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GHANA BAR REPORT 1994 -95 VOL 1

Brobbey and others v Kwaku and another [1994 – 95]  1 G B R 439 - 456 S C

SUPREME COURT

ABBAN CJ, AIKINS, HAYFRON-BENJAMIN, AMPIAH, KPEGAH JJSC

11 APRIL 1995

of which the head was Opanin Osei Bonsu. Later Opanin Osei Bonsu who was reported sick at Kumasi travelled to Mampong and announced that he had already nominated the 7th appellant. This was objected to by the petitioner with the reason that the 7th appellant was not a royal. Opanin Osei Bonsu refused to withdraw his nomination and so the petitioner swore both the Mamponghene’s oath “Yawoada” and the Great Oath of Ashanti on him, and proceeded to swear to an affidavit when the 7th appellant was presented to the queenmother, Nana Yaa Akyaa. The affidavit stated categorically that the 7th appellant was not a royal but rather an issue of a domestic slave and therefore ineligible to accede to the stool of Mampong. The affidavit was circulated to all the kingmakers of Mampong and copied to Opanin Osei Bonsu and the queenmother.

When the petitioner realised that all his protestations had been ignored he petitioned the Otumfuo Asantehene, but he was not favoured with any response. After exhausting all customary means of getting the Mampong kingmakers to stop the election and installation of the 7th appellant, he petitioned the Ashanti Region House of Chiefs which found that the oaths sworn by the petitioner were valid under customary law. He asked for a declaration against Nana Gyamfi Brobbey, Jamasehene; Nana Aya Kusi Buodom, Apaajeeme; Nana Kwaku Safo, Ejurahene; Nana Yaw Kodua, Krontihene; Nana Owusu Afriyie Akwamuhene; Nana Yaa Akyaa, the queenmother and Mr  F K Cartey, that the said Mr F K Cartey was not a royal of the Mampong Silver stool, and for that matter he was not eligible for nomination, election and installation on the Silver stool. He also claimed that the purported nomination, election and installation of Mr Cartey should be set aside as null and void. At the same forum the Domakwahene Nana Kwaku Obeng II also filed a similar petition against: Nana Aye Kusi Buodom, Apaahene; Nana Kwaku Safo Ejurahene; Nana Owusu Afriyie, Akwamuhene; Nana Yaw Kodua, Krontihene; Nana Yaa Akyaa, the queenmother and Mr F K Cartey, claiming a declaration that the purported nomination and election of Mr Cartey should be set aside, and a perpetual injunction restraining the 1st - 5th respondents from taking any proceeding upon the said nomination and election. When the matter came before the judicial committee of the Ashanti Region House of Chiefs for hearing the two causes were consolidated.

As stated above judgment was given in favour of the two petitioners by the judicial committee of the Ashanti Region House of Chiefs, but on appeal to the National House of Chiefs, the judicial committee of that House unanimously allowed the appeal against that part of the judgment which upheld the petition of Nana Kwaku Obeng II. Since Nana Obeng II has not appealed to this court against the decision of the judicial committee of the National House of Chiefs, I shall confine myself in this judgment to the case of Major (Rtd) Osei Kwaku alone.

