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JUDGMENT

MRS. BAMFORD-ADDO, J.S.C.: 

I have had the privilege of reading in advance the judgment of my brother Acquah J.S.C. and I agree entirely with him.  I would however add my reasons in support.  This is appeal from the judgment of the Chieftaincy Tribunal of the National House of Chiefs dated 14th September, 1984 allowing an appeal from a judgment dated 25th September, 1981 of the Chieftaincy Tribunal of the Central Regional House of Chiefs by the Petitioner/Appellants herein.  The Petitioner/Appellant petitioned of the Chieftaincy Tribunal of the Central Regional House of Chiefs for the following reliefs:

a) A declaration that the Royal Odandan Twidan family is the only Omanhene Stool Family for the Gomoa Ajumako Paramount Stool.

b) That the Royal Odandan Twidan Paramount Stool family is the only rightful body capable of nominating candidate for enstoolment as the Omanhene of the Gomoa Ajumako Traditional area.

c) Defendants from interfering with the Paramount Stool or in any way arrogating to themselves any powers for nomination of a candidate for enstoolment as an Omanhene of the Gomoa Ajumako Traditional Area.

The Defendant/Respondent denied that the petitioner was entitled to any of the reliefs sought in his petition and averred that the nomination and enstoolment of 2nd Defendant/Respondent was proper, since the family of the Respondents owned the Paramount Stool of the Area.

The Chieftaincy Tribunal of the Central Regional House of Chiefs gave judgment in favour of the Petitioners and the Defendant/Respondents appealed to the Chieftaincy Tribunal of the National House of chiefs against the said judgment.  The National House allowed the Appeal holding that the Defendant/Respondents had established that the paramountcy belongs to them and also concluding that succession to the Paramount stool should continue to be between the two families namely Appellant and Respondent.  It is against this judgment that this appeal was brought by the Petitioner/Appellant herein.

According to history of Respondents their ancestors migrated from Techiman in the Brong-Ahafo and first settled at Mankessim and Gomoa Maim near present Essakyir.  The migrants later split into smaller units and one group headed by one Assan moved to the present Gomoa Ajumako.  That descendant of Assan became the first Omanhenes of Gomoa Ajumako and that the paramountcy belongs to their family.  The evidence is that during a period of about 100 years the Appellants had enstooled nine Omanhene and the Respondents has also enstooled 14 Apata Kofis' on the Odikro Stool of Pamadze.  The story of Respondents is that Kofi Apata I was the younger brother of Assan who became Omanhene before the Krampahs' established their dynasty to the Paramount stool.  According to the evidence when certain wars flamed up Apata Kofi I invited Krampah an affluent citizen of Gomoa to lead Gomoa Ajumako people in war because he Apata Kofi was too old to go to war himself.  That Krampah died in a battle and his place was taken by his younger brother Krampah Kuma who successfully prosecuted that war. That after the death of Apata Kofi there were no adult royals from his family to succeed Apata Kofi so the sword of state was given to Nyamful Krampah I to rule “temporarally” till an adult royal emerges from Respondent’s family.  That was a summary version of the Respondents traditional history as to how the paramount stool “temporally” left Apata Kofi family to the Krampah dynasty.

The history of the Appellant was that the Omanhene Stool belonged exclusively to his family the Odanodan Twidan family because their ancestors were the original founders of Gomoa Ajumako and traced his ancestry to Nana Krampah IX who occupied the Omanhene Stool when the 2nd Respondent Nana Apata Kofi XIV Odikro of Pomadze challenged his right to the Paramountcy.  Appellant conceded the fact that at one time or another during the said 100 years two Apata Kofis' laid claim to and were installed as Omanhene Stool but that they were successfully challenged and destooled.  It is to be noted that once the evidence 2nd Respondent before he became the Omanhene was the then Odikro Apata Kofi XIV of Pomadze and owed allegiance to the Paramount Stool of Gomoa Ajumako Traditional Area.

The trial Tribunal had to decide which of the trial traditional histories was to be accepted reasonably probably correct.  The trial Central Regional Tribunal after an exhaustive analysis of who of the evidence applied the test in Adjeibi-Kojo vs. Bonsie (1958) 3 WALR and found that:

“When this test is rigidly applied certain incidents amounting to right of ownership on the part of the petitioner in respect of the paramountcy, to the royal stool of Gomoa Ajumako Stool within living memory decisively discredit the defendants traditional history.”

The said Tribunal continued and concluded after examining certain relevant parts of the evidence as follows:

“On the totality of the evidence adduced this Tribunal has no hesitation in concluding that the defendants have failed to establish their claim to the Twidan royal stool of Gomoa Ajumako.  On the other hand the petitioner in evidence has convincingly showed that his ancestors have an unquestionable claim to the paramountcy of the Twidan royal stool of Gomoa Ajumako.  Be it as it may the 2nd defendant has by some dubious mean succeeded in having his name gazetted as the incumbent Omanhene of Gomoa Ajumako Traditional Area.  Unseating him is what this Tribunal can at best recommend in this judgment.  The Tribunal will enter judgment in favour of the petitioner and grant the reliefs sought by him in his petition filed during November 1972”.

The Respondents appealed against this judgment to the Chieftaincy Tribunal of National House Chiefs, which allowed their appeal in the following words:

“Our judgment therefore is that the lower Regional Tribunal failed to advert their minds to the whole evidence that they adduced, specially the crisp concise and concrete evidence of Nana Nyamful in the light and face of the overwhelming evidence, we grant the appeal and allow the reliefs sought.  This much we have to emphasis.  The Respondents have distinguished themselves both at war and in peace.  They have shown their class and done a lot for Gomoa Ajumako.  The justice of their case demands that accession to the Paramount stool should continue to be between Apata Kofi and Nyamful Krampah royal families.”

