REPUBLIC v. NEW JUABENG TRADITIONAL COUNCIL EX PARTE NANA SARKODEE I

JUDGMENT OF JIAGGE J.A.

The appellants in this case preferred destoolment charges against the respondent in the New Juabeng Traditional Council. The respondent, while the action was pending against him, applied to the High Court for leave to issue a writ of prohibition against the New Juabeng Traditional Council on the ground that the appellants were not competent to prefer destoolment charges against him. The ex parte motion for leave was granted and notices together with all the relevant papers were served on the parties concerned.

The respondent later filed a supplementary affidavit which was summed-up by the trial court in the judgment as follows:

"(1) That he had been summoned by the New Juabeng Traditional Council to defend a charge that he had disclosed to a newspaper that charges were to be preferred against its 'chairman,' i.e. the omanhene.

(2) That he had been declared destooled by that council, as he failed to appear before the council.

(3) That the order of destoolment had later been reversed by the Court of Appeal.

(4) That another summons in a further effort to destool him had then been issued against him by the same council, requiring him to answer charges, [including] the principal complaint against him in the earlier case, viz. that he was after the destoolment of the Omanhene, the President of the Council.

(5) That the members of the council, who would try the new case, would be some of the councillors, who had declared him destooled.

(6) That there was therefore a likelihood of considerable bias operating against him . . ."

The court found that there was real likelihood of bias (or malice as stated in the judgment) on the part of the councillors to disqualify them from hearing the matter and the order for prohibition was granted.

The main ground of appeal argued by counsel for the appellants before this court was that:

"the learned judge erred in holding that the new Juabeng Traditional Council cannot go into the destoolment charges preferred against the respondent by the elders of his stool from his own relatives who are entiled under customary law to nominate, elect and destool the Kyidomhene."

[p.917]

Counsel argued that the traditional council was the only body clothed with jurisdiction to deal with chieftaincy matters, and that the question of capacity was one within the competence of the council to decide.

Counsel for the respondent conceded that the traditional council had the right to decide whether or not it h