BROBBEY AND OTHERS vs. KWAKU [1995-96] 1 GLR 125

CASES REFERRED TO:

(1) R v Schama; R v Abramovitch (1914) 84 LJKB 396, CCA.

(2) Kyereh v Kangah [1978] GLR 83, CA (full bench).

(3) Damptey (Decd), In re; Kodieh v Affram (1930) 1 WACA 12.

(4) Yeboah v Bonko (1957) 2 WALR 107.

NATURE OF PROCEEDINGS

APPEAL against the decision of the judicial committee of the National House of Chiefs affirming the decision of the judicial committee of the Ashanti Regional House of Chiefs declaring the nomination, election and installation of the appellant as the Ashanti Mamponghene null and void. The facts are fully stated in the judgment of Aikins JSC.

COUNSEL

B J da Rocha (with him James Ahenkorah) for the appellants.

Asamoah Totoe for the respondent.

JUDGMENT OF AIKINS JSC

Delivered the first judgment at the invitation of Abban CJ. This is an appeal from the decision of the judicial committee of the National House of Chiefs by which they affirmed, by a majority of three to two, the unanimous judgment of the judicial committee of the Ashanti Regional House of Chiefs which had held that the seventh respondent is not a royal of the Mampong silver stool, and that he is not eligible for nomination, election and installation on the silver stool which had become vacant on the abdication of Nana Attakora Amaniampong as the Omanhene of the Mampong Traditional Area. The committee accordingly declared the nomination, election and installation of the seventh respondent, Mr Francis Kwasi Cartey, null and void.

The events leading to the institution of the petition by the respondent to this appeal, Major (Rtd) Osei Kwaku, are not all that complex.

[p.130] of [1995-96] 1 GLR 125

Sometime after the abdication of Nana Attakora Amaniampong as the Omanhene of the Mampong Traditional Area, it became necessary to look for a successor to the Mampong silver stool. As custom demanded, all persons who considered themselves eligible to accede to the stool had to stake out their claim. According to the petitioner-respondent when he heard that there was a proposal to install a new Mamponghene, and the krontihene, Nana Yaw Koduah, had declared his intention to make “the stool travel away”, he, Osei Kwaku, travelled to Mampong and contacted the krontihene and Opanin Osei Bonsu, head of the Abereko house of the Baabriw Bretuo royal family about the intention of the krontihene. The krontihene confirmed that he had said so.

The petitioner said that later he heard that certain persons including the seventh respondent-appellant were canvassing for support as candidates for the stool. He therefore sent a petition to the kingmakers of Mampong against the candidature of the seventh appellant. As a result, a meeting of the Baabriw Bretuo branch of the royal family, whose turn it was to present a suitable candidate to the queenmother for the necessary customary formalities, was convened. At this meeting the sectional heads of the family nominated one Beniako by a majority of two to one as a candidate of the family. The two who nominated Beniako were Opanin Kwaku Adwetewa, head of the Sarfo house and the petitioner, head of the Santeni house. The other candidate, Kwame Agyei was nominated by one Kofi Boachie alias “Comosar”, a representative of the Abereko house of which the head was Opanyin Osei Bonsu. Later, Opanin Osei Bonsu who had been reported sick at Kumasi travelled to Mampong and announced that he had already nominated the seventh appellant. This was objected to by the petitioner with the reason that the seventh appellant was not a royal.

Opanin Osei Bonsu refused to withdraw his nomination and so the petitioner swore both the Mamponghene’s oath “Yawoada” and the great oath of Asante on him, and proceeded to swear to an affidavit when the seventh appellant was presented to the queenmother, Nana Yaa Akyaa. The affidavit stated categorically that the seventh appellant was not a royal but rather an issue of a domestic servant and therefore ineligible to accede to the stool of Mampong. The affidavit was circulated to all the kingmakers of Mampong and copied to Opanin Osei Bonsu and the queenmother.

[p.131] of [1995-96] 1 GLR 125

When the petitioner realised that all his protestation had been ignored, he petitioned Otumfuo the Asantehene, but he was not favoured with any response. After exhausting all customary means of getting the Mampong kingmakers to stop the election and installation of the seventh appellant, the petitioner petitioned the Ashanti Regional House of Chiefs who found that the oaths sworn by the petitioner were valid under customary law. He asked for a declaration against: (1) Nana Gyamfi Brobbey—Jamasehene; (2) Nana Aye Kusi Buodom—Apaahene; (3) Nana Kwaku Safo—Ejurahene; (4) Nana Yaw Kodua—Krontihene; (5) Nana Owusu Afriyie—Akwamuhene; (6) Nana Yaa Akyaa—Queenmother; and (7) Mr F K Cartey that Mr F K Cartey was not a royal of the Mampong silver stool, and for that matter he was not eligible for nomination, election and installation on the silver stool. He also claimed that the purported nomination, election and installation of Mr Cartey should be set aside as null and void.