The case of the petitioner before the judicial committee of the Ashanti Region House of Chiefs was based essentially on traditional history. He led evidence to show that the Mampong royal family consists of four houses, namely, Baabriw, Wiredu, Botase and Kodiokrom, whilst the Baabriw house comprises three sub-families namely, Santeni family of which he the petitioner is the head, Sarfo Kantanka family, the head of which is Kwaku Adwetewa and Kwaku Abereka house headed by Opanin Osei Bonsu. The petitioner gave his family line as commencing with his ancestress Afi who gave birth to Nana Akuamoah Boateng and three daughters, namely, Nana Takyiwa Pinaman, Abena Saka and Apaa Korkor. He said that Abena Saka gave birth to Sarfo Kantanka I and Abena Adoma, whilst Apaa Korkor gave birth to Afua Gyapomaa and Abena Dwamena Onipaba who got married to Nana Mpianin who later became Kokofuhene under the stool name Nana Kwame Appia Agyei. The petitioner said that Nana Appia Agyei went to Kokofu and purchased a Grunshie woman named Niana alias Okra, and presented her to his wife Nyarko Akosua as a domestic servant, and that during the course of her stay with Nyarko Akosua this domestic servant was impregnated by Nana Kwame Appia Agyei and gave birth to a daughter Obiyaa Akosua whilst Nyarko Akosua gave birth to Nkwantanan Akosua. He said Nkwantanan Akosua had two issues, Oduro Frikyi (at one time Mamponghene) and Nana Kobi his sister who begat Nana Adwetewa (also on one occasion Mamponghene), Akyaa Afreh, Nana Marboa and Akua Kyem. He said Niana’s daughter Obiyaa Akosua had many children, but all of them died except Kriguwaa (or Krubusuwa) who brought forth Afua Toh and Eno Nkrumah. Afua Toh’s children included Opanin Kojo Adomako (the eldest), Kojo Abrebreseh, Yaw Mensah, Nana Takyiwah, Yaa Aboaagyewa and Kwaku Apia. He said Mame Takyiwaa begat Serwa, mother of 7th appellant Cartey, and Afua Sarpong, mother of Dr Albert Asafu Adjei attorney of 7th appellant, Kwame Adwetewa and Kwaku Dua. Eno Nkrumah’ children were given as follows: Kwasi Dwomo, Kofi Manu, Atta Kwabena, Ataa Abena, Ama Yaa, Afua Ketekye, Kofi Badu, and Ekua Kyirika. Petitioner’s evidence was corroborated by PW8, Alice Oppong,  a farmer at Ahensan Estates and PW11, Agyei Frimpong Beniako, a lecturer at the University of Ghana, Legon.

The 7th appellant’s version of his ancestry is different from the foregoing. His attorney, Dr Albert Asafu Adjei who gave evidence on his behalf, said that their original ancestor was Onipaba Dwamena who, he said, was married to King Osei Tutu, and on his death she was married to his nephew Nana Opoku Ware I. This Onipaba Dwamena gave birth to Nyarko Kwasiwa by Nana Opoku Ware I, and that it was this Nyarko Kwasiwa who was married to Nana Mpiani, Kokofuhene with whom she had many children including Adwoa Pinamang (the eldest) and Pokuaa. He said he and the 7th appellant are descendants of Pinamang; that Pinamang begat Yaa Botosie who in turn brought forth Amankwaa Yaa; and that Obiyaa Akosua was the daughter of Amankwaa Yaa. He said Obiyaa Akosua was married to Akuamoah Boateng and she brought forth Pomaa alias Afua Toh and Kwame Okyere alias Fredua Mensah, and that Afua Toh alias Pomaa begat Adomako, Yaw Frimpong Mensah, Kojo Abrebreseh, Takyiwaa Pinamang, Yaa Aboagyewaa and Kwaku Appiah. He said Takyiwaa Pinamang begat Adwoa Serwaa, the mother of 7th appellant and Afua Sarpong (his own mother), Kwame Adwetewa and Kwaku Agyeman Dua.

From this narration Dr Albert Asafu Adjei traces 7th appellant’s ancestry along the line of the petitioner. However, he denies ever coming across anybody called Niana and also Krabuwaa who petitioner said was the daughter of Obiyaa Akosua whose mother was Niana. He admits knowing Ata Kwabena and his mother Eno Nkrumah, Kwame Agyei, son of Afua Katakye, sister of Ata Kwabena. He also admits being related to Eno Nkrumah but denies knowing the mother of Eno Nkrumah. However, he remembers very well the children of Eno Nkrumah as Kwasi Dwomoh, Atta Kwabena, Ataa Abena, Madam Kyirika, Agya Badu, Ama Yaa and Madam Aketekye and that even though Nkrumah and Afua Toh (alias Pomaa) were maternally related, as far as he was aware they were not sisters from the same mother. Dr Asafu Adjei said he was never told who Nkumah’s mother was, but when pressed whether he knew her line he replied that that had nothing to do with him.

