OPOKU vs. NYAMEKYE [1999-2000] 1 GLR 653

CASES REFERRED TO

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

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

(3) Obrasiwah II v Out [1996-97] GLR 618, SC.

(4) Ababio v Bekoe II [1996-97] GLR 392, SC.

(5) Achoro v Akanfela [1996-97] GLR 209, SC.

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

(7) Adjebi-Kojo v Bonsie (1957) 3 WALR 257; sub nom Adjebi Kojo II v Bonsie [1975] 1 WLR 1223; 101 SJ 972, PC.

(8) Ampomah v Volta River Authority [1989-90] 2 GLR 28, CA.

(9) Akenteng II v Ayeremah [1996-97] GLR 384, SC.

NATURE OF PROCEEDINGS

APPEAL by the plaintiff, the queenmother of Krobo in the Ashanti Region, against the unanimous judgment of the National House of Chiefs allowing the appeal of the defendant, the Krobohene elect, from the majority decision of the Ashanti Regional House of Chiefs wherein it allowed the plaintiff’s appeal from the majority judgment of the Kumasi Traditional Council in favour of the defendant in a chieftaincy dispute between the parties. The facts are sufficiently set out in the judgment of Adjabeng JSC.

COUNSEL

James Ahenkorah for the appellant Obeng Manu for the respondent

JUDGMENTS OF CHARLES HAYFRON-BENJAMIN JSC.

This is an appeal from the judgment of the chieftaincy committee of the National House of Chiefs wherein nananom reversed the judgment of the Ashanti Regional [p.656] of [1999-2000] 1 GLR 653 House of Chiefs and thereby affirmed the judgment of the Kumasi Traditional Council. The appellant will hereinafter be called the plaintiff and the respondent the defendant.

The plaintiff by the oath procedure swore that: “The defendant is not to the Krobo stool and therefore he (the defendant) is not eligible to the Krobo stool and that the defendant is eligible only to the Benkum stool of Krobo.” The defendant also swore back in reply that: “He being the Krobohene elect and also a royal to the Krobo Stool is eligible to the Krobo stool in view of his ancestral link to the stool.”

Upon the issues joined, the judicial committee of the Kumasi Traditional Council by a majority gave judgment for the defendant. The plaintiff appealed from that decision to the judicial committee of the Ashanti Regional House of Chiefs. The regional house of chiefs reversed the traditional council. On a further appeal to the chieftaincy committee of the National House of Chiefs, nananom also reversed the decision of the chieftaincy tribunal of the regional house of chiefs. This court subsequently granted the plaintiff leave to appeal, to it. Before us the plaintiff has filed five grounds of appeal, four of which are substantive grounds. The plaintiff contends that:

“(i) The judgment is against the weight of evidence.

(ii) The National House of Chiefs misconceived its functions as a second appellate tribunal, and erred in law in failing to give any or due weight to the unrebutted evidence that the name of the Krobo stool was ‘Gyamera Bensua’ Stool.

(iii) The National House of Chiefs erred in law when it purported to make findings without considering the evidence of the plaintiff-appellant and her witnesses.

(iv) The National House of Chiefs erred in law when it held that a matrilineal stool could be created for two friends of different clans.”

The plaintiff’s counsel in his statement of case contends that:

“In this case, having conceded, as the respondent did, that the obaapanin’s family is a royal the presumption is that this status is exclusive and the burden falls on the respondent to establish satisfactorily how his family also became a royal house. This was really the nature of the dispute … “

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When the plaintiff’s counsel’s submission is conjoined with the finding of Nananom of the National House of Chiefs that: “The only points in favour of the respondent (plaintiff) are the customs raised by the Ashanti Regional House of Chiefs. . .” then certainly nananom were in agreement with their august colleagues in the Ashanti Regional House of Chiefs about the declared Ashanti custom which they declared. Nananom chose one single custom for their strictures. In the quotation from their judgment just quoted above, nananom continued:

“And we hold the view that the naming of the stool could be due to factors other than the fact that it was named after the one who founded it or its first occupant the evidence yields itself to this conclusion.”

With the greatest respect to nananom, they were not only prevaricating, they were also indulging in inconsequential guess-work and in order to avoid calling the name of the Krobo stool the “Gyamera Bensua” stool. After all from wrongly calling the name of the Krobo stool Asiedu Panin stool, the defendant subsequently admitted that the name of the Krobo stool was Gyamera Bensua stool. In so doing, nananom fell into grave error, for that was the name accepted and explained in accordance with custom by nananom in the Ashanti Regional House of Chiefs. Added strength was given by nananom to the position of the majority in the Ashanti Regional House of Chiefs when they wrote: “The issues have been mainly on custom and resolved on customary evidence.”

The custom under which the Ashanti Regional House of Chiefs had based their opinion were that:

(i) “In Akan custom succession to stools is invariably matrilineal barring a few exceptions.”

(ii) “That granting that the respondent’s version that the Krobo stool was created for two friends is true, the stool ought to have been a patrilineal stool rather than matrilineal as it obtains now.”

(iii) “That it is untenable in Akan custom for a stool to be created for two friends as advocated by the respondent (the defendant).”

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(iv) “That the appellants, ie the plaintiff’s version of the founding of the stool is more reasonably probable and we therefore find no compelling reason to depart from the stand we have taken.”

(v) “It is also the custom that a stool is named after its founder or first occupant . . . In the instant case, the plaintiff’s contention that that Krobo stool was founded by Bensua a corrupted version of Obeng Asua his ancestor, stands uncontroverted. “

In addition to these primary declarations of Akan customary law and practice, nananom of the Ashanti Regional House of Chiefs found: “As a fact that the Krobo stool was founded by the plaintiff’s ancestor Obeng Asua and not created for the two families as claimed by the defendant.”

Custom as defined in part by the learned editors of Osborn’s Concise Law Dictionary (8th ed) is: “A rule of conduct, obligatory on those within its scope, established by long usage. A valid custom must be of immemorial antiquity, certain and reasonable, obligatory not repugnant to statute law, though it may derogate statute law.”

The customs declared by nananom of the Ashanti Regional House of Chiefs must apply to issues arising out of facts which accord with custom in Ashanti. More force and authority must be added to the declarations of Ashanti (Akan) customary law and practices since Ashanti is the only homogenous region where all the citizens subscribe to the same customary laws and practices.

In considering the Asante (Akan) custom as pronounced by the majority, it is pertinent to consider the view of the minority on the customs referred to. It is clear that nana was confused about who the parties were. He wrote:

“It is my opinion that it does accord with Asante custom for a stoolsic(1) be created for a stranger before introducing the stranger to the overlord as the plaintiff claims. This claim by the plaintiff is therefore untenable in view of the imminent war between the Asante nation and the Akyems at that time.”

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The matters mentioned therein rather referred to the defendant who alleged that his ancestors had come from Akyem when war between Asante and Akyem was imminent. It was also the defendant’s ancestors who had lodged at Adesina. The defendant’s ancestors were strangers to Asante coming as they did from Akyem. The minority declares that coming to Asante at the time that war was imminent between Akyem and Asante it could not: “Accord with Asante custom for a stool to be created for a stranger before introducing the said stranger to the overlord.”

It is unnecessary here to analyse the confusion of thought which led the dissenting chief to disagree with his colleagues. Certainly, no one would create a stool for a stranger from a country against which one’s country is preparing to go to war. Nor was this all. In an attempt to differ from his colleagues on the custom that an odikro cannot create another odikro, the dissenting nana wrote: “In Akan custom, where an odikro is also a nifahene to his overlord; the odikro may create an odikro stool with the authority of his overlord.” It does not take much to discredit the whole of the dissent as an untrue statement of custom.

Nana even contends that SK Mainoo was an Asona contrary to the clear evidence on record that he is Ekuona.

In the face of the unreliability of the dissenting opinion, nananom of the National House of Chiefs should have given greater credit to the opinions of the majority of nananom of the Ashanti Regional House of Chiefs. Indeed from the beginning of his opinion, nana wrote:

“The most crucial issue before the parties in this appeal, as I perceive it, revolves on whether or not the Krobo royal stool was created exclusively for the Asona family or for both Asona and Ekuona families.”

Before us, and reading the record carefully, it is evident that the parties are agreed that the Krobo stool is the Akwamu stool to the Antoa stool. That the stool is a matrilineal stool. That obaapanin Ama Serwaa is the reigning queenmother: That in accordance with custom she is the person who is deemed to know who are the royals of her stool. It is also agreed that the name of the Krobo stool is Gyamera Bensua; that nananom of the National House of Chiefs stated that: “The naming of the stool could be due (to factors other

[p.660] of [1999-2000] 1 GLR 653 than) the fact that it was named after the one who founded it for its first occupants.”

As I have expressed myself, custom must be “certain and reasonable.” It was therefore not open to nananom to introduce any uncertainty into its pronouncement. If nananom were of the view that “other factors” could determine the name of the stool, then it was their duty to pronounce it rather than leave the time honoured Akan custom of naming the stool to speculation and uncertainty. I therefore hold that under Akan custom a stool is named either for its founder or its first occupants. In this appeal therefore it means “The Krobo stool was founded by Bensua, corrupted version of Obeng Asua, the ancestor of the plaintiff.” In the light of my findings so far in this appeal, I agree with the plaintiff’s counsel that the plaintiff did not assume any burden of proving more than she did. The burden was rather on the defendant to prove that he was a member of the Asona royal family of Krobo.

In Exhibit A, which was the record of the great oath case which led to the invocation of the jurisdiction of the Kumasi Traditional Council culminating in this appeal it was thus recorded: “NOTE: In answer to a question, the defendant explained that the plaintiff is his paternal sister after his father”, meaning that the plaintiff’s father is the immediate elder brother of Alhaji Kwaku Kru’s father: It also transpired that one S K Mainoo was on record as confirming that evidence, and that shows that this relationship is true. It is therefore clear that the plaintiff and the defendant do not belong to the same family. Both may be Asona, but one is not a royal of the Krobo stool. For my part, the plaintiff’s mother being the obaapanin, it is her Asona family which owns the Krobo stool.

