HUAGO AND OTHERS vs. DJANGMAH II AND OTHERS [1997-98] 1 GLR 300

CASES REFERRED TO

(1) Boampong v Aboagye [1981] GLR 927, SC.

(2) Republic v High Court, Denu; Ex parte Avadali IV [1993-94] 1 GLR 561, SC.

(3) Republic v High Court, Koforidua; Ex parte Bonsu, Supreme Court, 20 December 1994, unreported.

(4) Nyamekye v Tawiah [1979] GLR 265, CA (full bench).

(5) Moorgate Mercantile Co Ltd v Twitchings [1975] 3 WLR 286; [1975] 3 All 314; 119 SJ 559, CA.

(6) Sasu v Nyadualah [1973] 1 GLR 221, CA.

[p.302] of [1997-98] 1 GLR 300

(7) Kyereh v Kangah [1978]1 GLR 83, CA (full bench).

(8) Republic v Owusu; Ex parte Anane, Supreme Court, Accra, 25 July 1995, unreported.

(9) Acheampong v Acheampong [1967] GLR 34.

(10) Smith v Smith [1965] GLR 730.

(11) Kofi v Agbotse [1959] GLR 305.

(12) Quaye v Kuevi (1934) ‘31-’37. 69.

(13) Komey v Onanka [1962] 1 GLR 52.

(14) Ameoda v Pordier [1967] GLR 479, CA.

(15) Ababio v Tutu [1962] 1 GLR 489, SC.

(16) Ahmad v Afriyie [1963] 2 GLR 344.

(17) Adjowei v Yiadom III [1973] 2 GLR 90, CA.

NATURE OF PROCEEDINGS

APPEAL to the Supreme Court from the decision of the judicial committee of the National House of Chiefs reversing the judgment of the judicial committee of the Greater Accra Regional House of Chiefs dismissing the claim of the first respondent that he was the paramount chief of the Great Ningo Traditional Area. The facts are sufficiently stated in the judgments of Edward Wiredu and Kpegah JJSC.

COUNSEL

E D Kom (with him E V A Adjetey and Miss Hordasi) for the appellants.

Amarkai Amarteifio (with him Edgar Ansah Obiri) for the respondents.

JUDGMENT OF EDWARD WIREDU JSC.

In two judgments dated 9 August 1990 the judicial committee of the Greater Accra Regional House of Chiefs delivered its decisions in suits Nos GAR/P 3/84 and GAR/P3/85. The two suits were consolidated and tried together.

In suit No GAR/P3/85 one Nene Tei Djangmah IX and another in a petition challenged the status of one Samuel Narh Osroagbo alias Nene Osroagbo Djangmah II as the paramount chief of the Great Ningo Traditional Area. The judgment of the judicial committee in this suit dismissed the said petition and affirmed the status of Nene Osroagbo Djangmah II as the occupant of the paramount stool of the Great Ningo Traditional Area. An appeal against this decision by Nene Tei Djangmah IX to the National [p.303] of [1997-98] 1 GLR 300 House of Chiefs could not be pursued because the petitioner-appellants were unable to fulfil the conditions of appeal. Their application to the National House of Chiefs for extension of time within which to fulfil the appeal conditions was refused on 28 July 1995.

In suit No GAR/P/84, the judicial committee dismissed a petition by Nene Osroagbo Djangmah II and others who have sought in their petition a declaration that he, Nene Djangmah II, was still the undisputed paramount chief of the Great Ningo Traditional Area and therefore the occupant of that stool. The respondents to the said petition, who are the present appellants before this court, resisted the petition on the ground that the first respondent had abdicated from the stool. It is from the judgment in that case that Nene Osroagbo Djangmah II and others considered themselves aggrieved, and appealed to the National House of Chiefs and succeeded in having that decision against them overturned by the judicial committee of that house in a judgment dated 15 September 1995. It is from this latter judgment that the present appeal has been brought to this court.

The present appeal is therefore solely concerned with the reversal of the decision in suit No GAR/P3/85 by the judicial committee of the National House of Chiefs. We thus have two judgments, one in favour of the present appellants delivered by the Greater Accra Regional House of Chiefs dated 9 August 1990 and the other by the judicial committee of the National House of Chiefs dated 15 September 1995 in favour of the respondents.

Even though in terms of hierarchy the decision of the National House of Chiefs is more authoritative and therefore to be preferred to that of the Greater Accra Regional House of Chiefs because the latter is a lower tribunal, I have, nonetheless, given a careful consideration to the two judgments bearing in mind the peculiar facts and circumstances of the case. After carefully considering the two decisions on the facts and the customary law alongside the submissions by learned counsel, I have come to prefer the decision of the judicial committee of the National House of Chiefs to that of the Greater Accra Regional House of Chiefs.

The central issue raised for determination in this case both at the trial and appellate level is the issue as to whether Nene Osroagbo Djangmah II (hereinafter referred to as the first respond

[p.304] of [1997-98] 1 GLR 300 ent) had customarily abdicated from the stool? In other words, whether the letter written by him, the first respondent, on 22 July 1993 and addressed to the registrar of the Great Ningo Traditional Council and another with copies to others (exhibit IG) and his subsequent acts constituted a valid customary abdication.

In resolving the above issue, the trial judicial committee, as can be seen from its decision, did not succeed in obtaining assistance from a precedent of any previous abdication in the Ningo chieftaincy experience to guide it in determining same. It is however clear that the attention of the tribunal was drawn to the case of Boampong v Aboagye [1981] GLR 927, SC which provided that, to constitute a valid customary abdication, four conditions must be satisfied. These are: (1) a voluntary renunciation of the stool; (2) its acceptance by the stool elders or kingmakers; (3) performance of requisite rites and formalities; and (4) publicity of the abdication. On the above conditions this is what the trial chieftaincy tribunal said: “We recognise that the Supreme Court, in Boampong v Aboagye explicitly stated that these four conditions enumerated above ‘must co-exist for the validity of an Akan abdication.’ We think, however, that the four conditions are very reasonable and fair and can be applied or extended to cover cases of abdication where no precedent exists as in the Greater Accra Region or other non-Akan areas. We accordingly, will apply the said four conditions to the instant case modifying it only with the guidelines as contained in Nene Tei Doku Aguda III v Tei Djangmah referred to above.”

To me, the trial chieftaincy tribunal properly directed itself as to the proper test to entitle it to apply a known customary practice in one area to another area where no precedent exists. The test is one of “reasonableness and fairness” of the principles. This underscores the need for uniform customary practice throughout the country. The committee therefore, in my respectful opinion, legitimately and justifiably approved and applied the above conditions as laid down in this Akan case of Boampong v Aboagye (supra) to similar cases in the Greater Accra Region, including the instant case.

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Both the trial and the appellate chieftaincy tribunals properly directed themselves to the issue raised for determination and properly, in my respectful view, approved the adoption and application of the conditions as sine qua non to be applied in the Greater Accra Region and for that matter the Ningo Traditional Area. They, however, parted company in their approach and therefore came to different conclusions.

I will now attempt to justify my preference for the conclusion of the National House of Chiefs to that of the trial chieftaincy tribunal, ie the judicial committee of the Greater Accra Regional House of Chiefs. I will begin by first stating that the appellate tribunal of the National House of Chiefs in its judgment also followed up, affirmed and adopted the principle enunciated in Boampong v Aboagye (supra). The appellate tribunal also followed the conditions laid down in the Aboagye case (supra) just as the trial regional tribunal had approved and applied them but with a better appreciation of the issue and approach.