Surely, he could not have given any other answer. He knew Afua Toh, Eno Nkrumah and Obiyaa Akosua, but not the connecting links Kriguwaa and Niana. It is interesting to note that when Dr Asafu Adjei was asked in cross-examination whether he had mentioned the name of Onipaba Dwamena as their remotest ancestress he replied that he never said so in his evidence-in-chief. He then went on to say that Afi was his remotest ancestress, and that Afi begat Apaa Korkor who in turn begat Onipaba Dwamena. He said he did not know Onipaba Dwamena had only one daughter called Nyarko Akosua, but he knew of Nyarko Kwasiamoa as the daughter of Onipaaba Dwamena. He however admitted that he was aware that Kokofuhene Nana Appia Agyei married Nyarko Akosua, but that they begat Pokuaa and Adwoa Pinamang and not Niana. Perhaps the story told by Dr Albert Asafu Adjei would have been much more convincing and credible if it had been corroborated by at least one of the defendants or any other person, let us say from the Baabriw Bretuo family.

Maybe the 7th appellant himself would have told a much more convincing story, but in the event he never gave evidence himself. It is also known that the 7th appellant’s mother was alive at the time the case was before the trial tribunal, but she too was not called to confirm her son’s story. There is no doubt that she would be a very interested person to confirm the royal lineage of her son since she would not wish to let the opportunity of her son becoming a Mamponghene slip by.

Furthermore the queenmother who was supposed to know the royal family history also never gave evidence, neither was Opanin Osei Bonsu who was said to be the abusuapanin and who nominated the 7th appellant and proposed his candidature to the queenmother, asked to give evidence in support of the defence story.

As the trial tribunal pointed out “the abusuapanin who connived with the queenmother to choose 7th respondent should at least have supported the choice of the abusua because even though it is the queenmother whose duty it is to nominate a candidate she does so in consultation with the principal members of the family and the abusuapanyin.” The petitioner buttressed his case against the 7th appellant by linking it with the objection raised against the grand uncle of the 7th appellant, Nana Kwasi Dwomo. In paragraph 7(e) of his amended petition the petitioner pleaded that when Nana Kwesi Dwomo contested to accede to the Mampong Silver stool, the Effiduasehene, Nana Kwame Wusa and Nana Akua Kyem of Apaa swore Mamponghene’s oath “Yawoada” and the Great Oath of Asante against him to the effect that he was not eligible for election to the stool, but Opanin Dwomo failed to respond to the oath. This was denied by the respondents in paragraph 7 of their amended reply averring that (a) he was not nominated by the queenmother; (b) he failed to answer a charge of moral turpitude levelled against him in that he had married the divorced wife of Nana Owusu Sekyere, a former Mamponghene; and (c) it was further alleged that Dwomo’s brother Atta Kwabena had seduced and later married Madam Ama Kyaa a wife of Bafuor Gyima whilst the said Bafuor Gyima was serving a prison term.

The petitioner proceeded to give evidence to support his contention, but the respondents failed to give evidence on the issue, thus in effect abandoning that evidence. The petitioner’s version therefore stood uncontroverted, that is, that Kwasi Dwomo was the grand uncle of the 7th appellant, and that when he sought to become Mamponghene, the Effiduasehene swore the Great Oath on Nana Kwasi Dwomo and Ejurahene who sponsored Nana Dwomo’s candidature; that Dwomo was not a royal to the Mampong stool, but there was no response; and that another person Nana Akua Kyem similarly swore the Great Oath and here too there was no response. The failure of the respondents to lead evidence to contradict the petitioner’s assertion in this issue at least supports the contention that Nana Dwomo was not a royal of the Silver stool, and therefore the fact that he was a grand uncle of the 7th respondent-appellant implies that the latter is also not a royal of the Silver stool and thus not eligible for election to the stool.

