OPPON vs. ANIN [1997-1998] 2 GLR 1039

CASES REFERRED TO

(1) Egyin v Aye [1962] 2 GLR 187, SC.

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

(3) Agyemang v Boadu Kwadwo II, Supreme Court, 8 February 1994, unreported.

(4) Quaye v Mariamu [1961] 1GLR 93, SC.

(5) Nkansah v Adjepong [1961] 1 GLR 465.

(6) Mosi v Bagyina [1963] 1 GLR 337, SC.

(7) Agyakoma v Opuni [1987-88] 1 GLR 47, SC.

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

(9) Dua III v Tandoh (1927) PC ‘’74–’28, 109.

(10) Eliibu v Ababio (1956) 2 WALR 55.

(11) Adjei v Acquah [1991] 1 GLR 13, SC.

[p.1041] of [1997-1998] 2 GLR 1039

APPEAL from majority decision of the judicial committee of the National House of Chiefs, affirming the judgment of the judicial committee of the Ashanti Regional House of Chiefs which aillowed an appeal by the respondent from a majority decision of the judicial committee of the Kumasi Traditional Council in a chieftaincy dispute. The facts are sufficiently set out in the judgment of Acquah JSC.

Boafo for the appellant.

Respondent in person.

Edward Wiredu JSC. This appeal is from the decision of the chieftaincy tribunal of the National House of Chiefs dated 16 August 1995. This judgment, by a majority of three to two, affirmed the decision of the judicial committee of the Ashanti Regional House of Chiefs dated 9 March 1993, in favour of the copetitioner-respondent who will hereafther be referred to simply as the respondent.

The Ashanti Regional House of Chiefs by its decision referred to (supra) had allowed an appeal brought by the respondent against the decision of the judicial committee of the Kumasi Traditional Council, which by a majority of two to one, upheld a claim by the petitioner-appellant in its judgment dated 31 May 1991. The petitioner-appellant in this case will hereafter be referred to simply as the appellant.

The main issue raised for determination in this appeal is an answer to the question: “whether there exists a constitutional relationship between the appellant stool and the Asaago Odikro stool.” The appellant claims that there exists such a relationship and contends that he Asaago Odikro swears the oath of allegiance to him as Taahyehene to Otumfuo the Asantehene while the respondent by his counterclaim, claims that he is the head of family of Asaago stool. He joined issue with the appellant by an oath contending that the Asaago stool swears the oath of allegiance direct to the Golden Stool (Asantehene) and that the Asaago stool is not subservient to the Taahyehene.

It is of significance to note here that it is this issue which was determined before the trial chieftaincy tribunal in Kumasi in favour of the appellant. The proccedings show that both parties provided evidence traditionally as to how their respective stools came from Denkyiraa to settle in Ashanti and also evidence on

[p.1042] of [1997-1998] 2 GLR 1039 matters within living memory, both oral and documentary. The appellant provided evidence by himself and three other witnesses, including the Obaapanin of Asaago, the present Odikro himself, one Baffour Awuah, Gyasehene of Atwimahene. The appellant further tendered in evidence proceedings relating to an action the obaapanin and Asaago Odikro brought before the Kumasi Traditional Council against him when he purported to remove the odikro by oath. The proceedings in this action show that the matter was settled and the result accepted by the parties. The appellant further tendered in evidence a letter sent to him by the respondent, wherein he claimed a share of monies realised from the sale of a portion of Asaago lands and stated, among others, that: “We are all your children and we all belong to you.”

The appellant provided evidence to show that Asaago lands were under his control and that he had settled some Northerners on a portion of Asaago lands. There was evidence also that the Asaago odikro swore before the Taahyehene when the latter was going to swear the oath of allegiance to the Asantehene (exhibit A). He further provided evidence to show that the respondent in the company of the Gyasehene of Atwimahene (the first plaintiff witness) and with the thigh of a slaughtered sheep, reported to him the removal of Asaago Odikro as the latter’s overlord. The three witnesses of the appellant supported his case substantially in almost all the material facts especially in matters of recent events within living memory relating to the two stools.

The respondent provided traditional evidence as to how the Asaago people came to settle in Ashanti from Denkyira and by three other witnesses. Traditionally, the evidence led on behalf of the respondent generally accords with the experience in practice that a stranger to Ashanti must first go through an Ashanti paramount stool before being introduced to the Asantehene to get settled. To that extent only, the traditional evidence brought by the respondent as to how his ancestors came to Ashanti appears to be in accord with customary practice. However, when that evidence is weighed against recent events as narrated by the appellant and as supported by Asaago Obaapanin, the Asaago Odikro himself, the contents of exhibit B, the letter written by the respondent to the appellant, such traditional evidence becomes of little significance. It is also not devoid of the usual contradictions and inconsistencies associated with this kind of evidence.

[p.1043] of [1997-1998] 2 GLR 1039

The contents of exhibits A, C and D negate the claim by the respondent that there is no constituitional relationship between the two stools but that there exists merely a friendly relationship. The evidence of recent events on matters within living memory testitied to by the witnesses for the appellant on the Asaago stool clearly show that more weight ought to be given to this than to the traditional evidence which, in this ease, as in all other traditional evidence, is full of inconsistencies contradictions and weaknesses.

The issue posed for determination in these proceedings is one of fact. Two rival stories were put up by the contesting parties, namely, whether the Asaago Odikro swears the oath of allegience to the Taahyehene, as is contended by the petitioner-appellant, or whether the Asaago stool swears the oath of allegiance direct to the Golden stool, as contended by the respondent.

The trial chieftaincy tribunal, in my respectful view, directed itself properly on this issue and preferred the case presented by and on behalf of the appellant to that put by and brought on behalf of the respondent by making the following findings of fact:

(a) that from time immemorial, the Asaago village has always owed allegience to the Taahyehene stool;

(b) that the respondent sent the thigh of a sheep, in the company of the first plaintiff witness, to inform him (the Taahyehene) officially that he, the respondent, had destooled the Asaago Odikro;

(c) that the contents of exhibit A show clearly that on 26 May 1975 when the Taahyehene swore the oath of allegiance, the Asaago Odikro swore in front of him, showing that the latter owes allegiance to the former;

(d) that Asaago lands are under the control of the Taahyehene and that the Taahyehene was the person who allocated part of the land to some Northerners to establish the Zongo community and further that pacification rites in Asaago and Oda River are performed by him. The tribunal rejected the evidence of the respondent and his witnesses that Asaago swears the oath of allegiance direct to the Asantehene/Golden Stool and that these ancestors have sworn such oath to the Asantehene;

(e) that Asaago lands and rites related thereto are performed by the Akyimpehene or Anlckaasehene.

