ABABIO AND OTHERS vs. KARIKARI AND ANOTHER [2001-2002] 1 GLR 381

CASES REFERRED TO:

(1) MacFoy v United Africa Co Ltd [1962] AC 152; [1961] 3 WLR 1405; [1961] All ER 1169, PC. (2) Rosenfeld v Newman [1953] 1 WLR 1135; [1953] 2 All ER 885, CA; reversing [1953] 1 WLR 558; [1953] 1 All ER 840.

(3) Rogers v Wood (1831) 2 B & Ad 245.

(4) Bakuma v Ekor [1972] 1 GLR 133, CA.

(5) Afuah v Sarbah [1974] 1 GLR 147.

[p.386] of [2001-2002] 1 GLR 381 (6) R v Pugh (Judge); Ex parte Graham [1951] 2 KB 623; [1951] 2 All ER 307; [1951] 2 TLR 253. (7) Mosi v Bagyina [1963] 1 GLR 337, SC.

(8) Tawiah III v Ewudzi (1936) 3 WACA 52.

(9) Damoah v Taibil (1947) 12 WACA 167.

(10) Essilfie v Anafo VI [1993-94] 2 GLR 1, SC.

(11) Cobblah v Okraku [1961] GLR (Pt II) 679.

(12) Akoto III v Agyiman I; Dua III v Agyiman I (Consolidated) [1962] 1 GLR 524, SC. (13) In re Asebu Ekroful Stool; Andzie VIII v Bofo IX [1998-99] SCGLR 339.

(14) Darko v Brako [1982-83] GLR 345, SC.

APPEAL AND CROSS-APPEAL by the defendants and the plaintiffs, respectively against the decision of the National House of Chiefs, affirming the decision of the Eastern Regional House of Chiefs, which reversed the decision of the judicial committee of the Akyem Abuakwa Traditional Council that the royal family of Kwabeng comprised of three sections Akanwenem, Mmabaduan and Kokobeng and each was entitled to succeed to the Kwabeng gyase stool of Akyem Abuakwa but varied the decision by declaring that the nomination, election and installation of the third defendant as the queenmother of Kwabeng was proper. The facts are sufficiently stated in the judgments of Ampiah and Adzoe JJSC. W A N Adumua-Bossman for the defendants-respondents-appellants.

Frimpong Boadu for the plaintiff-respondents-cross-appellants.

Ampiah JSC. This is an appeal from the decision of the National House of Chiefs, Kumasi given on 18 June 1998. For ease of reference, since both parties are appellants before this court, I would refer to them in this my judgment simply as the plaintiffs and the defendants.

On or about 18 December 1986 the plaintiffs by an oath, “Wukuda and Kwanyako” of the people of the Akyem Abuakwa Traditional Area, initiated chieftaincy proceedings at the judicial committee of the Akyem Abuakwa Traditional Council. By that oath

[p.387] of [2001-2002] 1 GLR 381 they claimed that:

“(1) . . . the nomination, election and installation of the third defendant as the queenmother of Kwabeng is null and void as being against custom.

(2) . . . the first and second defendants herein purporting to nominate, elect and install the third defendant as the queenmother without the consent, concurrence and parti cipation of the plaintiffs and their respective families have acted uncustomarily and as such the said nomination, election and installation is null and void and of no effect.

(3) A perpetual injunction restraining the third defendant from claiming or presenting herself or both anywhere and in whatever circumstances as the queenmother of Kwabeng or acting in that behalf.”

This matter which initially involved the queenmother stool of Kwabeng, widened in substance to include both the male and the female stools of Kwabeng, and for that matter, the gyase divisional stool of the Akyem Abuakwa Traditional Area.

I think for a better understanding and appreciation of the issues in this case, a brief history of the case would be desirable. Akyem Kwabeng is within the Akyem Abuakwa Traditional Area whose capital is Kyebi. The paramount chief (Omanhene) of the area is the Okyenhene who resides at Kyebi. The chief (odikro) of Kwabeng is also the gyasehene (a divisional chief) of the Akyem Abuakwa Traditional Area. The people of Kwabeng according to their history migrated from various parts of the country, notably Adanse.

The first plaintiff claims to be the head of the Mmabaduam section of the Asona royal family of Kwabeng. The second plaintiff also claims to be the head of the Kokobeng section of the same family. This action was instituted by the plaintiffs as the accredited representatives of the Mmabaduam and Kokobeng sections of the Asona royal family. The first defendant is the incumbent ohene (chief) of Kwabeng and the gyasehene of the Akyem Abuakwa Traditional Area. The second defendant is the head of the Akanwenem section of the Asona royal family of Kwabeng and the

[p.388] of [2001-2002] 1 GLR 381 third defendant whose installation sparked off this litigation claims to have been installed as the queenmother to the first defendant’s stool. Both the first and third defendants also come from the Akanwenem section of the Asona royal family.

According to the plaintiffs, on or about 17 March 1986 at Kwabeng, the first and second defendants purported to have nominated, elected and installed the third defendant as the queenmother of the Kwabeng stool. That, the plaintiffs claimed, had been done “without the consent, concurrence and participation of the plaintiffs and their respective families . . .” as was demanded by custom. The plaintiffs claimed that the Asona royal stool from which candidates are chosen for enstoolment as the Kwabenghene or the queenmother belonged jointly to the three houses, namely, Akanwenem, Mmabaduam and Kokobeng. Consequently, they contended, the nomination, election and installation of the third defendant as the queenmother without their prior consultation was uncustomary and therefore void.

The defendants vehemently denied the assertion by the plaintiffs and insisted that it is only their section of the Asona family, namely the Akanwenem section, which has authority and is entitled to present candidates for enstoolment on both the male and the female stools of Kwabeng. It was therefore unnecessary for them to consult the plaintiffs’ sections.

The main issues set down for determination in the action before the traditional council were:

(i) Whether or not the Kwabeng stool belonged jointly to the three sections of the Asona family at Kwabeng or to only the Akanwenem section.

(ii) And, if it belonged to the three sections jointly, whether the nomination, election and installation of the third defendant as the queenmother without consulting the other two sections was contrary to customary law and practice.

(iii) And, if it was uncustomary, whether the installation of the third defendant as the queenmother was null and void.

The judicial committee of the Akyem Abuakwa Traditional Council unanimously dismissed the plaintiffs’ claim holding that:

“. . . the Akanwenem family is the only Asona royal ruling family of Kwabeng and that the Kokobeng and Mmabaduam

[p.389] of [2001-2002] 1 GLR 381 families are not part of the Akanwenem family, neither do they have any rights to the Akyem Abuakwa gyase stool of Kwabeng.”

Not satisfied with this decision, the plaintiffs appealed to the Eastern Regional House of Chiefs, Koforidua. The appeal was allowed and the decision of the traditional council overturned. The judicial committee held, inter alia, that:

“The petitioners’ sections form part of the Asona royal family of Kwabeng and should have been consulted by the first and second respondents in the nomination, election and installation of the third respondent as the queenmother of Kwabeng.”

The “petitioners” and the “respondents” were the plaintiffs and the defendants respectively in the action.