Mr B J da Rocha, learned counsel for the 7th appellant, has raised three issues for determination in this appeal: (a) whether the 7th appellant is a royal of the Silver stool; (b) on whom lies the burden of proof in the matter of the royal lineage of the 7th appellant; and (c) whether that burden was satisfactorily discharged before the judicial committee of the Ashanti Region House of Chiefs. The gravamen of counsel for the 7th appellant’s argument is that once he had been recognised by the queenmother as a royal of the Ashanti Mampong stool, and nominated as such by her and the head of the royal Baabriw family, and presented to the kingmakers for acceptance and installation, a very strong presumption had been raised that the 7th appellant was of royal lineage. He argues that this casts upon the respondent a heavy burden of rebutting that presumption. Counsel submits that the acts of the queenmother, the abusuapanyin Osei Bonsu of Baabriw family and the kingmakers constitute a customary official duty which is covered by the provisions of section 37 of the Evidence Decree 1975 (NRCD 323).

This, in the submission of counsel, is a conclusion, which must be drawn in the absence of further evidence. This axiom is what is termed presumption of law, ie evidence which depends on a rule of law to give it a probative force. In other words, once the basic fact is established, the conclusion as to the existence of the presumed fact must be drawn in the absence of evidence to the contrary, for example the presumption of death from seven years’ absence unheard of, the presumption of sanity in testamentary cases and innumerable instances of the application of the maxim omnia praesumuntur rite ease acta according to which fact A is stated to be prima facie evidence of fact B. The effect of such presumption may be said to shift the evidential burden of proof.

Professor Glanville Williams refers to these presumptions in his Criminal Law, The General Part, 2nd ed p 877 et seq as “permissive presumptions.” The editors of Halsbury’s Laws of England, 3rd ed, Vol 15 at p 343 paragraph 620 put the effect of rebuttable presumptions of law thus:

 “The nature of a presumption of law is that the court treats as established some fact of which no evidence has been given, and when rebuttable it can have no weight capable of being put in the balance against opposing evidence which is believed. It does not follow that such a presumption may be rebutted in every case by any evidence however slight. The rebutting evidence must be considered in its merits: its credibility is neither increased nor diminished by the existence of the presumption but, if it is believed, the presumption is displaced.”

Section 37 of the Evidence Decree is as follows:

 “37(1) It is presumed that official duty has been regularly performed.

(2) This section is not applicable in a criminal action to establish specific intent where specific intent is an element of the crime charged.”

This states the common law presumption omnia praesumuntur rite esse acta and the Commentary on the Evidence Decree confirms at page 31 that it is generally applied to judicial and governmental acts, but may also be applied to duties required to be performed by law. It emphasises that the presumption does not apply in the case of arrests made without a warrant, for example, because there is a presumption that such arrests are unlawful, that is, the burden of persuasion is on the officer or prosecution to justify the arrest. The section therefore follows the common law in this regard.

The question for determination is whether section 37 of the Decree applies to customary norms of nominating, electing and installing a chief as is being contended. I think not. The trial of a dispute involving chieftaincy is more in the nature of a fact finding inquiry whereby the burden of proof rests squarely with both parties to lead evidence and establish the customary or constitutional processes by which the chief in the area is nominated, elected and enstooled. It is praessumptio hominis than a presumption of law. In the former the facts are not proved directly, but are inferred from facts that have been proved. Here there is no obligation upon a tribunal of fact to draw such inference; and an inference of fact, if drawn, is refutable by evidence to the contrary: see paragraph 618 page 342 of Halsbury’s Laws of England, 3rd ed, Vol 15 and R v Schama, R v Abramovitch (1914) 84 LJ KB 396 at 398, CCA (presumption that accused is a receiver on proof of his recent possession of stolen property). See also Kyere v Kangah [1978] GLR 83, Full Bench, where Sowah JA reading the majority judgment of 4 to 1 said at page 91:

“In a dispute involving the cherished and unique institution of chieftaincy the adoption of principles or rules of law evolved for the purposes of solving ordinary land and civil suits can lead to unsatisfactory results and bring the whole of the institution into disrepute. Such principle or rules, call them what you will, namely, ‘the plaintiff must proved his case beyond all reasonable doubt’ or that ‘the plaintiff must rely on the strength of his case and not on the weakness of the defendant’s should in my view have no place in disputes involving chieftaincy.