At the same forum the Domakwahene Nana Kwaku Obeng II also instituted a similar petition against:—(1) Nana Aye Kusi Buodom—Apaahene; (2) Nana Kweku Safo—Ejurahene; (3) Nana Owusu Afriyie—Akwamuhene; (4) Nana Yaw Kodua—Krontihene; (5) Nana Yaa Akyaa—Queenmother; and (6) Mr F K Cartey claiming a declaration that the purported nomination and election of Mr Cartey should be set aside, and a “perpetual injunction restraining the first to fifth respondents from taking any proceedings on the said nomination and election.”

When the matter came before the judicial committee of the Ashanti Regional House of Chiefs for hearing, the two cases were consolidated. As stated above, judgment was given in favour of the two petitioners by the judicial committee of the Ashanti Regional House of Chiefs, but on appeal to the National House of Chiefs, the judicial committee of that house unanimously allowed the appeal against that part of the judgment which upheld the petition of Nana Kwaku Obeng II. Since Nana Obeng II has not appealed to this court against the decision of the judicial committee of the National House of Chiefs, I shall confine myself in this judgment to the case of Major (Rtd) Osei Kwaku alone.

The case of the petitioner before the judicial committee of the Ashanti Regional House of Chiefs was based essentially on traditional history. He led evidence to show that the Mampong royal family consists of four houses, namely Baabriw, Wiredu, Botase and

[p.132] of [1995-96] 1 GLR 125

Kodiokrom, whilst the Baabriw house comprises three sub-families, namely the Santeni family of which he, the petitioner, is the head; the Sarfo Kantanka family, the head of which is Kwaku Adwetewa; and the Kwaku Abereka house headed by Opanin Osei Bonsu. The petitioner gave his family line as commencing with his ancestress Afi who gave birth to Nana Akuamoa Boateng and three daughters, namely Nana Takyiwa Pinaman, Abena Saka and Apaa Korkor. He said that Abena Saka gave birth to Sarfo Kantanka I and Abena Adoma, whilst Apaa Korkor gave birth to Afua Gyapomaa and Abena Dwamena Onipaba who got married to Nana Opoku Ware I and begat Nyarkoa Akosua. This Nyarkoa Akosua, he said, got married to Nana Mpianin who later became Kokofohene under the stool name of Kwame Appia Agyei. The petitioner said that Nana Appia Agyei went to Kokofo and purchased a Grunshie woman named Niana alias Okra, and presented her to his wife Nyarkoa Akosua as a domestic servant, and that during the course of her stay with Nyarkoa Akosua this domestic servant was impregnated by Nana Kwame Appia Agyei and gave birth to a daughter Obiyaa Akosua, whilst Nyarkoa Akosua gave birth to Nkwantanan Akosua. He said Nkwantanan Akosua had two issues, Oduro Frikyi (at one time the Mamponghene) and Nana Kobi his sister who begat Nana Adwetewa (also on one occasion Mamponghene), Akyaa Afreh, Nana Marboa and Akua Kyem. He said Niana’s daughter Obiyaa Akosua had many children, but all of them died except Krigurwaa (or Krubuwa) who brought forth Afua Toh and Eno Nkrumah. Afua Toh ‘s children included Opanin Kojo Adomako (the eldest), Kojo Abrebreseh, Yaw Mensah, Mame Takyiwah, Yaa Aboagyewaa and Kwaku Appiah. He said Mame Takyiwaa begat Serwaa, the mother of the seventh appellant Cartey, and Afua Sarpong, the mother of Dr Albert Asafu Adjei, the attorney of the seventh appellant, Kwame Adwetewa and Kwaku Dua. Eno Nkrumah ‘s children were given as follows: Kwasi Dwomo, Kofi Manu, Atta Kwabena, Ataa Abena, Ama Yaa, Afua Ketekye, Kofi Badu and Ekua Kyereka.

The petitioner’s evidence was corroborated by the eighth plaintiff witness, Alice Oppong, a farmer at Ahensan Estates and the eleventh plaintiff witness, Agyei Frimpong Beniako, a lecturer at the University of Ghana, Legon.

