[2026] SLR (SC) 94Supreme Court - Ghana2026 SC - GHANA

SHAIBU JEBUNI & ORS vs. SANJIE MWINIBANKURO & ANOR

4 November 2026 · AMADU JSC · ≈ 38 min read

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OSCOLASHAIBU JEBUNI & ORS v SANJIE MWINIBANKURO & ANOR [2026] SLR (SC) 94

APASHAIBU JEBUNI & ORS v SANJIE MWINIBANKURO & ANOR, [2026] SLR (SC) 94 (Ghana).

BluebookSHAIBU JEBUNI & ORS v SANJIE MWINIBANKURO & ANOR, [2026] SLR (SC) 94 (Ghana Sup. Ct. 2026).

Linkhttps://superlawgh.com/slr/2026/sc/94/

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IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D.2026

CORAM: AMADU JSC (PRESIDING)

ASIEDU JSC

GAEWU JSC

KWOFIE JSC

BARTELS-KODWO (MRS.) JSC

CHIEFTAINCY APPEAL

NO. J2/01/2026

4TH NOVEMBER, 2026

SHAIBU JEBUNI PETITIONERS/RESPONDENTS/

APPELLANTS

YAHAYA WITTOL

PUTIEHA JOHN PADINGU ……… CO-PETITIONER/RESPONDENT/

RESPONDENT

VRS

1. SANJIE MWINIBANKURO ……..… 1ST RESPONDENT

(SUBST. BY ALHAJI CHAANG)

2. NAA SHAIBU MWINIBANKURO .…….… 2ND RESPONDENT/APPELLANT

JUDGMENT

TANKO AMADU JSC:

Introduction

My Lords, the Kaleo Naalung (Imola) Paramount Skin of the Kaleo Traditional Area in the Upper West Region has stood vacant since the demise of the late Naa Banangwini Sandu II. The contest to fill it has engaged the Judicial Committee of the Upper West Regional House of Chiefs, the Judicial Committee of the National House of Chiefs, and now this Court over the better part of a decade. That circumstance alone would commend expedition. It does not, however, relieve any adjudicating body of the obligation to keep within the limits of its authority.

The Petitioners do not impugn the judgment of the Judicial Committee of the National House of Chiefs dated 29th September 2022 in its entirety. Indeed, they are content with the greater part of it. Their complaint is directed at a single passage. The declaration by which the National House, having dismissed the only appeal that was before it, nevertheless varied the judgment of the trial Committee so as to declare that it is the turn of the Nyagayiri sub-gate within the Nayipaala Gate to provide the candidate for the vacant Skin.

This narrow complaint raises a question of general importance to the administration of justice in the Houses of Chiefs, and beyond them: whether an appellate Judicial Committee may grant to a Respondent before it, a relief which the trial Committee refused him, where that Respondent has neither appealed nor cross-appealed against the refusal. The Co-Petitioner answers that the National House is armed by statute with power to confirm, reverse or vary the decision appealed against, and that, the power is unqualified. The Petitioners answer that a power to vary the decision appealed against is not a power to entertain and determine a claim which nobody has brought on appeal.

A second question follows upon the first. Assuming the power to have existed, was the National House entitled to reverse the trial Committee’s primary finding as to the manner in which succession rotates within the Nayipaala Gate; a finding which the National House had, in the same judgment, pronounced to be amply supported by the evidence?

The parties and the customary setting

Succession to the Kaleo Paramount Skin alternates between two royal gates: the Nayikori Gate and the Nayipaala Gate, also referred to as the Nayipani Gate. That much has never been in issue between anybody.

The late Naa Banangwini Sandu II hailed from the Nayikori Gate. Upon his demise the mantle of nomination fell, in the ordinary course of the alternation, upon the Nayipaala Gate. That too is common ground.

All the parties to this litigation are members of the Nayipaala Gate. The dispute is therefore an internal one, a contest within a single gate as to which of its constituent families is entitled to present the candidate, and by what principle that entitlement falls to be determined.

The 1st Petitioner, Shaibu Jebuni, hails from the Mwaanjaari family. The 2nd Petitioner, Yahaya Wittol, hails from the Nazieyiri family. The Co-Petitioner, Putieha John Badingu, hails from the Nyagayiri family. The 1st Respondent, Sanjie Mwinibankuro, since substituted by Alhaji Chaang, is the Nabikpeng or head prince, and hails from Bayauyiri. The 2nd Respondent, Naa Shaibu Mwinibankoro, who was substituted for one Naa Seidu Batuole, likewise hails from Bayauyiri.

Three competing accounts of the custom were placed before the trial Committee. The Respondents contended that there is no rotation within the Nayipaala Gate at all, and that any individual member of any of its constituent families may contest the Skin in his own right. The Petitioners contended that the Gate is composed into two unit: Bayauyiri/Goriyiri on the one hand and Mwaanjaari/Nazieyiri on the other between which the Skin alternates, so that a family whose unit-partner has ascended is deemed itself to have ascended. The Co-Petitioner contended that, the Gate comprises five families and that the Skin rotates among all five individually, whence it followed that, it was now the turn of his Nyagayiri family.

The immediate occasion of the litigation was the conduct of the Nabikpeng. He opened nominations to all individual members of the Nayipaala Gate. The sectional heads objected, insisting that the family whose turn it was must first be determined. The Nabikpeng declined to alter his course. The other sections withheld their participation; and at the close of the period appointed for nominations the Nabikpeng declared Naa Seidu Batuole, who is his own son, the sole candidate and Kaleo Naa-elect. It was that declaration which precipitated the petition.

The customs and usages of the Kaleo Naalung are codified in the Declaration of Customary Law (Kaleo) Traditional Council Instrument, 2010 (L.I. 1980). Every party accepted its application. Their disagreement was as to what the custom underlying it, require.

