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JUDGMENT
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AKAMBA, JSC;-
This is an appeal from the
decision of Judicial Committee
of the National House of Chiefs
(herein after simply NHC) which
affirmed an earlier decision by
the Judicial Committee of the
Upper West Regional House of
chiefs (simply referred to as
UWRHC) against the
petitioners/appellants/appellants
herein in a dispute over who is
the appropriate person under
customary law of the Wala
Traditional area to convene a
meeting for the nomination and
election of a Wa-Na.
This chieftaincy dispute is one
of the numerous such disputes
that have plagued the Northern
parts of our dear country over
the years with the unpleasant
consequence of sapping the
energies and resources of whole
communities which could have
been spent in productive
ventures. This case commenced by
petition at the UWRHC in 2007.
In between the time of filing in
2007 and the present appeal
before us this 2014 what has
been dissipated in the nature of
financial resources and man
hours, not to speak of the level
of disunity in leadership, is
anybody’s guess. The saddening
part of the whole matter is the
narrowness of the issue that has
brought the parties this far. It
is hoped that traditional
councils all over the country
will follow the example of the
few councils that have
documented their customary
practices and resort to
documentation thereof rather
than reliance upon oral
traditions which are easily lost
or forgotten. This is not to
suggest that codification or
documentation will completely
eradicate disputes but will make
for ease of resolution of them.
BRIEF FACTS
In this presentation the
petitioners/appellants/appellants
would be referred to simply as
the appellant/s whilst the
respondents/respondents/respondents
would be referred to as the
respondent/s.
On 3rd September 2006
Wa Naa, Naa Yakubu Seidu Soalle
II passed on. A vacancy was thus
created in the Wa Paramount
skin. In order to fill this
vacant traditional position, the
1st respondent in his
capacity as Tindana/Widana of Wa
and purported lead kingmaker,
invited other Kingmakers of the
Wa Paramouncy to a meeting for
the purpose of nominating and
electing a new Wa Naa. The
meeting took place on 19th
January 2007 and attended by
five out of the seven recognized
Kingmakers. The outcome of the
meeting was the election of the
3rd respondent as the
new Wa Naa. The 3rd
respondent was en-skinned as the
Wa-Naa and the President of the
Wala Traditional Council (WTC)
on 21st January 2007.
The appellants, contending that
the election of the 3rd
respondent was conducted
contrary to the customs,
traditions and practices of the
Wa Nam, filed a petition dated
22nd January 2007
challenging the said
en-skinment. The respondents’
not only denied the appellants
claims but cross-petitioned that
the 3rd respondent
was properly elected and
enskinned. They also prayed for
an injunction to restrain the
appellants from interfering with
the 3rd respondent’s
performance of his duties and
functions as a chief. The
respondents’ cross petition was
upheld by the UWRHC whilst the
petition was dismissed. An
appeal by the appellants to the
NHC was also dismissed.
As regards the original
petitioners, it is worth noting
that the 1st and 3rd
petitioners passed on during the
pendency of the appeal before
the NHC. The original 1st
Petitioner Alhaji Issah Bukar
who passed on was replaced by
Alhaji Mahama Bukari while the 3rd
Petitioner Naa Mumuni Saaka,
Sing Naa who also passed on was
substituted by Naa Abu Saliah
Bafarado II. When the matter
came on appeal before the NHC in
Kumasi the 2nd
Petitioner /Appellant withdrew
his appeal. He was accordingly
struck out as a party on 27th
October 2010. The decision of
the NHC was therefore rendered
against the two petitioners
Alhaji Mahama Bukari who would
be referred to as the 1st
appellant and Naa Abu Saliah
Bafarado II who would be
referred to as the 2nd
appellant.
CONCURRENT FINDING OF FACT
This appeal arising from the
concurrent findings of fact by
both the trial UWRHC and the NHC
cannot escape the obvious and
generally held considerations or
principles upheld in numerous
decisions of this court in such
instances. The principle is that
where a finding of fact has been
made by a trial court or
judicial committee as in this
case and concurred in by the
first appellate court or
tribunal (the NHC in this case)
as in the present case, the
second appellate court (the
Supreme Court) should be slow in
coming to different conclusions
unless it is satisfied that
there are strong pieces of
evidence in the record of appeal
which make it manifestly clear
that the findings of the trial
and first appellate tribunals
are perverse. A few such cases
on the point include In re Wa
Na; B.K.Adama (subst by) Issah
Bukari & Anor (2005-2006) SCGLR
1088; Gregory v Tandoh (IV) and
Hanson (2010) SCGLR 971, at 985;
Obeng v Assemblies of God
Church, Ghana 2010 SCGLR 300;
Achoro v Akanfela (1996-97)
SCGLR 209 (holding 2);
Akufo-Addo v Cathline (1992) 1
GLR 377 per Osei Hwere JSC);
Watt (or Thomas v Thomas [1947]
1 AER 582; 176 LT 49, HL;
KoglexLtd (No 2) v Field [2000]
SCGLR 175; Jass Co Ltd v Appau
[2009} SCGLR 265 which deals
with circumstances justifying
interference with findings of
fact by the Supreme Court; and
Awuku Sao v Ghana Supply Co Ltd
[2009] SCGLR 710. The principle
quoted above does not, so to
speak, bar a second appellate
court such as this court from
coming to a different conclusion
except that it should be
resorted to upon a satisfaction
that there are strong pieces of
evidence which render such
conclusion inevitable. This
court in its majority review
decision in Koglex Ltd (No 2) v
Field [2000] SCGLR 175 at 176
cited the dictum of Ollenu JA
(as he then was) in Kyiafi v
Wono (1967) GLR 463 at p 466 in
holding 1 that “A second
appellate court, like the
Supreme court, must satisfy
itself that the judgment of the
first appellate court was
justified or supported by
evidence on record. Where there
was no such evidence that
finding ought to be set aside.”
