IN THE SUPERIOR COURT OF
JUDICATURE
IN THE SUPREME COURT
ACCRA – A.D. 2018
IN THE MATTER OF: BIMBILLA
NA, SALIFU DAWUNI (SUBSTITUTED
BY SAGNARIGU LANA SHANI
AZUMAH), JUO REGENT,
OSMAN MAHAMA VRS ANDANI DASANA
(SUBSTITUTED BY NYELINBORGU NAA
YAKUBU ANDANI DASANA) AZUMAH
NATOGMA CHIEFTAINCY
APPEAL NO. J2/01/2017 23RD MAY,
2018
CORAM:
ANSAH, JSC (PRESIDING)
YEBOAH, JSC BAFFOE-BONNIE, JSC
APPAU, JSC PWAMANG, JSC
Chieftaincy - Judicial Committee
- National House of Chiefs -
Whether persons have risen to
the ultimate Bimbilla paramount
Skin without passing through the
kingship skins of Dakpam and
Nakpa. - Whether the 2nd
Petitioner is the sole authority
to nominate a candidate for
enskinment as Bimbilla Na -
Whether 1st and 2nd petitioners
had no capacities to file the
petition. On the paramount issue
HEADNOTES
Following the death in 1999 of
the Paramount Chief of Bimbilla
Traditional Area, Na Abarika
Atta, a dispute arose between
the parties herein as to who was
the rightful successor to the
throne. Bimbilla skin rotates
between two gates, the Bangyili
and Gbugmayili gates. Na
Abarika, the late chief was from
the Bangyili gate so it was the
turn of the Gbugmayilli gate to
provide a candidate for
enskinment as Bimbilla Na. As
stated above, following the
death of the last Bimbilla Na it
fell to Gbumagyili gate to
present an occupant of the skin
and the 1st Petitioner
who was the incumbent Nakpa Na
and the 1st Defendant
who was a royal and also hailed
from the Gbugmayili family
expressed interest to be
nominated and enskinned as
Bimbilla Na. When the kingmakers
met to consider who would become
the next Bimbilla Na, 1st
petitioner was nominated by Juo
Regent, the 2nd petitioner, who
is the head of the kingmakers of
the Bimbilla skin. However, the
eligibility of 1st petitioner to
mount the Skin was challenged by
the acting Kpatihi Na, the 2nd
defendant, who is a member of
the council of kingmakers. He
contended that the 1st
petitioner was not of the right
lineage and did not qualify to
be nominated. 2nd defendant
supported 1st defendant who was
nominated by the elders of
Gbumagyili family to become the
next Bimbilla Na A majority of
the kingmakers went along with
2nd defendant in supported of
the 1st defendant. The
kingmakers were unable to arrive
at a consensus and it ended up
that both candidates were
enskinned on different dates as
Bimbilla Nas -
HELD :- We have examined the evidence and are
satisfied that the finding by
the Judicial Committee of the
Northern Regional House of
Chiefs which was affirmed by the
Judicial Committee of the
National House of Chiefs to the
effect that the 1st defendant
hailed from the appropriate
family and lineage and was
validly nominated, selected and
enskinned Bimbilla Na in
accordance with Nanum custom and
usage is supported by the
evidence and the documents on
the record. We according endorse
that finding.
STATUTES REFERRED TO IN JUDGMENT
CHIEFTAINCY ACT, 2008 Act
759 Section 36 (2)
Evidence Act, 1975 (NRCD
323), Section 26
Constitution of Ghana, 1992,
Article 277
CASES REFERRED TO IN JUDGMENT
Republic v Military
Tribunal; Ex parte Ofosu Amaah
[1976] 2 GLR 5
Achoro & Anor v Akanfela & Anor
[1996-97] SCGLR 209
Attorney-General v Faroe
Atlantic Co Ltd [2005-2006]
SCGLR 271.
In Re Suhyen Stool; Wiredu
& Obenewaa v Agyei [2005-2006]
SCGLR 424.
B.K. Adama (Subt by) Issah
Bukari v Yakubu Seidu
[2005-2006] SCGLR 1088, at page
1100
BOOKS REFERRED TO IN JUDGMENT
Black’s Law Dictionary, 9th
edition,
published in the Journal
of Legal Pluralism article by
Peter Shainik in 1987
DELIVERING THE LEADING JUDGMENT
PWAMANG, JSC:-
COUNSEL.
THADDEUS SORY WITH HIM ALI
JUAN JAGIARA FOR THE
PETITIONERS/ APPELLANTS/
APPELLANTS.
MOHAMMED ALHASSAN FOR THE
RESPONDENT/ RESPONDENTS/
RESPONDENTS
PWAMANG, JSC:-
This is an appeal by the
Petitioners/Appellants/Appellants
from the judgment of the
Judicial Committee of the
National House of Chiefs,
Kumasi, delivered on the 8th
October, 2014 which affirmed
that of the Judicial Committee
of the Northern Regional House
of Chiefs. In this judgment the
parties shall bear the
descriptions they bore in the
trial Judicial Committee.
