Naaba Kulga I and Another v Ouedraogo II (CR/HCKO/E12/064/25) [2025] GHAHC 153 (4 June 2025)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD AT KASOA-OFAAKOR ON TUESDAY THE 4TH DAY OF JUNE, 2025 BEFORE HIS LORDSHIP JUSTICE EDWARD TWUM J. JUSTICE OF THE HIGH COURT SUIT NO. CR/HCKO/E12/064/25 1. ALHAJI IBRAHIM NAABA KULGA I … PLAINTIFFS/RESPONDENTS (SUING AS THE CHIEF OF THE MOSHIE COMMUNITY IN THE AWUTU TRADITIONAL AREA) 2. NAABA SAMMAA (SUING AS THE HEAD OF FAMILY OF THE MOSHIE COMMUNITY IN THE AWUTU TRADITIONAL AREA) ALL OF UNNUMBERED HOUSE, AWUTU SENTA EAST VRS. MOHAMMED AMINU UMAR OUEDRAOGO II … DEFENDANT/APPLICANT PARTIES 2ND PLAINTIFF PRESENT AND REPRESENTS THE 1ST PLAINTIFF DEFENDANT – PRESENT. LEGAL REPRESENTATION VLADIMIR NIKOI KOTEY FOR PLAINTIFFS – PRESENT DR. EUGENE ASIAMAH BOADI FOR THE DEFENDANT – PRESENT RULING Introduction Page 1 of 11 1. This is a ruling on an application on notice brought by the Defendant/Applicant (hereinafter referred to as “the Defendant”) for an order of this court to set aside the writ of summons and statement of claim of the Plaintiffs/Respondents (hereinafter “the Plaintiffs”) on the grounds that the current action by the Plaintiffs constitute a cause or matter affecting chieftaincy which this court lacks jurisdiction to entertain. Background 2. The Plaintiffs per their writ of summons issued from the Registry of this Court on the 16 April, 2025 claimed against the Defendant the following reliefs: i.) A declaration that the 1st Plaintiff is the duly selected, appointed, installed and substantive Chief of the Moshie Community in the Awutu Traditional Area, and duly recognized as such by the Omanhene of the Awutu Traditional Area. ii.) A declaration that the installation of the Defendant as the Chief of the Moshie Community in the Awutu Traditional Area whilst there is a substantive Chief will be or/and is a breach of custom, null and void and of no effect. iii.) An order of perpetual injunction barring the installation of the Defendant as the Chief of the Moshie Community in the Awutu Traditionial Area until he is duly selected and appointed as such. iv.) An order for perpetual injunction against the Defendant, restraining him from holding himself out as the Chief of the Moshie Community in the Awutu Traditional Area until he is duly selected and appointed as such. v.) Costs, including solicitor’s fees and other costs occasioned by this instant suit. vi.) Any other reliefs that the Honourable Court may deem just and fit. 3. Filed together with the writ of summons and statement of claim was a motion ex parte praying this court for an order of interim injunction barring the installation of the Page 2 of 11 Defendant as the Chief of the Moshie Community in the Awutu Traditional Area with a return date of 17 April, 2025. At the hearing of the ex parte application on the return date, this court granted a limited interim injunction of ten (10) days against the installation of the Defendant as the Chief of the Moshie Community in the Awutu Traditional Area, with a direction to the Plaintiffs to come on notice to the Defendant upon the expiration of the ten (10) days. 4. The Defendant entered conditional appearance through his lawyers and has brought the instant application praying this court to set aside the writ of summons and statement of claim on the grounds that this action is a cause or matter affecting chieftaincy which this Court lacks jurisdiction to entertain. Case of the Defendant/Applicant 5. It is the case of the Defendant that this Court is not seized with jurisdiction to entertain actions such as this matter is a matter affecting chieftaincy which is reserved for the Judicial Committees of the Traditional Councils. Case of the Plaintiffs/Respondents 6. The Plaintiffs opposed the instant application and filed an affidavit in opposition. It is the case of the Plaintiffs that chiefs are categorized under two broad groups namely conventional chiefs and unconventional chiefs. It is the case of the Plaintiffs that conventional chiefs are those chiefs whose positions are ancestral and hereditary and are installed in accordance with custom and tradition as prescribed by law. Plaintiffs say unconventional chiefs or honorary chiefs on the other hand comprise those chiefs whose positions are not hereditary. 7. It is the case of the Plaintiffs that disputes involving the nomination, election, selection, enstoolment, enskinment, destoolment, removal, appointment or installation of Page 3 of 11 honorary chiefs are not causes or matters affecting chieftaincy, and therefore issues involving honorary chiefs are triable by the law courts and not the Judicial Committees of the Traditional Councils, Regional Houses of Chiefs or the National House of Chiefs. 8. It is the case of the Plaintiffs that the position of the “Moshie Chief” is a migrant or community chief and hence such position falls under the category of unconventional or honorary chief, and therefore the dispute involving the nomination, election, selection, enstoolment, enskinment, destoolment, removal, appointment or installation of a Moshie Chief are not causes or matters affecting chieftaincy hence they are triable by the law courts and therefore this court has the requisite jurisdiction to entertain this matter. 9. The Plaintiffs contend that this application was aimed at embarrassing and unnecessarily tormenting the Plaintiffs and same constitutes abuse of the court process and same ought not to be entertained by this Court and pray that this Court ought to dismiss the instant application with punitive cost. The Law and this Application 10. It is provided in the 1992 Constitution, Article 277 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.” 