The tribunal further rejected the evidence of the respondent that it was the Asantehene, Nana Osei Tutu, who gave the Asaago

[p.1044] of [1997-1998] 2 GLR 1039 lands to his ancestors, which evidence was contradicted by the first defendant witness that it was Obiri Yeboah who gave the Asaago lands to the respondent’s ancestors. It further rejected the evidence of the respondent that he is the abusuapanin of the Asaago .Odikro stool …

(f) the tribunal rejected the traditional evidence on behalf of the respondent as to who actually settled the respondent’s ancestors on the banks of the Odcla River (Asaago lands) in view of the contradiction by the respondent’s witness, the first defendant witness, who testified that it was the Akyimpehene who owns the lands and the third defend ant witness, who said Asaago lands belong to Ankaase hene.

The proceedings in the action taken by the obaapanin and the Odikro of Asaago against the appellant, tendered in evidence as exhibit (1), was properly and rightly received in evidence by the trial tribunal, and the observations made by the panel members of the Kumasi Traditional Council, who settled the case, set to rest any doubt that may be entertained as to the constitutional relationship between the appellant stool and the Asaago stool: see the case of Egyin v Aye [1962] 2 GLR 187, SC.

In this connection, the following observations made by the individual members of the trial tribunal are pertinent:

“Baffour Osei Akoto: I want nananom to think carefully, about the matter whether it is proper for Taahyehene to destool his subordinate chief., Asaago Odikro, arbitrarily.

Akyeamehene: ‘It is anti-custom for the Taahyehene to swear the Great Oath to destool a chief. Oheneba Osei Yaw, Kyidomhene, also admitted that the defendant swore the Great Oath to destool the plaintiff and he, Kyidomhene, invited the defendant to accompany him to the palace to remove the Great Oath, but he refused to do so. To assert that the plaintiff says he swears with the Mpomponsuo to Otumfuo is unreal istic, because already the plaintiff has sworiin the oath of allegiance to the defendant as his overlord …”

[p.1045] of [1997-1998] 2 GLR 1039

(The emphasis is mine.) Having accepted the evidence brought by and on behalf of the appellant, the trial chieftaincy tribunal gave its decision in favour of the appellant. On appeal, that decision was reversed by the Ashanti Regional House of Chiefs.

A careful examination of the judgment from the Ashanti Regional House of Chiefs reveals that its judgment was based on the following:

(1) That an appeal was by way of rehearing. The house thereafter erroneously assumed that the rehearing gave the house the same powers as the trial tribunal without regard to the judgment of the trial tribunal and the findings of fact made by the trial tribunal;

(2) by referring to what it considered contradictions, in consistencies and weakness in the traditional evidence brought by and on behalf of the appellant, and without considering similar inconsistencies, contradictions and weakness in the case of the respondent referred to and dealt with by the trial tribunal in its judgment; and

(3) by drawing wrong inferences from the document exhibit 1, the proceedings in the case brought by the obaapaninm and Asaago odikro against the appellant, exhibit B, the letter written by the respondent to the appellant, in which the respondent emphatically state “we are all your children and we all belong to you” after referring to various sums given to individuals including the Obaapanin Yaa Obo. Nothing is contained in the said letter to the effect that the two stools (ie Taahyen and Asaago stools) own common land at Asaago which was sold (as the house would want it to appear) to justify the competitioner’s claim as his share of the money.

The majority decision of the chieftaincy tribunal of the National House of Chiefs fell into the same error by reviewing the whole evidence in the case as if it were re-trying the case itself’, thereby assuming the right to make findings of fact of its own, entirely different from what the trial tribunal had made, basing its decision mostly on inconsistent and contradictory traditional evidence, which the trial chieftaincy tribunal had properly addressed itself to and considered as unreliable to determine the issue as stake. The majority of the National House of Chiefs gave greater weight to the traiditonal evidence brougttht by and on behalf of the

[p.1046] of [1997-1998] 2 GLR 1039 respondent and disregarded the test to apply to such evidence as laid down and accepted in the case of Adjeibi-Kojo v Bonsie (1957) 3 WALR 257, PC.

The more serious objection to the decision of the two appellate tribunals, ie the judicial committees of the Ashanti Regional House of chiefs and the National House of chiefs, is that they were given per incuriam, ie without reference to the Supreme court decision in the case of Agyeman v Boadu Kwadwo II, Tafohene (substituted by) Nana Ponko Baffour, court of Appeal, 8 February 1994, unreported, which had determined as to which odikros in Ashanti may swear the oath of allegiance direct to the Golden Stool. The decisiorn is binding on all the chieftaincy trinbunals, all the traditional courts in Ghana and the Supreme Court itself which, in principle, is bound by its previous decisions under article 129 (3) of the Constitution, 1992. Nothing special or peculiar has been established by the facts of this case to justify a departure from the principles laid down in the above case.

The Supreme Court decision (supra) affirmed a decision of the judicial committee of the Kumasi Traditional Council given on 4 October 1994, which had earlier been affirmed by the National House of Chiefs on 19 March 1992. The latter decision laid down two conditions which must be satisfied for an odikro to justify his claim to swearing an oath of allegiance direct to the Asantehene. These conditions are:

(a) that the odikro must perform a direct duty or duties tlo the Golden Stool; and

(b) that on the death of the occupant of the Golden Stool, the said odikro must swear to the deceased body of the Asantehene lying in state and that on the death of the said odikro, the Golden Stool must be represented at his funeral.

The above conditions must co-exist. The respondent did not, on his evidence, satisfy the above two requirements. His claim to supplying fish (which had ceased) to the Asantehene was not direct but was through an intermediary.

It is trite law that primary findings of fact are the preserve of trial tribunals, and whenever such findings are supported by evidence on record, they are not to be disturbed. Such findings ought to be respected through the hierarchy of the courts unless they are not supported by evidence on record or are considered to be unreasonable on the facts of the case as presented: see Quaye v

[p.1047] of [1997-1998] 2 GLR 1039

Mariamu [1961] 1 GLR 93, ScC and Nkansah v Adjebeng [1961] 1 GLR 465. It is not open to an appellate court to usurp the function of making primary findings of fact by saying if it were trying the case it would have accepted the evidence of this or that witness. That is the preserve of the trial court.