Nananom have roamed afield for proof of the origins of the defendant and his eligibility to the Krobo stool, but have not addressed the issue of their connection with the Krobo royal family. The defendant contends that his family and the plaintiff’s family have “fused.” But this relationship, as has been demonstrated in this opinion, is impossible by reason of the alleged marriage of two brothers in the same family. The defendant says that his abusuapanin is Alhaji Kwaku Kru and is of the Ekuona clan. It is a very incongruous situation in Akan society that an Asona man should have an abusuapanin who is an Ekuona. The defendant’s uncle, SK Mainoo, was also an Ekuona. Yet again the Adesinahene under

[p.661] of [1999-2000] 1 GLR 653 cross-examination not only confessed but also contradicted himself on the issue of the creation of the stool which the defendant says he did. Said nana:

“Q For whom did the Adesinahene create the Krobo stool?

A Nana Adesinahene created the Krobo stool for Asiedu Panin and Opoku Akyeampong.

Q Do you want to imply that the Krobo stool was created for both the Asona and Ekuona families?

A Yes, this is what I imply.

Q What is the customary implication in Ashanti when we refer to a stool as being matrilineal stool?

A A matrilineal stool implies that inheritance to that stool can be effected only through one’s mother.

Q What is the name of the Krobo stool that Adesina created for hunters and famers?

A The Adesinahene never created for Asiedu Panin and Acheampong a stool[sic](2) .

Q The defendant has stated that the Krobo stool is called Gyamera and Obeng Asua stool and you claim it is called Asiedu Panin and Akyeampong stool. How do you reconcile the two statements?

A Since I created the Krobo stool, what I have said is the gospel truth.

(The emphasis is mine.)

It is clear that this witness was not being truthful. But one thing stood out quite clearly. If the defendant says that the Adesinahene created the Asiedu Panin and Akyeampong stool for the defendant’s family, it is not correct. Adesinahene as an odikro could not create another odikro. It is therefore safe to conclude once again that the beginnings of the Krobo stool are from Gyamera and Obeng Asua, the ancestors of the plaintiff. If these two were, indeed, the founders or the first chief and his brother Gyamera Afram of the Krobo stool, then the alleged stools of Asiedu Panin and Akyeampong do not exist in the stool room of the Krobo stool and their existence or non-existence is not an issue in this appeal. However, on the supposition that these black stools were among the Krobo stools, the burden was on the defendant upon being challenged and his claim denied, to

[p.662] of [1999-2000] 1 GLR 653 offer evidence which would satisfy a court or tribunal that the stools exist. In the instant appeal, the defendant by admitting that the name of the stool was Gyamera and Bensua inferentially fixed the commencement of the stool to the time of Obeng Asua in the reign of Opoku Ware. I therefore hold that the Krobo stool was founded in the reign of Opoku Ware. I also do not believe that the defendant’s ancestors were fleeing from Akyem Adesina to Asante in the reign of Osei Tutu when the latter was planning a war against the Akyem. It was therefore an untenable situation for Osei Tutu to readily accept strangers (the defendant’s ancestors) while there was “imminent war between the Asante nation and the Akyems at that time.”

Nananom of the National House of Chiefs have sought, as have said for want of a better expression, to bend the evidence in favour of the defendant. Alhaji Kwaku Kru was not the abusuapanin of the Krobo royal Asona family—a position he could not hold if for nothing else, because he is an Ekuona. In exhibit A, the record of the Kumasi Traditional Council, when the plaintiff denied that Alhaji Kwaku Kru was her abusuapanin, the plaintiff said: “The defendant is not the abusuapanin. The true abusuapanin is one Afram.” (The emphasis is mine.)

On 20 May 1995 the plaintiff made an application to the Ashanti Regional House of Chiefs to be substituted for the obaapanin who had died. Opanin Kwaku Afram swore an affidavit, without objection from Alhaji Kwaku Kru, that he was head of the Asona royal family of Krobo. In any case, it was agreed that Kwaku Kru had been up in the Krobo palace (ahenfi) and he knew a lot about the Krobo stool affairs and was the spokesman for the obaapanin, but he was not the abusuapanin of the Asona royal family of Krobo.

The evidence on record clearly shows that the obaapanin made two nominations, namely: “My own child Kwame Nyamekye and my grandson Opoku Mensah.” On the evidence, the obaapanin did not have her constitutional minimum of three nominations, for the elders themselves nominated the defendant which precipitated the present litigation. On 18 October 1991 the elders swore to an affidavit that they “have agreed and installed Nana Barima Opoku as Krobohene.” In their statutory declaration they stated: “That Barima Opoku, in view of his developments within the village, all the citizens including we the elders, have nominated him as our chief.” This

[p.663] of [1999-2000] 1 GLR 653 was, to say the least, a most irregular “installation” of a chief and I hereby declare the same null and void.

Finally, nananom of the National House of Chiefs as well as the majority of them in the Kumasi Traditional Council seem to set great store on a quotation from Warrington’s Notes which obviously E E Obeng copied into his book referred to by them that: “No Ashanti has power to change his allegiance and voluntarily become the naturalized subject of another Ashanti Chief.”

Warrington is a useful source book on Ashanti customary law and practices. But as the editor says, they were compiled for the use of the colonial district commissioners and it was expected that government approval would be given to them, which the editor says was not done. The Notes refer to the proceedings of the Ashanti Confederacy Council which was a statutory body. It is now the informal body known as the Asanteman Council. The confederacy was a body of independent chiefdoms in Ashanti bound together under the leadership of the Golden Stool and the Asantehene who is indeed also the Paramount Chief of the Kumasi Traditional Area. It therefore stands to reason that any shifts in allegiance will affect the constitution of its component parts. Thus when the confederacy says there can be no change of allegiance, what it means is that no Ashanti can change his allegiance from say Kumasi state to say Mampong state. Allegiance is “the natural and legal obedience which every subject owes to his sovereign.” Sovereign in the context of this appeal means a paramount chief and not an odikro or even a divisional chief or obrempong. I think nananom misunderstood the meaning of that statement. Within the context of their opinions that statement from Warrington was not inapposite.

Was there any fusion of the two Asona families in Krobo? Apart from Alhaji Kwaku Kru, no other member of the defendant’s family gave evidence of any such fusion of families. Indeed, Alhaji Kwaku Kru’s own statement furnishes a palpable lie to the assertion by the defendant, notwithstanding the plaintiff’s own admission that the defendant is an Asona from a different family. At the meeting of the Kumasi Traditional Council in respect of the swearing of the Great Oath of Ashanti, Alhaji Kwaku Kru asserted that: “ … Anthony (the defendant) (is) also his real nephew because Anthony’s mother comes immediately after him (abusuapanin).” (The emphasis is mine). If Alhaji Kwaku Kru is Ekuona, how can his direct nephew be

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Asona. In my respectful opinion, therefore, the defendant’s case “was a deliberate falsehood intended to pre-empt the plaintiff’s legitimate claim to the stool.”

In my respectful opinion, the defendant falsely constructed a case which flew in the face of all pristine Akan customs as conclusively stated by nananom of the judicial committee of the Ashanti Regional House of Chiefs. An amorphous group of paramount chiefs, the majority of whom belong to traditions which are essentially patrilineal in customary laws and practices, have unwittingly driven a serious nail into the coffin of Akan customary laws and practices. This court has by its majority substituted logic and legal technicalities for the correct Akan customary laws on Akan chieftaincy practices the effect on which institutions will not dare to fathom.

I will therefore allow the appeal.

JUDGMENT OF AMPIAH JSC.

This action concerns the Krobo-Kwabre stool in Ashanti; the issue being, who is entitled to occupy that stool? By an oath, the plaintiff-appellant (hereinafter referred to as the plaintiff) challenged the eligibility of the defendant-respondent (hereinafter referred to as the defendant) to the Krobo stool. The defendant having responded to the oath, “a cause or matter affecting chieftaincy” was raised before the Kumasi Traditional Council for determination.

One Madam Akua Nyamekye who initiated the action as the attorney of Nana Ama Serwaa, the undisputed obaapanin or queenmother of the Krobo stool, was subsequently substituted as the plaintiff on the demise of obaapanin Nana Ama Serwaa.

According to the defendant, his Asona family had travelled together with Alhaji Kwaku Kru’s Ekuona family from Akyem Adesina to their present abode to avoid an imminent threat of war by the Ashantis. They had settled together as friends at Ashanti Adesina and the odikro of Adesina had created the Krobo stool for their joint occupation. Thus, the Krobo stool was created jointly for the defendant’s Asona family and Alhaji Kwaku Kru’s Ekuona family. He said the plaintiff’s family had come to settle at Krobo at the time when Nana Osei Sampam, his ancestor was the odikdrosic(3) of Krobo. He said an ancestor of the plaintiff named Adoma (others say Amoakowaa) had come to trade in groundnuts with them. He said since Adoma (or Amoakowaa) was of the same Asona clan like Nana Osei Sampam, she had been accepted into the joint family together

[p.665] of [1999-2000] 1 GLR 653 with her people and later given an opportunity or right to occupy the Krobo stool.

The plaintiff had denied the story of the defendant and had claimed that her family had migrated from Beposo in Ashanti because of some calamity and that on their arrival at Antoa, the Antoahene had deputed his krontihene to find a place near Adesina to settle them; they had settled near a “krobo” tree, which gave the town its name. Later, a stool had been created for her family by the Antoahene. She said further that the defendant’s family had later joined them and they being Asonas, had been accepted into the family and a Benkum stool (a sub-stool) had been created for them.

The defendant claimed that as a member of the joint family, he had been nominated for enstoolment by the kingmakers and elders of Krobo. He said he had validly been nominated after the obaapanin had exhausted her three chances of nominating a candidate as enjoined by custom.

The issues which arose for determination in the matter were:

(i) Which family was entitled to ascend the Krobo stool?

(ii) Was the defendant eligible to ascend the stool?

(iii) Was the defendant validly nominated?

Both parties led evidence themselves and called witnesses in support of their case. The Kumasi Traditional Council by a majority of two to one gave judgment in favour of the defendant. The plaintiff appealed to the Ashanti Regional House of Chiefs which by a majority of two to one allowed the appeal and set aside the decision of the judicial committee of the Kumasi Traditional Council. On appeal to the National House of Chiefs by the defendant, the judicial committee of that House, unanimously allowed the appeal, set aside the judgment of the Ashanti Regional House of Chiefs and upheld the decision of the Kumasi Traditional Council.

