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April 10, 1959
HIGH COURT
GHANA
CORAM
JUDGMENT OF MURPHY J
(His lordship stated the facts, and proceeded:-)
In this judgment the Ghana (Constitution) Order-in-Council, 1957, the Statute Law (Amendment) (No. 2) Act, 1957, and the Ejisu Stool Property Order, 1958, will be referred to as the Constitution, the Act and the Order respectively.
By Section 31(5) of the Constitution the Supreme Court is vested with original jurisdiction in cases in which the validity of a law is called in question. The main ground upon which the validity of the Act is attacked is that it was passed into law without the requirements of section 35 of the Constitution having been complied with.
(His lordship read the section, and proceeded:-)
It has not been argued on behalf of the defendants that the non-existence of Houses of Chiefs could excuse non-compliance with section 35 of the Constitution, if the Bill was one affecting the traditional functions or privileges of a Chief. In the absence of any express proviso modifying the terms of section 35, it is clear that no such legislation could be passed until there was a House of Chiefs to which it could be referred. In any event, the section also provided for a lapse of three months between the introduction of the Bill and its second reading, and this requirement was not complied with in the case of the Bill then under consideration.
The question to be answered, then, is whether the Act is one affecting the traditional functions or privileges of a Chief. In its preamble the Act is described as "An Act to impose additional penalties upon failure to deliver up Stool or Skin properties upon the deposition of a Chief." An examination of the Act itself shows this to be only a partial description of its purpose. (His lordship referred to those sections of the Act set out in the Headnote and proceeded:-)
A comparison of these provisions with previous legislation, to which I shall refer later, shows that the Act goes farther than merely imposing additional penalties, as indicated in the preamble, and provides a new procedure for the custody of Stool property after the deposition of a Chief. Under section 4, the Minister may authorise any person to take possession of the property; under section (5(1), he may direct that the property be held by a local government council; and under section 6, the property may be disposed of in such manner as he may direct. On behalf of the plaintiff it is contended that the custody of Stool property after the deposition of a Chief is one of
AI Generated Summary
Murphy J of the Ghana Supreme Court exercised original constitutional jurisdiction to determine whether the Statute Law (Amendment) (No. 2) Act, 1957, and the Ejisu Stool Property Order, 1958, were valid. The Act’s preamble framed it as imposing additional penalties for failure to surrender Stool property upon a chief’s deposition, but the court found its provisions went further, empowering the Minister of Local Government to take possession, hold via local government councils, and dispose of Stool property. The Ejisu Stool Order authorized Kofi Atta to take possession following the deposition of Diko Pim III, Ejisuhene. The plaintiff, the Gyasehene of Ejisu, established he is a Chief and the customary custodian of Stool property. Murphy J held that the Act directly affects chieftaincy functions, thus section 35’s House of Chiefs consultation and timing requirements applied. Non‑compliance rendered the Act invalid, and the Order made under it likewise invalid. The court declined to address other grounds and made no order as to costs.