In the instant case, the trial chieftaincy tribunal had directed itself to the issue posed for determination. After carefully considering and reviewing the two rival stories put up by and on behalf of the parties, the tribunal preferred, on the preponderance of evidence, especially on matters within living memory, the case presented by and on behalf of the appellant to that bought by and on behalf of the respondent. All the findings made in favour of the appellant are supported by evidence on the record. The trial tribunal rejected the evidence brought by and on behalf of the respondent. The trial tribunal further rejected the evidence of the respondent and his witnesses that the Asaago Stool swears the oath of allegiance direct to the Golden Stool; it further rejected the evidence that any of the ancestors of the Asaago Odikro had ever sworn the oath of allegiance direct to the Golden Stool. The burden of proving this rested on the respondent; he failed to dischage that burden and was thus unable to bring himself within the principles and conditions laid down in the Agyemang case (supra).

It is pertinent to note that in this case the Asaago Obaapanimn, who owns the Asaago Stool and nominates its occupants, testified that the Asaago Odikro swears the oath of allegiance to the Taahyenhene. Her evidence was substantially supported by the observation made by the members of the Kumasi Tradiitional Ccouncil in exhibit Cc, which was accepted by the trial chieftaincy tribunal, hence its judgment in favour of the appellant. It therefore surprises me that in the face of such overwhelming evidence olf established facts or events within living memory tendered at the trial in favour of the appellant and accepted by the trial tribunal after a careful review of the evidence, over which neither the trial tribunal nor any of the appellate chieftaincy tribunals expressed a doubt or difficulty in arriving at a decision one way or the other on the facts as were presented, this court is now being invited to remitl to the National House of chiefs, this plain and simple issue as toc which of the two rival stories touching the issue of allegiance was to be preferred to the other, which issue each of the lower courts had determined.

[p.1048] of [1997-1998] 2 GLR 1039

To me, the trial traditional council was right in its view in resolving that issue in favour of the appellant. Its judgment is unimpeachable. The judgments of the judicial committees of both the regional house of chiefs and the National House of Chiefs, which decided otherwise, are wrong and ought to be so held. I would therefore allow the appeal.

Charles Hayfron-Benjamin JSC. The plaintiff in the case, who is now the appellant before us, swore the Great Oath of Asante in respect of his claim to title to “Asaago town and its outskirts.” He also claimed that the odikro stool of Asaago owed allegiance to the occupant of the Taahyen stool. The majority of Nanamom in the judicial committee of the Kumasi Traditional Council gave judgment in favour of the plaintiff to the effect that: “Asaago and all its outskirts belong to the Taahyehene.” Since the judicial committee of the Kumasi Traditional Council has no jurisdiction in land matters, that decision was null and void and of no effect. Nananom in both the Ashanti Reigonal House of Chiefs and in the National House of Chiefs had no difficulty in identifying this illegality and set it aside.

Interest in this decision arises because the plaintiff, now the appellant before us, prays that this court should set aside the judgment. of the chieftaincy tribunal of the National House of Chiefs, which had affirmed the decision of the Ashanti Regional House of Chiefs, and enter judgment in his favour. The effect of such a judgment, in my respectful opinion, would be to grant him the reliefs which he sought in the Kumasi Traditional Council and inferentially grant him title to the Asaago town and its outskirts lands. Such a judgment cannot stand. I think the case of Mosi v Bagyina [1963] 1 GLR 337, SC may be invoked in expunging such a patently illegal and unwarranted decision from the record. Accordingly, I would set aside the declaration of the judicial committee of the Kumasi Traditional Council that the Asaago town and its outskirts belong to the Taahyenhene.

Before us the appellant contends:

“The central issue calling for determination as far as this appeal is concerned is whether or not the Asaago stool owes allegiance to the Taahyen stool and whether or not the defendant-respondent was clothed with the requisite capacity to initiate this action.”

[p.1049] of [1997-1998] 2 GLR 1039

Dealing with the issue of capacity first, 1I think the appellant confuses the oath-swearing procees with a counterclaim. The Kumasi Traditonal Council, by their majority, also fell into the same error. A customary oath to initiate an action must be responded to by a similar oath, either denying the assertion in the oath or making a counterclaim to the same or a superior subject- matter. it is only then that issue is joined and the matter may be adjudicated upon. It is a statutorily recognisable form for insti tuting a cause or matter affecting chieftaincy. In the circum stances, if the person upon whom the oath is pronounced does not respond to the oath, that person must be customarily arrested (Dadua); and there is then admission of liability or guilt by the person who fails to respond to the oath, and a fine and customary sanctions are imposed.

In the present situation, I do not think it is proper for the appellant to swear to a customary oath instituting a cause or matter affecting chieftaincy and claim that the respondent had no “capacity to initiate his action.” First of all, by swearing in response to the appellant’s oath, the respondent was not thereby making a counterclaim. If the appellant knew that the respondent was not the proper person upon whom the oath was to be sworn, then, he had sworn a reckless oath (Ntamhunu), for which he must suffer the customary sanctions. I do not think that the appellant is serious in his challenge to the respondent’s capacity, for, if the appellant persists, then, the judicial committee of the Kumasi Traditional Council must dismiss his claims. The good sense in this decision is that a party cannot institute an action against another when he (the party) knows that the other has no capacity and pray the court or tribunal to give judgment in that party’s favour. In my respectful opinion, the objection to the capacity of the respondent was irrelevant or, perhaps, had been waived. The issue of capacity is raised because the appellant lost in the two lower tribunals to this court.

There is yet another objection. The appellant had lost in both the Ashanti Regional House of Chiefs and National House of Chiefs and now seeks further to ventilate his grievance before us. The judgment of this court in Agyakoma v Opuni [11987-88] 1 GLR 47, SC is clear on the point and the holdings as distilled by the learned editor at 48 thereof are instructive and will bear compliance by his court. For the sake of regu’larity ‘I ifwill set them down thus:

[p.1050] of [1997-1998] 2 GLR 1039

“Held, dismissing the application: (1) the National House of Chiefs was the highest traditional judicial body in the country and consequently it was the authoritative exponent of the customary law in Ghana and its opinion had to be preferred to those of lessetr tribunals. The unanimous views of the judicial committees of the Ashanti Regional House of Chiefs and that of the National House of Chiefs therefore, in the absence of very convincing argument to the contrary, had to command the highest consideration and would prevail with the court. Dictum of Azu Crabbe CJ in Sarkodee v Boateng II [1977] 2 GLR 343 at 348, CA (full bench) applied.

(2) Since the factual matters raised had been adequately dealt with by the appellate traditional tribunals below, and the defendant had not discharged the burden she faced with two concurrent decisions against her, she could not re-agitate any of the matters raised with any degree of success and accordingly it would be pointless to allow her leave to appeal. Srimati Bibhabati Devi v Kumar Ramendra Nayaran Roy [1946] AC 508, PC and Akrofi v Wiresi and Abagya (1957) 2 WALR 257 cited.”