The proceedings before the Judicial Committee of the Upper West Regional House of Chiefs

By an amended petition filed on 6th September 2017, at pages 164 to 169 of Volume 1 of the Record of Appeal, the Petitioners claimed against the 1st and 2nd Respondents the following reliefs:

A declaration that it is the Council of Elders of Kaleo that are the sole kingmakers of the Kaleo Paramount Skin with the capacity to unanimously nominate the next royal gate to select a candidate or candidates to occupy the vacant Kaleo Skin;

A declaration that the purported nomination of the 2nd Respondent by the 1st Respondent as the candidate for the Kaleo Paramount Skin is null and void;

A declaration that it is the turn of the Mwaanjaari/Nazieyiri gate to provide a candidate for enskinment as Kaleo Naa;

A declaration that under the customs and traditions of Kaleo the Council of Elders is the rightful body with capacity to nominate the next royal gate, and not any one individual member of that Council;

An order of injunction restraining the 1st Respondent from nominating any individual person as Kaleo Naa; and

An order of injunction restraining the 2nd Respondent from styling or holding himself out as the Kaleo Naa.

The Petitioners had originally listed the Co-Petitioner as one of their witnesses. Upon becoming aware of that fact, he applied to be joined in his own right and was, on 17th June 2016, joined as Co-Petitioner. By his petition at pages 84 to 87 of Volume 1 he claimed:

A declaration that it is the turn of the Nyagayiri section of the Nayipaala Gate to provide a candidate for ascension to the Kaleo Skin;

A declaration that the Council of Elders has no power or authority to decide on a different section of the Nayipaala Gate other than Nyagayiri whose turn it is to provide a candidate;

A declaration that it is only the section within the Nayipaala whose turn it is to provide a candidate that decides the person to be chief of Kaleo;

A declaration that any purported nomination or enskinment of the 2nd Respondent by the 1st Respondent is null and void; and

An order of perpetual injunction restraining the 2nd Respondent from styling or holding himself out as Kaleo Naa.

On 25th September 2017, the 1st and 2nd Respondents answered and cross-petitioned for a declaration that the 2nd Respondent had been validly nominated and elected as Kaleo Naa-elect in accordance with custom as codified in L.I. 1980, together with injunctive relief and damages.

The trial Committee heard the petition to a conclusion. It dismissed the Petitioners’ relief (a) and granted their reliefs (b), (c), (d) and (e) as well as dismissed the Co-Petitioner’s reliefs (a), (b) and (c) and granted his reliefs (d) and (e). It then dismissed the Respondents’ cross-petition in its entirety.

Two passages in that judgment are central to this appeal. The first records the Committee’s principal finding upon the mode of presentation and the mode of rotation. At pages 470 to 471 (Vol. 1 of the record) the Committee said:

“We have quoted the Respondent’s own evidence at length to show that the evidence of the Petitioners and Co-Petitioner not only show that their version that sub-gate/families present candidates and not individuals present themselves, on the balance of probabilities, is not only more probable, but that the evidence is corroborated to the hilt by the Respondents themselves. Therefore we find and hold that in the contest to ascend the Kaleo skin, sub-gates/families present candidates and individuals don’t present themselves. We therefore make a declaration that it is the turn of Mwanjaari/Nazieyiri/Nyagayiri family to provide a candidate to the vacant Kaleo skin.”

The second records the Committee’s disposal of the Co-Petitioner’s particular claim. At page 472 (of Vol.1 of the record) the Committee said:

“As we have indicated in this judgment the Co-petitioner did not adduce sufficient evidence to convince us it is the turn of Nyagayiri to provide a candidate for the vacant skin and we are therefore unable to grant relief (a) sought by the Co-petitioner, for the same reason we are unable to grant relief (b). In view of our finding that the skin alternates between Bayauyiri/Goriyiri and the Mwanjaari/Nazieyiri/Nyagayiri we are also unable to grant relief (c) sought by the Co-Petitioner.”

The Committee also found, at page 465 of the same record, in the Co-Petitioner’s favour that, his Nyagayiri family is one of the families that, ascend the Kaleo Skin. That finding of eligibility has never been disturbed and is not in issue before us. What the Committee declined to find was that, the rotation operates among the five families individually, and that it was Nyagayiri’s turn.

The appeal to the Judicial Committee of the National House of Chiefs

Only one party appealed to that forum. By notice filed on 22nd April 2020, the 2nd Respondent, Naa Shaibu Mwinibankoro, appealed upon four grounds that the judgment was against the weight of evidence; that it failed to bring finality to the dispute. That, it was rendered per incuriam; and further that, the trial Committee had erred in reconstituting itself during the hearing.

Neither the Petitioners nor the Co-Petitioner appealed. Neither filed a notice of cross-appeal. The Co-Petitioner, in particular, allowed the refusal of his reliefs (a), (b) and (c) to pass entirely unchallenged.

Written submissions were filed by the Appellant on 22nd September 2020 (pages 487 to 513 of Vol.1 of the record) by the Co-Petitioner on 13th October 2020 (pages 514 to 530), and by the Petitioners on 15th December 2020 (pages 531 to 553). In his submissions the Co-Petitioner, though he had not appealed, invited the National House to vary the judgment of the trial Committee and to declare his Nyagayiri family the next in line. The Petitioners for their part reargued their contention as to eligibility.

The judgment of the National House was delivered on 29th September 2022. The Judicial of the National House Committee first pronounced upon the appeal actually before it in these terms:

“In the light of the foregoing and on the totality of the evidence on the record, it is our considered view that the conclusions and/or the decision arrived at by the trial Committee are borne out of the evidence adduced by the parties and their respective witnesses. We therefore hold that the trial Committee’s judgment is amply supported by the evidence adduced at the trial and cannot be said to be against the weight of evidence as alleged by the Appellant.”