I think, broadly, the trial of a dispute involving chieftaincy is more in the nature of a fact finding inquiry. The first principle being that those who install a chief have the right to destool him. If the case involves enstoolment, the burden rests with both parties to lead evidence and establish the customary or constitutional processes by which the chief in the area is nominated, elected and enstooled; it becomes the duty of the tribunal to test the validity of the nomination by what has been established to be the constitutional process. If it involves destoolment, the burden of course will be on the persons seeking to destool by demonstrating that the conduct of the incumbent breaches certain customary norms for which the sanction is destoolment.” (Emphasis mine.)

The respondent therefore has the burden to prove that he hails from Afi’s line which is the appropriate Baabriw royal lineage, and that the 7th appellant does not hail from that lineage but from Niana’s line. At the same time the 7th appellant has the burden to prove that he hails from Afi’s line, the appropriate Baabriw royal family. Thus the trial tribunal was only obliged to find the presumed fact until evidence to the contrary is proved. It is sufficient therefore that some contrary evidence is adduced. Once this is done the trial tribunal has to dispense with the presumption as if it had never arisen.

Professor John H Wigmore tersely put the difference between presumptions of law and presumption of fact this way in his treatise on The Anglo-American System of Evidence Vol IX (3rd ed 1940) in section 2491 page 288:

“The distinction between presumptions “of law” and presumptions “of fact” is in truth the difference between things that are in reality presumptions …and things that are not presumptions at all.

A presumption, as already noticed, is in its characteristic feature a rule of law laid down by the judge, and attaching to one evidentiary fact certain consequences as to the duty of production of other evidence by the opponent. It is based, in policy, upon the probative strength, as a matter of reasoning and inference, of the evidentiary fact; but the presumption is not the fact itself, nor the inference itself, but the legal consequence attached to it. But, the legal consequence being removed, the inference, as a matter of reasoning, may still remain; and a “presumption of fact”, in the loose sense, is merely an improper term for the rational potency, or probative value, of the evidentiary fact, regarded as not having this necessary legal consequence. “They are in truth, but mere arguments”, and “depend upon their own natural force and efficacy in generating belief or conviction in the mind.” They have no significance so far as affects the duty of one or the other party to produce evidence, because there is no rule of law attached to them, and the jury may give to them whatever force or weight it thinks best - just as it may to other evidence.”

Bearing this in mind I would stress that it is peculiarly within the province of the trial tribunal to make findings of fact, and unless it acted on wrong principles or took into consideration matters which it ought not, it would be wrong for this appellate court to interfere with them. After examining the two conflicting traditional histories put forward by the parties and later events, the judicial committee of the Ashanti Region House of Chiefs made the following finding:

“Applying the test in the Adjeibi-Kojo case we prefer the traditional history of the 2nd petitioner [who is the respondent in this appeal] and his witnesses to that of the 7th respondent’s [the appellant’s] representative. If there were any more recent acts, there could be no better one than the recent abdication of Nana Attakora Amaniampong, undoubtedly a royal of the Mampong stool. Nowhere does the 7th respondent claim to be related by family or kingship to Nana Amaniampong. Kwasi Dwomo, 7th respondent’s uncle or grand nephew [I think it should be grand uncle] gracefully came down from his palanquin when two oaths as to his eligibility were sworn on him and quit contest. We do not believe that the oath sworn by the two persons were in connection with Kwasi Dwomo’s alleged adultery with the chief’s wife. That matter would have been known to the family and the public and no one would have nominated Afi’s descendants and Niana’s descendants. Thus Kwame Adwetewa (Afi) married Nkrumah (Niana); Mobi (Afi) married Ketekye (Niana). The reason is simple as Rattray puts it. Being domestics they have no family and are attached to the families in which they are domestics. Rattray points out that some of these domestics are attached to important stools in Ashanti and serve as sword bearers and at similar official functions in the palace. In Asante they were known as ‘Efie Nipa,’ and were eligible for marriage by the royals or free men. Yet again the Figure 67 in Rattray’s book confirms the traditional history of the 2nd petitioner.”