Their lordships in the Agyakoma case (supra) emphasized that “in the absence of very convincing argument to the contrary”, the unanimous views of two high chieftaincy committees would prevail with the court.” I accept the dicta in the Agyakoma case (supra), and I think this court is bound by that decision unless of course there are convincing arguments to the contrary.

It was with these matters in mind that I tried to prevail on my learned and respected brethren to let us seek clarifications on some aspects of the customary laws and practices relevant for the consideration of the issues in this case. I fear therefore, that our inability to do so may seriously affect the quality of our opinions. In so saying, I am fortified by the provisions of the Chieftaincy Act, 1971 (Acét 370), and Courts Act, 1993 (Act 459) which make it obligatory on courts and tribunals to consult the appropriate customary laws and practices, textbooks and other sources in the ascertainment of customary law. Contrary to what learned counsel for the appellant says that customary law is a question of fact, by the Constitution, 1992 customary law is a question of law. It must therefore be ascertained with a certain exactitude so as to express the customs of the communities which practice it.

[p.1051] of [1997-1998] 2 GLR 1039

In Boampong v Aboagye [1981] GLR 927, the Supreme Court did not think it below its dignity to consult the National House of Chiefs on the proper circumstances under which a chief may be said to have abdicated. The Supreme Court decision subsequent to the enquiry reflected on the quality of the advice so given. In the absence of such enquiry, we are bound to rely on our knowledge of the customary law and as revealed by the record. We must, however, bear in mind that we cannot substitute logic for customary law.

I agree with the appellant’s counsel that the central issue in this appeal is whether the respondent stool owes allegiance to the appellant stool. This is undoubtedly a cause or matter affecting chieftaincy. The majority of nananornm in the Kumasi Traditional Council, however, mixed the issue of title to the Asaago township with allegiance of one stool to the other. Nanamon in both the Regional and National House of Chiefs found correctly that the two matters could not be jointly assessed to arrive at the decision which the majority in the judicial committee of the Kumasi Traditional Council reached. Nanamon in the regional house of chiefs said:

“Perhaps the issue which when determined would dispose of this appeal hinges on whether the Asaago Stool swears to Taahyen Stool or to the Asantehene directly prior to determining the issue from the evidence on record. It is imperative to bear in mind that in the hierarchy of chiefs one chief may be subordinate to another but that alone does not connote subservience. Similarly, it does not also imply that the one lower in status swears the oath of allegiance to the one higher in the hierarchy. From this premise, there is evidence on record that the Asaago Odikro swears before the Taahyehene in front of the Otumfuo, which in our view merely illustrates the point that the two stools belong to the same Fekuo. This traditional ceremony in no way implies that the Asaago Odikro is subservient to the Taahyen Stool or that the former necessarily swears the oath of allegiance to the latter.”

It is obvious that the majority decision did not consider this cardinal principle of the customary law of allegiance, ably enunciated by the paramount chiefs of Ashanti constituting the jU(ludi cial cornrrnmmittee of the Ashanti Regional House of Chiefs.

[p.1052] of [1997-1998] 2 GLR 1039

How such allegiance may be proved was firmly stated in the minority opinion in the Kumasi Traditional Council when Nana wrote:

“… the odikro of Asaago has not, in fact, sworn any oath of allegiance to the Taahyehene, because the laid down tradition and custom of Ashanti for swearing of oath of allegiance was not followed by not using any traditional sword (afena) to swear the oath of allegiance to the Taahyenhene.”

This was a crucial finding by the minority, which correctly stated the custom and negatived the peripheral findings of the majority. The statement was straight and simple: “no traditional sword used, rino valid swearing of the oath of allegiance.” The evidence on record was certain that the odikro of Asaago had not sworn any oath of allegiance to the Taahyehene. The Asaago Odikro, in evidence in chief, and giving evidence on behalf of the appellant, stated categorically that he did not swear any oath of allegiance to the Taahyenhene. Rather, he danced before him, and that was all. Yet, again, the appellant could not name the traditional sword by which the respondent swore the oath of allegiance to him.

Did the appellant have a traditional sword by which he could take the oath of the respondents? The clear answer is, No! Exhibit A, which was admitted without objection, refers to Taahyen stool Affairs. From that exhibit, it was shown that both the appellant and the respondent belong to Kyidom fekuo, whose leaders are the princes of the Golden Stool, such as the Akyempimhene and the Ankaasehene. By the same exhibit A, the appellant swears by the traditional sword called Gyapatia.

Now, the Ahwehweba is the lowest of the swords of chivalry in the hierarchy of Asante State swords used in pledging a chief’s allegiance to the Asantehene. It is so used by Odikrofo and lesser chiefs. The assertion therefore that appellant belongs to the Obinempong class known as Agudie could not be correct, as otherwise he would be swearing by the principal traditional sword called Mpomponsuo. The sword by which the appellant swears —Ahwehweba—means that he is an ordinary odikro, and therefore he only has elders and not sub-chiefs. Thus the appellant and his elders would use the same sword in swearing their allegiance to the Asantehene. The respondent was not proved to be an elder of the Taahyen stool. It was because the respondent mistakenly got into the Kvyidotnm Fekituo line when the appellant was sweairing his

[p.1053] of [1997-1998] 2 GLR 1039 oath of allegiance, that the appellant contends that he owes allegiance to him. Such a state of affairs was denied by Oheneba Bekoe the Mmarimahene of Akyempim stool who said it was a serious error which should have been corrected. The witness was right, for, he was aware that the respondent swore by the traditional sword Gyapatia.

Now, what is this traditional sword Gyapatia? There was evidence that this sword is used by chiefs who perform personal service of supplying food to the Asantehene or, for want of a better expression, supply the the Asantehene with victuals which he would eat. Such a chief would in addition, “drink the gods” (Nanabosim) with the Asantehene. Now “drinking of gods” means taking an oath of secrecy. Captain Rattray in his learned treatise on Ashanti Constitution gives an example of the occasion of the return of the Juabens from exile back to Asante from Akinim Abuakwa that the Juabens chiefs were made to “drink the gods” never to divulge any secrets or sensitive knowledge they had acquired during their sojourn in Akim Abuakwa. There was uncontroverted evidence on record that:

“Later the Asantehene, Nana Osei Tutu, enquired from the visitors (that is the respondent’s ancestors) the form of traditional services they used to perform to the Denkyira stool. They replied Otumfuo that when they were at first domiciled at Denkyira they used to fish to serve the Denkyirahene. The Asantehene accepted the visitors and decreed that they should “drink” abosom (to drink fetish) to cement their loyalty and allegiance to him.”

