AGYEI AND ANOTHER vs. FORI AND OTHERS [1997-1998] 2 GLR 84

CASES REFERRED TO

(1) Ampomah v Badu [1989-90] 2 GLR 291, SC.

(2) Srimati Bibhabati Devi v Kumar Ramendra Naravan Roy [1946] AC 508; [947] LJR 26; 176 LT 209, PC.

(3) Akofi v Wiresi and Abagya (1957) 2 WALR 257, WACA.

(4) AbayevAkatia [1982-83] GLR 1072.

(5) Tanor v Akosua Koko [1974] 1 GLR 45 1, CA.

(6) Ibrahim vAmalibini [1978] GLR 368.

(7) Boampong vAboagye [1981] GLR 927, SC.

(8) Gyapong v Tuasekanko II, National House of chiefs, 30 November 1988.

(9) Opuni v Agyakoma, Bompatahemaa, National House of Chiefs, 8 August 1979. (10) Boateng v Boateng [1987-88] GLR 81, CA.

(11) Adjeibi-Kojo v Bonsie (1957) 3 WALR 257, PC.

(12) Obrasiwah II v Otu [1997-98] 1 GLR 858, SC [1996-97] SCGLR 618.

(13) Achoro v Akanfela [1996-97] SCGLR 209.

(14) Huago v Djangmah [1997-98] 1 GLR 300, SC; sub nom Ningo Paramount Stool, In re; Huago IV v Djangmah II [1998-99] SCGLR 255.

(15) Akenteng II v Ayeremah [1996-97] SCGLR 384.

APPEAL from decision of the National House of Chiefs reversing the concurrent decisions of the Ashanti Regional House of Chiefs and the Kumasi Traditional Council which, inter alia, declared the second defendant eligible to contest the Adum stool. The facts are sufficiently stated in the judgments of Aikins and Charles Hayfron-Benjamin JJSC.

Dr A B K Anane for the defendant-appellants.

Kwasi Danso-Acheampong (holding Pobee’s brief) for the plaintiff-respondents.

Aikins JSC. The main question to be decided in this appeal is whether the second defendant-appellant, Peter Bekoe (hereinafter called the second defendant) was eligible to ascend the Adum Stool Other minor issues pose themselves for determination, for [p.88] of [1997-1998] 2 GLR 84 example: (a) whether he was properly enstolled; (b) whether only sons and grandsons of duly installed Adumhene are eligible to occupy the Adum stool; (c) whether candidates hailing from the ayete family are eligible to the Adum stool; (d) who is or are the proper person or persons according to custom to nominate a candidate for installation—the Gyasehene, the kingmakers or the queenmother of the ayete family; and (e) whether the Kyekye Akenten family stool is the original house of the Adum stool. The parties appear to be in agreement that:

(a) The Adum stool was created for Anum Asamoah by Osei Tutu shortly after his enstoolment as King of Asante;

(b) succession to the Adum stool is patrilineal;

(c) Kyekye Akenten was the wife of Anum Asamoah;

(d) after the stool had been created for Anum Asamoah, an ayete stool was created for the kyekye Akenten house or family;

(e) the second defendant-appellant, Peter Bekoe alias Nana Addo Kessie II hails from the Kyekye Akenten family;

(f) the family of Kyekye Akenten by custom supplies wives to the Adum stool occupants; and

(g) the father of the second defendant-appellant was one Opanin Ofori who never ascended the Adum stool, and his sister is Yaa Mem.

It is the plaintiffs’ case that the Adum stool is a mmama dwa (ie patrilineal stool) and as such only sons and grandsons of a duly installed Adumhene are eligible to occupy the said stool. They say that the second defendant is not eligible because: (1) he is the customary brother of Yaa Mem, the wife of Nana Adumhene Adjei Kessie III; (2) he is not the son or grandson of any installed Adumhene; (3) his father Opanin Ofori had never been Adumhene; and (4) he hails from the family of Kyekye Akenten, the ayete family that provides wives to the Adum stool. They further contend that the kingmakers did not consult them as mmama, sons of the Adum stool, before the second defendant was elected and enstooled as Adumhene, a conduct contrary to the existing customary practice for the enstoolment of a candidate to the Adum stool.

They therefore sued for a declaration that the purported nomination, election and installation of Nana Addo Kessie II alias Peter Bekoe, the second defendant, as Adumhene is unconstitutional, null and void on the grounds that: (i) the second defendant

[p.89] of [1997-1998] 2 GLR 84 is not eligible for the Adum stool; and (ii) the plaintiffs were unlawfully and unconstitutionally denied their right to take part in the election and installation of a successor to the late Asamoah Totoe II, Adumhene.

The plaintiffs claim that on or about 1 September 1989, the Kumasi Traditional Council chaired by Otumfuo Asantehene settled the differences between the gyasefo and the stool sons and grandsons as to who is entitled to make nomination for the kingmakers of the Adum stool—whether it was the gyasehene or the mmamahene. They say that after listening to evidence of the ex-Adumhene, Opanin Dineaye, that he was nominated by the gyasefuo on his enstoolment as the Adumhene, the council gave judgment for the gyasehene that he was entitled to make the nomination and not the mmamahene. Thereafter, the kingmakers present, including the mmamahene and the gyasehene, swore the great oath of the Asantehene to co-operate with one another for the peaceful nomination of a candidate for the vacant Adum Stool and further shook hands before the Asantehene as a sign of fidelity and unity for the smooth election of a candidate for the stool.

The defendants admit that the Adum stool is mmama dwa but deny that only sons and grandsons of a duly installed Adumhene are eligible to occupy the stool. They contend that the second defendant traced his ancestry from the Kyekye Akenten family and that since he hails from the family which supplied ayete to the Adum stool, this made him automatically eligible to the Adum Stool. They contend further that the kingmakers made the second defendant the chief in fulfilment of an earlier agreement among them to install him Adumhene to succeed the late Nana Asamoah Totoe II.

According to the spokeman of the defendants, Nana Oteng Duah, Adum Konkori gyasehene, during the illness of the late Adumhene, Baffour Asamoah Totoe II, he requested the gyasehene of Adum, Opanin Kofi Agyeil II, to appoint someone to deputise for the late Adumhene. In response to this request, the gyasehene of Adum invited all the stool elders of Adum to a meeting and proposed that the Adum Stool should go back to its original house, which was the house of Yaa Mem of Affrancho who are the descendants of Kyekye Akenten. He said all the stool elders present supported the proposal, and invited the odikro of Affrancho, Nana Agyei Kesse, who hailed from the family of Yaa Mem and requested him to seek the views of his sister Yaa Mem.

[p.90] of [1997-1998] 2 GLR 84

It will be seen from the foregoing that a regent was never appointed, but strangely enough they decided that “the Adum Stool should go back to its original house,” ie the Kyekye Akenten house. The spokesman said that a week later, the stool elders met again to discuss the issue in the presence of Yaa Mem and Nana Agyei Kesse who requested for time to select a suitable candidate from his family since all grown up male suitable candidates had then travelled abroad. Later, Yaa Mem met the stool elders and proposed the second defendant who was then in Europe. He was invited home and introduced to the stool elders as many of them did not know him. The elders interviewed him and accepted the nomination.

The Kumasi Traditional Council gave judgment in favour of the defendants. The judgment was confirmed by the judicial commit tee of the Ashanti Regional House, but was overturned by the judicial committee of the National House of Chiefs. It is against this judgment that the defendants have appealed to this court.

The defendants filed a number of grounds of appeal, but in my view only two of them deserve to be considered, namely—original grounds (1) and (2)

“(1) That having established beyond doubt that the second defendant-appellant comes from the ayete family of the Adum stool, the committee erred in law and/or customary law and practice in allowing the appeal, thereby holding that the second defendant-appellant is not eligible to mount the Adum stool.

(2) That the National House of Chiefs failed to appreciate a well-settled customary principle that in Ashanti it is only a person eligible to mount a stool that could be invited to sit on the laps of an ailing chief in order to act for him as regent.”

Learned counsel for the defendants’ argument is that since the ancestors of the second defendant mounted the Adum Stool, and had had their black stools located among the Adum Black Stools, the second defendant’s eligibility to the Adum Stool is firmly established. He gave the names of the ancestors as Nana Addo Kessie, Nana Anum Asamoah and Nana Agyei Kessie.

I must say that Nana Anum Asamoah cannot be said to be an ancestor of the second defendant. Nana Asamoah was the husband of Yaa Mem, sister of the second defendant’s father, Opanin Ofori

[p.91] of [1997-1998] 2 GLR 84 of the Kyekye Akenten family. Judging from the family tree, exhibit I, both Nana Addo Kessie, Adumhene and Nana Agyei Kessie, also described as Adumhene, are supposed to be the male children of Nana Anum Asamoah and Kyekye Akenten. These two must be customarily related to the second defendant through the matrilineal family of Kyekye Akenten, unless it can be shown that the father of second defendant, Opanin Ofori, is linked through the male line with Addo Kessie or Agyei Kessie. This, the appellants were unable to prove.

There is credible evidence on record that the Adum stool was created by Nana Osei Tutu, shortly after his enstoolment as the Asantehene, for Nana Anum Asamoah, and that succession to the stool is patrilineal, ie for his sons and grandsons. This was confirmed by the spokesman of the appellants. There is also evidence that after this stool had been created, an ayete stool was created for Kyekye Akenten family or house. The family of Kyekye Akenten by custom supplies wives to the Adum stool occupants. Kyeky Akenten was the wife of Nana Anum Asamoah, and it is from the Kyekye Akenten family that the second defendant, Nana Addo Kessie II alias Peter Bekoe, hails. Finally, the father of Peter Bekoe was one Opanin Ofori, the brother of Yaa Mem, who never had the opportunity to ascend to the Adum stool.

The reasoning and holding of the judicial committee of the National House of Chiefs are in the following terms:

“We are of the view that the issue of ayete and transfer of right of eligibility to a patrilineal stool from a member of ayete family is a novel proposition needing scrutiny. We have scrutinised it and cannot accede to it as being customary since it has no precedence and it appears unreasonable. In the first place the trial committee could not support it with any reason or precedent and only the regional house came out with a claim that it was out of this principle that one Adum Atta III ascended the Adum stool even though he was neither a son nor grandson of an Adum chief. We have accepted from the appellant’s counsel that this is not supported by the evidence on the record.”

The judicial committee continued:

“We therefore rule out this novel proposition of ayete and its transfer of rights to patrilineal stool aspirants. Considering that the Adum stool is mmama stool, was the procedure

[p.92] of [1997-1998] 2 GLR 84 correct? In the first place, we have to remind ourselves that the Adum stool was created for Nana Anum Asamoah and his children who happened to be the children of Kyekye Akenten originally. By this we mean the male children and their male descendants who may occupy the stool.”

The committee then came to the following conclusions:

(1) The Adum stool is a partrilineal stool or mmama dwa.

(2) As such it is the sons and grandsons of those who have occupied the Adum stool who are eligible to occupy the mmama dwa stool.

(3) The second defendant does not fall in this category since he traces his ancestry from an ancestress Kyekye Akenten on his own showing.

To me, the forgoing reasoning and conclusions are unassailable. The evidence is clear that the Adum Stool is patrilineal as opposed to matrilineal where succession to the stool is through a maternal ancestress. A person’s immediate family in a patrilineal community consists of his children either male or female, his paternal brothers and sisters being children of his father, paternal grandfather and descendants of the paternal uncles in the direct male line. His wider family consist of the immediate families of all those who trace their ancestry through males from the common male ancestor. From this lineage it will be seen that the children of his female daughters are outside his family. On the other hand, a person’s family in a matrilineal community consists of his mother, maternal brothers and sisters, children of his sisters, maternal grandmother and descendants of maternal aunts in the direct female line, The children therefore of his male sons are outside his family: see Ampomah v Budu [1989-90] 2 GLR 291 at298, Sc, where I had this to say:

“In the patrilineal community those who belong to a man’s family are his children (male and female), his paternal brothers and sisters, children of his paternal brothers, his paternal grandfather and the descendants of the paternal uncles in the direct male line. For example if a person from a patrilineal community, A, has four children, two sons and two daughters, his family is constituted by all his sons, his two daughters (as his own or personal family of which he stands at the apex) and all descendants, male and female, of the two sons in the

[p.93] of [1997-1998] 2 GLR 84 direct line of males, but the children of his female daughters are in my view outside that family, they customarily belong to their father’s family.

When any of the sons of A dies, it seems to me that the real successor is his father Mr A, Mr A’s brothers and sisters, the deceased’s other brothers and sisters and his children (both male and female) if any. These constitute the deceased’s immediate family, and they together with the brothers and sisters of Mr A assisted by the family of the deceased’s mother are responsible for the appointment of a successor to the deceased. Under normal circumstances the first set of people to consider will be the deceased’s brothers and sisters of the whole blood, but failing a suitable candidate from that group, the next set for consideration are the deceased’s own sons, then his paternal half-brothers, his paternal uncles, etc.”

At 299, I continued:

“In a matrilineal society, however, the family is originated by a female, who is a member of her own mother’s family by right of birth. Her children constitute her own or personal family, with her at the apex. Her male issues will not be able to originate their own branches of the successional family, since by custom their accretions or issues cannot be incorporated in her family as their personal family. The male members only continue to remain in their mother’s personal family, as the nearest successional family they can have.”

This concept of patrilineal family and succession within that community are commonplace customary practices. Mr Justice Ollennu confirmed this in his book Law of Testate and Intestate Succession in Ghana at page 79 in the following terms:

“. . the paternal family consists of a unit of all people, male and female, all of whom are descendants in the direct male line from a common male ancestor, however remote that that ancestor may be.”

According to the learned author, membership of this family is based upon possession of a common ntoro (spirit) which Rattray describes as “the force, personal magnetism, character, personality, power and soul”—the common sacred germ or spirit which is believed to conceive the child He emphasises that both spirit-

[p.94] of [1997-1998] 2 GLR 84 ually and biologically, the ntoro is believed to be a peculiarity of males, and runs through all descendants of a common male ancestor in the direct and unbroken male line, it being transmitted by a man to each child begotten of him.

Warrington also talks about the ntoro in his Notes on Ashanti Custom at p 54, where he expresses this view:

“Every Ashant child inherits his father’s Nton. This is the spirit (Okra) or deity which he worships, and whose taboos he observes. The Nton appears to be totemic insofar as these taboos relate to certain animals which may not be eaten or killed. People of the same Nton may not marry.”

I hold therefore that since the Adum stool belongs to the patrilineal family of Nana Anum Asamoah, it is only members of that family in the male line that are eligible for the stool.