The next point I would like to draw attention to is the fact that this court has accepted and repeatedly stated ad nausem in a number of celebrated chieftaincy cases like Republic v High Court, Denu; Ex parte Avadali IV [1993-94] 1 GLR 561, SC; and Republic v High Court, Koforidua; Ex parte Bonsu, Supreme Court, Accra, 20 December 1993, unreported, that chieftaincy matters are within the preserve of chieftaincy tribunals. This position and attitude were confirmed at the first seminar organised for Supreme and Court of Appeal judges on continued judicial education in 1994 on the topic “Chieftaincy Matters, Jurisdiction and Appeals.”

I have had no cause to disagree with the reasonableness and fairness of the principle on the conditions laid down in Boampong v Aboagye (supra) which were approved, adopted and applied by both the trial chieftaincy tribunal and affirmed by the judicial committee of the National House of Chiefs. I am also of the respectful view that its application in the instant case not having been shown to be unreasonable, ought to be affirmed by this court.

There are two main situations or circumstances under which a stool may become vacant. These situations are: (1)(a) destoolment and (b) abdication, which are situations which apply to chiefs who are alive; and (2) the death of a chief on the stool. It is significant

[p.306] of [1997-98] 1 GLR 300 to note here that it is only when a stool is vacant legally under customary law as provided by law that a new chief can be enstooled. Our main concern in this appeal is with situation (1)(b), ie the issue of abdication.

The facts in this case which are not disputed revolved around exhibits IG and IH the relevant portions of which read respectively as follows: “Mantse Wem, Old Ningo.” After certain recitals exhibit IG concludes as follows:

“NOTICE OF ABDICATION NOW THEREFORE TAKE NOTICE THAT NENE OSROAGBO DJANGMAH II, PARAMOUNT CHIEF AT THE DATE HEREOF OF THE GREAT NINGO TRADITIONAL AREA, OTHERWISE KNOWN AND CALLED SAMUEL NARH OSROAGBO DO HEREBY ABDICATE HIGH OFFICE OF NINGO MANTSE/PARAMOUNT CHIEF OF THE GREAT NINGO TRADITIONAL AREA AND HIGH PRIEST OF THE DJANGE FETISH, OUR TRADITIONAL GREAT NINGO DEITY WITH EFFECT FROM FRIDAY THE 22ND DAY OF JULY, 1983.”

In response to exhibit IG, exhibit IH reads:

“NENE MARWORTEY AKROTIA III OMAN STOOL FATHER (MAOSETSER)

SEWEM.

House No …

P.O. Box 22 Old Ningo.

25 August 1983.

Nene Osroagbo Djangmah II, Mantse Wem, Old Ningo.

Dear Sir, ACCEPTANCE OF YOUR ABDICATION LETTER I refer to your letter of abdication dated 2 July 1993 instance,

[p.307] of [1997-98] 1 GLR 300 and wish to inform you that your intention to abdicate your high office as the Paramount Chief 1(1) 2 2 sic Great Ningo Traditional Area as well as the High Priest of Django Fetish is most welcome. As you are aware, your reign as a paramount Chief of Ningo Traditional Area was met with disputes and that led to the retarding of progress within the area.

Yours faithfully, OMAN STOOL-FATHER Nene Narwortey Akrotia III NENE NARWORTEY AKROTIA III.”

(The emphasis is mine.)

It is significant to note that the writer of exhibit IH which is supposed to be an acceptance letter in response to exhibit IG, did not treat the contents of the letter exhibit as constituting a customary abdication. The writer, as emphasised above, treated the contents as an “intention to abdicate.” Customary law in its purity (origin) knows no writing. Writing in modern times has come to be accepted as a permanent means of keeping records of customary transactions. In fact such written documents are considered as evidencing customary transaction and only for that purpose. This includes Gazette notices, which are considered solely as prima facie evidence of the matters stated therein which matters can be disproved. I think the writer of exhibit IH treated the contents of exhibit IG in its proper customary context and I share his view that the contents connote an intention to abdicate and cannot constitute a valid customary abdication. Where statutes demand written documents in matters concerning customary transactions, they do so for evidential purposes only and in certain cases provide a format, otherwise the writing must be a document which records in exact detail what actually has taken place, showing what parts were played by accredited participants and witnesses thereto.

The contents of the two exhibits per se cannot by themselves be legitimately considered sufficient as a valid customary abdication. They need something more. As far as I can gather from both exhibits, none of them can be treated as satisfying any of the conditions essential to establish a valid customary abdication, save

[p.308] of [1997-98] 1 GLR 300 the voluntary initiation of exhibit IG. Exhibit IG can be treated as an intention to abdicate simpliciter Exhibit IH does not satisfy customary acceptance. This latter view was expressed by the trial chieftaincy tribunal as follows:

“From the evidence reference exhibit IH, acceptance was by Nene Narwotey Aklotia3(2)sic III (Sietse) oman stool father. But is this acceptance enough or valid? The answer is no. Acceptance should be by the elders and king makers, but this was not done. Although a sietse may be an elder or king-maker he alone without more cannot accept for and on behalf of the elders and king makers.”

(The emphasis is mine.) On the condition of performance of rites and formalities the tribunal stated: “In our view the recognised mode, that is: children collecting broken calabashes from dumping grounds and then beating with hooting behind across the town was not done.” On publicity it said: “Petitioner’s failure to satisfy all the four conditions coupled with the very act of abandonment of the town and its people or subjects and further added to by the cessation.” Having rejected all the above as not having been proved, the tribunal suo motu concluded as follows:

“Finally, we hold also that it would be morally wrong for Nene Osroagbo Djangmah II to go back to the stool. Even if he had passed the test of the four conditions he had turned his back on his people for so long a time. To go back would bring the institution of chieftaincy into disrepute. In the circumstances, we find that Nene Osroagbo Djangmah II abdicated and since succession is by rotation, the next house to nominate, elect and install a chief in succession to him is the Loweh Kpono royal family. We should accordingly ask the appropriate authorities of Loweh Kpono to complete the installation of Nene Huago IV as the next Mantse of Great Ningo Traditional Area in succession to Nene Osroagbo Djangmah II”

The conclusion of the trial chieftaincy tribunal is not justified first, because having directed itself that the real issue joined between two parties was the issue of “abdication”, it strayed into

[p.309] of [1997-98] 1 GLR 300 other irrelevant areas and fell into the error of not appreciating that abandonment and neglect or failure to perform customary duties or both are not prerequisites to proving abdication. Secondly, the record apparently shows that it is the tribunal which suo motu attempted to make a case for the appellants; a position which is not justified in law, for a court cannot find in favour of a party a case not based on what the parties have put up and joined issues on. Moreover, matters such as abandonment of post and neglect of customary duties by the first respondent, as was contended by the tribunal to justify their finding in favour of the appellants, could have formed the basis as grounds for charges against him for his destoolment in the appropriate forum.

From the point of view of the judicial committee of the National House of Chiefs, the events leading to the abandonment and non-performance of his duties in those circumstances in which the first respondent found himself on the facts of this case were justified. I will not make any comment on this finding save4(3)sic to say it was not justified for the trial tribunal to have founded its judgment in favour of the appellants on this ground.

The concluding remarks by the trial regional tribunal which is in the following language:

“We would accordingly ask the appropriate authorities of Loweh Kpono to complete the installation of Nene Huago IV as the next Mantse of Great Ningo Traditional Area in succession to Nene Osroagbo Djangmah II” show clearly that the trial tribunal either completely misappreciated or did not accept the contention by the appellants that all the customary rites in connection with the enstoolment of Nene Huago IV as the paramount chief of Great Ningo have been completed, including the statutory requirement of notifying the registry of the National House of Chiefs and the gazetting of the enstoolment of the new chief.

