OBRASIWA II AND OTHERS vs. OTU AND ANOTHER [1997-98] 1 GLR 858

CASES REFERRED TO

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

(2) Adjeibi Kojo v Bonsie (1957) 3 WALR 257.

(3) Achoro v Akanfella [1996-97] GLR 209, SC.

NATURE OF PROCEEDINGS

APPEAL by the plaintiffs to the Supreme Court from the decision of the judicial committee of the National House of Chiefs, affirming the judgment of the judicial committee of the Central Regional House of Chiefs which had affirmed the decision of the judicial committee of the Abura Traditional Council in favour of the defendants in a chieftaincy action brought against them by the plaintiffs. The facts are sufficiently stated in the judgment of the court delivered by Acquah JSC.

[p.859] of [1997-98] 1 GLR 858

COUNSEL

Barton Oduro (with him Amissah Koomson) for the plaintiff-appellants.

E D Kom for the defendant-respondents.

JUDGMENT OF ACQUAH JSC

Acquah JSC delivered the judgment of the court. Sometime in the 1980s a questionnaire was sent round by the chieftaincy secretariat to all stools demanding the particulars of their royals. The questionnaire on the Edumfa stool was filled by Nana Yaw Otu, the first defendant-respondent (hereinafter referred to as the defendants).

The petitioners, the plaintiff-appellants (hereinafter referred to as the plaintiffs) contending that they are the rightful owners of that stool but were not so indicated in the answers in the questionnaire, issued the instant petition at the judicial committee of the Abura Traditional Council, claiming against the defendants:

“(a) A declaration that members of the plaintiffs’ Ekua Opuni’s section of the royal Aboradze family of Edumfa are entitled to occupy the odikro stool of Abura Edumfa.

(b) A declaration that it is wrongful for the defendants to purport to supply answers to questionnaire from the chieftaincy secretariat in such a manner as to create the impression that the plaintiffs’ Ekua Opuni section of the Aboradze family has no right to the odikro stool of Abura Edumfa.

(c) An order compelling the defendants, their agents, servants, assigns, and successors in title to comply with the directions of the Nana Ankrah’s committee set up by the Abura Traditional Council.

(d) An order quashing the answers supplied by the defendants in the questionnaire provided by the Chieftaincy Secretariat.

(e) An order of perpetual injunction restraining the defendants, their agents, servant, relations, assigns from in any way purporting to trample on the plaintiff’s Ekua Opuni section of the royal Aboradze family’s right to mount the odikro stool of Edumfa.”

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Before the issuing of this petition, the plaintiffs had lodged a complaint with the Abura Traditional Council on the questionnaire filled by the defendants. The council set a mediation committee which did not pronounce on the rights of the parties but offered amicable settlement.

At the judicial committee of the Abura Traditional Council, the case presented by the plaintiffs was that their Ekua Opuni Aboradze family of Edumfa, migrated from Takyiman to Mankessim, thence to Ansafona and further down to Akwakuma. At Akwakuma the then chief of that village, Nana Akwa, directed them to settle by an odum tree near by. They went and settled there and named that place “Edumfa.” They alleged that the elders of their Ekua Opuni Aboradze family who led them to this settlement were Nana Kweku Mensah, Ananansa, Adwoa Tawiah, Akosua Addae, Aba Odowa and their mother Ekua Opuni. A brother of Nana Kweku Mensah called Kow Odoon and his group from Mbra-Mboa then joined them at Edumfa. Thereafter, Nana Kweku Mensah proclaimed himself chief of Edumfa. Later the defendants’ ancestors from Gomoa Ojobi, in search of food and shelter came to Nana Akwa of Akwakuma for a place to settle. Nana Akwa directed them to where they, the petitioners, were already settled. When the defendants came to Edumfa, they were readily accepted by Nana Kweku Mensah when he learnt from them that the defendants were also of the Aboradzi family. Nana Kweku Mensah, the plaintiffs alleged, was a prosperous person trading in between Edumfa and Egya. On one of his trading trips, he fell sick and died. His body was brought down to Edumfa for burial. On his death, he was succeeded by his brother Ananansa. During Ananansa’s reign the defendants’ family accused one Ntafo, an elder of the petitioners’ family, of stealing a goat. Ntafo ran away and settled in Cape Coast. And so on the death of Nana Ananansa, since Ntafo who should have succeeded was away and there was further no male member of the petitioners’ family to mount the stool, the defendants appointed one of their (the defendants’) family members called Kow Kum to act as a caretaker or regent pending the time the petitioners’ family were ready with a male candidate. They said that a female member of their family, called Aba Odurwa even attempted to succeed Ananansa, but the defendants’ family refused on the ground that females were not