From the evidence adduced by the parties concerning their history, I feel there is need for a further evaluation of the evidence and the ascertainment of the customary law applicable in the matter. In proceedings before these traditional tribunals where pleadings are normally not ordered and the plaintiff invariably gives his evidence first, care must be taken not to evaluate the evidence on alleged “unchallenged” evidence. It is not uncommon for the party who gives his evidence last to take advantage of the sequence of the trial. In such situations the plaintiff mounts the box to narrate his evidence

[p.666] of [1999-2000] 1 GLR 653 and call his witnesses to support it. The defendant then mounts the box to give his evidence and call his witnesses. Apart from the general suggestion that what the other has said is false, there is no formal or critical challenge of the other’s evidence. Under such circumstances, it is unsafe for the tribunal to rely on the oft quoted expression “the evidence was not challenged” to come to conclusions on the evidence.

The defendant has appealed to this court on the following grounds:

“(i) The judgment is against the weight of evidence.

(ii) The National House of Chiefs misconceived its function as a second appellate tribunal, and erred in law in failing to give any or due weight to the unrebutted evidence that the name of the Krobo stool was “Gyamera Bensua” stool.

(iii) The National House of Chiefs erred in law when it purported to make findings without considering the evidence of the plaintiff-appellant and her witnesses.

(iv) The National House of Chiefs erred in law when it held that a matrilineal stool could be created for two friends of different clans.

(v) Other grounds of appeal will be filed upon receipt of a copy of the record of appeal”.

I intend to deal with these together. The judicial committee of the National House of Chiefs after narrating the respective histories of the parties, set down the findings and conclusions made by the two lower tribunals. It then set out to evaluate the evidence itself and apply the customary law and practices which it considered applicable to the matter. Needless to say that it accepted the findings and conclusions of the Kumasi Traditional Council and allowed the appeal. It observed, “Judging from custom and reasons, on the sequence of events, we find that the evidence on migration of the appellant is more reasonably probable than that of the respondent”.

On the issue of migration and settlement it seems to me that the National House of Chiefs did not understand the plaintiff’s case and did not fully appreciate the history given by the parties. It may be true that the defendant’s ancestors had arrived earlier, but the [p.667] of [1999-2000] 1 GLR 653 evidence revealed that they had some family relationship with the Ashanti Adesina people. This is what Alhaji Kwaku Kru, the first defendant, witness said:

“The above five people led their respective families from Akyem to Asante. On the arrival of my family at Asante, they learnt of the existence of another Adesina at Antoa in Asante and that Adesina (Asante) was related to the Akyem Adesina so my family quickly found their way to Asante Adesina in the Antoa area”.

How related were they? He stated that they had heard of another Adesina. It is most likely therefore that on their arrival they had stayed with the Asante Adesina people at Adesina without any settlement elsewhere. In fact, the evidence is that having settled briefly at Kenyase, they came to Asante Adesina and were settled at a place called Papaade until later they moved to where the “kro” tree was. For how long they stayed at Papaase before moving to the place where the “kro” tree was, the evidence was not clear. The word “krobo” had first been used by the plaintiff and his witnesses as the source of their town’s name. The defendant had stuck to the name “Kro”. How this name came to be changed to Krobo he did not explain. It is obvious from the evidence that the plaintiff having used the name “Krobo”, the defendant found a name derived out of krobo and used it but could not explain how the kro turned to krobo which has long been recognised and accepted as the only name of the town. Otumfuo Opoku Ware succeeded Osei Tutu as Asantehene between 1731-1742 (others say between 1720-1750). There is no certainty about the date: see The Life History of Otumfuo Opoku Ware II by E K Braffi. It is not clear in which part of Osei Tutu’s reign the defendant and his family had actually arrived. The first defendant witness was not able to tell the committee who the chiefs of Antoa were when the plaintiff’s family arrived at Antoa. This incident happened after the settlement. If this witness was not able to tell what happened, then how was he able to tell with certainty, the period of their arrival? It is clear that when the plaintiff stated his period of arrival, the defendant had tried to put in a period earlier in time just to create the impression that they had arrived earlier, so, in all probability they had settled earlier in the place.

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The committee also relied on the incidence of allegiance to accept the evidence of the defendant. It observed, “the change of allegiance has been found to be contrary to the custom as evidenced in EE Obeng’s book and Warrington’s Notes already referred to …

The specific references made from Warrington’s Notes have not been stated. It was necessary that the context within which the Notes were made should be made known. It is also not stated how authoritative the writings of E E Obeng on the customary law of Ashanti is.[sic](4) do not think Obeng’s work at the Asantehene’s office as a junior clerk clothed him with authority on Ashanti custom. But a more critical look at his statement would reveal other matters. In his book Ancient Ashanti Chieftaincy at p 29, para 2 he states the following:

“No Ashanti has the power to change his allegiance and voluntarily become the naturalised subject of another Ashanti Chief. As a result of war his allegiance might compulsorily be transferred. And, as a matter of dire necessity, a person could in the olden days, with the consent of his chief, sell himself and his family to another chief in order to pay his debts. An Ashantiman could move from his Division to another Chief’s Division for, for instance, the purpose of obtaining land for farming, but he could transfer his allegiance to the Chief on whose land he farmed in order to obtain the land free of charge”.

Assuming that what Obeng said wag[sic](5) correct, there are still situations where an Ashanti could change his allegiance within Ashanti. The evidence was that the plaintiff’s ancestors “came from Beposo in Ashanti because of a great tragedy which turned out to be frequent tribal wars … “Surely, there must be exceptions. Besides, the plaintiff’s family had migrated from Beposo since the time of Opoku Ware (1720-1750). It is too late to use the fact of change of allegiance against the plaintiff when according to the defendant—even if his evidence is to be accepted—the plaintiff’s family has been accorded recognition to ascend the stool. The odikro of Beposo himself had not complained. The Antoahene who must be deemed to know the custom, if indeed it exists, carried out the creation of a stool for the plaintiff’s family. The Ashanti Regional House of

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Chiefs, which consists of only Ashanti chiefs (Paramount Chiefs for that matter) must be credited with knowledge of the custom that exists. The acceptance of that unproven custom by non-Ashanti chiefs is unsafe and doubtful.

Also, it is said that the Adesina odikro as the caretaker of the Antoahene was in a better position to create a stool for the strangers. It is not disputed that the whole land, including that portion on which Adesina herself is, is part of the Antoahene’s land and that it was the Antoahene who created a Stool for the Adesinahene. If that is so, how could the “caretaker” create a Stool equal to his own stool on land which is not his? The evidence of the Antoahene, the second plaintiff witness, and of the Krontihene of Antoa, the first plaintiff witness, fully supported the evidence of the plaintiff in all material particulars. His evidence was that when his predecessor created the stool for the plaintiff’s family, the then Adesinahene was present. The mere fact that the Adesinahene lives on part of the Antoahene’s land which is close to the land on which the plaintiff’s family settled, did not make the Adesinahene the “caretaker” of these lands.

The real problem in this matter is the ascertainment of the eligible family to the stool of Krobo. The evidence shows that there were three families claiming eligibility to the stool, namely,

(i) The plaintiff’s Asona family which migrated from Beposo in Ashanti,

(ii) The defendant’s Asona family which migrated from Akyem Adesina and

(iii) Alhaji Kwaku Kru’s Ekuona family which also migrated from Akyem Adesina as friends of the Asona family of Akyem Adesina.

The evidence shows further that those who have validly occupied the Krobo stool in recent times were all from the plaintiff’s Asona family. Even if SK Mainoo from the Ekuona family attempted to ascend the stool, which is denied, he was not customarily enstooled. The defendant’s family does not deny the plaintiff’s family’s eligibility to the stool, though they give conflicting and unreasonable reasons why the plaintiff’s family came to be on the stool. The evidence that it was an ancestor of the plaintiff who came to trade in the area and was adopted by the defendant’s family was not creditably supported; the evidence was conflicting as some say it was Adoma and others say it was Amoakowaa. When pressed to

[p.670] of [1999-2000] 1 GLR 653 show why a royal stool should be relinquished to strangers who had come to the place only to trade, the defendant’s evidence was that it was because the royals of their families were minors! Minors for how long? And, this was at a time when they were finding people to become abusuapanin and stool elders! It is true that there was evidence that the plaintiff’s family admitted seeing farms in the area, but this was not strange. It is a common practice that persons living in towns adjacent to lands not yet settled on often cultivate on the vacant unoccupied lands without necessarily claiming title to those lands; they are mere squatters.

The committee came to a conclusion that if the plaintiff’s ancestors hid their stools which they alleged they brought from Beposo, then they must have been just some “youngmen”! The plaintiff named the ancestors who had come with them. Could these persons be “youngmen” who were capable of ascending the stool? As they were not going to occupy their stools on another chief’s territory, what was the need for asserting their chiefly status at that stage? If it had been a paramount stool, could they have held on to that position on some one’s land? They said they belonged to the Akwamu division of Beposo. Accordingly, when the Antoahene decided to elevate the Krobo stool he took into consideration this fact and created the Krobo stool, the Akwamu stool of Antoa, a status higher than that of the Adesina stool.

The defendant denied his ancestors ever swore the oath of allegiance to the Antoahene. That could not be true on the evidence. First, the Antoahene gave evidence as to how the odikro of Krobo has been swearing the oath of allegiance to his stool in the presence of the Adesina odikro. This was not denied. The Adesinahene admitted that the Antoahene is his overlord. If the two stools, Adesina and Krobo, are equal why should the Krobo stool swear the oath to the Adesina stool? In any case, according to the defendant and the Adesinahene, after swearing the oath of allegiance to the Adesinahene, the Krobohene is taken to the Antoahene as the overlord, to swear to him. Why? It only means that without swearing the oath of allegiance to the Antoahene, the Krobohene could not be recognised as an odikro. Why did S K Mainoo decide to swear to the Asantehene instead of the Antoahene or for that matter, the Adesinahene, if indeed they have been swearing to the Adesinahene? The evidence of the Antoahene, the owner of all the land on which

[p.671] of [1999-2000] 1 GLR 653

Krobo and for that matter Ashanti Adesina settled, was clear and emphatic. He stated in no uncertain terms that it was his predecessor who created the Krobo stool; the fact that the Beposo group had deserted its former allegiance, notwithstanding.