The seventh appellant’s version of his ancestry is different from the foregoing. His attorney, Dr Albert Asafu Adjei, who gave evidence on

[p.133] of [1995-96] 1 GLR 125 his behalf, said that their original ancestor was Onipaba Dwamena who, he said, was married to King Osei Tutu, and on his death she was married to his nephew Nana Opoku Ware I. This Onipaba Dwamena gave birth to Nyarkoa Kwasima by Nana Opoku Ware I, and that it was this Nyarkoa Kwasima who was married to Nana Mpiani, Kokofuhene with whom she had many children including Adwoa Pinamang (the eldest) and Pokuaa. He said he and the seventh appellant are descendants of Pinamang; that Pinamang begat Yaa Botosie who in turn brought forth Amankwaa Yaa; and that Obiyaa Akosua was the daughter of Amankwaa Yaa. He said Obiyaa Akosua was married to Akuamoah Boateng and she brought forth Pomaa alias Afua Toh and Kwame Okyere alias Fredua Mensah, and that Afua Toh alias Pomaa begat Adomako, Yaw Frimpong Mensah, Kojo Abrebreseh, Takyiwaa Pinamang, Yaa Aboagyewaa and Kwaku Appiah. He said Takyiwaa Pinamang begat Adwoa Serwaa, the mother of the seventh appellant and Afua Sarpong (his own mother), Kwame Adwetewa and Kwaku Agyeman Duah.

From this narration, Dr Albert Asafu Adjei traces the seventh appellant’s ancestry along the line of the petitioner. However, he denies ever coming across anybody called Niana and also Krubuwaa who the petitioner said was the daughter of Obiyaa Akosua whose mother was Niana. He admits knowing Atta Kwabena and his mother Eno Nkrumah, Kwame Agyei, son of Afua Ketekye, sister of Atta Kwabena. He also admits being related to Eno Nkrumah but denies knowing the mother of Eno Nkrumah. However, he remembers very well the children of Eno Nkrumah as Kwasi Dwomoh, Atta Kwabena, Ataa Abena, Madam Kyirika, Agya Badu, Ama Yaa and Madam Ketekye, and that even though Nkrumah and Afuah Toh (alias Pomaa) were maternally related, as far as he was aware they were not sisters from the same mother. Dr Asafu Adjei said he was never told who Nkrumah’s mother was, but when pressed whether he knew her line, he replied that that had nothing to do with him. Surely, he could not have given any other answer. He knew Afua Toh, Eno Nkrumah and Obiyaa Akosua, but not the connecting links—Krubuwaa and Niana.

It is interesting to note that when Dr Asafu Adjei was asked in cross-examination whether he had mentioned the name of Onipaba Dwamena as their remotest ancestress, he replied that he never said so in his evidence in-chief. He then went on to say that Afi was his

[p.134] of [1995-96] 1 GLR 125 remotest ancestress, and that Afi begat Apaa Korkor who in turn begat Onipaba Dwamena. He said he did not know Onipaba Dwamena had only one daughter called Nyarkoa Akosua, but he knew of Nyarkoa Kwasima as the daughter of Onipaba Dwamena. He however admitted that he was aware that the Kokofuhene Nana Appia-Agyei married Nyarkoa Akosua, but that they begat Pokuaa and Adwoa Pinamang and not Niana.

Perhaps the story told by Dr Albert Asafu Adjei would have been much more convincing and creditable if it had been corroborated by at least one of the defendants or any other person, let us say from the Baabriw Bretuo family. May be the seventh appellant himself would have told a much more convincing story, but in the event he never gave evidence himself. It is also known that the seventh appellant’s mother was alive at the time the case was before the trial tribunal, but she too was not called to confirm her son’s story. There is no doubt that she would be a very interested person to confirm the royal lineage of her son since she would not wish to let the opportunity of her son becoming a Mamponghene slip by. Furthermore, the queenmother who was supposed to know the royal family history also never gave evidence, neither was Opanyin Osei Bonsu who was said to be the abusuapanyin and who nominated the seventh appellant and proposed his candidature to the queenmother, asked to give evidence in support of the defence story. As the trial tribunal pointed out:

“The abusuapanyin who combined with the queenmother to choose the seventh respondent … should at least have supported the choice of the abusua because even though it is the queenmother whose duty it is to nominate a candidate, she does so in consultation with the principal members of the family and the abusuapanyin.”