Secondly and relying on
Achoro v Akanfela (supra) the
court held further in holding 2,
that where the first
appellate court had confirmed
the findings of the trial court,
the second appellate court would
not interfere with the
concurrent findings unless it
was established with absolute
clearness that some blunder or
error, resulting in a
miscarriage of justice, was
apparent in the way in which the
lower court had dealt with the
facts.
Also in Fosua & Adu-Poku v Dufie
(Deceased) & Adu Poku Mensah
[2009] SCGLR 310 at 313 my
respected and able brother Ansah
JSC succinctly stated as
follows: “A second appellate
court would justifiably reverse
the judgment of a first
appellate court where the trial
court committed a fundamental
error in its findings of facts
but the first appellate court
did not detect the error but
affirmed it and thereby
perpetuated the error. In that
situation, it becomes clear that
a miscarriage of justice had
occurred and a second appellate
court will justifiably reverse
the judgment of the first
appellate court.”
In the very recent unreported
case of Unilever Ghana Ltd vs
Kama Health Services Ltd, Civil
Appeal No J4/24/2013 of 19th
July 2013, SC. my able brother
Benin, JSC pithily stated the
position as follows: “Much as
an appellate court should
refrain from disturbing findings
of fact made by a trial court,
it will not shirk its
responsibility of setting aside
those findings of fact which are
not borne out of the evidence on
record.”
Against the background of the
legal authorities cited above we
would thread cautiously in
considering the grounds of
appeal to ascertain whether or
not any miscarriage of justice
occurred to warrant any
interference with the conclusion
of the first appellate tribunal
(NHC) when it affirmed the
findings of the trial UWRHC.
GROUNDS OF APPEAL
A close observation of
appellants grounds of appeal
reveals that only one ground of
appeal was indeed filed, as in
(a), and accompanied by eleven
particulars of misdirection
complained of.
They are:
a.
“The Judicial Committee of the
National House of Chiefs
misdirected herself with regard
to the custom, convention and
tradition of the role of the
Tindana vis a vis the
nomination, selection,
enskinment etc of Wa-Naa.
Particulars of Misdirection.
a.
The Judicial Committee of the
National House of Chiefs failed
to consider adequately the
Petitioners/Appellants/Appellants
claim and the reliefs which were
sought for by the
Respondents/Respondents/Respondents
in the cross petition.
b.
The judgment is against the
weight of evidence adduced at
the trial.
c.
The failure of the 1st,
2nd and 3rd
Respondents/Respondents/Respondents
to testify and give evidence was
fatal to the
Respondents/Respondents (sic)
case more especially having
filed a cross petition.
d.
Both the National House of
Chiefs and the Regional House of
Chiefs – Judicial Committee
erred in both law and custom
when they equated the position
of “Tindana” with that of
“Nabipon”. Thus the entire
process which resulted in the
nomination of the 3rd
Respondent was a nullity.
e.
The Committee members of both
the lower and the appellant
court – National House of
Chief’s incorporated into their
arguments, extraneous matters
which were not before the courts
for determination.
f.
Since appeal is in the form of
re-hearing, the appellant court
is being called upon to evaluate
the entire proceedings/case
including the judgments of both
the National House of Chiefs and
the Regional House of Chiefs and
reverse the decisions of the two
courts.
g.
The Judicial Committee of the
National House of Chiefs failed
to consider critically the legal
effect of the unsigned judgment
of the Upper West Regional House
of Chiefs.
h.
That the record of proceedings
which consisted of
interlineations, handwritings
etc definitely and naturally
prejudiced the minds of the
Appellant court – National House
of Chiefs which inevitably
resulted in substantial
miscarriage of justice.
i.
Both Regional and National House
of Chiefs – Judicial Committees
erred in law when they rejected
the letter written by the
‘Frokos family’
j.
The
Petitioner/Appellant/appellants
having established their case
beyond preponderance of
probabilities, the Judicial
Committee of the National House
of Chiefs ought to have
dismissed the Respondents cross
petition.
k.
Additional grounds of appeal
shall be filed upon receipt of
the record of proceedings.”