As stated earlier, the only evidence led by the appellants to support the eligibility of Peter Bekoe to the throne was the proposal of the gyasehene (and the agreement of the persons at the meeting convened by him) that the Adum stool should go back to its original house, the house of Yaa Mem of Afrancho. One would ask, what is the “original house”? The appellants could scarcely explain the term “original house” or “origins of the Adum stool.” When Nana Oteng Duah, the spokesman of the defendants, was asked in cross-examination what he meant by saying that the descendants of Kyekye Akenten are the owners of the Adum stool, he replied:

“Kyekye Akenten was the wife of Nana Anum Asamoah and she arrived together with her husband from Anum. Nana Osei Tutu then created a stool for Nana Anum Asamoah, so the children and grandchildren of Kyekye Akenten are the origins of the stool.”

This reply is vague in the sense that such children and grandchildren of Kyekye Akenten can only be the origins of the stool if the said children were also children of Nana Anum Asamoah. Any other child born to Kyekye Akenten not having been fathered by Nana Anum Asamoah cannot be so included, the stool being patrilineal. The spokesman appeared to have appreciated the foregoing reasoning by his answer to the next question, namely. “By custom can Kyekye Akenten’s descendants

[p.95] of [1997-1998] 2 GLR 84 claim her husband’s stool? He replied: “The stool was gifted to Nana Anum Asamoah and his children.” (The emphasis is mine.)

The confusion was made much more confounded when the second defendant witness, Opanin Adjei Kesse, Odikro of Afrancho in his examination-in-chief said:

“According to the second defendant, his ancestress, Kyekye Akenten, was the wife of Adum Asamoah who migrated to Asante in the company of the Asantehene. On their arrival a stool was created for his ancestress who then allowed her husband to ascend to the stool.”

This is contrary to the agreed evidence on record. I therefore agree with the judicial committee of the National House of Chiefs when it said:

“Once both parties accept in their pleadings that the stool of Adum is patrilineal then the answer that the stool was gifted to Nana Asamoah and his children means children in a patrilineal sense, ie those children of the wife who became chiefs to the Adum Stool, and the descent through paternal line then will continue.”

Before I deal fully with the judgment of the judicial committee of the Kumasi Traditional Council, I would like to touch on certain phases of the evidence of some witnesses before the committee which were wrongly quoted in the judgment. First, in talking about the evidence of the first plaintiff witness, the committee said: “Witness led evidence to confirm that the accredited kingmakers of the Adum stool are the gyasefo (stool elders).” With respect, the witness never said so. What he said was: “We met Nana Kofi Didieye, the ex-chief of Adum at the palace. The Asantehene wanted a clarification from the ex-chief on who were the kingmakers of Adum. The ex-chief stated that he begged the stool from the gyasefo and not from the stool sons. Upon this statement of the ex-chief, Otumfuo gave judgment for the gyasefo. Otumfuo asked all the Adum stool elders present on that day to swear his oath and promise to be united in the enstoolment of the new Adumhene. We accordingly swore the oath to be united.”

(The emphasis is mine.) According to exhibit A, the matter before the Asantehene was in respect of who had the requisite power to

[p.96] of [1997-1998] 2 GLR 84 make nomination for the kingmakers of the Adum stool: the gyasehene or the mamahene. There was no question of accredited kingmakers to be solved. The judgment of the council was:

“The question as to who should nominate is now clear and solved once and for all. It is proved beyond doubt that it is the gyase who make nomination for Adum stool and not the mamahene. The ex-Adumhene. Dideye has confirmed that he was nominated by the gyasefuo on his enstoolment as the Adumhene. Now, that the dispute has been determined, I hope both sides will now go home in an atmosphere of goodwill and co-operate in order to present a suitable candidate for the Adum vacant stool to me. As custom demands judgment be now pronounced.

Bafour Annor Panin II, having made a brief recapitulation of the whole issue and cited the usual incantation, judgment was pronounced in favour of the Gyasehene.”

In the face of this judgment, however, would it even be customarily proper for the gyasehene to abandon his right to nominate a candidate and turn to the odikro of Afrancho, Nana Agyei Kesse, to nominate a candidate from Yaa Mem family? I do not think so.

Secondly, the committee quoted the plainitffs’ second witness as saying:

“Nana Asamoah Anibere, a stool son of the Adum stool, led evidence to confirm that the gyasefo (kingmakers). enstooled second defendant without the concurrence of the Adum Stool Sons and grandsons (the mmama group).”

(The emphasis is mine.)The witness did not talk about “gyasefo (kingmakers).” What he said was: “About one-and-half years ago Otumfuo settled the dispute between the Gyasefo of Adum, and we the stool sons and grandsons. At the end of the settlement we all swore the Great Oath to be united and enstool a new Adumhene. Contrary to this assurance, the gyasefo enstooled the second defendant without our knowledge and consent.”

Thirdly, the committee spoke of the fourth plaintiff witness, queenmother of Kwanwoma, as having said at the trial that:

“Witness claimed the Adum Gyasefo although approved the nomination of Mensah Kuffour, yet his election and final

[p.97] of [1997-1998] 2 GLR 84 enstoolment ended abortive as the kingmakers (gyasefo) elected and enstooled the second defendant as Adumhene even though he is not eligible to the Adum Stool.”

Witness did not exactly say what is reported. She never referred to the gyasefo as kingmakers. What she said was:

“After that settlement, the stool elders and the stool mmama met again in the Adum Palace during which meeting Opanyin Sampaney, mmamahene, nominated one Mensah Kuffour and presented him to the Gyasehene and he was accepted by all the stool elders. The candidate paid an apatamaa (which value I cannot tell). At the subsequent meeting held at the Adum Palace the gyasehene requested the mmamahene to accompany the stool elders to introduce their choice of candidate to the Asantehene, but this was objected to by the mmamahene. This brought about a confrontation between the mmamahene and his group on one side and the gyasehene and his group on the other side.”

Fourthly, the committee quoted the first defendant witness, Kyeame Kwabena Dapaa of Kwanwoma, as leading evidence to prove that: “the second defendant was appointed a regent of Adum by the stool elders and the customary aseda was paid accordingly.” With respect, the kyeame never spoke about the appointment of the second defendant as regent in his evidence. He only said when the late Adumhene was sick he visited him in the company of others and:

“In the course of our conversation the late chief asked us as his gyasefo to find someone to act for him as he was incapacitated. We did not reply to his request and so left for our homes. The following day the odikro of Kwanwoma invited the following chiefs for a meeting . . . At that meeting the odikro of Kwanwoma suggested that a candidate to replace Nana Adumhene should be taken from the house of Kyekye Akenten. This suggestion was also supported by the Kyidomhene.”

With this confusion of mind with regard to the correct evidence before the committee, how can the committee legitimately come to the proper findings of fact? After declaring its satisfaction of what was commonly agreed to by the parties, namely that succession to

[p.98] of [1997-1998] 2 GLR 84 the Adum stool is patrilineal; that the stool was created for Anum Asamoah by King Osei Tutu; that Kyekye Akenten was the wife of Anum Asamoah, and later an ayete stool was created for Kyekye Akenten family which supplies wives by custom to the Adum stool occupants, the judicial committee of the Kumasi Traditional Council makes a wild declaration that the creation of the ayete stool for the family of Kyekye Akenten makes that family, according to custom, the source from which candidates for the Adum patrilineal stool is taken. This is preposterous. No authority is quoted to support this contention, which must be rejected.

Dealing with the eligibility of the second defendant to the Adum stool, the committee recounted that by custom it is the ayete family which provides wives to the occupants of the stool which the ayete family is attached. I feel no qualms about this, but what the committee continues to say is that which troubles me. It said:

“Eligibility to such a stool in the case of patrilineal stool invariably belongs to the stool sons and grandsons in the ayete family. The stool sons in the family transfer their right of eligibility to children and grandchildren . . . The stool daughters, as wives of the stool, also by custom transfer their right of eligibility to wives of the patrilineal stool to their sons and grandsons. By the principle of this custom of transfer of rights, the male children from the ayete family become automatic stool sons or stool grandsons by virtue of their ancestors who had occupied the stool.”

To me this statement of the custom is too wide. By the authorities cited above, what must be taken into consideration is whether the member concerned is a son or grandson of a chief. On the authorities, such member must establish his relationship with his ancestor through the male line of the Adum stool.

Moreover, by what custom can the stool daughters as wives of the stool transfer their right of eligibility to the patrilineal stool to their sons and grandsons? This is a legal fiction unknown to customary law. Since the ayete family by exhibit 1 is a matrilineal family, the traditional council would want to say that the Adum stool is both partrilineal and matrilineal. As the National House of Chiefs rightly held:

“(i) Such a situation will defeat the intention of the one who created the stool since he created it only for his sons and

[p.99] of [1997-1998] 2 GLR 84 grandsons, and those from the ayete sections are not as such.

(ii) We are of the view that the issue of ayete and transfer of eligibility to a patrilineal stool from the members of ayete family is a novel proposition needing scrutiny. We have scrutinized it and cannot accede to it being customary since it has no precedence and it appears unreasonable.

(iii) In the first place the trial committee could not support it with any reason or precedent and only the regional house came out with a claim that it was out of this principle that one Adum Atta III ascended the Adum Stool even though he was neither a son nor a grandson of an Adum Chief.”

The judicial committee of the Ashanti Regional House of Chiefs also distorted the evidence to support the conclusions of the traditional council. The regional house held that the second defendant traces his ancestry to Kyekye Akenten who was his great grandfather. But the evidence on record is that Kyekye Akenten was the wife of Nana Anum Asamoah and she arrived together with her husband from Anum. Secondly, the regional house of chiefs also thought that Adum Atta III ascended the Adum stool even though he was neither a son nor a grandson of an Adumhene. It said:

“It must also be emphasized here that Adum Attah III ascended the Adum stool, even though he was neither the son nor grandson of an Adumhene. This supports the view that the Adum stool is not the sole preserve of sons and grandsons of the stool.”

(The emphasis is mine.) It is true that Adum Atta III has been mentioned in evidence but there was no basis of his claim to eligibility to the Adum stool. The regional house of chiefs therefore erred in finding from this eligibility to support the view that the Adum stool was not the sole preserve of Sons and grandsons of occupants of the stool. As the judicial committee of the National House of Chiefs rightly pointed out:

“The nearest approach of inference is at page 107 where one Nana Karikari Adum Atta II signs a receipt, and even here, the name is Karikari Adum Atta III. The evidence does not disclose even that he was an Adumhene.”

[p.100] of [1997-1998] 2 GLR 84

The argument therefore that the judicial committee of the National House of Chiefs erred in overturning the concurrent findings and conclusions of the judicial committees below is without legal foundation.

Counsel for the defendants concedes that the concurrent judgment failed or neglected or both to give any precedence or authority in their judgments, and the manner in which the two committees below the National House of Chiefs distorted the evidence on record is sure to affect seriously the findings of the two committees. The plaintiffs, therefore, succeeded in bringing themselves within at least one of the recognized exceptions to the rule of concurrent findings. The rule was stated by the Privy Council in Srimati Bibhabati Devi v Kumar Ramendra Naravan Roy [1946] AC 508 and adopted by the West African Court of Appeal, Gold Coast Session on 27 February, 1957 in Akofi v Wiresi and Abagya (1957) 2 WALR 257 at 260, WACA. It states as follows:

“(4) That, in order to obviate the practice, there must be some miscarriage of justice or violation of some principle of law or procedure. That miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense of the word judicial procedure at all . . . That the violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the courts could arrive at their finding is such a question of law.”

(The emphasis is mine.) The National House of Chiefs also rightly held that there had been no proof of the peculiar nature of an ayete stool involving transfer of rights which confer automatic rights on members of ayete family to be eligible to a partrilineal stool to which an ayete is attached.

Learned counsel for the defendants has argued vehemently that his clients had proved that the ancestors of the second defendant were Nana Addo Kesse II, Nana Anum Asamoah and Nana Agyei Kessie who had mounted the Adum stool and their black stools had been placed among the Adum black stools; and that this

[p.101] of [1997-1998] 2 GLR 84 qualified the second defendant to ascend to the Adum stool. Surely, Nana Anum Asamoah cannot be the ancestor of the second defendant. It is true that both Nana Addo Kesse II and Nana Agyei Kesse are listed in exhibit 1, the family tree of Kyekye Akenten—a matrilineal family. But the probabilities are that with their placements there, and the admission of counsel that “the Adum stool was gifted to Nana Anum Asamoah and his children,” the possibility of the two chiefs being the children of Kyekye Akenten by Nana Anum Asamoah is apparent. With the establishment of the fact that the Adum stool is patrilineal, the second defendant’s eligibility to the stool can only be established if it can be shown that his father Opanin Ofori can be linked with the two chiefs through the male line.

This clearly was the view of the judicial committee of the National House of Chiefs when it stated that: “the family tree given in exhibit 1 is the family tree of a matrilineal or royal family line since it takes its origin and descent along the female line . . . We expect a patrilineal stool family tree to originate from the male as the chief, with descent through males who have been chiefs before and thereafter.” The submission of learned counsel that the second appellant’s ancestral stools are among the stools in the Adum stool house is therefore without foundation, and must be rejected.

The word ayete itself has been defined in Warrington’s Notes on Ashanti Custom by J N Matson at p 15, para 67 as: “the new wife” who “fills the gap” left by the death or release of a woman of the same house. But there is nothing in the Notes to support counsel for the defendants’ contention that: “all the female in the ayete family are wives of the overlord stool,” though it is stated in paragraph 69 of the Notes that: “When a chosen girl of a House in which there is an ayete refuses to become a Stool wife, a sum is payable, according to custom, to the stool.” The converse therefore proposed by counsel that “all the males in the ayete family are sons and grandsons of the overlord stool irrespective of whether their biological father’s have been chiefs or not” has no foundation in customary law and practice.

Accordingly, there is no basis for the defendants’ attorney’s assertion that:

“By custom when the Adum stool is going to war the chief is accompanied by all members of his ayete family so that [p.102] of [1997-1998] 2 GLR 84 should the chief die in the war a ready candidate is quickly elected to succeed the deceased chief.”

I think Nananom at the judicial committee of the National House of Chiefs were right in concluding that such a situation will defeat the intention of the one who created the stool since he created it only for his Sons and grandsons. Members of the ayete family cannot be his Sons and grandsons unless such sons are fathered by the chief and the grandsons connect him patrilineally.

For the above reasons, I would dismiss the appeal.