Having so held, and accordingly dismissed the 2nd Respondent’s appeal, the Committee proceeded to make findings of its own. It found that the Nayipaala Gate has five sub-gates. That the dispute lies between those five and that, there is a system of rotation. Further that, all of them have had their turns save Nyagayiri. It then concluded in the following words:

“Consequently, we find as a fact that it is the turn of the Nyagayiri sub-gate or family/section of or within the Nayipani gate to provide the candidate for occupation as Paramount Chief for the vacant Kaleo Naalung (Imola) Paramount Skin … This Committee therefore agrees with learned Counsel for the Co-Petitioner when he argued that the evidence on record is clear that Nyagayiri is the rightful section that ought to have been pronounced as the next sub-gate/section/family to ascend the skin within Nayipaala in order to bring finality to the dispute. It is on this basis that we have found and accordingly hold that the Co-Petitioner’s Nyagayiri sub gate or family/section of the Nayipani as a matter of urgency be given the turn … in fairness and in the interest of justice.”

The formal declaration which followed was expressed thus:

“We accordingly hold and/or declare that the rotatory system or principle of succession to the Kaleo Paramount Skin, within and relative to the Nayipani Gate, having been established and hereby so declared and/or affirmed to include the Nyagayiri and to have its turn now, and thereafter shall be followed in accordance with due process particularly relative to the customs, traditions, practices and usages of the Kaleo Naalung (Imola) Paramount Skin in the Kaleo Traditional Area as codified the Declaration of Customary Law (Kaleo) Traditional Council Instrument, 2010 L.I 1980.”

The appeal to this Court

The Petitioners applied for and, on 23rd July 2025, obtained the leave of this Court to appeal against that part of the judgment. Their notice of appeal was filed on 25th July 2025 upon the following grounds:

The Judicial Committee of the National House of Chiefs was wrong when it held that it was the turn of the Nyagayiri sub-gate to provide the candidate for occupation as Paramount Chief of the Kaleo Naalung (Imola) Paramount Skin of the Kaleo Traditional Area.

The Judicial Committee of the National House of Chiefs was wrong when it granted the reliefs of the Co-Petitioner/ Respondent/Respondent even though those reliefs had been refused by the Judicial Committee of the Upper West Regional House of Chiefs and no appeal was brought against their dismissal. Particulars of error: granting the relief of the Co-Petitioner/Respondent when there was no appeal against same.

The Judicial Committee of the National House of Chiefs erred when it failed to hold that the rotational system of succession to the Kaleo Naalung (Imola) Paramount Skin relative to the Nayipani Gate was between the Bayauyiri/Goriyiri sub-gate and the Nazieyiri/Mwaanjaari/Nyagayiri, and not among the individual sub-gates. Particulars of error: holding that the rotational system was among the individual sub-gates.

The judgment is against the weight of evidence on record.

The issues for determination

The present appeal presents three questions:

Whether the Judicial Committee of the National House of Chiefs had jurisdiction to vary the judgment of the trial Committee so as to grant to the Co-Petitioner the substance of reliefs which that Committee had refused him and against the refusal of which he had neither appealed nor cross-appealed;

Whether, if it had such jurisdiction, it exercised it consistently with the requirements of natural justice; and

Whether, in any event, the substituted finding that the rotation operates among the five individual sub-gates, and that it is now the turn of Nyagayiri, is supportable upon the evidence on the record.

Like the Petitioners, we begin with ground (b), which corresponds to the first question. If it succeeds it is dispositive. We shall nonetheless address the remaining grounds, because they were fully argued, and because the parties are entitled to know the view of this Court upon the substance of a dispute which has already consumed a great many years in the adjudication process.

Ground (b): the grant of relief to a respondent who did not appeal

THE UNAPPEALED REFUSAL AND ITS LEGAL CONSEQUENCE

The starting point is not in dispute. The trial Committee refused the Co-Petitioner’s reliefs (a), (b) and (c). The Committee was of the view that, he had not adduced sufficient evidence to convince the Committee that it was the turn of Nyagayiri. From that refusal, the Co-Petitioner did not appeal. When, some time later, the 2nd Respondent lodged his own appeal, the Co-Petitioner did not cross-appeal. He took neither course within the time limited by law, nor at all. The consequences of that inaction are, in our judgment, decisive of this appeal.

A right of appeal is a creature of statute. This Court has said so many times. There is no inherent right of appeal in a litigant, and no inherent power in any tribunal to hear appeals. In NYE VS. NYE [1967] GLR 76 at 82-83, Akufo-Addo C.J. put the matter beyond argument:

“It must be appreciated that there is no inherent right of appeal in a litigant; nor indeed is there an inherent power in any court to hear appeals. Both the right and the power are creatures of statute, and unless the enactment creating the right of appeal and the power to hear an appeal is explicit, clear and unambiguous in its language, no such right and no such power can ever materialise. When however the right and the power do materialise they are exercisable only within the framework of the conditions imposed for their exercise.”

The same principle was restated by Marful-Sau JSC, of blessed memory, in TORBENU & OTHERS VS. DUGBAZA VIII [2017-2018] SCGLR 801 at 804, where his Lordship observed that a party who intends to invoke the appellate jurisdiction of a court must strictly comply with the law which grants him the right of appeal.

The statutory framework here is the Chieftaincy Act, 2008 (Act 759) and the National and Regional Houses of Chiefs (Procedure) Rules, 1972 (C.I.27). Section 33(1) of Act 759 requires an appeal to the National House against a judgment of a Regional House to be lodged within thirty days of delivery, subject to extension for a further period not exceeding thirty days. Rule 14 of C.I. 27 prescribes the structure and contents of the notice of appeal, requiring among other things that it state the grounds relied upon, whether the whole or part only of the decision is complained of, and the nature of the relief sought. And Rule 18 provides:

“A Respondent may give notice by way of cross-appeal and the provisions of Rules 14 and 15 shall, mutatis mutandis, apply to such notice of appeal.”

