BIN AND OTHERS vs. ABBAN [1999-2000] 1 GLR 194

CASES REFERRED TO

(1) Kofi v Kofi (1933) 1 WACA 284.

(2) Nthah v Bennieh (1930) 2 WACA 1,P C.

[p.196] of [1999-2000] 1 GLR 194

(3) Gyamfi v Kwaku, Supreme Court, Accra, 11 April 1995, unreported.

(4) Ababio IV v Quartey (1916) PC ‘74 -’28, 40.

NATURE OF PROCEEDINGS

APPEAL to the Supreme Court from the judgment of the judicial committee of the National House of Chiefs dismissing the appellants’ appeal from the decision of the judicial committee of the Central Regional House of Chiefs in favour of the respondent in his action, challenging the validity of the nomination by the appellants of the queenmother of Bando as the Krontihene of the Eguafo Traditional Area in the Central Region. The facts are sufficiently stated in the judgment of the Court delivered by Edward Wiredu JSC.

COUNSEL

Charles Hayibor for the appellants.

James Ahenkorah (with him Osafo Buabeng and Danso Acheampong) for the respondent.

JUDGMENT OF EDWARD WIREDU JSC

Edwared wiredu JSC delivered the judgment of the court. This is an appeal from the judgment of the judicial committee of the National House of Chiefs dated 8 May 1991 which affirmed the decision of the judicial committee of the Central Regional House of Chiefs in favour of the respondent.

Two main submissions were urged on behalf of the appellants in this appeal. The first was that, the capacity in which the respondent sued, and by which he claims to have the sole authority and responsibility as the head of the Ntwea royal family to nominate a candidate for installation as the krontihene of the Atwia Bando stool of the Eguafo Traditional Area, was one of status and that both the judicial committee of the Central Regional House of Chiefs and the National House of Chiefs were not clothed with jurisdiction to adjudicate on and determine who is the accredited head of the Ntwea abusua in the Eguafo Traditional Area. It was therefore urged on behalf of the appellants’ that the determination of the issue of headship not being “a cause or matter affecting chieftaincy” within the language and meaning of the Chieftaincy Act, 1971 (Act 370) the decision in favour of the respondent was null and void.

The second ground urged on behalf of the appellants was that on the merits, two issues raised on the evidence for resolution by the National House of Chiefs, were not resolved, namely the issues as to headship of the Ntwea family and the issue as to whether the second

[p.197] of [1999-2000] 1 GLR 194 appellant was nominated by the Proper person to ascend the Bando Stool? We will first deal with the second ground urged on behalf of the appellants.

To me, the main issues raised for determination, in this appeal are two in number. They are:

(a) Whether on the evidence, the respondent-petitioner had capacity, or showed a Capacity by which the chieftaincy tribunals’ conclusion in favour of the respondent can be justified or be supported; and

(b) whether the first appellant-respondent to the petition was customarily right to nominate the queenmother of Bando to ascend the male Krontire stool at a time she occupies the female stool.

This latter act by the first appellant provoked the present action.

It is not in dispute that the determination of issue (b) is a “cause or matter affecting chieftaincy” within the language and meaning of section 66 of Act 370 which defines a A cause [sic](1) or matter affecting chieftaincy” as follows:

“66. In this Act- …

‘cause of matter affecting chieftaincy’ means any cause, matter, question or dispute relating to any of the following- (a) the nomination, election, appointment or installation of any person as a Chief or the claim of any person to be nominated, elected, appointed or installed as a Chief;

(b) the destoolment or abdication of any Chief;

(c) the right of any person to take part in the nomination, election, appointment or installation of any person as a Chief or in the destoolment of any Chief;

(d) the recovery or delivery of stool property in connection with any such nomination, election, appointment, installation, destoolment or abdication;

(e) the constitutional relations under customary law between Chiefs.”

[p.198] of [1999-2000] 1 GLR 194

It is also not in dispute that the two lower chieftaincy tribunals, ie the judicial committees of the Central Regional House of Chiefs and the National House of Chiefs, made a positive finding in favour of the respondent on issue (b) by holding “that a queenmother cannot ascend at least simultaneously to the male stool.” The above concurrent findings of fact in favour of the respondent set to rest issue (b).

The cases of Kofi v Kofi (1933) 1 WACA 284 and Ntha v Bennieh (1930) 2 WACA 1, PC are authorities for the proposition that decisions of native tribunals in matters peculiarly within their knowledge arrived at after a fair hearing and on relevant evidence should not be disturbed without clear proof that they are wrong. The above finding in favour of the respondent is supported by evidence on the record and no convincing arguments have been urged on the appellants’ behalf that such a finding was wrongly made. I will therefore in my opinion refrain from interfering with same. This ground of appeal therefore fails.

On the issue of capacity, it is not disputed that the respondent is a member of the Ntwea royal stool family of the Ntwea Eguafo Traditional Area. In this regard, by the authority laid by this court in Gyamfi v Kwaku, Supreme Court, Accra, 11 April 1995, unreported this court held that: “even though the petitioners held no customary office in the Mampong royal family, nevertheless they were royals; hence their action was maintainable against the defendants.” On that basis, the respondent in this appeal being a member of the Ntwea royal family, his action can be maintained. Moreover, on the authority of Ababio IV v Quartey (1916) PC ‘74-’28, 40 it was held that where a plaintiff sues in a wrong capacity and in the course of action some capacity is disclosed which would have enabled him to maintain the suit, he should not be non-suited but the court should allow all amendments necessary for the purpose of settling the real controversy between the parties.

We will therefore, in our judgment dismiss the appeal subject to allowing an amendment of the capacity in which the respondent maintained his action in line with the above authorities, as if he brought his action in his own capacity as a member of Ntwea royal family. This appeal fails also on this ground: see rule 22 of the Supreme Court Rules, 1996 (CI 16) and article 129(4) of the Constitution, 1992.

DECISION

Appeal dismissed.

LSNA

Endnotes

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