It is against the decision of the Judicial Tribunal of the National House of Chiefs that this appeal has been brought to the Court.  Before the death of the Omanhene of Gomoa Ajumako Nana Nyamful Krampah, 2nd Respondent was Nana Apata Kofi XIV Odikro of Pomadze Traditional Area and had sworn allegiance to Nana Nyamful Krampah IX. During the latter’s reign in about 1968 the 2nd Respondent challenged his title in the case between himself and Nana Nyamful Krampah IX.  The matter was heard by ad hoc Committee of the Central Regional House of Chiefs in the case entitled:

NANA APATA KOFI AS ODIKRO OF POMADZE                               PLAINTIFF

         VRS:

NANA NYAMFUL KRAMPAH IX AS OMANHENE OF

GOMOA AJUMAKO TRADITIONAL AREA                                       DEFENDANT

In the proceeding of that case dated 23rd September 1968 Nana Nyamful Krampah IX is said to have stated that the Omanhene stool belongs to the ancestors of Defendant when giving evidence in the said proceedings.  The Committee decided that after Nana Nyamful Krampah IX the stool should revert to the proper owners i.e. the family of Defendants.  According to the Respondents it is upon that recommendation that when the Paramount stool became vacant after Nana Nyamful Krampah IX, the kingmakers of the Traditional area accepted the 2nd Respondent as Omanhene as against the person nominated by the plaintiffs.

Before the actual trial of this case commenced Counsel for Respondents raised preliminary objection to the institution of the action on the grounds that the issue raised in the claim was res judicata by virtue of the result of the action taken by 2nd Respondent as Odikro of Pomadze against Nana Nyamful Krampah IX Omanhene of the Traditional Area as stated above.  The Central Regional Chieftaincy Tribunal however overruled the objection hold that the decision relied on as creating an estoppel was null and void because the Committee which dealt with the matter acted without jurisdiction to pronounce judgment or give a final decision.  Accordingly the case was ordered to proceed to be heard.  After evidence had been given by both parties the Chieftaincy Tribunal of the Central Regional House of chiefs, after an exhaustive examination of the whole of the evidence delivered judgment in favour of the Petitioner now Appellant herein holding that:

“On the totality of the evidence adduced this Tribunal has no hesitation in concluding that Defendants have failed to establish their claim to the Twidan Royal Stool of Gomoa Ajumako”.

The trial Tribunal highlighted relevant pieces of evidence and in deciding which of the evidence produced by the contesting parties to accept, correctly applied the principle in the case of Adjeibi-Kojo vs. Bonsie (1958) 3 WALR at p.257 where it was held that:

“The most satisfactory method of testing traditional history is by examining it in the light of such more recent facts as can be established by evidence in order to establish which of two conflicting statements of tradition is more probably correct.  Where there is a conflict a traditional history, one side or other must be mistaken, yet both may be honest in their beliefs, for honest mistakes may occur in the court of transmission of the traditions down the generations.  In such circumstances, particularly where Native Courts below have differed, an Appeal Court must review the evidence and draw their own inference from established facts, the demeanour of witness before the trial Court is little guide to the truth”.

They then came to the conclusion that the Appellant’s story was probably more correct entered judgment for him and granted the reliefs sought by him. 

On appeal to the National Chieftaincy Tribunal by the respondents that Tribunal treated the well reasoned findings and conclusions of the regional Tribunal most superficially, by ignoring their findings based on the evidence before them and rather relied heavily on the evidence given by Nana Nyamful Krampah IX in 1968 before a non judicial committee admitting to the fact that once upon a time the Respondents ancestors were family who was in possession of the paramount stool of Gomoa Ajumako.  They said:

“There is iron-dad truthful evidence.  In the view of the Committee any evidence inconsistent with and contrary to this is evil Genius falsification of history and truth”.

This finding megatons the principles enunciated in the case of Adjeibi-Kojo cited above at where there is a conflict in traditional history one side or other must be mistaken, even though both may be honest in their beliefs, for honest mistakes may occur in the court of transmission of the traditions down the generations.  In such a case the Appellate Court does not choose which side to believe as the National Tribunal sought to do nor to call one side a liar.

What they were entitled to do was to examine the conflicting histories in the light of recent facts as the Trial Tribunal correctly did, in order to establish which of the two histories was more probably correct.  The Appeal Tribunal failed to do this and consequently erred in its preference to the respondents history to that of Appellants history.  In short they failed to apply the test in Adjeibi-Kojo’s case as they were supposed to do and thereby came to a wrong decision in allowing the appeal of Respondent.  Their judgment was against the weight of evidence.

The National Tribunal committed another error when they wrongly applied to principle that a royal can at any time assert his right to a stool which his family possesses and therefore the Respondents can at any time descend to the stool.

They said:

“This Committee echoes and resounds the new almost trite customary and traditional law that eligible, can now assert their claim to a Paramount Stool, no matter how long their sleep or slumber.  The only militating hurdle or disqualifier is illegitimacy.  As long as they are known and accepted as royals or descendants of true royals their claims are made irresistibly”.

The National Tribunal misapplied this correct principle to this case and thereby misdirected itself which misdirection must have led to the final erroneous finding that as regards Appellants.

“They have shown their class and done a lot for Gomoa Ajumako. The justice of their case demands that ascension to the Paramount Stool should continue to be between Apata Kofi and Nyamful Krampah royal families”.

Unfortunately this surprise finding does no justice to the Appellants and in the circumstances of this case and is wrong and untenable.  In the first place the two families involved in this dispute, as the evidence clearly established were not from the same family, they were separate and independent of each other.  Ascession to a stool must come from a family or an established common line of ancestors to that stool, so that unless two families are descended from a common ancestry which is not so in this case, members of two separate families cannot ascend to one stool in rotation as ordered by the National Tribunal.

Secondly that part of the judgment was contrary to the case put forward by the parties themselves that the right to the Paramount stool belongs to their individual family to the exclusion of the other family. It is only contrary to the evidence on record but is also contrary to the claims contained in the writ itself especially relief 3 namely:

“An order of perpetual injunction restraining Defendants from interfering with the Paramount Stool or in any way arrogating to themselves any powers for nomination of a candidate for enstoolment as an Omanhene of Gomoa Ajumako Traditional Area”.

The respondents sought to justify this finding by arguing that even though the Appellants had not specifically asked that they be allowed to continue to rule with the Respondent the National House of Chiefs were prompted to make those consequential orders in the interest of justice.  The nature of this case requires that one of the families of the parties be declared exclusively entitled to the paramountcy since the Petitioners claim was that his family,

“The Royal Odandan Twidan Paramount Stool family is the only rightful body capable of nominating a candidate for enstoolment as the Omanhene of the Gomoa Ajumako Traditional Area which Respondents claimed”.