The petitioner buttressed his case against the seventh appellant by linking it with the objection raised against the grand-uncle of the seventh appellant, Nana Kwasi Dwomo. In paragraph (7)(e) of his amended petition, the petitioner pleaded that when Nana Kwasi Dwomo contested to accede to the Mampong silver stool the Effiduasehene Nana Kwame Wusa and Nana Akua Kyem of Apaa swore the Mamponghene’s oath “Yawoada” and the great oath of Asante against him to the effect that he was not eligible for election to the stool, but Opanin Dwomo failed to respond to the oaths.

[p.135] of [1995-96] 1 GLR 125

This was, denied by the respondents in paragraph (7) of their amended reply averring that:

(a) he was not nominated by the queenmother;

(b) he failed to answer a charge of moral turpitude levelled against him in that he had married the divorced wife of Nana Owusu Sekyere, a former Mamponghene; and

(c) it was further alleged that Dwomo’s brother, Atta Kwabena, had seduced and later married Madam Ama Kyaa, a wife of Bafour Gyima, whilst the said Bafour Gyima was serving a prison term.

The petitioner proceeded to give evidence to support his contention, but the respondents failed to give evidence on the issue, thus in effect abandoning that defence. The petitioner’s version therefore stood uncontroverted, that is, that Kwasi Dwomo was the grand-uncle of the seventh appellant, and that when he sought to become the Mamponghene, the Effiduasehene swore the great oath on Nana Kwasi Dwomo and the Ejurahene who sponsored Nana Dwomo’s candidature; that Dwomo was not a royal to the Mampong stool, but there was no response; and that another person, Nana Akua Kyem, similarly swore the great oath, and here too there was no response. The failure of the respondents to lead evidence to contradict the petitioner’s assertion on this issue at least supports the contention that Nana Dwomo was not a royal of the silver stool, and therefore the fact that he was a grand-uncle of the seventh respondent-appellant implies that the latter is also not a royal of the silver stool, and thus not eligible for election to the stool.

Mr B J da Rocha, learned counsel for the seventh appellant, has raised three issues for determination in this appeal:

(a) whether the seventh appellant is a royal of the silver stool;

(b) on whom lies the burden of proof in the matter of the royal lineage of the seventh appellant; and

(c) whether that burden was satisfactorily discharged before the judicial committee of the Ashanti Regional House of Chiefs. The gravamen of counsel for the seventh appellant’s argument is that once he had been recognised by the queenmother as a royal of the Ashanti Mampong stool, and nominated as such by her and the head of the royal Baabriw family, and presented to the kingmakers for acceptance and installation, a very strong presumption had been raised that the seventh appellant is of royal lineage. He argued that this casts

[p.136] of [1995-96] 1 GLR 125 upon the respondent a heavy burden of rebutting that presumption. Counsel submits that the acts of the queenmother, the abusuapanyin Osei Bonsu of the Baabriw family and the kingmakers constitute a customary official duty which is covered by the provisions of section 37 of the Evidence Decree, 1975 (NRCD 323). This, in the submission of counsel, is a conclusion which must be drawn in the absence of further evidence.

This axiom is what is termed presumption of law, ie evidence which depends on a rule of law to give it a probative force. In other words, once the basic fact is established, the conclusion as to the existence of the presumed fact must be drawn in the absence of evidence to the contrary, for example the presumption of death from seven years’ absence unheard of, the presumption of sanity in testamentary cases and innumerable instances of the application of the maxim omnia praesumuntur rite esse acta, according to which fact A is stated to be prima facie evidence of fact B. The effect of such presumption may be said to shift the evidential burden of proof.

Professor Glanville Williams refers to these presumptions in his Criminal Law (The General Part) (2nd ed), p 877, et seq as “permissive presumptions.” The editors of Halsbury’s Laws of England (3rd ed), Vol 15 at p 343, para 620 put the effect of rebuttable presumption of law thus:

“The nature of a presumption of law is that the court treats as established some fact of which no evidence has been given, and when rebuttable, it can have no weight capable of being put in the balance against opposing evidence which is believed. It does not follow that such a presumption may be rebutted in every case by any evidence however slight. The rebutting evidence must be considered on its merits: its credibility is neither increased nor diminished by the existence of the presumption; but, if it is believed, the presumption is displaced.”

The text of section 37 of NRCD 323 is as follows:

“37. (1) It is presumed that official duty has been regularly performed.

(2) This presumption does not apply to an issue as to the lawfulness of an arrest if it is found or otherwise established that the arrest was made without a warrant.”

