ANDZIE vs. BOFO IX [1997-1998] 2 GLR 990

CASES REFERRED TO

(1) Agyakoma v Opuni [1987-88] 1 GLR 47, SC.

(2) Darko v Brako [1982-83] 2 GLR 345, SC.

[p.993] of [1997-1998] 2 GLR 990

APPEAL from the judgment of the judicial committee of the National House of Chiefs in a chieftaincy dispute involving the Asebu Ekroful stool. The facts as sufficiently set out in the judgment of Acquah JSC.

E Barton Odro for the appellant.

Dr Seth Twum, holding the brief of James Ahenkorah, for the respondent.

Ampiah JSC. I have had the opportunity of reading beforehand, the opinion of my brother Acquah JSC and I am in agreement with him that the appeal should be dismissed. I, however, have this short comment to make on the judgment of the judicial committee of the National House of Chiefs.

The judicial committee of the National House of Chiefs, in restoring the decision of the Asebu Traditional Council, affirmed the decision that the stool of Asebu Ekroful belonged to the defendant’s Nsona family. Having thus found, it was not open to the committee to order that the plaintiff should stay on the stool until his death and that after his death no other person from his family should claim the stool or ascend it.

It is now accepted that either gazetting a chief or putting his name on the register of chiefs does not put finality to the status of that person. That, by itself, would not create an estoppel on any person or family which subsequently legitimately claims the stool. It is true that the defendant’s family has not positively taken steps to claim that stool and that the plaintiff has been on the stool for over sixteen years before the action, but it was held in Agyakoma v Opuni [1987-88] 1 GLR 47 at 49, SC, per Sowah CJ in his judgment, that “. . . accepting a sub-stool was no renunciation of a royal birthright which was sealed by the possession of royal blood.” And in Darko v Brako [1982-83] 1 GLR 345, SC it was held that non-ascension to a stool for 150 years was no bar to the appellant’s family’s claim thereto.

The order by the judicial committee was made out of jurisdiction and should not have affected the execution of the judgment. However, it is now established that the plaintiff in the action is dead; whatever right was given him died with him.

Kpegah JSC. I have read the opinion of my brother Acquah JSC and I agree with him that the appeal be dismissed.

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Adjabeng JSC. I also agree that the appeal be dismissed.

Acquah JSC. This is an appeal challenging part of the judgment of the National House of Chiefs dated 8 May 1991 in respect of a chieftaincy dispute from Ekroful, near Asebu, in the Central Region of the Republic of Ghana. The parties would be referred to in the manner they appeared at the trial tribunal.

The plaintiff, Nana Kwesi Andzie VIII, issued a writ of summons at the judicial committee of the Asebu Traditional Council, claiming from the defendant that:

“The plaintiff requires the defendant to show cause as to why he, the defendant, has publicly asserted that the plaintiff is not the chief of Asebu Ekroful, which statement the defendant made public during a meeting at Asebu Ahenfie, while the plaintiff has been the accredited and gazetted chief of Asebu Ekroful for about 16 years.”

In an affidavit accompanying his summons, the plaintiff swore that he was enstooled chief of Asebu Ekroful about sixteen years ago and had been gazetted as such since the last five years, and that his enstoolment was authorized by his royal Adwinadze Family. But then the defendant, who succeeded his late uncle, Nana Andzie Bofo VIII, as Tufuhene about ten months ago, started laying claims to the Asebu Ekroful stool on grounds that his, the defendant’s, ancestors, founded the town of Asebu Ekroful and therefore the plaintiff was not the rightful person to be the chief of the town. Consequently, at a meeting at the palace of the paramount chief at Asebu, the defendant did publicly assert that the plaintiff was not the chief of Ekroful, and that he, the defendant, was the chief. Hence the summons.

In his statement of defence, the defendant denied that the plaintiff was the chief of Ekroful. He contended that the chief of Ekroful had always been from his Nsona family, the original founders of Ekroful, and that the plaintiff, who was from the Adwinadze family, was not the chief. He stated that he was at present the chief of Ekroful following his installation as such in succession to his late uncle, Nana Andzie Bofo VIII, on 29 September 1979.

At the trial before the judicial committee of the Asebu Traditional Council, the plaintiff, in his evidence, traced the founding of Ekroful to his Adwinadze Family, led by his ancestor

[p.995] of [1997-1998] 2 GLR 990

Nana Kwesi Andzie, and contended that members of his said family had from time immemorial ruled Ekroful. He tendered a number of exhibits and categorically asserted that he had been installed and functioned as chief of Ekroful to the knowledge of the whole townsfolk for the past sixteen years and had also been gazetted as such. He called three witnesses in support of his case.