The Judicial Committee of the
National House of Chiefs
misdirected herself with regard
to the custom, convention and
tradition of the role of the
Tindana vis a vis the
nomination, selection,
enskinment etc of Wa-Naa.
The gravamen of the dispute
between the parties to this
appeal has been the question of
who is the rightful person to
convene the meeting of
Kingmakers for the purpose of
enskinning a Wa Naa. The next
issue which we consider
secondary is the position of a
Nabikpon in these affairs. We
would thus resolve the main
ground of appeal and particulars
of misdirection together under
three subtitles. The first
determination would deal with
such particulars on the question
of burden of proof; the next
will deal with the issue of the
role of Tindana and/or Nabikpon
in these affairs and lastly the
question of unsigned judgment,
interlineations and handwritings
on the record of proceeding as
well as the rejection of a
letter from the Frokos family
for consideration.
GROUND a, b, c, d, and k
The first rubric we propose to
deal with is the question
whether or not the parties
discharged the various burdens
of proof on them to warrant the
decision/s entered by each of
the courts below. An appeal
being by way of a re-hearing we
would evaluate the various
pieces of evidence led by either
party and arrive at our own
conclusion. The appellants’ by
their petition sought:
a)
A declaration that the Tendana
of Wa has no capacity to convene
a meeting of Kingmakers of Wa to
elect a Wa Naa.
b)
A declaration that the meeting
of Kingmakers convened by the 1st
respondents in his capacity as
the head of Tendamba for the
election of a Wa Naa on the 19th
of January, 2007 was null and
void and of no effect as well as
his enskinment on 21st
January 2007.
c)
Declaration that the 3rd
defendant, Fuseini Pelpuo is not
the Wa Naa and therefore prayed
for an order of perpetual
injunction restraining the
defendants from outdooring and
holding the said Fuseini Pelpuo
as the Wa Naa.
The Evidence Act, Act 323 (1975)
prescribes the procedure to be
applied in every proceeding
including inquiries,
investigations and hearings etc.
It provides a useful guide as to
the burden required to be
discharged by a party to a
dispute at a trial. Section 11
(1) of Act 323 obliges a party
to introduce sufficient evidence
to avoid a ruling against him on
an issue. As the petitioners in
this dispute the appellants had
the initial obligation or burden
to produce such evidence as
would satisfy the tribunal or
court or judicial committee of
the Upper West Regional House of
Chiefs (UWRHC) in this case, on
the issues raised for
determination.
The position of the law on proof
is pithily captured by Kpegah,
JSC in Zabrama v Segbedzi (1991)
2 GLR 221, CA wherein he
restated the well known
principle in Majolarbi v Larbi
(1959) GLR 190 as follows:
“….a person who makes an
averment or assertion which is
denied by his opponent has the
burden to establish that his
averment or assertion is true.
And he does not discharge this
burden unless he leads
admissible and credible evidence
from which the fact or facts he
asserts can properly and safely
be inferred. The nature of each
averment or assertion determines
the degree and nature of that
burden.”
This burden is not discharged by
merely entering the witness box
and repeating the claims or
averments as by leading
admissible and credible evidence
from which the facts they assert
can be properly and safely
inferred or concluded. (See
Memuna Moudy & Others v Antwi
(2003-2004) SCGLR 967 especially
974 to 975).
The appellants were thus obliged
to lead evidence in proof of
their assertions mindful that
this being a chieftaincy dispute
the enquiry is in the nature of
a fact finding endeavour, as
observed by Sowah JA as
he then was in Kyereh and Ors
v Kangah (1978) Part 1 GLR 83 at
84. What evidence did the
appellants therefore produce to
satisfy the committee, which
evidence must meet the requisite
degree of proof?
The parties do not dispute the
fact that the Tendamba of Wa are
the original settlers of Wa.
They also do not dispute the
membership of the following
seven as Kingmakers for the Wa
Royal skin namely; the four
chiefs of the four gates to the
skin made up of the Nakpaha,
Jonyuohi, Najeri and Yijiihi
together with the Tendana,
Yerina and Froko. The last three
kingmakers listed (supra) hold
their positions by virtue of
their traditional offices. These
traditional office holders or ex
officio members are not royals
so to speak, and so cannot
aspire to occupy the Wa skin.
They nevertheless together play
a key and crucial role in the
nomination, election and
enskinment of a Wa Naa. This
court upheld the position that
there are seven kingmakers to
the Wa royal skin in the case of
In re Wa Na; B.K.Adama (subst
by) Issah Bukari & Anor
(2005-2006) SCGLR 1088 at 1091
as follows: “The election was by
the seven Kingmakers of the Wala
State, consisting of; one
representative of the Froko; the
Tendana and the Yeri Na. The
four divisions or gates are:
Yijiihi, Najeri, Jonyuobi (sic)
and Nakpaha.”
Rattray
in his Tribes of the Ashanti
Hinterland, Vol II (1st
Published in 1932) Reprinted
1969, at page 450 (which is
a published treatise in
conformity with s. 132 of NRCD
323), highlights the four gates
or divisions of Wa as follows:
“The Chieftainship is, in
theory, supposed to be held
alternately by members of four
family groups each tracing
descent from one or another of
Sorliya’s four ‘sons’, i.e.