[p.861] of [1997-98] 1 GLR 858 eligible to ascend the stool. On the death of Nana Kow Kum, because they (the plaintiffs) had still not had male candidates, the defendants’ family members continued to ascend the stool as regents up to date. They gave the names of the defendants’ family members who had ascended the stool as Nana Kow Kum, Kwame Mensah, Kwesi Tawiah, and finally the first defendant Nana Otoo. The plaintiffs were emphatic that all these defendants’ members were regents and not chiefs because the defendants do not own the stool. The stool is their (the plaintiffs’) own property. The plaintiffs went on to explain that it was in 1986 that the defendants invited the first plaintiff to Edumfa and installed her as queenmother of the area. And that on her installation, she decided to mount this suit to retrieve the odikro stool from the defendants’ family to their (the plaintiffs’) family. As to how the plaintiffs’ family came by the stool, the first plaintiff, under cross-examination answered: “From Takyiman, they [ie the plaintiffs’ ancestors] had no stool, but it was at Mensakrom near Asafona that they founded their own village and created a stool.”

The defendants’ on the other hand, denied the story of the plaintiffs, and maintained that Edumfa was founded by their ancestors. They claimed that their elders brought the odikro stool along with them from Takyiman to Mankessim. From Mankessim they went to Abura Gyabankrom, then to Mosoadze and finally came to make their settlement at a place they named “Edumfa.” They contended that all the chiefs who had since sat on the odikro stool had come from their (the defendants’) family. They listed the chiefs who had sat on the odikro stool in order of succession as: Nana Edumandze Kobina, Kobina Anansa, Kobina Mensah, Kweku Kum, Kwa Mensah, Kweku Mensah, Kwesi Tawiah and finally Nana Otoo, the first defendant herein. They maintained that the stool belongs exclusively to them and that each of the above persons sat on the stool as a chief and not as a regent. They supported their claim with Gazette notices for the years 1906, 1912 and 1914 and other official ancient documents. They further alleged that the plaintiffs are of a different section of the Aboradze family, which has no claim to the stool, though they all belong to one clan. Thus when they, the defendants, got to know that the petitioners were in Cape Coast, they decided to entice them home by conferring the status of a queenmother on the first plaintiff.

[p.862] of [1997-98] 1 GLR 858

And to signify that this was an honour from them, the defendants, the name they conferred on the first plaintiff as queenmother, is the name of their (the defendants’) grand ancestral mother, Nana Obrasiwa. They denied completely the plaintiffs’ allegation that any of their family members had ever sat on the stool; that a female member of theirs attempted to ascend it but was refused; that females are not eligible to mount the stool in their area; and that the petitioners own and have any claim to the stool. They finally asserted that because the stool is their bona fide property, they even pledged it to Abeadze Dominase.

The judicial committee in a thorough, painstaking trial in which the parties and their numerous witnesses testified and each was cross-examined by the other side, further heard evidence from independent witnesses, and took the trouble to view and interview inhabitants at the places mentioned in the evidence. They visited Egya, Moseadze, Ansafona, Edumfa, Edumafofo Powomu, and Cape Coast. Such thorough investigation into the rival claims of the parties, is in keeping with the fact that trials of chieftaincy disputes are in the nature of fact-finding inquiries. For as the full bench of the Court of Appeal observed in Kanga v Kyere [1978] 1 GLR 83 at 91, CA: “ … broadly, the trial of a dispute involving chieftaincy is more in the nature of a fact-finding inquiry.”