The committee continued:

 “In our view the Onipaba Dwamena who was married to Opoku Ware and whose daughter Nyarko Akosua who was married to Mpiani, later Appiagyei of Kokofu are not the ancestresses of 7th respondent. We therefore accept the version of the 7th respondent’s genealogy as given by the 2nd petitioner and his witnesses.”

The finding was confirmed by the judicial committee of the National House of Chiefs in the following words:

“We agree with the tribunal below on the family tree presented by the respondents because apart from the corroborative evidence of the 1st respondent and his witnesses Fig 67 of Rattray supports the version given by them that the wife of Nana Appiah Agyei was Nyarko Akosua but not Kwasi Amoah as given by the appellants. Secondly Rattray says that the issue of Nana Appeagyei and Nyarkoa Akosua was only one and she was Pokuaa and not two as given by the 7th appellant. Flowing from this finding it follows that Niana’s line and Pokuaa’s line became two separate lines and even though the two regarded themselves as members of the same family they were not united by blood since they flowed from two different ancestresses not united by blood. This lends credence to the fact of inter marriages between the two groups and why these marriages were not frowned upon but allowed to the extent that even prominent personalities in the two groups could marry from either group openly. Thus there is the evidence that Adwetewa is from Pokuaa’s line. This Adwetewa later became Mamponghene.’

Counsel for the 7th appellant criticised the lower tribunal for quoting passages from Ratray’s book which according to him was put in as exhibit D2. I have examined the record of proceedings and I am satisfied that it was the whole book that was tendered in evidence by 7th appellant’s attorney who gave evidence on his behalf. The tribunal was therefore entitled to refer to any passage in that book especially the chapter dealing with Mampong affairs. Counsel contends further that there was the need for somebody to give evidence vouching the accuracy of Rattray’s book before the text could be relied upon. I believe he is not serious about this contention, especially when his own client the 7th appellant did not even think it necessary to adduce such evidence before he tendered the book in evidence and relied on a portion of it. I have already said that section 37 of the Evidence Decree is not applicable to this case.

But even if it is applicable, the presumption disappeared immediately evidence contrary to the assumed fact was introduced by the respondent, supported by PW 11, tracing his ancestry from Afi and that of 7th appellant from Niana; the steps he took to stop the kingmakers from proceeding with the installation of the 7th appellant as Mamponghene by swearing the Mampong Oath “Yawoada” and the Great Oath of Ashanti; and the account of Kwasi Dwomo’s unsuccessful contest for Mampong stool.

The respondent’s evidence on the lineage of the 7th appellant was that 7th appellant is a descendant of Niana a domestic of Nyarko Akosua purchased for her by her husband Nana Mpianim. Niana in due course became pregnant by Nana Mpianin. By Ashanti customary law and usage the children of Niana and their descendants cannot contest the Silver stool, that is why in the words of respondent, when Kwesi Dwomo (uncle of Kwae Agyei) contested the Silver stool, Nana Akua Kyem (aunt of Nana Sarfo) swore the Great Oath of Ashanti and Mampong Oath “Yawoada” on him.