The question whether the Beposo group, ie the plaintiff’s family had brought any properties at all when they came, was irrelevant for, they did not come to assert their status at Antoa. They, in fact, revealed their royal status to the Antoahene who later accorded them the status of Akwamuhene. The Antoahene’s evidence, which supported the plaintiff’s claim, was that the plaintiff’s family was presented to the Asantehene when they arrived and that he directed his krontihene to find a place on the Antoahene’s own land for the plaintiff’s family. The Adesinahene was himself on the Antoahenen’s land; he was not a caretaker of the Antoahene, and even if he was, he could not have prevented the Antoahene himself from allocating a portion of his land to other people. He was not in possession of these lands, apart from the one he (Adesinahene) occupies. It was, according to the defendant, the Antoahene, who directed the Adesinahene to find a place near his town for the defendant. According to the Antoahene, whatever he did was done in the presence of his sub-chiefs, including the Adesinahene. It is not true and could not be true that the Krobo stool does not swear the oath of allegiance to the Antoahene.

The National House of Chiefs accepted the finding by the traditional council that it was Nana Asamoah Yaw from the plaintiff’s family who first swore the oath of allegiance to the Antoahene. Even if it is accepted that the defendant’s family ever ascended the Krobo stool, the statement of the Kumasi Traditional Council, which was accepted by the National House of Chiefs, was not supported by the evidence on the record. In the record of proceedings, the first defendant witness, Alhaji Kwaku Kru said: “After S K Mainoo had been given the Krobo stool, he positively declared that even though his predecessors had already sworn the oath of allegiance to the Antoahene, he would no longer follow that path.” Also when asked “which superior chief does the Krobohene swear the allegiance to?” He answered: “The Krobo stool swears to Nana Antoahene.”

While the National House of Chiefs was critical of the discrepancies in the evidence of the plaintiff, it did not find any such fault with the defendant’s evidence. It is a fact that part of the defendant’s

[p.672] of [1999-2000] 1 GLR 653 evidence supported the plaintiffs evidence. According to the plaintiff, his ancestors who journeyed to Antoa were Obeng Asua, Nana Amoakowaa, Gyamera and Durowaa. Obeng Asua was the brother of Nana Amoakowaa; Gyamera and Durowaa were the son and daughter, respectively of Nana Amoakowaa. Consequently, the male stool which was created for the family was named after the first male ancestors—Gbeng Asua and Gyamera. This historical fact was admitted by the defendant who said that the name of the Krobo stool was Gyamera and Anbengsua (a corrupted form of Obeng Asua) even though the eleventh defendant witness (the Adesinahene) said that the stool was called Asiedu Panin and Akyeampong. The defendant who claims to be the owner of the stool, supported the plaintiff’s evidence! With this contradiction in the defendant’s evidence, the plaintiff’s evidence stood supported and more creditable. Under customary law, a stool is named after the first ancestors for whom a stool is created. This evidence supports unmistakenly the plaintiff’s claim that it was his family for whom the Krobo stool was created and that it was the Antoahene alone who could have created that stool.

As to the women who had occupied the female stool, the plaintiff’s evidence was that Nana Adwoa Serwaa was the obaapanin. She was followed by Nana Saa, Nana Adoma and Nana Ama Serwaa in that order. The defendant’s evidence was that Nana Gyaakye was the first obaapanin and that as Abena Asor was old she was by-passed. According to him, Gyaakye was succeeded by Abrafi from the Asona family, then Adwoa Serwaa, Adoma and Ama Serwaa, all from the plaintiff’s family. It is strange that Abrafi, a sister of Akyeampong who had travelled together with him, should be bypassed for Gyaakye, a younger person. Alhaji Kru, the first defendant witness, was emphatic that the first obaapanin of the stool was rather Abena Asor followed by Gyaakye. Why this inconsistency! It is obvious that the defendant was very unsure of his own history. In the circumstances, the more acceptable evidence was that the defendant’s family together with Kru’s has never occupied the female stool. It is also strange that after Abena Asor (even if she is accepted to be the first obaapanin) Gyaakye and Abrafi, all the subsequent obaapanins had come from the plaintiff’s family; a family which had only come to trade and had been accommodated! Is it also the case that only minors were left or that there were no

[p.673] of [1999-2000] 1 GLR 653 more females in that family? It could be seen that while the plaintiff’s evidence showed consistency and support from his witnesses, he defendant’s evidence revealed such fatal contradictions that made his evidence unreliable.

It was not enough to say one has some stools in the stool room, actual physical proof was required, especially when Alhaji Kru claimed he had removed them to the Gyasehene’s place. After all, the defendant did not deny the plaintiff’s eligibility to the stool even if he did not accept that the stool was created for them (the plaintiff’s family). The burden was upon the defendant to show that really his stools were among the stools in the stool room. This was capable of proof!

The National House of Chiefs, had, on the evidence accepted that Alhaji Kru was the overall head of the stool family. This they said was true otherwise, the queenmother would not have given him power of attorney to represent her. Is that the custom, one may ask? The head of family does not require any power of attorney to act on behalf of the family. In Ashanti, apart from the obaapanin’s (queenmother’s) primary authority to nominate a candidate for enstoolment on the stool, she exercises no other power far and above the head of family (abusuapanin), particularly when the matter concerns the stool, land or is in respect of litigation. He exercises that authority in his own right. To obtain power of attorney from the obaapanin (the queenmother) who could also take away that power, before the head of family could act, does not accord with custom. What it means is that that the head of family could not be the head or overall head of the stool family. The plaintiff said that his head of family was one Afram. The defendant to a question: “Do you know Kwaakuma?” Answered:. “Yes, I know him.” Asked again: “What is Kwaakuma’s status at Krobo?” Answered “Kwaakuma was the head of my mother’s family.”

Does that mean that each family has its own head of family? Under custom, it is possible for each family to have its own family head, but it is unthinkable that three different families of different clans would have one head even if they have joined together. The plaintiff explained that she had given a power of attorney to Alhaji Kru to perform certain specific functions on her behalf and that as soon as that assignment was over, she had withdrawn the power. The evidence shows that Alhaji Kru was related patrilineally to the

[p.674] of [1999-2000] 1 GLR 653 plaintiff. Alhaji Kru was also older. There was nothing wrong with the plaintiff giving him power of attorney to represent her in a matter unrelated to the headship of the Krobo stool. As a matter of fact, it was suggested to the plaintiff that she had admitted before Oheneba Akyeampemhene, the acting president of the Kumasi Traditional Council that Alhaji Kru was the undisputed abusuapanin of the Krobo stool. This, the plaintiff had denied. No attempt was made to prove this.

Another issue which related to the stool was the family to which Osei Sampam who is admitted to have ascended the Krobo stool, belonged. According to the defendant, it was during the reign of Osei Sampam that the plaintiff’s family arrived at Krobo. The plaintiff had denied this and had said Osei Sampam was a member of her family and had succeeded Nana Obeng-Asua on the stool after the latter’s death. She had explained that Osei Sampam, the brother of Adwoa Serwaa, was the son of Adutwumwaa who was the daughter of Durowaa, a daughter of Nana Amoakowaa. While the plaintiff’s story stood uncontradicted, the defendant could not trace clearly the ancestry of Osei Sampam, apart from saying that Osei Sampam was an Asona. That Osei Sampam was an Asona was not in dispute, but to which Asona group was he? The evidence shows overwhelmingly that he was of the plaintiff’s family.

There is another matter in respect of which the committee faulted in its conclusion. The committee seems to have come to the conclusion that the defendant had been nominated for enstoolment as Krobohene. Even if the defendant was eligible to that stool, there was no conclusive evidence that he had been properly nominated for enstoolment. What the evidence shows is that after the rejection of Opoku Mensah, the obaaanin’s nominee, there were no further nominations by the obaapanin. Rather, the kingmakers and elders had nominated the defendant, whereupon the plaintiff had sworn the great oath. According to the plaintiff:

“In view of these three charges preferred against my candidate Opoku Mensah, he swore Otumfuo’s great oath that the charges made against him could not in any way constitute a barrier and an impediment to his coming to mount his ancestral stool … I, the plaintiff’s attorney therefore initiated Otumfuo’s great oath that Anthony Kweku Opoku (the defendant herein)

[p.675] of [1999-2000] 1 GLR 653 is not eligible to the Krobo stool but rather the Krobo Benkum stool … “

Earlier, to a question asked by the plaintiff: “Can you name the three candidates the Obaapanin nominated and were rejected?” The defendant answered: “I was told that Alhaji Kwaku Kru head of the royal family nominated Osei Yaw, Kwasi Nyamekye and Opoku but they were rejected by the Krobo elders and the people.” Further, when cross-examined by the plaintiff on this issue:

“Q. Do you not remember that when the case came before Otumfuo you were found liable and that Otumfuo directed that you must follow the laid down customary procedure in your bid for the stool, if, indeed, you are eligible?

Alhaji Kwaku Kru answered: “When we appeared before Otumfuo, he nullified the installation that we made at Krobo on the ground that we did not follow the laid down Asante custom.”

It is clear from the evidence that, the finding made by the National House of Chiefs was not borne out by the evidence on the record. While the National House of Chiefs was quick to find fault with the plaintiff’s evidence, it failed to look critically at the evidence led by the defendant. If it had done so, it would not have come to the wrong conclusion it came to. I accept the conclusions came to by the Ashanti Regional House of Chiefs: These were based on the evidence adduced and the relevant customary law applicable in the matter. I would accordingly, allow the appeal, set aside the judgment of the National House of Chiefs and that of the Kumasi Traditional Council and restore the judgment of the Ashanti Regional House of Chiefs. The plaintiff succeeds on her claim and is entitled to judgment accordingly.

JUDGMENT OF ADJABENG JSC.