From what the judicial committee heard and saw, they found in their judgment that:

“(a) The petitioners cannot claim the stool because none of the petitioners’ ancestors had ever been on the Edumfa stool.

(b) It is very irregular to allow four or more people who do not qualify, to come on one’s own family stool without raising an objection or protest. Significantly Nana Kweku, Kwesi Tawiah, and Yaw Otoo have all been proved to be accredited odikros of Edumfa. The family history given by the petitioners in court or before the committee did not tally or conform to what the committee found out or heard when it visited the places on 20 June 1990.

(c) The petitioners told the committee during cross-examination that their royal stool was made at

[p.863] of [1997-98] 1 GLR 858

Mensakrom near Ansafona before they came to settle at Edumfa, but the committee on its visit there did not find any Mensakrom at where the petitioners alleged it to be. This shows that what the plaintiffs said before the committee was untrue and particularly too, all the ancestors by tradition brought down their stools from Takyiman and not later, that is, after the Mankessim settlement.

(d) The committee was convinced that the Edumfa stool was brought from Takyiman to Mankesim, down to Abura Gyabankrom, then Mosoadze and finally to Edumfa as stated by the defendants.

(e) The Edumfa stool was truly pledged to Abeadze-Dominase for a loan resulting in the stool serving Dominase in the dispute between Abura-Abakrampa and Dunkwa. The committee found out that it was the Omanhene of Abura who paid the balance of the loan sought from Dominase on behalf of Edumfa. The money was paid to Dominase because the Omanhene saw that they (the people of Edumfa) were his subjects. It was not the Omanhene of Edumfa who paid the money as alleged by the petitioners. Particularly, if the stool was not for the defendants’ ancestors, he (the then odikro) could not have pledged it to Dominase for money or loan. On the other hand the petitioners should have raised an objection or protest against the pledge, if the stool was, indeed for them.”

On the basis of the above findings, the committee held that the defendants were not wrong in answering the questionnaire from the Chieftaincy Secretariat the way they did. Consequently, the answers on the questionnaire cannot be quashed. The committee finally stated:

“The defendants were able to convince the committee that the stool is for them and the assumption that the first defendant and all those who predeceased him were only regents and not gazetted chiefs cannot be accepted for the committee found them to be accredited chiefs.”

[p.864] of [1997-98] 1 GLR 858

An appeal by the plaintiffs to the Central Regional House of Chiefs was dismissed. A further appeal to the National House of Chiefs was again dismissed, as the house found “no cogent reason to disagree with the two courts below on their concurrent acceptance of these findings of fact and [we] therefore agree with them and dismiss the appeal.”

Before us the plaintiffs mount seven grounds of appeal against the findings of facts concurred in by the National House of Chiefs. The thrust of their submissions is that from the evidence on the record, the National House of Chiefs ought to have entered judgment in their favour for all their reliefs, notwithstanding the evidence of the third plaintiff witness that the defendants are also entitled to the stool. They argue that they were not aware of the pledge by the defendants of the stool to Abeadze Dominase since during the time they (the plaintiffs) had left Edumfa to settle in Cape Coast.

On the Gazette notices showing the defendant’s elders on the stool as chiefs and not regents, they submit that because they, the plaintiffs, were then not at Edumfa, the defendants fed the authorities with false information. They also attacked the National House of Chiefs’ rejection of their story that their female elder was prevented from ascending the stool because it was alleged that females were ineligible to ascend the stool. They contended that there was no proof that in Edumfa in particular, as opposed to the surrounding areas, females were entitled to ascend the odikro stool. They contended, strangely indeed, that looking at the evidence, the defendants cannot strictly be regarded as strangers to the stool. And therefore to the extent that the defendants themselves took steps to re-unite with them, the plaintiffs, they cannot be denied their right to the Edumfa stool.