The respondent also adduced evidence to show that the 7th appellant’s mother Serwa was a descendant of Obiyaa Akosua, daughter of Niana, and therefore disqualified to accede to the Silver stool. To support the ineligibility of Niana’s lineage for the position of Mamponghene, the respondent led evidence to show that Afua Toh and Eno Nkrumah were matrilineally related, and that Afi’s descendants have married Nkrumah and her offspring. If Afua Toh and Nkrumah were so related the logical conclusion is that they have a common ancestress, and since there is credible evidence that there had been intermarriages between Nkrumah’s children and the descendants of Afi, their ancestress must be Niana, and I so hold.

Learned counsel attacks the Niana story as a simple fiction, and argues that the story raises a number of issues which must be satisfactorily answered if it is to have any credibility. A lot of the argument is red herring. No evidence was led to deny the inter marriages, nor did the 7th appellant make any attempt to prove the moral grounds in his pleadings which made Kwasi Dwomo lose his contest for the Silver stool, even though the respondent led evidence to show that Kwasi Dwomo was not a royal of the Silver stool. These two material facts therefore stood established against the 7th appellant, and I agree with learned counsel for the respondent that the tribunals below were entitled to use them in resolving the conflict in the traditional histories of the parties.

There is evidence that when the Mampong Silver stool became vacant upon the abdication of Nana Attakora Amaniampong, and there was rumour that the Krontihene Nana Yaw Kodua had intended to let the stool “travel away” (ie would be given to anyone who would be prepared to pay for it) the respondent had personal contact with Osei Bonsu and also the Krontihene and the latter admitted having made that statement. When later Osei Bonsu presented the 7th appellant to the queenmother the respondent swore to three affidavits which he distributed to the kingmakers, Osei Bonsu and the queenmother. In the affidavits the respondent deposed that the 7th appellant was not eligible for the stool because of his slave descent. The respondent later met Osei Bonsu and repeated to him what he had said about the 7th appellant in the affidavits.

There is also evidence that after the nomination and election of the 7th appellant the respondent met a number of the kingmakers and warned them on oath to desist from installing him, but the warning was ignored. Finally the respondent petitioned Otumfuo Asantehene but he was not given any assistance. The respondent had then exhausted all customary means of getting the Mampong kingmakers to stop the election and installation of the 7th appellant. At that stage custom demanded that the kingmakers should stop the election and installation for the respondent to apply for an inquiry in an appropriate forum. In the circumstances it cannot be seriously and properly contended that by the mere nomination, election and installation the 7th appellant virtually became the Mamponghene to attract destoolment charges before he is dispensed with.

A person can only validly be a chief if, as is provided under section 48(1) of the Chieftaincy Act, 1971 (Act 370), he has, in accordance with customary law, been nominated, elected and installed as such, and his name for the time being appears as a chief on the National Register of Chiefs. Article 181 of the Constitution 1992 also defines a chief as a person who hailing from the appropriate family and lineage, has been validly nominated, elected and enstooled, enskinned or installed as a chief or queenmother in accordance with the requisite applicable customary law and usage. If therefore the person, as in the case of the 7th appellant, was not nominated, elected and installed in accordance with customary law, eg he does not hail from the appropriate family and lineage or his royal lineage is challenged at the onset and the necessary customary steps are not taken to regularise the installation, he cannot properly be said to have been a chief when wrong steps have been taken to have him installed. He must have hailed from the appropriate family lineage, and been validly nominated, elected and installed as a chief in accordance with the applicable customary law and usage. Every essential ingredient of the definition of a chief must be satisfied.

Though the swearing of oath of allegiance and installation are essential formalities in the enstoolment process, yet the mere fact that there has been an election, installation and swearing of the oath of allegiance will not, in my judgment, validate an invalid nomination, election and installation of a person, especially when his ineligibility to the stool has been pointed out to the kingmakers long before the installation and the swearing-in ceremony. The submission, therefore of learned counsel for the 7th appellant that the instant proceedings are in the nature of destoolment proceedings is, with all due respect, misconceived.