Nakpasa, Gyonyose, Nagjare, and
Napelpuo, but in practice, the
claimant who was strongest would
seize the Na-ship.”
The parties however disagree
that there is another customary
personality described as the
‘Nabikpon’ who has a role to
play in the making of a Wa Na so
to speak. The force of the
appellants’ petition is the role
they ascribe to the ‘Nabikpon’
as the one who has the
prerogative to summon the
Kingmakers to a meeting for the
quest for a new Wa Naa to
commence. The respondents
vehemently deny any such
prerogative of any ‘Nabikpon’ to
convene the meeting of
Kingmakers. The respondents’
contend that it is rather the
Tendana who has such
responsibility to summon the
other colleague Kingmakers to
such meeting. This therefore
obliges the appellants as
petitioners to introduce
sufficient evidence on the
balance of probabilities on the
issue to avoid a ruling against
them.
APPELLANTS’ EVIDENCE
To grant the appellants’ prayer
is to imply that the 3rd
respondent was not duly elected
and enskinned by the established
procedure and appropriate body
as Wa Naa. The 3rd
respondent can only be duly
elected and enskinned if the
meeting of Kingmakers for the
election and enskinment was
convened by the competent
customary authority for the
purpose.
The evidence in proof of the
appellants’ as petitioners’
claims was launched by the 1st
appellant who described himself
as the Gbatere Na and a senior
Prince at Wa. The summary of his
testimony was that upon the
death of a chief in the Wa
Traditional Area, he is informed
and he in turn informs the Wa
Na. When a Wa Na dies, he as the
head of all the Princes (the
Nabikpon) in the Wala
Traditional Area performs the
following functions:
a)
Acts as Wa Na until a new Wa Na
is enskinned
b)
Summons Princes to elect a new
Wa Na. (He named the Princes as
Busa Na; Kperisi Na; and Sing
Na). Gulli Na which originally
played no role in the process
was later elevated and included
in the list by Wa Na Kori.
Exhibit B which was initially
identified by the 1st
appellant as I.D 1 was
subsequently tendered in
evidence by the original 2nd
petitioner in apparent proof of
their assertion that the 1st
appellant was the head of the
Princes or Nabikpon. Exhibit B
is a public record obtained from
the Public Records and Archives
Administration Department
Tamale. The record is dated 17th
July 1933 on the subject of the
Wala State Native Authority. Its
significance to the dispute at
hand is a reference in its
Appendix G which states as
follows:
“WE THE STATE COUNCIL OF WALA,
HEREBY AGREE AND STATE THAT:
(i)
At the death of any chief from
Wa downwards affairs of town and
Court are temporarily in the
hands of the Nabikpon, i.e.
the eldest son except
in cases of mental incapacity.
(ii)
In absence, illness, or for
other good cause a Chief may
appoint any elder whom he may
think fit, to exercise his
powers and perform the duties of
his office for such period as
occasion may demand.”
The appendix bore the
thumb-print of Wa Na Pelpuo III
at the end of the document.
The appellants relied also on
exhibit A which is a protest
letter written by 1st
appellant to the Wa Municipal
Chief Executive when he learnt
about the meeting being convened
by the 1st respondent
to elect a new Wa Naa.
The 3rd (petitioner)
appellant is the Sing Naa. He
granted a Power of Attorney to
Naa Salia Bakfaora III, current
Kulkpong Naa and a retired
educationist to prosecute his
petition. The Attorney testified
before the judicial committee of
the UWRHC and gave his
perspective of the custom of
nominating and election of a Wa
Naa. He stated that his Donor
was a Prince and a chief of the
Jonjusi gate and a possible
candidate to the Wa skin.
According to this witness,
discussions for choosing a Wa
Naa when a vacancy occurs is
undertaken by the sons of the
vacancy gates. He named the
Gates as Yijiihi (Busa), Najeri
(Kperisi), Jonyuori (Sing). This
witness did not mention the Guli
(Nakpaha) gate and what
significance, if any, it had in
these affairs. During the
interim however, while the
discussions for the election of
a new chief was ongoing, the
Most Senior Prince (the
Nabikpon) performs the function
of the skin. This Prince must
not necessarily be the
biological son of the immediate
deceased chief. According to him
the custom has always been to
consider the Busa Naa as the
Nabikpon but should the Busa
skin be vacant at the time, then
the most senior of the existing
princes becomes Nabikpon. The
Attorney further stated that the
1st appellant’s
position as Gbetore Naa is not
elective but hereditary as
Gbetore is an older settlement
than Wa
It is apparent that the
appellants’ placed heavy
reliance on exhibit B appendix G
in support of their claim as the
‘Nabikpon’, whom they define as
the most senior of the Princes.
The words of the exhibit B
(supra) are so clear and
unambiguous they require no
interpretation to be understood.
