1999
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana considered a review application arising from its earlier 13 May 1998 majority decision that had quashed a Kumasi High Court judgment in a dispute over the headship of the Moshie Community. After Alhaji Ibrahim Abdulrahams death, rival factions selected Alhaji Abdulrahman Adam and Alhaji Amadu, respectively, as head. The High Court declared Adam the valid head, finding nomination by the Council of Elders and installation by the Mamprusihene. The Supreme Court had previously quashed that judgment on the basis that the matter affected chieftaincy. In this review, Acquah J.S.C. authored the lead opinion, with Wiredu, Bamford-Addo, Adjabeng, Atuguba, and Sophia Akuffo agreeing; Ampiah dissented. Applying Article 277 and the Chieftaincy Act, the Court held the community headship is not chieftaincy, the High Court had jurisdiction, and the earlier certiorari was per incuriam and reversed.
EDWARD WIREDU J.S.C.:
I have had the privilege of reading before-hand the able and learned opinion about to be read by my brother Acquah J.S.C. in this case - being an application for a review of the majority decision of this court given on 13th May 1998. I concur in both his reasoning and conclusion.
Article 277 of the 1992 Constitution defines a "chief" as follows:
"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" (Emphasis is mine)
And in the celebrated case of Mosi v. Bagyina [1963] 1 GLR 337, the Supreme Court held (as stated in holding (4) at p.338 as follows:
"Where a judgment or an order is void either because it is given or made without jurisdiction or because it is not warranted by any law or rule or procedure, the party affected is entitled ex debito justitiae to have it set aside, and the court or a judge is under legal obligation to set it aside, either suo motu or on the application of the party affected. No judicial discretion arises here. The power of the court or a judge to set aside any such judgment or order is derived from the inherent jurisdiction of the court to set aside its own void orders and it is irrespective of any expressed power of review vested in the court or a judge; and the constitution of the court is for this purpose immaterial. Further, there is no time limit in which the part affected by a void order or judgment may apply to have it set aside. Craig v Kanseen [1943] 1 KB 256, CA.; Forfie v Seifah [1958] AC 59, PC; Amoabimaa v Badu (1957) WALR 214, WACA; Concession Enquiry No 471 (Ashanti) [1962] 2 GLR 24, SC and Ghassoub v Dizengoff [1962] 2 GLR 133, SC applied."
The principle enunciated in the Bagyina case (supra) is essentially jurisdictional and it goes to the root of any decision thus given.
On the facts of the instant case, it is clear that there was a misconception on the part of the majority of the court (per Abban C.J. and Charles Hayfon-Benjamin and Ampiah JJ.S.C. - Atuguba and Sophia Akuffo JJ.S.C. dissenting) as to what was the real issue for which the parties were contesting. The issue was a straightforward case of who had been validly appointed the Head of the Moshie Community in Kumasi simpliciter. It had nothing to do with "chieftaincy" a