A Kumasi circuit court, presided over by Mr. E. Amo-Yartey, has dismissed an application by counsel for Alhaji Ahmed Olugbon, a party to the Yoruba chieftaincy dispute in Kumasi, for an order to set aside the terms of settlement adopted by the court as consent judgement on August 2 last year, describing it as improper.
In its report, a committee set up by Manhyia, had stated in a letter to the circuit court last July, that “the nomination, selection and installation of Alhaji Rufai Alao, which is in consonance with the existing practice of installation of Yoruba headman, should be allowed to stand”.
In his application, Mr. J. Osei Kofi, counsel for Alhaji Olugbon, submitted that no such terms were agreed upon by the parties, contending that what the parties attempted to do was an arbitration which went before the Manhyia Palace.
Counsel further submitted that the document which was adopted by the court as consent judgement was not conclusive, as same was subject to the approval or otherwise of the Asantehene, taking into consideration the recommendation made in the report.
In opposing the application, Mr Alex Oworae, counsel for Alhaji Rufai Alao, reminded the court that it referred the dispute to Manhyia when the Olugbon faction refused to accept the recognition given to Alhaji Alao by the Serikin Zongo, while the Alao faction did not also accept the mediation efforts of the Nsumankwaahene, who was seen to have taken sides in the dispute.
Counsel for Alhaji Alao contended that what took place at Manhyia was not an arbitration, but a settlement which was adopted by the court.
According to Mr. Oworae, both parties presented their case before the appointed committee came out with its report and recommendation, which was adopted by the consent of the parties who were present in court.
In his ruling, Mr. Amo-Yartey contended that the judgement was a consent one which the court adopted, but which counsel to the applicant was asking the court to set aside.
He said the only legal way procedurally to attack it was by instituting a fresh action for that purpose, since having entered consent judgement, the court became “functus officio”, meaning the judge had finished with the case.
According to Mr. Amo-Yartey, the court could only revisit the case if the consent was obtained by fraud or mistake, otherwise the only other way it could be attacked was by fresh action.
In conclusion, the judge contended that the court agreed to the parties’ own request to have the matter settled, which was done by a committee set up by Manhyia Palace, and it was the committee’s report which was adopted by the court without any objection by any of the parties, adding that a consent judgement had the same effect and all the consequences of a court judgement.
“In the circumstance, I hold that the application is improper and should be dismissed,” he added.
The court did not award cost because of the relationship between the parties which it wants improved.