Charles Hayfron-Benjamin JSC. This is an appeal from the decision of the chieftaincy committee of the National House of Chiefs wherein Nananom reversed the concurrent decisions of the Ashanti Regional House of Chiefs and the Kumasi Traditional Council. It is of course trite learning that a second appellate tribunal ought not to disturb the concurrent findings of two lower courts unless it can come to the conclusion that the findings were perverse. It is all the more so when the two lower tribunals agree on what is the customary law as appertains in a given area within a particular ethnic or tribal group over which the traditional council or regional house of chiefs has jurisdiction. Section 29 (6) of the Chieftaincy Act, 1971 (Act 370) provides that: “(6) Any question as to the existence or content of a rule of customary law is a question of law for the Committee and is not a question of fact.” (The emphasis is mine.)

Section 24 (7) of Act 370 provides for what the committee ought to do in ascertaining the customary law if it entertains any doubt about its existence. There are real guidelines provided in that sub-section and in my respectful view it is not open to an appellate tribunal such as the National House of Chiefs to indulge in “hypothetical” assumptions and arrive at the conclusion that: “We therefore rule out this novel proposition of ayete and the attendant transfer of rights to patrilineal stool attendants.” There was no reference to any such reported cases, textbooks and other sources as may be appropriate. It may well be that Nananom were not conversant with this sub-section of Act 370, but such glaring non-compliance with a practical rule of evidence led them to the conclusion that:

“We are of the view that the issue of ayete and transfer right of eligibility to a patrilineal stool from a member of the ayete

[p.103] of [1997-1998] 2 GLR 84 family is a novel proposition needing scrutiny. We have scrutinised it and cannot accede to it as being customary since it has no precedence and it appears unreasonable.”

(The emphasis mine.) If Nananom of the National House of Chiefs thought the appeal could be determined by their postulating two “hypothetical” problems for resolution, then, with the greatest respect to them, they misconceived the basic factors in conflict resolution. Nananom stated that “an appeal was by way of rehearing.” In my respectful opinion, a tribunal when presented with such an appeal is not entitled to raise “hypothetical” issues and ignore the evidence on record. It is said that a court or tribunal is bound by the record presented to it. If such a tribunal strays or departs from the evidence on record, it errs and the judgment cannot be supported. Again, if such a tribunal ignores or refuses to apply a rule of customary law, it errs and a judgment not based on the relevant customary law cannot stand.

Nor was this all. Such a conclusion that Nananom could not “accede to it (the custom of ayete) as being customary since it has no precedence and it appears unreasonable,” was unwarranted and contrary to law.

In Abaye v Akatia [1982-83] GLR 1072 where it was alleged that it was customary at the funeral of a tufuhene in Nuba within the Western Nzima Traditional Area to: “go on a rampage slaughtering goats, sheep and destroying food-crops grown in the backyards of houses”, the plaintiff sued the defend ants for damages for the destruction of his food crops and sugarcane growing in his backyard. The court dismissed the action; the trial magistrate found that the custom was performed in good spirit. On appeal, the High Court affirmed the decision of the magistrate. Interest, however, arises in his judgment on account of the learned High Court judges pronouncements on the status of customary law. Thus concluded his lordship, Ansah-Twum J, inter alia, as stated in the headnote, in holding (1):

“The required change in custom was to be effected by those who practiced it, not by the court. The court could only express its disapproval for same and suggest a consideration for its amendment.”

Then again, as stated in the headnote, in holding (2), the learned High Court judge concludes:

[p.104] of [1997-1998] 2 GLR 84

“. . . a custom which permits the destruction of food crops . . . may well be considered to be out of tune with modem thinking and indeed the economics of the times. It may even appear to be in conflict with the general common law of the land and contrary to public policy. But the moral objective upon which the practice of the custom has rested in times past, is perhaps somehow obscure. But it is not given to the court to conduct a research into the time—honoured practices in order to pass a judgment on its validity or otherwise. The court is incompetent to do this, I think, for this appears to be one of the functions of the appropriate traditional council in a given case.”

In Tanor v Akosua Koko [1974] 1 GLR 451 at 464, Archer J A (as he then was) observed that: “If the Krobos wish to preserve this custom to enable their maidens to vaunt about their virginity, it is a matter for the krobos themselves.” Finally in Ibrahim v Amalibini [1978] GLR 368, Taylor J (as he then was) stated the fine position of customary law in our post-colonial era and under constitutional rule at 397 thus: “As a result after 1 July 1960, the customary laws of the various tribal communities became part of the law of the country and the only test for their validity is whether they fulfil those conditions which under the general law of Ghana must be satisfied by all customary laws. They were no more subject to the imperial repugnancy provision of equity, natural justice and good conscience.”

The learned High Court judge in Abaye v Akatia (supra) thought—and in my view rightly–that only a traditional council could pronounce for a change in customary law and even its abolition see section 41 of the Chieftaincy Act, 1971 (Act 370). As to the necessity for making enquires or references to textbooks etc, whereas the National House of Chiefs was of the view that the custom of ayete is a “novel proposition needing scrutiny,” the Supreme Court in Boampong v Aboagye [1981] GLR 927 at 934, SC demonstrated the process whereby any such “novel proposition” might be tested and resolved. Anin JSC delivering the judgment of the court, stated at 933-934 thus:

“From our study of the entire record of proceedings and the divergent expositions of the customary law of abdication in

[p.105] of [1997-1998] 2 GLR 84 the three subordinate tribunals, we were of the unanimous view that some important aspects of the law of abdication had been either glossed over or else left in uncertainty. Furthermore, the judgments of the tribunals below left us in some doubt as to whether the customary law practised at Konongo was the same as the general corpus of Ashanti customary law on abdication.

Before giving final consideration to the appeal, we decided therefore to seek clarification of some aspects of the customary laws from the judicial committee of the National House of Chiefs.”

Clearly, the National House of Chiefs did not apply either the statutory provisions or the clear authorities for the resolution of any doubts which patently they entertained as to the custom of ayete and its incidents. Their conclusions were therefore perverse. If am right—and have no doubt I am—then, for their purposes of “scrutinising,” their surest recourse to information was to the Kumasi Traditional Council, the repository of that custom. Nananom were indeed bound by the provisions of article 11(3) of the Constitution, 1992 which defines “customary law” as “the rules of law which by custom are applicable to particular communities in Ghana.” (The emphasis mine.) The view of the Kumasi Traditional Council were therefore of very great importance and it was an unwarranted interference in that practice of the custom for Nananom to apply logic to that hallowed custom of ayete and claim that it was a “novel proposition.”

In the instant appeal, there was ample authority for the proposition that ayete is a valid customary practice rooted in antiquity and observed among Ashanti chiefs. Captain Rattray in his learned treatise entitled Ashanti Law and Constitution refers to the custom of ayete as having the same meaning as the English word “sororate.” Webster New World Dictionary (2nd Colleged ed) of the American language defines “sororate” as: “The custom in some cultures of marrying the younger sister of one’s deceased wife.” Rattray observes that in ancient times it was practised by both chiefs and commoners. But nowadays it is only limited to chiefs. In the nature of our customary marriages, which are potentially polygamous, the necessary inference is that a chief may take any woman as wife from an ayete family attached to the stool.

[p.106] of [1997-1998] 2 GLR 84

In Warrington’s Notes, which contains a digest of the minutes of the Ashanti Confederacy Council from 1935 to 1949 inclusive, he author states at paragraph 67 under the subtitle Stool Wives; Ayete: “The Asantehene added that if a Chief divorces a wife he has been obliged to marry, he should not charge the usual fee payable on divorce (dawn-twa sika); but though it was now at a Chiefs discretion whether he married or not, the obligation of Houses in which there was ayete remained in full force. ‘We have not abolished the ayete system: we have only made it optional. Any Chief who chooses to claim ayete is at liberty to do so.’ Failure to marry or maintain Stool wives would not henceforth justify destoolment. (The custom referred to is a form of sororate; the ‘ayete’ is the new ‘wife’ who ‘fills the gap’ left by the death or release of a woman of the same House.”

(The emphasis mine.) It is common knowledge that the Ashantis as an ethnic group have been the subject of much anthropological, historical and even, in modem times, sociological research that I am certain that similar expositions would have revealed the existence of the ayete system.

The evidence on record demonstrates clearly that there is the system of ayete marriages attached to the Adum stool. It was accepted that the second defendant belonged to the ayete family of the Adum stool. Indeed it was admitted that the second defendant was the grandson of Nana Anum Asamoah. The plaintiffs’ spokesman, when cross-examining the defendants spokesman, asked:

“Q You agree Yaa Mem and the second defendant are the grandchildren of the Adum stool?

A Yes, I agree.”

In my respectful opinion, the evidence in the whole case came to a head when Nana Yaa Mem, the obaapanin of Afrancho, gave evidence on behalf of the defendants. The whole case centered around her.

She it was who, at the request of the first plaintiff, had nominated the second defendant. She was the occupant of the Nana Kyekye Akenten stool, an ayete family to the Adum stool For the sake of clarity, I set down part of her cross-examination by the defendants spokesman or attorney:

[p.107] of [1997-1998] 2 GLR 84 “Q What did Nana Osei Tutu do for Nana Anum Asamoah on their arrival in Asante?

A He created a stool for him which stool is now the Adum stool.

Q What happened after the creation of the stool?

A Nana Anum Asamoah petitioned King Osei Tutu to bequeath his stool to his wife and children since he had no relatives in Asante. King Osei Tutu graciously granted the request of Nana Anum Asamoah Q Since you are occupying an ayete stool explain to Nananom the meaning of ayete?

A Ayete means a family which supplies stool wives to a particular stool.

Q How many children did Nana Anum Asamoah and Kyekye Akenten beget?

A They had seven children, namely Kra Addo (male); Asamoah Akate; Asamoah Mensah; Addo Kesse; Adwoa Ampomah; and Agyei Kesse.

Q Which of these children are you a direct descendant of?

A I descend from Adwoa’s lineage.

Q Second defendant is your brother?

A Yes.

Q What was Baffour Agyei Kesse III to you?

A He was my husband.

Q What is second defendant to Baffour Agyei Kessie III?

A Second defendant is his grandson.

(The emphasis is mine.) In my respectful opinion, it was the clearest presentation of the whole litigation. Now, it is agreed by both parties that the Adum stool is a mmama dwa—in Asante meaning literally a stool for children and children’s children. There has been confusion as to the English equivalent of mmama dwa. In the tribunals they have been content to use the western expression “patrilineal” meaning of course that there is a lineage through a male ancestor. But in the case of the mmama dwa it appears to me that the accent is on the paternal claims rather than on a patrilineal qualification. Thus plaintiffs’ spokesman could say under cross-examination that:

“Q How did the stool come into the family?

A It was gifted to Akyaa the ancestress of Yaa Mem by the stool elders of Adum

[p.108] of [1997-1998] 2 GLR 84 Q What functions do the children and grand children perform to the chief’s stool?

A They perform the functions of ahenema and ahenenana to the stool.

Q Are the children and grandchildren of a chief eligible to the stool if it is patrilineal by succession?

A If the children are from the ayete family they are eligible if it is patrilineal by succession.”

(The emphasis is mine.) Then again the plaintiff’s spokesman under further cross-examination said:

“Q You agree all stool sons and grandsons are eligible to a patrilineal stool?

A Yes, I agree.”

If in the above context, the expression “paternal” is substituted for “patrilineal” it would make better sense since under Akan custom children do not succeed their fathers, nor do grandchildren belong to their grandfathers or grandfather’s families. Thus the mmama dwa connotes a peculiar custom within the Asante ethnic group. If then an ayete family is attached to such a stool, then all the sons and grandsons are eligible to occupy the stool. Indeed it was in full knowledge of this custom that the kingmakers, led by the first plaintiff, approached the obaapanin of the ayete family at Afrancho for a candidate. This request to the obaapanin for a candidate then explains the dichotomy of the succession to a mmama dwa. The candidate was a member of his mother’s family—matrilineal. But by reason of being a son or grandson to a mmama dwa, he was eligible to accede to the Adum stoo1—paternally.

As I have said, the judgment of nananom of the National House of Chiefs was based on two wrong hypothetical assumptions. In my respectful opinion, they are not worth considering as they arise from an ignorant consideration of the custom. But it is interesting to note that nananom were inclined to my thinking on the issue whether a mmama dwa is paternal or patrilineal, for they write in their judgment: “We shall therefore take some time to examine the issue. This takes us back to our hypothetical paternal family tree. Let us assume that out of the five families from those eligible to

[p.109] of [1997-1998] 2 GLR 84 occupy the paternal stool thus created, say, Bretuo is made an ayete family.”

(The emphasis is mine.) It is obvious that nananom were thinking of the existence of a paternal relationship while they considered the incidents of a patrilineal succession. In so doing, they were wrong and they therefore disabled themselves from making a correct and proper assessment of the evidence presented to them.

There was evidence of a paternal relationship entitling a member of the ayete family to accede to the Adum stool. It was admitted that there were three black stools belonging to the ayete family in the Adum stool room. Hypothetically, and in support of their argument, nananom had created five imaginary families—and this was mainly because there were five contestants—and classified one of the candidates as coming from an ayete house That proposition was false. There was no evidence that there were five houses or five families in the contest for the stool; their principal qualification was that they were children and grandchildren of the Adum stool. The expression “children and grandchildren” is used in a classificatory sense and connotes lineage in the widest sense, that is to say a person with any paternal claims to the stool.

The plaintiffs have gone to great lengths to prove by their submissions that the second defendant could not be eligible in terms of the principle laid down in the case of Gyapong v Tuasekanko, a decision of the National House of Chiefs dated 30 November 1988, to accede to the Adum stool. They contend that: “According to exhibit I, Addo Kessie and Adjei Kessie are the children of Anum Asamoah by Kyenkye Akenten. Since the defendants attorney says . . . that the Adum stool was gifted to Nana Anum Asamoah and his children, the probabilities are that Addo Kessie and Adjei Kessie were chiefs not because they belonged to the family of Kyekye Akenten but because they were the sons of Nana Anum Asamoah.”

I think the plaintiffs misread the import of the decision of the National House of Chiefs which, though not binding on this court, is significant in its restatement of the customary law position in Ashanti. Thus in the Gyapong case (supra), nananom said:

“Now strange enough, this Oheneba Boakye Dankwa alias Agyekum also became a chief and a stool blackened for him.

[p.110] of [1997-1998] 2 GLR 84

This is the source of the two ‘strange’ non-Aduana stools and both were paternally originated. Could this be accidental? From this we see that even though the two previous tribunals came to the same conclusion, they failed to consider the presence or issue of the two black stools in the stool rooms which were obviously of paternal origin.”

(The emphasis is mine.) The Gyapong case (supra) has a striking similarity to the matters concerned with the present appeal, save that in the Gyapong case, the Asantehene was reported to have “gifted” the stool to a woman by name Nana Gyamaa Pensau I who had sons and only one daughter who did not live to child-bearing age.