The parties were not fighting for the right to occupy the common Paramount Stool of the Gomoa Ajumako Traditional Area to which the two families are attached, if that were the case then that part of the judgment under consideration would have been justified.  As it is that finding was made in error by the National House of Chiefs cannot be allowed to stand.

For the above reasons the appeal succeeds and should be allowed.  The judgment of the National House of Chiefs Tribunal should set aside and that of the Central Regional Tribunal be restored.

(JUSTICE BAMFORD-ADDO (MRS.)

JUSTICE OF THE SUPREME COURT

C. F. HAYFRON-BENJAMIN, J.S.C.: 

I am in entire agreement with the reasoning and conclusions of my learned and respected brother ACQUAH, J.S.C. in his able disquisition which he will be reading.  The matter has been pending in the hierarchy of the Chieftaincy Tribunals and this Court for the past 25 years. The judgment of the Central Regional House of Chiefs was correct.  The National House of Chiefs had no business substituting their own view for the clear finding of the lower Tribunals.  Nanaanom of the National House failed to appreciate the issue for determination in the petition.  Nanaanom sought to steer a middle course when they ended their judgment by saying:—

“They have shown their class and done a lot for Gomoa Ajumako.  The justice of their case demands  that ascession (sic) to the Paramount Stool should continue to between Apata Kofi and Nyamful Krampah royal families.  Let Gomoa Ajumako live long, united and strong”.

This platitudinous conclusion masked the inability of the National House to recognise the real issue in controversy which was the right family entitled to occupy the Paramount Stool of Gomoa Ajumako.  On the evidence, the Nyamful Krampah royal family proved their title to the Gomoa Ajumako Paramount Stool.  This appeal therefore succeeds and it is hereby allowed.

(JUSTICE C.F. HAYFRON-BENJAMIN)

JUSTICE OF THE SUPREME COURT

ACQUAH, J.S.C.:

My Lords, the Petitioners and Respondents in this Chieftaincy appeal from the National House of Chiefs, belong to the Twidan family of Gomoa Ajumako, though each comes from a separate and distinct section of this family.  The separate and distinct nature of each section is so prominent and marked that one can in no way be confused with the other.  For each section had and maintains its own identity, members, property and head.  Thus testifying to the separate and distinct nature of each section, the petitioner in his evidence in chief before the Trial Chieftaincy Tribunal at the Central Region House of Chiefs said:

“The respondent’s family is also Twidan but not part of my family.  We share no family debts.  We do not own any properties jointly with them.  We have no joint family burial grave”.

Now the occupants of the Omanhene stool of Gomoa Ajumako have undisputably been mainly from the petitioners section of the Twidan family.  The last such paramount chief at whose reign the present dispute erupted, was Nana Nyamful Krampah IX.  He was also from the petitioners section.  He became so critically ill during the later days of his reign that his recovery was totally ruled out, and the stool was accordingly declared vacant by his head of family.  The head then nominated a candidate as usual from his own petitioners section of the family.  At this time the 2nd respondent in this suit was the gazetted Odikro of Gomoa Pomadze — a sub chief of Nana Nyamful Krampah IX. And this 2nd respondent did indeed swear the oath of allegiance on his installation as the Odikro of Gomoa Pomadze, before Nana Nyamful Krampah IX.

But then the 1st respondent herein succeeded in nominating and confirming this self-same 2nd respondent as the Omanhene to succeed the ailing Nana Krampah IX.  The reason for this bizarre nomination of an incumbent Odikro for the position of an Omanhene, is alleged to be in a decision of an ad hoc Committee of the Central Regional House of Chiefs to the effect that the status of the Omanhene of Gomoa Ajumako should revert after the death of Nana Krampah IX, to the respondents section of the family.

When the 2nd respondent was confined for his installation as the Omanhene, the petitioners quickly filed an application for prohibition at the Cape Coast High Court.  But the application was refused.  They thereupon filed the instant petition accompanied by an application for interim injunction at the judicial Committee of the Central Regional House of Chiefs.

The reliefs claimed in their petition against the respondents are:

1. A declaration that the royal Odandan Twidan Stool family is the only Omanhene Stool family for the Gomoa Ajumako paramount stool.

2. That the Royal Odandan Twidan Paramount stool family is the only rightful body capable of nominating a candidate for enstoolment as the Omanhene of the Gomoa Ajumako Traditional Area.

3. An order of Perpetual Injunction restraining the respondents from interfering with the paramount stool or in any way arrogating to themselves any powers for nomination of a candidate for enstoolment as an Omanhene of the Gomoa Ajumako Traditional Area.

Notwithstanding the pendency of this suit together with the application for interim injunction both of which were filed on 21st November, 1972, the respondent succeeded in installing the 2nd respondent as paramount chief in December, 1972.  And worse of all, managed to have the Government of the day to gazette his installation in the Local Government bulletin.

Not surprisingly therefore when the judicial committee of the Central Region eventually gave judgment in this petition against the respondents, they commented thus:

“…The 2nd respondent has by some dubious means succeeded in having his name gazetted as the incumbent Omanhene of Gomoa Ajumako Traditional Area.  Unseating him is what this tribunal can at best recommend in this judgment”.

Earlier in the course of the proceedings, the judicial committee had in a preliminary plea to dismiss the petition on grounds of res judicata constituted by the decision of the ad hoc committee of the Central Regional House of Chiefs, and the ruling of the High Court on the prohibition application, dismissed the plea and further declared the decision of that ad hoc committee to be nothing but a nullity and consequently void.

On the petition being decided against them at the Central Regional House of Chiefs, the respondents appealed to the National House of Chiefs on a number of grounds including the validity of the ruling on the preliminary plea of res judicata; and the findings of fact made at the trial chieftaincy tribunal.

The National House of Chiefs, in a judgment, difficult to comprehend, decided that the Omanhene’s position “should continue to be between Apata Kofi and Nyanful Krampah royal family”.

The petitioners thereupon sought leave and lodged the instant appeal to this court on the following grounds:

1. That the judgment is against the weight of evidence.

2. That the judgment was preverse and wrong in law, and in particular the Tribunal wrongly appraised the documentary evidence — most of which were recent and made with a view to litigation.

