WARE v. OFORI-ATTA & ORS.

[1959] GLR 181

Division: IN THE HIGH COURT, KUMASI

Invalidity of Act of Parliament—Invalidity of Minister’s Order—Requirements of Order in Council

HEADNOTES
Section 35 of the Ghana (Constitution) Order in Council, 1957 (since repealed, but in force at all
material times) provided as follows:-
“When any Bill affecting the traditional functions or privileges of a Chief is introduced into the
Assembly and is read a first time, the Speaker shall forthwith refer such Bill to the House of Chiefs of
the Region in which the Chief exercises his functions as such and no motion shall be moved for the
second reading of the Bill in the Assembly until three months after the day on which the Bill was
introduced into the Assembly.”

On the 9th December, 1957 the Statute Law (Amendment) (No. 2) Bill was introduced in the National
Assembly, and was read a first time on that date. As passed, the provisions included the following:
Sec. 3
Where under the provisions of any law it is reported to the Governor-General that aperson has been
deposed as a Chief, a notice of the fact shall be published by the Minister in the Gazette.
Sec. 4
(1) Upon publication of a notice under the provisions of section 3 of this Act, the Minister may by
Order authorise any person to take possession and prepare an inventory of the Stool property,
and when made the inventory shall be certified by the person authorised, and be delivered to the
Minister.
(2) By the same or any other Order the Minister may direct any person to seize the Stool property
where possession of the Stool property is not obtained within fourteen days of the publication
of the Notice under section 3 of this Act. Any such Order may where necessary authorise the
ejectment of any occupant of land or buildings forming part of the Stool property.
(3) Every Order made under this section shall be published in the Gazette.
Sec. 5 (1)
Where an appeal has been lodged by the person deposed as a Chief, the Stool property delivered up or
seized under the provisions of this Act shall be held by the local government council named in any
direction of the Minister published in the Gazette.
Sec. 6
Where no appeal has been lodged by the person deposed as a Chief, the Stool property delivered up or
seized under the provisions of this Act shall be disposed of in such manner as the Minister by Order
published in the Gazette may direct.
Sec. 7 (1)
(provides for the punishment upon summary conviction of any person interfering with, hindering or
knowingly giving false information to a person in the exercise of his authority under the Act), and
(2) (extends this provision to a person who fails to deliver up possession of Stool property as
required by the Act).

[p.182] of [1959] GLR 181

If this Bill affected the traditional functions or privileges of a Chief, under section 35 of the Order in
Council it became the Speaker’s duty, on the introduction of the Bill, “forthwith” to refer it to the
House of Chiefs of the Region in which the Chief concerned exercised his functions. If it affected all
Chiefs, then the reference must be to all Houses of Chiefs. It was not possible for the Speaker so to
refer the Bill, because the Houses of Chiefs, provided for by sec. 67 of the Order in Council were not
in fact established until after the passing of the Houses of Chiefs Act, 1958 on the 26th July, 1958.
Sec. 35 of the Order in Council further forbade a motion for the second reading until three months
after the introduction of such a Bill, i.e. until the 9th March, 1958. In fact, the motion was moved four
days after the introduction of the Bill, which was read a second time on the 19th December, 1957. The
Governor-General signified the Royal Assent on the 30th December, 1957.
On the 20th August, 1958 the Minister of Local Government, in exercise of the powers which he
believed had been given him by this purported Act, made the Ejisu Stool Property Order, 1958, which
provided that “Nana Kofi Atta, Ampabame Odikro, is hereby authorised to take possession and
prepare an inventory of the Stool property pertaining to the Ejisu Stool.”
The Gyasehene of Ejisu, claiming that he was himself a Chief and the customary custodian of the
property of the Ejisu Stool, instituted proceedings in the Divisional Court, Kumasi. He claimed-
(a) a declaration that the Statute Law (Amendment) (No. 2) Act, 1957, was invalid, null and void
by reason of the fact that it contravened the Ghana (Constitution) Order-in-Council, 1957;
(b) a declaration that the Ejisu Stool Property Order, 1958, made under the said Statute Law
(Amendment) (No. 2) Act, 1957, was itself null, void, invalid and of no effect; and
(c) a perpetual injunction restraining the defendants, their servants, agents, assigns and successors
in office and/or estate, from enforcing or seeking to enforce, either directly or indirectly, the
said Ejisu Stool Property Order, 1958.
Before the hearing took place, however, the Order had already been enforced; the Court therefore
dealt only with the claim for declarations.
Suit No. D.C. 258/58 (Kumasi).
Held:
(1) that the Act primarily concerned chieftaincy, or matters pertaining to chieftaincy, rather than
the community at large;
(2) that the Gyasehene is a Chief;
(3) that the Gyasehene is the customary custodian of Stool property;
(4) that his custodianship is not distinct from his position as a Chief;
(5) that the Act directly affects the traditional functions of the plaintiff as a Chief;
(6) that the procedure laid down in Sec. 35 of the Order in Council not having been followed, the
Act was invalid;
(7) that the Order made thereunder was therefore also invalid.
CASES REFERRED TO
(1) Hodge v. The Queen (9 App. Cas. 117);
(2) Russell v. The Queen (7 App. Cas. 829).