As against this, is the judgment of the judicial committee of the National House of Chiefs which properly held that the required conditions for customary abdication have not been satisfied or established and that the first respondent having been held to have been properly enstooled, is still the present occupant of the Ningo

[p.310] of [1997-98] 1 GLR 300 paramount stool. I am in agreement with this conclusion and affirm same. The appeal therefore fails and I will dismiss same.

JUDGMENT OF AMPIAH JSC.

Two actions were consolidated for hearing. In the first suit (No GAR/P/3/84) the petitioners claimed, inter alia, that the first petitioner, Nene Osroagbo Djangmah II has been duly nominated, elected and enstooled as the paramount chief of the Great Ningo Traditional Area in accordance with accepted Ningo custom. In the second suit (No GAR/P3/85) the petitioners claimed among others that Nene Tei Djangmah IX was the paramount chief of the Great Ningo Traditional Area and that the first respondent, Samuel Narh Osroagbo Djangmah II, not coming from the house which was then entitled to install a paramount chief and not having been installed in accordance with custom, could not claim to be the paramount chief of Ningo. In their memorandum of issues filed in respect of suit No GAR/P3/85, an issue was joined as to, “whether the first defendant-respondent did not abdicate as the paramount chief of Great Ningo Traditional Area.”

It would appear that the whole action turned on the issue of abdication. The Greater Accra Regional House of Chiefs found that the first respondent succeeded Nene Tei Aguda III. The house having resolved that the first respondent, Nene Osroagbo Djangmah II, rightly succeeded Nene Tei Aguda III, the issue of the improper installation of the first respondent was settled; there could not have been an abdication unless the person was a chief! There was no appeal in suit No GAR/P3/84 on that issue. In suit No GARlP3/85, the regional house said, “There was sufficient demonstration of the fact of Nene Osroagbo Djangmah II’s abdication of his high office and as such we hold that abdication to be effective and legally operative.” It went on to observe:

“that it would be morally wrong for Nene Osroagbo Djangmah II to go back to the stool. Even if he had passed the test of the four conditions he had turned his back on his people for so long a time. To go back would bring the institution of chieftaincy into disrepute. In the circumstances, we find that Nene Osroagbo Djangmah II abdicated.”

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The chieftaincy tribunal of the National House of Chiefs allowed the appeal relying on the Supreme Court case of Boampong v Aboagye [1981] GLR 927, SC and concluded thus:

“(1) the appellant is still alive;

(2) the conditions for abdication were not complied with and, therefore it is not valid;

(3) since it was not valid the issue of withdrawal is not even necessary or does not arise; and (4) cause of absence from the town to us was reasonable and even if not, the kingmakers can only use it as a ground for formal destoolment proceedings to customarily remove the person but not summarily.”

It is against this decision that the respondents have appealed to this court.

Both tribunals of the Greater Accra Regional House of Chiefs and the National House of Chiefs relied on the Supreme Court case of Boampong v Aboagye (supra). This was a decision based on the Akan custom of abdication. In this appeal it has been argued that the “Akan custom” should not be made applicable to the people of Ningo who, admittedly, are not Akans. Customary law is said to be in the bosom of the chief! In the case of Nyamekye v Tawiah [1979] GLR 265, CA (full bench) Apaloo CJ in that case advised judicial committees of the chieftaincy tribunals not to attempt to import foreign (English) principles into their reasoning when dealing with cases involving custom. He said, in effect, that the policy reason for the conferment of judicial powers on the house of chiefs (for that matter the chieftaincy tribunals) is that by the knowledge and training of the chiefs, they are supposed to know the custom and can competently pronounce on them. I agree to a large extent that this should be the case, but there are situations where there is either no precise custom for the particular people or that a situation has not arisen for the application of any particular custom, in other words there is no precedent. In that case, I would agree with the reasoning of the chieftaincy tribunal of the National House of Chiefs in deciding to use the principles laid down in the Aboagye case (supra), albeit an Akan case, to settle the issue in the Ningo case. The chieftaincy

[p.312] of [1997-98] 1 GLR 300 tribunal of the Greater Accra Regional House of Chiefs similarly dealt with and accepted the principles in that case but came to the conclusion that on moral grounds the principles could not apply in this case.

The evidence shows that there are no settled customary rules or rites pertaining to the destoolment or abdication of a chief at Great Ningo; the reason being that these incidents have been a rare occurrence. With regard to abdication, it would appear that this occasion was the first of its kind. No wonder both the chieftaincy tribunals of the Greater Accra House of Chiefs and the National House of Chiefs were not able to clearly resolve the existing custom at Ningo.

The laws of Ghana as provided by article 11(1) of the Constitution, 1992 comprise the common law, which includes the rules of customary law. And, under article 11(3) of the Constitution, 1992 “customary law” means, “the rules of law which by custom are applicable to particular communities in Ghana.” The institution of chieftaincy as established by customary law and usage, is guaranteed under article 270(3)(a) the Constitution, 1992 which provides that:

“(3) Nothing in or done under the authority of any law shall be held to be inconsistent with, or in contravention of, clause (1) or (2) of this article if the law makes provision for—

(a) the determination, in accordance with the appropriate customary law and usage, by a traditional council, a Regional House of Chiefs or the National House of Chiefs or a Chieftaincy Committee of any of them, of the validity of the nomination, election, selection, installation or disposition of a person as a chief.”

Article 270(1) and (2) of the Constitution, 1992 place a restriction on the powers of Parliament to make certain laws affecting the institution of chieftaincy.

I have referred to these provisions of the Constitution, 1992 to show that the determination of what the custom pertaining to chieftaincy is, is the preserve of the chieftaincy tribunals. First, the

[p.313] of [1997-98] 1 GLR 300 primary duty is with the traditional council of the particular community. If it is not capable of clear determination, the regional house covering the particular traditional area has the duty to determine same. Where all of them fail, the National House of Chiefs (the house consisting of representatives from the various traditional council and regions in the country) must try to determine the custom, and the courts are enjoined to refer the determination of any customary law which is not clear to them to the appropriate forum for determination, to assist them to come to a conclusion in a customary matter: see section 55(5) of the Courts Act, 1993 (Act 459). Therefore, when a traditional council of a particular community and the regional house covering the area have affirmed the custom of the particular area, the National House of Chiefs and, the courts, should be cautious in interfering with the established custom. However, where the traditional council and the regional house concerned have not been able to settle the customary law of the particular community, the National House of Chiefs has a duty to find that custom. It may determine this from the available evidence.

In its judgment, the chieftaincy tribunal of the National House of Chiefs observed:

“Chieftaincy in general, no matter the ethnic group concerned, deals with ancestral worship. There is therefore supposed to be a link between the living and the dead and a means of communicating between them. It is the duty of the living to inform the dead of whatever they do customary wise, and to seek their blessing and guidance. That is why in all things pertaining to a stool, rites or rituals are performed. The rites and rituals may differ but the principle is the same.

Both abdication and destoolment deal with relinquishing of stools. In both cases there is the need to fulfil conditions; the first condition differs in both. In abdication, there is the need for voluntary renunciation but in destoolment charges are preferred.”

In Boampong v Aboagye (supra) a case in which the Konongohene was alleged to have abdicated in the presence of the customary

[p.314] of [1997-98] 1 GLR 300

“overlord or landlady” the Juabenhemaa—the Supreme Court defined abdication thus ar5(4)sic 936: ‘‘‘abdication’ as a voluntary renunciation of a stool by a chief in public, e.g. in the palace or dwabrem (i.e. assembly place), which is accepted by his elders and kingmakers and is sealed by the performance of the necessary customary rites and formalities, e.g. the slaughtering of sheep.”