It was then the turn of the defendants to appeal. The defendants appealed against the decision of the Eastern Regional House of Chiefs to the National House of Chiefs, Kumasi. The house dismissed the appeal but varied the decision of the Eastern Regional House of Chiefs. In place of that decision, the National House of chiefs decided that:

“(a) The nomination, election and installation of the third defendant as the queenmother of Kwabeng was properly done and shall continue as such.

(b) . . . for the avoidance of doubt and the prevention of further or future litigation bearing or relating to the relationship of the parties, we state that members of all three families are royals with equal rights to both the male and female stools.”

Thus, while holding that the Asona royal stool of Kwabeng belonged jointly to the three families, namely Akanwenem, Kokobeng and Mmabaduam, it accepted the defendants’ evidence that “. . . according to Okyenman custom it is the chief who nominates his queenmother for enstoolment.” Consequently, it did not find the nomination of the third defendant as queenmother by the first defendant alone fatal to the installation of the third defendant as the queenmother to the Kwabeng stool; it directed that [p.390] of [2001-2002] 1 GLR 381 the third defendant should continue as the queenmother. Thus, in a way dismissing the plaintiffs’ claim on that issue.

From that decision, both parties have appealed to this court. The defendants have appealed against the National House of Chiefs’ holding that the Asona royal family of Kwabeng consisted of the three families. The plaintiffs on the other hand, have cross-appealed against the National House of Chiefs’ decision that the nomination, election and installation of the third defendant as queenmother was proper even though it was not done in consultation with the plaintiffs’ family which the National House of Chiefs itself found, jointly owned the Kwabeng stool—both male and female.

The defendants appealed on the following grounds:

“(a) The judgment of the National House of Chiefs is wrong and should be set aside because:

(i) Exhibits A and B were not binding on the defendants-respondents-respondents-appellants and the National House of Chiefs should not have relied on them.

(ii) The traditional evidence adduced by the defendants-respondents-respondents-appellants in support of their claims was overwhelming and the national chieftaincy tribunal erred in not considering it.

(iii) The judgment is against the weight of the evidence adduced by the appellants at the trial.”

The plaintiffs, on the other hand, filed their cross-appeal on the ground that:

“The judicial committee’s decision that the nomination, election and installation of the third defendant as the queenmother of Kwabeng was properly done was wrong as it is uncustomary and against the weight of evidence on record.”

Counsel on both sides filed their statements of case on behalf of the parties. After counsel had submitted their respective statements of case, the case was adjourned to 20 February 2002 for judgment. In the interim, the defendants filed notice for leave to file a fresh statement of case. If only to do justice in the case, the court reluctantly obliged the defendants and a fresh statement of case was

[p.391] of [2001-2002] 1 GLR 381 admitted. New issues were raised in this fresh statement of case. These were:

“(1) The proceedings in those exhibits, namely A, B, C and E are vitiated by want of jurisdiction in two different ways.

(i) That under the law establishing the tribunal the requirement that the paramount chief or the divisional chief should be sitting with the chief’s headmen, linguists, etc outlawed a one-man trial by a paramount or divisional chief exclusively and since the trial of oath case No 35/34 was exclusively by the Okyenhene’s representative, Barima Kwadjo Apeanyo, the Abontendomhene, the entire proceedings and judgment were caught by section 2 of Cap 111 and are consequently null, void and of no legal effect whatsoever. Hence exhibit A cannot be the basis of an estoppel as found by both the regional and National Houses of Chiefs.

(ii) Also, exhibit A was void since the tribunal of the Okyenhene was not properly constituted but, instead kept changing throughout.

(iii) Consequently exhibits B and D which ‘crucially’ relied on exhibit A collapsed. Since, ‘. . . if an act is void, then it is in law a nullity. It is not only bad, but incurably bad.

There is no need for an order of the court to set it aside, it is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse’.

Per Lord Denning in Macfoy v UAC Ltd [1962] AC 152 at 160, PC.”

To establish their claim, the plaintiffs relied, among other evidence, on exhibits A, B, B (ii), D, E and F. Exhibit A contained the

[p.392] of [2001-2002] 1 GLR 381 proceedings in a case entitled Kwadjo Amankwa and Kwabena Pippim v Yao Merew: suit No 35/34 which came before the tribunal of the Omanhene of Akyem Abuakwa. It was a case brought by the plaintiffs in that case to claim “. . . £100 damages from the defendant for slander by stating that the members of the Asona clan of Kwabeng otherwise called Kokobeng family are not entitled to the stool of Kwabeng.” (The emphasis is mine.) The plaintiffs submitted that “. . . the case affects the whole Kokobeng family and as such any member of the family can give evidence for and on behalf of the family.” The defendants agreed that “. . . this case affects the title of the plaintiffs to the gyasehene’s stool of Kwabeng.” Thus, at the onset of the trial, both parties had agreed that though the claim was couched as one of slander, the substance was one of a claim to the stool of Kwabeng, namely the odikro stool which was also the gyase stool of the Akyem Abuakwa Traditional Area. Kwadjo Amankwa represented the Kokobeng section of the Asona family while Kwabena Pippim represented the Mmabaduam section. The defendant, Yaw Merew, represented the Akanwenem section. Having narrated extensively the history of their ancestors in relation to Kwabeng and the Kwabeng stool thereof, Opanin Kwadwo Amankwa concluded:

“. . . my contention is that the three sections of the family Kokobeng, Akanwenem and Mmabaduam belong to one stock. It is the defendant who is now trying to establish a dissention among us by stating that the Kokobeng family are not eligible for election to the Kwabeng stool.”

Kwabena Pippim gave evidence as the plaintif’s witness although he was said to be a plaintiff. He also narrated the history of the Kwabeng people and named some of the people who had been enstooled in the past as Kwabeng chiefs; they included persons from each of the three sections of the Asona family though numerically, some sections had offered more candidates than others. Witnesses were called to support the plaintiff’s claim.

The defendant, Yaw Merew also gave evidence, narrating the history of Kwabeng and ascensions to the Kwabeng stool. He did not agree with the plaintiff’s version. He also called witnesses in support of his case. At the end of the trial, the tribunal after eva-

[p.393] of [2001-2002] 1 GLR 381 luating the evidence on record, concluded:

“The evidence shows that there are three branches of the stool family at Kwabeng, namely Akanwenem, Kokobeng and Mmabaduam. The plaintiff is a member of the Kokobeng family and the defendant is a member of the Akanwenem family …

We are satisfied that the defendant is not justified in his statement that the Kokobeng branch of the Asona family at Kwabeng is not entitled to the Kwabeng stool and accordingly give judgment for plaintiff allowing him £6 damage with costs to be taxed.”

Though the conclusion was made in favour of the plaintiff and his Kokobeng branch of the Asona family, the finding affected also the Mmabaduam branch which was a party to the action and whose head, Kwabena Pippim gave evidence testifying to his branch’s eligibility to the Kwabeng stool.

