Practice and procedure – Appeal – Notice of appeal – Notice not specifying that leave to appeal granted – Whether fatal – Supreme Court Rules 1970 (CI 13), Form 1.

Practice and procedure – Appeal – Grounds of appeal – Grounds vague and omitting particulars of misdirection and errors of law – Grounds defective – Appellant not to be heard on grounds – Supreme Court Rules 1970 (CI 13) rr 5 & 6(4).

Practice and procedure – Appeal – Non-compliance with rules – Grounds of appeal not argued in statement of case – Supreme Court may examine grounds in light of evidence on record to determine arguable grounds – Supreme Court Rules 1970 (CI 13) r 6(7).

Chieftaincy – Cause or matter affecting chieftaincy –Stool property – Claim for joint ownership and account of stool properties – Claimant not claiming properties – Whether a cause or matter affecting chieftaincy.

Chieftaincy – Traditional council – Destoolment – Traditional council has no jurisdiction to destool or order destoolment of chief.

Chieftaincy – Chief – Enstoolment – Rotation, claim of – Whether a cause or matter affecting chieftaincy –Proof of rotation.

The plaintiffs, representing a section of a stool family sued another section of the stool family in the judicial committee of the Oguaa Traditional Council. They sought destoolment of the 1st defendant and a declaration that the stool belonged to both sections of the stool family jointly that succession to the stool rotated between the two sections by custom and that the stool properties belonged jointly to the two sections. They therefore sought an order for account of the stool’s landed properties and payment of a moiety of the revenue to the plaintiffs’ section.

The judicial committee gave judgment for the defendants and the plaintiffs appealed to the Central Region House of Chiefs. While the appeal was pending, the plaintiffs sued the defendants unsuccessfully at the High Court, Cape Coast for the same reliefs but pursued their appeal in the Central Region House of Chiefs, which allowed the appeal. The defendants then appealed successfully to the National House of Chiefs. The judicial committee of the National House of Chiefs held, inter alia, that the issue of rotation was not a cause or matter affecting chieftaincy since no dispute arose for such declaration. The plaintiffs appealed to the Supreme Court on four grounds of appeal, the last indicating that additional grounds would be filed later but none appeared to have been filed. The first ground was that “the judgment is bad in law.” It turned out that the matters raised in the appellants’ statement of case differed from the grounds of appeal. The Supreme Court therefore granted them leave to file a supplementary statement of case if they so wished but they did not appear to have complied.

At the hearing of the appeal in the Supreme Court, counsel for the defendants submitted that the notice of appeal did not indicate the grant of leave to appeal neither did it comply with Form 1 in the First Schedule to the Supreme Court Rules 1970 (CI 13); besides the alleged particulars of misdirection or error of law were not set out. It was contended further that the service address of the appellant as well as the name and service address of the appellants’ counsel were omitted in the notice of appeal.

Held: (1) Since the record of proceedings contained evidence that the plaintiffs had obtained leave to appeal to the Supreme Court the omission to state that fact in the notice was not fatal. The names of the appellants’ counsel were easily ascertainable from the record and the objection became a sheer technicality, which ought not to preclude a determination of the appeal on the merits.

(2) The Supreme Court Rules 1970 (CI 13) r 5 prohibited vague grounds of appeal. The ground that the judgment was bad in law was vague and violated the rule.

(3) Under rule 6(4) of CI 13, the appellant was required to set out concisely and under distinct heads his grounds of appeal, numbered seriatim, neither argumentative nor narrative and indicating the stage of the proceedings at which the ground of law, if any, was first raised. Besides violation of the rule, the plaintiffs had not demonstrated in what respect the judgment was bad. The plaintiffs would however not be heard on misdirection or errors of law not particularised in the notice of appeal.

(4) As the proceedings stood, the grounds of appeal were not supported by the statement of case neither did the statement of case deal with the issues at stake. Although the appellants did not take advantage of r 6(7) of CI 13 to amend the grounds of appeal, the court would examine the grounds and the evidence on record to determine arguable grounds.

