The High Court has granted an order of injunction restraining the National House of Chiefs (NHCs), its agents, assigns and workmen, from entering the name of one Asaretwe II, in the National Register of Chiefs as Chief of Kade.
Per the order, the House of Chiefs is also restrained from gazetting and recognizing the said Asaretwe as Chief of Kade in the Eastern Region of Ghana until further notice.
The Court presided over by Justice Priscilla Odikro Ofori further ruled that, the decision of the National House of Chiefs to enter the name of Asaretwe in the National Register of Chiefs as new Kadehene (Chief) was “tainted with illegality” and “wrongful.”
The Court said, the act was also “procedurally improper, unfair, unreasonable and same was in breach of natural Justice.”
Justice Mrs. Odikro Ofori’s ruling was premised on an application for Judicial Review in the nature of Certiorari and injunction filed by Osabarima Agyare Tenadu II, Kadehene against the National House of Chiefs and four other Respondents.
The Court following the grant of the Applicant’s request, awarded a cost of GHc20,000 against the National House of Chiefs and a further cost of GHc20,000 against the 2nd to 5th respondents all in favour of the applicant.
The decision of the court was after Chief of Kade, Osaberima Agyare Tenadu II dragged the NHC, (1st Respondent), the supposed new Kadehene (2nd Respondent) and four others Respondents to Court following his alleged destoolment.
It would be recalled that on December 21, 2022, the National House of Chiefs in the Eastern Region, entered the name of Asaretwe II into the register of National House of Chiefs.
Following the decision, Osabarima Agyare Tenadu II, the Chief of Kade who was being removed per the House of Chiefs judgement, challenged the decision and filed a motion for Stay of Execution at the House of Chiefs and also a motion for leave to appeal against the decision at the Supreme Court.
But, while the two motions are still pending a determination, the NHCs which was barred from taking any further action until those applications are dealt with, went ahead to enter the name of the supposed new Chief into the National Register of Chiefs.
Osabarima Agyare Tenadu, the Applicant in the matter named – the National House of Chiefs, Asaretwe II, Abusuapanin Otibu Asare, Krontehene Nana Berchie Darko Ampem, and Asafoatse Yaw Danso as the 1st to 5th Respondents respectively.
*Subject matter*
On March 1, this year, the Applicant, Osabarima Agyare Tenadu II, through his lawyers filed a Motion on Notice praying the Court for an Order of Judicial Review in the nature of Declarations, Certiorari and Injunction.
The motion sought specifically as follows against the National House of Chiefs, (1st Respondent), Asaretwe II, (2nd Respondent), Abusuapanin Otibu Asare, (3rd Respondent), Krontehene Nana Berchie Darko Ampem, (4th Respondent), and Asafoatse Yaw Danso, (5th Respondent).
(a) Adeclaration that, the 1st Respondent’s administrative act/decision to enter and the entering of the name of the 2nd Respondent in the National Register of Chiefs as Chief of Kade in the Eastern Region of the Republic of Ghana at the instance and instigation of the 2nd to 5th Respondents is tainted by illegality and procedural impropriety and to that extent wrongful and amenable to Judicial Review Order of Certiorari.
(b) An Order of Certiorari quashing the 1st Respondent’s administrative act/decision dated December 21, 2022 to enter and the entering of the name of the 2nd Respondent herein in the National Register of Chiefs as Chief of Kade in the Eastern Region of the Republic of Ghana.
(c) An Order of injunction restraining the 1st Respondent, its agents, assigns, workmen, privies and all persons claiming through it or taking instructions from it from entering the name of the 2nd Respondent in the National Register of Chiefs as Chief of Kade and from gazeting/recognizing the 2nd Respondent as Chiefs of Kade in the Eastern Region of the Republic of Ghana.
(d) Any further Order(s) as the Court may deem fit.
