NYAMEKYE vs. OPOKU [1999-2000] 2 GLR 220

CASES REFERRED TO

(1) Bisi v Kwayie [1987-88] 2 GLR 295, SC.

(2) Quartey v Central Services Co Ltd [1996-97] SCGLR 398.

(3) Ribeiro v Ribeiro (No 2) [1989-90] 2 GLR 130, SC.

(4) Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] 2 GLR 598, SC.

(5) Acquah v Apaa, [1999-2000] 2 GLR 17, SC.

(6) Republic v Numapau; Ex part Ameyaw II [1999-2000] 2 GLR 634, SC sub nom In re Effiduase Stool Affairs (No 3); Republic v Numapau, President of the National.

[p.221] of [1999-2000] 2 GLR 220

(7) House of Chiefs; Ex parte Ameyaw II (No 3) [2000] SCGLR 59.

(8) Ababio v Bekoe [1996-97] SCGLR 392.

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

(10) Akenten II v Ayeremah [1996-97] SCGLR 384.

(11) Afranie II v Quarcoo [1992] 2 GLR 561, SC.

(12) Dua V v Osei Kwame [1995] 1 GSCJ 334.

(13) Majolagbe v Larbi [1959] GLR 190.

(14) Tsrifo v Dua VIII [1959] GLR 63.

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

APPLICATION to the Supreme Court to review its majority decision, dismissing the plaintiff-applicant’s appeal from the unanimous judgment of the National House of Chiefs in a chieftaincy dispute. The facts are sufficiently set out in the ruling delivered by Edward Wiredu JSC.

James Ahenkora for the applicant.

Nutifafa Kuenyehia for respondent.

Edward Wiredu JSC. This is an application praying this court to review its judgment given on 21 July 1999, dismissing the applicant’s appeal. When rule 54 of the Supreme Court Rules, 1996 (CI 16) was enacted, it was the hope of all that having spelt out, in statutory terms, the only grounds upon which the review jurisdiction of this court may be exercised, litigants would be duly guided thereby and that the previous attempts to use the review jurisdiction as an avenue for a rehearing of lost appeals would cease or, at least, be significantly reduced. Unfortunately this does not appear to be the effect. To make matters worse, it also appears that counsel for losing parties are under the misapprehension that the reviewability of a matter is determined by numerical factors and any decision of the court which is not unanimous must be subject to review.

Illustrative of this point is the statement in the applicant’s statement of case herein that the application is for:

“. . . review of the split decision of the Supreme Court. . . by a majority of 3-2 . .. (and that in this matter) except . . . in the National House of Chief where the decision was unanimous, in all the other adjudicating bodies which have dealt with this case the decisions have been split, meaning therefore that

[p.222] of [1999-2000] 2 GLR 220 there may well be very good reasons for reviewing the majority decision of the Supreme Court . . .”

I will however reiterate, by way of a reminder, the words of Taylor JSC in Bisi v Kwayie [1987-88] 2 GLR 295 at 297, SC that: “in our system of adjudication, the majority view of a plural bench of a court represents the binding judgement of the court, even if it can be subsequently demonstrated to be vulnerable to attacks.”

By virtue of rule 54 of CI 16, what is in issue in an application for review is not a matter of head count; otherwise, why not count all the way from the trial court or tribunal up to the Supreme Court, to ascertain what should be the right decision. Rather, the only matters this court is permitted by the law to take into account in a review application are those that demonstrably show that there are: (i) exceptional circumstances which have resulted in a miscarriage of justice to the applicant; or (ii) there is some new matter or evidence that have come to light after the decision, which, with all due diligence, had not been within the applicant’s knowledge or could not have been produced by him earlier. This special jurisdiction of the court will not, cannot and must not, therefore, be exercised merely because counsel for the applicant refines his appellate statement of case, or thinks up more ingenious arguments which, he believes, might have favoured the applicant had they been so presented in the appeal hearing. An opportunity for a second bite at the cherry is not the purpose for which this court was given the power of review. In the case of Quartey v Central Services Co Ltd [1996-97] SGGLR 398 at 399 Abban CJ explained the review jurisdiction of this court in the following terms:

“A review of a judgement is a special jurisdiction and not an appellate jurisdiction conferred on the court; and the court would exercise that special jurisdiction in favour of an applicant only in exceptional circumstances. This implies that such an applicant should satisfy the court that there has been some fundamental or basic error which the court inadvertently committed in the course of considering its judgement; and which fundamental error has thereby resulted in a gross miscarriage of justice. These principles have been stated over and over again by this court. Consequently, a losing party is not entitled to use the review process to reargue his appeal

[p.223] of [1999-2000] 2 GLR 220 which had been dismissed or to use the process to prevail upon the court to have another or a second look at his case.”