(5) The claim for joint ownership of the stool properties and account were not matters affecting chieftaincy, as the plaintiffs were not

seeking recovery of those properties. Those claims were justiciable in the ordinary courts, which the High Court had dismissed. The plaintiffs not having appealed, these matters were closed.

(6) The dismissal of the plaintiffs’ claim of rotation by the National House of Chiefs on the ground that it was not a cause or matter affecting chieftaincy because the cause had not arisen for such a declaration was in error. The claim of rotation was based on the claim for destoolment; if the judicial committee declared the 1st defendant destooled, the need would arise for the declaration on rotation. Osei v Sirebour II [1984-86] 1 GLR 588, SC referred to.

(7) The mere fact that a stool family comprised two or more sections was no basis for holding that succession to the stool was rotatory. There should be clear evidence of the custom, in the absence of which the Ebusuapanyin (the head of family) or the queenmother (or obaapanyin) could nominate a suitable candidate from either section for enstoolment. The mere fact that on an occasion the occupant was from the plaintiffs’ section was no basis for rotation.

(8) The tribunals below came to the right conclusion that there was no evidence in support of the claim for destoolment. Even if there was, those tribunals had no power to destool or order destoolment. The power to destool a chief was a customary right vested in the kingmakers who alone had the power to make and install or to destool a chief.

Cases referred to:

Osei v Sirebour II, [1984-86] 1 GLR 588, SC.

Republic v Court of Appeal, ex parte Ekuntan II [1989-90] 2 GLR 168, SC.

Sarkodee v Boateng [1982-83] GLR 715, SC.

APPEAL from the National House of Chiefs to the Supreme Court.

T G Kumi for the appellants.

James Ahenkorah for the respondents.

AMPIAH JSC. This appeal is from a decision of the judicial committee of the National House of Chiefs. The decision is dated 20 November 1986.

Sometime in August 1975, the plaintiffs-appellants who will be referred to in this judgment simply as ‘plaintiffs’, representing the Dominaso-Moree section of the Nsona stool family of Nkanfoa initiated proceedings at the judicial committee of the Oguaa Traditional Council against the defendants-respondents, also referred to in this judgment simply as the ‘defendants’, representing the Effutu section of the Nsona stool family of Nkanfoa, claiming:

“(1) An order for the destoolment of the 1 defendant herein.

(2) Declaration that the Nsona stool of Nkanfoa belongs jointly to the plaintiffs’ section and the 1st defendants’ section of the Nsona stool family of Nkanfoa.

(3) Declaration that the nomination, election, and installation of candidates to the Nkanfoa Nsona stool is rotatory amongst the two sections of the Nsona stool family according to Nkanfoa native custom and tradition.

(4) Declaration that the Nkanfoa Nsona stool properties, movable and immovable belong jointly to the said two sections of the stool family.

(5) An order for an account of Nkanfoa stool landed properties from the time 1st defendant was enstooled, and an order for the payment of half-portion thereof to the plaintiffs as joint owners.”

The 1st plaintiff sued as the head of his section of the Nsona family and the 2nd plaintiff as an elder of the same section. The 1st defendant was sued as the incumbent occupant of the Nkanfoa stool and the 2nd defendant as the head of his section of the family. In the course of the trial, the 1st plaintiff died and was duly substituted. The 2nd defendant died on 18/9/84 and was also substituted. Later in the proceedings on appeal, the 1st defendant also died and was substituted.

The judicial committee of the Oguaa Traditional Council heard the matter and gave judgment on 20/9/76. The plaintiffs appealed against the decision to the Central Region House of Chiefs. While the appeal to the Central Region House of Chiefs was pending, the plaintiffs took out a writ of summons against the defendants at the High Court, Cape Coast claiming:

“(1) Declaration that the Nsona stool family of Nkanfoa is made up of plaintiffs’ section and defendants’ section.

(2) Declaration that the plaintiffs’ section and defendants’ section of the Nsona family of Nkanfoa are joint owners of the stool lands of Nkanfoa.

(3) An order calling upon the defendants to render accounts of the proceeds from Nkanfoa stool lands and the payment of half-portion to the plaintiffs as joint owners thereof.”