BACKGROUND.
There is not much controversy
about the events that gave rise
to this chieftaincy dispute but
the correct provisions of Nanum
customary law on ascension to
the paramount Skin of Bimbilla
in the Northern Region and the
lineage of the 1st petitioner
are matters in high contention
in the case.
Following the death in 1999 of
the Paramount Chief of Bimbilla
Traditional Area, Na Abarika
Atta, a dispute arose between
the parties herein as to who was
the rightful successor to the
throne. The Bimbilla skin
rotates between two gates, the
Bangyili and Gbugmayili gates.
Na Abarika, the late chief was
from the Bangyili gate so it was
the turn of the Gbugmayilli gate
to provide a candidate for
enskinment as Bimbilla Na. By
the constitutional structure of
Nanum each gate or family
controls a number of chiefly
skins in hierarchical order of
authority with the highest skin
for Bangyili being Dakpam and
that of Gbumagyili being Nakpa.
In Nanum the Skin which is
higher than these two kingship
skins is the Bimbilla paramount
Skin, the ultimate in Nanum. A
royal from Bangyili who rises
from the lower skins controlled
by his family up to Dakpam is
most likely to occupy the
Bimbilla Skin when a vacancy
occurs and it is the turn of his
family to provide an occupant
for the paramount Skin. In same
way, a royal of Gbumagyili who
rises from skins of lesser
authority in his family to the
kingship skin of Nakpa is most
likely to ascend to the Bimbilla
paramount skin if a vacancy
occurs and it is the turn of his
family to occupy it. But there
have been instances in Nanum
history where persons have risen
to the ultimate Bimbilla
paramount Skin without passing
through the kingship skins of
Dakpam and Nakpa.
As stated above, following the
death of the last Bimbilla Na it
fell to Gbumagyili gate to
present an occupant of the skin
and the 1st
Petitioner who was the incumbent
Nakpa Na and the 1st
Defendant who was a royal and
also hailed from the Gbugmayili
family expressed interest to be
nominated and enskinned as
Bimbilla Na. When the kingmakers
met to consider who would become
the next Bimbilla Na, 1st
petitioner was nominated by Juo
Regent, the 2nd petitioner, who
is the head of the kingmakers of
the Bimbilla skin. However, the
eligibility of 1st petitioner to
mount the Skin was challenged by
the acting Kpatihi Na, the 2nd
defendant, who is a member of
the council of kingmakers. He
contended that the 1st
petitioner was not of the right
lineage and did not qualify to
be nominated. 2nd defendant
supported 1st defendant who was
nominated by the elders of
Gbumagyili family to become the
next Bimbilla Na. A majority of
the kingmakers went along with
2nd defendant in supported of
the 1st defendant. The
kingmakers were unable to arrive
at a consensus and it ended up
that both candidates were
enskinned on different dates as
Bimbilla Nas. According 1st
petitioner's evidence-in-chief,
it was the Regent of the late
Bimbilla Na Abarika who handed
all the items related to the
Skin of Bimbilla to him but 2nd
petitioner said he sent Jillo Na
and Jolle Na to perform the
enskinment rites on 1st
petitioner. 1st defendant was
enkinned by 2nd defendant who,
according to defendants, is the
proper authority under Nanum
custom to enskin a Bimbilla Na.
Before the enskinment, a chiefly
title of Kamkapuya Na was
conferred on the 1st defendant
because according to the
defendants, under Nanum
customary law, where a royal who
was qualified to be made
Bimbilla Na had no previous
chiefly title, one would be
conferred on him by the elders.
It is after the conferment of
the chiefly title that he could
be enskinned Bimbilla Na. This
led to a dispute as to which of
the enskinments was valid. The
petitioners first initiated some
proceedings in the Nanumba
Traditional Council in 2003 but
those proceedings were quashed
by certiorari in the High Court,
Tamale on 26th January, 2004 at
the instance of the 1st
defendant. Thereafter, the
petitioners filed the petition
that has resulted in this appeal
at the Judicial Committee of the
Northern Regional House of
Chiefs on 10th
February 2004 and claimed
against the defendants the
following reliefs:
i. Declaration that the 1st
Petitioner is the Bimbilla Na
duly nominated and enskinned in
accordance with Nanum custom.
ii. Declaration that the 2nd
Petitioner is the sole authority
to nominate a candidate for
enskinment as Bimbilla Na
iii. Declaration that the
purported nomination of the 1st
Respondent by the 2nd
Respondent and subsequent
purported enskinment of the 1st
Respondent as Bimbilla Na are
nullities.
iv. Declaration that the 2nd
Respondent is not a Kingmaker
within the Nanum custom and is
also not a regent of Kpatihi Na.