Although the decision in Quartey v Central Services Co Ltd (supra), and the greater number of decisions which sought to define the principles upon which this court will exercise the review jurisdiction, predate the enactment of rule 54 of CI 16, there is no doubt that the rule itself is an encapsulation of these principles and the earlier learning still holds good in determining whether an application is one worthy of the exercise of this special jurisdiction.

Thus rule 56 of CI 16 requires the applicant’s affidavit and statement of case to set out clearly and argue fully all relevant grounds on which the applicant relies. This requirement means that rather than a mere recitation of one of the grounds stipulated in rule 54, the applicant must specify the attendant circumstances which would necessarily and prima facie, place their case for review under one of those grounds. A mere repetition of appeal arguments is, therefore, not enough. Furthermore, as was pointed out by Adade JSC in Ribeiro v Ribeiro (No 2) [1989-90] 2 GLR 130 at 143, SC: “small pinpricks here and there are not enough.”

Having closely examined the affidavit in support of the present application, as well as the two statements of case filed on behalf of the applicant, it is clear that the ground upon which we are being invited to review the decision of the ordinary bench of the court is that there are exceptional circumstances which have resulted in a miscarriage of justice.

Although there can never be an exhaustive list of what situations would constitute exceptional circumstances, a criteria suggested by Taylor JSC in Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] 2 GLR 598, SC continue to provide a useful guideline as to the classes of situations envisaged under rule 54(a) of CI 16. At 638 his lordship suggested, inter alia, as follows:

“Another circumstance is the one falling within the principle . . . so ably enunciated by that pillar of legality, Akufo-Addo CJ in Mosi v Bagyina [1963] 1 GLR 337 SC. A third circumstance comes within the class of cases which can legitimately be said to be decisions given per incuriam for failure to consider a statute or case law or fundamental principle of procedure and practice relevant to the decision and which would have resulted in a different decision. A

[p.224] of [1999-2000] 2 GLR 220 fourth class of cases must fall within the constitutional mandate . . . by which we were enjoined to depart from our previous decisions when it appears right so to do. This must be a sort of omnibus criterion covering all other cases not falling within the three classes I have itemised, for in the numerous conditions governing human relationships, it is impossible to formulate a priori propositions that will cover all cases without exception.”

See also the opinion of Kpegah JSC in Acquah v Apaa [1999-2000] 2 GLR 17, SC.

It is, therefore, incumbent upon the applicant to demonstrate that there has been some fundamental or basic error which the court inadvertently committed in the course of considering its judgement. However, this is not all; the applicant must additionally demonstrate that as a result of such fundamental or basic error, her substantial rights in the matter have been or likely to be so prejudiced that the interest of justice and good conscience dictate that we take a second look at the judgement complained of. See also the majority ruling in In re Effiduase Stool Affairs (No 3); Republic v Numapau, President of the National House of Chiefs; Ex parte Ameyaw II (No 3) [2000] SCGLR 59 as well as the earlier decisions cited therein.

The crux of the applicant’s case in support of this application, after eliminating the tedious repetition of her case on appeal, may be discerned from paragraphs (3), (4) and (11) of the affidavit in support of the application, which may be summarised as follows:

(1) The decision dismissing the appeal is entirely wrong and so out of harmony with the basic notions of clanship and customary right to stool occupancy among Akans that it amounts to a miscarriage of justice since it will make it possible for three separate clans and families, to aspire to the Krobo stool.

(2) the decision of the court is so dangerous and intolerable that it will make it impossible, in future, to decide who should occupy the Krobo stools; and

(3) by Akan customary law, a stool is created for only one family and therefore the right of occupancy is the exclusive preserve of members of that family alone.

Counsel for the applicant filed a statement of case wherein all he did was to rehash the matters that he had raised in the appeal

[p.225] of [1999-2000] 2 GLR 220 regarding the failure of the respondent’s evidence to support his case.