This is an appeal by the plaintiff-appellant (hereinafter referred to as the plaintiff) against the unanimous decision of the judicial committee of the National House of Chiefs which had reversed the majority’ decision of the Ashanti Regional House of Chiefs and restored the majority decision of the Kumasi Traditional Council. The decision restored by the National House of Chiefs was in favour of the defendant-respondent. (hereinafter referred to as the defendent)

[p.676] of [1999-2000] 1 GLR 653

The action in this matter started by the swearing of the great oath of Ashanti by the appellant for and on behalf of the queenmother of Krobo in Ashanti to the effect that the defendant is not a royal to the Krobo stool and is, therefore, not eligible to ascend the said stool, and that he is only eligible to ascend the Benkum stool of Krobo. The defendant replied by also swearing the great oath to the effect that he is a royal of the Krobo stool and that his ancestors’ black stools exist among the black stools of Krobo and, therefore, eligible to ascend the said stool.

According to the majority decision of the judicial committee of the Kumasi Traditional council, the plaintiff gave evidence before them that:

“their ancestors, Nana Amoakowaa, Obeng Asua (the brother of Amoakowaa), Gyamera and Duruwaa, all children of Amoakowaa moved from Beposo in the Ashanti Region and founded Krobo near Antoa, their present domicile.”

That the appellant said that:

“ … their ancestors brought with them their male and female Asona black stools to Krobo. The plaintiff’s ancestors passed through Dumanafuo on their journey to Antoa. On reaching Antoa they were hosted by the then krontihene [of] Antoa, Nana Derkyi. Later they were introduced to the chief of Antoa, Nana Antoa Nyinah I, by Nana Derkyi, Krontihene of Antoa, their host. After their introduction to the Antoahene, they were introduced to King Opoku Ware I by the Antoahene. These customary introductions having been completed, Nana Antoahene requested the host of the plaintiff’s ancestors (Nana Derkyi, Krontihene of Antoa) to allocate a piece of land beyond Adesina to the plaintiff’s ancestors to settle on.” At all these material times, states the majority decision of the Kumasi Traditional Council, the appellant’s ancestors “never disclosed the presence of their two black stools to neither their host, the Antoahene nor the Asantehene for no apparent reason”.

The plaintiff explained in her evidence at the trial in the Kumasi Traditional Council that her ancestors moved from Beposo because of tribal wars that were rampant in the area at the time. According to her,

[p.677] of [1999-2000] 1 GLR 653 their ancestor, Nana Obeng Asua, became the first Odikro of Krobo after it had been founded. His successors were Nana Osei Sampan, Nana Kofi Abe, Nana Kwasi Obeng, Nana Asamoah Yaw, and Osei Kuffour and that all these were members of their Asona family.

In respect of the female stool, the plaintiff said that the queen mothers of Krobo were Nana Adwoa Serwaa and her successors, Nana Saa, Nana Adoma and Nana Ama Serwaa who was the queen mother of Krobo at the time of the trial, and that all came from plaintiff’s Asona family.

Giving evidence on the defendant’s ancestry, the plaintiff said that the defendant’s ancestors who were also Asona came to Krobo shortly after it had been founded. According to the appellant: “the defendant’s Family who are also from the Asona the olden days came to join us and seek family alliance with my family. However, the two families, even though they stayed together for a very long time yet, according to the plaintiff, they are ‘different and distinct in the sense that each family holds its own funeral.’ Also, according to the plaintiff, because of ‘the cordial and long relationship between my family and Anthony’s family my granduncle Asamoah Yaw decided to create the Benkum stool of Krobo for the defendant’s family.”’

The plaintiff called four witnesses in support of her case namely, the Krontihene of Antoa, the first witness for the plaintiff, the Antoahene, the second witness for the plaintiff, one Akosua Kwadwowa, (the third plaintiff witness), a member of the plaintiff’s family, and one Collins K Edusei, a registrar at the Kumasi Traditional Council.

In his evidence, the defendant traced his eligibility to the Krobo stool through his ancestors Nana Akyeampong, Abrafi, and Osei Sampan; who all belonged to the Asona clan and migrated from Akyem Adesina. According to the defendant’s evidence, his Asona ancestors and some Ekuona people, all from Akyem Adesina, moved from their home at Akyem to Ashanti to escape from the threatened invasion of Akyem by the Asantehene at the time, Otumfuo Osei Tutu I. In Ashanti, they lodged the Adesinahene who, the following day, led them to his overlord, the Antoahene, and told him of their mission. The Antoahene in turn led them to the Asantehene, Otum-

[p.678] of [1999-2000] 1 GLR 653 fuo Osei Tutu I. The Asantehene then directed that a suitable place be found to settle the defendant’s ancestors. On their return to Antoa, the Antoahene asked the Adesinahene, who was the host of the defendant’s ancestors, to allocate a portion of his land to settle the strangers. Hence the Adesinahene allocated a place to them where they settled, and that place is the present Krobo. A stool was later created for them by the Adesinahene, their host, to be occupied jointly by the defendant’s Asona clan and the Ekuonas with whom the defendant’s ancestors came. The first occupant of the stool was Nana Asiedu Panin, who was an Ekuona with whom the defendant’s ancestor, Nana Akyeampong, came from Akyem Adesina. He was the first to occupy the stool because he was senior to Nana Akyeampong, an Asona, who became the second occupant of the stool after the death of Nana Asiedu Panin. After the death of Nana Akyeampong, an Ekuona, Nana Kofi Dadwa succeeded, and after him, Nana Osei Sampan, an Asona, again succeeded.

As to how the plaintiff’s Asona clan came to enjoy the Krobo stool with them, the defendant said in his evidence that the plaintiff ancestress, Adoma, an Asona, moved from Beposo, her ancestral home, and settled at Krobo to trade in groundnuts and established an alliance with the defendant’s Asona family. The plaintiff’s ancestors were, therefore, later accorded the same privileges and rights as the defendant’s Asona family at Krobo. Thus, the Krobo stool came to be enjoyed jointly by the Ekuona, the defendant’s Asona, and the plaintiff’s Asona families. To support this contention with recent events, the defendant gave evidence that when Nana Osei Kuffour, from the plaintiff’s Asona family, was destooled, the queenmother, on whose behalf this action was instituted, gave a power of attorney to Alhaji Kwaku Kru, the first witness for the defendant, an Ekuona, to look after Krobo until a chief was installed. The said first witness for the defendant was at the time the abusuapanin of Krobo. Later, one S K. Mainoo, an Ekuona was installed as the chief of Krobo with the consent of the said queenmother.

Later, when the said S K Mainoo died in the course of his dispute with the Antoahene as to whether to swear his oath to the Antoahene or directly to the Asantehene, the defendant applied to the plaintiff, the queenmother, for the stool. According to his evidence, the defendant was accepted by the said queenmother and, consequently, the defendant was installed as the Krobohene by the kingmakers and

[p.679] of [1999-2000] 1 GLR 653 elders of Krobo. The defendant called three witnesses in support of his case, and also tendered in evidence five exhibits.

After considering the evidence adduced by both parties, the majority of the members of the judicial committee of the Kumasi Traditional Council concluded that they were not impressed by the plaintiff’s case and so rejected her story. They accepted the respondent’s case as they were satisfied with the evidence adduced by him. They gave many reasons for their decision.

On appeal to the Ashanti Regional House of Chiefs, the majority of the judicial committee there reversed the decision of the Kumasi Traditional Council. In their effort to justify their decision, the majority of nananom, purported to make their own findings of fact without regard to the findings made by the trial tribunal who saw the witnesses, and without regard to the whole evidence adduced. Worse of all, they either distorted the evidence, or they did not understand it. For example, the defendant never said in his evidence that his ancestor was an Ekuona. The defendant’s evidence was that he traced his ancestry to Nana Akyeampong, an Asona, who was the second Krobo chief. The majority decision of the Kumasi Traditional Council made a finding to that effect and their finding is supported by the evidence. It was wrong, therefore, for the majority of the Ashanti Regional House of Chiefs, an appellate tribunal, to ignore the findings of the trial tribunal which is supported by the evidence, and purport to make their own findings. And to do this when they even seemed not to have understood the evidence on the record, is unpardonable.

Reading through their decision, one can find numerous instances of this error. Indeed, the majority decision of the Ashanti Regional House of Chiefs was based on facts which had been rejected by the trial tribunal for good reasons. It must be stated, however, that the minority decision of the Ashanti Regional House of Chiefs did well and even quoted the evidence of the first witness for the plaintiff, the Antoahene, to show that the trial tribunal’s findings that the first witness for the defendant, Alhaji Kwaku Kru, was the abusuapanin of Krobo, was supported by the evidence, whilst the majority decision purported to make their own findings that the said first witness for the defendant, was not the abusuapanyin, obviously without reference to the evidence of even the plaintiff’s own witness.

[p.680] of [1999-2000] 1 GLR 653

The errors committed in the majority decision of the Ashanti Regional House of Chiefs are so glaring, especially when one compares it with the minority decision therein, that it is not surprising at all that the National House of Chiefs unanimously reversed the said majority decision when the matter came before them on appeal. Against the decision of the National House of Chiefs, the plaintiff appealed to this court on four grounds. These are:

“(i) The judgment is against the weight of the evidence.

(ii) The National House of Chiefs misconceived its function as a second appellate tribunal, and erred in law in failing name of the Krobo Stool was ‘Gyamera Bensua’ stool.

(iii) The National House of Chiefs erred in law when it purported to make findings without considering the evidence of the plaintiff and her witnesses.

(v) The National House of Chiefs erred in law when it held that a matrilineal stool could be created for two friends of different clans.”