In the face of this close traditional tie with the Asantehene, how could the appellant also claim that the respondent owes allegiance to him?

In my respectful opinion, not much traditional history of eitheri party was disclosed. It was agreed that both parties were emigrants from Denkyira. Indeed, it is agreed that both parties eventually settled on the banks of the Oda River. The difference, however, was in how they came to settle on the banks of that river. For the appellant, the land was given to him by the Asantehene “on a silver platter.” For the respondent, his ancestors came from Denkyira in search of a relative, Mawoso, who introduced him to the Akyepimhene who also led him to his father, the Asantehene. It was when the Asantehene discovered that they were fishermen

[p.1054] of [1997-1998] 2 GLR 1039 to the Denkyirahene that he asked the Akyempimhene to settle them by the Oda River. That the respondent’s ancestors were fishermen for the Asantehene was confirmed by the Oti Odikro, the respondent’s neighbour who fulfils a similar function for the Asantehene. The parties both belong to the Kyidom Fekuo. But the appellant swears by the Gyapatia traditional sword. Exhibit B is a letter indicating there was a relationship between the parties in respect of both familiar and formal proceeds from land sales in the area of settlement.

In my respectful opinion, the assessment of the traditional evidence was poor and contained fallacious statements not warranted by the evidence. Thus wrote the majority of Nananom in the judicial committee of the Kumasi TraditionaIl QCouncil:

“It is to be noted that in accordance with the Asante Constitution a thigh of a slaughtered sheep is always sent to inform a superior chief of his subordinate chief’s destoolment. And this is exactly what happened in the Asaago case.”

Yet in exhibit C, the proceedings, the charge was that the appellant had sworn the Great Oath of Asante to destool the Asaago odikro. The majority decision also admitted that it was the Akyempim-hene, the Ankaasehene and the Amantemhene who, as leaders of the Kyidom Fekuo, “sought Otumfuo’s per mission to enable Taahyenhene to swear the oath of allegiance to him.” The judgment then castigates the Akyempimhene for not swearing the Great Oath on the Asaago Odikro when he saw him swearing in front of the Taahyenhene. I think there is ample evidence that it was a mistake, and I accept it.

In all the circumstances, the majority of the judicial committee of Kumasi Traditional Council failed to test any valid recent act or acts against the traditional histories of the parites. I think the principle enunciated in Adjeibi-Kojo v Bonsie (1957) 3 WALR 257 at 260 must be understood in its proper perspective. Where the trial court or tribunal prefers one history to the other, the principle does not apply. It is only when the trial tribunal is in doubt about which rival story to prefer that it must look for evidence of recent acts. But I will go forward and say thati application on the Adj]eibi-Kojo (supra) principle must be pre dicated on the rival claims to the same property, office allegiance or some such claim. In my respectful opinion, in the presenti appeal, there are no rival claims to the same allegiance. The [p.1055] of [1997-1998] 2 GLR 1039 appellant claims the respondent owes allegiance to him. The respondent says he owes allegiance to the Asantehene. It is a matter of evidence, as confidently enunciated by the Ashanti Regional House of Chiefs, what the true position is. The Adjeibi -Kojo (supra) principle could not apply. This was the view taken by Nananom in the regional house of chiefs and supported by the National House of Chiefs. Thus wrote Nananom:

“We are also mindful of the respondent’s counsel’s sub mission that where traditional history is unreliable events must be resorted to in compliance with the principle laid down in the celebrated case of Adjeibi-Kojo v Bonsie (1957) 3 WALR 257. However, we have to state that events must have a bearing with the past, however remote. It is in this light that this committee again accepts without any reservation the evidence of the appellant (respondent before the Supreme Court) in preference to that of the respondent (now the appellant before the Supreme Court.) The appellant’s version on the founding of the Asaago and Taahyen stools is more reasonably probable, and this committee accordingly accepts it. Hence the appellant’s claim that Asaago stool swears directly to the Asantehene is not in doubt.”

The National House of Chiefs, in confirming the decision of the Ashanti Regional House of Chiefs, agreed that the respondent’s evidence was the “more probable.”

I have in this opinion tried to illustrate that it would repay a visit by this court to the traditional authorities and others for explanation as to the purport and significance of such emblems as traditional swords and the implication of their application within the performance of traditional ceremonies and the effect on the constitutional relationships, if at all, between any two chiefs. As it happened, I must express my regret that this court was unable to consult the traditional bodies on the vital customary issues raised by this appeal, without which the decision of this court may be honoured more in its breach than in its observance. No court or tribunal has the right or authority to make a pronouncement or alter the course and application of our customary laws. Our Constitution decrees that the customary law is that which is practiced and accepted by our various communities. When there is doubt as to be correctness of the customary law or pracrtice,

[p.1056] of [1997-1998] 2 GLR 1039 statute enjoins all courts and tribunals to enquire from the statutorily stated sources.

In the result, I would dismiss this appeal. The judgments of the judicial committee of the National House of Chiefs and the Ashanti Regional House of Chiefs are affirmed. The judgment of the judicial committee of the Kurnmasi Traditional Council is set aside and in its place, I would enter judgment for the defendant -respodnent in that tribunal.

Kpegah JSC. I would also allow the appeal in this case.

Acquah JSC. This appeal from the judgment of the judicial committee of the National House of Chiefs reveals that notwithstanding the clear guidances by the Privy Council per Lord Denning in Adjeibi-Kojo v Bonsie (1957) 3 WALR 257 at 260 (on the method of assessing rival traditional evidence,) some of our courts and tribunals still have some difficulty in the assessment of traditional evidence.

Now, traditional evidence is derived from tradition or reputation or statements of deceased persons with regard to questions of pedigree, ancient boundaries and the like, when no living witnesses are available to testify about such matter. Thus the person who is himself narrating such evidence has no personal knowledge about the matters to which he is testifying. The same usually applies to the person who also told the person testifying. Such evidence is therefore hearsay evidence, and had the common law and sections 128 and 129 of the Evidence Decree, 1975 (NRCD 323) not made same admissible as’ an exception to the hearsay rule, such evidence would undoubtedly have been inadmissible.

Now, as was observed by Lord Denning in delivering the opinion of the Privy Council in Adjeibi-Kojo v Bonsie (1957) 3 WALR 257 at 260:

“The dispute was all as to the traditional history which had been handed down by word of mouth from their forefathers. In this regard it must be recognized that, in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatsoever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago.”

[p.1057] of [1997-1998] 2 GLR 1039

In most instances, the coherence of a party’s traditional evidence depends on the level of intelligence of the witness narrating. For a story told to two persons would be differently recounted by each of them. Yet both heard the same story.