3. That the Chieftaincy Tribunal erred in concluding that from the evidence it was conclusively established that some of the ancestors of the defendants/respondents had occupied the Gomoa Ajumako paramount stool before Krampah I”.

Now the case of the petitioners at the trial is that the Omanhene stool belongs exclusively to their Odandan Twidan family, because their ancestors were the original founders of Gomoa Ajumako.  They traced their ancestry to one Jomo whose sister was Ampem Panyin, with one Otobea as head of their family.  Ampem Panyin had a daughter called Akua Owusu who in turn gave birth to two males, namely Krampah Panyin and Krampah Kuma, and a daughter called Akyere.  Akyere in turn begat Mansa and Kyerewa. These were the family of Nana Jomo who accompanied him from Techiman to Mankessim and then to Ankamu where they got there in the night and met one Otabil. Otabil made a torch for them and directed them to his ban to spend the night. The next day he showed them a place to make their settlement.  They cleared that place and settled there. And that place is the present Gomoa Ajumako. They contend that there is presently a part of Gomoa Ajumako called Osan Ase (meaning under a ban).  Now in memory of this Otabil of Ankamu, they made a linguist stick of a torch.  Not long thereafter, Nana Jomo died and was succeeded by Krampah Panyin during whose reign the Bobikuma war broke out. Krampah Panyin lead the Ajumako man to the war, but he was soon killed at the battle front.  His jurnior brother Krampah Kuma, who was by him then, immediately took off the lion cloth of Krampah Panyin, wore it, removed one Kola from Krampah Panyin’s mouth and put it in his mouth.  Then in the absence of any sheep, he seized his own nephew called Okoban, killed him and took charge of the battle. He fought and won the battle. The Asafo Company conveyed the bodies of Krampah Panyin and Okoban of palm branches home.  They were buried at a place called Mpetekyini. Thereafter he made a horn and caused it to be blown as “Okatakyi Koko Tor” (that is, valiant one, fight until you perish). The petitioners identified this horn as ld 1. This incident became the oath of Ajumakoman “Krampah Fida.  Brew Samdu” (that is Krampah Friday with layer of palm leaves).  Krampah Kuma lead the Ajumakoman to another war called Yaa Kyea Sa.  He was aided in this war by one Gura Kuma, the Omankrahene of Gomoa Asikuma.  When Gura Kuma was wounded, he attempted to run away, and so Krampah Kuma ordered him to be caught and beheaded.  He removed his jaw and brought it home and attached to a horn.  The jaw was also produced at the trial and identified as ld 2.  Krampah Kuma lead his people to a number of other wars like the Kantamanto war, Yaa Asantewa war and Sekum war.  Eventually he died and was succeeded by his nephew Onyimpon Okyir, the son of Mansa.  He also lead his people to a number of wars including the Kromantse war.  After the Kromantse war he created posts for his lieutenants.  He made Gomoa Asebu, the Benkumhene; Aboasa, the Nifahene; Gomoa Aguaakrom, the Kyidomhene; Gomoa Ampota, the Mankrado; Mankoadze the Gyesehene; Otsew Banahene; and Sraha the Twafohene.  He then created adikrofo among which, he made Apata Kofi, the Odikro of Pomadze. He asked each chief to carve his own stool. He finally made a linguist staff to signify that though he had asked each to carve his own stool, he held the key to Ajumako state. The linguist stick was also produced and marked as ld 5. He died, and his successors in turn were Ansa Sam, Okyir Ansa, Onyipong Okyir Ababio and Ansafaa.  After the death of Ansafaa, there was a dispute as to the suitable candidate for installation. In the course of this dispute the state sword was stolen by one Adu and sold to Apata Kofi.  And because Apata Kofi got hold of the sword, he was installed as Omanhene.  But the then head of the petitioners’ family, Opanyin Amuakwa litigated with Apata Kofi on how he came by the state sword.  Amuakwa won the suit and Apata Kofi was made to slaughter sheep for receiving stolen sword. He was then destooled. After destooling Apata Kofi, Nana Nyamful Krampah VIII was installed, after him came Nana Nyamful Krampah IX who died on 7th October, 1972. They contend that all the above chiefs, except, Apata Kofi were from their section of the family; and that their stool names were Krampah I down to Krampah IX.  They contend that they are the rightful persons for the Omanhene’s stool and that the respondents are for the Odikro stool of Gomoa Pomadze.

The respondents’ case on the other hand, is that the 1st respondent is the head of this Twidan Odandan family, and that the petitioners belong to another section of this Twidan family called Twidan Krobo Sardo.

On the history of their ancestry, the respondents were brief. They alleged that their ancestors migrated from Techiman to Mankessim and Gomoa Maim near the present Essakyir. As the population of Migration increased Obatan Gomoa accompanied by her sister Gomoaba split them up into smaller groups. The group headed by one Assan moved to the present Gomoa Ajumako, and were known as Assanaba Ajumako. It is from this group that they, the respondents, trace their ancestry.  Apata Kofi was the younger brother of this Assan who became an Omanhene. However, between the reigns of Assan and Apata Kofi, were Opotsi Essiakwa and one Gura-Kofowa. They contend that the petitioners came from Krobo land, during the reign of Nana Apata Kofi I who settled them at Sardo between Apam and Mpruman.  Later this Sardo became Krobo Sardo. 

The respondents concede however, that a number of the petitioners family had been installed as Omanhene of Gomoa Ajumako.  And their main explanation was that when Apata Kofi I died the royals who should have succeeded him on the Omanhene’s stool were all infants, so the Oman gave the state sword to Nyamful Krampah to look after the state.  And this was so, they further contend, because Apata Kofi gave the sword to Nyamful Krampah I to lead the Gomoas to fight the Assikumas.  They mentioned some of the petitioner’s members who had been Amanhene, as Krampa Kuma, Ansa Sam, Oyimpong Kyere, and Krampah IX.