The Co-Petitioner invoked neither Section 33(1) nor Rule 18. It follows that upon the expiry of the period limited by law, the refusal of his reliefs (a), (b) and (c) ceased to be a matter in controversy between him and his co-parties. It became, as between them, a final adjudication which bound them and which no tribunal could disturb save upon an appeal duly brought. The Petitioners thereafter stood possessed of a right, and it is the right to hold the Co-Petitioner to a determination he had chosen not to challenge. That is no technicality. It is the substance of what it means for litigation to come to an end. Section 23(2) of Act 759 so empowers, and the occasion of their exercise;

Against this, the Co-Petitioner’s answer rests entirely upon Section 23(2) of Act 759, which provides:

“Upon an appeal, the National House may confirm, reverse or vary the decision appealed against or remit the matter or a part of that matter for reconsideration by the Regional House from whose decision the appeal is brought, subject to the conditions or directions that the National House may consider necessary.”

Learned Counsel for the Respondents submits that, this jurisdiction is clear and unqualified, and that it operates irrespective of the effect of the variation, including where the effect is to grant a relief not sought in the appeal. Our jurisprudence, he says, permits an appellate body to review the entire record, reach its own conclusions, and make such orders as meet the justice of the case. We are unable to accept that submission, for reasons which we take in turn.

First, the opening words of the subsection, “Upon an appeal”, are words of occasion and of limitation. They are not words of enlargement. They tell us when the powers conferred by the subsection may be exercised: upon an appeal, and not otherwise. A provision which conditions the exercise of a power upon the existence of an appeal cannot sensibly be read as dispensing with the need for an appeal in respect of the very matter upon which the power is exercised.

Secondly, the object upon which the powers operate is identified with equal precision: “the decision appealed against.” Where, as Rule 14(1)(c) of C.I. 27 expressly contemplates, an appeal is brought against part only of a decision, the powers of the National House are correspondingly confined to that part. The statute does not empower the House to confirm, reverse or vary a decision, or a part of a decision, which nobody has appealed against.

Thirdly, and fundamentally, Section 23(2) is a provision about remedies, not about jurisdiction. It answers the question, what orders may the National House make? It does not answer the anterior question, what claims may the National House adjudicate? The second question is answered by the notice of appeal and its grounds and, where a Respondent is himself dissatisfied, by his notice of cross-appeal. To read a powers provision as a jurisdiction-conferring provision is to invert the ordinary architecture of appellate procedure. This Court drew that distinction in REPUBLIC VS. HIGH COURT, ACCRA; EX-PARTE MIREILLIHITTI (GEORGE JAMIL MOUGANIE, INTERESTED PARTY), Civil Motion No. J5/63/2018, 17th January 2019, where it was emphasised that an appellate or supervisory jurisdiction is “strictly circumscribed” by what was properly before the tribunal below, and that a court which travels beyond those limits lays itself open to the complaint of having exceeded its jurisdiction.

Fourthly, the construction contended, if accepted, would reduce Rule 18 of C.I. 27 to an idle ceremony. If a dissatisfied Respondent may obtain a variation in his favour merely by asking for it in written submissions, there is no conceivable reason why any Respondent would ever file a notice of cross-appeal, incur the obligations of Rules 14 and 15, particularise his grounds, or expose himself to the time limits. A construction which deprives a rule of procedure of all work to do is not to be preferred to one which gives it content. The presumption against surplusage applies with as much force to subsidiary legislation as to a statute.

Fifthly, the construction would permit the evasion of a statutory time limit by indirection. What the Co-Petitioner could have obtained only by a notice of appeal lodged within thirty days of the trial Committee’s judgment under Section 33(1), he obtained, on this view, by a paragraph in submissions filed on 13th October 2020, many months after the door had closed. It is a settled principle that what a statute forbids to be done directly may not be achieved by circuitous means. A period of limitation which may be circumvented by the simple expedient of not appealing is no period of limitation at all.

Sixthly, the construction would render the appellate process unpredictable to the point of unfairness. A litigant who succeeds upon an issue below, and who is content with the judgment, is entitled to know that his success is secure unless it is attacked by a process which identifies the attack and gives him notice of it. On the Co-Petitioner’s construction, every Respondent to every appeal would be obliged to attend the appellate House prepared to defend afresh every issue decided in his favour, against every other party, upon grounds nowhere disclosed. Rules 14 and 18 of C.I. 27 exist precisely to prevent that state of affairs.

THE RESPONDENT WHO DOES NOT CROSS-APPEAL MAY SUPPORT, BUT MAY NOT VARY

The principle which governs the position of a Respondent who has not cross-appealed is of long standing and is not, we think, open to doubt. Such a Respondent is entitled to support the judgment in his favour upon any ground, including grounds which the tribunal below rejected. What he may not do is invite the appellate tribunal to alter the judgment to his own advantage. He may seek affirmation but will never be entitled to seek amelioration. If he desires the judgment to be varied, the law has furnished him with a mechanism, and it is Rule 18. If he refuses to invoke the prescribed procedure, he is not entitled to relief through the backdoor.

Applying that distinction here, what the National House did was not affirmation. The Co-Petitioner had claimed, by reliefs (a) and (b), declarations that it was the turn of the Nyagayiri section and that the Council of Elders had no power to designate any other section. The trial Committee refused both. The National House declared that it is the turn of Nyagayiri and that the Nyagayiri be given that turn “as a matter of urgency”. Whatever label is placed upon it, that is in substance the grant of reliefs (a) and (b). A dismissal was converted into a decree.