Accordingly, in assessing rival traditional evidence, the coherence of a party’s version or his demeanour should not be the sole criterion for its preference over the other version; what is important is to find out which of the rival versions is authenticated by acts and events within living memory, especially where such acts and events are acts of possession and ownership by a party claiming ownership and title to the subject-matter of the claim. For, what raises a presumption of ownership in favour of a party is not his impressive demeanour nor the coherence of his traditional evidence, but acts of possession and ownership he exercises over the subject-matter of the action. Thus in Dua III v Tandoh (1927) PC ‘’74–’28, 109 wherein the trial judge, relying on the coherence of one party’s traditional evidence in preference to the other’s act of possession, found for that party, the Privy Council, in disapproving such a finding, said at 110:

“Their Lordships are clearly of opinion that the facts proved and admitted establish that the Bekwai people are in possession of the disputed land, and this fact throws upon the respondent the burden of proving his title . . . The real question is, did the evidence rebut the prima facie title of the Bekwais shown by possession? The learned trial judge who tried the case thought that it did not, and relied upon the evidence of one Yaw Atwidei . . . this evidence was traditional; . . . But traditional, though of great value when supported by action and facts, becomes of lessened consequence when brought into collision with a series of definite incidents inexplicable if the tradition be regarded as accurate.”

Now, this presumption of title raised by the possession and ownership now appears as section 48 of the Evidence Decree, 1975 (NRCD 323), which reads:

“48. (1) The things which a person possesses are presumed to be owned by him.

(2) A person who exercises acts of ownership over property is presumed to be the owner of it.”

[p.1058] of [1997-1998] 2 GLR 1039

It follows from the foregoing that a party can succeed in his claim even if his traditional evidence is rejected. And so in Ebu v Ababio (1956)2 WALR 55 at 57 it was held:

“Traditional evidence has a part to play in action for declarations of title but there are cases in which a party can succeed even if he fails to obtain a finding in his favour on the traditional evidence.”

As pointed out above, it is against the background of events and acts within living memory that rival traditional evidence should be assessed and not by the demeanour of the party nor the coherence of his version, because those who are narrating the story, and indeed those who told these witnesses, had no personal knowledge of the events they are testifying about. And an intelligent witness may be able to render his story more coherent than the other party, though his version may be false. Hence the need to ensure that notwithstanding the brilliant and confident way a version of the traditional evidence had been recounted, that version is in accord with or supported by events and acts in recent years. For, as directed in Adjeibi-Kojo (supra) at 260:

“Where there is a conflict of traditional history . . . the best way is to test the traditional history by reference to facts in recent years established by evidence and by seeing which of two competing histories is the most probable.”

Explaining the import of the above guideline, Edward Wiredu JSC in Adjei v Acquah [1991] 1 GLR 13 at 29-30, SC said:

“I do not think the guidelines . . . are to the effect that for a plaintiff to succeed his traditional story must be accepted as proved. This is not a sine qua non to succeeding: see Edu v Ababio (1956)2 WALR 55. What the authorites require is that such stories must be weighed along with recent facts as acts of exercise of rights of ownership to see which of the two rival stories appear more probable. Facts established by matters and events within living memory, especially evidence of acts of exercise of ownership and possession, must take precedence over mere traditional evidence.”

To sum up, in assessing rival traditional evidence, the court must not allow itself to be carried away solely by the impressive manner in which one party narrated his version and how coherent

[p.1059] of [1997-1998] 2 GLR 1039 that version is; it must rather examine the events and acts within living memory established by the evidence, paying particular attention to undisputed acts of ownership and possession on record; and then, to see which version of the traditional evidence, whether coherent or incoherent, is rendered more probable by the established acts and events; and finally, the party whose traditional evidence such established acts and events support or render more probable must succeed unless there exists on the record of proceedings, a very cogent reason to the contrary.

On the basis of the above exposition, let me now turn to the appeal. But first the facts. The Taahyenhene of Kumasi, Nana Kwame Gyamfi Kumanin II, swore the Great Oath of Ashanti:

(i) that the Asaago town and its outskirts belong to the Taahyen Stool of Kumasi; and

(ii) that the odikro of Asaago owes allegiance to the occupant of Taahyen stool of Kumasi;

To this, the defendant countermanded by swearing the said oath:

(i) that the lands of Asaago were gifted to the defendant’s ancestor, Kwame Gyasi, by the Asantehene through Ankaasehene of the Kyidom division of Kumasi;

(ii) that the odikro of Asaago owes allegiance to the Asantehene.

At the trial, which took place before the judicial committee of the Kumasi Traditional Council, the plaintiff, Nana Kwame Gyamfi Kumanin II, traced his ancestry from Denkyira to Taahyen where he said they were settled by Otumfuo, Naa Osei Tutu, who created a stool for them and conferred the customary duty of supplying him with tobacco on them and as insignia of that office, he gave them two pipes and made them swear directly to him. The village of Asaago, he continued, was gifted to his ancestors. He then enumerated those who had since occupied the Taahyen stool as Nana Gyamfi Kumanin I, Kwame Frimpong, Kwame Gyekye, Kwabena Kununky, Kwame Antwi Agyei, Kwadwo Boaduaa, Kwame Antwi Agyei Tiaa, Kwame Poku, Kwadwo Agyekum and finally, he himself. He said it was his predecessor, Nana Kwame Poku, who created the first odikro of Asaago village in the person of Kwame Gyasi, who was later destooled and replaced by Ama Hiaa, as there was no male successor. She was in turn succeeded by Yaa Obo. He said the present odikro of Asaago, Kwame Gyasi, swore the oath of allegiance to his Taahyehene’s predecessor called Nana Agyekum.

[p.1060] of [1997-1998] 2 GLR 1039

The plaintiff stated further that he himself swore the oath of allegiance to the Asantehene, Nana Opoku Ware, on 26 May 1975 and that at that swearing, the Asaago odikro swore in front of him as custom demands. And in support of this, he tendered as exhibit A, the document on the said swearing from the Kumasi Traditional Council. He then enumerated a series of acts and events in his favour evidencing his overlordship over the Asaago village and concluded with the incident of 23 October 1990 when the defendant, in the company of others and with a thigh of a sheep, called on him at his village and informed him that, he, the defendant, had slaughtered a sheep to destool the Asaago Odikro, because the Asaago odikro had collaborated with him, the Taahyehene, to deny the Asaago people of their lands. At this juncture, the plaintiff said he swore the great oath of Ashanti to affirm that the Asaago village and its outskirts belong to the Taahyen stool and that the Asaago stool owed allegiance to the Taahyen Stool.