At the close of pleadings the
following issues were set down
for resolution:
i. Whether or not each of the
Petitioners had the capacity to
sue at the time of this
petition.
ii. Whether or not 2nd
Petitioner alone has the
authority to nominate a
candidate to the Bimbilla skin
for enskinment.
iii. Whether or not Nakpa is the
sole skin by which the
Gbugmayili gate ascends to the
Bimbilla skin.
iv. Whether or not a person who
is not a son or grandson of
Bimbilla-Na can become
Bimbilla-Na
v. Whether or not the Kpatihi
family is the sole family
possessed of the regalia for
enskinment of Bimbilla-Na
vi. Whether or not the Kpatihi
is the sole family to perform
enskinment rites to make a
candidate Bimbilla-Na
vii. Whether or not the
Petitioners are entitled to
their reliefs
viii. Whether or not the 1st
defendant is qualified to be
nominated and enskinned as
Bimbilla-Na
ix. Whether or not the 1st
defendant is duly nominated and
enskinned as Bimbilla Na.
x. Whether or not the 1st
defendant occupied any skin
customarily recognized by Nanum
custom, within the hierarchy of
chiefs in Gbugmayili gate to
contest for the paramount skin
of Nanumba as Bimbilla Na.
xi. Whether or not Nakpa is the
only skin gate of the Gbugmayili
gate.?
xii. Whether or not Nakpa is a
skin gate of the Gbugmayili
gate?
xiii. Whether or not the 2nd
defendant was at the time when
he interfered with the
nomination and enskinment
processes of the 1st
defendant as Bimbilla Na
enskinned as regent of Kpatihi.
xiv. Whether or Kampakuya is a
gate recognized by Nanumba
custom for the purpose of
contesting for the paramount
skin of Bimbilla.
After a hearing, the Judicial
Committee of the Northern
Regional House of Chiefs
delivered its judgment on 13th
March 2012, unanimously
dismissing the claims of the
petitioners. They held among
others that both 1st and 2nd
petitioners had no capacities to
file the petition. On the
paramount issue of whether it
was the 1st
petitioner or the 1st
defendant who was the validly
nominated, selected and
enskinned Bimbilla Na, the trial
judicial committee found in
favour of the 1st defendant.
On 16th of March
2012, the petitioners appealed
against the judgment of the
Judicial Committee of the
Northern Regional House of
Chiefs to the Judicial Council
of the National House of Chiefs
but save that the appellate
Judicial Committee held that 2nd
petitioner had capacity to file
the petition, they dismissed the
appeal. The petitioners have
appealed to this court from the
judgment of the Judicial
Committee of the National House
of Chiefs on nine grounds as
follows;
THE GROUNDS OF APPEAL:
a. The Judicial Committee of the
National House of Chiefs erred
in law and occasioned a grave
miscarriage of justice when it
relied on customary laws and
practices of other areas to
justify the validity of the 1st
respondent’s nomination or
selection as the Bimbilla-Na
when evidence had been led that
1st petitioner was
validly enskinned under the
peculiar customary law,
tradition and practice of the
people of Nanum.
b. The Judicial Committee of the
National House of Chiefs erred
in law and occasioned a grave
miscarriage of justice when it
upheld the decision of Judicial
Committee of the Northern
Regional House of Chiefs that 1st
appellant was ineligible or
unqualified under Nanum custom
because he is a great grandson
on the matrilineal side when
evidence was led to establish
that he was customarily
enskinned as chief of Bimbilla
in accordance with Nanum custom.
c. The Judicial Committee of the
National House of Chiefs erred
in law and occasioned a grave
miscarriage of justice when they
held that the customary
nomination and enskinment of 1st
appellant as Chief of was
undertaken by a minority of the
Kingmakers and was in
contravention with modern
democratic principles and
therefore void.
d. That the Judicial Committee of the
National House of Chiefs
misapplied the customary law of
Nanum and occasioned a
miscarriage of justice when it
held that succession to the
Bimbilla Skin by occupants of
Nakpa or Dakpam is not automatic
but open to competition when
there is no evidence that 1st
respondent is qualified under
Nanum custom to be nominated and
enskinned the chief of Bimbilla.
e. That the Judicial Committee of the
national House of Chiefs erred
in law and occasioned a
miscarriage of justice when it
upheld the decision of the
Judicial Committee of the
Northern Regional House of
Chiefs that the occupant of
Nakpa and or Dakpam is not a
prerequisite to be enskinned as
chief of Bimbilla when there is
evidence that under the rotation
system of Bimbilla 1st
appellant was duly qualified
under Nanum customary law and
tradition by virtue of having
occupied Nakpa, the most senior
gate of the Gbugmayilli gate
upon the death of the chief.
f. The Judicial Committee of the
National House of Chiefs erred
in law and occasioned a
miscarriage of justice when it
upheld the Judicial Committee of
the Northern Regional House
Judgment that it is the
responsibility of the
Gbugmayilli gate to present a
candidate to the Kingmakers when
there is evidence that under the
custom and tradition of Nanum 1st
respondent is not is not
qualified.
g. That the Judicial Committee of the
National House of Chiefs erred
and occasioned a substantial
miscarriage of justice when it
misconstrued Section 36 (2) of
Act 759 to justify the adoption
of the proceedings by the
Northern Regional House of
Chiefs following the occurrence
of a vacancy prior to the
Judgment of the Judicial
committee of the Northern
Regional House of Chiefs.
h. That the Judicial Committee of the
National House of Chiefs erred
and occasioned a miscarriage of
justice when it upheld the
Judicial Committee of the
Northern Regional House of
Chief’s judgment that 1st
appellant is not qualified as
Chief of Bimbilla by virtue of
being a descendant of the
matrilineal family when there is
evidence that the said Judicial
Committee in a judgment in
another suit ruled that the 1st
appellant is validly enskinned
as chief of Nakpam by virtue of
being descendant of the
patrilineal family.
i. That the judgment of the Judicial
Committee of the National House
of Chiefs cannot be supported by
the evidence on Record.