Nor can the exercise be defended on the footing that the National House was merely making a finding rather than granting a relief. The distinction does not avail. A declaration in those terms determines the very right which relief (a) sought to establish, and determines it against the Petitioners, who were Respondents to the appeal and who had themselves obtained a contrary declaration below which nobody had appealed from. The Petitioners were thereby deprived of the fruits of an unappealed judgment.

THE DISMISSAL OF THE APPEAL AND THE VARIATION OF THE JUDGMENT

There is a further difficulty which, to our minds, is insuperable. The National House dismissed the 2nd Respondent’s appeal. It held that, the trial Committee’s conclusions were “borne out of the evidence adduced” and that its judgment was “amply supported by the evidence adduced at the trial and cannot be said to be against the weight of evidence.”

An appellate tribunal which dismisses an appeal thereby affirms the judgment appealed from. Once the appeal was dismissed, there was no longer any vehicle in which a variation could travel. The Committee could not, in the same breath, pronounce the trial Committee’s judgment amply supported by the evidence and set aside the central finding of fact upon which that judgment rested. Those two holdings contradict one another. A judgment which simultaneously affirms and reverses the same finding is, on its face, an unsafe foundation for any declaration of customary right.

FINALITY IS A VIRTUE OF ADJUDICATION, NOT A SOURCE OF JURISDICTION

The reason which the National House gave for its course was the desire to bring finality to a protracted dispute, and to do so “in fairness and in the interest of justice.” We readily accept that the bringing of finality to chieftaincy disputes is a legitimate and indeed pressing concern. Vacant skins are a source of instability; protracted litigation over them is a public mischief; and no court should be indifferent to the desirability of an end.

But finality is a virtue of adjudication; it is not a source of jurisdiction. A tribunal does not acquire authority to determine what is not before it by observing that it would be convenient, or even just, to determine it. If it were otherwise, the limits which the law places upon appellate power could be dissolved in every case merely by invoking the desirability of an end to litigation, and it is precisely in the cases where that desire is strongest that the limits matter most.

It was pressed upon us that ground (b) of the 2nd Respondent’s appeal to the National House that the trial judgment “woefully failed to bring finality to the dispute” opened the door. It did not. A ground of appeal is not a common asset upon which any party to the proceedings may draw at will. It is the Appellant’s complaint, formulated by him, prosecuted by him, and directed to the relief which he himself seeks. The 2nd Respondent’s complaint of a want of finality was made in support of his own claim to have been validly nominated. It cannot be appropriated by a Co-respondent as the vehicle for a declaration in that Co-respondent’s favour and against another co-Respondent. And in any event, the House rejected that ground along with the rest of the appeal.

THE CONSEQUENCE

For these reasons we hold that, in declaring that, it is the turn of the Nyagayiri sub-gate to present the candidate for the vacant Kaleo Skin, the Judicial Committee of the National House of Chiefs acted beyond the jurisdiction conferred upon it by Section 23(2) of Act 759, and in disregard of Rule 18 of C.I. 27.

The declaration was not erroneous merely. It was made without jurisdiction, and is therefore a nullity. In MOSI VS. BAGYINA [1963] 1 GLR 337, this Court held that a judgment or order which is a nullity may be set aside ex debito justitiae by the court which gave it or by an appellate court, and that no question of discretion arises. To the same effect are ATTORNEY-GENERAL (No.2) VS. TSATSU TSIKATA (No.2) [2001-2002] SCGLR 620, where Acquah JSC (as he then was) observed that the absence of jurisdiction renders a court’s proceedings “nothing but a nullity”, and BIMPONG-BUTA VS. GENERAL LEGAL COUNCIL [2003-2004] SCGLR 1200 at 1215, where Sophia Akufo JSC (as she then was) emphasised that jurisdiction is a fundamental issue in every matter and must be adverted to by the court itself in order to ensure a valid outcome. Ground (b) accordingly succeeds.

The right to be heard

The Petitioners advance a further complaint under this head. It is that, the National House rested its decision upon a matter raised by no ground of appeal, and did so without inviting the parties to address it. We deal with the point shortly, because it is in our view supportive of, rather than independent of, the conclusion already reached.

We accept the Co-Petitioner’s observation that the Petitioners filed their written submissions last, on 15th December 2020, after the Co-Petitioner’s submissions of 13th October 2020, and were therefore in a position to answer what he had said. To that extent the complaint of surprise is attenuated.

But the opportunity to answer a Co-respondent’s argument is not the same thing as notice that the tribunal proposes to grant that Co-respondent substantive relief which he had lost below and had not appealed. A party is not required to anticipate, and cannot fairly be criticised for failing to meet, a claim which is not before the tribunal at all. The vice lies not in the absence of a reply but in the absence of a claim to reply to.

Nor does the exception recognised in TINDANA (No.2) VS. CHIEF OF DEFENCE STAFF & ATTORNEY-GENERAL (No.2) [2011] 2 SCGLR 732 assist. There, this Court held that where a point raised by a court of its own motion is unanswerable, the failure to invite argument upon it may be excused as an exercise in futility. The point upon which the National House proceeded here was nothing of the kind. It was a contested question of custom and of primary fact, upon which three inconsistent accounts had been given at a full trial, and upon which the trial Committee had made a finding adverse to the Co-Petitioner. A question of that character is the very opposite of unanswerable.

The principle in AWUNI VS. WEST AFRICAN EXAMINATIONS COUNCIL [2003-2004] SCGLR 471, that the right to be heard is so fundamental that, it will be implied even where a statute is silent, therefore retains its full force. We shall come, under grounds (a) and (c), to Section 31(6) of Act 759, which puts the matter beyond argument by requiring a Judicial Committee in doubt as to a rule of customary law to adjourn and hold an inquiry. For the present, it is enough to say that, had the National House considered that the interest of finality required it to revisit the mode of rotation, the least that fairness demanded was that it should say so and invite the parties, including the 1st and 2nd Respondents whose interests were also engaged, to be heard upon it.