That action was in 1934. The defendants herein did not raise any objection to the tribunal’s competency to sit on the matter then. Their only contention was that exhibits A and B were not binding on the defendants-respondents-appellants and the national chieftaincy tribunal should not have relied on them.

Exhibit B contained an extract of minutes of the Okyenman Council held at Ofori Panin Fie, Kibi on 4 February 1959. Among the persons present at that meeting were:

“(1) Barima Apeakorang Awere, Kwabenhene (2) Kwabena Akomaning, Akanwenem abusuapanin (3) Kwadwo Amankwa, Kokobeng abusuapanin (4) Kwasi Antwi, Mmabaduam abusuapanin.”

Some of the chiefs and elders of the Akim Abuakwa Traditional Area were also present. At this meeting the Okyenhene reviewed the case before the council and said:

“. . . The four people named above were invited to today’s meeting because of the delicate nature of the case . . . the evidence of both parties showed that they are all members of

[p.394] of [2001-2002] 1 GLR 381 the ruling Asona family clan of Kwabeng. Indeed, the defendants themselves admitted that they were members of the Kwabeng royal family. In view of that they should not have married because it is not in conformity with Akyem Abuakwa marriage custom for them to do that. It is an incest taboo.”

Nana (the Okyenhene) then pointed out: “that while Opanin Amankwa made a mistake by not reporting the matter to the council earlier, it is necessary for the mistake to be rectified by putting an end to that practice.” He (Nana) then observed “. . . The problem is even worse considering the fact that the three families of Kwabeng (to which the two of them belong) could each present a candidate to inherit the Kwabeng stool.” Nana then referred to the 1934 case (ie exhibit A) which established that the three families were one and the same. The guilty couple were then asked to slaughter a sheep and end the uncustomary marriage.

The above proceedings (as contained in exhibit B) may not be classified as judicial proceedings properly so-called, but at least they established facts which by the parties’ own conduct, they had agreed on namely, that:

(i) the three families were one and the same; they all belonged to the Asona royal family of Kwabeng;

(ii) each family was entitled to present a candidate for enstoolment on the Kwabeng stool; both male and female; and (iii) marriages amongst them were uncustomary and a taboo so far as Akyem Abuakwa custom was concerned.

None of the parties challenged the decisions taken by the Okyenhene and for that matter the council. Exhibit A was referred to in the proceedings and stated to have established the unity or oneness of the three families which constituted the Asona royal stool family of Kwabeng. Representatives including the predecessor of the incumbent Kwabenghene (the first defendant in the present action) were present at the meeting. The parties were bound by those proceedings; it does not lie in their mouths now to deny their relationship.

Exhibit B (ii) (2) is only a notice (civil form 3) inviting the parties to go to the High Court registry at Koforidua to settle records in an appeal filed against a decision by the High Court, Koforidua in

[p.395] of [2001-2002] 1 GLR 381 the case entitled “Republic v Akyem Abuakwa Traditional Council, Kibi and three Others; Ex parte Opanin Kwasi Antwi and Another numbered Misc 54/86” the proceedings of which, are contained in exhibit E. In that matter, the applicants therein had applied for an order of the court to have brought before the court, for the purpose of it being quashed, a decision of the Akyem Abuakwa Traditional Council or the Kyebi Executive Council or both given on 8 April 1986 at Kibi in the suit entitled Opanin Kwasi Antwi and Lt Colonel Isaac Osei Agyare (Rtd) v Nana Kwakye Ababio II and Baffour Atta Yaw.

The facts relied on in support of that matter as stated by the judge were:

“The royal Asona family of Kwabeng in the Akyem Abuakwa Traditional Area is made up of three houses, namely Kokobeng, Mmabaduam and Akanwenem. It has been the custom that the queenmother of Kwabeng is appointed from any of the three houses after the principal members of these houses and the chief of Kwabeng have entered into consultations. Apparently, a new queenmother, Madam Akua Broni had been installed without consultation with the applicants’ family, namely Kokobeng and Mmabaduam. An action had been taken against the respondents, the defendants in that action at the Akyem Abuakwa Traditional Council, the first respondent herein, the applicants, contended that:

‘instead of the matter coming before a judicial committee appointed by the first respondent, it came before a body styled the Kyebi Executive Council appointed by the Okyenhene himself for the adjudication of the matter. The case was called on the appointed day and the Okyenhene Kuntunkununku II himself just dismissed the applicants’ case, in these circumstances breaching as he did so the rules of natural justice …’ ”

The High Court, presided over by Mr Justice Moses Abakah, ruled in favour of the applicants and ordered that the proceedings of the Kyebi Executive Council and the Akyem Abuakwa Traditional Council be brought up to the court to be quashed. It is this decision

[p.396] of [2001-2002] 1 GLR 381 which was purportedly appealed against and for whose settlement of record, notice was given in exhibit B (ii)(2). The instant proceedings are the aftermath of the case which culminated in the certiorari and prohibition proceedings in exhibit E. That was in 1986. The instant case started in 1994. It can be presumed that in view of the instant case, the appeal in exhibit E has become unnecessary and has therefore been abandoned.

The proceedings in exhibits B and E cannot be said to have created an estoppel per rem judicatam. They, however, are pieces of evidence in support of the plaintiffs’ persistent assertion that the three families are one and that their respective branches of the Asona royal family are also entitled to ascend the Kwabeng stool, both male and female.

Exhibit F contains the proceedings of the “Emergency Meeting of the Standing Committee of Akyem Abuakwa Traditional Council held at the hall of the council at Kyebi on Tuesday, 21 January 1969, sitting in arbitration under the chairmanship of Nana Ofori Atta II.” At this meeting, were 42 persons consisting of the Okyenhene and other chiefs and elders of the Akyem Abuakwa Traditional Area; some non-chiefs were also present. In those proceedings, the plaintiffs contended, as they do now, that: “The main point in the petition is that although there are three royal houses at Kwabeng, namely Akanwenem, Kokobeng and Mmabaduam from which candidates can be nominated for the Kwabeng Stool, yet in recent times candidates have been chosen from only one house, ie Akanwenem royal house, to the detriment of the two remaining royal houses. The petitioners therefore suggest that steps should be taken to rectify what they call ‘mistakes of the past’ so that candidates should be selected from the three houses by rotation.”

The committee came to the following conclusion:

“After careful consideration of the evidence given before the committee and of all the points raised in the petition, the committee is of the view that the time was not ripe for the petitioners to raise a matter of this nature. Both petitioners agreed that it is against the Akyem Abuakwa custom to raise

[p.397] of [2001-2002] 1 GLR 381 such an issue when the stool involved is occupied. The right time to do so is when the stool is vacant and the question of filling the vacancy is being discussed by the kingmakers.”

This conclusion did not and could not create an estoppel on any of the parties. It only affirmed the plaintiffs’ assertion of belonging to the Asona royal family and that whatever was to be done about the stool must be done with consultation and agreement of all the three sections of the Asona royal family. The matter involved the three sections of the royal family. There was no denial of the plaintiffs’ right to participate in the enstoolment of the Kwabenghene.