Petitioners indicated in their notice
of appeal that they would file
additional grounds of appeal but
none was filed.
CONSIDERATION OF THE APPEAL
The petitioners argued all the grounds
of appeal. Ground G of the
appeal is a point of law which
if upheld would dispose of the
appeal so we shall commence our
consideration of the appeal with
that ground.
The petitioners contend
that the trial Judicial
Committee misconstrued
Section 36(2) of the Chieftaincy
Act, 2008 (Act 759) and
thereby committed an error of
law which makes their judgment a
nullity so there was no judgment
to appeal against. The section
provides as follows;
"(2) Where the proceedings of a
Judicial Committee have not been
completed before the filling of
a vacancy, the Judicial
Committee as reconstituted
after the filling of the vacancy
shall adopt the proceedings of
the Judicial Committee as
previously constituted in the
cause or matter in question."
From the record, one of
the panel members of the
Judicial Committee of the
Northern Regional House of
Chiefs was reported to have
passed on after the defendants
called their last witness on
25th August, 2011. On that day
the panel member, the late
Kpembe-Wura Alhaji Ibrahim
Haruna, participated in the
proceedings wherein after the
defendants announced the closure
of their case the Committee
directed the parties to file
their addresses. The committee's
next sitting was 8th December,
2011 and in the presence of the
parties and their lawyers
Wasipe-Wura Mumuni Yakubu II was
substituted for the deceased
panellist without any
objection. By then both counsel
had not yet filled their
addresses so the Committee set
new dates for them to do so.
Subsequently, the addresses were
filed and judgment delivered.
The objection that was taken by
the petitioners unsuccessfully
before the appellate Judicial
Committee which they have
repeated before us is that,
proceedings in the case were
closed when defendants closed
their case and since S. 36(2)
of Act 759 talks of adoption
of proceedings that had not
closed, the trial Judicial
Committee had no power to adopt
the proceedings in this case. So
according to the petitioners,
proceedings in a case end with
the closure of the defendant's
case. In our view, this
interpretation of the word
"proceedings" in the Act is
wrong.
The Black’s Law
Dictionary, 9th
edition, page 1324 defines
proceedings as "the regular and
orderly progression of a law
suit including all acts and
events between the time of
commencement and entry of
judgment". This, in our view,
is the meaning of the word
"proceedings" as used in
Section 36(2) of the Chieftaincy
Act, 2008 (Act 759).
Consequently, since judgment had
not been delivered in the case,
the proceedings were not closed
and the trial Judicial Committee
acted within the law in adopting
the proceedings. See also the
case of Republic v Military
Tribunal; Ex parte Ofosu Amaah
[1976] 2 GLR 5. Ground G of
the appeal is therefore
dismissed.
However, before we
consider the appeal on the
merits, the defendants in their
statement of case raised an
issue about the want of capacity
of the 1st petitioner in respect
of the appeal in this court. We
are at a loss as to the reason
for this point by defendant. The
petitioners have not argued any
ground of appeal challenging the
judgment of the Judicial
Committee of the National House
of Chiefs which affirmed the
holding by the trial Judicial
Committee that 1st petitioner
had no capacity to bring the
petition. In any case, the 2nd
petitioner has capacity and even
though the 1st petitioner and
1st defendant who are the
protagonists in this drama have
died, the declaratory reliefs
endorsed on the petition are
capable of being determined by
the court. The usefulness of a
final resolution of the matters
arising in this case is
underscored by the fact that,
apart from clarifying Nanum
customary law on ascension to
the Bimbilla Skin, the status
according to Nanum customary law
of the 1st petitioner and 1st
defendant at the time of their
deaths will influence questions
of succession to the Bimbilla
Skin going forward.
Now moving to the other grounds of
appeal, we notice that they are
inter-connected and even the
petitioner argued some of them
together so we shall do
likewise. For ease of analysis
we shall consider grounds (a)
and (c) together as they both
relate to the correct position
of Nanum custom and usage
regarding nomination, selection
and skinment of Bimbilla Na.
Grounds (b), (d), (e) and (h)
concern eligibility and
qualification of a candidate,
especially 1st petitioner, to be
enskinned Bimbilla Na and they
shall be taken together. The
omnibus ground which is (i) will
be considered along as we deal
with each group of grounds while
ground (g) on the qualification
of 1st defendant to be nominated
for the position of Bimbilla Na
will be determined last.