The supplementary statement of case subsequently filed by said counsel is in the main, merely further expatiation on old matters. Counsel’s contentions were that:

“(1) Recent acts or practices following the death of Osei Sampam (a previous occupant of the stool, kinship with whom is claimed by both the applicant and the respondent) resolve the conflicting traditions in favour of the applicant since from that time, it was members of the applicant’s family that has occupied both the male and female stools of Krobo;

(2) the majority’s reliance on the installation of SK Mainoo on the Krobo stool is misplaced since he was an Ekuona man and since the accession of Mainoo to the stool did not evoke any dispute in the course of which the tradition espoused by the respondent was invoked, challenged and adjudicated upon, the respondent cannot rely upon Mainoo’s installation to support his eligibility to this stool;

(3) since the respondent did not claim an exclusive entitlement for the Akyem Asona and the Ekuona families, the majority placed undue reliance on how Krobo was founded because this was an irrelevant issue in the case;

(4) the majority did not give due consideration to the significance of the customary name of the stool; and (5) the traditional evidence given by the respondent was unreasonable, intrinsically flawed and unacceptable; therefore any recent act which is consistent with it must be due to a freak.”

With all due respect to counsel, none of these points raise any matters that demonstrate exceptional circumstances. The matter before the ordinary bench of the court was an appeal from a decision of the National House of Chiefs. These are all points that had been covered at every stage of the litigation. Essentially, the appeal before the ordinary bench was an appeal on the facts. As such, therefore, the court’s fundamental duty was to test the conclusions of Nananom against the totality of the record and ascertain whether the evidence supported those conclusions. The

[p.226] of [1999-2000] 2 GLR 220 record amply supported the findings of fact made or confirmed by the National House of Chiefs. The most cursory look at the opinions delivered by Adjabeng, Atuguba and Sophia Akuffo, JJSC reveals quite clearly that this is the approach they applied. Not only did they consider the testimony given by the witnesses in the trial tribunal, but also they tested, in each case, the conclusions arrived at by each of the intervening appellate tribunals.

The mere fact that an appeal is by way of a rehearing does not dictate that an appellate court is bound to re-evaluate the evidence and reassign different weight to it, unless there are pressing circumstances that would justify such a course: see Ababio v Bekoe II [1996-97] SCGLR 392; Achoro Akanfela [1996-97] SCGLR 209 and Akenten II v Ayeremah [1996-97] SCGLR 384. There were no such compelling reasons in the appeal that came before the court.

The only new nuance introduced by the supplementary statement of case was the contention that, even if the respondent’s family and the Ekuona family had once been eligible to the Krobo stool after the death of Osei Sampam, the respondent’s family’s dynasty was displaced by the right acquired by the applicant’s family to occupy the stool, which right they exercised continuously up to Osei Kufour. Thus, according to counsel:

“The evidence as it stands in this case, shows ‘that the dynasty which existed up to Osei Sampam’s death was replaced by the dynasty of the applicant’s family and that unless there is strong evidence to the contrary, the right of the respondent’s family members to occupy the Krobo stool has become extant.”

One fails to appreciate how such an argument advances the application herein, nor the manner in which it demonstrates the existence of exceptional circumstances that have resulted in a miscarriage of justice to the applicant. A statement of case in support of an application for review is certainly not the appropriate occasion for rehearing such an argument. In any event, the concept of an extant dynasty is effectively debunked by the fact, as demonstrated by the evidence, that:

(a) S K Mainoo, a member of the “extant” Ekuona family, was installed as Krobohene after the abdication of Nana Osei Kufour;

[p.227] of [1999-2000] 2 GLR 220

(b) at all material times within living memory, Alhaji Kru, also a member of the latter family, functioned as the abusuapanin of the entire Krobo stool family; and

(c) the applicant’s predecessor, as obaapanin who was presumed to know her royals, accepted dwantoa from the respondent in his bid for the stool, which dwantoa was shared amongst the kingmakers (a piece of evidence which was never challenged by the applicant or any of her witnesses).

Furthermore, at all material points in the litigation, the respondent’s case was that as a member of the Akyem-Asona family of Krobo, he was eligible to the stool and had been duly nominated and elected as such. The applicant’s case was that since the foundation of Krobo, the stool had been the exclusive preserve of her Beposo-Asona family. How then can she, in an application for review, be permitted to put up such a new case?