The defendants, on the other hand, relying on the concurrent finding rule, submitted that the plaintiffs have not been able to displace the burden imposed by the rule to enable this court to set aside the judgment of the National House of Chiefs. They contended that the lower courts properly resolved the conflicting traditional evidence in accordance with the well-known principle in Adjebi1(1)sic Kojo v Bonsie (1957) 3 WALR 257. And that the findings of fact were amply supported by the evidence. Accordingly, they prayed that the appeal be dismissed.

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The principle governing appeals against concurrent findings of fact, as in the instant case, had been stated and restated a number of occasions in this court. In a recent unanimous decision in a chieftaincy appeal, Achoro v Ankefella [1996-97] SCGLR 209 at 214 we said, per Acquah JSC:

“ . . . in an appeal against findings of facts to a second appellate court like this court, where the lower appellate court had concurred in the findings of the trial court, especially in a dispute, the subject-matter of which is peculiarly within the bosom of the two lower courts or tribunals, this court will not interfere with the concurrent findings of the lower courts unless it is established with absolute clearness that some blunder or error resulting in a miscarriage of justice, is apparent in the way in which the lower tribunals dealt with the facts.”

(The emphasis is mine)

The court proceeded further to mention three such blunders, as error in the face of a crucial documentary evidence; a misapplication of a principle of evidence; and finally, a finding based on an erroneous proposition of law such that if that proposition is corrected the finding disappears. It is important to point out that the establishment of a blunder or error per se is not enough. It must further be established that the said error has lead2(2)[sic] to a miscarriage of justice.

We have gone through the record of proceedings and are satisfied that the plaintiffs have not met the standard set out above. There is no evidence on the record as submitted by the plaintiffs, that the defendants fed the authorities with false facts in the Gazette notices tendered in the trial. Again, we find it strange that if, indeed, the plaintiffs owned the stool, their elders could succumb to the defendants’ alleged objection to the plaintiffs’ female candidate’s attempt at mounting the stool. Under customary law, a chief or queenmother does not swear to a regent on her installation. Yet, the first plaintiff who was emphatic that the first defendant was a regent, testified that on her installation she swore before him. She said as stipulated in the record: “After riding in palanquin that day, during the installation, I swore the sacred oath

[p.866] of [1997-98] 1 GLR 858 to Nana, the first defendant, after which he in turn swore on behalf of the family.” And further as the chieftaincy tribunals rightly found, if the stool was for the plaintiffs they would not have left it behind in the hands of a “stranger” for over half a century. The first plaintiff was cross-examined on this as follows:

“Q If it is true that the stool is for you, why do you leave the stool at Edumfa and settle at Cape Coast?

A I mentioned in my evidence that we then had no male people to occupy the stool.”

Again on the defendants’ pledging of the stool to Abeadze Dominase, the third plaintiff witness was cross-examined by the defendants thus:

“Q Have you ever heard that our stool was once made subservient to Abeadze Dominase stool near Mankessim?

A Yes, I have heard it.

Q Can you take a stool which is not mine to serve another state?

A Because at that time the real owner of the stool had not come.”

Clearly, the plaintiffs’ answers to such questions expose the hollowness of their claim and validate the findings of the trial judicial committee as later confirmed by the appellate tribunals.

We are satisfied that the findings of fact being challenged by plaintiffs are amply supported by the evidence on the record. We have further found no error or blunder in the way the lower tribunals dealt with the evidence. And we, accordingly, dismiss the appeal and uphold the judgment of the National House of Chiefs.

DECISION Appeal dismissed.

LSNA.

Endnotes

1 (Popup – Footnote) 1 same in original.

2 (Popup – Footnote) 2 same in original.