It went on on6(5)sic the same page:

“In short, the sine qua non conditions for a valid customary arbitration in the Akan customary law are:

(i) voluntary renunciation of the stool by the occupant;

(ii) its acceptance by the stool elders and kingmakers;

(iii) through the performance of the requisite rites and formalities; and (iv) publicity.”

Without a clear-cut or settled customary practice of abdication in the Great Ningo Traditional Area, the chieftaincy tribunal of the National House of Chiefs, tried to apply these principles, even though they were set down in an Akan abdication, to the situation as existed in the Great Ningo Area. It exhaustively dealt with the matter and held that these conditions did not exist in the Ningo case, though the first respondent by his conduct made it to appear that he had abandoned his stool. I think the National House of Chiefs was right and I would agree with the conclusion came to by my brother Wiredu JSC.

Care must, however, be taken not to apply these principles blindly to every situation. Each case must be decided on the facts before the tribunal and where there is an existing customary practice pertaining to abdication in the particular community, that established custom should not be set aside or ignored on the sole ground that it is not reasonable, it is the custom of the people; it must be applied to them!

The chieftaincy tribunal of the National House of Chiefs touched on the issue of abandonment perhaps because the regional house chieftaincy tribunal had used that as a ground for finding against the respondents. Abandonment, no doubt, is a ground for

[p.315] of [1997-98] 1 GLR 300 destoolment, as a chief who abandons his stool breaches his oath of office, but that issue was not before the tribunals. Any statement made in respect of abandonment could only be an obiter. The parties should be left to advise themselves.

I would dismiss the appeal for the reasons stated in my opinion.

JUDGMENT OF KPEGAH JSC.

There are two ruling houses in respect of the paramount stool in the Great Ningo Traditional Area. These are the royal Adainya and Loweh Kpono families. These two families have their own sets of kingmakers with a sietse or a stool father for the paramount stool. Succession to the stool is by rotation and the occupant is also the spiritual leader of his people, or the chief fetish priest of the Djange shrine of Great Ningo.

In January 1972 the then paramount chief of the Great Ningo Traditional Area, Nene Tei Doku Aguda III, died and Nene Osroagbo Djangmah II (hereinafter referred to as the first respondent) was enstooled in his place. The first respondent was from the Adainya family. Immediately after his enstoolment the uncle of the first respondent, Nene Tei Djangmah IX, challenged his enstoolment claiming that he had been nominated and elected in the lifetime of Nene Tei Doku Aguda III as his successor. This led to a protracted chieftaincy dispute in the Great Ningo Traditional Area. Meanwhile the first respondent was given recognition by the government, as required by the law then in force, as the properly enstooled paramount chief of the Great Ningo Traditional Area. He therefore had the upper hand in this dispute with his uncle since he became the president of the Great Ningo Traditional Council and represented the traditional area at the Greater Accra Regional House of Chiefs.

At a certain point in time during this protracted dispute, the first respondent found the situation so intolerable and frustrating that he left the traditional area unceremoniously. This self-imposed exile lasted several years. During this period, which I reckon to be over seven years, the first respondent was admittedly not functioning as a chief and spiritual leader of his people; he had left the job to the mankrado. He neither attended meetings of the traditional council nor the regional house of chiefs. He also did not perform any rites at the Djange shrine as the chief fetish priest of [p.316] of [1997-98] 1 GLR 300 the traditional area during the years he was sojourning outside the traditional area. This was the state of affairs when on 22 July 1983, the first respondent wrote a letter of abdication to the Great Ningo Traditional Council and the sietse or the stool father for the paramount stool. There is evidence from the first respondent’s own representative, one Nene Gidigago Djangmah, who gave evidence on his behalf, that the letter of abdication was immediately referred to the elders and kingmakers of the Adianya family by the stool father, one Nene Narwortey Aklotia III. He waited for about three weeks and not hearing anything from the Adainya family elders and kingmakers, he informed the elders and kingmakers of the Loweh Kpono family to provide a candidate for the stool. It was in response to this invitation that one Mathias Addo Nortey was nominated, elected and enstooled as the new paramount chief of the Great Ningo Traditional area under the stool name of Nene Addo Huago IV.

The first respondent later came back to mount the present litigation against the said Nene Huago IV and the elders and kingmakers of the Loweh Kpono family, contending that he was still the rightful paramount chief of the Great Ningo Traditional Area because his purported abdication was not customarily accepted by the kingmakers of the Adainya family by the performance of any customary rites to consummate his abdication. He also said, without any congent evidence, that the kingmakers of the Adainya house made him withdraw his letter of abdication.

At the trial tribunal, the case of the first respondent was advanced primarily through the evidence of Nene Gidigago Djangmah who gave evidence on his behalf. This witness was projected as a man of considerable years with “good” knowledge of the customs of his people. This is what he said in examination-in-chief:

“Q As far as you are aware has there been any precedent in Ningo whereby a paramount chief had abdicated his stool?

A I have never heard of any such abdication in Ningo traditional custom.

[p.317] of [1997-98] 1 GLR 300

Q [I] suppose you know Ningo custom considering your age and you are holding a traditional office, is that not so?

A That is so.

Q Having regard to the dual functions of the paramount chief both as chief priest and as chief, what should happen if the paramount chief decided to abdicate?

A In my opinion since the paramount chief ascends the stool with the performance of certain rituals and slaughtering of a sheep and pouring blood on his feet, also consecrated at the Djange shrine as high priest of the land, the stool father should take the abdicating chief to the stool room and slaughter a sheep on his feet and pour libation to the effect that he is no longer on the stool. He should also be taken to the Djange shrine for deconsecration. These two functions signify that he is no longer paramount chief.

Q As far as you are aware, have any vacation forms been sent to the Greater Accra Regional House of chiefs to signify that the first respondent is no longer on the stool?

A As far as I am aware, no vacation forms have been sent by the Ningo Traditional Council to the Greater Accra Regional House of Chiefs, for onward transmission to the National House of Chiefs to declare my position vacant in the Ningo Traditional Area.

Q Are you therefore maintaining that the first respondent you are representing is still the paramount chief of the Ningo Traditional Area and the chief priest of Djange?

A Yes. I maintain and also confirm that the first respondent is still the paramount chief of the Ningo Traditional Area and the high priest of the land.”

This is the substratum of the first respondent’s case which has been canvassed up to this court. Of course, it does not take much to realise that the first respondent’s case has been tailored to come within the requirement of a valid abdication in Akan customary law as enunciated by the Supreme Court in the case of Boampong v Aboagye [1981] GLR 927, SC.

[p.318] of [1997-98] 1 GLR 300

There was some dispute as to who was the sietse or stool father to the paramountcy. The first respondent contended that the sietse7(6)sic was one Borketey Narteh Geli while the appellants contended that the seitse was one Nene Narwortey Aklotia III. Nene Gidigago Djangmah who gave evidence on behalf of the first respondent said under cross-examination as follows:

“Q The letter was addressed primarily to both the Great Ningo Traditional Council as well as to the stool father, is that not correct?

A Yes, that is correct …

Q It is true, is it not that the sietse reacted to the letter of abdication, is that not so?

A Yes. He reacted to it.

Q Who was this stool father? A Narwortey Aklotia III.

Q When did the stool father refer this letter to the elders?

A Immediately the stool father received the letter he referred it that same week to the elders and kingmakers.”

The trial tribunal was not able to categorically resolve this issue and felt bound to leave it for resolution in the future by the mantse or the paramount chief. Although this is an appellate court, I think I am entitled to make my own findings of fact in this matter in view of the above quoted admission. I find as a fact that Nene Narwortey Akloba III is the oman sietse or stool father for the paramountcy. The evidence clearly show that Borketey Narteh Geli only acted as sietse for a short time.

