Whenever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs."
It is the contention of counsel that the writ of prohibition lies only in respect of a tribunal or body whose judicial or quasi-judicial authority is conferred b