The Colonial District
Commissioner who recorded the
proceedings conveyed a very
clear description of the person
who carries the responsibility
of ‘town and court’ upon the
death of any chief. The
reference is made to the
eldest son of the demised
chief. (See exhibit B supra).
It is obvious from the drafting
of the appendix G that the
concept of a ‘Nabikpon’ in the
Wala context is akin to a
‘Gbong-Lana’ in the Dagomba
context. This is so because
similar provisions were adopted
when the Dagomba State Council
was created under the Native
Authority Ordinance (No 2 of
1932) following which the
conference of Dagomba Chiefs
adopted a Constitution for the
State of Dagbon. The conference
adopted a number of papers
including an appendix H which
made provision for events
following the demise of a chief
or the Ya Na as follows:
“At the death of any chief
of Yendi, affairs of town and
court are temporarily in the
hands of Gbong-Lana, i.e. the
eldest son, except in cases
of mental incapacity.” See
Yakubu II v Abudulai
(1984-86) 2 GLR 239 at 249, SC.
It is clear from the expression
used in both the ‘Gbong-Lana’
instance and that of the
‘Nabikpon’ that the reference
was made specifically to the
eldest son of the
demised chief and not just
any senior Prince.
These similarities are not
coincidental given the common
heritage of Mamprugu, Dagomba
and the Wala as captured by
R.S.Rattray in ‘The
Tribes of The Ashanti Hinterland
Vol II, (supra) at page 452
as follows:
“The tribe now known as Wala
have long been under, at least
the nominal, suzerainty of
Chiefs who originally hailed
from Mamprugu or Dagomba. The
present Na (Chief) of Wa is the
twenty-fourth of his line,
tracing descent from Sorliya,
the first Chief.”
It is pertinent to remember that
whereas the son of a chief is a
prince, it is not every prince
who is a chief. If a prince who
is not already a chief but by
virtue of being the eldest son
of the Wa Na becomes the holder
of the title ‘Nabikpon’ upon the
father’s death that does not
turn him into a chief. For a
person to be a chief he must be
nominated, elected and enskinned
or installed as such in
accordance with the relevant
custom and usage. See Article
277 of the Constitution 1992 and
s. 57 (1) of the Chieftaincy
Act, (2008) Act 759.
It is trite law that where the
evidence led by a party (such as
exhibit B) is in conflict with
his own testimony on a crucial
issue, a trial court should not
gloss over it and make a
specific finding on that issue
in favour of that party whose
case contained the conflicting
evidence on the issue. See
Atadi v Ladzekpo (1981) GLR 218.
From the foregoing it is obvious
that the clear meaning of
exhibit B runs counter to the
testimony of the appellants on
the matter. In other words, the
exhibit does not support their
claim that 1st
appellant is a ‘Nabikpon’. This
notwithstanding, it was still
within the competence of the
appellants at the trial, to lead
cogent evidence to show that
there had been some change in
the custom which extended the
concept of ‘Nabikpon’ beyond its
definition in exhibit B. Were it
the case that a ‘Nabikpon’ meant
the most senior of the Princes
as contended by the appellants,
they were obliged under the
Evidence Act to call evidence in
proof thereof. This also the
appellants failed to do. It is
further pertinent to point out
that even though the 2nd
respondent appellant-appellant,
the late B.K.Adama in the In
re Wa Na (2005-2006) case
(supra) was stated to have
conducted the affairs of the
election as the most senior
prince he died before the appeal
could be heard which appeal they
eventually lost.
The overwhelming evidence on
record shows that the original 1st
petitioner who mounted the
initial challenge was not the
eldest son of the Wa Na Yakubu
Seidu Solle II whose demise
occasioned the enskinment of the
3rd respondent. Under
cross examination, the original
1st petitioner traced
his accession to his present
position of ‘Nabikpon’ as by
succession to his late brother
Alhaji B.K.Adama who was so
appointed by the Princes. The
late B.K.Adama was never a Wa
Na. The title Gbatere Naa was
only styled on the said
B.K.Adama by the appellants. The
appellants did not call nor name
any of the Princes who
supposedly participated or
witnesses his said appointment
as ‘Nabikpon’ and this we
consider a serious lapse given
the refutations and denials by
the respondents about any such
practice. Under cross
examination the 1st
appellant further explained that
the position of ‘Nabikpon’ is
not reserved for the Yiziri Na
represented by the Busa Na but
that he can come from Sing or
any other gate provided such a
person is a father to all the
Princes. This answer does not
only complicate the concept of
‘Nabikpon’, it takes it further
away from the simple definition
given in exhibit B, appendix G
(supra). The appellants did not
explain what was meant by father
to all the Princes.
The evidence led in support of
the appellants’ claims is so
unsatisfactory and contradictory
it failed to reach the standard
requirement of proof by the
preponderance of probabilities
as defined in s12 of NRCD 323,
the Evidence Act (1975). The
trial UWRHC rightly concluded
that the appellants had failed
to meet their evidential burden
and therefore dismissed the
petition. The NHC also rightly
upheld the dismissal of the
petition by the trial UWRHC on
appeal.
