THE REPUBLIC v. THE STANDING COMMITTEE OF NKUSUKUM TRADITIONAL COUNCIL, EX PARTE: NANA EBIYATAKYI III & ORS

MARFUL-SAU, JA: - This appeal is taken from the judgment of the High Court, Cape Coast dated the 15th May 2008. The trial court in the said judgment refused to grant the appellants application for Certiorari to quash two decisions of the Standing Committee of the Nkusukum Traditional Council. The decisions sought to be quashed were:-

1. The dissolution of the Assets and Management Committee of Kuntu and

2. The dissolution of the No. 5 Asafo Company of Kuntu.

The appellants aggrieved by the decision of the trial court filed this appeal with eight grounds and prayed that the decision of the trial court be reversed.

Now, upon a carefully study of the record of appeal in this case, I observed that the trial proceeded on a procedural flaw which renders the entire trial a nullity. Accordingly, after addressing the fundamental flaw in this judgment, no useful purpose would be served in discussing the grounds of appeal formulated by the appellant. What is this procedural flaw revealed by the record of appeal?

The action commenced by the appellants herein who were the applicants at the court below was brought against the ‘’Standing Committee’’ of the Nkusukum Traditional Council. The appellants action which was commenced on the 8th of December 2003, was prosecuted under the old High Court Rules, namely LN 140A. From the above commencement date it is also obvious that the action was brought under the old Chieftaincy Act, 1971, Act 370.

The Chieftaincy Act, 1971(Act 370) did not create any such body as ‘’Standing Committee’’ of a Traditional Council. This committee is unknown by the statute that governed traditional institutions in this country. The body that was sued by the appellants is thus a non-juristic entity and as such has no capacity to sue or be sued. The respondent in this appeal namely the Standing Committee of the Nkusukum Traditional Council clearly lacks the legal personality and for that matter the entire proceedings commenced by the appellants was a nullity as a result of this procedural flaw.

The traditional councils were established under section 12 of the Chieftaincy Act, Act 370. The jurisdiction of the traditional councils was provided under section 15 of Act 370 as follows:-

‘’ 15 (1) Subject to this Act and to an appeal from the traditional council, a traditional council has exclusive jurisdiction to hear and determine a cause or matter affecting chieftaincy which arises within its area, not being one to which the Asantehene or a Par