The defendant also, in his evidence, traced the founding of Ekroful to his Nsona Family originally led by Nana Andzie Bofo I and also contended that his Nsona Family members had since ruled Ekroful, and that his predecessor, Nana Andzie Bofo VIII, was the chief of Ekroful, after whom he was installed in 1979. He called five witnesses, including the head of the Nsona Family.

In its judgment, the trial judicial committee found that the stool of Ekroful belonged to the defendant’s Nsona family and entered judgment for them. The Central Regional House of Chiefs set aside the traditional council’s judgment on grounds that there was sufficient evidence on record that the plaintiff was the chief of Ekroful. The judicial committee of the National House of Chiefs, in its judgment, observed that while the traditional council ’s decision was based on the definition of a chief in the Chieftaincy Act, 1971 (Act 370), that of the judicial committee of the regional house of chiefs was based on the Chieftaincy Act, 1961 (Act 81). It noted that at the time of the dispute, the relevant law was Act 81, and therefore by that law, the plaintiff was the valid chief of Ekroful. However, the judicial committee of the National House of Chiefs found that the finding of the traditional council that the stool of Ekroful belonged to the defendant’s Nsona family stood unrebutted, and therefore set aside the judgment of the regional house of chiefs and restored that of the traditional council. Earlier, the National House of Chiefs had said that having regard to the definition of a chief in Act 370, as re-appearing in the Constitution, 1979, although the plaintiff was the chief of Ekroful, on his death, his successors would have no claim to the Ekroful stool.

It is this statement by the National House of Chiefs that sparked the instant appeal by the plaintiff to this court. This statement obviously stems from the National House Chiefs’ acceptance of the findings of the traditional council that the stool of Ekroful belonged to the defendant’s Nsona family. Not surprisingly, therefore, in his notice of appeal, the plaintiff stated in paragraph (2) thereof that the part of the decision complained of was: “That part of the judgment purporting to find that the defendant’s family

[p.996] of [1997-1998] 2 GLR 990 owns the Odikro stool of Asebu and that after the death of the appellant herein, no member of his family can mount the Odikro stool.”

The grounds of his appeal are:

“(a) That the judicial committee of the National House of Chiefs erred in finding that the defendant’s family owns the Odikro stool of Asebu Ekroful since same was not an issue before the said judicial committee.

(b) That the judgment, to the extent that it purports to find that the defendant’s family owns the Odikro stool of Asebu Ekroful; and that after the plaintiff ’‘s death, no member of his family can mount the Odikro stool, is not in line with the relief sought and to that extent, the judicial committee of the National House of Chiefs, Kumasi deviated from the issue for adjudication.

(c) The judicial committee of the National House of Chiefs erred in not finding that the plaintiff sued in his personal capacity and not representing his family.”

Arguing grounds (a) and (b) together in his statement of case, the plaintiff submitted that from his writ of summons, the ownership of the Ekroful stool was not in issue, neither did the defendant put in a counterclaim for the stool. There was therefore no justification for the National House of Chiefs to go into that issue to find that the stool belonged to the defendant’s family. And since the defendant did not counterclaim, it was incompetent for the House to declare that the plaintiff’s successors would have no claim to the Ekroful stool. On ground (c), the plaintiff contended that since the action was personal to the plaintiff, it was wrong to make an order affecting the successors of the plaintiff.

On his part, the defendant argued that from the evidence on record, the action was indeed a contest between the families of the parties as to which of them owned the Ekroful stool, that is whether the Eklcroful stool belonged to the plaintiff’s Adwinadze family or the defendant’s Nsona family. To this end, the defendant continued, both parties led traditional evidence at the trial to link the founding of Ekroful town to their respective families. There- fore, the National House of Chiefs was right in the view it took of the evidence on record.

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Now, it is important to observe from the plaintiff ‘’s first and second grounds of appeal and his submissions based thereon that his complaint is not that the finding of ownership of the Ekroful stool in the Nsona family made by the traditional council and affirmed by the National House of Chiefs was not supported by evidence on record; but that the said finding did not arise from the claim of the plaintiff, especially as the defendant did not put in a counterclaim. Thus in his written submissions, the plaintiff states:

“It is contended that the appellant herein having sued the respondent because of the respondent’s statement to the effect that the appellant was not the chief of Asebu Ekroful and to the extent that the respondent did not put in any counterclaim asking for a specific relief that the Odikro stool of Asebu Ekroful belongs to his family, all that the National House of Chiefs was to concern itself with was whether the statement made by the respondent culminating in the action being instituted was true or false.”

Such a submission implies that all the evidence led by both parties on the ownership of the Ekroful stool ought to have been disregarded since, in the plaintiff’s view, that issue did not arise; neither did the defendant put in a counterclaim for the stool. Is this a valid submission?