A fourth claim for an interim injunction was dealt with as an interlocutory matter. The learned judge found on the evidence that:

 “(1) The plaintiffs and the defendants belong to the same Nsona family of Nkanfoa.

(2) The plaintiffs and defendants belong to different sections but within the same Nsona family.

(3) The 1st defendant is the present Odikro or Chief of Nkanfoa. (4) The 2nd defendant is the head of his section.

(5) Until his death the 1st plaintiff was the head of his section.

The plaintiffs had brought a similar action against the defendants before the Oguaa Traditional Council. The plaintiffs are dissatisfied with the said judgment and have appealed to the Central Region House of Chiefs. The appeal is still pending.”

He also made the following observation.

“Although there appears to be some dispute, it is a fact that for some time past, the occupants to the Nkanfoa stool were chosen from either of the two sections of the Nsona family of Nkanfoa.”

In conclusion, he held that the judgment of the judicial committee was final as it determined the rights of the plaintiffs and the defendants in that litigation in spite of the fact that an appeal against that decision was actually pending. He dismissed the plaintiffs’ claim.

The plaintiffs however pursued their appeal before the Central Region House of Chiefs and on 7/8/85, the judicial committee of the House allowed the appeal. The defendants appealed against the decision to the National House of Chiefs. On 20/11/86, the judicial committee of the National House of Chiefs allowed the appeal. The plaintiffs have appealed against that decision; it is that appeal which is now before us.

At the hearing of the appeal counsel for the defendants attacked the form and contents of the notice of appeal filed. He submitted that the notice did not show that leave had been obtained or that the notice had been filed in pursuance of leave. On the face of the notice this cannot be denied. There is evidence on record that the plaintiffs applied for leave to appeal to the Supreme Court and that on 16/6/88 leave was granted. I do not think the omission to state this in the notice is fatal.

Further counsel for the defendants submitted that the form of the notice did not comply with that set out in Form 1 of the 1st Schedule to the Supreme Court Rules 1970 (CI 13). No particulars of misdirection or error of law had been set out in the plaintiffs’ notice of appeal as required by the rules. Also, not included in the notice were the address for service of the appellant and the name and address for service of counsel for the appellant. The name and address of the appellants (the plaintiffs) are contained in the writ of summons and the name and address of counsel for the appellants (plaintiffs) are also contained in the notice. These persons are easily identifiable from the record. I would consider the failure to give these particulars as a mere technicality, which should not be used to preclude the plaintiffs from being heard on the merits of their appeal. The plaintiffs should however not be heard on the particulars of misdirection or of error of law if any, which they may like to put up unless notice of these particulars has been given.

Perhaps the more serious defect in the notice filed is the grounds of appeal filed. Under rule 6(4) of the Supreme Court Rule 1970 (CI 13), the appellant is required to set out concisely and under distinct heads, “the grounds upon which he intends to rely at the hearing of the appeal, without any argument or narrative and shall be numbered seriatim; and where a ground of appeal is one of law the appellant shall indicate the stage of the proceedings at which it was first raised.” The plaintiffs filed four grounds of appeal, the fourth only indicating that “additional grounds to be filed later.” We have not been told of any additional grounds filed since. The first ground is that “the judgment is bad in law.” The plaintiff has not demonstrated to this court what law makes the judgment bad. This ground is vague and general. Sub-rule 5 of rule 6 of CI 13 provides:

“(5) No ground of appeal which is vague or general in terms or discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of the evidence; and any ground of appeal or any part thereof which is not permitted under the provisions of this rule may be struck out by the Court on its own motion or on an application by the respondent.”

The most serious defect in this appeal is the inconsistent and conflicting statement of case filed by the plaintiffs. Nowhere in the statement do the plaintiffs dilate on the grounds of appeal filed. The matters raised in their statement of case are quite different from the grounds filed. The court however indulged and gave them the opportunity to file a supplementary statement of case if they so wished. I am not aware that any has been filed. As the proceedings stand at the moment, the grounds of appeal are not supported by the statement of case and, and the statement of case does not deal with the real issues at stake, counsel for the plaintiffs in the tribunal below, having conceded to some of the issues raised.