Certainly, therefore, the consistency of the pronouncement on customary law must be the support which the National House of Chiefs gives to its own decisions. If the existence of black stools in a stoolroom would entitle a person, who would otherwise not qualify, to claim eligibility to the stool, then just as in the Gyapong case, (supra), the second defendant must be equally eligible to the Adum stool. Consequently, it may be concluded that in matrilineal rights of succession, there may be paternal claims to a stool if the candidate can prove that his ancestors black stool lies in the stoolroom. Incident in the paternal claims in Asante are those stools specifically created for sons and grandchildren of the stool (mmama dwa). I can take judicial notice of such great stools in Ashanti as Akyempem and Bantama.

A concept therefore that a stool in Asante may be either patrilineal or matrilineal is therefore wrong. They are matrilineal in the sense that succession is through the female line, but may be paternal in the sense that only sons and grandsons or children or grandchildren may accede to those stools. I think the spokesman for the defendants gave further insights into the litigation when he stated:

“In case of second defendant, the stool elders came to a conclusion that he hailed from an ayete family, therefore, as custom demanded, those who have the right of eligibility to a patrilineal stool are the members of that particular stool ayete (family).

By custom when the Adum stool is going to war the chief is accompanied by all the members of his ayete family so that

[p.111] of [1997-1998] 2 GLR 84 should the chief die in the war a ready candidates quickly elected to succeed the deceased chief.”

(The emphasis is mine.) In my view, the Kumasi Traditional Council made certain findings on both the, custom and the facts which were confirmed by the regional house of chiefs. The traditional council found that:

“(i) the succession to the Adum Stool is patrilineal (paternal);

(ii) the stool was created for Asamoah by King Osei Tutu shortly after his enstoolment as King of Asante;

(iii) It is further established that Kyekye Akenten was the wife of Nana Adum Asamoah, Adumhene;

(iv) the ayete stool was created for Kyekye Akenten House or family;

(v) the creation of the ayete stool for Kyekye Akenten for the Adum stool has great significance as it makes the family, according to custom, the source from which candidates for the Adum stool may be chosen;

(vi) the family supplies stool wives to the Adum stool;

(vii) there was evidence that the second defendant belongs to the ayete family;

(viii) there was also evidence that the second defendant properly ‘begged’ for the stool and was nominated by the first defendant, Nana Kofi Agyei, Gyasehene of Adum and was duly installed by the accredited king makers of the Adum stool.”

Before us there appears to be broad areas of agreement between the parties. For the sake of regularity, I will set them down as stated by the defendants thus:

(i) That the founder of the Adum stool was one Anum Asamoah who migrated to Kumasi in the company of Nana Osei Tutu.

(ii) That the Adum stool is a patrilineal stool and that ascension to the stool is by sons and grandsons.

(iii) That the wife of Anum Asamoah was one Kyekye Akenten and that her family serves as ayete on the Adum stool.”

The plaintiffs also stated “By their judgment, the judicial committee of the Kumasi Traditional Council had made these findings of fact, which all parties appear to accept:

(i) succession to Adum Stool is patrilineal;

[p.112] of [1997-1998] 2 GLR 84 (ii) the stool was created for Adum Asamoah;

(iv) Kyekye Akenten was the wife of Anum Asamoah;

(v) After the stool had been created for Anum Asamoah an ayete stool was created for Kyekye Akenten house or family;

(v) the second defendant hails from the family of Kyekye Akenten.”

In my view, one or two corrections here will set the issues straight. The Adum stool like all mmama dwa in Ashanti, is “paternal” in succession and not patrilineal as erroneously claimed by the parties and even the hierarchy of the tribunals through which this appeal has progressed. (I have explained my reasons for so saying and will not further belabour the point.) Next, the first Adumhene was Anum Asamoah and not “Adum Asamoah” as postulated by the plaintiffs. There was clear evidence of this fact on the record. In the cross-examination of the defendants, spokesman by the fifth plaintiff, there occurs the following dialogue:

“Q When did Anum Asamoah arrive in Asante from Akwamu and when was the stool created for him?

A Nana Osei Tutu became Asantehene in 1696 or thereabout and it was during this period that Anum Asamoah arrived in Asante and the Adum stool was created for him by Nana Osei Tutu.”

(The emphasis is mine.) It is clear therefore that Anum Asamoah was from Anum a town or village in Akwamu. We must bear in mind the fact of history that Nana Osei Tutu was invited from Akwamu to accede to the stools which later became the Golden Stool of Asante. From these broad areas of agreement, it seems to me that the principal issue for determination is whether second defendant is eligible for ascension to the Adum stool by means of his membership of the ayete family of Adum. Incident in this issue is whether the second defendant was regularly nominated, elected and installed as Adumhene.

From the discussions of the matters in issue thus far, it is not difficult to come to a conclusion as to the qualifications of the second defendant. But it is first requisite that I make a brief retrospect of the history of the Adum Stool. It is agreed that Asamoah from Anum in the Akwamu area came to Asante to join

[p.113] of [1997-1998] 2 GLR 84

Nana Osei Tutu soon after 1696, hence his name Anum Asamoah. He came with his wife Kyekye Akenten and three children who had been born in Akwamu. He had seven children by his wife Kyekye Akenten. When Anum Asamoah became too old, he petitioned Nana Osei Tutu that he might make a gift of the Adum Stool to his wife Kyekye Akenten–who was also his ayete—because he had no family in Asante. Nana Osei Tutu agreed to Anum Asamoah’s request. It is contended therefore that he bequeathed the Adum Stool to “his sons and grandsons.”

It is clear that even though the ayete family are the owners of the Adum Stool, occupation of the stool is limited to the children and grandchildren of Anum Asamoah, which in this case includes the children and grandchildren of the ayete family. Under cross-examination by the plaintiffs representative, the defendants spokesman, stated:

“Q What do you mean when you say the descendants of Kyekye Akenten are the owners of the Adum Stool?

A Kyekye Akenten was the wife of Nana Anum Asamoah and she arrived together with her husband from Anum. Nana Osei Tutu then created a stool for Nana Anum Asamoah so the children and grandchildren of Kyekye Akenten are the origins of the stool.”

Indeed, in the absence of any evidence that Anum Asamoah had any other children apart from the children of Kyekye Akenten, it will be correct to say that the origins of the Adum stool are the male children and grandchildren of the Kyekye Akenten (ayete) family. As I see it, no person can claim eligibility to the Adum stool, unless such a person can claim through one of the children of Kyekye Akenten by her husband Nana Anum Asamoah or he is otherwise paternally descended from an occupant of the Adum stool. When Nananom in the Ashanti Regional House of Chiefs say that there may be “transfer of right of eligibility to patrilineal (paternal) stool from a member of ayete family”, I do not see anything “novel” about that proposition. Grandchildren in the Akan (Ashanti) sense are the children who can trace their ancestry through their mother’s mothers. Thus, if an Akan man’s mother’s mother’s mother is eligible to a customary office, her grandson may in appropriate cases inherit such office. Thus in the case of the ayete which is attached to a paternal stool such as the Adum stool, the woman, even though eligible, may yet give way for their

[p.114] of [1997-1998] 2 GLR 84 sons to accede such offices. That is my understanding of the expression used by nananom in their judgment. I will readily concede that the children of male sons are also grandchildren of their father’s mother, though they are not to be heritable members of their grandmother’s family. In the case of an “mmama dwa” they may be eligible. As I have said “the expression children and grandchildren” and similar descriptions in our customary law are essentially classificatory and do not necessarily connote eligibility to any customary title or preferment unless the special qualifications therefor are satisfied.

Consequently, I find that the Adum stool originated from Nana Anum Asamoah who made a gift of it to his ayete family upon condition that his male descendants shall accede to the stool; the next two Adumahenfo were thus the children of Anum Asamoah by his ayete wife, Kyekye Akenten. The ayete family is therefore the origin of the Adum stool and the reservoir from which the Adumhene may1 be chosen to prevent a failure of heritable members of the stool. On the evidence, every male member of the ayete family is eligible to the Adum stool. The National House of Chiefs’ apprehension that a choice from the ayete family may predispose to an incestuous relationship was firmly answered by Nana Yaa Mem thus:

“Q Can the second defendant as the occupant Adum Stool marry from your family?

A No he cannot.

Q If BaffourAgyei Kessie III and Nana Adum Atta, both Adumhene, had married in your house, why can’t the second defendant also marry from the house since your house is an ayete family?

A He cannot, as he is grandson to the Adum Stool. This is because the successor of Nana Anurn Asamoah being son did not marry from the house of Nana Kyekye Akenten as he was from the same house.”

I therefore hold that the second defendant as a member of the ayete family of the Adum stool was eligible for enstoolment on the Adum stool.

It seems to me that this litigation has been fought essentially on the issue of the eligibility of the second defendant, admittedly from the Adum ayete house or family, to accede to the Adum stool However, from the submission for the parties, it appears that

[p.115] of [1997-1998] 2 GLR 84 two matters arise—first as to the acceptance of drinks and next as to the capacity of the plaintiffs to present the petition which has led to this appeal. I have examined the grounds of appeal and the additional grounds filed by the plaintiffs in their appeal to the National House of Chiefs. I have also carefully examined the arguments urged and advanced by both counsel before nananom In neither the grounds of appeal nor the submissions of counsel do I find any reference or objection to the finding of the Kumasi Traditional Council. It also appears from the record that nananom in the Ashanti Regional House of Chiefs were not called upon to make any finding as to the presentation of “drinks” and the probable return of same to the second defendant. It is clear therefore that nananom of the National House of Chiefs suo motu took up the issue of the presentation and return of the second defendant’s “drinks.” Nananom wrote: “They said his drinks and money were returned, which he accepted. This evidence cannot be taken lightly because in one instance the witness claims that he was the messenger with another person who returned the money.”

It is trite learning that it is not open to an appellate tribunal or court to raise a ground suo motu unless such court or tribunal invited the parties to advance their views on the grounds so raised However, in this appeal, the defendants contend that the National House of Chiefs failed to make a proper evaluation of the evidence on record and thereby arrived at the wrong conclusion regarding the alleged receipt and return of the drinks. I think the defendants are right. The Kumasi Traditional Council in their judgment stated: “The committee does not accept the evidence of the fifth plaintiff witness, Kwadwo Boakye, on the procedure for receiving customary drinks for a candidate begging for a patrilineal stool.” The Kumasi Traditional Council went on to state the custom thus: “the custom is simply that at the time of the presentation of drinks, if the candidate is not eligible to that particular stool his drinks are refused at the time of presentation.”

In a chieftaincy appeal which was heard before Nananom of the National House of Chiefs, judgment in which was given on 8 August 1979, entitled Opuni v Agyakoma, Bompatahemaa, nana nom wrote: “That when the plaintiff-respondents approached the queen-mother defendant-appellant with a request to choose a candi-

[p.116] of [1997-1998] 2 GLR 84 date from their section, the queenmother asked for two weeks to ponder over the request. Her reply later was that the plain- tiff-respondents were late with their request. ‘One would have expected that if the plaintiff respondents were not eligible, the queenmother would have said so . . .’ ”

(The emphasis is mine.) In that appeal, the Opuni section of the Bompata royal family had presented customary drinks for the section to be considered for nomination and eventual enstoolment to the Bompata paramount stool. The queenmother had received the customary drinks only to inform the Opuni section two weeks later that they were late. The view of nananom was that when a person who is not eligible for the stool presented drinks to beg for a stool, it is the duty of the elector or electors to say so at the presentation of the customary drinks. In other words, there must be no prevarication about the entitlement or otherwise of the candidate to the stool. In the words of the Kumasi Traditional Council: “his drinks are refused at the time of presentation.”

In the instant appeal, the evidence is that the customary drinks were sent through the Dadiesoabahene. The plaintiffs contend that the customary drinks were returned through another chief. The latter chief was not called as a witness. The statement that the customary drinks were returned stands unproved and cannot be countenanced. Indeed, on the evidence, this odikro of Kwanwoma was one of the kingmakers who supported the election and installation of the second defendant as the Adumhene. I hold therefore that the second defendant’s drinks were not returned. In any case, having accepted the drinks, on the authority of the Opuni case, (supra), it was uncustomary to return the drinks. As the Kumasi Traditional Council stated: “It is however an indication that the candidate is eligible to the stool, be it matrilineal or patrilineal stool, if the customary drinks presented by the candidate are accepted.” Thus at customary law, the acceptance of the “drink” is an unequivocal recognition of the candidate as eligible to the stool, though he might yet not accede to the stool.

The matter of the capacity of the plaintiffs had indeed been settled before the Asantehene, Otumfuo Nana Opoku Ware the day before the petition was filed at the Kumasi Traditional Council on 30 May 1990. The issue before the plenary meeting of the Kumasi Traditional Council on 29 May 1989 was as between the gyasehene of the Adum stool and the mmamahene thereof, who or which side was entitled to nominate a candidate for election and subsequent enstoolment of a candidate for the Adum

[p.117] of [1997-1998] 2 GLR 84

Stool. At the close of the defendant’s case the plaintiffs sought the leave of the judicial committee of the Kumasi Traditional Council to tender “a certified true copy of the minutes of meeting of Kumasi Traditional Council held on 29 May 1989, p 4 para 6 refers—settlement indicating the kingmakers of the Adum stool” This exhibit was marked A and it appears was objected to by the defendants on various grounds which on the record did not seem to have made any impression on the members of the judicial committee; for they proceeded on adjournment to give their judgment. The exhibit A therefore stands admitted and may be examined for the purposes of settling the issues in dispute.

It seemed from the minutes of the Kumasi Traditional Council (exhibit A) that when considering the Adum stool affairs, some traditional evidence had been offered as to who makes the election to the Adum stool and who are the kingmakers of the Adum stool. The customary dispute was between the gyasehene (the first defendant) and the mmamahene (the second plaintiff). Three abstracts from the minutes, exhibit A, settle the issues as to who are the electors and who are the kingmakers of the Adum stool, The Bantamahene noted thus:

“It is an admitted fact that nananom had once expressed views before the council, but could not come to a conclusion in the absence of Otumfuo, who was out of the country. This had led to the public accusation. I am of the considered opinion that upon the evidence adduced before the council on 4 May 1989 by the ex-Adumhene, Opanin Dineaye, it is now crystal clear and has been proved beyond doubt that, it is the gyasehene who has the requisite power to make nomination for the kingmakers of the Adum stool and not the mmawahene. Hence, I suggest that once the truth is now known, the gyasehene be allowed to go home with the accredited kingmakers of Adum stool and make the nomination so that peace and tranquillity will prevail.”