Now as stated earlier on, in the course of the proceedings at the trial Tribunal and indeed before any evidence was taken the respondents moved to dismiss the petition on grounds of res-judicata.  That is, the claim of the petitioners had effectually been determined by first, the ad hoc committee of the Central Regional House of Chiefs, and secondly, by Sampson Baidoo J. in the Prohibition application at the Cape Coast High Court.  The trial Tribunal dismissed the plea of res judicata, and proceeded further to declare that the decision of the ad hoc Committee was nullity and consequently void on grounds of lack of jurisdiction.  The ruling of the trial Tribunal was delivered on 1st November, 1974 and appears at pages 32 to 34 of the Record.  At page 34 thereof, the trial Tribunal concluded its ruling as follows:

“The decision of the Committee of the House is to our mind null and void and cannot operate as an estoppel by Res Judicata.  The case is therefore to proceed.”

No appeal was lodged against this ruling, but in the appeal against the final judgment of the Tribunal to the National House of Chiefs, the validity of this ruling together with the declaration that the decision of the ad hoc Committee was a nullity, were made prominent ground, and argued before the National House.

But sadly enough the National House in its judgment totally failed to address these vital issues.  Rather it proceeded to rely on parts of the report of this ad hoc Committee, to uphold the claim of the respondents.  Certainly if the work of the ad hoc Committee had been declared a nullity by the trial Tribunal, the appellate Tribunal cannot rely on this work until it had examined that decision and set same aside.  The National House of Chiefs by such failure misapprehended the burden of the grounds and arguments advanced against that ruling and thereby misdirected itself on its evaluation of the materials on record.

The obvious issue therefore is whether the trial Tribunal was right in refusing the respondents plea of res judicata and further declaring the decision of the ad hoc Committee void.

Now the basic and indispensable requirement in a successful plea of res judicata is that the Courts which determined the decisions in question, must be court of competent jurisdiction.

In respect of the High Courts ruling, the application was for prohibition to prevent the Gomoa Ajumako Traditional Council and the 2nd respondent from installing the 2nd respondent as Omanhene of the Traditional area.  Sampson Baidoo J, dismissed the application according to his ruling delivered on 25th September 1972., because:

“i.  The final facts were suppressed by the applicant, and

ii.   the proper party to have been made respondent is the body or group known as king members”.

Thus apart from the settled law that High Courts have no original jurisdiction in cause or matter affecting Chieftaincy, Sampson-Baidoo J, did not go and could not have gone into the rival claims to the paramount stool.  The High Court’s ruling could therefore not operate as res judicata.

There is not enough materials to determine how the ad hoc Committee of the Central Region House of Chiefs was constituted and how they came to be seized with the subject matter before them.  But from the report of that Committee tendered as Exhibit 1, it was the Central Regional Administrative Office which directed the Standing Committee of the Central Region House of Chiefs to “investigate and report” on the dispute about the Gomoa Ajumako paramount stool.  The Committee was initially made up of five Chiefs but in Exhibit 1, their report was signed by only three of them.  This was in 1968, and the relevant law would be the chieftaincy Act 1961.  (Act 81).  It is clear form exhibit 1, therefore that what was before the ad hoc Committee was a reference, and not a petition to initiate Chieftaincy proceedings.  And under section 28 of the said Act 81, the power of the ad hoc Committee was only to investigate and  report to the authority which referred the matter.  The said section 28 of Act 81 reads:

“28.  If any matter is referred to it by the National Assembly or any Minister, a House of chiefs shall give consideration to the matter and as required, report upon it”.

The ad hoc Committee’s report is therefore not a judgment capable of conferring rights on the parties.  Thus in so far as the ad hoc Committee purported to deliver a judgment, they exceeded their jurisdiction, and the judicial committee was right in declaring same a nullity and thereby refusing the plea of a res judicata.

I think it is trite knowledge that when an enactment empowers an authority to refer a matter to a body or committee to investigate and report to it, the unless a contrary intention appears in that enactment, the report of that investigating committee is ineffective and incapable of conferring any rights and liabilities on any person until the appointing authority has signified and set out its reaction to the said report.  Until then, the report is nothing but a mere paper work. 

Now the National House of Chiefs on the strength of the report of the ad hoc Committee, upheld the respondents claim, but made a complete about turn when it concluded its judgment thus:

“…ascension to the paramount stool should continue to be between Apata Kofi and Nyamful Krampah royal families”.

This conclusion is vehemently criticised by the petitioners in their written submissions.  They describe it as perverse.

I concede that in appropriate circumstances, a court of law can grant a relief not sought for a by party.  But the law is that any such relief must first be supported by evidence on record, and secondly not be inconsistent with the stand and claim of the party or parties in whose favour the relief is granted.

In this appeal, each party asserted vehemently its exclusive claim to the Omanhene’s stool of Gomoa Ajumako, and insisted that the other party has no claim to the stool.  In the face of such a stand and claim by each party, the duty of the National House was to decide the appeal in accordance with the materials and respective claims of the party.  The House is not to abandon its judicial duty and turn itself into a settlement Committee by granting a compromise judgment not sought for by their party.  A court which, does that, acts without jurisdiction and its judgment cannot be justified.  Thus in Kwame Gyewu vrs: Nana Nuaban Asare II (1991) 1 WASC. 169 at 186, Osei-Hwere, J.S.C. did not mince his words in castigating the National House of Chiefs when it made a similar decision.  His Lordship said:

“In my view the appeal on the ground of excess of  jurisdiction has been well made out.  A court of justice called upon the resolve a dispute, I repeat, must neither play the role of the “artful dodger” (of Dicknesion creation) nor indulge in “diplomatic double talk” (intending to hurt no one) but must seize the bull by the horns and hand down the decision the dispute demands.  I would accordingly nullify the decision of the National House of Chiefs for excess of jurisdiction.”