COUNSEL
Reindorf for plaintiff.
Amissah for defendants.

[p.183] of [1959] GLR 181

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 the traditional functions or
privileges of another Chief, and that the Act directly affects these functions or privileges.

[p.184] of [1959] GLR 181

The plaintiff is the Gyasehene of Ejisu. The Order which gave rise to this action was made by the
Minister of Local Government (the 1st defendant) under section 4 of the Act. The Order, having first
recited that it had been reported to the Governor-General that Diko Pim III, Ejisuhene, had been
deposed, authorised one Kofi Atta (the 4th defendant) to take possession of the Stool property
pertaining to the Ejisu Stool. The plaintiff contends that he is a Chief, and is the customary custodian
of this property. On the evidence before me I find that he is right in both these contentions. Certain
villages in the State are under him, and his enstoolment as Gyasehene was reported to the then District
Commissioner, and a notice of it was published in the Gazette. All the State properties are under his
care, and this is the case whether the Ejisuhene is in the State or away from the State. On each
occasion prior to the present one, when an Ejisuhene has been destooled or has died the plaintiff has
had custody of the Stool property. This evidence has not been rebutted, and indeed the witness called
on behalf of the defendants, the Nifahene of Ejisu, although at first he showed some disdain when
speaking of the Gyasehene’s functions, said, when cross-examined, that he regarded the Gyasehene as
a Chief, and that the Gyasehene looked after the Stool property by custom when the Stool was vacant
for any period. He then went farther than this, and said that the Gyasehene was the custodian of Stool
property whether the Ejisuhene was present or not.
In order to show that the Act comes within the ambit of section 35 of the Constitution it is only
necessary for the plaintiff to establish that it affects the traditional functions of one particular Chief.
Having found, as I do, that the plaintiff is a Chief, and that he is the customary custodian of the Ejisu
Stool property, that would at first sight appear to dispose of the matter. However, Mr. Amissah, who
has conducted this case very ably on behalf of the defendants, has made a number of interesting
submissions, which it is now necessary to consider.
Mr. Amissah’s main submission is that in so far as the Act affects the traditional functions of a Chief
it does so only incidentally; and that it is not sufficient for the plaintiff to show that the Act is one
affecting a class of persons, some of whom may incidentally be Chiefs. This involved the following
subsidiary propositions:-
(1) after the deposition of a Chief the Stool property would be in the hands of the customary
custodians who would not necessarily be Chiefs. In support of this, reliance is placed on the
evidence of the plaintiff, who said that if’ he himself were destooled his Stool property would
be looked after by the family;

[p.185] of [1959] GLR 181

(2) even in the case of the destoolment of an Omanhene, the Gyasehene, who is the customary
custodian, may or may not be a Chief ;
(3) the Gyasehene is a mere palace official, who by reason of his position in the Omanhene’s
household looks after the Stool property. It is in that capacity that he is custodian, and not in his
capacity as a Chief;
(4) the Act was passed for peace, order and good government, in accordance with section 31 (1) of
the Constitution, and that is its primary purpose. Here a comparison was drawn with the law
relating to the powers of federal and state (or provincial) legislatures in a federal constitution.
Mr. Amissah referred to the case of Hodge v. The Queen (9 App. Cas. 117), where, at p.130,
there is quoted the following passage from Russell v. The Queen (7 App. Cas.829):-
“What Parliament is dealing with in legislation of this kind is not a matter in relation to property and its
rights, but one relating to public order and safety. That is the primary matter dealt with, and though
incidentally the free use of things in which men may have property is interfered with, that incidental
interference does not alter the character of the law.”

It is, I think, impossible to contemplate that an Act affecting the community at large which had not
been referred to a House of Chiefs could be held to be invalid merely because incidentally, and in a
manner which might well have been quite unforeseen by the Legislature, it affected some traditional
function of a Chief. To this extent I agree with the foregoing submissions. The traditional functions of
Chiefs are no doubt many and varied, and one can imagine many cases in which it would be easy to
argue that some such functions were affected by legislation of a general character. However, I do not
consider that the Act now under consideration can be regarded in this light. The Act is mainly and
directly concerned with the custody of Stool property. It is noteworthy that the recovery of Stool
property is included among the definitions of “matter of a constitutional nature“ in section 68(5) of
the Constitution, and under section 68(1) provision is to be made for such matter to be determined by
a State Council. Leaving aside for the moment the question whether or not the Act directly affects the
traditional functions or privileges of a Chief, it seems to me to be indisputable that the Act does
primarily concern chieftaincy, or matters pertaining to chieftaincy, rather than the community at large.