[p.137] of [1995-96] 1 GLR 125 This states the common law presumption of omnia praesumuntur rite esse acta and the Commentary on the Evidence Decree confirms at page 31 that it is generally applied to judicial and governmental acts, but may also be applied to duties required to be performed by law. It emphasises that the presumption does not apply in the case of arrests made without a warrant, for example, because there is a presumption that such arrests are unlawful, that is the burden of persuasion is on the officer or prosecution to justify the arrest. The section therefore follows the common law in this regard.

The question for determination is whether section 37 of NRCD 323 applies to customary norms of nominating, electing and installing a chief as is being contended. I think not. The trial of a dispute involving chieftaincy is more in the nature of a fact finding inquiry whereby the burden of proof rests squarely with both parties to lead evidence and establish the customary or constitutional processes by which the chief in the area is nominated, elected and enstooled. It is my view that the presumption here is more of a presumption of fact—praesumptio hominis—than a presumption of law. In the former, the facts are not proved directly, but are inferred from facts that have been proved. Here “there is no obligation upon a tribunal of fact to draw such inference; and an inference of fact, if drawn, is rebuttable by evidence to the contrary”: see Halsbury’s Laws of England (3rd ed), Vol 15, p 342 at para 618 and R v Schama; R v Abramovitch (1914) 84 LJKB 396 at 398, CCA (presumption that the accused is receiver on proof of his recent possession of stolen property). See also Kyereh v Kangah [1978] GLR 83, CA (full bench) where Sowah JA (as he then was) reading the majority judgment of 4 to 1 said at 91:

“In a dispute involving the cherished and unique institution of chieftaincy the adoption of principles or rules of law evolved for the purposes of solving ordinary land and civil suits can lead to unsatisfactory results and bring the whole of the institution into disrepute. Such principle or rules, call them what you will, namely, ‘the plaintiff must prove his case beyond all reasonable doubt’ or that `the plaintiff must rely on the strength of his case and not on the weakness of the defendant’s’ should in my view have no place in disputes involving chieftaincy.

I think, broadly, the trial of a dispute involving chieftaincy is more in the nature of a fact finding inquiry. The first principle

[p.138] of [1995-96] 1 GLR 125 being that those who install a chief have the right to destool him. If the case involves enstoolment, the burden rests with both parties to lead evidence and establish the customary or constitutional processes by which the chief in the area is nominated, elected and enstooled; it becomes the duty of the tribunal to test the validity of the nomination by what has been established to be the constitutional process. If it involves destoolment the burden of course will be on the persons seeking to destool by demonstrating that the conduct of the incumbent breaches certain customary norms for which the sanction is destoolment.”

(The emphasis is mine.) The respondent therefore has the burden to prove that he hails from the Afi line which is the appropriate Baabriw royal lineage, and that the seventh appellant does not hail from that lineage but from Niana’s line. At the same time the seventh appellant has the burden to prove that he hails from Afi’s line, the appropriate Baabriw royal family. Thus the trial tribunal was only obliged to find the presumed fact until evidence to the contrary is proved. It is sufficient therefore that some contrary evidence is adduced. Once this is done, the trial tribunal has to dispense with the presumption as if it had never arisen.

Professor John H Wigmore tersely put the difference between presumptions of law and presumptions of fact this way in his Treatise on the System of Evidence (3rd ed, 1940), Vol IV at p 3533, s 2491:

“The distinction between presumptions ‘of law’ and presumptions of ‘fact’ is in truth the difference between things that are in reality presumptions . . . and things that are not presumptions at all. A presumption, as already noticed, is in its characteristic feature a rule of law laid down by the judge, and attaching to one evidentiary fact certain consequences as to the duty of production of other evidence by the opponent. It is based, in policy, upon the probative strength, as a matter of reasoning and inference, of the evidentiary fact; but the presumption is not the fact itself, nor the inference itself, but the legal consequence attached to it. But, the legal consequence being removed, the inference, as a matter of reasoning, may still remain; and a ‘presumption of fact,’ in the usual sense, is merely an improper term for the rational potency, or probative value, of the evidentiary fact, regarded as not having this necessary legal

[p.139] of [1995-96] 1 GLR 125 consequence. `They are in truth, but mere arguments,’ and ‘depend upon their own natural force and efficacy in generating belief or conviction in the mind.’ They have no significance so far as affects the duty of one or the other party to produce evidence, because there is no rule of law attached to them, and the jury may give to them whatever force or weight it thinks best, just as it may to other evidence.”