In conclusion, although the applicant had made a valiant effort to re-argue her appeal in this application, she has woefully failed to demonstrate any exceptional circumstance, let alone one that has resulted in a substantial miscarriage of justice such as, together, would justify the granting of her application in accordance with the rules of this court. The application must, therefore, be dismissed for being entirely without any merit whatsoever.

Bamford-Addo JSC. I agree completely with the ruling just read by my noble brother Edward Wiredu JSC. Since he has covered all the various issues raised in this application, I have nothing useful to add to the said ruling.

Kpegah JSC. I agree that the application for review be disallowed as it is only a reagitation of matters earlier canvassed and rejected. The instant application is clearly subversive of the time-honoured principle that there must be an end to litigation.

Adjabeng JSC. I agree.

Atuguba JSC. I agree.

Akuffo JSC. I also agree.

Ampiah JSC. On 21 July 1999, this court gave judgment in an appeal brought before it from the National House of Chiefs. The instant application is for a review of the court’s judgment. The

[p.228] of [1999-2000] 2 GLR 220 thrust of the applicant’s submission is that the judgment was given without regard for established principles of customary law and practice and that this failure has occasioned a substantial miscarriage of justice in that it has deprived her family of the exclusive succession to the Krobo stool. The respondent however maintains that the judgment was sound and impeccable and that no good grounds have been shown for disturbing it. He contends further that the present application is only an attempt to have the appeal re-argued.

This application is brought under rule 54 of the Supreme Court Rules, 1996 (CI 16) which provides:

“54. The Court may review any decision made or given by it on any of the following grounds—

(a) exceptional circumstances which have resulted in miscarriage of justice;

(b) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decision was given.”

This court has held that a review of a judgment is a special jurisdiction and not an appellate jurisdiction conferred on the court and the court would exercise that special jurisdiction in favour of an applicant only in exceptional circumstances: see Quartey v Central Services Co Ltd [1996-97] SCGLR 398 at 399, per Abban CJ. In Afranie II v Quarcoo [1992] 2 GLR 561, SC, the Supreme Court held, as stated in the headnote, in holding (2) that:

“Under the law the only ground for the review of a decision of the Supreme Court was that the circumstances were exceptional and that in the interest of justice there should be a review. Although what exactly constituted exceptional circumstances had not been spelt out, on the authorities the court had found exceptional circumstances where (a) the circumstances were of a nature as to convince the court that the judgment should be reversed in the interest of justice and indicated clearly that there had been a miscarriage of justice; or (b) the demands of justice made the exercise extremely necessary to avoid irremediable harm to the applicant; or (c) a fundamental and basic error might have been committed by the court resulting in a grave miscarriage of justice; or (d) a

[p.229] of [1999-2000] 2 GLR 220 decision had been given per incuriam for failure to consider a statute or a binding case law or a fundamental principle of practice and procedure relevant to the decision and which would have resulted in a difference decision; or (e) the applicant had sought for a specific relief which materially affected the appeal and had argued grounds in support but the appellate court had failed or neglected to make a decision on it.”

As stated earlier, the applicant’s contention has been that the judgment was given without regard for the established principles of customary law and practice. In its assessment of the evidence, the National House of Chiefs stated: “The issues have been mainly on custom, and resolved on customary evidence. . .” In Dua v Osei Kwame [1995] 1 GSCJ 334 at 338, Adade, JSC observed that: “The institution of chieftaincy is itself a traditional institution, and constitutes the social and political foundation of the particular community. Thus when a chieftaincy dispute arises, it is always essential that, at least for the sake of stability within the community, a solution is sought which is anchored firmly in the traditions of that stool, and which respects those traditions. A solution which flies in the face of the tradition and is seen glaringly to contradict it, is not likely to be acceptable to the community, and creates a recipe for dissatisfaction, disaffection and dissensions, and, at least provocation, civil strife and conflicts. Thus in all these cases every effort must be made to ascertain what the tradition of the stool is. Where the parties broadly agree on the tradition, this must form the decision of the court. Where they do not agree, as where the traditional accounts are widely and wildly divergent, or where the traditional history is lost in the murky corridors of time, then recourse may be had to practices within relatively recent times to determine what the tradition probably is.”