*Ruling*
Ruling on the Applicant’s motion for Judicial Review in the nature of declaration, Certiorari and injunction filed by Osaberima Agyare Tenadu II, on October 31, Justice Mrs Odikro Ofori said, there was a legal impediment that bars the House of Chiefs from the decision taken and found the decision “wrongful.”
The Court granted the application as prayed.
“In line with all the above, I found the decision of the 1st Respondent to enter the name and particulars of the 2nd Respondent and the entering of the 2nd Respondent’s name and particulars into the National Register of Chiefs despite the fact that two Motions are pending before it for determination against its judgment forming the basis of the entering of the name, illegal, procedurally improper, unfair, unrcasonable and same is also in breach of the rule of natural justice,” the Court ruled.
“And on the grounds of illegality, procedural impropriety, breach of the rule of natural justice and unfairness, this Court is competent to grant the instant application,” the Court added.
“In conclusion and per the processes filed, there is no doubt that as at the time the 1st Respondent took the decision to enter the name of the 2nd Respondent in the
National Register of Chiefs, there was a pending Motion for Stay of Execution of the judgment of the Judicial Committee of the 1st Respondent.
“There is also no doubt that the pendency of the said Motion for Stay in particular by its very nature and effect in law served as a legal impediment or a bar in the way of anyone that could have acted on the said judgment of the Judicial Committee of the National House of Chiefs to take any step against the applicant herein including removal of his name from the National Register of Chiefs,” Justice Ofori ruled.
“It is therefore procedurally improper and illegal for the same National House of Chiefs through an administrative decision to seek to take step which had the effect of rendering otiose the pending Motion for Stay of Execution of its own judgment forming the basis of the entering of the name of the 2nd respondent ni the National Register of Chiefs.
“Again, since the Applicant had his name in the National Register of Chiefs as Chief of Kade, it was procedurally improper and a breach of natural Justice for the 1st Respondent to have taken a decision to register the 2nd Respondent and have his name in the National Register of Chiefs as Chief of Kade without any deposition Order.
“This is especially so when deposition had been stated by the Respondents as the reason why the applicant was not the Kadchene,” the Court stated.
It added that, “a deposition order even if it had been issued by the Judicial Committee of the Is respondent, it could not have been acted upon whiles the Motion for Stay of Execution was still pending.
“Having considered the totality of the evidence before the Court, I agree that the 1st respondent’s administrative decision to enter and the entering of the name of the 2nd respondent in the National Register of Chiefs as Chief of Kade in the Eastern Region of Ghana on the 21st day of December 2022 is tainted by illegality, procedural impropriety and in breach of the rule of natural justice.
“This Court hereby finds merit in the instant application for judicial review in the nature
of certiorari and is accordingly granted.
“It is hereby declared by this Court that the 1st respondent’s administrative act/decision to enter and the entering of the name of the 2nd respondent in the National Register of Chief’s as Chief of Kade in the Eastern Region of Ghana at the Instigation of 2nd to 5th respondents is tainted by illegality and procedural impropriety and to that extent wrongful,” the Court declared.
“I further make an Order quashing the said administrative act/decision of the 1st respondent to enter and the entering of the name of the 2nd respondent in the National Register of Chiefs as Chief of Kade in the Eastern Region of Ghana dated 21st day of December 2022.
“There being no evidence that the Motion for Stay of Execution filed by the applicant has since been determined, I also grant an Order of injunction restraining the 1st respondent, its agents, assigns workmen, privies and all claiming through it or taking instructions from it from entering the name of the
2nd respondent in the National Register of Chiefs as Chief of Kade and from gavetting and/recognizing the 2nd respondent as Chief of Kade in the Eastern Region of Ghana until the determination of the Motion for Stay and Motion for Leave to Appeal to the Supreme Court filed by the applicant is determined,” the Court ruled.
Consequently, the Court said, “Cost of GHc20,000 is awarded against the 1st respondent in favour of the Applicant and afurther cost of GHc20,000 is awarded against the 2nd to 5th respondents in favour of the applicant.”
Source: Kasapafmonline.com/Murtala Inusah