[p.186] of [1959] GLR 181

As to the status of a Gyasehene, certain Gazette notices have been put in evidence to show that the
plaintiff is by no means the only Gyasehene in Ashanti who is a Chief. As I have already indicated, it
is sufficient for the plaintiff to establish that the traditional functions of only one Chief are directly
affected, but, in view of the arguments put forward on behalf of the defendants, I think this evidence
is material as showing that this case has not arisen from some obscure factor which it might have been
impossible to foresee when the Act was passed. Nor do I consider that it is possible to regard the
Gyasehene’s functions as custodian of Stool property as being entirely separate from his functions as
a Chief. Reference has been made to Rattray’s “Ashanti Law and Constitution” where, at page 57,
after describing the courtyard known as the gyase, and the persons who sleep and work there, he
says:-
“Later, as the establishment increased, a trusty slave was put in charge of them. From this humble
beginning we can trace the origin of that important official, the Gyase Hene who to-day is major-domo
in an Ashanti Chief’s ‘palace,’ and commands all the ‘palace’ retainers and servants.”

On page 91 of the same work a list is given of minor officials who may be under the Gyasehene, each
of them in charge of a particular department of a Chief’s household. The passage continues:-
“Some idea of the organization which has grown up from so simple a beginning may be gathered from
the perusal of such a list. In the greater Divisions the heads of some of these fokuo (sections) tended to
become lesser Chiefs, and thus the expansion from the lesser to the greater continually went on.”

These passages seem to show that, however humble may have been the origins of the Gyasehene, his
later dignity was acquired by reasons of his function as head of the household. It is clearly in exercise
of this function that he is the custodian of Stool property, and I do not think, therefore, that one can
say that such custody is merely incidental and distinct from his position as a Chief.
I do not find the comparison with the powers of federal and state (or provincial) legislatures very
exact. In Ghana there is only one Legislature, and all laws passed by it are presumed to be for peace,
order and good government, in accordance with section 31 (1) of the Constitution. Obviously the fact
that a law is so passed cannot alone exclude it from the ambit of section 35. Since, if this were so,
section 35 would not have applied to any law. The only criterion, in my view, was whether a Bill
directly affected the traditional functions and privileges of a Chief. If it did so, the procedure laid
down

[p.187] of [1959] GLR 181

in section 35 had to be followed, whatever other purpose the proposed legislation might have.
It has also been submitted that, if the custody of Stool property is the privilege of a Chief, this
privilege had already been tampered with by previous legislation. For this submission to avail the
defendants it would have to be shown not merely that the privilege had been tampered with, but that it
had been abrogated, so that at the time of the passing of the Act the custody of Stool property was no
longer one of the traditional functions or privileges of a Chief. The legislation referred to is, first, the
Stool Property Protection Ordinance under which the Governor had power to make rules for, inter
alia, the safe custody of Stool property. I cannot find, however, that any rules were made depriving
Chiefs of their traditional functions in this connection. The Ordinance was repealed by the State
Councils (Ashanti) Ordinance, 1952, section 23(1) of which reads as follows:—
“Whenever any decision of the Asanteman Council or of a State Council or of the Governor involves the
recovery of stool property, the Asanteman Council, the State Council or the Governor, as the case may
be, may make such order as may be necessary to secure the delivery up of any stool property therein
specified to the person or persons entitled thereto, and shall cause such order to be served upon any
person by whom such property is to be delivered up.”

The “persons entitled thereto” would presumably be the persons entitled by native customary law
following the decision referred to in the first part of the section. This does not on the face of it involve
any abrogation of customary functions or privileges. It may be contrasted with the provisions of the
Statute Law (Amendment) (No. 2) Act, 1957, under which the Minister may, inter alia, order that
Stool property be held by a local government council.
For the reasons I have given I find that the Act does directly affect the traditional functions of a Chief,
that is to say (as appears from this action) the Gyasehene of Ejisu as the customary custodian of Stool
property. Since the procedure laid down in section 35 of the Constitution was not followed before the
Act was passed, I must therefore hold that the Act is invalid. It follows that the Order, which was
made under the Act, is also invalid.
It is unnecessary for me to consider the other grounds upon which the validity of both the Act and the
Order have been attacked.

DECISION
I give judgment for the plaintiff for the two declarations sought, namely that the Statute Law
(Amendment) (No. 2) Act, 1957, is invalid, and that the Ejisu Stool Property Order, 1958, is invalid.
No order as to costs.