THE RESPONDENTS’ CASE
The respondents called four
witnesses in support of their
cross petition. Naa Brimah
Seidu, Gulli Naa, and a
kingmaker representing the
Nakpaha of Guli gate testified
for the respondents as DW1. This
witness is a retired teacher of
the Ghana Education Service and
a former District Secretary for
Wa District. He testified that
the Tindana is not only a
kingmaker but has the additional
responsibility for convening the
meeting for the nomination and
election of a new Wa Na. This
evidence is corroborated by
Huseini Moomeen DW3 a
Professional Teacher who hails
from Suuriyiri. He is
traditionally a Tindana.
The DW1 further stated that the
Tindana has borne the
responsibility for convening the
meeting for nomination and
election of the new Wa Na since
the first chief of Wa in the
person of Naa Soalle I from the
Nakpaha gate of Guli. He also
stated significantly that at the
time of the enskinment of the 1st
Wa Na Soalle I the Tindana of Wa
was the sole Kingmaker. The
witness enumerated other
instances when the Tindana
convened the meetings for the
nomination, election and
enskinment of Wa Namine
(chiefs). These include those
for the election of the
following Wa Namine; Seidu Kofi
Wala; Sidiki Bomi and Momori.
The meeting to elect the last Wa
Naa Seidu Soale II was equally
convened by the Tindana who
happened to be the 1st
respondent. The witness gave a
vivid account of what happens
when a Wa Na dies. According to
him when a Wa Na dies it is the
Tindana who will first be
informed of the death and this
is followed by him visiting the
palace to ascertain the fact.
When satisfied as to the death
the Tindana would perform
certain traditional rites by
virtue of his office before
issuing out any announcements.
The evidence of DW1 was largely
corroborated by DW3. The
respondents had successfully
discounted any lead role
ascribed to a ‘Nabikpon’ as
understood by the appellants’ to
summon the kingmakers for the
selection of a new Wa Na. Indeed
the fact that the evidence led
by the appellants per exhihibit
B favoured the position of the
respondents the trial UWRHC was
obliged to accept the latter’s
version of the narrative
concerning the Nabikpon. This
position of the law was rightly
stated by Ollennu J (as he
then was) in Tsrifo v Dua
VIII (1959) GLR 63 at
pages 64 to 65 and the same
cited with approval in Osei
Yaw & Anor v Domfeh (1965) GLR
418 SC that where the
evidence of one party on an
issue in a suit is corroborated
by witnesses of his opponent,
whilst that of his opponent on
the same issue stands
uncorroborated even by his own
witnesses, a court ought not to
accept the uncorroborated
version in preference to the
corroborated one unless for some
good reason (which must appear
on the face of the judgment) the
court finds the corroborated
version incredible or
impossible.
DW2 is John Bosco Bongkyere a
former Registrar of the Wala
Trditional Council who recorded
the minutes of the meeting held
on 19th January 2007
for the election of a Wa Naa.
The witness stated under cross
examination that the Kingmakers
are a section of the Wala
Traditional Council hence he was
obliged to take down the minutes
of their deliberations which he
did. These minutes captured in
exhibit 5 attest to the proper
conduct of the deliberations
which was attended by five out
of the seven recognized
Kingmakers, namely the Tindana
Mahama Bayong, Yeri Naa Alhaji
Mogtari Mustapha, Froko Osman
Kasim, Naa Seidu Brima, Guli
Naa, Naa Mahama Seidu Kunlugu II
Kperisi Naa. The meeting which
was chaired by the Tindana,
Mahama Bayong unanimously
elected and proclaimed the 3rd
respondent the new Wa Naa.
In contrast to the appellants
the respondents had succeeded in
discharging the burden to
produce sufficient evidence on
the balance of probabilities in
order to avoid a ruling against
them on their cross petition.
Both the trial UWRH and NHC
rightly found that the
respondents had discharged their
evidential burden and
consequently entitled to
judgment. We agree with the
findings on the merits of the
cross petition set up by the
respondents by both the UWRHC
and the NHC. We find no merit in
the combined grounds of appeal
and dismiss same.
What is the role of the Nabikpon
and/or Tindana in the election
of a Wa Naa?
Who is a Nabikpon?
Does he have a place
or role in the affairs of
electing a Wa Na? From the
record of appeal it is evident
that the expression ‘Nabikpon’
is ordinarily ambiguous in the
tonal context of the Wali
language. Depending on how the
word is pronounced it could
either mean the head or most
senior Prince/chief or simply
the existing Chief’s eldest son
or Prince. Since the appellants’
petition is premised on their
claim that the 1st
appellant is a ‘Nabikpon’ who
has the prerogative to convene
the meeting for the election of
a Wa Na, he has the burden of
proof on the claim. The
appellants’ interpretation of
‘Nabikpon’ is that such holder
is the head of all the Princes
and is not necessarily a
biological son of the late
previous chief. Exhibit B
appendix G was made on 15th
July 1933 and signed by the
thirteen Divisional Chiefs and
seven out of eight Judicial
Councillors of the Wala State
Council under the leadership of
Wa Na Peripo III. Among the
Judicial councilors who signed
the document were the Widana and
the Foriko. The position of
Yerina was vacant at the time.