What did the various tribunals say about these exhibits? Of exhibit A, the Akyem Abuakwa Traditional Council said:

“The most baffling evidence is exhibit A. We have read and studied the original records and apart from minor typing errors, the judicial committee finds the judgment wholly difficult from the original record. Instead a short judgment delivered which we quote as, ‘In the tribunal of Omanhene of Akyem Abuakwa held at Ofori Panin Fie, Kyebi on Saturday the 23 day of June, 1934 before Barima Kwadjo Apeanyo, Abontendomhene—Oath No 35/34

Kwadjo Amankwaa v Yao Merew Parties present— Judgment for plaintiff for £6 with costs—

Witness to mark Kwadjo Apeanyo his Registrar, Abontendomhene x

For OAA mark

Since plaintiffs cannot account for the source of their [p.398] of [2001-2002] 1 GLR 381 judgment in exhibit A we are unable to accept it and have accordingly rejected it for what it is worth.’”

I am at a loss as to which exhibit A the traditional council was referring to. The exhibit A tendered in the instant proceedings runs into several pages (from pages 99-141 of the record of proceedings). It contains the evidence of the parties and their witnesses, the evaluation of the evidence by the tribunal and the judgment. To appreciate the complaint of the plaintiffs in that case and the import of that judgment, the judicial committee was enjoined by law and the rules to look at exhibit A in its entirety. It is therefore obvious to me that, the judicial committee misdirected itself on exhibit A and came to an erroneous conclusion as to the purpose of those proceedings. Having rejected exhibit A and having assured itself erroneously that its judgment would “. . . once and for all settle the incessant and frivolous litigation as to which family is the royal ruling house of Kwabeng” the committee refrained from looking at the other exhibits tendered in evidence. It thus disabled itself from fully and critically evaluating the evidence so as to arrive at a proper conclusion on the matter before it.

The Eastern Regional House of Chiefs had no difficulty in allowing the appeal on the decision by the traditional council. It gave judgment for the plaintiffs on all their claims. It delivered itself of its judgment thus: “Much evidence was adduced by the parties to the suit, but the most important aspect of the whole dispute culminated in, and depended on, the exhibits tendered.” Of the exhibits, it said: “These should go to establish or negate the contention by the petitioners that they also belong to the Asona royal family of Kwabeng. The first, exhibit A, was the record of proceedings at the tribunal of the Omanhene of Akyem Abuakwa on 10 May 1934 entitled Kwadwo Amankwaa and Kwabena Pippim v Yaw Merew and was a claim for damages for slander to explain why the Kokobeng family were alleged not to be royals of Kwabeng. The ‘plaintiffs’ were of the Kokobeng branch and defendants were of the Akanwenem branch. At the end of a lengthy trial, the Okyeman Council found that members of the Kokobeng branch had occupied the Kwabeng stool and, that the Kokobengs and Akanwenems are equally entitled to the

[p.399] of [2001-2002] 1 GLR 381

Kwabeng stool. This was as far back as 1934, and no appeal was lodged against this decision nor has there been a review of it. In their judgment in the present case, the Akyem Abuakwa Traditional Council judicial tribunal accepted this exhibit A but in the judgment stated that it had no weight on the present case. This was repeated by counsel for the respondent when arguing against the appeal. The same argument was put against exhibits B and D. Exhibit B related to an inter-marriage between members of the Kwabeng royal family in which case the couple and their heads of family were penalised and a sheep slaughtered to wash away the stigma of a ‘taboo’ for the unnatural marriage. In its ruling, the council found the heads of these ruling families guilty (referring to the Kokobeng, Akanwenem and Mmabaduam houses). Counsel for the appellants has agreed that these exhibits and others tendered went to the root of the present dispute and should have been admitted to end the trial. It should be noted that in all these exhibits the parties represented the various branches of the family and that whatever decisions were taken affected them in their capacity as representatives of their various branches and therefore their successors and their whole families.”

The Eastern Regional House of Chiefs thus concluded:

“Having arrived at these conclusions, we are obliged to agree with the appellants’ counsel’s submission that exhibit A, being a dispute between heads of the families, the council’s finding is binding on all future generations of the said families and in the absence of review of the decision therein, creates an estoppel against the respondents in this case. Carefully considered, this exhibit should have settled the matter as to the membership of the Asona royal family of Kwabeng, and no further evidence should have been required as was done in the trial tribunal.”

In its judgment the National House of Chiefs found, “. . . more than enough evidence on the record to enable a tribunal to come to a fair and more reasonable conclusion that the Mmabaduams and the Kokobengs are royals.” The house referred copiously to passages in the exhibits, particularly exhibits A and B and came to the same

[p.400] of [2001-2002] 1 GLR 381 conclusion as the Eastern Regional House of Chiefs, that, the parties were bound by the decisions reached in those proceedings. In conclusion, it said:

“If the tribunal below had not treated the records from the Okyeman’s court as of little or no value and of no binding effect but had given them as much respect and relevance as we do, they would have come to the irresistible conclusion that the denial of the two other families’ royal status was of a recent making and bound to fail.”

It is quite clear from the records that apart from other evidence upon which the Eastern Regional House of Chiefs and the National House of Chiefs depended to found their judgments, both relied extensively on exhibits A and B which both houses found created an estoppel against the defendants.

In their fresh statement of case which by leave of the court, the defendants were permitted to file, the defendants attacked exhibits A and B upon which both the Eastern Regional House of Chiefs and the National House of Chiefs had depended. The defendants submitted in substance that “. . . those exhibits are vitiated by a want of jurisdiction in two different ways . . .” First, he submitted that since the judgment relied on was that of an inferior court or tribunal, namely the Okyenhene’s tribunal, it was for the plaintiffs who were relying on that judgment to prove the jurisdiction of that court or tribunal; there is no presumption of jurisdiction in an inferior court. Secondly, he contended that by reason of the proceedings and judgment in exhibit A being a one-man show kind of trial by the paramount chiefs’ representative (the abontendomhene alone), the entire proceedings and judgment are caught by section 2 of Cap 111 and are consequently null, void and of no legal effect whatsoever. Thirdly, he submitted that exhibit A is void for the additional reason that the tribunal of the Okyenhene was not properly constituted but instead, kept changing throughout the trial of the oath case No 35/34. An adjudicating panel, he further submitted, if vested with jurisdiction, must remain consistent in its composition throughout its hearing of a case. Fourthly, he contended that exhibit D is also void for:

[p.401] of [2001-2002] 1 GLR 381

“The Kyebi Executive and Amantuomiensa Council appear to be usurping the exclusive judicial power of the judicial committee of the Akyern Abuakwa Traditional Council conferred by section 15 of the Chieftaincy Act, 1971 (Act 370) or the reliefs sought in exhibit D could only be adjudicated upon by the ordinary courts of Ghana under the Courts Act, 1993 (Act 459) or by an arbitration which is not what exhibit D discloses.”

In conclusion therefore, he submitted, “exhibit D contains null and void proceedings which cannot found any estoppel against the defendants herein.” To sum up on these exhibits, he submitted that since exhibits B and D crucially depended on exhibit A, they all collapsed, relying on the oft quoted dictum of Lord Denning in MacFoy v United African Co Ltd [1962] AC 152 at 160, PC. He submitted further that if the contents of exhibit A were found to be null and void, it would not matter that the proceedings had not been pronounced upon as such, nor had they been set aside since 1934.