(The emphasis is mine.) In conclusion on the matter of the Adum stool affairs, Otumfuo, the Asantehene, President of the Kumasi, Traditional Council, said, inter alia:

“The question as to who should nominate is now dear and solved once and for all. It is proved beyond doubt that it is the gyasefuo who make nomination for Adum stool and not the mmamahene. The ex Adumhene, Dineaye, has confirmed

[p.118] of [1997-1998] 2 GLR 84 that he was nominated by the gyasefuo on his estoolmentas Adumhene. Now that the dispute has been determined, I hope both sides will now go home in an atmosphere of goodwill and co-operate in order to present a suitable candidate for the Adum vacant stool to me. As custom demands judgment be now pronounced.”

(The emphasis is mine.) It is on record also that all the clan chiefs supported the conclusions reached by the council. Thus, on the issue of who are the electors or nominators for the Adum stool, it was the gyasehene and his group which has the power to nominate a candidate for the Adum stool. According to the minutes of the Kumasi Traditional Council, exhibit A, it appears that all the kingmakers of the Adum stool were present and together with the gyasehene and mmamahene (the contestants): “swore the great oath of Asantehene to co-operate with one another for the peaceful nomination of a candidate for the vacant stool of Adum and further shook hands before the Asantehene, as a sign of fidelity and unity for the smooth election of a candidate for the stool.”

Since exhibit A was tendered by the plaintiffs, they must be deemed to know the contents thereof. In my respectful opinion, the exhibit exposed the hollowness of their case. In that exhibit, it was proved and accepted by the Kumasi Traditional Council that the gyasehene and his group were the electors or nominators of candidates for the Adum Stool. It was also proved that there were fifteen kingmakers and that neither the gyasehene nor the mmamahene was a kingmaker. Consequently neither the gyase group nor the mmama group were kingmakers.

In the instant appeal, the plaintiffs were a dishonest group of kingmakers who combined with the mmamahene who, on the evidence, led the second defendant up the garden path in the chief-making process, squandered his money and sought to ditch the second defendant the day after they had sworn the Otumfuo’s great oath and pledged their fealty to resolve the Adum stool affairs by instituting the present petition in clear violation of the oaths. The plaintiffs had been dishonest to their overlord—the Asantehene and had not treated the Kumasi Traditional Council with candour and deserved to be customarily punished.

[p.119] of [1997-1998] 2 GLR 84

From the record, it was obvious that the plaintiffs know the history of the Adum stool. They knew that the Adum stool was gifted by Anum Asamoah to his wife Kyekye Akenten’s ayete family. They also know that members of the ayete family were eligible for election to the stool. They knew the second defendant was a member of the ayete family. It was they who invited the second defendant to return from the United Kingdom to become a regent. It was they who introduced him to all the sacred places precedent to his being encouraged to seek nomination for installation to the Adum stool. Yet, they came before the Kumasi Traditional Council in an attempt to lie about the history of the Adum stool.

As to the enstoolment of the second defendant, the following abstract from the record confirms the enstoolment and exposes first plaintiffs’ perfidy:

“Q Were all the ten kingmakers you have mentioned present at the time the second defendant was being enstooled?

A Yes, they were all present.

Q Where was the second defendant enstooled?

A He was enstooled at the Adum Palace.

Q Where was the first plaintiff at the time of the enstoolment?

A The first plaintiff was also present.

Q What happened then?

A The first plaintiff objected to the election of the second defendant but the majority of the kingmakers did not accept his objection, and the enstoolment was therefore carried out.

Q The second defendant has sworn oath of allegiance to Otumfuo?

A Yes, he has.”

One last point raised by the plaintiffs deserves a brief comment, The plaintiffs contend that in respect of the second defendant’s estoolment, the requirements of the definition of a chief by the Constitution, 1992 and Act, 370 might not have been fulfilled. The plaintiffs rely on the expression “from the appropriate lineage” and further contend that “lineage” connotes a line of direct succession. With great respect to them, I do not share that view. Judging by customary law, the term “lineage” is a term of art and connotes any customary method by which a person may prove his eligibility

[p.120] of [1997-1998] 2 GLR 84 to a stool or a skin. A clear example may be those communities where succession is patrilineal but succession to a stool or skin is rotatory and by “gates.”

I have taken the liberty of treating this appeal at great length because increasingly the stereotypes commonly accepted in customary law are being exposed as not fully conclusive of the customary law.

When variants of the customary law are therefore presented, it will be most unwise for a tribunal to pronounce them as “novel.” The law has provided a method for ascertaining the veracity of particular customs and we are bound to follow them. Nor is this all. It will be wrong for our tribunals and courts to substitute logic for customary law.

I would allow the appeal.

Ampiah JSC. This is an appeal against the decision of the judicial committee of the National House of Chiefs.

On 30 May 1990, the plaintiff-respondents (hereinafter referred to as the plaintiffs) issued out a writ of summons against the defendant-appellants (hereinafter referred to as the defendants) jointly and severally claiming:

“. . . a declaration that the purported nomination, election and installation of the second defendant as Adumhene is unconstitutional and null and void on the several grounds that:

(1) The second defendant is not eligible to the Adum stool; and (2) The first, second, third and fourth plaintiffs and other kingmakers of the Adum stool were by the conduct of the first defendant unlawfully and unconstitutionally denied their right to take part in the election and installation of a successor to the late Asamoah Totoe II, Adumhene.”

The judicial committee of the Kumasi Traditional Council unanimously gave judgment for the defendants. The plaintiffs appealed against this decision to the Ashanti Regional House of Chiefs. The judicial committee of the Ashanti Regional House of Chiefs affirmed the judgment of the lower tribunal. Whereupon, the plaintiffs appealed further to the National House of Chiefs. The National House of Chiefs unanimously allowed the appeal and set aside the decision of the Ashanti Regional House of Chiefs as well as that of the Kumasi Traditional Council.

[p.121] of [1997-1998] 2 GLR 84

Against the decision of the National House of Chiefs, the defendants have appealed to this court. Their grounds of appeal are:

“(i) That having established beyond doubt that the second defendant appellant comes from the ayete family of the Adum stool, the committee erred in law or customary law or both in allowing the appeal thereby holding that the second defendant-appellant is not eligible to mount the Adum stool.

(ii) That the National House of Chiefs failed to appreciate a well settled customary principle that in Ashanti it is only a person eligible to a stool who could be invited to sit on the laps of an ailing chief in order to act for him as regent (iii) That even though nananom at the National House of Chiefs were expected to treat an appeal as a re-hearing, they erred in canvassing issues and matters which were never raised as part of the grounds of appeal, e.g.: (i) whether or not Nana Yaa Mmieh’s children could mount the Adum stool and (ii) whether or not mmaama (children of the Adum stool were the rightful persons to select the Adum chief.”

In their statement of case, the defendants added another ground of appeal as they had intimated in the notice of their original grounds of appeal. It is this:

“That the National House of Chiefs failed and/or neglected to evaluate the totality of the evidence relating to the drinks and moneys presented on behalf of the second defendant-appellant when ‘begging’ for the Adum stool and therefore, wrongly concluded that same were refunded to the odikro of Kwanwoma (Adum Gyasehene).”

I intend to deal with all the grounds together.

The gravamen of the second defendant’s claim was that as a member of Kyekye Akenten’s family and for that matter a member of the ayete family, he is eligible to occupy the Adum stool in the same way as sons and grandsons of the stool could. There was no dispute that the Adum stool was a patrilineal stool. What was in issue was whether or not the ayete custom existed in that stool and if so what the content of that custom was. The National House of Chief’s conclusion on the issue was:

[p.122] of [1997-1998] 2 GLR 84

“The issue of members of an ayete family, from which wives are taken for a particular stool, being automatically eligible to the stool to which the ayete family is attached has been refuted by this committee.”

(The emphasis is mine.) In coming to this conclusion, the committee had reasoned as follows: “We come to the conclusion that from this angle there has been no proof of the peculiar nature of an ayete stool involving transfer of rights which confer automatic rights on members of an ayete family to be eligible to a patrilineal stool to which an ayete family is attached . . . We are of the view that the issue of ayete and transfer of right of eligibility to a patrilineal stool from a member of ayete family is a novel proposition needing scrutiny. We have scrutinised it and cannot accede to it as being customary since it has no precedence and it appears unreasonable. In the first case, the trial committee could not support it with any reason or precedent and only the regional house of chiefs came out with a claim that it was out of this principle that one Adum Atta III ascended the Adum stool, even though he was neither a son nor grandson of an Adum chief. We have accepted from appellant counsel’s submission that this is not supported by the evidence on record.”

With due respect to the National House of Chiefs, their conclusion is not borne out by the evidence. The parties themselves did not deny the existence of that custom. What was in issue was the contents of that custom. In its judgment, the Kumasi Traditional Council stated:

“Before the second defendant’s eligibility to the Adum stool is considered, it is important to have a look at the customary implication of an ayete family vis-à-vis a patrilineal stool. By custom, it is the ayete family which provides wives to the occupants of the stool which the ayete family is attached Eligibility to such a stool in the case of patrilineal stool invariably belongs to the stool sons and grandsons in the ayete family. The stool sons in the family transfer their right of eligibility to a patrilineal stool to their children and grandchildren. By custom the female children from an ayete family

[p.123] of [1997-1998] 2 GLR 84 are classified as stool wives of the stool which takes ayete from the family.

The stool daughters as wives of the stool also, by custom, transfer their right of eligibility to the patrilineal stool to their sons and grandsons. By the principle of this custom of transfer of rights, the male children from the ayete family become automatic stool sons and stool grandsons by virtue of their ancestors who had occupied the stool. By this system of transfer of rights, therefore, eligibility to a patrilineal stool lies in the ayete family (stool wife’s house) attached to the stool. It must also be mentioned that the male children in the ayete family attached to a patrilineal stool cannot by custom be regarded akonta (brother-in-law) of this stool occupant marrying or having married in the family. On account of the customary principle described above, Ama Adowaa was the daughter of Nana Adum Asamoah, Adumhene, and Kyekye Akenten (exhibit 1 refers). Consequently, by applying to this customary principle pertaining to the ayete family attached to a patrilineal stool, second the defendant’s eligibility to the Adum stool being transferred from Adowaa cannot be questioned.”

This was a restatement of the custom by chiefs who come from the area where this peculiar custom prevails. That apart, there was evidence in support of this restatement of the custom. On this issue, Nana Oteng Duah, the Adum Konkori gyasehene, attorney for the first defendant and the spokesman for the defendants, said:

“. . . in the case of the second defendant, the stool elders came to a conclusion that he hailed from the ayete family, therefore, as custom demanded, those who have the right of eligibility to a patrilineal stool are members of that particular stool ayete family . . .

By custom when the Adum stool is going to war the chief is accompanied by all the members of his ayete family so that should the chief die in war a ready candidate is quickly elected to succeed the deceased chief.”

This piece of evidence was not seriously denied or challenged. To a question whether the in-law can by custom be referred to as a son and therefore has a right to the property of the stool sons, this witness answered: “By custom an in-law in the ayete family can

[p.124] of [1997-1998] 2 GLR 84 have right to the stool sons.” It was further suggested to him: “Those in the family of the ayete who are not stool sons and grandsons then have no claim to that particular stool marrying or married in the house?” He answered: “No; all male members of the ayete family are classified as sons and grandsons of the stool marrying in the family.” The fourth defendant witness under cross-examination was asked: “Explain the difference between an akonta (in-law) to a stool and a grandson to a stool?” He answered: “akonta or in-law exists, when the marriage is not a stool marriage in the ayete family. All the male children in the Ayete family by custom are regarded as stool sons and grandsons.”

The evidence of the plaintiff, apart from the lame assertion that the second defendant was not eligible, dwelt on the complaint of their not having been called to consent to the installation of the second defendant. This cannot be correct as the evidence shows overwhelmingly that majority of the kingmakers and stool elders of Adum, including some of the plaintiffs, fully participated in all the events which culminated in the enstoolment of the second defendant as Adumhene.

There was thus abundant evidence in support of the conclusion by the traditional council. The committee concluded:

“The committee having listened to the evidence of parties and their witnesses is satisfied that succession to the Adum stool is patrilineal and that the stool was created for Adum Asamoah by King OseiTutu shortly after his enstoolment as king of Asante . . .

It is further established that Kyekye Akenten was the wife of Nana Adum Asamoah, Adumhene. In course of time an ayete stool was created for Kyekye Akenten house or family. The family of Kyekye Akenten by custom therefore supply wives to the Adum stool occupants. The creation of the ayete stool for the family of Kyekye Akenten being ayete house for the Adum patrilineal stool has a great significance, as that makes the family according to custom the source from which candidates for the Adum patrilineal stool is taken.”

Another body of chiefs, the Ashanti Regional House of Chiefs, with particular knowledge of the custom pertaining to the Ashantis, also evaluated the evidence and delivered its judgment thus: “After learned counsel’s submissions, the main issues that call for determination were further scaled down to whether or not

[p.125] of [1997-1998] 2 GLR 84 in view of the evidence on record the candidate, Peter Bekoe, is eligible to the Adum stool. In our opinion, the determination of this issue could summarily dispose of this appeal and we shall therefore proceed to consider the said issue first. In considering the customary role of an ayete family and the stool to which it belongs, we find the exposition of the said custom in the judgment of the trial committee so cogent and authoritative that we uphold nananom’s views on the subject matter and we therefore state same below in extenso:

By custom it is the ayete family which provides wives to the occupants of the stool to which the ayete family is attached. Eligibility to such a stool in the case of a patrilineal stool invariably belong to the stool sons and grandsons in the ayete family. The stool sons in the family transfer their rights of eligibility to a patrilineal stool to their children and grandchildren. By custom the female children from an ayete family are classified as stool wives of the stool which takes ayete from the family. The stool daughters as wives of the stool also by custom transfer their right of eligibility to the patrilineal stool to their sons and grandsons. By the principle of this custom of transfer of rights, the male children from the ayete family become automatic stool sons and stool grandsons by virtue of their ancestors who had occupied the stool.

By this system of transfer of right, therefore, eligibility to a patrilineal stool lies in the ayete family (stool wife’s family) attached to the stool. It must also be mentioned that the male children in the ayete family attached to a patrilineal stool cannot by custom be regarded as akonta (brother-in-law) of the stool marrying or having married in the family on account of the customary principle described above. Evidence on record shows that the second defendant, Peter Bekoe, traces his ancestory to Kyekye Akenten who was his great grandmother and above all he also hails from the ayete family attached to the Adum stool. Going by the above principle, the eligibility of the second defendant accords with the requisite customary principle, practice and usage pertaining to the Adum stool. In effect the restrictive approach advocated by learned counsel for the appellants, Mr Pobee, that only a direct son or grandson of an Adumhene is eligible to the Adum stool does not accord with custom.