Rule 6(7) of CI 13 provides that the court:

“(a) may grant an appellant leave to amend the grounds of appeal upon such terms as the court may think just;

(b) shall not, in deciding the appeal, confine itself to the grounds set forth by the appellant nor shall the court be precluded from resting its decision on any ground not set forth by the appellant.”

The plaintiffs’ counsel has not taken advantage of this provision to amend his grounds of appeal. The court would however look at the totality and substance of the grounds of appeal together with the evidence before it and consider whether any other ground exists in this appeal.

The judicial committee of the National House of Chiefs set out clearly all the findings made by the tribunals below. It evaluated the evidence upon which these findings were made. With the concessions made by counsel, it seems there was little left for the tribunal to do.

With regard to the plaintiffs’ claim (1), the finding was that no evidence had been led to warrant the destoolment of the 1st defendant. All the three tribunals came to the same conclusion. I agree with the conclusion. Even if there has been evidence to support the charges, the tribunals as established by law, have no power to destool a chief or to make an order for his destoolment. The power to destool a chief is a customary right vested wholly in the kingmakers who alone have the power to make and unmake a chief customarily.

Claims 4 and 5 are not chieftaincy issues. The plaintiffs were not asking for recovery of these stool properties. These claims were justiciable by the ordinary courts of the land. I think that is why the plaintiffs decided to take a fresh action in the High Court. The High Court dismissed their claim. Without any further appeal, the plaintiffs’ claim on the land matters was closed. Counsel for the plaintiffs rightly conceded to this in the judicial committee of the National House of Chiefs. With regard to plaintiffs claim (2), I do not think the plaintiffs could quarrel with the conclusions of the chieftaincy tribunals and the High Court. The finding on this issue by all the tribunals was that the Nsona stool of Nkanfoa belongs jointly to the plaintiffs’ section and the defendants’ section of the Nsona stool family of Nkanfoa. None of the parties appealed against this holding. Consequently that remained the only proper declaration to be made on the plaintiffs’ claims.

The plaintiff’s claim 3 sought a declaration that succession to the stool was rotatory between the two sections of the family. The judicial committee of the National House of Chiefs ruled that that issue was not a cause or matter affecting chieftaincy since no occasion had arisen for asking for such a declaration. The judicial committee relied on the principle of Osei v Sirebour II [1984-86] 1 GLR 588, SC. I have not had the privilege of reading in full that decision. I am however not bound by that decision. It is clear that this declaration was being sought on the assumption that the plaintiffs’ claim 1 would be accepted. In other words, if the tribunal were competent to declare the 1st defendant destooled, then a situation would have arisen based on claim 2, to declare by whom the next chief was to be nominated, elected and installed.

By section 66(a) of the Chieftaincy Act 1971, “the nomination, election, appointment of any person as a chief or the claim of any person to be nominated, elected, appointed or installed as a chief” is a cause or matter affecting chieftaincy. I think however that both the judicial committees of the traditional council and the Regional House of Chiefs were correct in their ruling on the matter, although wrong in their reasoning. The mere fact that there exists in a stool family two or more sections, is no justification for holding that succession to the stool is rotatory. There must be a clear custom or practice to that effect. In the absence of such a clear custom or practice, the right to nominate a candidate for enstoolment resides in either the ebusuapanyin (the head of family) or the queenmother (or obaapanyin). Any of these two personalities could nominate a suitable candidate from any of the sections for enstoolment. Consequently, the mere fact that one Ekow Boafo from the plaintiffs’ section once occupied the stool, is no basis for holding that succession to the Nkanfoa stool was rotatory. As stated, the judicial committee of the National House of Chiefs was right in dismissing that claim even if for a different reason. The suggestion that the stool should rotate could only be taken as an advice to the two sections since this was likely to bring peace and unity to the stool family which had been found to be jointly owned by the two sections. This advice is however not binding on the parties.

Also recommended was the return of the old stool (now in the possession of the plaintiffs’ section) to the defendants’ section. There was no claim for this. Stools are sacred properties of the stool family. They are among the important possessions of the stool. Their place of custody is in the stool room. Since there was no claim for the recovery of the stool, the tribunals below were wrong in making any orders affecting it; only an advice could have been given.