In the case of Achoro & Anor
v Akanfela & Anor
[1996-97] SCGLR 209, Acquah
JSC, as he then was, delivering
the judgment of the Supreme
Court in a chieftaincy appeal
from a judgment of the Judicial
Committee of the National House
of Chiefs affirming that of the
then Upper Regional House of
Chiefs had this to say, at p.
214 of the Report,:
"Now in an appeal against
findings of facts to a second
appellate court like this court,
where the lower appellate court
had concurred in the findings of
the trial court, especially in a
dispute, the subject-matter of
which is peculiarly within the
bosom of the two lower courts or
tribunals, this court will not
interfere with the concurrent
findings of the lower courts
unless it is established with
absolute clearness that some
blunder or error resulting in a
miscarriage of justice, is
apparent in the way in which the
lower tribunals dealt with the
facts."
This appeal is against
concurrent findings and it
appears from their statement of
case that the petitioners
accepted the legal burden on
them to displace those findings
and have therefore made a
number of salient arguments and
invited the court to overturn
the concurrent findings. As an
appeal is a rehearing, we are
duty bound to comb through the
whole record of appeal and
satisfy ourselves that the
concurrent findings by the two
lower Judicial Committees are
without clear blunders and
errors leading to a miscarriage
of justice.
The case of the
petitioners on grounds (a) and
(c) is that at Nanum customary
law, the Juo Na, that is the
head of the kingmakers of the
Bimbilla skin, is the alfa and
omega in matters of nomination,
selection and enskinment of
Bimbilla Na, and that in their
case he nominated, selected and
enskinned the 1st appellant so
there can be no valid challenge
of his status as Bimbilla Na.
The Juo Regent himself in his
testimony said that he is
everything when it comes to
occupation of the paramount Skin
of Bimbilla. The defendants
countered that there was no such
customary law in Nanum that made
the Juo Na the sole determiner
of who becomes Bimbilla Na. We
shall first consider the claim
by petitioners that it is the
Juo Na who has authority to
nominate a candidate for
enskinment as Bimbilla Na. In
this regard, apart from the
evidence that was led, we need
to examine two documents that
were referred to by both the
trial and appellate Judicial
Committees and commented upon by
the parties. One was the minutes
of the 1983 proceedings of the
Bimbilla Traditional Council
held in connection with the
selection of Bimbilla Na Abarika
whose passing led to this
litigation. The other document
was a research article by Peter
Shainik published in the
Journal of Legal Pluralism
in 1987. Though these two
document were considered by the
lower Judicial Committees, the
defendants in their statement of
case drew attention to the fact
that they were not tendered in
evidence. It was not necessary
to have those documents tendered
in evidence before the Judicial
Committee could use them in the
determination of the case. It is
provided by Section 31(3)(b)
of Act 759 as follows;
"A judicial committee......may
take cognisance of matters which
are so notorious or so clearly
established that evidence of
their existence is not
necessary."
There is no doubt about
the existence of the two
documents so the Judicial
Committees were right in taking
cognisance of them. The only
condition is that, before a
Judicial Committee takes
cognisance of a matter not
raised in pleadings or tendered
in evidence, it must make it
known to the parties and afford
them opportunity to comment on
it as has been done in this
case.
In the evidence of 2nd
petitioner and PW2 they
testified to the effect that
candidates wishing to occupy a
vacant Bimbilla Skin are
required to approach the Juo Na
to be considered for nomination.
They gave the impression that
the family whose turn it was to
occupy the skin had no role at
all to play in the nomination.
The defendants testified to the
contrary and insisted that it is
the family whose turn it was to
occupy the skin which nominates
the candidate for selection by
the kingmakers whose head is the
Juo Na. Both lower Judicial
Committees found in favour of
the defendants but in this
appeal the petitioners contend
that the Judicial Committees
applied rules of customary law
found to exist in some other
communities but Nanum has a
peculiar custom that vested the
powers of nomination, selection
and enskinment in the Juo Na. We
do not think Nanum custom and
usage is different because if we
take guidance from Nanum
customary practice as exhibited
in the 1983 proceedings, we find
a situation where the Regent of
Bimbilla made a request to the
newly selected Bimbilla Na at
the time to enskin him as Nakpa
Na. The Bimbilla Na who, it is
common ground between the
parties has sole authority to
decide who becomes Nakpa Na,
nevertheless referred the
request to the Regent's family
for them to deliberate upon
before approaching him to
consider the request. We shall
reproduce the 1983 proceedings
at length for their effect;
" At this point, the
Juo-Na reminded members that due
to his old age he was likely to
forget some aspects of the
customs. He therefore asked
members to remind him of
mistakes. But the Jilo-Na
replied that there were no
mistakes, and that the Regents
request was in accordance with
the laid down custom, and the
new Paramount Chief should try
to settle it amicably. The
Langri-Na at the juncture,
supported the Kpatihi-Na’s
suggestion that the new
Bimbilla-Na be consulted on the
matter. The Juo-Na approved the
Kpatihis-Na’s suggestion and
asked the Langiri-Na, Jilo-Na,
Kpatihi-Na and the Ag. Registrar
to see the new Bimbilla-Na for
his comments on the Regent’s
request. The new Bimbilla-Na was
met at his lodging place in
chambers and the matter was put
before him. The Dakpa-Na now
Bimbilla-Na also confirmed the
Regent’s request but remarked
that he Regent has got uncles
who are older that he is, and it
might be because of the uncles
(Karaga-Lana, Jua-Na and
Suga-Na) that he was asking for
the Nakpa skins. He therefore
referred the issue to the
Gbugmayili gate so that they
could settle it amongst the
members of the family. The
Kpatihi-Na supported the new
Bimbilla-Na’s stand and asked
the Langri-Na, Jilo-Na and
himself to go back and meet the
Regent and his uncles. The new
Bimbilla-Na advised that they
followed the gate system, not
only from the Divisional status
but from the lesser skins in
order of seniority. The
Langiri-Na then asked for
permission for members to meet
the Regent and his uncles.