[p.126] of [1997-1998] 2 GLR 84

In our opinion, the position is the non-restrictive principle contained in the judgment of the trial committee referred to above. It must also be emphasized here that Adum Atta III ascended the Adum stool, even though he was neither the son nor a grandson of an Adumhene. This supports the view that the Adum stool is not the sole preserve of sons and grandsons of occupants of the stool. Having found that the second defendant, Peter Bekoe, is eligible to the Adum stool, the next issue is whether or not the process he went through accords with the requisite customary practice for his installation as Adumhene, as claimed by the defendants. In this respect we have no difficulty in coming to the conclusion that the installation process itself was without blemish and cannot therefore be questioned. The said candidate was nominated and supported by a majority of the accredited kingmakers of the Adum stool, with the tacit participation of the second appellant (the second plaintiff). Evidence on this issue also shows that the first appellant (the first plaintiff), Opanin Kojo Fori, Kyidomhene, poured libation following the nomination and installation of the second defendant. To borrow the words of an imminent jurist, ‘it lies ill in the mouth of the said Opanin Kojo Fori to now resile from the very process he himself voluntarily participated in.’ For this reason, we agree with the respondents, counsel that the first appellant is thereby estopped from challenging the eligibility of the second respondent to the Adum Stool.”

The ayete system of succession is nothing more than a special type of patrilineal succession peculiar to at least the people of Adum, Kumasi in Ashanti. In an ordinary patrilineal system of succession, succession is through the sons and grandsons. The sons and grandsons must necessarily be the issues of the chief and his wife or wives. It follows the same pattern as it obtains in other patrilineal systems; there are no difficulties about it as it is not peculiar. If these were the only incidents of patrilineal succession, it would not have been necessary to create an ayete family for the purpose of succession, since only wives could produce heritable sons and grandsons for the stool. The ayete system however, although a form of patrilineal succession, is different from the ordinary one. This is so because in this system a wives family is operated; a family is created for the stool from which the occu-

[p.127] of [1997-1998] 2 GLR 84 pants could take a wife at any time. This is borne out by the evidence on the record. By reason of this indulgence the whole family of the ayete family is recognised as the wife of the stool and consequently all males in that family are taken as sons and grandsons of the stool and become eligible to ascend the stool of Adum. Reasons were given for the adoption of this system of inheritance. And, it was in evidence that when the Adumhene was going to war, all the males in the ayete family accompanied the chief so that in case the chief was killed in the war there would be sons or grandsons to succeed him. It cannot be said therefore that the system is unreasonable. Unless this difference is accepted, there would be no need to create an ayete family. But the parties, on the evidence, agree that there is a system called ayete in the Adum house. The system may be strange and alien to communities outside Adum, Kumasi in Ashanti. In Ashanti, as established by the evidence, that is the custom. Aliens or strangers to that custom should not arrogate to themselves the right to change that custom simply because they do not understand it or it is novel and unreasonable to them. It is not the function of a chieftaincy tribunal to write new customs for communities; if the custom is peculiar it must be so observed. In certain patrilineal societies, females are excluded from succeeding, while in others females do succeed. Thus, there are bound to be variations in the patrilineal system itself.

On the evidence, no mention was made of a queenmother who nominates a candidate for enstoolment as Adumhene. This is unlike Ashanti custom where the queenmother, and not the abusuapanin, features prominently in the nomination of a candidate for enstoolment. But that situation exists at Adum where the gyasehene is substituted for a queenmother in the nomination of a candidate for enstoolment. This is significant and peculiar to the Adum stool.

On the question of who the kingmakers of the Adum stool are, the National House of Chiefs declared: “The election and installation or enstoolment of a candidate in a patrilineal stool is the prerogative of the sons and grandsons of chiefs who have occupied the stool before.” On what evidence then, one may ask, did the National House of Chiefs substitute the accepted custom of the Adum people with the nomination of the Adumhene by the mmaama as kingmakers? The declaration by the National House of Chiefs that it is the mmaama who constitute the kingmakers of

[p.128] of [1997-1998] 2 GLR 84 the Adum stool is not supported by the evidence on record. The issue as to who should nominate a candidate for enstoolment arose before the installation of the second defendant and, this is what the plaintiffs’ own spokesman, Nana Kwaku Asamoah (the fifth plaintiff), had to say on it: “The kingmakers (ie the gyasehene) did not consult us the sons of the Adum stool before they elected and enstooled second defendant. The conduct of the kingmakers was therefore contrary to the existing customary practice for the enstoolment of a candidate to the Adum stool.”

Whether there was this consultation or not—which issue is refuted by the overwhelming evidence adduced—it was not the case of the plaintiffs that they were the kingmakers. The plaintiffs themselves admitted that the issue of the nomination of a candidate was settled and the National House of Chiefs itself in one of its reasons for the judgment said: “First he was appointed a regent. We hold that on this, the conduct of the appellants (ie the plaintiffs) was acquiescience.”

On the evidence, who were the kingmakers? The fifth plaintiff, Nana Kwaku Asamoah (spokesman for the plaintiffs), on this question under cross-examination by the committee answered:

“They are Nana Kofi Agyei III, Gyasehene (Kwanwoma Dikro); Nana Agyeman, Konkori Dikro; Nana Appiah Nti, Abontendomhene (Buoyasae Dikro); Nana Kusi Appau, Abrafo Kokoben Dikro; Opanin Kwadwo Sika, Akyeamehene; Opanin Debrah II, Adum Asonahene (Akena Dikro); Opanin Bona Ababio, Potoso Dikro; Opanin Kofi Fo, Adum Akwamuhene; Opanin Kyei Ampofi II, Asuhyiae Dikro; Opanin Kwaku Sampene (Adum Mmamhene); Opanin Kofi Fofie, Gyasehene of Atronie; Opanin Kwaku Mensah, Techimantia Twafohene; Baafour Addo Kessie, Asekanfohene, Baafour Asamoah Anihene, Buohia Mmamahene; Opanin Oteng Amoah, Odomankomahene; Opanin Kojo Fori, Adum Kyidomhene; Nana Adusei Gyapo, Wiiosohene; Opanin Yaw Gyamfi, Offuman No 2 Dikro.”

The first plaintiff witness, who admitted he was not a kingmaker, also admitted the settlement case before Otumfuo as to who the kingmakers were and who was entitled to nominate a candidate for enstoolment on the Adum stool. The first plaintiff witness also

[p.129] of [1997-1998] 2 GLR 84 admitted that the ayete system has been in the house from time immemorial but could not tell how the family became ayete family of the Adum stool.

On what evidence, then, did the National House of Chiefs depend to overturn the established custom? In fact, the two statements by the National House of Chiefs on the ayete custom and the assertion that it is the sons and grandsons of the stool who constitute the kingmakers of the stool disabled them from looking critically at the content of the ayete custom.

It is an established principle of law that a finding of fact by a lower court should not be easily set aside unless there was no evidence to support it or that the finding was perverse: See Boateng v Boateng [1987-88]2 GLR 81, CA and Adjeibi-Kojo II v Bonsie (1957) 3 WALR 257, PC. One should remember that although the existence or content of a rule of customary law is a question of law for the court, the whole process of adjudication before the chieftaincy tribunals is fact-finding. Where the findings of the lower court are supported by a subsequent appellate court, then the higher appellate court should be very cautious in upsetting those findings; it can only do so if the findings are not supported by the evidence or they are perverse. In Obrasiwa II v. Otu [1996-97] SCGLR 618, the Supreme Court held, inter alia, as stated in the headnote thus:

“Where the lower appellate court had concurred in the findings of the trial court, especially in a dispute, the subject-matter of which was peculiarly within the bosom of the two lower courts or tribunals, a second appellate court would not interfere with the concurrent findings of the lower courts unless it was established with absolute clearness that some blunder or error which had resulted in a miscarriage of justice was apparent in the way in which the lower tribunals had dealt with the facts. The errors would include: an error on the face of a crucial documentary evidence; a misapplication of a principle of evidence; and finally, a finding based on an erroneous proposition of law such that if that proposition was corrected the finding would disappear. However, it was not enough that the blunder or error per se was established; it must further be established that the said error had led to a miscarriage of justice.”

See also Achoro v Akanfela [1996-97] SCGLR 209.

[p.130] of [1997-1998] 2 GLR 84

Were the findings made by the two lower tribunals perverse or unsupportable? The appellate tribunal is not supposed to substitute its own judgment for that of the lower court simply because if it were sitting on the case originally it would have decided otherwise on the evidence, albeit as a court of re-hearing. In the instant case, the National House of Chiefs decided to set aside these concurrent findings of fact by the lower tribunals and substitute its own in the face of the overwhelming evidence in support of the findings, without stating whether the findings were perverse or not. Admittedly, there were inconsistencies or conflicts here and there in the evidence of the defendants. Similarly, there were such inconsistencies and conflicts in the evidence of the plaintiffs; but these conflicts or inconsistencies were not such that could displace the overwhelming evidence that supported the custom. With the flux of time there were bound to be mistakes in the evidence and, as Lord Denning observed in Adjeibi-Kojo v Bonsie (supra) at 260: “Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief . . .” It is in this vein that such evidence must be considered; it must not be discarded simply because there are some conflicts or inconsistencies in the case.

It was evident from the manner the National House of Chiefs treated the matter that it was unsure about the particular custom in question. If that were so, it had the necessary legal support to make the necessary reference. Section 55 (2) and (5) of the Courts Act, 1993 (Act 459) provides:

“(2) If there is doubt as to the existence or content of a rule of customary law relevant in any proceedings before a court, the court may adjourn the proceedings to enable an inquiry to be made under subsection (3) of this section after the court has considered submissions made by or on behalf of the parties and after the court has considered reported cases, textbooks and other sources that may be appropriate to the proceedings.

(5) The court may request a House of Chiefs, Divisional or Traditional Council or other body with knowledge of the customary law in question to state its opinion which may be laid before the inquiry in written form.”

See also section 24(7) and (8) of the Chieftaincy Act, 1971 (Act 370).

[p.131] of [1997-1998] 2 GLR 84

In the instant case, the situation was made simpler and easier for the National House of Chiefs. The existence and content of the custom were declared by the appropriate traditional fora within which the custom is practised or presumed to be practised. Upon what authority then did the National House of Chiefs depend to overturn that custom? In the quite recent case of In re Ningo Paramount Stool; Huago v Djangrnah II [1998-99] 2 SCGLR 255, Supreme Court 6 June 1997 unreported, the Supreme Court was compelled to accept the National House of Chiefs’ pronouncement on the custom of abdication, although based on Akan customary principles which are alien to the Ningos themselves; for, as it turned out, the Ningos had no such custom. That is not the situation in the instant case where the traditional area, the community practising the custom, has given evidence of its custom.

With regard to the installation of the second defendant as the Adumhene, the National House of Chiefs reasoned as follows:

“First, he was appointed as regent. We hold that on this the conduct of the appellants was acquiescence. The second appointment was the selection of a candidate for chiefship. This was the occasion when there were contestants and candidates were vetted. On this occasion, there has been opposition all the time culminating in oaths being sworn, settlements being effected and ending with this case now in progress. We do not therefore accept that there has been an agreement and through that an acquieiscence which estops appellants from contesting the case.”

And so? In chieftaincy disputes, especially in the nomination election and enstoolment of a chief, there is bound to be disagreement. There is no custom that the nomination should be unanimous. That is why there are candidates for vetting. It is not expected that a person whose candidature is rejected would be happy and therefore agreeable to the selection of any other person. It is the majority decision which must prevail. It is therefore wrong to reject the evidence on the issue of nomination and installation of the second defendant simply on the ground that there was disagreement, particularly when the committee itself found that there was acquiescence in the appointment of the second defend ant as a regent. Under what custom was the second defendant appointed a regent, if he was not eligible to the stool?

[p.132] of [1997-1998] 2 GLR 84

The evidence of the defendant’s attorney which was not denied and which was substantially admitted by the spokesman for the plaintiffs, was that:

“The stool elders present agreed to petition the Asantehene to allow them to appoint a regent as the incumbent chief was invalidated. It was further decided that before the petition was made to Otumfuo, libation should be poured on the black stools of Kyekye Akenten at Afrancho. Four bottles of schnapps were bought by the stool elders. One bottle was shared among them. One bottle was sent to Afrancho for libation to be poured on the black stools of Kyekye Akenten. Another bottle was sent to Dokodu and Kyinanan shrines at Afrancho. The libation was poured by the caretaker of the shrines, Opanin Yaw Mensah. The fourth bottle was sent to the fetish at Kwanwoma called Addae Moto, which belongs to the first plaintiff, for libation to be poured. The libation was poured by the fetish priest. After presenting these drinks and the pouring of the libations, we the stool elders of Adum presented our petition to the Asantehene. Soon after presenting our petition to Otumfuo, he left for overseas and while there, Nana Asamoah Totoe II also died. Meanwhile the second defendant returned to Europe.

Shortly after the death of the late chief of Adum, the stool elders of Adum met at the stool palace while the chief of Tetrem was present. At this meeting, Yaa Mem and members of her family were also present. In the course of discussing the arrangement of the burial of the deceased chief and the financial aspects of the burial ceremony, we the stool elders requested Yaa Mem and her family to provide the stool ¢500,000 to cater for the expenses of the detoyie (burial ceremony) in consideration of the fact that second defendant was the automatic successor of the deceased chief. The family paid the first deposit of ¢200,000 on 4 July 1987. The family promised to pay the balance of ¢300,000 in a week’s time. The stool elders present, including the first plaintiff, prepared a receipt for the payment. The receipt was signed by all the stool elders present. I tender a photocopy of the receipt in evidence. exhibit tendered and marked exhibit 2. No objection from plaintiffs. Yaa Mem was then requested to invite the second defendant from over- [p.133] of [1997-1998] 2 GLR 84 seas so that he could be presented to the head of the Akwarnu Division, Akwamuhene of Kumasi. On the arrival of the second defendant from overseas and at his first meeting with the stool elders of Adum, including the first plaintiff and the second plaintiff, the second defendant was requested to repair the building at the Ebaamu at Kwanwoma (Kwanwoma mausoleum). He readily renovated the place befitting the status of the Adum stool at his own expense. A message was then received from the Asantehemaa that by custom, we, the stool elders, were required to pay ¢100,000 and some drinks as sukahyire. We were able to present only ¢60,000 plus four bottles schnapps, one crate soft drinks and one carton beer. All the drinks and the ¢60,000 were provided for by the second defendant. Having done this, we the stool elders of Adum advised the second defendant to beg for the stool customarily. Accordingly, the second defendant begged for the stool through Dadiesoabahene of Kumasi with an amount of ¢10,000 and one case of schnapps.