The facts, as so far recalled by me, are not seriously in dispute, except the one in respect of which I find myself compelled to make my own finding of fact. It must be pointed out that between the parties to this case, it is agreed that nobody knows the custom in relation to abdication of the paramount chief since there has not been a precedent in the history of the traditional area. So the single issue for determination, and this was identified by the trial tribunal, is “whether the purported abdication of Nene Osroagbo Djangmah II was of any legal effect?”

As pointed out earlier, there was no evidence before the tribunal as to the custom of the people of Great Ningo when a

[p.319] of [1997-98] 1 GLR 300 paramount chief abdicates since the present case is said to be the first in living memory. Indeed, it was clear before the trial tribunal that nobody knew what type of custom had to be performed in such a situation before the abdication could be said to be consummated under Ningo custom. The tribunal was therefore left to grope about.

There was therefore nothing to guide the judicial committee of the Greater Accra Regional House of Chiefs as to the mode of acceptance which was necessary under Ningo custom to effectuate an abdication of a chief. Despite this serious handicap the trial tribunal, in my humble view, did an admirable job in the analysis of the law and facts. It considered the requirements of a valid Akan customary abdication as stated in the case of Boampong v Aboagye (supra). In that case, this court considering a situation under Ashanti customary law said per Anin JSC at 936 thus:

“ … the sine qua non conditions for a valid customary abdication in the Akan customary law are:

(i) voluntary renunciation of the stool by the occupant;

(ii) its acceptance by the stool elders and kingmakers;

(iii) through the performance of the requisite rites and formalities; and (iv) publicity.

All the above four conditions must co-exist for the validity of an Akan abdication.”

Using these requirements, in the words of the trial tribunal, as “guidelines” it analysed the evidence and made findings. On the first requirement, voluntary renunciation, it found that the letter of abdication was “voluntarily written” but was not able to find positively that all the other conditions were satisfied. On acceptance by the kingmakers of the Adainya family, I am not surprised they could not even react to the letter of abdication referred to them by the seitse or oman stool father, for it was a house in turmoil or a house divided against itself. It was one of their royals, the uncle of the first respondent to be precise, who triggered off this protracted chieftaincy dispute by contending that he, rather than the first respondent, was the lawfully elected chief. Nene Tei Djangmah IX could not have mounted such a serious and protracted challenge to

[p.320] of [1997-98] 1 GLR 300 the first respondent without the active support of a faction of the kingmakers of the Adainya family. We know that the case was consolidated with the one we are now considering.

The two factions within the Adainya family could never have met to discuss any issue relating to the abdication of the first respondent, let alone concede the chance of nomination of a new candidate to the Loweh Kpono family. This is a classic example of the scenario presented in Ghanaian folklore by the proverbial kusi (rat) and amoakua (ground squirrel) which can never meet for an arbitration to settle any matter between them; for while the latter is active and available only during the day and rests in the night, the former is active and available only in the night and rests in the day time. This was the invidious dilemma facing the Great Ningo Traditional Area with its negative consequences.

There is also, evidence that some custom was performed by the stool father after he had written accepting the abdication of the first respondent. This is what Nene Narwortey Aklotia III said under cross-examination:

“Q To your knowledge, after you had written this letter, was any custom performed in relation to the abdication?

A I performed the custom on my stool.”

And in relation to the Djange shrine, the mankralo, Nene Kanor Attiapah III said under cross-examination:

“Q You said earlier on that the first respondent abdicated and communicated the action to the appropriate authorities and quarter. Was any customary ceremony performed?

A Yes. Libation was poured at the Djange shrine.”

Nene Attiapah III, as the Mankralo was the one acting in the absence of the first respondent both as chief and as the chief fetish priest of the Djange shrine. It has to be remembered that the first respondent was not available for any elaborate customary rites to be performed. In the peculiar circumstances of this case, the stool father said he has performed some custom in the stool room; and the acting chief fetish priest said he has also poured libation at the Djange shrine.

[p.321] of [1997-98] 1 GLR 300

If I am pressed to make a finding of fact as to whether any rites have been performed to consummate the abdication, I will so find. Questions asked during proceedings are not evidence but only the answers constitute evidence to be evaluated. Despite the handicap of not knowing the custom of abdication at Ningo the trial tribunal proceeded as follows:

“The petitioners’ failure to satisfy all the four conditions coupled with the very act of abandonment of the town and its people or subjects and further added to or by the cessation of:

(i) celebration of the Djange festival.

(ii) Attending the Ningo Traditional Council meetings and representing the State at ‘external’ functions and furthermore, withdrawal or non-attendance at the Greater Accra Regional House of Chiefs meetings; are all in our view sufficient demonstration of the fact of Nene Osroagbo Djangmah II’s abdication of his high office and as such we hold that the abdication to be effective and legally operative.”

I find this holding very illuminating and interesting. From the above dictum, the trial tribunal was of the view, and it is a view I share, that before his formal letter of abdication, Nene Osroagbo Djangmah II had effectively renounced and abandoned his functions as a chief and spiritual leader of his people for several years. The letter of abdication was only a confirmation of what existed on the ground.

The argument that the fact of his abandonment of his functions for several years should be used as a ground for destoolment rather than an act of abdication only demonstrates the non-appreciation of the peculiar nature of this case and the customary law. The customary law, we are told, consists in the performance of the reasonable in all the circumstances of a case. This is a case in which the custom relating to abdication in the Great Ningo Traditional Area is unknown. The evidence of Nene Gidigago Djangmah can be dismissed as self-serving and only intended to bring the case of his protege under the principle of Boampong v Aboagye (supra). And the trial tribunal possibly treated it that way

[p.322] of [1997-98] 1 GLR 300 by ignoring it. The judicial committee of the Greater Accra Regional House of Chiefs, the trial tribunal, giving reasons for its holding that the abdication of Nene Osroagbo Djangmah II was “effective and legally operative” gave its reason thus:

“It would be morally wrong for Nene Osroagbo Djangmah II to go back to the stool. Even if he had passed the test of the four conditions; he had turned his back on his people for so long a time. To go back would bring the institution of chieftaincy into disrepute. In the circumstances, we find that Nene Osroagbo Djangmah II abdicated.”

(The emphasis is mine.)

I must state that in matters of chieftaincy it is extremely dangerous to propound and apply general principles of customary law as applicable to all communities in Ghana. Under article 277 of the Constitution, 1992 a chief is defined as somebody who:

“hailing from the appropriate family and lineage, has been validly nominated, elected or selected and enstooled, enskinned or installed as a chief . . . in accordance with the relevant customary law and usage.”

(The emphasis is mine.) And under article 11(3) of the Constitution, 1992 customary law “means the rules of law which by custom are applicable to particular communities in Ghana.” It does appear, therefore, that when dealing with chieftaincy matters one must be careful not to lay down general principles of customary law. Even if a general principle can be laid down in certain situations, the mode of application differs from community to community. For example, while it can be said that in every community in Ghana to become a chief, one needs to be nominated, elected, enstooled or enskinned as such, the mode of nomination, election, enstoolment, etc, differs from community to community. This includes the submission that the mode of destoolment and abdication will differ from community to community. I think this was the reason why the Supreme Court was at pains in the case of Boampong v Aboagye (supra) to point out that it was only considering a case involving “a valid customary abdication in Akan customary law.” This was after it was made aware that “the

[p.323] of [1997-98] 1 GLR 300 customary law as a practised8(7)sic at Konongo does not differ from the general corpus of Ashanti customary law on abdication. Strictly speaking, therefore, the case of Boampong v Aboagye (supra) can only be said to be dealing with customary abdication under Ashanti customary law rather than “Akan customary law” if the word “Akan” is used in the wider sense in which it is often used these days to include Fantis, Akwapims, Guans, etc.