As stated later in this opinion, all the traditional tribunals which have had anything to do with this matter, agree that the issues involved are mainly customary. It is therefore necessary that for the sake of stability within the community concerned, a solution be sought which is anchored firmly in the traditions of that stool

[p.230] of [1999-2000] 2 GLR 220 and which respects these traditions. As observed by Adade JSC in Dua v Osei Kwame (supra): “A solution which flies in the face of the tradition and is seen glaringly to contradict it, is not likely to be acceptable to the community and creates a recipe for dissatisfaction, disaffection and dissensions, and, at the least provocation, civil strife and conflicts.”

Some of the pertinent customary issues which arose in this case for determination were: (1) Who first settled at Krobo?

(2) Who was the first odikro?

(3) Could the Adesinahene create an odikro stool equal to his own stool and on his (Adesinahene) overlord’s (Antoahene) land with or without his overlord’s knowledge and consent?

(4) Who customarily was entitled to create a stool for a stranger, the landowner and the overlord chief or the caretaker of the land and the subchief of the overlord chief?

(5) What was the name of the stool created for the Krobos?

(6) What was the custom concerning the naming of a newly created stool?

(7) How many black stools were in the stool room of the Krobos? How many belonged to each claimant? How is this proved?

(8) How many queen mothers had the stool had?

(9) Could the stool be created for two different families; would that be a patrilineal stool, or matrilineal stool?

(10) The Krobo odikro who created the Krobo Benkum stool was he an Asona? If so, is he from the plaintiff’s Asona or from the defendant’s Asona?

(11) The Benkum stool which was created, was it for the joint families or exclusively for the Asona section?

The Kumasi Traditional Council by a majority of two to one upheld the claim by the defendant and dismissed the plaintiff’s claim. The Ashanti Regional House of Chiefs by a majority of two to one allowed an appeal filed by the plaintiff, thus accepting her claim. The National House of Chiefs, however, allowed the defendant’s subsequent appeal and restored the decision of the

[p.231] of [1999-2000] 2 GLR 220 traditional council. It is worth noting that both the traditional council and the Ashanti Regional House of Chiefs were chieftaincy institutions constituted by persons who themselves are Ashantis from the community where the customary law and practices involved in the matter are practised. As to what the custom is, the Ashanti Regional House of Chiefs disagreed with the Kumasi Traditional Council. The National House of Chiefs was therefore called upon to settle the custom if it could. The Supreme Court had the chance to settle the issue finally.

As stated before, it is not the purpose of a review application to evaluate the evidence all over again; but, where in a situation the conclusions arrived at on the evidence fly in the face of the established custom, it becomes the duty of the court to review the evidence so as to avoid miscarriage of justice. The matter must not be left to rest in surmise, conjecture or guess work.

Section 55(1) of the Courts Act, 1993 (Act 459) provides: “Any question as to existence or content of a rule of customary law is a question of law for the court and not a question of fact.” This provision enjoins a court seised with proceedings in which the existence or content of a rule of customary law falls to be ascertained, to adjourn the proceedings if in doubt, to enable it inquire into the matter by calling for testimony of witnesses and further submissions from the parties; and, if necessary, to request a house of chiefs, a divisional or traditional council or other body with knowledge of the customary law in question to state its opinion which may be laid before the inquiry in written form: see section 55(2), (3), (4) and (5) of Act 459.

In the instant matter, there was need to ascertain the customary law and practice applicable to the particular community. This was necessary since the lower tribunals which were supposed to be conversant with the applicable customary law and practices could not agree, even though the restatement of the custom by the higher tribunal, ie the Ashanti Regional House of Chiefs was expected to have carried more weight. Having set down the opinions and reasons of the lower tribunals in support of their conclusions, the National House of Chiefs concluded:

“We have listened to both counsel and their submissions. We find that all the submissions were on elaboration of the evidence and the arguments already made at the lower courts

[p.232] of [1999-2000] 2 GLR 220 and we need not repeat them but only consider their weight and refer to them when necessary.”

It then proceeded to evaluate the evidence thus: “Judging from custom, reasons and the sequence of events we find that the evidence on migration of the appellant is more reasonably probable than that of the respondent.”