Grounds (a) and (c): interference with the findings of the trial Committee

Grounds (a) and (c) may conveniently be taken together, since both are directed to the same substantive question: whether the rotation within the Nayipaala Gate operates between two composite units or among five individual families. Strictly, our conclusion upon ground (b) disposes of the appeal. But the question has been fully argued, and it is desirable that we express our view upon it.

THE FINDING BELOW AND THE EVIDENCE WHICH SUPPORTED IT

The trial Committee found that the Skin alternates between Bayauyiri/Goriyiri on the one hand and Mwaanjaari/Nazieyiri/Nyagayiri on the other, and that the Co-Petitioner had not proved a rotation among the five families individually. That finding was supported by at least four strands of evidence.

First, it accorded with the pleaded case of the Respondents to the petition, who at paragraph 31 of their statement of case (pages 43 to 50 of Volume 1) were the first to group the families into the two units in question.

Secondly, it accorded with the Petitioners’ own amended petition, which at paragraphs 8 and 9 (page 166 of Volume 1) pleaded the two-unit classification and the alternation between them.

Thirdly, and most significantly, it accorded with the Co-Petitioner’s own answers under cross-examination at page 328 of Volume 1. He accepted that within the Nayipaala Gate there are five sub-gates “divided into two”; he accepted that the broad divisions are Bayauyiri/Goriyiri and Nazieyiri/Mwaanjaari/ Nyagayiri; he accepted that the turn taken by Naa Bayau of Bayauyiri “includes Goriyiri”; and he accepted that the turn taken by Naa Nazie “includes Nazieyiri/Mwaanjaari/Nyagayiri”. Those answers are, on their face, destructive of the very case he was advancing.

An admission wrung from a party in cross-examination is among the most cogent forms of evidence known to the law, for it is evidence which the party has no interest in giving. This Court has repeatedly affirmed that evidence which is not effectively challenged is to be accepted, and the principle applies a fortiori where the evidence is elicited from the opposing party himself: See MANTEY VS. BOTWE [1989-90] 1 GLR 479 and QUAGRAINE VS. ADAMS [1981] GLR 599.

Fourthly, the finding was reached by a tribunal which had heard the witnesses over a full trial, which had the advantage, denied to every appellate body, of observing them, and which was itself composed of persons versed in the customs of the area.

CUSTOMARY LAW AS A QUESTION OF LAW: SECTION 31 OF ACT 759

Before we come to the principles which restrain appellate interference with findings of fact, we must confront a provision which neither side cited to us, but which bears directly upon this ground and which we cannot pass over. Section 31(5) of Act 759 provides that a question as to the existence or content of a rule of customary law is a question of law for the Judicial Committee and not a question of fact.

At first sight that provision assists the Co-Petitioner. If the content of the rule governing rotation within the Nayipaala Gate is a question of law, the National House was not bound by the ordinary restraints upon interference with findings of fact, and was free to form its own view of the rule. We have considered that argument with care. It fails, for three reasons.

First, Section 31(5) governs the characterisation of the question; it does not govern the material from which the answer must be drawn. Where a rule of custom is disputed and unrecorded, the tribunal ascertains it from evidence of usage given by witnesses who speak to what has been done. Whether Naa Bayau, Naa Nazie, Naa Jebuni and Naa Kamwinnaang Badie occupied the Skin in that order; what the Co-Petitioner admitted under cross-examination; whether his evidence supported his own pleaded case: each of these is a question of primary fact. Findings upon them attract the ordinary deference, and it was upon those findings that the trial Committee’s ascertainment of the rule rested. A tribunal which heard the witnesses is better placed to weigh them than one which reads a transcript, and that advantage is not abolished by the label which section 31(5) attaches to the ultimate question.

Secondly, the custom here is not at large. It has been declared and codified in L.I. 1980, made under the machinery of Section 51 of Act 759, by which a Regional House drafts a declaration of the customary rule, the National House considers it, and the Minister gives it effect by legislative instrument. Where a declared rule is to be altered, Section 52 prescribes the route: a draft statement of alterations, consideration by the National House, and a fresh legislative instrument. We say nothing of the terms of L.I. 1980, which neither party analysed before us. We observe only that Parliament has provided a considered route for the declaration and alteration of rules of succession, and that a Judicial Committee sitting on appeal is not that route.

Thirdly, Section 31 does not leave a Judicial Committee at large even upon a question of law. Subsection (6) provides:

“Where a Judicial Committee entertains a doubt as to the existence or content of a rule of customary law relevant in proceedings after considering the submissions that have been made by or on behalf of the parties and after consulting the reported cases, textbooks and other sources that may be appropriate, the Judicial Committee shall adjourn the proceedings to enable an inquiry to take place.”

Subsection (7) then requires the inquiry to be held as part of the proceedings, provides that the decision as to who shall be heard is for the Judicial Committee “after hearing the submissions that may be made by or on behalf of the parties”, and permits the Committee to request any authority or body with knowledge of the customary law in question to state its opinion in writing.

Where a Judicial Committee doubts the existence or content of a rule of customary law, it is not to resolve that doubt by private deliberation. It must adjourn, inquire, and hear the parties. The obligation is expressed in mandatory terms. If the National House entertained a doubt about the trial Committee’s ascertainment of the rule of rotation, and its decision to depart from that ascertainment shows that it did, Section 31(6) obliged it to adjourn the proceedings and hold an inquiry. It did neither. It announced a different rule of succession in its judgment, without notice and without inquiry.