The doctrine or principle of estoppel is founded on the maxim “interest reipublicae ut sit finis litium” meaning, “it concerns the State that lawsuits be not protracted.” Also, “no man ought to be twice vexed, if it be found by the court that it be for one and the same cause” (nemo debet bis vexari, si constat veriae quod sit pro una et eadem causa). If an action be brought, and the merits of the question be dismissed between the parties, and a final judgment obtained by either, the parties are concluded, and cannot canvas the same question again in another action, although, perhaps, some objection or argument might have been urged upon the first trial which would have led to a different judgment.

As stated before in this judgment, both the Eastern Regional House of Chiefs and the National House of Chiefs relied on exhibits A, B and D not exclusively but extensively in their judgments. Both were satisfied that these judgments created an estoppel on the parties. They have not been faulted in their conclusions save that the defendants now claim that these exhibits could not have been relied on as the proceedings and judgments contained therein were null and void.

Estoppel of all kinds, however, are subject to one general

[p.402] of [2001-2002] 1 GLR 381 rule: they cannot override the laws of the land. Thus, where particular formality is required by statute, no estoppel will cure the defect and jurisdiction cannot be given to the court by estoppel, where statute denies it. In order that estoppel by record may arise out of a judgment, the court which pronounced the judgment must have had jurisdiction to do so: see Rosenfeld v Newman [1953] 2 All ER 885, CA. The lack of jurisdiction deprives the judgment of any effect, whether by estoppel or otherwise: see Rogers v Wood (1831) 2 B & Ad 245. In Bakuma v Ekor [1972] 1 GLR 133 at 134, CA, it was held, inter alia, that:

“An inferior court, such as the magistrate’s court in the instant case, can only have such jurisdiction as is specifically conferred on it by the enactment constituting the court. Where a decision of an inferior court is pleaded as conclusive against one of the parties to a dispute, it must be shown by the person who relies on that decision that the court giving it had jurisdiction. If that court wrongly assumes jurisdiction, the whole proceedings become a nullity. A judge of an inferior court is said to have exceeded his jurisdiction when he assumes to do something which cannot in any way be justified by the relevant statutory provisions from which he derives his power to adjudicate.”

Also, when an inferior court gives a decision, the presumption is that the inferior court has no competent jurisdiction to pronounce the judgment upon which the plea of res judicata is founded until the contrary is proved. In proceedings in inferior courts, the maxim, omnia praesumuntur rite esse acta (all things are presumed to be correctly done) did not apply to give jurisdiction—contrast superior courts: see Afuah v Sarbah [1974] 1 GLR 147 and R v Pugh (Judge); Ex parte Graham [1951] 2 KB 623.

The court which tried the case in exhibit A was the tribunal of the Omanhene of Akyem Abuakwa. The tribunal was set up under the Native Administrative Ordinance, Cap 111 (No 18 of 1927). Section 43(1) of Cap 111 states:

“43. (1) A Paramount Chief’s Tribunal shall have and may exercise within the State of such Paramount Chief civil juris- [p.403] of [2001-2002] 1 GLR 381 diction for the hearing and determination of the causes and matters hereinafter mentioned, in which all parties are natives and the defendant was at the time when the cause of action arose within such State, or in which any party not being a native consents in writing to his case being tried by such Paramount Chief’s Tribunal.”

The paramount chief’s tribunal shall be formed by:

“. . . the Paramount Chief or his representative. . . sitting, with his Divisional Chiefs, Chiefs, Headmen, Linguists, and Councillors (or some of them) in accordance with native customary law, as the case may be.” (Vide section 2 of CAP 111).

It has not been disputed that the tribunal which tried the matter in exhibit A had jurisdiction to try the matter. The defendants’ complaint was that the tribunal had not been properly constituted, that is, the requisite number of persons required to sit did not sit to hear the matter throughout and that the panel kept on changing. If indeed it was only the Abontendomhene, Barima Kwadjo Apeanyo, who constituted the tribunal, as contended by the defendants, then their contention that the panel members kept on changing cannot be accepted, as the two statements cannot hold. The truth as I find from the argument of the defendants’ counsel is that, the defendants are not sure what happened; his contention can only be speculative!

It is about 68 years since the judgment in exhibit A was given. It is highly impossible to get accurate record of all that happened at the tribunal. “With lapse of time”, as the maxim goes, “all things are presumed to have been done rightly and regularly” (ex diuturnitate temporis omnia praesumuntur esse rite et solennitur acta) but, in Afuah v Sarbah (supra) applying the dictum of Akufo-Addo JSC (as he then was) in Mosi v Bagyina [1963] 1 GLR 337, SC the court held in holding (4) at 148 that: “The judge who heard the local court case on appeal should on his own motion have set the judgment aside, as soon as he found that the local court had no jurisdiction to try the case irrespective of the fact that the notice of appeal was filed out of time because there was no time limit in which the party affect-

[p.404] of [2001-2002] 1 GLR 381 ed by a void judgment or order might apply to have it set aside.”

The defendants did not appeal against the judgment in exhibit A. Neither had they raised the issue of the void judgment in subsequent proceedings. And, in the appeals to the various judicial committees, in the instant proceedings, no such issue was raised, but, as stated in the Mosi case (supra), if the proceedings in exhibit A are found to be void, then it would not have mattered that the issue is now being raised after 68 years.

As stated before, the defendants themselves are unsure as to whether it was a one-man tribunal which sat on the proceedings in exhibit A. Cap 111 which sets down the rules for these tribunals provides in rules 2 and 3, the following:

“(2) The Paramount Chief or Divisional Chief shall cause to be recorded all the proceedings of the Tribunal, whether such proceedings appertain to civil or criminal causes or matters and whether they are commenced by lawful oath, summons or warrant of arrest, and shall cause such records to be preserved. The records shall be signed by the Registrar who made them.

(3) All judgments and orders shall be signed by the presiding Paramount Chief, or Divisional Chief, or by the person acting for him as the case may be.”

The record of proceedings shows that the daily proceedings were signed by the registrar and the judgment was signed by the person who presided on behalf of the paramount chief. The record also shows that at the onset of the trial, the required personalities were referred to even though their names were not mentioned. It cannot be said however that the presiding divisional chief sat alone. There were questions put by the tribunal as the record shows—see page 138. The last paragraph of the judgment stated, “We are satisfied that. . .” Section 2 of Cap 111 does not say that all the persons who constituted or could constitute the tribunal must sit. It provides for “some of them” sitting in accordance with native customary law. One can compare the constitution of this tribunal with the body constituted to hear chieftaincy matters under the Chieftaincy Act,

[p.405] of [2001-2002] 1 GLR 381

1961 (Act 81). Section 43 of Act 81 provides, “In the exercise of the jurisdiction conferred upon it by section 15 of this Act, a Traditional Council shall conduct its proceedings according to Customary law, …” No specific number of persons was required to constitute the adjudicating body; except that when the council sits, No business except that of adjournment shall be transacted if less than one half of the total number of members are present.” (Vide section 16(3) of Act 81.) Of course Act 81 has been repealed and Act 370 (the Chieftaincy Act, 1971) has replaced it. See section 28(2) which requires that the judicial committee should consist of three or five persons. There, the law requires that a specific number of persons should sit. In that case, any shortage in the membership shall constitute a violation of a statutory provision which act would render the proceedings a nullity.