Judging from what custom, one may ask? As stated clearly by the tribunals, the issues involved in this case were the determination of the relevant customary law and practices pertaining to this particular community. It has been the complaint of the applicant that the judgment was given without regard for the established principles of customary law and practices.

There was clear evidence from the Antoahene as to how the Beposo Asona group had settled on the land and how he had created a stool for them. The question as to whether or not being Ashantis, the Beposo Asonas could have migrated to another part of Ashanti, was of no consequence as it is undeniable that whether they migrated against custom or not their claim to the Krobo stool has been admitted by their opponents. And, they have been elevated to the Akwamu status which significantly they claimed to have occupied when they were at Beposo. Was it for no reason or purpose that they were raised to that status?

The National House of Chiefs had accepted the version of the defendant with regard to the settlement on the land and had reasoned thus: “The appellant’s version of migration having been accepted, it follows that they arrived earlier than the respondent.” It continued: “It follows that the appellants might have settle before the arrival of the respondents.” (The emphasis is mine.) Despite accepting the version of the defendant, the National House of Chiefs was not certain that the position was so! There was no doubt that the land on which the plaintiff’s family settled belonged to the Antoahene. It was he who ordered his Krontihene, the first plaintiff witness, to settle the plaintiff’s family on the land. The Adesinahene was a “caretaker” of the land for the Antoahene and if he (the Adesinahene) had earlier settled some strangers on the land, it was a customary requirement that his overlord (the Antoahene) should be informed. There was no evidence to that effect.

The majority of the regional house of chiefs was of the view that the evidence that the Adesinahene created the Krobo stool

[p.233] of [1999-2000] 2 GLR 220 was contrary to custom. To it, the evidence of the Antoahene was to be accorded credibility and reliance on the founding and creation of the said stool, as the overlord of both Adesina and Krobo. It observed: “This view is based on the fact that in Akan custom the occupant of the Odikro stool cannot create an Odikro stool.” Reliance on E E Obeng’s statement in his book Ancient Ashanti Chietaincy and Warrington’s Notes was very dangerous. How authoritative were these authors? With the direct evidence of the Antoahene, the overlord, it is very difficult to accept these non-authoritative statements. In any case, the issue of migration, namely whether an Ashanti could move from one part of Ashanti to another changing his allegiance, could not have disqualified the plaintiff’s family from ascending the Krobo stool. It was therefore irrelevant to the determination of who owned the Krobo Stool. Since the defendant’s family conceded that the plaintiffs family was entitled to ascend the stool, the proper issue which arose was whether the defendant’s family, and for that matter the other Asona family from Adesina, were also entitled to ascend the stool. The onus was on the defendant. There was no evidence that the Adesinahene allegedly created the Krobo Stool when he was elevated to the status of Nifahene of Antoa. Krobo itself was elevated to the status of Akwamuhene of Antoa, a position higher than that of Adesinahene who claimed to have created the Krobo stool. As the situation stood at the time of the settlement of Krobo, customarily, Adesinahene could not have created a stool equal to his. This is the decision arrived at by the Regional House of Chiefs and which decision accorded with custom. It was therefore necessary for this court, ie the Supreme Court, to re-examine the evidence critically. This the court failed to do.

The majority of the court also accepted without proof that the defendant’s family and the other Asona family had their ancestors’ stools kept in the stool room. That the plaintiff’s family had their ancestors’ stools in the stool room was not challenged. The plaintiff however challenged the assertion by the defendant. It was therefore necessary that some evidence capable of proof be established. The stools in the stool room could have been inspected and counted in accordance with custom. In Majolagbe v Larbi [1959] GLR 190 at 192, the court (per Ollennu J (as he then was)) stated the principle of law regarding such proof thus:

[p.234] of [1999-2000] 2 GLR 220

“Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.”

Also, the plaintiff had said the name of her stool was Bensua (a corrupted version of Obeng Asua) named after her first ancestor. This was admitted by the defendant. The Regional House of Chiefs held this to be the established custom. The traditional council thought it was possible to have a “different name” other than the founding ancestor. The National House of Chiefs only accepted the finding by the traditional council without assigning any tangible reason for the preference. It said: “It is sometime named after somebody who, not being a founder or first occupant, but who after its creation, performs some powers to enhance the dignity and prestige of the stool.” Was there any such evidence? The National House of Chiefs was trying to find a reason for the defendant giving the stool the same name as the plaintiff. It found it difficult to agree with the Ashanti Regional House of Chiefs’ restatement of the custom. It said: “We will not agree that it is a hard and fast rule that a stool is named only after the founder or first occupant. We would say that is a rebuttable presumption.” And was it rebutted? In the absence of any such evidence, the custom as proven to exist must prevail.