I agree entirely with the above view of his Lordship, and accordingly refuse to endorse the House Judgement.  As stated earlier on, the Judicial Committee of the Central Region House of Chiefs was the trial tribunal.  It is also important to note that the petitioners in their testimony produced a number of objects like horns, linguist staff, jaw of a human being and a number of appellations in support of their traditional evidence.  They even went to the extent of calling as PW2, one Kwesi Guuan, a horn blower to testify and blow some of these horns.  The respondents on the other hand also called witnesses and tendered a number of documents including letters written by their predecessors, and gazette notices.  In the circumstances, the findings of fact by the trial tribunal cannot readily be set aside by the appellate tribunal, if such findings are supported by evidence on record.  For the trial tribunal had the benefit of seeing and hearing the witnesses, and was therefore in a decidedly better position than the appellate court in assessing the evidence and materials on record.  For as Ollennu, J.A. as he then was aptly explained in Kyiafi vrs. Wono (1967) GLR 463 at 466:

“It must be observed that the question of impressiveness or convincingness are the products of credibility and veracity; a court becomes convinced or unconvinced, impressed or unimpressed with oral evidence according to the opinion it forms of the veracity of witnesses.  That being so the Court of first instance is in a decidedly better position than the appellate court”.

Now the trial tribunal considered the evidence on record alongside the objects and documents tendered by the parties and guided by the wall settled principle of assessing traditional evidence in Adjei-bi Kojo vrs. Bonsie (1958) 3 W.A.L.R. 257 at 260, preferred the petitioners version to that of the respondents, any eventually held:

“On the totality of the evidence adduced, this Tribunal has no hesitation in concluding that the defendants have failed to establish their claim to the Twidan royal stool of Gomoa Ajumako.  On the other hand the petitioner in evidence has convincingly showed that his ancestors have an unquestionable claim to the paramountcy of Twidan royal stool of Gomoa Ajumako”.

I have gone through the record, and there is no doubt that this conclusion of the trial tribunal is justified.  For from the record, there is no doubt that Nana Nyamful Krampah IX, was the ninth from the petitioners section of the family who had rule as Omanhene of the state; and that the respondents had two Nana Apata Kofi who ruled as Omanhene.  But the petitioners dispute the existence of a second Apata Kofi. Nevertheless the petitioners proceed to explain how Apata Kofi I came unto the Omanhene Stool, and how he was soon destooled following the success of their head of family’s action against him.  The respondents explanation for the dominance of the petitioners members on the paramount stool is that when their Apata Kofi I died, they the respondents had no adult royal from their section to become an Omanhene.  Thus 2nd respondent testified in chief as follows:

“When Apata Kofi I died the royals who should succeed him on the stool were all infants … so the Oman gave him (Nyanful Krampah) the sword to look after the state”.

While the 2nd respondent was under cross-examination he was made to emphasis the above point when he was asked:

“Q. Did you ever make a statement that Krampahs' became Omanhene of Ajumako because when Apata Kofi I died the eligible royals were too young to reign?

A. Yes”.

Now it is also undisputed that the respondents section, usually referred to as the Apata Kofis', have from time to time immemorial held the position of Odikro of Gomoa Pomadze.  That is, sub-chief to the Omanhene stool of Gomoa Ajumako.  And that during the reign of Nana Nyamful Krampah IX as the Omanhene; the 2nd respondent was installed as the Odikro of Gomoa Pomadze under the stool name of Apata Kofi XIV, and that he did swear the oath of allegiance to Nana Nyamful Krampah IX.  And further the oath he swore was that of the petitioners family oath of “Krampah Fida”.

It is also not disputed that on the installation of the 2nd respondent as Apata Kofi XIV of Gomoa Pomadze, he was the fourteenth of the Apata Kofi’s who had sat on that Odikro stool.

Thus if indeed the story that on the death of Apata Kofi I there were no adult Apata Kofi to ascend the Omanhene’s stool, hence the predominance of the petitioners family on the Omanhene’s stool, then how did they at the same time get fourteen Apata Kofis' to ascend the Odikro stool of Gomoa Pomadze?  This question was put to the 2nd respondent in cross-examination in this manner:

“Q.   Where were all the Apata Kofis' of Pomadze?

Why were they not made Omanhene after Krampah I.

A.     I don’t know”.

Earlier the 2nd Respondent had been asked:

“Q.  Have you heard that any of your predecessor Apata Kofi ever strove for the Omanhene Stool at Ajumako:

A. No, except Morgan.”

Such answers expose the hollowness in the explanation of the respondents that they had no adult royal to ascend the Omanhene’s stool at a certain point in time.  The truth of the matter as borne out by the evidence and found by the trial tribunal is that the petitioners had by their valour lead the Ajumakoman to a number of victorious wars and rules as Omanhene of the state, while the respondents family have from time immemorial been associated with and occupied the Odikro stool of Gomoa Pomadze.

Thus it was put to the 2nd respondent in cross-examination:

“Q.  I put it to you that name Apata Kofi has been associated with the Pomadze stool without question from time immemorial.

A. That is so”.

Earlier the 2nd respondent had been asked:

“Q.  Krampah IX made you Odikro of Pomadze? Because you swore the oath of allegiance to him?

A. Yes”.

And significantly enough, the oath he swore before Krampah IX, and all his predecessors took the same oath, was the petitioner’s family oath of “Krampah Fida” and not the Apata Kofis' oath.  The 2nd respondent was made to concede this in cross-examination thus:

“Q.   And you swore by the Great Oath of Krampah Fida?

A. Yes”.

Another point worth noting is that the 2nd respondent who at time of his installation as Omanhene was a gazetted Odikro of Gomoa Pomadze, tried unsuccessful to explain his bizarre move for the paramount stool by alleging that he abdicated as Odikro before this installation as Omanhene.  But there is no evidence of any such abdication.  And worse of all, he himself cannot even tell whether he notified the Government of his abdication.  He was cross-examined on his alleged abdication as follows:

“Q.  As Odikro of Pomadze you were gazetted?

A.    Yes.

Q.    Has your abdication been gazetted.

A.    I haven’t seen it.

Q.    Did you notify the Government of your abdication from Pomadze.

A.    I can’t tell”.

Now abdication is a matter of evidence.  In other words, there must be evidence to establish that the 2nd respondent did indeed abdicate.  And if he himself does not even know whether he informed the Government of his alleged abdication, and since there was no evidence from him nor any witness as to how the abdication was made, the obvious conclusion is that there was no abdication.  From the totality of the case, it is therefore clearly evident that the respondents attempt to claim the Omanhene status is not only bristled with naked incongruities but punctuated by the sacred virtues of our custom.

Accordingly, the judgment of the Judicial Committee of the Central Regional House of Chiefs cannot be faulted.  And consequently the National House erred in setting it aside, the appeal is allowed, the judgement of the National house of Chiefs set aside, and in its place, the judgment of the Judicial Committee of the Central Regional House of Chiefs is restored.