In Tawiah III v Ewudzi (1936) 3 WACA 52 at 55, the court held, referring to its earlier decision, that: “In the present case it is clear that at least two of the Tribunal members who gave judgment were not present throughout the proceedings, and did not hear all the evidence. This vitiates the whole trial . . .”

See also, Damoah v Taibil (1947) 12 WACA 167. Here it was clear that two of the tribunal members had not been present throughout the proceedings. Is it so clear here?

In any case, section 56 of Cap 111 provides:

“56. No proceeding in judgment of a Tribunal shall be void or in any wise impeachable by reason only of any person being absent therefrom who ought to have been present as a member, councillor or officer of such Tribunal, or of any other disqualification or want of qualification affecting any of the persons present as members, councillors, or officers taking part in such proceeding or judgment.”

I am satisfied therefore that the proceedings culminating in the judgment in exhibit A are valid and are binding on the defendants.

Counsel for the defendants also attacked exhibits B and D on the following grounds:

(i) That since exhibits B and D crucially depended upon A,

[p.406] of [2001-2002] 1 GLR 381 they also collapsed by operation of the dictum of Lord Denning in the MacFoy v United Africa Co Ltd case (supra).

(ii) That the bodies which sat on the case were incompetent to do so.

(iii) That those bodies could not properly adjudicate on the cause or matter before them.

As stated before, exhibit B consists of the minutes of the Okyenman Council. It was not adjudicating on the matter but the proceedings were within the competency of the council. As stated, even though the outcome may not be referred to as a judgment, it exhibited a conduct by the parties which conduct they cannot now run away from.

On the other hand, exhibit D contained proceedings of a meeting by the Kyebi Executive and Amantuamiensa Council to consider the “Kwabeng Affairs” that is, the matter between Opanin Amankwa (the first plaintiff in the instant proceedings, and Kwabena Amponsa and Abena Ofosua). This meeting took place on 18 April 1974. On 4 February 1959, a matter had been referred to the Okyenman Council in respect of marriages between members of the different branches or sections of the Asona royal family. This the council had found was a taboo. Those found guilty were made to slaughter sheep as a form of purification. Those proceedings are contained in exhibit B. About fifteen years later, the council realised that the practice had continued even though it had been declared a taboo. The complainant sought:

“(1) An order by the council imposing the necessary customary sanctions against the defendants joinltly and severally.

(2) An order of the council dissolving the marriage.

(3) An order of the council perpetually restraining the two (2) defendants from coming together as a couple.”

At the end of the proceedings the Okyenhene remarked that he wanted to ensure the unity of the clan and that was why they had been held jointly and severally liable for failing to report the matter to the council earlier.

This strictly was not an adjudication properly so-called. No

[p.407] of [2001-2002] 1 GLR 381 one appealed but the parties understood clearly why they had been admonished. Here then was a restatement of the fact that the three families were one and the same. Counsel for the defendants has not told this court why the proceedings should be declared a nullity. The Okyenhene, and for that matter, the Okyenman Council has a customary duty to perform, namely to settle disputes among the people by various ways not necessarily by adjudication.

Since I have found exhibit A to be valid and binding, the proceedings in exhibits B and D which relied to some extent on exhibit A cannot be said to be invalid; they are of evidential value in support of the plaintiffs’ continued assertion as members of the Asona royal family of Kwabeng.

On the issue of the nomination, election and installation of the third defendant as the queenmother of Kwabeng, the National House of Chiefs said:

“Kwabeng is the gyase division of Akyem Abuakwa. Custom relating to the nomination, election and installation of a queenmother is like that of most of the Akan areas who know of it; it is the chief who nominates and elects his queenmother. It is not the same as the nomination, election and installation of the chief himself where the requirement of consultation with the families is so relevant. We have not seen sufficient evidence to make us think that Kwabeng is an exception to the general rule. If a chief consults all or some members of the family before he makes his nomination and election it is out of respect for them. Strictly speaking he is not bound to do so.”

The Eastern Regional House of Chiefs was of a different view. Having come to the conclusion that the plaintiffs’ sections form part of the Asona royal family of Kwabeng, it said the plaintiffs’ section should have been consulted by the first and second defendants in the nomination, election and installation of the third defendant as the queenmother of Kwabeng.

Since the Akyem Abuakwa Traditional Council had found that the plaintiffs’ family did not form part of the Asona royal family of Kwabeng, consultation with them was in the council’s view not necessary in so far as the nomination, election and installation of the queenmother of Kwabeng was concerned. If it thought otherwise, it

[p.408] of [2001-2002] 1 GLR 381 would have critically considered that issue.

In Dr J B Danquah’s book, Akyem Laws and Custom and the Akim Abuakwa Constitution, p 27, the learned author, himself an Akim Abuakwa citizen of high repute, stated:

“The Queenmother or Ohema in the Akan State system, is either a mother, aunt, sister or cousin of the reigning Omanhene or Ohene, who has been duly elected to and installed in that office by the same people who elect and install the Omanhene or Ohene.”

(The emphasis is mine.)

Customarily, three processes are involved in the enstoolment of a chief or queenmother, namely nomination, election and installation. It is not being suggested by the National House of Chiefs that both the nomination and election are done by the chief alone. That would amount to an usurpation of the customary rights of the kingmakers. As Danquah states, the same people who elect and install the omanhene or ohene, elect and install the queenmother. Whilst the right to nominate the omanhene or ohene lies with the queenmother, the right to nominate the queenmother lies with the omanhene or ohene. After the nomination, the election is made by the kingmakers in consultation with all the relevant sections of the family and the installation is done with the people (including the elders) who take turns to swear the oath of allegiance to the omanhene or ohene after he has sworn to them. To put all the power in the chief is to make him a dictator in the eyes of custom. Custom goes further than mere respect! To say that the chief consults the family “out of respect” undermines the custom. Consultation should either be part of the requirement of custom or it is not.

In his evidence, Barima Kwakye Ababio, the second defendant who is the incumbent chief of Kwabeng and the spokesman for the defendants said:

“. . . About a year ago, Nana Adwobeng II, the queenmother expired and we wanted to replace her. Therefore myself and the abusuapanin met. According to Okyeman custom a chief has to nominate his queenmother for enstoolment. Therefore I mentioned Madam Akua Broni’s name as my new queenmother. This was put before the family. The abusua also agreed. I informed Okyenhene according to custom and he allowed me. I informed Nana Sekyeraa, the queenmother of

[p.409] of [2001-2002] 1 GLR 381

Akyem Abuakwa and she also agreed. . .”