11. It is also provided under the Chieftaincy Act, 2008 (Act 759), Section 57(1) as follows: Page 4 of 11 “A chief is 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 land and usage.” It is further provided under Act 759, Section 59(1) and (2) as follows: “(1) The National House shall maintain a register to be known as the “National Register of Chiefs” (2) The National House shall cause to be recorded in the National Register of Chiefs the particulars relating to chieftaincy that it may think fit or as required by this Act or any other enactment to be recorded in it.” 12. In this application, the Defendant is inviting this Court to set aside the writ of summons and statement of claim of the Plaintiff on the grounds that this action is a cause or matter affecting chieftaincy and to that extent this Court is not seized with jurisdiction to entertain the substantive suit. If this position of the Defendant is to be accepted, it will mean this court has no jurisdiction to entertain this suit because per the Courts Act, 1993 (Act 459), Section 57, this Court has no jurisdiction to entertain either at first instance or on appeal any cause or matter affecting chieftaincy. 13. The Plaintiffs on their part claim that the position of Moshiehene among the Moshie Community in the Awutu Traditional Area is not the same as a position of a chief properly so called in accordance with law and custom and therefore any litigation in relation to the position of the Moshiehene or Head of the Moshie Community cannot be a cause or matter affecting chieftaincy. If the position of the Plaintiffs is to be accepted, it means this Court is seized with jurisdiction to hear this matter. Page 5 of 11 14. Article 277 of the 1992 Constitution and Section 57(1) of the Chieftaincy Act, 2008 (Act 759) quoted supra have given a legal definition of who a chief is in Ghana. From the definition given by both the 1992 Constitution and Act 759, a chief must hail from a particular family or lineage who by customary practice and tradition, are entitled to ascent to the position of a chief in that particular community. In addition, such a person must validly be nominated, elected and selected and installed as a chief in accordance with the customs and traditions of that particular traditional area. 15. In addition to the above, Act 759, Section 59(1) mandates the National House of Chiefs to keep a National Register of Chiefs in which the particulars of persons who have been duly and validly selected and installed as chiefs must be recorded. Therefore one cannot be recognized as a chief if his particulars are not recorded in the National Register of Chiefs kept by the National House of Chiefs. 16. One significant feature of the installation of a chief can also be found in Section 62(2) of Act 759 where it is stated that “Despite any provision of this Act, an installation of a chief or queen mother is not valid unless, at least fourteen days before the date of installation, public notice of it, in accordance with the custom of the area, has been given.” 17. Act 795, section 58 also identifies the various categories of chiefs we have in Ghana as follows: “(a) Asantehene and Paramount Chiefs. (b) Divisional Chiefs, (c) Sub-divisional Chiefs, (d) Adikrofo, and (e) other chiefs recognized by the National House.” Page 6 of 11 There is no evidence which of the above category the Head or Chief of Moshie Community in the Awutu Traditional Area belongs to, as no such evidence was presented at the hearing of this application. 18. From the constitutional and legislative provisions discussed so far, can one conveniently describe the position of the Moshie Chief among the Moshie Community in the Awutu Traditional Area as a chief properly so called? This Court does not think so for obvious reasons. 19. In the first place, the position of the Moshie Chief among the Moshie Community in Awutu Traditional Area does not emanate from any particular family or lineage and therefore any responsible member of the Moshie Community who can exhibit quality leadership traits can present himself to be nominated to that position after going through the requisite rituals. Again, the particulars of persons selected and elected and installed into the position of Moshie Chief in the Moshie Community are not recorded in the National Register of Chiefs. Indeed, in this application, no evidence was presented by the Defendant from the National Register of Chiefs to support his claim that the matter we are dealing with is a chieftaincy matter because there is none. 20. The Moshie Chief in the Awutu Traditional Area, like other migrant or community chiefs, cannot be equated with the position of chiefs in Ghana as we know it by law and custom. These are leaders appointed by particular tribes, in this case, the Moshie Community, living outside their own traditional areas. Such leaders are given the title of chiefs to reflect their unique position leaders or heads of their communities in a “foreign land” and therefore their position, by law and custom, cannot be equated to their host chiefs. Page 7 of 11 21. I will conclude this ruling by discussing the Supreme Court case of the Republic v. High Court, Kumasi; ex parte Abubakari (No. 3) [2000] SCGLR 45, which was cited by the Counsel for the Plaintiff in his submissions in opposing this application. 22. In this case, the facts of which is gleaned from the headnotes, the Chief of the Moshie Community in Kumasi died and it became necessary for another person to be appointed to succeed him. A dispute as to his successor erupted between two rival candidates: Alhaji Ibrahim on the one hand, and Alhaji Abubakari on the other. The dispute was referred to the Asantehene who appointed a panel of arbitrators to settle it amicably. The arbitration ruled in favour of Alhaji Abubakari. However, not satisfied with the decision of the arbitrators, Alhaji Ibrahim sued Alhaji Abubakari as defendant in the High Court for, inter alia, a declaration that he was the substantive Kumasi Moshie Community Head duly selected, installed and recognized as such by the Asantehene. Alhaji Abubakari denied the claims and counterclaimed for the same relief, namely, that he was the Head of the Moshie Community in Kumasi. 