Bearing this in mind, I would stress that it is peculiarly within the province of the trial tribunal to make findings of fact, and unless it acted on wrong principles or took into consideration matters which it ought not, it would be wrong for this appellate court to interfere with them.

After examining the two conflicting traditional histories put forward by the parties and later events, the judicial committee of the Ashanti Regional House of Chiefs made the following finding: “Applying the test in the Adjeibi-Kojo case we prefer the traditional history of the second petitioner (who is the respondent in this appeal) and his witnesses to that of the seventh respondent’s (the appellant hereof’s) representative. If there were any more recent acts, there could be no better one than the recent abdication of Nana Attakora Amaniampong, undoubtedly a royal of the Mampong stool. Nowhere does the seventh respondent claim to be related by family or kinship to Nana Amaniampong. Kwasi Dwomo, the seventh respondent’s uncle or grand-nephew (I think it should be grand-uncle) gracefully came down from his palanquin when two oaths as to his eligibility were sworn on him and he quit the contest. We do not believe that the oath sworn by the two persons was in connection with Kwasi Dwomo’s alleged adultery with the chief’s wife. That matter would have been known to the family and the public and no one would have nominated Afi’s descendants and Niana’s descendants. Thus Kwame Adwetoa (Afi) married Nkrumah (Niana). Morbi (Afi) married Ketekye (Niana). The reason is simple as Rattray puts it. Being domestics they have no family and are attached to the families in which they are domestics. Rattray points out that some of these domestics are attached to important stools in Ashanti and serve as sword-bearers and at similar official functions in the palace. In Asante they were known as ‘efie nipa’,

[p.140] of [1995-96] 1 GLR 125 and were eligible for marriage by the royals or freemen. Yet again the figure 67 in Rattray’s book confirms the traditional history of the second petitioner.”

The committee continued:

“In our view, the Onipaba Dwamena who was married to Opoku Ware and whose daughter Nyarkoa Akosua was married to Mpiani, later Appiagyei of Kokofu, are not the ancestresses of the seventh respondent. We therefore accept the version of the seventh respondent’s genealogy as given by the second petitioner and his witnesses . . .”

This finding was confirmed by the judicial committee of the National House of Chiefs in the following words:

“We agree with the tribunal below on the family tree presented by the respondents because apart from the corroborative evidence of the first respondent and his witnesses, fig 67 of Rattray supports the version given by them that the wife of Nana Appiah Agyei was Nyarkoa Akosua but not Kwasiamoah as given by the appellants. Secondly, Rattray says that the issue of Nana Appea Agyei and Nyarkoa Akosua was only one and she was Pokuaa and not two as given by the appellant . . .

Following from this finding, it follows that Niana’s line and Pokuaa’s line became two separate lines and even though the two regarded themselves as members of the same family, they were not united by blood since they flowed from the different ancestresses not united by blood.

This lends credence to the fact of intermarriages between the two groups and why these marriages were not frowned upon but allowed to the extent that even prominent personalities in the two groups could marry from either group openly. Thus there is the evidence that Adwetewa from Pokuaa’s line married Madam Nkrumah from Niana’s line, This Adwetewa later became Mamponghene.”

Counsel for the seventh appellant criticised the lower tribunal for quoting passages from Rattray’s book which according to him was put in as exhibit D2. I have examined the record of proceedings and I am satisfied that it was the whole book that was tendered in evidence by the seventh respondent-appellant’s attorney who gave evidence on his

[p.141] of [1995-96] 1 GLR 125 behalf. The tribunal was therefore entitled to refer to any passage in that book, especially the chapter dealing with Mampong affairs. Counsel contends further that there was need for somebody to give evidence vouching the accuracy of Rattray’s book before the text could be relied upon. I believe he is not serious about this contention, especially when his own client, the seventh appellant, did not even think it necessary to adduce such evidence before he tendered the book in evidence and relied on a portion of it.