Therefore, far from assisting the Co-Petitioner, section 31 therefore sharpens the objection to what was done. Treat the content of the custom as a question of fact, and the National House reversed a finding which it had itself pronounced amply supported by the evidence. Treat it as a question of law, and the National House resolved a doubt about customary law without the inquiry which Section 31(6) makes mandatory. On either footing the declaration cannot stand.

THE LIMITS UPON APPELLATE INTERFERENCE WITH FINDINGS OF FACT

The principles restraining an appellate body from disturbing primary findings of fact are settled and require no elaborate restatement. In PRAKA VS. KETEWA [1964] GLR 423 at 426, Ollennu JSC said that although an appeal is by way of rehearing, where the decision on the facts depends upon the credibility of witnesses the appellate court ought not to interfere except where the findings are clearly shown to be wrong, or are wrong inferences drawn from admitted facts or facts found. In BISI VS. TABIRI [1987-88] 1 GLR 360 this Court deprecated any move towards “regular questioning of decisions of trial judges on issues of fact, as distinct from law, which were supportable.”

The point has particular resonance in Chieftaincy matters. In ACHORO VS. AKANFELA [1996-97] SCGLR 209, itself an appeal in a skin dispute, this Court declined to disturb findings which, like the National House in that case, it was satisfied were amply supported by the evidence, and it laid down that an appellate court will not interfere with such findings unless it is established with absolute clearness that some blunder or error resulting in a miscarriage of justice is apparent in the way the facts were dealt with. To like effect are KOGLEX LTD. VS. FIELD [1999-2000] 2 GLR 437, FOSUA & ADU-POKU VS. DUFIE (DECD) [2009] SCGLR 310, and GREGORY VS. TANDOH IV & HANSON [2010] SCGLR 971.

The recognised occasions for interference were conveniently collected and articulated by Benin JSC in FRANK ODURO VS. GRAPHIC COMMUNICATIONS GROUP LTD. [2018] DLSC 4518: whether the tribunal failed to consider vital evidence; whether it relied upon irrelevant or inadmissible material; whether it wrongly excluded admissible evidence; whether it misallocated the burden of producing evidence or of persuasion; whether it applied the wrong standard of proof; and whether it embarked upon a proper evaluation of the evidence as a whole. Where the answer to each is no, the appellate body must leave the finding alone, even if, upon the same material, it would itself have reached a different conclusion.

THE NATIONAL HOUSE IDENTIFIED NO PERMISSIBLE GROUND OF INTERFERENCE

It did not hold that the trial Committee had failed to consider vital evidence. It did not hold that the Committee had acted upon inadmissible material, or misallocated the burden of proof, or misapplied any principle of evidence. It did not hold the finding perverse or unsupported. It held the very opposite: that the trial Committee’s conclusions were borne out by the evidence and amply supported by it.

The reason it gave for departing from the finding was that the departure was needed “in order to bring finality to the dispute”, and that Nyagayiri should have its turn “as a matter of urgency … in fairness and in the interest of justice.” With respect, those are not grounds upon which a primary finding of fact may be reversed. Sympathy for a family which has waited long, however understandable, is not a substitute for proof; and the desire to end a dispute is not a licence to decide it otherwise than upon the evidence.

THE EVIDENCE RELIED UPON DOES NOT BEAR THE WEIGHT PLACED UPON IT

The Co-Petitioner’s principal factual argument, both below and before us, rests upon the recent sequence of occupancy when the mantle has fallen upon the Nayipaala Gate: Naa Bayau of Bayauyiri, then Naa Nazie of Nazieyiri, then Naa Jebuni of Mwaanjaari, then Naa Kamwinnaang Badie of Goriyiri. Four of the five families, he says, have had their turn; only Nyagayiri has not. And the sequence, he adds, is inconsistent with strict alternation between two units, since after Nazieyiri the Skin passed to Mwaanjaari, within the same unit, before returning to Goriyiri. The argument is not without force, and we do not treat it lightly. But it does not carry the burden which the Co-Petitioner had to discharge.

First, the sequence is equally consistent with both competing hypotheses. Four occupancies distributed among four families tell one that no family has taken the Skin twice in that span. They do not tell whether the governing principle is rotation among five families or alternation between two units within which the choice of family is made internally. A body of evidence which is equally consistent with two contradictory propositions establishes neither. The Co-Petitioner bore the burden of persuasion upon the proposition he asserted, under Sections 10, 11(4), 12 and 14 of the Evidence Act, 1975 (NRCD 323), and the trial Committee found that he had not discharged it. The principle is familiar from ACKAH VS. PERGAH TRANSPORT LTD & OTHERS [2010] SCGLR 728 and ABBEY VS. ANTWI [2010] SCGLR 17: a party proves an assertion not by repeating it, but by producing evidence from which the tribunal can be satisfied that what he avers is true.

Secondly, the departure from strict alternation which the sequence discloses is capable of innocent explanation upon the evidence itself. DW1, the principal witness of the 2nd Respondent, testified at page 370 of Volume 1 that where a family’s candidate is rejected by the Council of Elders and that family cannot produce another suitable candidate, the next family in turn is called upon. A custom which admits of that contingency will not produce an unbroken arithmetical alternation; and the presence of an irregularity in the historical sequence is therefore a slender foundation upon which to rebuild the whole principle of succession.

Thirdly, the weighing of that sequence against the rest of the evidence, including the Co-Petitioner’s own admissions, was the task of the trial Committee. It performed that task. It considered the historical occupancies. It considered the pleadings. It considered the Co-Petitioner’s answers in cross-examination; and it concluded that the two-unit account was the more probable. Where evidence reasonably admits of two views, the view of the tribunal which saw and heard the witnesses must prevail.