(JUSTICE G.K. ACQUAH)

JUSTICE OF THE SUPREME COURT

ATUGUBA, J.S.C:  

I concur in the allowance of this appeal but on different grounds as to some of the issues involved in this case.   I agree that the respondent gambled with pleas of res judicata and rightly lost as to them for the full reasons given by my brother Acquah, J.S.C.

But res judicata aside, there was abundant evidence, the significance of which was not caught by the trial judicial committee of the Central Regional House of Chiefs.  It is significant that the appellant’s family’s stool derived its oath “Krampah Fida” from the Bobikuma war and came into the limelight as from that war and other subsequent ones.  It is the respondent’s contention that the appellant’s family became rulers of the State of Gomoa Ajumako as a result of events associated with that Bobikuma war and thereafter.  Before then, their assertion is that their family owned the Gomoa Ajumako Stool.  The appellant of course stoutly denies this.

However, despite the conflicting traditional histories of both sides, a discernible significant area of broad agreement between them exits on record.

At page 95 of the Record of Appeal appears the following pertinent and revealing cross-examination of the 2nd respondent/appellant/respondent, by the appellant’s Counsel.

Between lines 1 to 8, it is stated:

“Q.  You alleged that during the reign of Apata Kofi I there was a war between the Gomoa Ajumakos and Asikumas?

A.     Yes.

Q.     The Omanhene could not go to war so he selected Krampah and gave him the sword of state to go and fight?

A.     Yes.

Q.     This Krampah died during the war?

A.      Yes”

Then between lines 13 to 16 appears the following:

“Q.    So Krampah Junior returned with the sword?

A.      Yes, together with the rest of the forces.

Q.      They won the war?

A.      Yes”

Further down between lines 23 to 38 appears the following:

“Q.     I put it to you that because Apata Kofi I disappointed the Oman by failing to lead them to war, the Oman decided to make him Omanhene immediately he returned (e.s.).  The “he” here of course refers to Krampah).

A.      That is not so.

Q.      You know the people can destool you for refusing or failing to lead them in breach of oath?

A.      Yes.

Q.     So I put it to you that by failing to lead his people to war, Apata Kofi I thereby surrendered his position as Omanhene.

A.      That is not correct

Q.      The Omanhene stool at Ajumako has never been Apata Kofi's Stool?

A.      It was his.

Q.      Pomadze was founded by Apata Kofi?

A.       Yes. It was his village.

Q.       And the stool of Pomadze was also founded by Apata Kofi?

A.       It was the Omanhene stool which he took to Pomadze for safe keeping". (e.s)

In exhibit 4, the late Nana Nyamful Krampah IX then Omanhene of Gomoa Ajumako (of the appellant’s family) stated as follows:

"In Apata Kofi's reign, the Ashanti wars began and he invited Krampah who was affluent to lead the Gomoa Ajumako people in the war. Krampah I died in battle at Bobikuma. His place was taken by his younger brother Krampah Kuma. It is by the death of Krampah I in the war that arose the Gomoa Ajumako Oath Krampah Fida: and in recompense Apata Kofi gave the sword as a gift to Krampah Kuma and so the Gomoa Ajumako people resolved and served the Krampahs' as their Kings. And Apata Kofi's status was lowered to that of Odikro of Pomadze". (e.s.)

At page 98 of the Record, there is also this pertinent testimony of the 2nd Respondent/appellant/respondent:

“Q.  You admit that the Omanhene sword is still in the possession of the Petitioner’s family?

A.     Yes.

Q.     And the Krampah stool is still with them?

A.      Yes.

Q.     And you brought the Apata Kofi stool from Pomadze to Ajumako?

A.     Yes.

Q.     What Stool does the present Odikro of Pomadze occupy?

A.      The Odikro Stool which is different from the Omanhene Stool. (es)

Q.      So you sat on Odikro Stool when you were Apata Kofi of Pomadze.

A.      Yes.

The principle enunciated in ADJEIBI-KOJO V. BONSIE & ANOR. (1958) 3 W.A.L.R 257 at 260 does not debar a finding in favour of a party where the traditional evidence on a matter is fairly reconcilable and consistent.

IN DARKO v. BRAKO (1982-83) GLR 345 S.C., it was held at page 351 that:

Once a royal, always a royal. And unless a royal takes positive steps to renounce his royal blood, or does an act which in law, could result in his and his descendants being debarred from the stool, and the appropriate steps are taken to debar him he remains a royal all his life". (e.s).

It was also held in AGYAKOMA v. OPUNI [1987-88]1 GLR 47 S.C. at 49 that:

“…. accepting a sub-stool was no renunciation of a royal birth right which was sealed by the possession of royal blood".

In DARKO v. BRAKO, supra, it was held that non-ascension to a Stool for 150 years was no bar to the appellant's family claim thereto.  On the facts of that case that was justified since the appellant's family had produced 5 occupants of that stool previously and had not been barred from ascension thereto.

But as the quotation supra from this same DARKO v. BRAKO shows, a renunciation or debarment can occasion loss of royalty. The facts of this case, the essentials of which I have set out, supra, show clearly that the respondents' family was the original owner of the Gomoa Ajumako Stool but lost the same to the appellant's family by acts of renunciation and divestiture in favour of the appellant's family.  A constitutional change had therefore taken place and a new dynasty of the appellant's family was substituted for that of the respondents' family.

It follows that the plea of minority put forward by the respondents to explain away the said constitutional change and which strangely lay in respect of ascension to the Gomoa Ajumako Stool but not in respect of multiple ascensions (14 in number) to the Pomadze Stool of the respondents, cannot hold.

A less spectacular constitutional change took place in respect of the Yendi Skin and was upheld by this Court.  In IN RE YENDI SKIN AFFAIRS; YAKUBU II V. ABDULAI (NO.2) (1984-86) 2 GLR 239 at 252 the Court stated; “There was abundant evidence before the Ollennu Committee that notwithstanding soothsaying, the elders managed to rotate the succession from one house to the other.  How it was done never came out in the evidence; may be it is one of the several secrets which were never disclosed.  The stark evidence, however, is that from the period 1845 to 1945, the skin rotated from one house to the other.