Incidentally exhibit B was
tendered by the appellants in
purported proof that ‘Nabikpon’
meant the most senior of the
Princes who is not necessarily
the biological son of the
deceased chief. The exhibit B is
however devoid of any
ambiguities as it clearly does
not support the appellants’
position. It simply provides
that upon the death of a chief,
the affairs of town and court
would temporarily be in the
charge of the Nabikpon i.e. the
eldest son, except in cases of
mental incapacity. Without any
doubt the agreement adopted by
Wa Na Pelpuo III together with
the thirteen Divisional Chiefs
and the seven Judicial
Councilors in 1933 was within
the competence of the Council.
Significantly, in appendix C of
exhibit B passed that same 15th
July 1933, the same thirteen
Divisional Chiefs and seven
Judicial Councilors and under
the leadership of the same Wa Na
Pelpuo III, resolved that if any
changes are to be made to any
custom it could only be done by
the unanimous decision of the
Wala State Council. There is no
evidence of any customary
decision changing the defining
of ‘Nabikpon’ as provided in
appendix G. I have already
concluded that the appellants
and in particular the 1st
appellant has failed to prove
that he is the son of the
deceased Wa Na Yakubu Seidu
Soalle II hence he cannot be the
‘Nabikpon’ envisaged in exhibit
B appendix G. The appellants on
their own showing have not
exhibited such knowledge of
their custom as to be worthy of
credibility. The 3rd
appellants’ attorney could not
give the name of any ‘Nabikpon’
who convened a meeting for the
election of any Wa Naa yet he
was insistent such role existed,
not even the one who purportedly
initiated the meeting of the
kingmakers for the election of
Na Mumuni Kore whom he knew very
well as he succeeded his father
who had abdicated. His reason
was that he was too young then.
The witness could equally not
tell which ‘Nabikpon’ supposedly
convened the meeting for
electing Wa Naa Momori which is
of a recent occurrence. (See
page 166 of the ROA)
We find the resolutions passed
by the Wala State Council in
1933 highly commendable as they
helped to streamline the various
traditional positions in the
Council’s area of control. But
for the Council’s explanation of
what it meant by ‘Nabikpon’ this
could be an open field for
contest without end. As
explained earlier in this
appeal, a ‘Nabikpon’ in the Wala
Traditional context carries the
same meaning as ‘Gbong-Lana’ in
Dagbon context and both refer to
the demised chief’s eldest son.
The 1st appellant is
neither a son nor the eldest son
of the late chief, Wa Naa Yakubu
Seidu Soalle II.
What role does the ‘Nabikpon’
play in the election of the Wa
Na?
It would appear that in the
light of our finding that the 1st
appellant is not a ‘Nabikpon’ in
the sense envisaged by exhibit B
appendix G, providing an answer
to this question would at best
be an academic exercise.
We would now deal with the role
of the Tindana in the election
of a Wa Na. Without any doubt
the respondents have led
sufficient evidence on the
issue.
DW1, Naa Brimah Seidu, Gulli
Naa, and a kingmaker of the
Nakpaha of Guli gate testified
on the significant role of the
Tindana in the election of the
Wa Na. He told the committee
that the Tindana is a kingmaker
with the additional
responsibility for convening the
meeting for the nomination and
election of a new Wa Na. This
evidence is corroborated by
Huseini Moomeen DW3 a
Professional Teacher who hails
from Suuriyiri and is
traditionally a Tindana.
DW1 further stated that the
Tindana has carried out this
responsibility since the
enskinment of the first chief of
Wa, Naa Soalle I from the
Nakpaha gate of Guli when he was
the sole kingmaker. The witness
gave a catalogue of other
instances when the Tindana
convened the meetings for the
nomination, election and
enskinment of Wa Namine
(chiefs). These include those
for the election of Wa Namine;
Seidu Kofi Wala; Sidiki Bomi and
Momori. The meeting to elect the
last Wa Naa Seidu Soale II was
also convened by the 1st
respondent in his capacity as
the Wa Tindana. The witness also
gave an account of the role of
the Tindana when a Wa Na dies.
According to him when a Wa Na
dies it is the Tindana who will
first be informed of the death.
The Tindana then visits the
palace to verify the
information. When the death is
confirmed the Tindana would
perform certain traditional
rites by virtue of his office
before issuing out any
announcements. The evidence of
DW1 was largely corroborated by
DW3. On the whole the evidence
led by the respondents on the
role played by the Tendana by
initiating the meeting for the
enskinment process to commence
is not only unassailable it is
overwhelming. Both the trial
UWRHC and the NHC correctly
found in favour of the
respondents. We affirm same and
dismiss this ground of appeal.
The question of unsigned
judgment, interlineations and
handwritings on the record of
proceeding as well as the
rejection of a letter from the
Frokos family for consideration.