In her statement of case filed in this court, the plaintiff’s counsel concedes that:

“At first the obaapanin seemed to say that that stool was brought by her ancestors with them from Beposo but, as will soon be seen later, she changed her stand on this to accept the history given by Antoahene to the effect that the Krobo stool was rather created for the obaapanin’s family by the Antoahene. This volte face would in some other chieftaincy dispute have had a serious adverse effect on the obaapanin’s case as far as it was based on traditional history but, having regard to the nature of the dispute in this case, the contradiction is of no significance. It is of no significance because, once the obaapanin’s family is considered as being a royal house of Krobo, the obaapanin had no burden of proving how her family came by the Krobo stool in order to succeed in this suit. In other words, the royal status of her family not being in dispute, it becomes irrelevant how that family gained a royal status since the lawfulness or legitimacy of its royal origin is conclusively presumed. It would have been otherwise if this case had been that type of chieftaincy dispute in which while

[p.681] of [1999-2000] 1 GLR 653 the obaapanin was claiming exclusive royal status for her family, the defendant was also doing the same for his family; in that event each party would have borne an equal burden of establishing how his or her family acquired the royal status claimed. In this case, having conceded, as the defendant did, that the obaapanin’s family is a royal, the presumption is that this status is exclusive and the burden falls on the respondent to establish satisfactorily how his family also became a royal house.”

In the view of the plaintiff’s counsel, this was really the nature of the dispute in this case and that the National House of Chiefs “treated the dispute as if both the plaintiff and the defendant were required to show how their respective families acquired the right to the status of a royal house in relation to the Krobo stool.” Counsel argued that if the National House of Chiefs:

“had been able to appreciate the central issue in this case and recognised that the onus was on the defendant to prove satisfactorily how his family became a royal house to the Krobo stool and had appreciated that the defendant’s evidence … failed to meet that onus, the house would not have entered judgment for the defendant as it did. As it happened, having missed the central issue in the case, the National House of Chiefs was misled into giving a judgment touching the central issue which is clearly against the weight of the evidence.”

No doubt, the above submissions are the basis of the plaintiff’s appeal before us. On the submissions, I think that counsel is wrong in his contention that the burden of proof was only on the defendant in this case. Counsel, in my view, is also wrong in his submission that the defendant’s evidence failed to meet the burden that was on him. In respect of the first submission, it is well established by our courts that chieftaincy trials are fact-finding proceedings in which both parties are required to establish satisfactorily their respective cases. Thus the full bench of the Court of Appeal observed in Kyereh v Kangah (1978) GLR 83 at 91 CA (full bench) that, “broadly, the trial of a dispute involving chieftaincy is more in the nature of fact-finding inquiry.” See also Nyamekye v Tawiah [1979] 1 GLR 265 and this court’s recent case of Obrasiwah II v Otu

[p.682] of [1999-2000] 1 GLR 653

[1996-97] 1 SCGLR 618 At 621. Since the parties disputed each others story as to the history of the Krobo stool, each had a duty to establish his or her case to the satisfaction of the trial judicial committee of the Kumasi Traditional Council who saw and heard the parties and their witnesses.

From what they heard and saw, the said committee accepted the case of the defendant that the Krobo town was founded by his ancestor Nana Akyeampong jointly with his friend Nana Asiedu Panin, both of whom had migrated from Akyem Adesina. That a stool was subsequently created for the two friends and that Asiedu Panin, an Ekuona, being the senior, was the first chief to occupy the stool. That after his death, the defendant’s said ancestor, Akyeampong, succeeded him. He was an Asona. That after Nana Akyeampong, another Ekuona, called Nana Dadwa succeeded. Then another Asona, Nana Osei Sampa, succeeded. Thereafter, members of the plaintiff’s Asona family who had migrated from Beposo—Ashanti and had by now formed a close relationship with the defendant’s Asona family also started to ascend the Krobo stool. The judicial committee of the Kumasi Traditional Council also found that it was the Adesinahene, who was the host of the defendant’s ancestors and was directed by the Antoahene to allocate part of his land to them to settle on, who created the Krobo stool for them, and that there was nothing wrong customarily with the creation of the stool by the Adesinahene. In their judgment, they said: “The committee accepts the evidence of the defendant that a stool can be created for two separate family clans, for example Ekuona and Asona families as in the case of the Krobo stool. This is because Akyeampong, an Asona and Asiedu Panin an Ekuona were good friends at Akim Adesina and moved together with their families to Asante. Krobo was also founded by the two families. By Asante custom, therefore, when a stool is being created for the founder of the settlement (Krobo), it would be for the two families, ie the Ekuona and Asona groups of family, who are the founders of the settlement, Krobo. And it is for this reason that Akyeampong, an Asona and co-founder of Krobo succeeded Asiedu Panin, an Ekuona, and first odikro of Krobo.”

[p.683 ] of [1999-2000] 1 GLR 653

The judicial committee of the Kumasi Traditional Council also accepted the defendant’s evidence that he, the defendant’s, did apply for the Krobo stool and that his customary drinks which he presented to the plaintiff, the queenmother, were accepted by her. Of this the said judicial committee said as follows: “It is further evidenced by the first witness for the defendant, abusuapanin of the Krobo stool that the share of the customary drinks presented by the defendant given to the plaintiff was ¢10,000 and two bottles of schnapps. It must be pointed out that this averment of the witness still stands unchallenged by the plaintiff. We hold the view that if the defendant is not eligible to the Krobo stool, the plaintiff by custom would have said so immediately and would have refused his customary ‘dwantoa’ drinks, but to accept the customary drinks for his dwantoa and have them shared as the plaintiff did, is an indication that the defendant has right of eligibility to the Krobo stool.”

Another matter which greatly influenced the decision of the majority of the judicial committee of the Kumasi Traditional Council was their acceptance of the defendant’s evidence that his ancestors’ black stools were among the black stools of Krobo.

On the whole, therefore, the majority of the Kumasi Traditional Council accepted the defendant’s case and rejected the plaintiff’s case. They gave cogent reasons for rejecting the plaintiff’s case, some of which were that some of the evidence of the plaintiff and her witnesses was contradictory, that her principal witness, the Antoahene, said he did not know “the eligible and non-eligible royals of Krobo,” and that the plaintiff’s story about their migration from Beposo Ashanti to Krobo with two black stools was not believed. They thus gave judgment for the defendant and[sic](6). It must be stated, that their findings and the judgment are fully supported by the evidence on the record.

As have said earlier in this judgment, the majority of the judicial committee of the Ashanti Regional House of Chiefs purported to make their own findings of fact regardless of the findings already made by the trial tribunal which saw and heard the evidence. And in making their new findings, the majority of the Ashanti Regional

[p.684] of [1999-2000] 1 GLR 653

House of Chiefs distorted some of the evidence on record or just did not understand it. For example, they purported to have found, contrary to the evidence on the record, that the defendant is an Ekuona and that his ancestors were Ekuonas. Also, they found that the first witness for the defendant, Alhaji Kwaku Kru, an Ekuona, was not the abusuapanin of Krobo when the trial tribunal had already found that the first witness for the defendant was the abusuapanin of Krobo and, especially, when the evidence of the plaintiff’s own witness, the second witness for the plaintiff, the Antoahene, had confirmed that fact under cross-examination.

What the majority of the Ashanti Regional House of Chiefs did in this case when the appeal went before them was the very thing that this court condemned in the case of Ababio v Bekoe II [1996-97] 1 SCGLR 392. The court in that case, per Ampiah, JSC held, as stated in the headnote that:

“not having seen the witnesses, the appellate court was in a permanent position of disadvantage against the trial judge. Consequently, unless it could be shown that the trial judge had failed to use or had palpably misused his advantage, by for example, failing to observe inconsistencies or indisputable fact or material probabilities, the higher courts ought not to take the responsibility of reversing conclusions so arrived at merely as a result of their own comparison and criticisms of the witnesses and of their own view of the probabilities of the case. In the instant case, the Ashanti Regional House of Chiefs had erred in reversing the findings of the Kumasi traditional council since there was evidence in support of the Traditional Council’s findings and which were rightly accepted by the National House of Chiefs.”

In the case before us, I have no hesitation at all in saying that the National House of Chiefs was right, on the above authority, in reversing the majority decision of the Ashanti Regional House of Chiefs, and in restoring the majority decision of the Kumasi Traditional Council. See also the decision of this court in Achoro v Akanfela [1996-97] 1 SCGLR 209.

For the reasons given above the appeal must fail and ought to be dismissed.

[p.685] of [1999-2000] 1 GLR 653

JUDGMENT OF ATUGUBA JSC.

This is a case which ought to be decided by the Heavens themselves rather than by men. But by men it must be decided and so I decide.

In this case the plaintiff-appellant (hereinafter referred to as the plaintiff) lost in the trial traditional council by a majority of two to one, won in the Ashanti Regional House of Chiefs by a majority of two to one and lost unanimously in the National House of Chiefs. Both the Kumasi Traditional Council and the National House of Chiefs based their judgments on careful and analytical consideration of traditional evidence tested against recent acts. That is the approach laid down by the courts of this country with consistency.

The said principle was restated admirably by Adade JSC in Dua v Osei Kwame (1995) 1 GSCJ 334 at 338 as follows:

“The institution of Chieftaincy is itself a traditional institution, and constitutes the social and political foundation of the particular community. Thus when a Chieftaincy dispute arises, it is always essential that, at least for the sake of stability within the community, a solution is sought which is anchored firmly in the traditions of that stool, and which respects those traditions. A solution which flies in the face of the tradition and is seen glaringly to contradict it, is not likely to be acceptable to the community, and creates a recipe for dissatisfaction, disaffection and dissensions, and, at the least provocation civil strife and conflicts. Thus in all these cases every effort must be made to ascertain what the tradition of the stool is. Where the parties broadly agree on the tradition, this must inform the decision of the Court. Where parties do not agree, as where the traditional accounts are widely and wildly divergent, or where the traditional history is lost in the murky corridors of time, then recourse may be hard to practices within relatively recent times to determine what the tradition probably is. But let it be emphasised that the recent events or practices are called in only as an aid to ascertaining the tradition, as far as this can be done.

This to me is the whole point in Adjeibisic(7) Kojo v Bonsie (1957) 3 WALR 257, an authority with which we are constantly assailed in virtually every chieftaincy appeal. The particular passage at 260 often thrown at us runs:

[p.686] of [1999-2000] 1 GLR 653

‘Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their beliefs. In such a case demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the most probable.’

(The emphasis is mine.) Therefore the quest, ultimately, is for an acceptable traditional history, not just a recent practice.”