The significance of the reasoning of the trial tribunal that it would “be morally wrong for Nene Osroagbo Djangmah II to go back to the stool” after several years of abandonment does not lie in the fact that this could constitute a destoolment offence but lies in the fact that Osroagbo Djangmah II could be said to have been estopped by conduct from reclaiming the stool; the more so when a new chief had been enstooled in his place. Estoppel by conduct is a well-known legal principle. In Moorgate Mercantile Co Ltd v Twitchings [1975] 3 All ER 314 at 323, CA Lord Denning MR defined the concept as follows: “Estoppel … is a principle of justice and equity. It comes to this. When a man, by his words and conduct, has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so.”

(The emphasis is mine.) This equitable principle might have motivated Apaloo JA (as he then was) to say in the case of Sasu v Nyadualah [1973] 1 GLR 221 at 225, CA that a “party should be held to any act or statement which it would be unconscionable to permit him to deny.”

I do not think our customary law is unfamiliar with estoppel by conduct or by acquiescence. The law reports are full of decisions where the conduct of individuals or families have been held as amounting to estoppel by conduct or acquiescence in relation to individual or family lands in situations where customary law was the law applicable. So, as “a principle of justice and equity”, estoppel cannot be said to be subversive of the principle that customary law consists in the performance of what is reasonable in the circumstances of a case. And I have no doubt in my mind that the trial tribunal had this equitable principle in mind when it [p.324] of [1997-98] 1 GLR 300 said it would “be morally wrong for Nene Osroagbo Djangmah II to go back to the stool … he had turned his back on his people for so long a time. To go back would bring the institution of chieftaincy into disrepute.”

I am aware of several decisions cautioning against applying common law principles when considering cases involving the institution of chieftaincy as it is the customary law which should be applicable in such cases. For example, the case of Kyereh v Kangah [1978] GLR 83, CA (full bench) where the full bench of the Court of Appeal said per Sowah JA (as he then was) thus:

“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 institution into disrepute.”

In deciding to apply the principle of estoppel to this case, in view of its peculiar nature and considering all its circumstances, I am not thereby importing or applying a foreign concept to a customary law situation because estoppel by conduct, or by acquiescence, as a matter of justice and equity, cannot be unknown or be said to be alien to our customary law; neither can it be said to be inconsistent with customary law. Thus an individual can, in an appropriate case, be held to be estopped from reviving his claim to a stool; likewise a family. And a family can, under certain circumstances, the said to be estopped from disputing an existing relationship between its stool and that of another stool.

In case the argument is raised that estoppel has not been raised by the pleadings, my only answer is that strict rules of procedure cannot be applied to an inquiry which is essentially a fact finding one where there is neither a plaintiff nor a defendant in the strict sense: see the leading opinion in the case of Republic v Owusu; Ex parte Anane, Supreme Court, Accra, 25 July 1995, unreported.

Both sides in the instant case had the burden to lead evidence before the trial tribunal to establish the customary or constitutional process by which a paramount chief abdicates in the Ningo Traditional Area. This burden was not satisfactorily discharged because nobody knew the actual custom on the issue. But there

[p.325] of [1997-98] 1 GLR 300 were proven facts which show a prior renunciation and unceremonious abandonment of his customary functions and duties, coupled with his leaving the traditional area for several years before his formal letter of abdication. Upon the receipt of his letter, the sietse promptly and properly referred it to the elders and kingmakers of the Adainya family who, fully aware of the antecedents, did nothing and never communicated anything to the sietse for three weeks. The latter then requested the Loweh Kpono family to nominate a candidate before a new chief was actually nominated, elected and enstooled as the paramount chief of the Great Ningo Traditional Area.

These facts justify, in my humble view, a finding of estoppel by conduct against the first respondent as a matter of justice and equity. This, as I have already said, might be responsible for the trial tribunal’s view that it would” be morally wrong” for the first respondent “to go back to the stool”; an act which, as pointed out by the trial tribunal, “would bring the institution of chieftaincy into disrepute.” This is a proper case to which the principle of estoppel, which is available in customary law, also, can be applied; instead of foisting on the people of Ningo a custom they may grow to dislike and despise.

I do not think it will be overstretching it to apply statutory estoppel to this case either. Section 26 of the Evidence Decree, 1975 (NRCD 323) states:

“26. Except as otherwise provided by law, including a rule of equity, when a party has, by his own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall be conclusively presumed against that party or his successors in interest in any proceedings between that party or his successors in interest and such relying person or his successors in interest. “

I find nothing wrong with the application of section 26 of NRCD 323 to this case since the customary law of the people of the Great Ningo Traditional Area on the issue is not known, and there is no rule of equity, which should preclude its application. The

[p.326] of [1997-98] 1 GLR 300 application of the principle of estoppel will greatly assist the customary law in doing what is reasonable in all the circumstances of this case. I will therefore recommend and vote that the appeal be allowed.

JUDGMENT OF ADJABENG JSC.

I have read beforehand the opinion of my learned brother Wiredu JSC, and I fully agree with the views expressed therein and the conclusion reached.

The main issue in this matter, as rightly pointed out by my learned brother, is the issue of abdication. This is, whether or not the first respondent herein, Nene Osroagbo Djangmah II, had customarily abdicated his position as the paramount chief of the Great Ningo Traditional Area. To explain further, the issue is whether or not there was a valid abdication in law of the stool by the first respondent.

As the evidence shows, there had not been any previous abdication in the area in question: the Great Ningo Traditional Area. This court had, however, dealt with such a matter before. It is the chieftaincy case of Boampong v Aboagye [1981] GLR 927, SC. This decision of the highest court of this country constituted by Apaloo CJ, Sowah and Archer JJSC (as they then were) Anin and Taylor JJSC laid down four conditions which ought to be satisfied before an abdication can in law be considered a valid abdication. These conditions have already been stated in the opinion of my learned brother and I do not want to repeat them. What I want to emphasise is that even though this case, decided by the Supreme Court in 1981, was a case from an Akan area and not from the Ningo area in issue here, or from the Ga-Adangme area, yet the trial judicial committee of the Greater Accra Regional House of Chiefs in the present case more or less adopted it as applicable in their area. They rightly held in their judgment as follows:

“We recognise that the Supreme Court, in Boampong v Aboagye explicitly stated that these four conditions enumerated above must co-exist for the validity of an Akan abdication. We think however that the four conditions are very reasonable and fair and can be applied or extended to cover cases of abdication where no precedent exists as in

[p.327] of [1997-98] 1 GLR 300 the Greater Accra Region or other non-Akan areas. We accordingly will apply the said four conditions to the instant case modifying it only with the guidelines as contained in Nene Tei Doku Aguda III v Tei Djangmah referred to above.”

(The emphasis mine.) The trial judicial committee of the Greater Accra Regional of House of Chiefs went further and rightly, in my view, found that out of the four conditions which they agreed ought to exist to constitute a valid abdication, only one had been satisfied in the case, namely, the letter of abdication voluntarily written by the first respondent herein. The other three conditions, namely, acceptance of the abdication by the elders and kingmakers, performance of the requisite rites and formalities, and publicity had all not been satisfied. And, instead of proceeding to apply the said four conditions, as they had vowed to do, by declaring the abdication invalid, they totally failed to do so. This is where they erred.

The National House of Chiefs was, in the circumstances, right in correcting the error committed by the Greater Accra Regional House of Chiefs by using the findings rightly made by the latter house to arrive at the conclusion logically flowing from the said findings. The National House of Chiefs was therefore right in holding that “The conditions for abdication were not complied with and, therefore, it is not valid.” The National House of Chiefs was also right in ruling that: “the kingmakers can only use [the absence of the first respondent from the town] as a ground for formal destoolment proceedings to customarily remove the person but not summarily.”