In support of his case, the plaintiff called Baafour Awuah, as the first plaintiff witness who testified on the 23 October 1990 incident; Yaa Asantewaa, the obaapanyin of Asaago, as the second plaintiff witness who confirmed that the Asaago stool owed allegiance to the Taahyen stool, that Asaago land belong to the Taahyen stool, and that the defendant, his grandson, was not the head of the Asaago stool family; and finally the odikro of Asaago, Nana Kwame Gyasi, as the third plaintiff witness, who also supported the plaintiff ‘’s claim that the Asaago stool owed allegiance to the Taahyen stool.

The defendant, described in the summons as ebusuapanyin of the Asaago Stool Family, traced his ancestry to one Kusi, a native of Denkyira, who came with his people to Ashanti in search of one Amponsem, also a native of Denkyira. They found him and were introduced to the Otumfuo by the Akyempimhene and the Ankaasehene. He said when Otumfuo saw that his ancestors were fishermen, he settled them near the River Oda and made them swear to him to be faithful and to supply him with fish. They were placed in the Kyidom Division as their sub-divisional head, although they swear directly to Otumfuo. He said his ancestors migrated to Denkyira with their own black stool and god called Atiekesia. On the relationship between the Asaago Stool and the Taahyen stool, he said it was only a long friendly one, and not one of master and servant.

[p.1061] of [1997-1998] 2 GLR 1039

In support of his case, the defendant called Nana Owusu Bekoe, the Akyempimhene’s Mmamahene, as the first defendant witness, who testified on the traditional history as narrated by the defendant; Ama Serwa, the Obaapanyin of Odaso, as the second defendant witness, who also supported the defendant’s traditional history, and, finally, Nana Osei Ababio, the third defendant witness, who testified that during the Nkrumah Regime, people in their area decided to build a new township with Asaago as theirn head village. He said permission for this new township was obtained from the Ankaasehene.

The judicial committee of the Kumasi Traditional Council, relying on events and acts within living memory as established by the evidence, by a majority of two to one, gave judgment for the plaintiff. The judicial committee of the Ashanti Regional House of Chiefs, relying on what they perceived to be improbabilities in the plaintiff’s traditional evidence, unanimously reversed the judg ment of the trial court. On the plaintiff’s claim to the ownership of Asaago, they held, rightly in my view, that that was not a claim within the competence of chieftaincy tribunals. On further appeal to the judicial committee of the National House of Chiefs, the judgment of the regional house of chiefs was affirmed by a split decision of three to two. It is against this split decision that the plaintiff lodged the instant appeal to this court on the grounds that:

“(i) The chieftaincy tribunal of the National House of Chiefs, made a wrong finding of fact by determining the issue of allegiance solely on traditional history without taking into consideration recent facts and events;

(ii) the chieftaincy tribunal of the National House of Chiefs, erred in law by holding that the the respondent swore oath of allegiance directly to Asantehene, even though the res pondent has not complied with the conditions necessary before an occupant of a stool in Ashanti can swear direct ly to the Asantehene; and (iii) the chieftaincy tribunal of the National House of Chiefs, erred in law when it held that the respondent had capacity to respond to the oath sworn to by the appellant.”

Now, from the grounds of appeal and the undisputed fact that chieftaincy tribunals have no jurisdiction to determine land suits, the issues for resolution in this appeal are first that of the

[p.1062] of [1997-1998] 2 GLR 1039 defendant’s capacity, and then, the claim that the Asaago Stool owes allegiance to the Taahyen Stool.

In his written submission, the plaintiff contended that from the evidence of Yaa Asantewaa, the second plaintiff witness, the defendant was not the head of the Asaago family and therefore not competent to respond to the oath of the plaintiff, and the majority of the National House of Chiefs erred in holding otherwise. I really find it difficult to comprehend the import of the plaintiff’s objection to the defendant’s capacity because through-out the trial, it was not the case of the plaintiff that the defendant had no capacity to respond to his oath. And if, indeed, the defendant did not have such capacity, but nevertheless the plaintiff chose to sue a person he knew did not have capacity to defend his action, then, it is the plaintiff’s action which ought to be thrown out as having been directed at the wrong person. But I agree with the decision of the National House of Chiefs that as a member of the Asaago Family, he is entitled to defend the action so as to defend the interest of that family, even if he is not the head of that family.

On the issue of allegiance, the plaintiff referred to this court’s decision in Agyeman v Boadu Kwadwo II, Court of Appeal, 8 February 1994, unreported, wherein this court accepted that for a stool to owe allegiance direct to the Otumfuo, the following conditions must be satisfied:

(a) the occupant must perform direct duties to the Asante hene; and

(b) on his death, the Asantehene must be represented while lying in state, or on the death of the Asantehene while the body is lying in state, he must swear the oath of allegiance to the dead body of the Asantehene.

He contended that there was no evidence that any of the above conditions had been satisfied by the defendant, and therefore the National House of Chiefs erred in so finding.

Now, the evidence led by both parties was mainly traditional but the judicial committee of the regional house of chiefs, whose decision was upheld by the judicial committee of the National House of Chiefs, expressed its approach to the assessment of the evidence as follows:

“Our desire as a committee to rely on a recent event such as whether the Asaago Odikro swore the oath of allegiance to the

[p.1063] of [1997-1998] 2 GLR 1039

Taahyehene at the former’s installation is of no assistance to us.”

And on the basis of what they perceived to be improbabilities in the evidence of the plaintiff’s witnesses, the National House of Chiefs, too, affirmed the approach and conclusion of the regional house of chiefs. Thus in respect of the evidence of the first plaintiff witness, for instance, the majority of the National House of Chiefs reasoned that:

“The explanation (of the respondent) may be reasonable because in the first place Baffour Awuah was not shown to be an Okyeame of Taahyehene so sending the thigh of sheep officially through him to Taahyehene is not customary and that sort of evidence should be disbelieved.”

From the exposition on the proper assessment of traditional evidence, it is clear that the above method of assessment by the National House of Chiefs is wrong. For, the evidence clearly established that the defendant, in the company of others, took the thigh of a sheep to the plaintiff to inform him that the Asaago odikro had been destooled.

The proper approach therefore to the assessment of the evidence is.;: how far does this undisputed event and other events and acts established by the evidence, support or does not support either of the rival traditional evidence led in respect of the authority to which Asaago Stool owes allegiance.

On the part of the plaintiff there is first, exhibit A, dated 26 May 1975 and headed Taahyen Enstoolment Affairs, which showed that when the plaintiff swore before the Otumfuo on 26 May 1975, the Asaago Odikro swore in front of him. And, in respect of this event, the defendant was thus cross-examined:

“Q You claim you swear to Otumfuo, why is it that the Asaago chief swears in front of the Taahyenhene?

