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Law reform – Chieftaincy – Traditional Councils – Counsel – Appearance of – Court recommends amendment of rules to allow appearance of counsel before judicial committees of traditional councils.

Held, it was a pity that by the rules operating in the judicial committees of traditional councils, legal practitioners were not permitted to appear. The result was that cases were often not properly built up at that level, making it extremely difficult for an appellate tribunal such as the Supreme Court, to offer the required assistance. The case provided an excellent example. If lawyers had appeared in the beginning, the issues would have been better identified and the relevant evidence marshalled and led in proof of the matters in issue. Besides, the judicial committee itself would have known what issues were at stake, and what findings of fact were required to be made. As it turned out, all the parties as well as the committee were cast adrift at sea, with no compass to guide them. The court would recommend that the practice obtaining in the regional and national houses of chiefs be extended to the traditional councils, and lawyers permitted to appear there also.

T Totoe for the appellant.

Dr Seth Twum for the respondent.

ADADE JSC. This is an appeal from a decision of the National House of Chiefs dated 30 May 1991. The action was commenced in the Kumasi Traditional Council by an oath sworn by the 1st plaintiff for and on behalf of the 2nd plaintiff to the effect that:

“... by virtue of 2nd plaintiff’s marriage to the Asantehene, she is the legitimate Ananta Obaapanin, and therefore the Ananta Gyasehene cannot nominate a candidate to occupy the vacant Ananta stool without consulting her”.

The defendant countered this claim with the assertion that “the 2nd plaintiff is just a stool wife to the Asantehene but not the Ananta Obaapanin.” The defendant further contended that the Ananta Obaapanin stool was vacant.

After hearing evidence the judicial committee of the Kumasi Traditional Council found in favour of the defendant, on the main ground that:

“The 2nd plaintiff has sworn a reckless oath and should be found liable since she knows that there had been a pending oath case on the Ananta Obaapanin issue at Manhyia but went forward to swear the oath.”

The tribunal said that the 2nd plaintiff “should have joined the oath suit at the palace as co-defendant to protect her interest. Not having joined the oath suit, the tribunal concluded that it was “improper for plaintiff to style herself as Ananta Obaapanin.” Judgment was therefore given against the plaintiffs in favour of the defendant. The plaintiffs appealed to the Ashanti Regional House of Chiefs, where they won. A further appeal to the National House of Chiefs restored the decision of the trial tribunal.

Throughout all this we have observed that none of the tribunals made adequate findings of fact in respect of the real mattes in issue. It is not advisable that we detail these in this ruling, having taken a decision that the case must go back. A detailed analysis of the issues thrown up and the nature of evidence required to establish these are bound to have prejudicial effect at the retrial.

One thing, however, is certain, namely that prior to the commencement of these proceedings, there had in fact been pending at the Manhyia palace another oath case on the same Obaapanin stool of Ananta. It would seem from the judgment of the Kumasi Traditional Council that the first oath case was the result of an oath sworn by Anantahene Baffour Danquah (now deceased) against one Bediako Kontor, occupant of Esaase Eboomu stool, for attempting to install the present defendant, Afua Manu of Esaase, as the Ananta Obaapanin. The oath case, as appears from the record, is pending at the palace, and not before the judicial committee of the Kumasi Traditional Council. It is clear to us that in order that justice may be done to the parties, the oath case must be moved to the Kumasi Traditional Council, consolidated with the present one, and heard along with it.

We order therefore that within two months of the date of this judgment the successor to the late Anantahene Baffour Danquah (or such other person as the Ananta stool may nominate) institute an action before the Kumasi Traditional Council in terms of the oath case now pending at the palace against Nana Bediako Kontor of the Esaase Eboomu stool and Madam Afua Manu, as defendants. That action, when instituted, is to be consolidated with the present one and tried together. The oath case before the palace should then abate. If the Ananta stool fails to take out the writ ordered herein within the time stipulated, the Kumasi Traditional Council is to proceed to hear the present action, without reference to the oath case pending at the palace. Any of the parties herein, or to the oath case, is at liberty hereafter to join such other person(s) as he may deem fit, or to discontinue his action or defence, or amend same

It is a pity that by the rules operating in the traditional councils, legal practitioners are not permitted to appear and practice before the judicial committees of these councils. Parties and the committees themselves are deprived of legal assistance in the handling of cases before them. The result is that cases are often not properly built up at that level, making it extremely difficult for an appellate tribunal such as the Supreme Court, to be of much assistance at a later stage. This case provides an excellent example. We have no doubt that if lawyers had appeared in it from the beginning, the issues would have been better identified and the relevant evidence marshalled and led in proof of the matters in issue. Besides, the judicial committee itself would have been the better enabled to know what issues were at stake, and what findings of fact were required to be made. As it turned out, all the parties as well as the committee were cast adrift in an open sea, with no compasses to guide them.

We wish to recommend that with the experience of hind sight, the practice obtaining in the regional and national houses of chiefs be extended to the traditional councils, and lawyers permitted to appear there also.

Given the record and the three judgments therein, we have no option but to allow the appeal, and remit the case to the judicial committee of the Kumasi Traditional Council to be heard afresh, jointly with the oath case pending at the Manhyia palace, as directed in this judgment.

The costs of this appeal, as well as those in the traditional council, the regional house and national house of chiefs to be costs in the cause, and abide the result of the retrial. Any costs paid by either party are to be refunded.