I have already said that section 37 of NRCD 323 is not applicable to this case. But even if it is applicable, the presumption disappeared immediately evidence contrary to the assumed fact was introduced by the respondent, supported by the eighth and eleventh plaintiff witnesses tracing his ancestry from Afi and that of the seventh appellant from Niana; the steps he took to stop the kingmakers from proceeding with the installation of the seventh appellant as Mamponghene by swearing the Mampong oath “Yawoada” and the great oath of Asante; and the account of Kwasi Dwomo’s unsuccessful contest for the Mampong stool. The respondent’s evidence on the lineage of the seventh appellant was that the seventh appellant is a descendant of Niana, a domestic of Nyarkoa Akosua, purchased for her by her husband Nana Mpianin. Niana in due course became pregnant by Nana Mpianin. By Ashanti customary law and usage the children of Niana and their descendants cannot contest the silver stool, that is why, in the words of the respondent, when Kwasi Dwomo (uncle of Kwame Agyei) contested the silver stool, Nana Akua Kyem (aunt of Nana Sarfo) swore the great oath of Asante and the Mampong oath “Yawoada” on him. The respondent also adduced evidence to show that the seventh appellant’s mother, Serwa was a descendant of Obiyaa Akosua, daughter of Niana, and therefore disqualified to accede to the silver stool.

To support the ineligibility of Niana’s lineage for the position of Mamponghene, the respondent led evidence to show that Afua Toh and Eno Nkrumah were matrilineally related, and the Afi’s descendants have married Nkrumah and her offsprings. If Afua Toh and Nkrumah were so related, the logical conclusion is that they have a common ancestress, and since there is credible evidence that there had been intermarriages between Nkrumah’s children and the descendants of Afi, their ancestress must be Niana, and I so hold.

[p.142] of [1995-96] 1 GLR 125

Learned counsel attacks the Niana story as simple fiction, and argues that the story raises a number of issues which must be satisfactorily answered if it is to have credibility. A lot of the argument is redherring. No evidence was led to deny the intermarriages, nor did the seventh appellant make any attempt to prove the moral grounds in his pleadings which made Kwasi Dwomo lose his contest for the silver stool, even though the respondent led evidence to show that Kwasi Dwomo was not a royal of the silver stool. These two material facts therefore stood established against the seventh appellant, and I agree with learned counsel for the respondent that the tribunals below were entitled to use them in resolving the conflict in the traditional histories of the parties.

There is evidence that when the Mampong silver stool became vacant upon the abdication of Nana Attakora Amaniampong, and there was rumour that the Krontihene Nana Yaw Kodua had intended to let the stool “travel away” (ie it would be given to anyone who would be prepared to pay for it) the respondent had personal contact with Osei Bonsu and also the krontihene and the latter admitted having made that statement. When later Osei Bonsu presented the seventh appellant to the queenmother, the respondent swore to three affidavits which he distributed to the kingmakers, Osei Bonsu and the queenmother. In the affidavits, the respondent deposed that the seventh appellant was not eligible for the stool because of his slave descent. The respondent later met Osei Bonsu and repeated to him what he had said about the seventh appellant in the affidavits. There is also evidence that after the nomination and election of the seventh appellant the respondent met a number of the kingmakers and warned them on oath to desist from installing him, but the warning was ignored. Finally, the respondent petitioned Otumfuo the Asantehene but he was not given any assistance. The respondent had then exhausted all customary means of getting the Mampong kingmakers to stop the election and installation of the seventh appellant. At that stage, custom demanded that the kingmakers should stop the election and installation for the respondent to apply for an inquiry in an appropriate forum. In the circumstance, it cannot be seriously and properly contended that by the mere nomination, election and installation the seventh appellant virtually became the Mamponghene to attract destoolment charges before he is dispensed with.

[p.143] of [1995-96] 1 GLR 125

A person can only validly be a chief if, as is provided under section 48(1) of the Chieftaincy Act, 1971 (Act 370), he has, in accordance with customary law, been nominated, elected and installed as such, and whose name for the time being appears as a chief on the National Register of Chiefs. Article 181 of the Constitution, 1979 also defines a chief as “a person who, hailing from the appropriate family and lineage, has been validly nominated, elected and enstooled, enskinned or installed as a chief or queenmother in accordance with the requisite applicable customary law and usage.” If therefore the person, as in the case of the seventh appellant, was not nominated, elected and installed in accordance with customary law, for example he does not hail from the appropriate family and lineage or his royal lineage is challenged at the onset and the necessary customary steps are not taken to regularise the installation, he cannot properly be said to have been made a chief when wrong steps have been taken to have him installed. He must have hailed from the appropriate family and lineage, and been validly nominated, elected and installed as a chief in accordance with the applicable customary law and usage. Every essential ingredient of the definition of a chief must be satisfied. Though the swearing of the oath of allegiance and installation are essential formalities in the chief making process, yet the mere fact that there has been an election, installation and swearing of oath of allegiance will not, in my judgment, validate an invalid nomination, election and installation of a person, especially when his ineligibility to the stool has been pointed out to the kingmakers long before the installation and swearing in ceremony. The submission, therefore, of learned counsel for the seventh appellant that the instant proceedings are in the nature of destoolment proceedings is, with all due respect, misconceived.