In the instant case certain essential facts have been admitted. On the evidence:

(1) The first plaintiff witness, the Krontihene of the Antoa stool, testified as follows:

“Q Do you not know that some people had cultivated groundnuts at the area your predecessor allocated to the visitors?

A Yes, it is true that the area (has) been connected with the cultivation of groundnuts at the time of the strangers arrival.”

It is easy from the record to tell that this weighs in favour of the defendants’ account of the founding of Krobo.

(2) That the name Krobo is derived from a tree at the site of the Krobo settlement. It is clear from the record that whilst the respondents say that that tree was a “Kro” tree, the appellants say it was a Krobo tree. It should not be difficult to tell whether the name “Krobo” was derived from “Kro” or rather from “Krobo.”

(3) That Nana Osei Tutu preceded Nana Opoku Ware I and that while the appellant’s family persists with great evidential support that they came to Krobo during the reign of Nana Opoku Ware I, the defendant’s family similarly persists that they came to Krobo during the reign of Nana Osei Tutu.

The bearing of this on the issue of which family founded Krobo, is obvious.

(4) The third plaintiff witness admitted as follows:

[p.687] of [1999-2000] 1 GLR 653

“Q. Will you not agree with me that Alhaji Kwaku Kru is quite conversant with the history of the Krobo stool that is why the obaapanin mandated him to contest a case on her behalf?

A. Yes, I accept that Alhaji Kwaku Kru was given the Power of attorney by the obaapanin of Krobo to litigate on her behalf in view of the fact that he (Alhaji) is quite conversant with the Krobo stool history.”

It is indisputable that this same Alhaji Kwaku Kru (whether an abusuapanin of the Krobo stool or not) testified to Krobo history in support of the case of the defendant-respondent (hereinafter referred to as the defendant).

It has been held in Nyamekye v Tawiah [1979] GLR 265, CA (full bench) that though notions of burden of proof do not apply to trials by chieftaincy tribunals, yet they can utilise admissions in favour of a party’s case to arrive at their decisions. Some of the admissions I have referred to supra and others were used and could have been used to support the judgments of the National House of Chiefs and the Kumasi Traditional Council in favour of the defendant’s case. It is also noteworthy that an entirely independent witness, the third witness of the defendant, Nana Atta Frimpong Manso II, the Abontendonhene of Krobo, supported the defendant’s case in all material aspects.

It is however noteworthy that the defendant admitted in cross-examination that the name of the Krobo stool is “Gyamera Bonsuo” as contended by the defendant. But the National House of Chiefs has explained that that does not necessarily mean that the name is derived from the founder of the stool.

It is also contended that because the defendant is patrilineally related to the plaintiff, the defendant cannot be a royal. But the plaintiff who contends that her family has the exclusive ownership of the Krobo stool is faced with the stark reality of the ascension to that stool by the late S K Mainoo of the Ekuona clan and that clan persistently claims that it owns the Krobo stool jointly with the family of the defendant and rather admitted the plaintiff’s family to that stool out of grace; it also being an Asona migrant, albeit from Beposo in Ashanti while they originated from Akyem.

[p.688] of [1999-2000] 1 GLR 653

I agree with Adade JSC’s dictum in Dua v Nana Osei Kwame (supra) that:

“The question of the de facto occupant of the stool is however, not completely irrelevant, it may help to determine ownership. But the answer to it must be used in concert with the totality of the evidence before the tribunal. After all, a person occupying a house is not necessarily the owner of the house.”

(The emphasis is mine.)

But in this case the ascension of S K Mainoo to the disputed stool is not merely de facto. It is based on the presence of the black stools of his family among the Krobo stools. As the Kumasi Traditional Council said in its majority judgment:

“in support of our acceptance that the defendant is eligible to the Krobo Stool, we quote as an authority, the customary law enunciated in the case between Dr F S Gyapong and Nana Poku Tuase Kanko heard by the chieftaincy tribunal of the National House of Chiefs under the chairmanship of Odeefuo Boa Amponsem III, Denkyirahene. The National House of Chiefs have said more than once that the creation and or blackening of a stool for a line or family is not fancy and once that is done it entitles the group or line or family for which the stool was created or blackened to succeed to the stool and when the new stool(s) is or are mixed with other stools all the stools acquire the same rights and status without discrimination. Ade to bom mu a yenyi (if something falls in a deep well it is irretrievable.)”

(The emphasis is mine.)

The National House of Chiefs, following suit in this appeal, has held:

“All these aside, there is the uncontroverted claim by the [defendants] that they have three stools of their ancestors among the stools of Krobo, stools belonging to the Asona of Akyem origin and the Ekuona. This fact in the absence of any evidence that the stool was created specifically for patrilineal descent goes to buttress the fact that both the Asona and Ekuona can ascend the Krobo stool from maternal line and still

[p.689] of [1999-2000] 1 GLR 653 supports the version of the [defendants]. In any event, the totality of the evidence admits the fact that [defendant] is a royal to the Krobo stool either through the creation of the stool for both Asona and Ekuona clans or the fact that his ancestors have their stools among the stools of Krobo.”

(The emphasis is mine.)

It is a worn-out principle of law that findings of fact made by a trial Court are presumed to be right and the onus is on the plaintiff to displace that presumption. This aspect has been amply dealt with by my brother Adjabeng, JSC and I need not further belabour it.

Even though my mind wavered over this matter like a ship on the tempestuous high seas, it finally found the vivid judgments of the Kumasi Traditional Council and the National House of Chiefs a safe harbour and therein docked.

It has been held in several cases that the National House of Chiefs is the highest authority in chieftaincy matters in this country subject to a few well known caveats.

I would also dismiss this appeal.

JUDGMENT OF AKUFFO JSC.

On 21 July 1999, I supported my learned brothers, Adjabeng and Atuguba JJSC in dismissing this appeal and indicated that I would file my reasons later.

The genesis of the suit, which gave rise to this appeal, has been summarised by my brother Adjabeng JSC in his learned opinion and there is no reason for me to elaborate thereon. The grounds of appeal, as set out in the plaintiff’s notice of appeal filed on 11 July 1997, are as follows:

“(a) The judgment is against the weight of the evidence.

(b) The National House of Chiefs misconceived its function as a second appellate tribunal and erred in law in failing to give any or due weight to the unrebutted evidence that the name of the Krobo stool was ‘Gyamera Bensua’ stool.

(c) The National House of Chiefs erred in law when it purported to make findings without considering the evidence of the appellant and her witnesses.

[p.690] of [1999-2000] 1 GLR 653

(d) The National House of Chiefs erred in law when it held that a matrilineal stool could be created for two friends of different clans.”

The reliefs sought by the plaintiff are that the judgment of the National House of Chiefs be set aside and judgment entered for the plaintiff.

A close analysis of the plaintiff counsel’s statement of case, however, shows that the gravamen of the appeal is what is contained in the first ground of appeal since the second and third grounds are in reality, aspects of the first ground and may be subsumed thereunder. As to the fourth ground of appeal, I have not come across any law that in Krobo in particular or Ashanti in general, a matrilineal stool may never be created for two friends from different clans. Counsel also was not able to draw our attention to any such law. It, therefore, becomes a question of whether or not, on the evidence, the Krobo stool, though matrilineal, was indeed created for two different clans. Essentially, therefore, this is an appeal on facts and our sole task is to determine whether or not the evidence on the record sufficiently supports the conclusions reached by the National House of Chiefs.

I have combed through the evidence presented by both parties before the Kumasi Traditional Council and it is clear to me that the judgment of the National House of Chiefs is fully supported by the record. Coupled with this is the fact that the majority of the traditional council had earlier arrived at the same conclusion. Both tribunals found the case, as presented by the defendant to be the more probable. Moreover, when one reads the majority judgment of the Ashanti Regional House of Chiefs, one cannot help but wonder whether they were, indeed, dealing with the same sets of evidence as are contained in the record before us. If they were, then, one can only conclude that they totally failed to comprehend the record before them.

In the case of Achoro v. Akanfela [1996-97] SCGLR 209, my learned brother Acquah JSC delivering the judgment of this court, at 214-215, put the legal position in the following terms:

“ … in an appeal against findings of facts to a second appellate court like this court, where the lower appellate court had

[p.691] of [1999-2000] 1 GLR 653 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. It must be established … that the lower courts had clearly erred in the face of a crucial documentary evidence, or that a principle of evidence had not properly been applied . . . or . . . that the finding is so based on erroneous proposition of the law that if that proposition be corrected, the finding disappears. In short, it must be demonstrated that the judgments of the courts below are clearly wrong …”

Furthermore, as was pointed out by the Court of Appeal in Ampomah v Volta River Authority [1989-90] 2 GLR 28, CA in an appeal, which is, essentially, based on a charge that the judgment is against the weight of the evidence, it is for the appellant to demonstrate to us that the judgment was indeed against the weight of the evidence. See also Akenteng II v Ayeremah [1996-97] SCGLR 384 at 387 where this approach was adopted by my learned sister Bamford-Addo JSC. Our only duty in this matter is to test the conclusions arrived at by the National House of Chiefs against the totality of the evidence on the record to ascertain whether or not the evidence supports those conclusions. Thus, if the totality of the evidence on the record sufficiently support the conclusions reached by the National House of Chiefs, it is not our function, as an appellate court, to substitute our own evaluation of the evidence in place of that of nananom merely on the basis that, from our perspective, particular pieces of the evidence ought to have been assigned more or less weight.

In arriving at its unanimous decision, the National House of Chiefs, thoroughly reviewed the evidence adduced by both parties and reduced the historical and other evidence of both parties into the following issues: (1) migration; (2) settlement; (3) fusion of the two Asona groups; (4) creation of the stool; (5) the position of Alhaji Kwaku Kru. Considering the nature of the dispute and the evidence presented by the parties to support their respective claims, one cannot

[p.692] of [1999-2000] 1 GLR 653 fault the approach taken by nananom to simplify their analysis of the evidence.

On the first issue, nananom took into particular account the following pieces of evidence:

(a) The defendant’s evidence that at the time his ancestors migrated from Akyem to the Ashanti Kingdom, Nana Osei Tutu I was the Asantehene and there was a war looming between the Ashantis and the Akyems.