23. The trial High Court judge, on the evidence, found that the plaintiff, Alhaji Ibrahim had been validly installed as the Moshiehene of Kumasi. He therefore gave judgment in his favour. Dissatisfied with the decision of the trial judge, the defendant brought an application in the Supreme Court for an order of a certiorari to quash the decision on jurisdictional grounds, namely that the matter determined by the High Court constituted a cause or matter affecting chieftaincy in the Moshie Community in Kumasi, and that the High Court had no jurisdiction to determine the same under the Courts Act, 1993 (Act 459), section 57 and the Chieftaincy Act, 1971 (Act 370), section 15(1). 24. The Supreme Court by three to two majority decision, granted the application on that ground. The plaintiff therefore brought the instant application for review of the majority decision. By a majority of six to one, with Ampiah JSC dissenting, the Supreme Page 8 of 11 Court reversed its earlier decision and ruled that the dispute was not a cause or matter affecting chieftaincy; accordingly the judgment and orders of the High Court were made within jurisdiction. The apex court held that on the undisputed evidence or facts as found by the trial judge, the question of headship of the Moshie Community in Kumasi did not fall within the definition of “chief” under article 277 of the 1992 Constitution. The legal definition required that for a candidate to qualify as a chief, he must fail from the “appropriate family and lineage”, i.e. be a member of the family or lineage from which the candidate must be selected, and his nomination, election etc. must be in accordance with the established customary law and practice governing the position. 25. His Lordship Justice Wiredu, JSC in his concurring opinion had this to say: “The issue was a straightforward case of who had been validly appointed Head of Moshie Community in Kumasi simpliciter. It had nothing to do with “chieftaincy”, a concept commonly described in legal parlance as “cause or matter affecting chieftaincy” within the language of the Chieftaincy Act, 1971 (Act 370). The Headship of the Moshie Community, on the facts, clearly reveals that: (a) it is not linked to any recognized stool or skin within the Kumasi Traditional Area, and (b) its eligibility is not confined to any particular family and lineage of the Moshie Community in Kumasi as prescribed by article 277 of the 1992 Constitution. The sole qualification is that it is open to all members of the Moshie Community who live in Kumasi and who have distinguished themselves individually in their own individual capacities and in their various calling while staying in Kumasi. The presentation of such a head to the Asantehene does not elevate such a head to a recognised chief in the Kumasi Municipality or Ashanti. The decision of the majority of this court in favour of the respondent, Alhaji Abubakari, therefore, was given per incuriam in relation to the constitutional definition of a “chief” under article 277 of the 1992 Constitution.” Page 9 of 11 26. His Lordship Acquah JSC (as he then was) who wrote the majority decision of the apex court held as follows: “In the face of the definition of a chief in article 277, it will be totally unacceptable to contend that heads and leaders of migrant communities on “foreign” lands are chiefs. This will, of course, imply that not only the Head of Moshie Community in Kumasi will qualify as a chief, but also that the Heads of Fante, Ewe, Nzima, Ga, Yoruba, Indian and other communities in Kumasi would all be Chiefs. And in this case the evidence shows that the Moshie Community has sub-heads. They would also quality as sub-chiefs. This is absurd. What category of chief would the head of such migrant community fall under – paramount, divisional, sub-divisional or what? In my view, the definition of a chief in article 277 does not cover the head of a migrant community in Kumasi or London.” 27. From the holding of the Supreme Court in the above case, it is clear that the current suit between two rivals each claiming to be the recognized head or chief of the Moshie Community in the Awutu Traditional Area cannot be and does not constitute a cause or matter affecting chieftaincy as prescribed by law and custom and therefore this Court, and for that matter any court of competent jurisdiction in Ghana has jurisdiction to hear such matters. 28. Whilst the 1992 Constitution confers on the Supreme Court the power to depart from its previous decision if it appears right to it to do so, this Court is bound by the decisions of the Supreme Court on questions of law and therefore this court cannot legally depart from the ratio decidendi established by the Supreme Court in reaching its decision in the Republic v. High Court, Kumasi; ex parte Abubakari (No. 3) (supra). In the circumstances, this application is found to be without merit and same is hereby dismissed. Suit to take its normal course in this Court. Leave is hereby granted the Defendant to file his defence and affidavit in opposition to the injunction application out Page 10 of 11 of time, which is not opposed by the Plaintiffs. Suit is adjourned to 27th June, 2025 for the motion to be heard. 29. Cost of GHC2,000.00 is hereby awarded in favour of the Plaintiffs against the Defendant. (SGD) EDWARD TWUM J. (JUSTICE OF THE HIGH COURT) Page 11 of 11