At the stool elders’ meeting to prepare themselves to introduce the second defendant to the Akwamuhene of Kumasi, it was learnt from the second plaintiff that he had already received four dwantoa (applications) from four candidates. These candidates were: Capt (Rtd) Kuffour Mensah, Mr Kwadwo Afriyie, Mr Adiedu Bour, Mr Kwasi Agyei. The stool elders present then decided to meet at Pelican Hotel at Kwadaso to discuss the enstoolment issue with the second plaintiff. The stool elders unanimously rejected the application of Mr Afriyie for having caused the arrest of first plaintiff. In the same vein, Mr Adiedu Bour was rejected for not being known to the stool elders. Mr Kwasi Agyei was rejected for not being financially strong. Captain (Rtd) Kwabena Kuffour was found to be the son of one Kwabena Agyei who had never occupied the Adum stool. His mother, Afia Ampoma, hailed from Trede. His mother’s father was Nana Kwabena Kuffour, Nkawiehene; Nana Kwabena Kuffour’s father was Nana Agyei Kessie II, Adumhene. The application of Capt (Rtd) Kwabena Kuffour was put aside to be reconsidered. In the case of the second defendant, the Stool elders came to a conclusion that he hailed from an ayete family, therefore, as custom demanded those who have the right of eligibility to a patrilineal stool are the members of that

[p.134] of [1997-1998] 2 GLR 84 particular stool ayete family. By custom, when the Adum stool is going to war the chief is accompanied by all the members of his ayete family so that should the chief die in the war a ready candidate is quickly elected to succeed the deceased chief.

Again the stool elders realised they were to be fair to the second defendant since he had long been accepted and has been made to spend on the Adurn stool. The second defend ant’s election and approval was therefore reconfirmed by the stool elders (kingmakers) of Adum. They further decided to meet all the candidates at Adum and to give them the opportunity to give their family history before their rejection would be announced.

A meeting was then fixed and at that meeting all the five candidates were present with the people through whom they presented their dwantoa for the stool. Finally at that meeting, all the kingmakers accepted the second defendant, except the first and second plaintiffs. The first and second plaintiffs claimed that the second plaintiff had the prerogative to nominate a candidate to the Adum stool but their claim was challenged by the other kingmakers. The matter was brought before the Asantehene who, after Opanin Dideeye had given evidence, confirmed the claim of the majority of the kingmakers as having the right to nominate and elect a candidate to the Adum stool. By virtue of this judgment the majority kingmakers enstooled the second defendant according to custom and he was brought to Otumfuo to swear the oath of allegiance as custom demanded.”

Before then, this witness had set down who the kingmakers who had taken part in the various activities and who had received part of the monies paid thus:

“Q Who are the kingmakers of the Adum stool?

A They are the following: Odikro of Asuhyiae, Odikro of Potoso, Odikro of Bogyesango, Odikro of Abrafo Kokoben, Odikro of Konkori, Odikro of Afrancho (Atwima), Odikro of Odumase, Odikro of Kwanwoma (Gyasehene of Adum), Akyeamehene of Adum, Akwamuhene, Kyidomhene, Odikro of Wiowso (Asante Akim), Odikro of Atronie (Brong Ahafo), Adum Agona Stool of Akyina-

[p.135] of [1997-1998] 2 GLR 84 kron (Opanin Debra Ababio) and Opanin Sarfo of Akyinakrom.”

In their statement of defence, the defendants averred:

“17. (b) that the first plaintiff being a kingmaker, other kingmakers as well as the second plaintiff and all Adum stool elders who have any customary part to play in the nomination, election and installation of the Adurnhene were not denied their rights.”

The defendants admitted that the first plaintiff was a kingmaker but denied that all the others were; the second and fifth plaintiffs were members only of the mmaamafuo group. Nana Kwaku Asamoah (the fifth plaintiff), who testified as the spokesman for the plaintiffs, admitted that he was not a kingmaker. Out of the fifteen kingmakers, ten of them enstooled the second defendant. The Odikro of Atronie, the Odikro of Odumase and the Odikro of Afrancho were absent because those positions were vacant.

With such overwhelming evidence, coupled with the fact that drinks were accepted of the candidature of the second defendant with payment of enstoolment fees and the performance subsequently of the funeral of the late Adumhene, how could nananom resolve that there was no proper installation?

The conclusion by nananom, with due respect, was not supported by any evidence; their decision was a bare substitution of their own, based on an alleged custom which unfortunately they could not substantiate. By their decision, they created a new and strange custom for the people of Adum. Rather than put an end to the litigation, nananom’s decision was bound to create confusion and unrest as the people whose custom it is, could not be expected to operate a custom which has been imposed on them.

I would allow the appeal, set aside the decision of the National House of Chiefs and restore the decisions of the Kumasi Traditional Council and the Ashanti Regional House of Chiefs.

Adjabeng JSC. I have had the privilege of reading beforehand the comprehensive and well-reasoned opinions of my learned brother and sister, Aikins and Akuffo JJSC. I agree with their conclusion and the reasons they have given for so concluding.

I agree with them that the basic issue that calls for determination in this matter is the question whether or not the second defendant-appellant (hereinafter called the second defendant) is

[p.136] of [1997-1998] 2 GLR 84 eligible to ascend the stool of Adum. Both parties agree that the Adum stool is a patrilineal stool. This quality of the Adum stool makes it a special stool in an Akan area where matrilineal stools are the order of the day. This being a patrilineal stool, only sons and grandsons who can trace their ancestry through the male line to the originator of the stool, Anum Asamoah, are eligible to ascend it.

The law requires that to qualify for installation as a chief, a person must hail from “the appropriate family and lineage”: see article 277 of the Constitution, 1992. For the second defendant to qualify for installation on the Adum stool therefore, it must be established that he hails from the appropriate family and lineage. That is, he should be a son or grandson through the male line of the ancestor Anum Asamoah. The evidence shows that the defendants have failed to establish any such relationship. Rather, the evidence shows that the second defendant succeeded only in tracing his ancestry through the female line. It is clear, therefore, as amply and ably demonstrated by my learned brother and sister in their opinions, that the second defendant is not eligible to ascend the patrilineal stool of Adum. The National House of Chiefs was therefore right in reversing the findings and decisions of the Kumasi Traditional Council, and the Ashanti Regional House of Chiefs.

The appeal ought, therefore, to be dismissed.

Akuffo JSC. I have had the privilege of reading beforehand, the opinion of my learned brother Aikins JSC and I agree that this appeal must be dismissed. It has not been very easy for me to arrive at this conclusion since we are faced with concurrent findings of both the Kumasi Traditional Council and the Ashanti Regional House of Chiefs on a customary law issue. At first blush, one is expected to treat such matters as being within the peculiar province and expertise of such august traditional bodies, for they are closer to the matter, so to speak, than the National House of Chiefs or this court. However, after a careful scrutiny of the record, I found it very difficult to accept the conclusions of the Kumasi Traditional Council and the Ashanti Regional House of Chiefs, for the simple reason that they are not borne out by the totality of the evidence.

The evidence before the Kumasi Traditional Council in this case consisted of both oral tradition and recent matters, and at the

[p.137] of [1997-1998] 2 GLR 84 conclusion, the matters which were not in any serious dispute between the parties were that:

(a) the Adum stool is patrilineal, having been so designated by Nana Osei Tutu;

(b) the stool was created by Nana Osei Tutu for Nana Anum Asamoah who was its first occupant and whose first wife was Kyekye Akenteng;

(c) Kyekye Akenten’s family was, at some point in time, made an ayete house for the Adum stool and, pursuant to this status, Yaa Mem, a descendant of Kyekye Akenteng, had been married to two previous Adum stool occupants;

(e) the second defendant is also a descendant of Kyekye Akenten, through Ama Adowaa, the daughter of Nana Anum Asamoah and Kyekye Akenteng, and a customary brother of Yaa Mem; and

(d) the father of the second defendant had never been an Adumhene.

The judicial committee of the Kumasi Traditional Council concluded that as the ayete house for the Adum stool, the family of Kyekye Akenten was, customarily, “the source from which candidates for the Adum patrilineal stool is taken.” (The emphasis is mine.) On the question of the customary implications of ayete of a patrilineal stool, the committee expressed its views on the matter as follows:

“By custom, it is the ayete family which provides wives to the occupants of the stool to which the ayete is attached. Eligibility to such a stool in the case of patrilineal stool invariably belongs to the stool sons and grandsons in the ayete family. The stool sons in the family transfer their right of eligibility to a patrilineal stool to their children and grandchildren. By custom, the female children from ayete family are classified as stool wives of the stool which takes ayete from the family.

The stool daughters as wives of the stool also by custom transfer their right of eligibility to the patrilineal stool to their sons and grandsons. By the principle of this custom of transfer of rights, the male children from the ayete family become automatic stool sons and/or stool grandsons by virtue of their ancestors who had occupied the stool. By this system of transfer of rights, therefore, eligibility to a patrilineal stool lies in the ayete family (stool wife’s house) attached to the

[p.138] of [1997-1998] 2 GLR 84 patrilineal stool. It must also be mentioned that the male children in the ayete family attached to the patrilineal stool cannot by custom be regarded as akonta (brother-in-law) of the stool occupant marrying or having married in the family on account of the customary principle described above.”

The said committee also held that, of the five plaintiffs, only the first was a kingmaker and that mmamma are not kingmakers Consequently, since the first plaintiff had participated in the nomination process, and the election and installation had been conducted by a majority of the kingmakers, the second defendant had been properly nominated, elected and installed.

On appeal to the Ashanti Regional House of Chiefs, nananom particularly indorsed and adopted the traditional council’s exposition of the customary role and the implications of ayete when it is attached to a patrilineal stool and concluded that:

“Evidence on record shows that the second defendant, Peter Bekoe, traces his ancestry to Kyekye Akenten who was his great grandfather and above all he also hails from the ayete family attached to the Adum stool. Going by this principle, (ie as expounded by the Kumasi Traditional Council) the eligibility of the second defendant accords with the requisite customary practice and usage pertaining to the Adum stool. In effect, the restrictive approach advocated by learned counsel for the appellants, Mr Pobee, that only a direct son or grandson of an Adumhene is eligible to the Adum stool does not accord with custom. In our opinion, the position is the non-restrictive principle contained in the judgment of the trial committee referred to above. It must also be emphasised here that Adum Atta III ascended the Adum stool even though he was neither the son or grandson of an Adumhene. This supports the view that the Adum stool is not the sole preserve of sons and grandsons of occupants of the stool.”

Having so concluded, the regional house of chiefs then proceeded to confirm that the process that culminated in the installation of the second defendant are unquestionably correct and had the tacit participation of the first and second plaintiff who are, therefore, estopped from challenging the process. The appeal was, therefore, dismissed and the plaintiffs then appealed to the National House of Chiefs which granted the appeal. In granting the appeal, the

[p.139] of [1997-1998] 2 GLR 84

National House of Chiefs decided that, in view of the nature of the case, it would, pursuant to section 23(3) of the Chieftaincy (National and Regional Houses of Chiefs) Procedure Rules, 1972 (CI 27), treat the proceedings as a re-hearing at first instance and it, therefore, re-examined thoroughly the evidence regarding both the eligibility of the second appellant and the installation procedure. Our duty in this appeal is to determine whether or not the conclusions of the National House of Chiefs are supported by customary law and the evidence on the record.

In the case of Akenteng II v Ayeremah [1996-97] SCGLR 384, this court had the opportunity to consider the meaning of section 66 of the Chieftaincy Act, 1971 (Act 370) and, in the leading opinion of the court, the learned Bamford-Addo JSC had this to say:

“A proper nomination and installation of a person in accordance with custom and usage makes that person a validly enstooled chief under customary law and Act 370. There fore failure to follow the proper customary procedures for nomination and installation of any person invalidates his status as a chief . . .

Therefore . . . if any of these matters, ie nomination, election or appointment and installation, is not done in accordance with customary law and usage a person cannot claim to be a properly entooled chief under Act 370.”

In section 48 (1) of Act 370, the definition of a chief is, for the purposes of this matter, not materially different from that for a paramount chief (cf section 66 of Act 370), and there is no doubt that the foregoing principle applies equally to a chief. The matter is further clarified in chapter 22 of the Constitution, 1992 which defines “Chief” in article 277 as:

“. . . 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 queen-mother in accordance with the relevant customary law and usage.”

(The emphasis is mine.)

All these prerequisites need to be fulfilled before any person could claim to be a chief within the meaning of the Constitution, 1992. The most germane question in this matter, therefore, is

[p.140] of [1997-1998] 2 GLR 84 whether or not, in accordance with Ashanti customary law and usage, particularly that pertaining to the Adum stool, the second appellant is a person hailing from the appropriate family and lineage. It is the answer to this that will dictate whether or not one even needs to proceed to the next step of ascertaining whether or not, on the totality of the evidence, the second defendant had been validly nominated, elected and enstooled. This is because, assuming that the second defendant had been duly nominated, elected and installed by the qualified kingmakers, all these acts, although performed, will be invalid and nugatory if it is found that he does not hail from the “appropriate family and lineage.” To answer this question, it is necessary for us to scrutinise closely the evidence before the traditional council relating to the customary consequence of the institution of ayete attached to a patrilineal stool; the family and lineage of the second defendant and its effect is the context of the patrilineal nature of the Adum stool.

In this regard, the contention of the plaintiffs has all along been that since the stool is patrilineal, the second defendant is not of the appropriate family and lineage and he is ineligible to the Adum stool because:

(a) he is not a son or grandson, by direct male descent, of any duly installed Adumhene;

(b) he is the customary brother of one Yaa Mem who had been the wife of an Adumhene; and

(c) he belongs to the family that provides ayete for the Adum stool.

The spokesman for the defendants, in his evidence-in-chief testified, in relation to the family and lineage of the second defendant, as follows:

“. . . The second defendant averred that his ancestors are Nana Addo Kessie I, Nana Anum Asamoah and Nana Agyei Kessie I, whose black stools are lying among the black stools of Adum. He said his great ancestress Kyekye Akenteng begat Nana Ama Adowaa and he is the direct descendant of Nana Adowaa. Nana Adowaa also begat Yaa Akyaa. The father of Ama Adowaa was Nana Anum Asa moah, the first chief of Adum. I do not know the husband of Ama Adowaa. Yaa Akyaa also begat Adwoa Agyeiwaa. Adwoa Agyeiwaa begat Ama Agyepomaa. Agyepomaa begat Yaa Asokwa and Ama Nsiah. Yaa Mem’s mother is Ama Nsiah. The second

[p.141] of [1997-1998] 2 GLR 84 defendant’s mother is Yaa Asokwa. In the case of the second defendant, the stool elders came to the conclusion that he hailed from an ayete family, therefore, as custom demanded those who have the right of eligibility to a patrilineal stool are members of that particular stool ayete family.