Now, as has been said over and over again, chieftaincy tnribunals are not subject to the strict technical rules of the ordinary courts as they are more of a fact-finding tribunal. And in the instant case, the Central Regional House of Chiefs in its judgment recognized this when it said: “This is a fact-finding tribunal and will not allow itself to be bamboozled by any technicalities.” This is certainly correct, and is even reflected in the procedural rules governing the various chieftaincy tribunals. In respect of proceedings at the judicial committee of the traditional councils where pleadings are not mandatory and lawyers do not appear for the parties, the whole trial is summary. It would therefore be highly misleading for one to rely on the way the summons is couched rather than the substance of the action as revealed in the evidence.

Indeed, the filing of a counterclaim by a defendant at a chieftaincy tribunal is not known in the chieftaincy procedural rules. Thus the Chieftaincy (National and Regional House of Chiefs) Procedural Rules, 1972 (CI 27) provides in rule 5 that a

[p.998] of [1997-1998] 2 GLR 990 defendant who wishes to contest an action when a petition is served on him shall:

“. . . within fourteen days of such service, or within such time as the Judicial Committee upon terms may direct, file a statement of the defendant’s case which shall be signed by the defendant or his counsel and which shall state:

(a) the facts and particulars upon which the defendant seeks to rely;

(b) the names and particulars of the witnesses, if any, whom he intends to call at the hearing;

(c) the address for service of his Counsel, where he is represented by Counsel.”

Now, apart from filing his statement of the defendant’s case under rule 5 of CI 27, and subject to any amendment that the defendant may later apply to make under rule 7 thereof, all that the parties are at liberty to file, either on their own or at the direction of the judicial committee, is a memorandum of agreed issues as provided in rule 8 (1) of CI 27. The rule reads: “8 (1) The parties may agree to file, or shall if so ordered by the Judicial Committee file, a memorandum specifying the issues agreed by them to be tried at the hearing of the action.” Indeed, before the judicial committee of the traditional council, a defendant is not obliged to file any statement of his case; neither are the parties required to file any memorandum of agreed terms. Thus regulation 6 of the Chief taincy (Proceedings and Functions) (Traditional Councils) Regula tions, 1972 (LI 798), provides:

“6 A judicial committee may, after receipt of the statement of the defendant’s case or where the defendant does not file any statement of defence, at the expiration of the time within which to file the statement of defence, appoint a time at which the parties shall appear before the judicial committee for hearing of the action.”

Of course, regulation 5 of LIi 798 allows a defendant, who desires to file a defence, to do so within ten days of the service of the plaintiff’s writ upon him. But from regulation 6 of LI 798, it is clear that a defendant at the judicial committee of the traditional council need not file any defence. Yet, the judicial committee is in duty bound to set the case down for hearing, hear same and deliver its judgment accordingly. What is important for the judicial

[p.999] of [1997-1998] 2 GLR 990 committee, is to determine the issues raised and to resolve same in their judgment. In the case of a trial before the judicial committee of the regional house of chiefs, the parties may either on their own or on the direction of the committee file such issues, while in the case of the traditional councils, it is the judicial committee itself which must identify such issues either from the pleadings, if any, and the evidence, or from evidence where no pleadings are filed.

Accordingly, where a plaintiff before a chieftaincy tribunal claims against a defendant, ownership of a stool and the defendant in his statement of defence or evidence denies such a claim and asserts his claim to that stool, the obvious issue that arises is which of the parties owns that stool. And the judicial committee’s finding that the stool belongs to the defendant and not the plaintiff is justified because of the nature of the defence. To dispute such a finding on grounds that the defendant never counterclaimed is a gross misconception of the fact that a judicial tribunal is duty bound to examine the evidence led and make findings of fact on the issues joined between the parties. The making of findings of fact has nothing to do with the presence or absence of a counter- claim. And at the judicial committee of a traditional council, where the trial is summary, the committee is obliged to resolve issues arising in the course of the evidence and make findings thereon.