In conclusion, I would dismiss the appeal.

FRANCOIS JSC. I agree.

AMUA-SEKYI JSC. I also agree.

AIKINS JSC. I have had the pleasure of reading the leading judgment of my learned brother Ampiah JSC and I agree that the appeal be dismissed. However, I would like to articulate one or two reasons that led me to that conclusion.

The plaintiffs in this case have asked for three declarations and two consequential orders namely,

An order for the destoolment of the 1st defendant;

(1)  Declaration that the Asona stool of Nkanfoa belongs jointly to plaintiffs’ section and the defendants’ section of the Nsona stool family of Nkanfoa;

(2)  Declaration that the nomination, election, and installation of candidates to the Nkanfoa Nsona stool is rotatory amongst the two sections of the Nsona stool family according to Nkanfoa native custom and tradition;

(3)  Declaration that the Nkanfoa Nsona stool properties, movable and immovable, belong jointly to the said two sections of the stool family; and

(4)  An order for an account of Nkanfoa stool landed properties from the time 1st defendant was enstooled, and the payment of half-portion thereof to the plaintiffs as joint owners.

The statement of claim does not disclose any hint that at the time of filing the claim there was any dispute pending between the parties in relation to the nomination, election, appointment or installation of any person from either of the two sections of the Nsona family as a chief, or that there was a claim of any such person to be nominated, elected or installed as a chief. Nor is there any allegation that the kingmakers (or some of them) of the family had preferred any charges against Nana Anafu VI, Chief of Nkanfoa. After tracing the traditional history of the plaintiffs and averring that succession to the Nkanfoa stool had rotated between the two sections of the Nsona stool family, the plaintiffs proceeded in paragraph 7 of their statement of claim as follows:

“The plaintiffs state that contrary to the above facts and the Nkanfoa native custom, the 1st defendant, in active connivance with and supported and encouraged by the 2nd defendant, has created a division between the two sections of the stool family, and has disposed of several portions of the stool lands without the knowledge and consent of plaintiffs section of family, and as all peaceful attempts by plaintiffs to get the defendants to conform to custom and tradition have failed, the plaintiffs seek an order for the destoolment of 1st defendant as Chief of Nkanfoa on these grounds:

‘(a) That 1st defendant has secretly and without the consent of plaintiffs disposed of and granted the following portions of Nkanfoa stool lands to the persons mentioned below, and has appropriated the proceeds therefrom to the exclusive use and enjoyment of defendants section of the stool family’;” (Emphasis supplied.)

Other grounds dealing with the creation of a new stool, return of the old stool, the conduct of the 1st defendant in public which, according to the plaintiffs, leaves much to be desired, and failure of defendants to render accounts of proceeds of sale of stool lands, were stated. The defendants denied most of the averments in the statement of claim, and put up a completely different traditional story. At the end of the trial the Oguaa Traditional Council declined to order the destoolment of the 1st defendant, and made other findings of fact and recommendations. The plaintiffs appealed to the Central Region House of Chiefs, Cape Coast, which upheld the decision of the traditional council that the 1st defendant could not be destooled because no customary charges had been preferred against him by his kingmakers. The Central Region House of Chiefs relied on Sarkodie v Boateng [1982-83] GLR 715, SC but overturned some of the findings and recommendations of the trial tribunal. The Central Regional House of Chiefs however, allowed the appeal and gave judgment for the plaintiffs. Dissatisfied with this judgment the defendants appealed to the National House of Chiefs. The National House allowed the appeal, and it is against this decision that the plaintiffs have come to this court.

The record of proceedings shows that some three years before judgment was delivered by the judicial committee of the Central Region House of Chiefs, the plaintiffs had taken the defendants to the High Court, Cape Coast for (a) declaration that the Nsona stool family of Nkanfoa was made up of plaintiffs’ section and defendants’ section; (b) a declaration that the plaintiffs’ section and defendants’ section of Nsona family of Nkanfoa were joint owners of