The next point for consideration of this court is whether the respondent lacked capacity to take proceedings in the trial judicial committee. Learned counsel for the seventh appellant has urged that the respondent lacked capacity to take proceedings because the seventh appellant had become a substantive Mamponghene under the stool name of Nana Akuamoah Boateng Ababio, and that the only people qualified to destool him are the kingmakers and not the respondent who is not a kingmaker.

This contention cannot be accepted because, as has been pointed out above the instant proceedings are not destoolment proceedings.

[p.144] of [1995-96] 1 GLR 125

According to the respondent his action was instituted under section 66(a) of Act 370 and that no matters were pleaded which raise an issue of destoolment of the seventh appellant. A close examination of the pleadings shows that his action to invoke the original jurisdiction of the judicial committee was commenced by petition in accordance with the Chieftaincy (National and Regional Houses of Chiefs) Procedure Rules, 1972 (CI 27), and the reliefs sought concerned the eligibility of the seventh respondent-appellant to be nominated, elected and installed as a chief of Mampong, and the setting aside of his nomination, election and installation as null and void. No relief was sought for his destoolment. In this respect, CI 27 permits any one who has interest in such nomination, election and installation to file a petition in the appropriate forum. Customary law does not restrict a petitioner in such circumstances to commence proceedings on behalf of the entire family or with the consent and concurrence of other houses of the royal family where there are more than one house constituting the royal family.

The enstoolment process concerns only the Baabriw family of the entire Mampong royal family, because it was the turn of the Baabriw family to install a Mampong chief. It was also not necessary for the action to be instituted with the backing of the heads of the Baabriw family nor those of the other houses of the Mampong royal family, namely the Botase, Kodiokrom and Wiredu houses. It also makes no difference whether the respondent is proved to be the head of the Kofi Santeni branch of the Baabriw Bretuo family or house before he becomes entitled to swear the great oath of Asante and the Mampong oath “Yawoada” or file a petition to challenge the installation of the seventh appellant as a Mampong chief.

Rule 1 of CI 27 permits an action brought to invoke the original jurisdiction of a judicial committee of a regional house of chiefs to be commenced by a petitioner in Form 1 set out in the First Schedule to CI 27 and signed by the petitioner or his counsel and filed with the proper officer of the judicial committee. Rule 2 of CI 27 specifies the contents of Form 1 and in filing it the pattern of the Form was followed by the respondent. The rules do not specify in what capacity the petitioner should institute his action, but the law permits any member of a family to bring an action to protect any family property in jeopardy if he can show that there is no head of family at the material time to protect the property, or that the head had shown no interest in saving

[p.145] of [1995-96] 1 GLR 125 the property or had refused to take requisite action to protect the property, or that if he is taking action his act is geared towards the destruction or alienation of the property. If Opanin Osei Bonsu who is said to be the overall head of the Baabriw Bretuo family was bent on giving the silver stool, to which only blood members of the Baabriw family are entitled to accede, to the seventh appellant who is alleged not to be of the royal lineage, a necessity had arisen for the respondent, a descendant of the royal blood, to file a petition.

Much as I agree with learned counsel for the seventh appellant that in this country no person is entitled to declare another person a slave, the question whether such person has ever been a slave is a question of fact provable by evidence. True, with the abolition of slavery all such persons became emancipated, resulting in their children and descendants being born free citizens. But in my view, the petitioner’s claim is not based on a native custom which amounted to slavery. What the respondent is urging is that though the ancestresses of the seventh appellant were absorbed into the Baabriw Bretuo family as free citizens subsequent to the abolition of slavery, native law and custom did not permit them to contest the Mampong silver stool by reason of their slavish origin. I do not see anything wrong with this contention as being repugnant to justice, equity and good conscience. In my view, the two cases cited by counsel, namely In re Damptey (Decd); Kodieh v Affram (1930) 1 WACA 12 and Yeboah v Bonko (1957) 2 WALR 107 are, with all due respect, patently irrelevant and inapplicable.

In the result, all the grounds of appeal fail, and the appeal is dismissed.

JUDGEMENT OF ABBAN CJ.

I agree.

JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC.

I also agree.

JUDGMENT OF AMPIAH JSC.

I also agree.

JUDGMENT OF KPEGAH JSC.

I also agree.

DECISION

Appeal dismissed.

DRKS