THE AUTHORITIES RELIED UPON BY THE CO-PETITIONER

Reliance was placed upon DARKO VS. BRAKO & OTHERS [1982-83] GLR 345 for the proposition that a party consistently sidelined in a rotational system may come to the appropriate adjudicating body to contest the matter. So he may, and so this Co-Petitioner did. He applied to be joined, and was joined. He pleaded his case, and he was heard at a full trial. What that authority does not do is relieve such a party of the burden of proving the rotation he asserts, nor authorise an appellate body to grant a claim which failed for want of proof and against which no appeal was brought. ABABIO VS. KARIKARI [2001-2002] 1 GLR 381 takes the matter no further.

THE CHARGE OF APPROBATION AND REPROBATION

The Co-Petitioner submits, with some vigour, that the Petitioners are ill-placed to complain, since they too reargued before the National House a finding they had not cross-appealed, namely that Nyagayiri is eligible to ascend the Kaleo Skin, and since their present position is inconsistent with their earlier denial of that eligibility.

The submission fails, for a reason which in fact reinforces the principle we have applied. A Respondent who has not cross-appealed is at liberty to advance any argument in support of the judgment in his favour; what he may not do is obtain a variation of it. The Petitioners advanced their argument on eligibility and the National House rejected it, affirming the trial Committee’s finding. They therefore obtained nothing to which they were not entitled, and no unappealed determination was disturbed at their instance. Grounds (a) and (c) accordingly succeed.

Ground (d): the judgment is against the weight of evidence

Where an Appellant complains that a judgment is against the weight of evidence, the appellate court is required to examine the whole of the record and to satisfy itself whether, upon a proper evaluation, the conclusion reached can be supported: TUAKWA VS. BOSOM [2001-2002] SCGLR 61, AKUFFO-ADDO VS. CATHELINE [1992] 1 GLR 377, DJIN VS. MUSAH BAAKO [2007-2008] SCGLR 686. The burden nonetheless remains upon the Appellant to demonstrate from the evidence the lapses of which he complains: BONNEY VS. BONNEY [1992-93] 2 GBR 779.

We assert, since the point was made against the Petitioners that, there is no inconsistency in their invoking that principle here while resisting its invocation by the National House below. The rehearing which the omnibus ground opens up is a rehearing of the appeal, undertaken to test the correctness of the decision under challenge at the instance of the party challenging it. It is not a warrant to award relief to a party who has not challenged anything. When the National House dismissed the 2nd Respondent’s appeal, the rehearing which that appeal had opened was spent.

Upon our own examination of the record, we are satisfied that the variation cannot be supported by the evidence. The pleadings of three of the four sets of parties, the Co-Petitioner’s admissions under cross-examination, and the express finding of the trial Committee all point one way; and the single circumstance relied upon to the contrary, the sequence of recent occupancies, is for the reasons already given equivocal. Ground (d) also succeeds.

Conclusion

The Judicial Committee of the National House of Chiefs was, in our respectful view, moved by a proper and even a commendable instinct. It saw a dispute of long standing, a Skin long vacant, and a family which appeared to it to have been passed over; and it sought to make an end. Courts and adjudicating bodies are not to be criticised for wishing to bring peace where there has been discord.

But the means adopted were not open to it. It granted to a party who had not appealed the substance of reliefs which the trial Committee had refused him. It did so upon a point which formed no part of any ground of appeal before it after dismissing the only appeal it had. It also did so by reversing a finding which it had in the same judgment pronounced to be amply supported by the evidence; and, if the mode of rotation be treated as the question of customary law which Section 31(5) declares it to be, it did so without the inquiry which Section 31(6) required it to hold. Each of those steps was, in our judgment, an error. Taken together they cannot stand.

We would add this as a matter of judicial notice and concern to the highest court of the land. The Kaleo Naalung has now been without an occupant for a very long time, and the parties before us are kinsmen of a single gate contending over the inheritance of their common ancestors. The effect of this judgment is to restore the position established by the trial Committee after a full hearing, which leaves the way clear for the Mwaanjaari/Nazieyiri/Nyagayiri unit to present its candidate and for the kingmakers to proceed under L.I. 1980. We would urge all concerned to take that course promptly, and in the spirit of accommodation which the occasion demands.

Orders

For all the reasons hereinbefore set out, the appeal succeeds and same is allowed. We hereby make the following consequential orders:

That part of the judgment of the Judicial Committee of the National House of Chiefs dated 29th September 2022 by which it varied the judgment of the Judicial Committee of the Upper West Regional House of Chiefs, and declared that the Nyagayiri sub-gate or family or section within the Nayipaala (Nayipani) Gate has its turn now and is to provide the candidate for occupation of the vacant Kaleo Naalung (Imola) Paramount Skin, is hereby set aside as having been made without jurisdiction, without compliance with Section 31(6) of the Chieftaincy Act, 2008 (Act 759), and as being in any event against the weight of the evidence on the record.

The judgment of the Judicial Committee of the Upper West Regional House of Chiefs is restored and affirmed in its entirety, including in particular its declaration that it is the turn of the Mwaanjaari/Nazieyiri/Nyagayiri unit within the Nayipaala Gate to provide a candidate for the vacant Kaleo Skin, and its finding that the Nyagayiri family is one of the families that ascend the Kaleo Skin.

For the avoidance of doubt, the dismissal by the Judicial Committee of the National House of Chiefs of the appeal of the 2nd Respondent, and the dismissal of the cross-petition of the 1st and 2nd Respondents by the trial Committee, are undisturbed and stand.

The kingmakers of the Kaleo Traditional Area are at liberty to proceed forthwith to fill the vacancy in accordance with the customs, traditions, practices and usages of the Kaleo Naalung (Imola) Paramount Skin as codified in the Declaration of Customary Law (Kaleo) Traditional Council Instrument, 2010 (L.I. 1980), and consistent with the judgment hereby restored.

(SGD.) I. O. TANKO AMADU