The next point for consideration of this court is whether the respondent lacked capacity to take the proceedings in the trial judicial committee. Learned counsel for the 7th appellant has urged that the respondent lack capacity to take proceedings because the 7th appellant had become the substantive Mamponghene under the stool name of Nana Akuamoah Boateng Ababio, and that the only people qualified to destool him were the kingmakers and not the respondent who was not a kingmaker. This contention cannot be accepted because, as has been pointed out above, the instant proceedings are not destoolment proceedings. According to the respondent his action was instituted under section 66(a) of the Chieftaincy Act, 1971 and that no matters were pleaded which raise an issue of destoolment of the 7th appellant.

A close examination of the pleadings shows that his action to invoke the original jurisdiction of the judicial committee was commenced by petition in accordance with the Chieftaincy (National and Region Houses of Chiefs) Procedure Rules 1972 (CI 27), and the reliefs sought concerned the eligibility of the 7th respondent-appellant to be nominated, elected and installed as the chief of Mampong, and the setting aside of his nomination, election and installation as null and void. No relief was sought for his destooment. In this respect CI 27 permits any one who has interest in such nomination, election and installation to file a petition in the appropriate forum.

 Customary law does not restrict a petitioner in such circumstances in commencing proceedings on behalf of the entire family or with the consent and concurrence of other houses of the royal family where there is more than one house constituting the royal family. The enstoolment process concerns only the Baabriw family of the entire Mampong royal family, because it was the turn of the Baabriw family to install a Mampong chief. It was also not necessary for the action to be instituted with the backing of the heads of the Baabriw family nor those of the other houses of the Mampong royal family, namely the Botase, Kodiekrom and Wiredu houses. It also makes no difference whether the respondent is proved to be the head of the Kofi Santeni branch of the Baabriw Bretuo family or house before he becomes entitled to swear the Great Oath of Asante and the Mampong Oath “Yawoada” or file a petition to swear to challenge the installation of the 7th appellant as a Mampong chief.

The Chieftaincy (National and Region House of Chiefs) Procedure Rules 1972 (CI 27) r 1 permits an action brought to invoke the original jurisdiction of a judicial committee of the Region House of Chiefs to be commenced by a petitioner in Form 1 set out in the First Schedule to the Rules, and signed by the petitioner or his counsel and filed with the proper officer of the judicial committee. Rule 2 specifies the contents of Form 1, and in filling it the pattern of the Form was followed by the respondent. The rules do not specify in what capacity the petitioner should institute his action, but the law permits any member of a family to bring an action to protect any family property in jeopardy if he can show that there is no head of family at the material time to protect the property, or that the head had shown no interest in saving the property or had refused to take requisite action to protect the property, or that if he is taking action his act is geared towards the destruction or alienation of the property.

If Opanin Osei Bonsu who is said to be the overall head of the Baabriw Bretuo family was bent on giving the Silver stool (to which only blood members of the Baabriw family are entitled to accede) to the 7th appellant who is alleged not to be of the royal lineage, a necessity had arisen for the respondent, a descent of the royal blood, to file a petition.

Much as I agree with learned counsel for the 7th appellant that in this country no person is entitled to declare another person a slave, the question whether such person has ever been a slave is a question of fact provable by evidence. True with the abolition of slavery all such persons became emancipated resulting in their children and descendants born free citizens subsequent to the abolition of slavery, native law and custom did not permit them to contest the Mampong Silver stool by reason of their slavish origin. I do not see anything wrong with this contention as being repugnant to justice, equity and good conscience. In my view the two cases cited by counsel, namely Kwaku Damptey, Kweku Kodieh v Nana Kwame Affram (1930) 1 WACA 12 and Yeboah v Bonka (1957) 2 WALR 107 are, with all due respect patently irrelevant and inapplicable. In the result all the grounds of appeal fail, and the appeal is dismissed.

ABBAN CJ. I agree.

HAYFRON-BENJAMIN JSC. I also agree.

AMPIAH JSC. I also agree.

KPEGAH JSC. I also agree.

Appeal dismissed.

S Kwami Tetteh, Legal Practitioner