Surely, this should be the custom! It is not that the chief nominates and elects. After the nomination by him which is his right, he has to consult with the family (including the abusuapanin) for the election before installation. In the instant case, it is quite obvious that the other sections of the family were not consulted because the chief had not recognised them as members of the Asona royal family. But now that the other sections have been found, since 1934, to be members of the Asona royal family, it was customarily necessary that before the third defendant was put up for installation, the consent and concurrence of the plaintiffs’ sections of the royal family should have been sought. It did not matter that some of them were around when the installation took place. There should have been a proper consultation. To say that “. . . there is evidence that the chief invited comments from members of the royal family and no adverse ones were made” is no defence to the failure to consult the other royals of the family. Once the National House of Chiefs found that the plaintiffs belonged to the Asona royal family it should have concluded that the nomination, election and installation of the third defendant as queenmother was a violation of customary law and practice and therefore the installation was a nullity.

It was also said that even if there was a violation of custom, since the queenmother had already been installed, she could not be unseated or dethroned. The institution of chieftaincy is a sacred one and things that are uncustomary should not be allowed to desecrate the stool. In the instant case, the plaintiffs swore the oath to stop the proceedings; their rights should have been seen to before any further steps were taken in the matter. If the history of this Kwabeng stool is anything to go by, it would be seen that each time the matter arose concerning either the male stool or the female stool, the situation had been stalled on the ground that there was already someone on the stool. Thus, denying the other sections, their entitlement to the stool.

Apart from the exhibits that were tendered, there was sufficient oral evidence to support the finding that the three branches of the Asona royal family of Kwabeng, namely Akanwenem, Kokobeng and Mmabaduam were the same and one and that each was eligible to be enstooled as chief or queenmother of Kwabeng. Accordingly, we dismiss the appeal by the defendants; the plaintiffs succeed on their cross-appeal. The decision of the National House of Chiefs, in

[p.410] of [2001-2002] 1 GLR 381 so far as it relates to the installation of the third defendant, is set aside as null and void.

The plaintiffs called for succession to the Kwabeng stool—both male and female—rotation. They recounted how over the years, the defendants’ section of the Asona royal family had denied them access to the stool even though their right to ascend that stool had been declared in various decisions, including the decision in exhibit A. They contended that adherence to such system of succession would prevent unnecessary litigation between the various sections of the royal family and create an atmosphere of unity, fairness and peace.

This court has held in some chieftaincy cases coming to the court from the National House of Chiefs that the notion of rotatory succession to a stool should not be established on the mere fact that a non-member of a royal stool family had through some circumstances, ascended the royal stool. The system of rotatory succession can only be declared if there is satisfactory evidence that that ha been the custom of the people: see Essilfie v Anafo VI [1993-94] 2 GLR 1, SC.

In the instant case, there is evidence that members from the other sections have been on the stool—both male and female—but that the defendants’ section has occupied the stool more than any of the other sections. That was so because each time the plaintiffs’ section insisted on their right, there had been litigation and a subsequent denial of their right. Now that it has been established that the three sections of the family are one and the same and that each section is eligible to ascend the stool, it would be unfair and unreasonable to deny the other sections their right. In fact the Eastern Regional House of Chiefs which exhaustively evaluated the evidence on record observed that:

“Reference was made to a petition for rotation to the Omanhene. Upon close scrutiny, we find that that petition was by all the three sections of the family, namely, Kokobeng, Akanwenem and Mmabaduam. This goes to support the appellant’s contention that all three are of the royal family.” —See exhibit F.

In the peculiar circumstances of this case, I think there is good reason for a declaration of succession by rotation under customary law and practice in the royal Asona stool family of Kwabeng. Accordingly, I would order succession to the Kwabeng stool—both

[p.411] of [2001-2002] 1 GLR 381 male and female—to be by rotation.

Kpegah JSC. I have had the privilege of reading beforehand the judgment just delivered by my brother Ampiah JSC. I am in full agreement with him and have nothing useful to add. I also agree that the appeal be dismissed and the cross-appeal allowed.

Acquah JSC. I agree.

Atuguba JSC. I agree.

Adzoe JSC. I also agree that the appeal should be dismissed and the cross-appeal allowed. I need, however, to add a few words of my own, particularly in respect of the exhibits relied on by the National House of Chiefs. These are exhibits A, B and F.

The appellants contend before us that exhibit A is vitiated by want of jurisdiction in the Okyenhene’s tribunal. It is the case of the appellants that the respondents failed to prove that the tribunal had jurisdiction to adjudicate in the matter contained in exhibit A. I do not see the point in this argument when since 1934 nobody has ever challenged the jurisdiction of the tribunal, not even in the course of this litigation. If the appellants had cause to question the tribunal’s jurisdiction in the 1934 case, I do not see why they have not done so until now. If throughout this litigation since December 1986, no issue was taken against the jurisdiction of the tribunal which gave the decision in 1934 then the burden is rather on the appellants to establish a strong case against the jurisdiction of the tribunal, such as would be seen to be so fundamental that it would have the effect of rendering the decision in exhibit A null and void. I do not think the appellants have succeeded in their attempt to show any such jurisdictional defect that can render exhibit A null and void. The appellants also contend that there were variations in the membership of the tribunal which heard the case contained in exhibit A and that such variations render the judgment in exhibit A void. My learned brother, Ampiah JSC, has fittingly answered this argument in his judgment and I will adopt his reasons, and conclude that the appellants have not succeeded in demonstrating that the proceedings and judgment in exhibit A are void.

I also hold that exhibits B and F are not void as contended by the appellants. I will agree that these two exhibits do not create any estoppel per rem judicatam. They are merely minutes of meetings. I

[p.412] of [2001-2002] 1 GLR 381 accept the appellants’ argument that the judicial committee of the National House of Chiefs misdirected itself when it held that these two exhibits are binding on the appellants and create an estoppel.

But the two exhibits are documents which were properly admitted in evidence as part of the case of the respondents. They have a very significant evidential value which should not be overlooked. There are numerous authorities which establish that a document which is admitted in evidence but is inoperative to establish estoppel against a party may, nevertheless, be admissible as evidence of the claims made by the party relying on it. Thus in Cobblah v Okraku [1961] GLR (Pt II) 679, the plaintiff sued the defendant in trespass in respect of a piece of land and alleged that it was gifted to him by a certain stool. He tendered in evidence a judgment which he had had against an earlier trespasser and the grantor of the trespasser. The defendant on her part claimed that the land belonged to another stool and was also a gift from that other stool. She also tendered in evidence certain judgments declaring title in her grantor, and contended that the plaintiff was estopped per rem judicatam from alleging that the land belonged to his grantor stool. It was held that in the circumstances the judgment relied on by the plaintiff could not support a plea of estoppel per rem judicatam but was “admissible as evidence of the plaintiff’s possession, and of active steps taken by him on previous occasions to resist attempts to violate his possession.”

This is a High Court decision which is not binding on us, but I think the principle is sound and well established. It was in fact applied in Akoto III v Agyiman I; Dua III v Nana Kwesi Agyiman I (Consolidated) [1962] 1 GLR 524, SC.