By custom, when the Adum stool is going to war the chief is accompanied by all members of his ayete family so that should the chief dies in the war a ready candidate is quickly elected to succeed the deceased chief . . .”

On cross examination by the fifth plaintiff the following transpired:

“Q What do you mean when you say the descendants of Kyekye Akenten are the owners of the Adum stool?

A Kyekye Akenten was the wife of Nana Anum Asamoah and she arrived together with her husband from Anum. Nana Osei Tutu then created a stool for Nana Anum Asamoah so the children and grandchildren of Kyekye Akenten are the origins of the stool.

Q By custom can Kyekye Akenten’s descendants claim her husband’s stool?

A The stool was gifted to Nana Anum Asamoah and his children.

Q You agree Nana Agyei Kesse III was stool grandson?

A Yes, I agree . . .

Q (Per committee) By custom, who are regarded as stool sons and grandson in an ayete family?

A The son or grandson of the chief who is marrying in the family.

Q Those in the family who are not sons and grandsons then have no claim to that particular stool marrying or married in the house?

A No, all male members of the ayete family are classified as sons and grandsons of the stool marrying in the family.”

The odikro of Afrancho, the brother of Yaa Mem, also gave evidence as the second defendant witness. This is part of his evidence on cross-examination by the plaintiffs:

“Q What do you mean when you say the Adum stool traces its origin to your family?

[p.142] of [1997-1998] 2 GLR 84 A The Adum stool was created for the husband of Kyekye Akenten, my great ancestress, by the Asantehene. My ancestress’ husband, Nana Anum Asamoah, therefore bequeathed the stool to his sons and grandsons.

Q How many chiefs of Adum have come from your family?

A Three chiefs namely, Nana Anum Asamoah, nana Addo Kessie and Nana Agyei Kesse.” Following is an excerpt from the testimony of Yaa Mem, who gave evidence as the third defendant witness:

“A My ancestors are Nana Anum Asamoah and Kyekye Akenten. My ancestors accompanied Nana Osei Tutu on his return journey from Anum to Kumasi. The members of my family at Afrancho are the descendants of Nana Anum Asamoah. I am now occupying the stool of Nana Kyekye Akenteng . . . ”

Q (Per defendants’ counsel) What happened after the creation of the stool?

A Nana Anum Asamoah petitioned King Osei Tutu to bequeath his stool to his wife and children since he had no relatives in Asante. King Osei Tutu graciously granted the request of Nana Anum Asamoah . . .

Q How many children did Nana Anum Asamoah and Kyekye Akenteng beget?

A They had seven children, namely Kra Addo; Asamoah Akate; Asamoah Mensah; Addo Kese;

Adwoa Ampomah, and Agyei Kesse.

Q Which of these children are you a direct descendant?

A I descend from Adwoa’s lineage.

Q (Per fifth plaintiff) What is the system of succession for the Adum stool?

A It is patrilineal by succession.”

Finally, the fourth defendant witness, on cross examination by the committee, had this to say:

“Q Which house provides candidates for the Adum stool?

A The house of Kyekye Akenten and all the sons and grandsons of once occupants of the Adum stool are also qualified to be enstooled.

Q What is the second defendant to the Adum stool?

[p.143] of [1997-1998] 2 GLR 84 A He is a grandson to the stool.

Q What is the proof that the second defendant is the grandson of the Adum stool?

A The proof is that second defendant is a descendant of Kyekye Akenten.”

From the evidence of the defendants, and the conclusions drawn by the Kumasi Traditional Council, then, it would appear that even though the Adum stool is patrilineal, where the Kyekye Akenten house is concerned, eligibility and succession to the Adum stool could be determined matrilineally, but where any other person is concerned, it is strictly patrilineal.

The National House of Chiefs rejected the conclusions of eligibility made by both the traditional council and the regional house of chiefs for the basic reason that, even though the Adum Stool is doubtlessly patrilineal, as testified to by witnesses for both sides, and by the defendants’ own showing, both by oral evidence and exhibit 1, the second defendant’s claim to the stool was exclusively through females, whereas by custom and usage, a patrilineal stool originates from a male and descends only through males.

Thus, according to the National House of Chiefs, the principle propounded by the traditional council and adopted by the regional house of chiefs is a novelty without any supporting evidentiary basis or precedent. Also, according to nananom, it has no foundation in Ashanti customary law and usage and no cogent proof had been produced to establish any peculiarity or exception regarding the Adum stool. As nananom pointed out, the attempt by the regional house of chiefs at supplying a precedent, ie that Adum Atta III had ascended the Adum stool even though he was neither the son or grandson of an Adumhene, had no support from the record. Nananom also took due note of the grave mistake made by the regional house of chiefs, describing Kyekye Akenten as a male. Consequently, the judicial committee of the National House of Chiefs concluded that the defendants had failed to prove their assertion that the first defendant is, and indeed all ayete family members are, eligible to the Adum stool.

In his statement of case herein, counsel for the defendants, in challenging the conclusion of the National House of Chiefs that the second defendant is not eligible, conceded that the concurrent judgments of the traditional council and the regional house of chiefs had not furnished any precedents to support the principle on

[p.144] of [1997-1998] 2 GLR 84 which they had relied for their conclusion that the second defendant is eligible, but submitted nevertheless that:

“. . . the Kumasi Traditional Council and the Ashanti Regional House of Chiefs felt that this is not only a notorious fact but of a common knowledge. In any case, the National House of Chiefs did not need to comb through the records for an answer to the said precedent. At page 36 lines 25-30, the ancestors of the second defendant-appellant who had mounted the Adum stool and whose black stools are among the Adum stools were given as Nana Addo Kessie II, Nana Anum Asamoah and Nana Agyei Kessie I. These chiefs being ancestors of the second defendant-appellant are certainly from the ayete family and this piece of evidence stands unchallenged. It is humbly submitted that having shown that his ancestral stools are among the stools in the Adum stool house, the second defendant-appellant’s eligibility to the Adum Stool is firmly established.”

In support of this submission, counsel made reference to a decision of the National House of Chiefs given in the case of Gyapong v Tuasekanko II, National House of Chiefs, 30 November 1988. In that case, the National House of Chiefs had affirmed that:

“. . . the creation and/or blackening of a stool for a line or family is not for fancy, and once that is done it entitles the group or line or family for which the stool was created or blackened to succeed to the stool and when the new stool(s) is or are mixed with other stools, all the stools acquire the same rights and status without discrimination . . .”

However, I agree with counsel for the plaintiff that this case has no application herein. These submissions do not pose any persuasive challenge to the conclusions of the National House of Chiefs. Firstly, although, from the record, there is a black stool attached to the Kyekye Akenten family, it was not and cannot be part of the defendants’ case herein that such stool has ever at any point in time become mixed with that of Adum. The Kyekye Akenten family’s black stool has not been shown on the record to reside in the Adum Stool house. Secondly, Nana Anum Asamoah, undisputedly the founder of the stool and the first to occupy the same, was not from the house of Kyekye Akenten, his wife.

[p.145] of [1997-1998] 2 GLR 84 Thirdly, the portion of the record relied upon shows that Nana Addo Kessie was the person named as being one of the ancestors of the second defendant, not Nana Addo Kessie II who happens to be Peter Bekoe, the second defendant herein. Furthermore, as was correctly pointed out by counsel for the plaintiffs in his statement of case, a look at the defendant’s exhibit 1 clearly shows that both Nana Addo Kessie I and Nana Agyei Kessie were sons of Nana Anum Asamoah and Kyekye Akenten. However, it is clear on the face of the said exhibit that the second defendant descended from Ama Adowa, a daughter of these two people. He is not directly descended from either Nana Addo Kessie or Nana Agyei Kessie. The fact that these two chiefs once occupied the Adum stool was unquestioned by the plaintiffs, which is of course not surprising since both chiefs were Sons of Anum Asamoah, the originating chief, and the stool is patrilineal. Thus, it is obvious that both Nana Addo Kessie and Nana Adjei Kesse ascended the Adum stool by their right of being the sons of Nana Anum Asamoah rather than by virtue of their being sons of Kyekye Akenten and members of the ayete house.

Moreover, it is worthy of note that, in tracing his line of descent from Nana Anum Asamoah to the second defendant, the line starts from Ama Adowa, the daughter of the founding couple, and runs through females throughout. At no point does exhibit 1 even appear to show that any of the females through whom he traces his pedigree to the founder of the stool, ever married or produced a son for an Adum chief or produced a son who became an Adum chief. Indeed the exhibit, as it stands, as well as the genealogy, presented by the second defendant during his interview for the regency (and repeated by the first defendant witness during the trial) create the impression that what is at stake is succession to a matrilineal rather than a patrilineal stool. Clearly, the core of the defendants’ claim for the eligibility of the second defendant lies exclusively in his direct maternal descent from Kyekye Akenten, who had been the wife of the remote common ancestor, Nana Anum Asamoah. This is patent from the evidence already set out above. Additionally, in the evidence of the first defendant witness, the main witness for the defendants during the trial, the following appears during cross-examination by the counsel for the defendants:

[p.146] of [1997-1998] 2 GLR 84

“Q Why did the gyasefuo of Adum choose to elect a candidate from the house of Kyekye Akenten?

A It was because the house of Kyekye Akenten is the origin of the Adum stool.”

Likewise, when the same witness was cross-examined by the committee the following transpired:

“Q What is the prove (sic) that second defendant is eligible to the Adum stool?

A The second defendant is a direct descendant of Kyekye Akenten from whom the origin to the Adum stool is traced.”

In a matter in which a patrilineal stool is at stake, these are rather strange responses and are indeed non-sequiturs. Thus, after having acknowledged that the Adum stool is patrilineal and that he, the second defendant, is the brother-in-law of Yaa Mem’s husband, Baafour Agyei Kesse, this witness, oddly enough, sought to make more mileage out of the second defendant’s lineal descent from Kyekye Akenten, rather than that from Nana Anum Asamoah, who, as the founder of the patrilineal Adum Stool, would be the one more appropriate to be designated as the origin of the stool. After all, from the evidence, the right to found a patrilineal stool was granted by Nana Osei Tutu to Nana Anum Asamoah and not to Kyekye Akenten. Indeed, it appears from the totality of the evidence adduced by the defendants at the trial that there was great confusion as to the blackened Kyekye Akenten ayete stool per se, which from all the evidence is clearly matrilineal, and the Adum stool, which is, also clearly patrilineal.

My learned brother Aikins JSC has, in his opinion herein, expounded at length on the nature of both patrilineal and matrilineal succession as well as the essential differences between the two and there is, therefore, no need for me to attempt to do the same. The trend of legal authorities on patrilineal systems of succession (of Ollennu’s Law of Testate and Intestate Succession in Ghana, Warrington’s Notes on Ashanti Custom, and Amponsah v Budu [1989-90]2 GLR 291, SC) show that, as a general rule, the system is patrifocal and descent is exclusively through males and, as a norm, eligibility to patrilineal stools is the sole preserve of sons and grandsons of persons who have previously occupied the stool. There is no evidence on the record to establish that the

[p.147] of [1997-1998] 2 GLR 84 system of succession to the Adum stool is a hybrid one constituting both matrilineal and patrilineal. Indeed, as has been already pointed out, both parties are categorically agreed that it is patrilineal. Therefore, in arriving at its conclusion that in the case of an ayete family, there exists a legal fiction (almost of an incestuous nature, I may add) whereby: “The stool daughters as wives of the stool also by custom transfer their right of eligibility to the patrilineal stool to their sons and grandsons” and therefore, by virtue of such an exceptional custom, “the male children from the ayete family become automatic stool sons and or stool grandsons by virtue of their ancestors who had occupied the stool;” which is such a fundamental departure from the general rule, it was imperative for the traditional council and the regional house of chiefs to have founded their decision on proven instance which, on the face of the record, show such a departure. Nothing appears in the evidence to support this. Rather, all that is on record is that two sons of Kyekye Akenten ascended the Adum stool; but they were, first and foremost, sons of Anum Asamoah, the original Adumhene. Thus their ascension to the stool was by virtue of their patrilineage rather than their matrilineage or their membership of Kyekye Akenten’s ayete family.

According to the first defendant witness, not less than four previous occupants of the Adum stool had taken ayete from the second defendant’s house; yet, nowhere in the record was there any evidence whatsoever to show that any chief had ever been enstooled from that house, other than the two said sons of Anum Asamoah. Indeed, the evidence does not even show that any son or grandson by direct male descent of the chiefs who had taken ayete from the Kyekye Akenten house had ever ascended the Adum stool. I therefore find it particularly difficult to appreciate how the traditional council arrived at the conclusion that that house is the source from which all candidates from the Adum stool are drawn.

After examining the evidence, it is clear to me that the role or purpose of the institution of ayete in this case, is to provide, as it were, a readily available pool of potential stool wives to occupants of the Adum stool, if such occupants so choose. If no occupant exercises this option, no potentially eligible male will be born in the Kyekye Akenten house. The Adum stool being patrilineal, the persons eligible to succeed to it are the sons and grandsons who can trace, by direct male descent, to a previous occupant of the stool. In my view, therefore, all that the defendants were able to

[p.148] of [1997-1998] 2 GLR 84 prove was that the second defendant is from the Kyekye Akenten ayete house. However, the membership of the Kyekye Akenten ayete house becomes relevant in the ascertainment of eligibility only if a candidate for the Adum stool can show that he is descended through an exclusively male line from a previous occupant of the stool. Thus, merely hailing from the said ayete house does not ipso facto entitle a candidate to the Adum stool.

It is, therefore, my view that the defendants have failed to show that the second defendant’s claim to eligibility is derived from the right lineage by virtue of direct male descent rather than by virtue of merely being son of an ayete woman. As was aptly noted by the National House of Chiefs, the net result of the defendant’s case and the proposition made by the traditional council would be that, regardless of the paternity of a male from the ayete house, be it howsoever alien, he will automatically be eligible to the Adum stool merely because his mother is from that house. If this were truly so, then the patrilineal character of the Adum stool would be neutralised and transmuted into a matrilineage whenever a male of a purely female descent in the Kyekye Akenten family ascends the Adum stool; for then, the paternity of such a person would be wholly immaterial. Indeed, if the finding of the traditional council were to be accepted, he would have a better claim to the stool than the sons of a previous occupant of the stool who had not married from the Kyekye Akenten house. This flies in the face of the settled custom regarding patrilineal succession and cannot be accepted without proven facts that would support such a grave departure from the norm.

Consequently, it is my view that the National House of Chiefs was correct in finding that the second defendant’s eligibility to the Adum stool was not proven before the traditional council. That being so, I do not believe it to be necessary to deal with the other issues of whether or not the second defendant had been properly nominated, elected and installed.

Appeal dismissed

SA