The last major ground of appeal
impugns the NHC reliance upon an
unsigned judgment from the UWRHC
to dismiss their appeal. Other
issues were raised about
interlineations and handwritings
on the record of proceedings
which prejudiced the minds of
the NHC. The appellants contend
that an unsigned judgment cannot
be considered a judgment in a
proper legal sense. It would
appear that appellants’ are
oblivious of the reality of
preparing appeal records. Hardly
would a judgment on appeal
records bear the signatures of
the judges, an obvious security
measure. Of greater relevance
and importance is the nature of
the document under
consideration. This being a
judgment of a court the same is
covered by section 175 of the
Evidence Act 323 of 1975 which
enacts:
”1. A copy of a writing which is
authorized by law to be filed or
recorded and has in fact been
filed or recorded in an office
of a public entity, or which is
a public record, report,
statement or data compilation is
admissible to the same extent as
an original to prove the content
of the writing if-
(a)
An original or an original
record is in an office of a
public entity where items of
that nature are regularly kept;
and
(b)
The copy is certified to be
correct by the custodian or
other person authorized to make
the certification and that
certificate is authenticated or
the copy is testified to be a
correct copy by a witness who
has compared it with an
original,”
The petition which resulted in
the present appeal commenced as
JC/1/2007 before the UWRHC. The
trial committee delivered its
judgment on 29th
January 2010. The aforesaid
judgment bears the certificate
of the Regional Registrar of the
UWRHC Wa as a true copy in
compliance with s 175 above. We
find no merit in this ground and
dismiss same.
The appellants’ next issue is
about interlineations and
writings on the record of appeal
(ROA) which according to them
‘definitely and naturally
prejudiced the minds of the NHC
resulting in a miscarriage of
justice.’
To begin with this is too
sweeping a comment to make. The
only hand written inscriptions
which are hardly readable and
can be found on the side lines
of the written address by the
counsel for the petitioners on
page 285. The pages bearing
these faint writings are pages
296, 299, 300, 301,
302,303,304,305, 306, 307, 309,
310 of the record. However, it
is not enough that there are
faint writings the appellants
have to show how those
influenced or prejudiced the NHC
in arriving at their decision.
There is no evidence that the
judicial committee of the NHC
was in any way prejudiced by
those inscriptions which are
unreadable. Granted that the
address of counsel is intended
to highlight the points being
canvassed in support of their
case, the appellate court’s duty
is to evaluate the evidence on
record and arrive at a
conclusion one way or the other.
The appellants have not shown
how the NHC could and were
prejudiced by the writings on
their written addresses or
statements. This ground of
appeal lacks merit and is
dismissed.
The last issue is that the UWRHC
and the NHC erred in law when
they rejected the letter written
by the ‘Frokos Family’
In the course of his testimony
recorded at page 175 of the ROA,
Mallam Daudi Abudulai Froko the
petitioners’ first witness (PW1)
sought to tender a letter
written by his family to various
organizations. The respondents
objected on grounds that he was
not the author of the letter and
that because the author was
alive he is the rightful person
to tender same. The committee
ruled that the tendering be
suspended until Alhaji Iddrisu
Seidu Froko, the author thereof
came to testify. Somehow or the
other the author did not appear
to tender the document. The
committee by ‘suspending’ the
tendering of the document made
room for the appellants to
revisit the issue but they
failed to call the author to
tender same. The appellant also
specifically failed to file an
interlocutory appeal against the
ruling if they were dissatisfied
with it. It was also not raised
as a ground of appeal before the
National House of Chiefs as
clearly borne out by its absence
from the Notice of Appeal on
page 306 of the ROA. Since the
appellants’ contention was to
dissociate the Frokos from the
meeting convened by the 1st
respondent, they were not fore
closed by the refusal to accept
the letter in evidence. It was
open to them to lead other
evidence which they failed to
do. Yet, all this while, the
appellants were represented by
counsel. In contrast the trial
UWRHC accepted the evidence of
Osman Kasim Froko as a proper
representative of the Froko’s at
the meeting.
It would appear that the reason
for the failure to call Alhaji
Iddrisu Seidu Froko the head of
the Froko family to testify in
these matters was due to ill
health which was expatiated to
be due to old age and senility a
situation that may lead to
inconsistent actions. (See the
cross examination of PW1 at page
175 of the ROA). This gives
added credence to the testimony
of Osman Kasim Froko as having
been mandated by the head of
family to participate in the
meeting.
We find this ground a ruse. It
is dismissed.
The appeal lacks merit in its
entirety and same is dismissed.
The decision of the NHC is
affirmed.
(SGD) J.
B. AKAMBA
JUSTICE OF THE SUPREME
COURT
(SGD)
J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD)
S. O. A. ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
(SGD)
J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME
COURT
COUNSEL
MR. ANANFURI JUSTICE SEIDU FOR
PETITIONERS/APPELLANTS
/APPELLANTS.
ANTHONY NAMOO WITH HIM ODOOM
MENSAH FOR THE RESPONDENTS/
RESPONDENTS.
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