Members met the Regent and his
uncles – Jua-Na, Musah Abdulai,
and Suga-Na, Azim Abudulai. The
Langiri-Na delivered the message
to the family and the Jua-Na
after consulting the rest
accepted their suggestion and
approved the Bimbilla-Na’s
message."
The Regent and his uncles
message was delivered, the
Juo-Na reminded members that,
that was why he said that it was
not their duty to select other
chiefs to the Paramount chief.
He thanked members for their
fair play in the issue and that
the decision from the
Gbugmayilli gate will help to
bring peace to Nanum."
So if the Bimbilla Na who
is the overlord with sole
authority to select a chief
would defer to the applicant's
family, Gbumagyili, to approve
the request of the Regent to be
enskinned Nakpa Na, then in our
opinion the petitioners could
not be right in saying that
Nanum custom and usage is
peculiar and it allows the Juo
Na to nominate a candidate from
the family whose turn it was to
occupy the Bimbilla Skin without
recourse to the elders of that
family. We are therefore unable
to disturb the concurrent
findings of the two lower
Judicial Committees that it is
the family which nominates a
candidate for selection to be
enskinned Bimbilla Na.
The next point is the
selection of the nominated
candidate under Nanum custom
which the petitioners again
claimed the kingmakers have no
say and it is the Juo Na alone
who selects. On this matter the
petitioners evidence was that
all the other kingmakers are
messengers of the Juo Na. They
initially even denied that the
number of kingmakers of the
Bimbilla paramount Skin are nine
but after intense cross
examination it was establish
that there are nine kingmakers.
Though the Juo Na is head of the
council of kingmakers, the
evidence and documents that were
considered by the Judicial
Committees do not support
petitioner's claim of a one man
show existing at Nanum customary
law. In the 1983 proceedings of
the kingmakers, though it was
the Juo Na who proposed the
candidature of Dakpam Na to the
kingmakers, the record states
that the Kpatihi Na and
Langiri-Na supported the
candidate and the rest of the
members unanimously endorsed
him. In our understanding, that
record, part of which has been
reproduced above, portrays a
consideration by the members of
the council of kingmakers of the
candidature of the person
presented by the Juo Na and not
a dictation by him to the other
kingmakers. Therefore, the
learning from that record is
that the Juo Na presides at the
meeting of the kingmakers but he
is not everything in the
selection process and that the
other members of the council of
kingmakers have a say as to who
is finally selected.
The third aspect of making
someone a Bimbilla Na is the act
of eskinment. Here too, the
parties took different
positions; petitioners
maintaining their case that that
the Juo Na is everything and he
determines which customary
official does the enkinment on
his behalf. The defendants
position was that it is the
Kpatihi Na who is the official
with authority to enskin a
Bimbilla Na. On this issue,
petitioners witness PW1, who is
from Kpatihi family, under cross
examination said that it is
Kpatihi Na who enskins Bimbilla
Na but the Regalia used in the
enskinment is kept by Juo Na and
he hands it to Kpatihi Na for
the enskinment. This is what
transpired during the cross
examination;
Q. From what you are
saying Juo Na nominates Bimbilla
Na and Kpatihi Na performs the
enskinment rites, is that so
A. It is true that Juo Na
nominates and the Regalia is
always with Juo Na who provides
it to Kpatihi who uses it during
the enskinment rites.
However, the testimonies
of the defendants was to the
effect that Kpatihi Na is the
custodian of the regalia used to
enskin Bimbilla Na and that Juo
Na is not even permitted under
Nanum custom to sight that
regalia. 2nd defendant, who is
the acting Kpatihi Na, stated in
his evidence that according to
Nanum customary practice, after
the council of kingmakers have
selected the candidate to become
Bimbilla Na, the Juo Na
announces the name of the
candidate and sends to inform
him. After that announcement the
Juo Na departs Bimbilla to his
village and the rites of
enskinment are done by the
Kpatihi Na who is the custodian
of the regalia. DW3 who is a
former Juo Regent in his
evidence stated categorically
that while he acted as Juo
Regent no regalia of Bimbilla Na
was handed to him and he did not
hand any to his successor. DW2,
chief of Wulensi also testified
that the regalia of Bimbilla Na
is kept by the Kpatihi Na.