Thus, what is to be determined in the instant appeal is whether the issue of ownership of the Asebu Ekroful Stool arose from the pleadings and evidence, notwithstanding the way the plaintiff couched his relief in his writ of summons. Now, in the instant case, although the plaintiff couched his claim as calling upon tbhe defendant to justify why the defendant was disputing his, the plaintiff’s, position as chief of Ekroful, the plaintiff had no doubt in his mind that the basis of the defendant’s challenge was that the town of Ekroful was founded by the defendant’s ancestors and not the plaintiff’s ancestors. Thus in paragraph (7) of his affidavit supporting his summons, the plaintiff swore that the defendant: “publicly asserted that I could not be the chief of Asebu Ekroful, for, it was his ancestors who came and established the town of Ekroful and, as such, he should be the right person to be the chief of the town, hence the cause of this action.” Earlier on, the plaintiff had sworn in paragraph (3) of the said affidavit that his enstoolment as chief of Ekroful: “was on the sanction and authority of my head of family, Kweku Mensah of Adwinadze [p.1000] of [1997-1998] 2 GLR 990 royal stool family, with the consent and concurrence of the whole Adwinadze family of Ekroful.” To this affidavit, the defendant in his statement of defence categorically asserted in paragraph (2) thereof that: “(2) . . . the only family from which chiefs of Asebu Ekroful have been and are selected is the Nsona royal family of Asebu Ekroful.” He then went on to state in paragraph (4) that he the defendant was installed on 29 September 1979 in succession of his late uncle, Nana Andzie Bofo VIII, as chief of Ekroful and that: “as laid down by custom only members of the family of Andzie Bofo I, who founded Asebu Ekroful and became its chief, have successfully been installed and enstooled and reigned as chief of Asebu Ekroful.”

Now, from paragraph (7) of the plaintiff’s own affidavit as well as the defence, it is quite evident that the challenge to the plain tiff’s occupation of the Ekroful stool boils down to a challenge of the right of the plaintiff’s Adwinadze family to occupy the said stool since, as the defendant contended, the town of Ekroful was founded by his ancestor, Andzie Bofo I of the Nsona family. Because the plaintiff fully realized that the right of his Adwinadze family to the Ekroful stool was in issue, he led extensive evidence about his ancestry and claimed that Ekroful was founded by his ancestors of the Adwinadze family and that it was his said ancestors who allowed the defendant’s ancestor, Andzie Bofo, to settle on a portion of Ekroful land. He said because his ancestors founded Ekroful, his family always provided a bottle of gin at Banmu during the festival of Kae Arko. The plaintiff further tendered in support of his ancestors’ claim to Ekroful, exhibits including a history book. Thus the defendant also had no option but to trace his ancestry to the founding of Ekroful and to call his head of family to testify in support of that.

There is therefore no doubt from the record of proceedings that notwithstanding the wording of the plaintiff ‘’s claim in his sum mons, each party laid a strong claim that his ancestors founded Ekroful and established the Ekroful stool. And in the face of such a claim, the judicial committee was in duty bound to resolve the conflicting claims to the ownership of the Ekroful stool. As pointed out earlier, the resolution of such an issue has nothing to do with the presence or absence of a counterclaim. It is an issue inimtiated in paragraphs (2) and (7) of the plaintiff ‘’s affidavit in support of his summons and re-emphasised in the defendant’s defence, resulting in both parties leading evidence on it at the trial.

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Thus the general trend of the evidence showed that the dispute between the parties centre on the right of the two families— Adwinadze and Nsona – —based on ancient tradition to provide a candidate for enstoolment on the Ekroful stool. It is therefore fallacious for the plaintiff to contend that the issue of ownership did not arise.

Again, it is clear from the nature of the proceedings at the chieftaincy tribunals and, in particular, the relevant procedural rules governing such trials, i.e. LI 798 and CI 27, that the sub missions based on an alleged absence of a counterclaim is miscon ceived. The first two grounds of appeal are therefore dismissed.

Now, the third ground of appeal which alleges that the plain tiff’s action was personal and therefore the judicial committee of the National House of Chiefs had no justification in making a finding affecting the plaintiff ‘’s family, is obviously untenable having regard to the analysis of the issue arising from the pleadings and evidence at the traditional council. As said earlier on, the pleadings and evidence made it imperative for the traditional council to determine which of the parties family had a nright to the Ekroful stool. For, as the plaintiff recognised from the nature of the challenge to his status, his claim as chief of Ekroful was not in his own personal right, but from his membership of the Adwinadze family which, he believed, owned the stool. Accordingly, although his action appeared personal from the way he couched his claim in his summons, it was, in substance, an action to determine whether the Adwinadze or Nsona family had a nright to the Ekroful stool. Hence, the plaintiff sought in his evidence and by his exhibits to demonstrate that the Ekroful stool had from time immemorial belonged to his Adwinadze family. Consequently, the defendant likewise sought to establish his Nsona Family’s title to the said stool. On the basis of such rival claims, a finding by the traditional council, as later affirmed by the National House of Chiefs, that the defendant’s Nsona family owned the stool logically implies that the plaintiff’s Adwinadze Family had lost its claim to that stool. And thus the National House of Chief’s assertion that the plaintiff ‘’s successors would have no claim to the Ekroful stool after the death of the plaintiff, is a logical consequence of that finding and is therefore not unjustified. This ground of appeal likewise fails.

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In conclusion, all the three grounds of appeal fail and the judgment of the judicial committee of the National House of Chiefs is hereby affirmed.

Atuguba JSC. I also agree.

Appeal dismissed.

LSNA