(b) The defendant’s evidence that his ancestors migrated from Akyem Adesina and lodged with the Ashanti Adesinahene, who introduced them to his overlord, the Antoahene.

(c) The defendant’s evidence that the Antoahene, in turn, led the migrants to Nana Osei Tutu I who accepted them and ordered that they be accommodated by the Antoahene.

(d) The defendant’s evidence that the Antoahene handed the migrants back to their host, the Adesinahene with instructions to find them a place for settlement.

(e) The evidence that the Adesinahene settled them and subsequently created for them the Krobo stool whose occupant, until the reign of Asamoah Yaw when the stool was elevated a divisional status directly under the Antoahene, swore to the Adesinahene.

(f) The plaintiff’s evidence that her ancestors migrated from Beposo, in Ashanti because of frequent tribal wars.

(g) The plaintiff’s evidence that, though they had migrated with their own stools, they did not disclose this fact to their host. Regarding this piece of evidence, nananom agreed with the conclusion of the Kumasi Traditional Council that, since they did not reveal their possession of the stools to the Antoahene, they must have arrived as ordinary young men without any special skills who are changing their domicile within Ashanti. In that case, there would have been no need to introduce them to the Asantehene for any special recognition culminating in the creation of a stool for them.

Here it is worth reminding oneself that, by the plaintiff’s own evidence, the alleged introduction to the Asantehene is said to have occurred before the alleged creation of the stool.

[p.693] of [1999-2000] 1 GLR 653

(h) The plaintiff’s evidence that everything done for the migrants, including even the alleged introduction to Nana Opoku Ware, was done through the Antoa krontihene, without an okyeame, rather than the Antoahene.

(i) The plaintiff’s evidence that although, to reach the site of settlement, the krontihene and the migrants had to pass through Adesina, the krontihene did not at any time then or thereafter contact the Adesinahene to introduce the migrants who were about to become his neighbours.

Nananom arrived at the conclusion that: “Judging from the custom, reasons and the sequence of events we find the evidence on migration of the [defendant] is more reasonably probable than that of the [plaintiff].”

In my view, the record, as well as custom, supports this conclusion and I see no reason to reverse it. It is worthy of note that the tribunal of first instance, the Kumasi Traditional Council, had likewise, preferred the defendant’s version of settlement against that of the plaintiff. In arriving at its conclusion, the traditional council based itself, in part, on the customary law, as expounded by E E Obeng, Ancient Ashanti Chieftaincy and Warrington’s Notes on Ashanti Custom, that no Ashanti has the power to change his allegiance from one Ashanti chief to another Ashanti chief. The traditional council had also accepted the defendant’s evidence on the arrival of his ancestors and their introduction to the Asantehene as the more probable. Their rationale was unquestionable. As migrants from a nation about to go to war with the Ashantis, their host, the Adesinahene, was customarily bound to introduce them to his overlord, the Antoahene. In turn, the Antoahene was bound to introduce them, irrespective of their status, to his overlord, Nana Osei Tutu I, if he wished to avoid the wrath of the Asantehene.

Having thus preferred the defendant’s version of the sequence of events in the migration of the ancestors of the parties, the National House of Chiefs also concluded that the defendant’s version of the settlement of the migrants was the more probable. This conclusion was irresistible for the simple reason that Nana Osei Tutu’s reign preceded that of Nana Opoku Ware. Additionally, however, there was also the evidence that the defendant’s ancestors were groundnut farmers and by the time the plaintiff’s ancestors arrived at Krobo, groundnut was already being cultivated in the vicinity, as admitted [p.694] of [1999-2000] 1 GLR 653 by the plaintiff’s own witness, the Krontihene of Antoa, the first plaintiff witness.

The defendant’s evidence that the Akyem and Beposo Asona groups became fused, during the reign of the fourth occupant of the Krobo stool, as a result of his ancestors making alliance with the plaintiff’s ancestress, Adomaa, who was a groundnut trader, was also preferred by the National House of Chiefs as the more probable. In opting for the defendant’s version, nananom gave due consideration to the plaintiff’s story that the defendant’s ancestors, whilst in transit, arrived in Krobo and, because they were Asona, were allowed to stay with the plaintiff’s Beposo Asona family without any prior enquiry about their place of origin or the reasons for their journey. However, this story, in the view of nananom, was improbable given the state of matters within Ashanti at that time. This conclusion in my view, is borne out by the evidence,

In determining the issue of the creation of the stool, nananom concluded that, even if the plaintiff’s ancestors had arrived from Beposo with their own stools, as alleged, from the conflicting testimony of the plaintiff and her witnesses, they did not disclose this fact to anyone. Nananom took into account:

(a) The plaintiff’s testimony, the effect of which was that her ancestors arrived from Beposo with male and female stools of their own which they proceeded to occupy and which was subsequently upgraded.

(b) The plaintiff’s admission on cross-examination that her ancestors did not disclose to anyone before or after their settlement that they had brought their own stools from Beposo.

(c) The first plaintiff’s witness, testimony that the stool was created for them by the Antoahene after their introduction to Nana Opoku Ware.

(d) The second plaintiff’s witness, testimony that without inquiring whether or not they had their own stools, he created an odikro stool for them.

Nananom also found that there is no hard and fast rule of customary law pertaining to the naming of stools and it is possible for stools to be named after an occupant who, not being the original occupant, nevertheless distinguished himself during his reign. They, therefore, concluded that although there was no real controversy

[p.695] of [1999-2000] 1 GLR 653 that the Krobo stool is named Gyamera Bensua (the latter being an obvious corruption of Obeng Asua, the person claimed by the plaintiff as the first occupant of the Krobo stool) it did not necessarily follow that the mere name of the stool conclusively resolved the issue. Nananom further concluded that the Adesinahene, as nifahene of Antoa, could create an odikro stool under him and that it was possible for a matrilineal stool to be created for two friends from different clans. These conclusions, in effect, follow lines of reasoning similar to those that swayed the traditional council and I see no reason to fault them.

Finally, nananom also rejected the finding by the majority of the Ashanti Regional House of Chiefs that Alhaji Kwaku Kru is neither a royal nor the abusuapanin of the Krobo stool. The importance of the true status of Alhaji Kwaku Kru in Krobo lies in the fact that since the parties proffered conflicting traditional evidence in support of their respective claims, the law requires that recent events which support the claim of either party should sway the determination of the dispute: see Achoro v Akanfela (supra). In this case, it is clear on the record that, although a member of the Ekuona clan, the Alhaji performed various important customary functions on behalf of the Krobo stool which are normally the preserve of a royal. Thus, on the record, it was undisputed that for many years prior to the commencement of the suit, a period within living memory, he had functioned as the abusuapanin of the Krobo stool family. According to the plaintiff however, he performed this function under a power of attorney granted him by the obaapanin who subsequently withdrew the same. Although, according to the plaintiff and one of her witnesses, Kwadwowaa, the true Abusuapanin is one Afram, it is worthy of note that, on the record, this Afram did not feature in any significant customary activity or event, before the commencement of this case. Furthermore, according to the testimony of the plaintiff’s own witness, the Antoahene, even after the purported withdrawal of the alleged power of attorney, he led Kwaku Kru, in the latter’s capacity as the abusuapanin of the stool family, to appear before the Kumasi Traditional Council. The documentary evidence produced from this appearance, exhibit 1, shows that, throughout the proceedings, Kwaku Kru was acknowledged as the abusuapanin of Krobo. Nananom, correctly in my view, therefore, found that Kwaku

[p.696] of [1999-2000] 1 GLR 653

Kru, an Ekuona, was, indeed, the abusuapanin of the Krobo stool family.

Furthermore, the evidence is overwhelming that one S K Mainoo, a nephew of Kru, was once nominated by the obaapanin of Krobo to ascend the stool of Krobo without any objection or challenge from any party. Indeed, it is clear from the record that not only did the kingmakers accept this nomination, but also he was installed as such, except that, instead of swearing to the Antoahene to complete the customary installation process, Mainoo insisted that he would only swear to the Asantehene himself. Whilst the issue raised by this departure from what had become the norm was yet to be resolved, S K Mainoo died and the stool fell vacant once more. Thus, it is clear that in the normal course of things, and without any intervention from the Almighty, S K Mainoo would have been the Krobohene today. The National House of Chiefs was, therefore, in my view, correct in rejecting as yet another ruse, the plaintiff’s claim that S K Mainoo was merely nominated by the obaapanin to act as a caretaker. By accepting the evidence that Kru was the abusuapanin of Krobo and that S. K. Mainoo was nominated by the obaapanin as a substantive chief of Krobo, it necessarily followed that the defendant’s version of the traditional history of the Krobo stool was the true one.

The National House of Chiefs, as well as the Traditional Council, had also been swayed by the defendant’s claim, in support of his assertion of eligibility, that three of the black stools of Krobo belonged to his Akyem Asona family of settlers. Neither the plaintiff, nor any of her witnesses, was able to pose any serious challenge to this contention. On this point, the traditional council took into account the requisite customary ingredients for establishing eligibility to a stool, namely: (a) lineage to the particular stool family being “Bogya” or member of the abusua; (b) the existence of one’s ancestor or ancestor’s black stool among the existing black stools and (c) the occupation of one’s ancestor or ancestors on the particular black stool at one time or the other.

Having accepted the defendant’s claim of the existence of these stools, nananom then relied on the customary law expounded by the National House of Chiefs in the case of Dr K S Gyapong v Nana Poku Tuase Kanko (already quoted by my brother Adjabeng) and concluded that:

[p.697] of [1999-2000] 1 GLR 653

“This fact in the absence of any evidence that the stool was created specifically for patrilineal descent goes to buttress the fact that both the Asona and the Ekuona can ascend the Krobo stool from the maternal line and still supports the version of the [defendant.]”

In my opinion, the evidence of traditional history and recent events relied upon by the National House of Chiefs to arrive at their conclusions were amply supported by the totality of the evidence on the record. I see nothing perverse or erroneous in the manner in which nananom analysed and evaluated such evidence. Consequently, I cannot find any reason to reverse their decision and can only conclude that the appeal herein has no merit.

DECISION Appeal dismissed.

LSNA

Endnotes

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