The tribunals, ie the judicial committees of the National House of Chiefs and the Kumasi Traditional Council also flouted the established principle of law that where the evidence of a party supports the opponent’s, then the opponent’s evidence must be accepted. The force of corroborative evidence from an opponent has long been enshrined in cases like Tsrifo v Duah VIII [1959] GLR 63. As stated above, without positive proof that the defendant’s family had three of its stools in the stool room, the National House of Chiefs concluded that:

“All these aside, there is the uncontroverted claim by the appellant that that he has three stools of their ancestors among the stools of Krobo stools belonging to Asonas of Akyem

[p.235] of [1999-2000] 2 GLR 220 origin and Ekuona. This fact, in the absence of any evidence that that stool was created specifically for patrilineal descent, goes to buttress the fact that both Asona and Ekuona can ascend the Krobo Stool from maternal line and still supports the version of the appellant.”

This conclusion could not support the conjectured customary law and practice. In the first place, that evidence was challenged. There was also positive evidence that the stool was created for the Beposo Asona family. Thus, while the traditional council and the National House of Chiefs were surmising as to what the custom could be, the Regional House of Chiefs was positive on the custom. It stated in no uncertain terms:

“That in Akan custom succession to stools is invariably matrilineal barring a few exceptions. In that regard granting that the respondent’s version that the Krobo stool was created for the two friends, if true, the stool ought to have been a patrilineal rather than matrilineal as it obtains now.”

There is therefore evidence of exceptional circumstances. This court only accepted the judgment of the National House of Chiefs without critically examining the evidence as to the custom.

Yet still, even though the plaintiffs family is said to have been accepted into the Akim families (Asona and Ekuona) through Adoma or Animaa later, of the eight chiefs who, according to the defendant, had ascended the stool, four of them are admitted to have come from the plaintiff’s family. The plaintiff’s family however denied that any member of the Akim families had ever ascended the stool; it claimed that all the six chiefs who had ascended the stool came from the plaintiff’s family. Again, out of the five women who were alleged to have become queen mothers, three were from the plaintiff’s family. From which family was Osei Sampam? The evidence showed that even though he was an Asona, he was of the plaintiff’s Asona family. Thus, from Nana Obeng Sua whose name was given to the stool, all the subsequent occupants of the stool had come from the plaintiff’s family.

In its assessment or evaluation of the evidence, the National House of Chiefs came to the conclusion that: “The only points in favour of respondents are the custom raised by Ashanti Regional House of Chiefs and we hold the view that the naming of the stool could be due to factors other [p.236] of [1999-2000] 2 GLR 220 than the fact that it was named after the one who founded it or its first occupant. The evidence yields itself to this conclusion and we find it so.”

What evidence yields itself to this conclusion? This was a most unsatisfactory way of concluding on a custom which affects a particular community. The National House of Chiefs refused to accept the plaintiff’s evidence on mere discrepancies and contradictions which appeared in the evidence of the first and second plaintiff witnesses on the historical aspect of the case. But, as observed by Lord Denning in Adjeibi-Kojo v Bonsie (1957) 3 WALR 257 at 260, once traditional history is handed down by word or mouth, it must:

“. . . .be recognised that, in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred years or more ago.”

A court therefore should not simply reject a party’s traditional evidence on such petty and trifling matters.

Unfortunately the majority of the Supreme Court, with respect, failed to look critically at the customary, law and practice propounded by the lower tribunals. It also dwelt on the alleged conflicts and discrepancies found by the lower tribunals as a basis for accepting the decision of the National House of Chiefs. It also failed to apply the established legal principles laid down for the evaluation of the evidence. As it is, it left the determination of the customary law and practices applicable to the community concerned unresolved and thus imposed on them an alien custom. By so doing, grave miscarriage of justice was occasioned. I would in the circumstances grant the application and review the judgment.

Application dismissed.

SA