Petitioners' witness PW2, the
chief drum beater of Bimbilla
Na, testified that the regalia
of Bimbila Na is left with the
Juo Na but he also said
something interesting in his
evidence in chief. Hear him;
"The origin of Kpatihi in the
Nanum system of chiefship stems
from the fact that the 1st
Bimbilla Na was a warrior so
there are people who follow him
to wage war. Kpatihi is one of
such people who follow the
Bimbilla Na during war to
perform duties such as carrying
umbrellas, cushions, etc". One
wonders what other accoutrements
of Bimbilla Na were given to the
Kpatihi Na to carry when the
chief was waging wars? But this
is how Peter Schainik described
the Kpatihi Na at page 311 of
his article under reference;
" The Kpatihi Naa has a
very special position. My
information indicates that his
function of ‘skinner’ – a
ceremonialist who enskins chiefs
on behalf of the Bimbilla Naa –
was only recently introduced
into Nanun, probably under the
influence of Dagbon. But the
Kpatihi family is also believed
to have come with Nmantambu in
his retinue. At any rate the
present Kpatihi Naa Ponadooo,
enskinned by members of his own
family (the only dignitaries to
enskin themselves) on 4th
January 1983, had more influence
on the procedures of the
Bimbilla Naa’s funeral than any
of the electors."
This writing confirms the
Kpatihi Na as a key kingmaker
and a substantive customary
office holder who plays a
distinctive role of investiture
in Nanum custom and usage unlike
the manner the petitioners
sought to portray him as someone
who performs duties at the
pleasure of the Juo Na. In the
circumstances, we find no
justification to reverse the
findings of the two lower
judicial committees that it is
the Kpatihi Na who has custody
of Bimbilla Na's regalia and he
enskins Bimbilla Na and not the
Juo Na.
The sum effect of the
above analysis is that, in our
opinion the two lower Judicial
Committees were right in
rejecting the case of
petitioners that 1st petitioner
was validly nominated, selected
and enskinned Bimbilla Na in
accordance with Nanum custom and
usage.
In respect of grounds (b),
(d), (e) and (h), the
petitioners contended in one
vein that the documentary
records and publication on Nanum
custom and usage that the two
lower Judicial Committees were
referred to and which they
considered in their judgment are
to the effect that when a
vacancy occurs on the Bimbilla
paramount Skin and it is the
turn of Gbugmayili to occupy it,
the incumbent occupant of Nakpa
Skin had automatic right to
ascend to it. Where it is the
turn of Bangyili, the incumbent
occupant of the Dakpam Skin had
automatic right of ascension.
However, in another vein they
admitted the evidence led by
the defendants of instances
where incumbent occupants of the
two kingship skins were bypassed
in the selection of candidates
to occupy the paramount Bimbilla
Skin. The petitioners say those
instances were special
circumstances which constituted
exceptions to the rule as far as
Nanum customary law on ascension
to the Bimbilla Skin is
concerned. The documents relied
on by the petitioners are the
1983 record of the proceedings
of the Bimbilla Traditional
Council for the selection of Na
Abarika, and the article by
Peter Shainik published in the
Journal of Legal Pluralism
in 1987 both of which we have
already referred to. Even a
casual reading of the 1983
proceedings would show that they
covered a situation where there
was unanimity among the
kingmakers on the nomination and
selection of Na Abarika who was
the incumbent Dakpam Na. No
question of his lineage and
qualification arose so that
record cannot offer specific
direction as to what the custom
is where such issues are raised
against an incumbent of a
kingship skin as we have in this
case. So, for answers as to what
the customary law provides where
the lineage and qualification of
an incumbent Nakpa Na or Dakpam
Na are raised, we have to look
elsewhere beyond the 1983
record.
In their statement of case
the petitioners relied on Peter
Shainik's article in support of
their case of automatic
selection of Nakpa Na but as the
defendants have submitted in
their statement of case, Peter
Shainik never stated that his
research revelled a rule of
automatic ascension to the
Bimbilla Skin by occupants of
the kingship Skins. The part of
the article relied upon by the
petitioners appearing at page
312 of the journal states as
follows;
"Competition for the
paramount naam of Bimbilla has
become so reglemented that
the most likely person to
win is the incumbent of the naam
of Nakpaa, in the case of
Gbugmayili,and of the naam of
Dakpam for Banyili. The
chieftaincies of Nakpaa and
Dakpam are thus ‘gates’ to the
naam of Bimbilla. For example,
Bimbilla Naa Dasana (1959-1981)
from Gbugmayili was the Nakpaa
Naa before he became the
Bimbilla Naa. The present
Bimbilla Naa Abarika (enskinned
1983) from Banyili was the
Dakpam Naa before he ascended to
Bimbilla. But this has not
always been the case."
(emphasis supplied).