A It is uncustomary for the Asaago odikro to swear in front of the Taahyenhene at Manhyia Palace. Again, we were not aware of Asaago odikro going to swear in front of the Taahyehene otherwise we would have opposed that move.”

The above answer from the defendant did not deny the fact of the said sweanring in. Now it was further put to the defendant:

[p.1064] of [1997-1998] 2 GLR 1039

“Q I put it to you that you yourself accepted the installation proceedings from Manhyia Palace.

A Yes, I remember I accepted the installation proceedings which you tendered.”

Now, in Ashanti custom, the very fact that the Asaago odikro swears before the Taahyehene at Manhia Palace signifies that the Asaago odikro owes allegiance to the Taahyehene. And the defendant’s own witness, Nana Owusu Bekoe, the first defendant witness, was made to acknowledge and admit this custom when he was cross-examined as follows:

“Q Do you know that in accordance with Asante cusLtom, if a divisional head (fekutire) is swearing the oath of allegiance, all the fekuo members swear in front of him?

A Yes I know that it is the laid down custom for all fekuo members to swear in front of the divisional head.”

Such a confirmatory evidence from the defendant’s witness in support of the plaintiff’s version renders the plaintiff’s version preferable to that of the defendant’s version.

Now, when the first defendant witness, after the above submission, was confronted with the obvious question as to why he was alleging the Asaago odikro swears directly to the Otumfuo when the event of 26 May 1975 was to the contrary, he answered by claiming ignorance of the happening of that event. He answered:

“A If it is true that Asaago odikro swore in front of you at Manhyia Palace, then, it means that Asaago odikro had assumed a wrong chieftaincy title. It was an anomaly on the part of the

Asaago odikro to swear in front of you and that anomaly should be rectified.”

One may ask, when? Exhibit A clearly shows that the event did indeed take place. But such an answer claiming ignorance cannot help the witness nor the defendant since the swearing in ceremony, evidenced by exhibit A, was arranged by the first defendant witness’s overlord, the Akyempimhene, together with the Ankaasehene —– the two chiefs whom the defendant claimed were the overlords of Asaago village. It is put to the first defendant witness:

[p.1065] of [1997-1998] 2 GLR 1039

“Q I put it to you that Akyempimhene, Ankaasehene and Oheneba Hiahenene and Akumantihene went to seek permission for my swearing of oath of allegiance?

A Yes, I agree that the above chiefs sought permission for your swearing.”

The second recent act in favour of the plaintiff is the writing of exhibit B, the letter dated 7 June 1989. Written by the defendant to the plaintiff at a time when no litigtion was in view, it clearly evidences the defendant’s admission of the subordinate position of the people of Asaago to the Taahyehene. In this letter, the defendant talked about the plaintiff selling some sand at Asaago and giving some• of the money from the sale to some people at Asaago, without the defendant and some of the family members having a share. He pleaded for their share, reminding the plaintiff that “we are all your children, and we all belong to you.” Now, if the relationship between Asaago and Taahyen Stools is only one of friendly relationship, with what authority can the plaintiff go to Asaago to sell sand, and how can the defendant write that he and his family members are all children of the plaintiff and belong to him?

The third event was the presentation of the thigh of a sheep by, again, this same defendant, in the company of others, to the plaintiff to inform him of the alleged destoolminent of the Asaago odikro. Now, whatever explanation the defendant attempted to offer, it was not denied that the event took place. And as the majority decision of the trial tribunal rightly observed, it was in accordance with Ashanti custom that a thigh of a slaughtered sheep is always sent to inform a superior chief of the destoolment of his subordinate chief. The defendant explained that he sent the thigh for onward transmission to the Akyempimhene. Did the defendant later check to find whether the Akyempirnmhene received the said thigh? And having regard to the defendant’s statement in his letter, exhibit B, that he and his family members were all children of the plaintiff, there is no doubt that the thigh was meant for the.. plaintiff, the “father” of the defendant and his people. The above events and acts positively give evidence to the plaintiff’s claim that the Asaago stool owes allegiance to his stool.

Now, on the part of the defendant, who claimed that the Asaago stool owed allegiance direct to the Otumfuo, he could not testify to a single event in living memory at which an Asaago odikro swore

[p.1066] of [1997-1998] 2 GLR 1039 directly to the Asantehene. The defendant, who claimed that his ancestors migrated to Ashanti with their own god and black stool, said no one was occupying that black stool. He was asked:

“Q Who is the present occupant of the black stool which you brought from Denkyira?

A No one is currently occupying that stool we brought from Denkyira.”

And as to why no one is occupying that stool, he answered: “It is because we did not have male royals to occupy the stool for us, that is why the stool was left vacant.” Again the defendant testified that his ancestors drank fetish to owe allegiance to the Otumfuo and were assigned the duty of supplying fish. But there is no single act or event in living memory when any such fish were sent to Otumfuo, or any event showing that such fetish was drunk. Indeed, while the defendant himself testified that his family had stopped the supply of the fish to Otumfuo, the first defendant witness said the practice was still in existence, and yet he could not mention a single such incident. The defendant was asked:

“Q May we know whether you still continue supplying the Asantehene with fish?

A No, we have stopped with the supply of fish to the Asantehene.”

To the contrary, the first defendant witness, in his evidence in chief, said: “From time immemorial, the visitors had always taken fish from River Oda to serve Otumfuo and the practice is still in existence.” Now, whether the supply of fish has stopped or still is in existence, was there any occasion in living memory when such fish was supplied?

It is, indeed, not enough for the defendant to allege that his people owe allegiance direct to Otumfuo, or that his ancestor drank fetish with Otumfuo, or that his ancestors supplied fish to Otumfuo. Such claim of direct allegiance to Otumfuo must be authenticated by concrete acts and events in living memory unequivocally evidencing such direct allegiance by the Asaago stool to the Oturnmfuo. The evidence on record establishes none of such acts. And in the absence of any such acts and events to rebut the acts and events in support of the plaintiff’s version, the majiorityv of the ijudicial committee of the National House of Chiefs

[p.1067] of [1997-1998] 2 GLR 1039 erred in affirming the majority judgment of the Regional House of Chiefs.

I would accordingly allow the appeal, set aside the judgment of the National House of Chiefs, and in place thereof enter judgment for the plaintiff for a declaration that the Asaago stool owes allegiance to the Taahyen stool. The defendant’s counterclaim that the odikro of Asaago owes allegiance to the Asantehene is hereby dismissed.

Atuguba JSC. I would also allow the appeal.

Appeal allowed.

LSNA