The National House of Chiefs was right because the issue of the abandonment of the town by the first respondent was not the issue before the trial regional house of chiefs. The issue before them was whether or not the first respondent had validly abdicated his stool. And once they had found that the conditions for a valid abdication had not been satisfied, they should have given judgment for the respondents. Their failure to do so brought about the reversal of their decision by the National House of Chiefs. The decision of the National House of chiefs was therefore right and ought to be affirmed. Accordingly, the appeal must fail.

[p.328] of [1997-98] 1 GLR 300

JUDGMENT OF ATUGUBA JSC.

I have had the advantage of reading the well-reasoned judgment of my brother Edward Wiredu JSC, presiding, and I am in substantial agreement with it. He has admirably condensed the acts of this case and has postulated the main issue in the case as follows at 303 (ante):

“The central issue raised for determination in this case both at the trial and appellate levels is the issue as to whether Nene Osroagbo Djangmah II (hereafter referred to as the first respondent) in this appeal had customarily abdicated from the stool? In other words, whether the letter written by him, the first respondent, on 22nd July 1993 and addressed to the registrar of the Great Ningo Traditional Council and another with copies to others (exhibit 1G) and his subsequent acts constituted a valid customary abdication?”

This tallies with the stance of the first appellant himself, Tetteh Huago IV, as to what constitutes the causa belli between himself and particularly the first respondent. Thus he testified as follows:

“Q The first respondent says that he is still the duly nominated, elected and installed mantse of Ningo, is that correct?

A It is not true.

Q Is he still the paramount chief?

A The first respondent has abdicated since 1983, therefore I don’t know why he still calls himself Ningo Mantse.”

It is clear from the record that this is the first time an issue of abdication of a Ningo chief has arisen in Ningo and therefore there were no prior settled customary principles on it. The chieftaincy tribunals, both regional and national, therefore had resorted to the decision of this court in Boampong v Aboagye [1981] GLR 927, SC wherein the essential conditions of abdication in Akan customary law were stated to be:

(1) a voluntary renunciation of the stool;

(2) its acceptance by the stool elders or kingmakers;

(3) performance of requisite rites and formalities;

[p.329] of [1997-98] 1 GLR 300

(4) publicity of the abdication.

Both tribunals below found these conditions to be reasonable and therefore applicable outside the Akan area in the absence of the existence of a contrary custom.

This approach is to some extent commendable as it accords with the entrenched principle of stare decisis et non quieta movere, which also allows for the application of a judicial precedent by adaptation or analogy. Several instances of this practice abound in our judicial process. Thus in Acheampong v Acheampong [1967] GLR 34 Amissah JA sitting as an additional judge of the High Court drew inspiration from the decision of Archer J (as he then was) in the case of Smith v Smith [1965] GLR 730 that a spouse could at common law sue her husband in tort, to hold that a wife under customary law can sue her husband for breach of promise to marry her under the Marriage Ordinance, Cap 127 (1951 Rev) during the subsistence of their customary marriage. Again in Kofi v Agbotse [1959] GLR 305 Simpson J drew inspiration as to the essentials of a customary law marriage (apparently Ewe), from the decision of Deane CJ in the case of Quaye v Kuevi (1934) DCt ‘31-’37, 69, “although that case deals primarily with Ga customary law.” The only rider I would put on this approach is that all effort must be made to ascertain the particular customary law and it is only when that proves futile that resort to other customary systems can be made in order to avoid what counsel for the appellant in this case strongly warns “could easily pass off as cultural imperialism or domination.”

That danger is not totally absent from the present case, for although the record of appeal confesses that there is no precedent in abdication in the Ningo Traditional area, yet much nearer home to the Ningos, Ollennu J (as he then was) in the Ga case of Komey v Onanka [1962] GLR 52 in dealing with a submission that the Osabu Wulomo had by certain conduct abdicated his priestly office said at 53: “In my opinion those acts do not constitute abdication or even an intent to vacate a traditional and priestly office as that of Osabu Wulomo. Some unequivocal act or declaration accompanied by the production of drink or so, or a definite refusal or neglect to perform the duties appertaining to that

[p.330] of [1997-98] 1 GLR 300 office is necessary to constitute vacation of a traditional office.”

In this case the reasonableness of the principles in the Akan case of Boampong v Aboagye (supra) was the bedrock for its adoption and application to this case. One would like to ask whether the principles of abdication of a traditional office as laid down by Ollennu J (as he then was) in Komey v. Onanka (supra) are bereft of reasonableness? It is quite apparent from the tenor of that decision that though it concerned a priestly office the principles enunciated therein relating to abdication were not intended to be limited to priestly office alone. Since that is a Ga case it ought to have more persuasive force in the present case than the Akan case of Boampong v Aboagye (supra). I gather from the case of Ameoda v Pordier [1967] GLR 479, at 483 CA that Ningo is an Adangme area.

However, in this case there are several indications on the record of appeal which show that the principles of abdication in the Boampong case (supra) do tally with those of Ningo custom, evolved though for the first time. On the requirement of voluntariness of abdication this can be inferred. The main thrust of the respondents-appellants’ case on the record is clearly that the first respondent on his own accord abdicated by letter. This is too obvious from the record, though the proper description of the letter ought to be an act of renunciation, since that alone does not constitute abdication. The next element is the acceptance of the abdication by the stool elders or kingmakers. As to the necessity for this the unobjected evidence of the third defendant witness is as follows:

“Q Am I right in saying that as far as you are aware the first respondent had abdicated?

A As far as I know, writing letters of abdication does not mean that one had abdicated. The letter must be accepted and must have to go through certain processes.

Q What happened?

A In the first place the kingmakers headed by the stool-father must accept the letter of abdication.”

[p.331] of [1997-98] 1 GLR 300

The second witness for the second respondent-appellant, Kanor Attipah III, the Mankralo testified as follows:

“Q What would you say are the requirements of a valid abdication, and according to custom? Who have to be told first that the chief wants to abdicate?

A The chief will first have to tell his kingmakers that he wants to abdicate.”

That the kingmakers’ consent to the abdication is essential is evidenced by the first destoolment charge in 1958 against the then Ningo Mantse, Nene Tei Aguda III, recounted in Ameoda v Pordier (supra) at 497 alleging conduct, “ … contrary to the oath of fidelity sworn to the State at the time of his installation, that he will never do anything involving the State without the knowledge and consent of the elders and people of the State.”

Surely, this part of the oath of installation was not peculiar to Mantse Aguda III. Surely, also abdication from the stool (a corporation sole of the whole Ningo State) is something “involving the State” of Ningo and therefore requires the knowledge and consent of the elders and people of Ningo.

As to the performance of requisite rites and formalities the need for this had hardly been disputed. The first respondent’s representative said as follows:

“Q I suppose you know Ningo custom considering your age and your holding traditional office, is that not so?

A That is so.

Q Having regard to the dual functions of the paramount chief both as chief priest and as a chief, what should happen if the paramount chief decided to abdicate?

A In my opinion since the paramount chief ascends the stool with the performance of certain rituals and slaughtering of a sheep and pouring the blood on his feet, and also is consecrated at the Djange shrine as high priest of the land, the stool father should take the abdicating chief to the stool room and slaughter sheep [p.332] of [1997-98] 1 GLR 300 on his feet and pour libation to the effect that he is no longer on the stool. He should also be taken to the Djange shrine for deconsecration. These two functions signify that he is no longer paramount chief.”