Tamakloe in his Brief History of Dagomba People gives a rational explanation which might well result in rotation.  He says that very often when the soothsayers are invited they often mentioned the names of minor chiefs whereupon the soothsayers were dismissed.  Then nocturnal meetings were held by the elders to choose one as the paramount chief whom they probably knew had a blameless character a thing which they had kept secret until the day is fixed. This may well be the answer to the mystery of succession during the 100 years.  It gives credit to the native intelligence of the Dagomba elders …”

Consequently at page 255, the Court stated:

"We would order that

(1) the rotation system must be scrupulously observed ..."

It is significant that in a petition signed by 32 out of the 54 chiefs of Gomoa Ajumako dated 22nd August 1935, (see exhibit 6) they stated in paragraphs 4 to 6 as follows:

“4.  THAT originally the occupants of the Paramount Stool of the Ajumako State were chosen from a family called ODANDAN Family in the Gomoa Ajumako State.

5.   THAT there is another family called AMOAKWA family not in anyway related to the said ODADAN Family.

6.  THAT in the course of history the line of succession was altered: and instead of ODADAN Family, the occupants of the Paramount Stool of Gomoa Ajumako were selected from the AMUAKWA family aforesaid”. (e.s)

The Record of appeal clearly establishes the fact that the Amuakwa family referred to in this petition is the appellant's family.  The said petition however seeks to account for the fact that "in the course of history the line of succession was altered" on the basis of the minority theory. This theory I have earlier, by reference to excerpts from the record, demonstrated to be one which will require a feat of mental gymnastics to accept.

The established constitutional amendment to the rulership of the Gomoa Ajumako State cannot be reversed by some isolated, challenged, and controversial acts of purported reascension to the Gomoa Ajumako Stool by the respondent's family. While a further constitutional amendment to the prevailing constitutional order under the dynasty of the appellant’s family is not impossible, it has not yet been, on the facts effected.

For these reasons I would also allow this appeal.

(JUSTICE W. A. ATUGUBA)

JUSTICE OF THE SUPREME COURT

SOPHIA A.B. AKUFFO, J.S.C. 

I have had the pleasure of reading beforehand, the opinion of my learned brother Acquah J.S.C. and I am in full agreement that this Appeal should succeed, for the reasons stated therein and for the following reasons.

The National House of Chiefs, in arriving at its decision, relied heavily upon Exhibit 4 herein.  This was the testimony given by Nana Nyamful Krampah IX, on 13th September 1968, before the Gomoa Ajumako Stool Affairs Committee in the matter of Nana Apata Kofi XIV, as Odikro of Pomadze v. Nana Nyamful Krampah IX as Omanhene of Gomoa Ajumako. Nananom compared and contrasted this testimony with that of the Appellant herein.  They then arrived at the conclusion that, although both pieces of evidence were intended to trace the history and antecedents of the Appellant’s family in relation to the Ajumako paramount stool, yet, the two contradicted each other and therefore, cancelled each other out.  The National House of Chiefs then went on to hold that Nana Nyamful Krampah IX was:—

"A higher and better speaker of truth ... Whose truthfulness and sincerity alone must have made him a winsome friend of the angels above ...”

Strangely enough, however, of this salutary and divinely truthful testimony, Nananom chose to be swayed by only a minuscule portion, which was to the effect that:—

"Our ancestress was called Gomoaba. The first king was Apata Kofi. In Apata Kofi's reign, the Ashanti wars began and he invited Krampah who was affluent to lead the Gomoa Ajumako people in the war.  Krampah I died in battle at Bobikuma”.

What the National House of Chiefs seems to have chosen to overlook, was the equally important part of Krampah IX's evidence to the effect that, after Krampah I died in battle:

"His place was taken by his younger brother Krampah Kuma. It is by the death of Krampah I in the war that arose the Gomoa Ajumako Oath Krampah Fida: and in recompense Apata Kofi gave the sword to Krampah Kuma and so the Gomoa Ajumako people resolved and served the Krampah's as their Kings. And Kofi's status was lowered to that of Odikro of Pomadze". (emphasis mine)

Thus, assuming that the evidence in Exhibit 4 is to be preferred to that of Appellant, then, in my view, it must be looked at in its entirety. It is quite clear that this evidence of Krampah IX did not in any way advance or establish the claims of the Respondents. If anything, it rather reinforced the Odikro status of the 2nd Respondent and his family.

As has been aptly noted by my learned brother Acquah, in his opinion herein, it is clear from the evidence that since the time of Krampah I, the Apata Kofi's have been Odikro's of Pomadze, swearing oaths of allegiance to the Krampah's (with, the exception of Kweku Benyin who had been destooled after his occupancy of the paramount stool had been hotly contested by the Appellant's family). Indeed, both the 2nd Respondent and his

predecessor, upon their installation as Odikro of Pomadze, swore the oath of allegiance to Krampah IX. The 2nd Respondent did so as Apata Kofi XIV.

Furthermore, during the presentation of the Appellant's case before the Central Regional House of Chiefs, various stool regalia, were produced and traditional rituals and practices referred to, which, according to the Appellants had been originated by one Krampah or the other.  The Respondents never seriously challenged these claims of origination.  Additionally, the evidence is clear that, at all material times, there was an Apata Kofi occupying the Pomadze Stool, the 2nd Respondent having been the 14th. Yet it was the case of the Respondents that they had allowed the Krampah's to sit on the Ajumako Stool only because all the eligible persons in their family were minors.

All in all, how the occupant of a subordinate stool, whose family, according to the evidence, shares no family or ritual ties with the long line of the paramount stool occupants, can have the right to ascend the paramount stool by rotation, or otherwise, beats all logic and tradition.  Certainly there was no evidence to establish this as the customary usage and practice of Gomoa Ajumako.  In my view, therefore, the conclusion of the National House of Chiefs is unsupported by the totality of the evidence and the same must be reversed.

(JUSTICE SOPHIA A.B. AKUFFO)

JUSTICE OF THE SUPREME COURT

COUNSEL

Mr. Ahenkorah for Appellants.

Miss Shilla Mintah holding Dr. Seth Twum's brief for Respondents