In these consolidated appeals, Nana Akoto III and Nana Kwaku Dua III representing New Anoma and Old Baika respectively claimed against the defendant representing Likpe Kukurantumi parcels of land which together formed a continuous stretch of land with the parties as adjoining land owners. It was a boundary dispute. The trial High Court gave judgment for the plaintiffs; in the judgment for Nana Akoto III the native court accepted a river called Danyi as the natural boundary between the adjoining stool lands, placing great reliance on exhibit D, an earlier judgment of the Borada native court which had settled the boundaries between the parties. In the Supreme Court, it was argued on behalf of the defendant that as exhibit D had not been specifically pleaded as estoppel, it was inadmissible; it was also contended that as the

[p.413] of [2001-2002] 1 GLR 381 defendant and his subjects had been in possession of the land from 1930 up to the date of the institution of the action without any opposition from the plaintiff and his people, an order for recovery of possession was unjustified. The Supreme Court dismissed the appeals holding that it is only where it is intended that a judgment should operate conclusively as an estoppel that the matter of estoppel should be expressly pleaded. The law does not prevent a judgment being used as a relevant fact from which the court may draw a conclusion in favour of the person who tenders it. At 529 of the report the court per van Lare JSC said:

“The law does not prevent a judgment being used as a relevant fact from which the court may draw a conclusion in favour of the person who tenders it. In the words of Holroyd, J. in Vooght v Winch (1819) 2B & Ald. 662 at p 671 “A party may have matter which he may either give in evidence, or which, if pleaded, would be an estoppel’ . . . I must hold that the learned trial commissioner was perfectly right in admitting exhibit D and justified in drawing conclusions from it.”

I hold that exhibits D and F in the instant case create no estoppel, but the National House of Chiefs was right in looking at them as evidence of the plaintiffs’ persistent claims that their two families are also royals. The fact that Akanwenem had for years occupied the stool to the exclusion of Kokobeng and Mmabaduam in the face of all the protests and decisions reached in these exhibits to the knowledge of the Akanwenem family only shows that the appellant had for so long wrongfully ignored the respondents’ families that the respondents were compelled, as it were, to go to court as a final recourse to resolve their differences.

The respondents’ claim is simply that the purported nomition, election and installation of the third appellant by the first and second appellants as the queenmother of Kwabeng without the consent, concurrence and participation of the respondents is contrary to custom, and therefore null and void. The evidence establishes the fact that Kokobeng, Mmabaduam and Akanwenem constitute the royal family of the Asona clan, and that each of them is entitled to ascend the gyase stool, both male and female, of Kwabeng. But from the pleadings and the evidence of the parties, the issues raised for resolution go beyond the reliefs actually claimed. One such issue, and this appears to be the main contest, is the respondents’ claim that ascension to the stool of Kwabeng is by rotation among

[p.414] of [2001-2002] 1 GLR 381 the three families, which the appellants vigorously denied, alleging that Kokobeng and Mmabaduam are not part of the royal family.

Having now dismissed the appellants’ appeal, I think it is necessary for this court to make such orders as would put an end to this protracted dispute. This court has recently held in In re Asebu Ekroful Stool; Andzie VIII v Bofo IX [1998-99] SCGLR 339 at 340, that in a case like this “a judicial tribunal is duty bound to examine the evidence led and make findings of fact on the issues joined between the parties”, notwithstanding the fact that a particular claim may not have been made by the plaintiff or the defendant. Acquah JSC at 346-347 had this to say:

“Thus what is to be determined in the instant appeal is whether the issue of ownership of the Asebu Ekroful Stool arose from the pleadings and evidence, notwithstanding the way the plaintiff couched his relief in his writ of summons. Now, in the instant case, although the plaintiff couched his claim as calling upon the defendant to justify why the defendant was disputing his plaintiff’s position as Chief of Ekroful, the plaintiff had no doubt in his mind that the basis of the defendant’s challenge was that the town of Ekroful was founded by the defendant’s ancestors and not the plaintiff’s ancestors.”

And at 348, the learned judge continued:

“Thus the general trend of the evidence showed that the dispute between the parties centre on the right of the two families—Adwinadze and Nsona—based on ancient tradition to provide a candidate for enstoolment on the Ekroful Stool. It is therefore fallacious for the plaintiff to contend that the issue of ownership did not arise.”

I am also aware of the decision of this court in Essilfie v Anafo VI [1993-94] 2 GLR 1, SC as found in holding (4) thus: “The mere fact of the existence in a stool family of two or more sections was no justification for holding that succession to the stool was rotatory There had to be a clear custom or practice to that effect.”

I cannot fault that decision; but I think it cannot apply in all its rigidity to the present case. Custom is a traditional and generally accepted way of doing things. It is established through practice. The Oxford rd Dictionary of Law (3 ed) defines custom:

[p.415] of [2001-2002] 1 GLR 381

“As practice that has been followed in a particular locality in such circumstances that it is to be accepted as part of the law of that locality. In order to be recognised as customary law it must be reasonable in nature and it must have been followed continuously and as if it were a right . . .”

You may call it a habit of action which is in fact observed. Sir Frederick Pollock has written that the word custom “has a certain ethical force tending to confine its use to those habits which the persons practising them recognise as in some way binding”: see p 5 of Jurisprudence and Legal Essays by Sir Frederick Pollock, selected and introduced by A L Goodhart.

There is evidence that the three families originally were three separate townships having their own chiefs. When they migrated to Kwabeng they decided to establish the Kwabeng township. They did establish the township. Thereafter they decided to enstool a chief. The leader of the Mmabaduam had his stool with him. The three leaders balloted and the leader of Akanwenem won and was accordingly enstooled. Anyinadu from Mmabaduam was also once a chief. So was Kwaku Oware of Mmabaduarn. Quite clearly, the Akanwenem family virtually highjacked the stool, but all along Kokobeng and Mmabaduam protested and lodged complaints and petitions to insist on the rotation. The usual answer to these was that the matter should rest until the stool was vacant because Akyem custom did not allow a dispute over the stool when there was an incumbent occupying it. It was out of frustration and anger at the conduct of the Akanwenem family that the respondents instituted the present action when Akanwenem again enstooled the third appellant as queenmother without involving the respondents in the process. Our judgment is that the three families are entitled to the stool.

Every custom or customary practice has a beginning. If the Akanwenen family had permitted it and had behaved reasonably, a definite system amounting to custom would have been long established to control the mode of rotation. They sought to exclude the respondents, and keep them away from the stool. But our judgment today has confirmed the right of Kokobeng and Mmabaduam to ascend the stool. The fact that they had not been on the stool for several years is no reason to deny them their right to also be on the stool. In Darko v Brako [1982-83] GLR 345, SC this very court held that non-ascension to the stool for over 150 years was not

[p.416] of [2001-2002] 1 GLR 381 a bar to a family’s claim to the stool. There should be no bar to the respondents’ claim to the stool since, as we have decided in this judgment, they have a legitimate claim to the stool as royals of the stool.

Appeal dismissed.

Cross-appeal allowed.

JNNO