Then in cross-examination of the respondent’s representative he said:

“Q I am putting it to you that in 1982, the Djasetse Tei Abloso, as acting president of the Ningo Traditional Council, wrote to the Greater Accra Regional House of Chiefs with copies to the Registrar, National House of Chiefs; Secretary, Greater Accra Region; and the Dangme District Council in his capacity as Acting President of the Great Ningo Traditional Council to the effect that the first respondent had vacated his post and that the necessary customary rites had been performed to show that he was no longer the paramount chief and that preparations were being made to install a new chief.

A I am not aware of this letter in my capacity as the first respondent.”

(The emphasis is mine.) This shows that counsel for the second respondent was not disputing the need for performance of rites.

The question arises whether the necessary customary rites were in fact performed so as to effectuate the abdication. The first witness for the second respondent-appellant, Narwotey Aklotia III, the stool father in cross-examination said as follows:

“Q To your knowledge, … was any custom performed in relation to the abdication?

A I performed the custom on my stool.”

Likewise the second witness for the second respondent-appellant, Kanor Attiapah III (the mankralo) testified under cross-examination as follows:

“Q You said earlier on that the respondent abdicated and communicated the action to the appropriate authorities

[p.333] of [1997-98] 1 GLR 300 and quarter. Was any customary ceremony performed?

A Yes. Libation was poured at the Djange shrine.”

The veracity of these alleged performances was hotly challenged. Yet it will be noticed that the stool father not only did not state what custom he performed on his stool but there was no other supportive evidence of this.

As to publicity Kanor Attiapah said as follows:

“Q Did you do anything else after performing that customary rite in connection with the abdication?

A I announced to the town that the first respondent had abdicated and so the house whose turn it is to present a candidate might do so.”

To sum up, the position and tenure of office of a chief are accepted, as a general rule, to be a matter of constitutional importance in which the key players are the elders and kingmakers of the stool. Thus in this case, concerning the destoolment proceedings against Tei Djangmah, Tei Doku Aguda III under cross-examination stated as follows:

“Q Why don’t the asafoatsemei join in performing the fetish ceremony as they join in the enstoolment?

A Not necessary for the asafoatsemei to be present in the fetish ceremony.

Q If it were not necessary for the asafoatsemei to be present in the performance of the ceremony for the fetish, why is it necessary for them to be present when she violates the custom?

A Destoolment is an important factor. It was because of a destoolment that we have met here.”

The constitutional importance of tenure of chiefly office was vividly stated in the Boampong case (supra) at 937 thus: ‘ … it is inconceivable that the solemn act of abdication, with its complex constitutional, religious and social dimensions could be consummated by a letter alone.” Then at 942 it is further stated:

[p.334] of [1997-98] 1 GLR 300

“The enstoolment of a chief is thus a public ceremony in which both elders and subjects are actively involved. Similarly, on the occasion of his vacation from the stool through either death, destoolment or abdication, the community must needs9(8)sic be involved therein, elders and commoners alike. Nor on these momentous occasions are the ancestral spirits forgotten. With a severance of the link between one chief and the stool accomplished, the stool gods must be propitiated and their blessings invoked on the community in general and on the departing royals in particular. Hence the need for the acceptance of the local elders and kingmakers, who afterall, make and unmake chiefs; and also the need for the performance of the relevant rituals.”

The constitutional importance of the tenure of chiefly office was practically demonstrated by the Boampong case (supra) where the elders and kingmakers successfully rejected the alleged abdication of the Konongohene. Again in Ababio v Tutu [1962] 1 GLR 489, SC (an Ashanti case), the Assacherehene’s intention to abdicate was disallowed by his elders and as a result he continued in office for the period stipulated by them. Even the summary removal of a stool farm caretaker was deprecated by Apaloo J (as he then was) in Ahmad v Afriyie [1963] 2 GLR 344 at 347-348 in the following words: “Although on his own showing the plaintiff was lawfully in possession of the farm as the stool’s caretaker, the Konongohene did not adopt any method approaching anything like constitutionality in removing him. He merely went to the farm with a number of labourers and removed the cocoa which was then drying on a mat and when the plaintiff complained, he gave him in custody to the Antoakrom Police on a charge of threatening.”

The main thrust of the judgment of Ollennu J (as he then was) in Karney v Onanka (supra) is also to the effect that vacation of a traditional office is not to be taken as lightly effected.

[p.335] of [1997-98] 1 GLR 300

The approach to customary constitutional matters therefore should differ substantially from the more relaxed treatment of compliance with customary rules involving the performance of rituals which are sometimes held to be only for evidentiary purposes because customary law knows no writing, such as the performance of guaha or trama, see for example Adjowei v Yiadom III [1973] 2 GLR 90, CA. In this case there is plenitude of acknowledgment on the record, as I have tried to demonstrate, that the essentials of customary abdication in Ningo tally substantially with those of the Akan custom on the matter as enunciated in the Boampong case (supra). But the evidence in proof of compliance with them suffers from a severe drought, even though in a civil respect. For example, there was unilateral action on the part of the stool father in purporting to accept the renunciation of office by the first respondent, Nene Osroagbo Djangmah II. The casual handling of the need to comply with the essentials of abdication is portrayed by the answer of the appellant, Tetteh Huago as follows:

“Q You have stated that it was after the abdication of the first respondent that you were installed Ningo Mantse?

A Yes.

Q Did you ask the kingmakers before they installed you whether they had done whatever had to be done in respect of the abdication of the first respondent?

A No, I did not.”

It was contended by the appellants’ counsel that the existence of two houses and therefore two sets of elders and kingmakers in Ningo makes the application of the principles of abdication enunciated in the Boampong case (supra) somewhat inappropriate to the Ningo situation. The problem posed by counsel has not manifested itself on the record and certainly not, for example, from the answers of the first respondent himself which I have just quoted. The record rather shows that though there are two royal houses in Ningo, the procedures for nomination, installation or removal of the Ningo chief are not a problem. Thus the existence of these separate authorities did not offer a problem when destoolment procedures were pursued against Tei Djangmah, or Nene Aguda III as reported in Ameoda v Pordier (supra).

[p.336] of [1997-98] 1 GLR 300

I would, however, not hold that abandonment of office by a Ningo chief is not an act of renunciation, which can lead to abdication if that process is properly pursued. In the Boampong case (supra) at 936 several acts amounting to renunciation of chiefly office and similar to grounds for destoolment are discussed. It is there stated:

“To start with the first condition, renunciation, it may well be asked how is it accomplished—what are the modalities? It is, in our view, fulfilled by any suitable words or symbolic gesture or act traditionally recognised as effective, e.g. the chief’s voluntary removal of his sandals in public or sitting on the ground voluntarily in public . . . Additional modes of renunciation given by the judicial committee of the National House of chiefs … are (a) a letter; (b) leaving the palace unceremoniously”

But the alleged abandonment of the Ningo state by the first respondent was neither pursued by way of abdication nor destoolment.

Like in the Boampong case (supra), I would conclude by saying as Anin JSC said at 942: “We conclude that, having regard to the facts of the case and the relevant customary law discussed above, the entire transaction . . . did not constitute a valid abdication.” In the result, as Ollennu J (as he then was) said in Komey v Onanka (supra) at 53:

“So long as the substantive holder of an office has not been removed, has not resigned or abdicated or died, the office cannot be vacant, and any purported installation of another person into that office is void ab initio.”

This is the position in this case. I would also dismiss the appeal.

DECISION

Appeal dismissed.

EEA

Endnotes

1 (Popup – Footnote) 1 same in original.

2 (Popup – Footnote) 3 same in original.

3 (Popup – Footnote) 4 same in original.

4 (Popup – Footnote) 5 same in original.

5 (Popup – Footnote) 6 same in original.

6 (Popup – Footnote) 7 same in original.

7 (Popup – Footnote) 8 same in original.

8 (Popup – Footnote) 9 same in original.