The writer used the words
"most likely" and that cannot be
stretched to mean "automatic".
In fact, the writer was quick to
add a proviso that it has not
always been the case in Nanum
history.
This text therefore
corroborates the evidence of the
defendants of instances of
bypassing an incumbent Nakpa Na
or Dakpam Na which for us means
that whereas an incumbent Nakpa
Na or Dakpam Na, depending on
which Gate's turn it was to
occupy a vacant Bimbilla Skin,
has a high probability of being
made the Bimbilla Na, he does
not have an automatic right to
the skin. The evidence of 2nd
petitioner, the Juo Regent
himself was that; "After the
death of Bimbilla Naa Abarika,
Nakpa Naa, Bakpaba Naa, Jua Naa
showed interest to become
Bimbilla Naa. They are all from
Gbumagyili." If ascension to the
Bimbilla Skin were automatic for
Nakpa Na, then the other
contestants would have known and
not expressed interest. From the
evidence it appears to us that
where there are circumstances
considered justifiable, the
kingmakers may bypass an
incumbent Nakpa Na or Dakpam Na
as the case may be.
In answer to the issue of
justifiable circumstances, the
petitioners have argued that in
the case of 1st petitioner there
were no special circumstances to
justify bypassing him but the
defendants say there were. They
contended that 1st petitioner
was not of the right lineage he
being a maternal great grandson.
And that, according to Nanum
custom and usage, great
grandsons even if they are of
paternal lineage do not
qualified to ascend the Bimbilla
Skin for it is only sons and
grandsons of a Bimbilla Na that
quailify for nomination as
Binbilla Na. The petitioners
have countered the issue of
lineage and qualification of 1st
petitioner on two grounds.
Firstly, they submitted that on
the basis of the principle of
estoppel stated in Section 26
of the Evidence Act, 1975 (NRCD
323), the Gbumagyili family
which raised the issue of 1st
petitioner's non-eligibility are
prevented from relying on it to
disqualify him. Secondly, the
petitioners submitted that even
if the family were not estopped,
1st petitioner adduced evidence
to prove that he was a paternal
great grandson and no Nanum
customary law rule was
established during the trial
that disqualifies a great
grandson from occupying the
paramount Bimbilla Skin.
The estoppel argument as
we understand it is that when
1st petitioner was being
enskinned Nakpa Na some 14 years
earlier, no one in Gbugmayili
challenged his eligibility on
grounds of being a great
grandson and a maternal one at
that. That since becoming a
Nakpa Na implied that he was
automatically qualified to
become Bimbilla Na, by not
challenging 1st petitioner, they
made him to believe that he was
qualified to be made Bimbilla Na
so his eligibility by lineage
and qualification are presumed
to be true. The Section provides
as follows;
"26. Estoppel by own statement
or conduct
Except as otherwise provided by
law, including a rule of equity,
when a party has, by that
party’s own statement, act or
omission, intentionally and
deliberately caused or permitted
another person to believe a
thing to be true and to act upon
that belief, the truth of the
thing shall be conclusively
presumed against that party or
the successors in interest of
that party in proceedings
between
(a) that party or the
successors in interest of that
party, and
(b) the relying person or
successors in interest of that
person."
In the first place, the section
says "except as otherwise
provided by law," meaning the
estoppel does not apply in all
cases. It ought to be noted that
it is the Constitution of
Ghana, 1992, Article 277
thereof that requires that for
someone to become a chief he
must hail from the appropriate
family and lineage. Being a
requirement of the Constitution
it cannot be defeated by the
principles of estoppel. This was
the decision of this court in
the case of Attorney-General
v Faroe Atlantic Co Ltd
[2005-2006] SCGLR 271.
Consequently, the petitioner
cannot say that he is relived
from proving his lineage because
of principles of estoppel.
In any event, Section
26 of NRCD 323 requires that
the conduct relied upon to found
the estoppel should amount to
"intentionally and deliberately
caused or permitted another to
believe a thing to be true.." It
has not been proved by the
petitioners that at the time 1st
petitioner was about to be made
Nakpa Na, Gbugmayili family
intentionally and deliberately
caused or permitted him to
belief that he was a paternal
grandson and was eligible to
mount the Bimbilla Skin. At that
time there was no issue of
ascending to the Bimbilla Skin
so the argument of petitioners
on Section 26 of NRCD 323
is far fetched and was rightly
dismissed by the appellate
Judicial Committee. See the case
of In Re Suhyen Stool; Wiredu
& Obenewaa v Agyei [2005-2006]
SCGLR 424.
Petitioners also attempted
in this last appeal to rely on
estoppel per rem judicatem on
the basis of a judgment
delivered in 1990 by the
Judicial Committee of the
Northern Regional House of
Chiefs in a chieftaincy cause
involving a challenge to the
enskinment of 1st petitioner as
Nakpa Na. As we have already
explained, all estoppels are
inapplicable with respect to the
lineage of 1st petitioner.
Besides, where a party intends
to rely on estoppel per rem
judicatem as part of his case he
is required by the rules of
procedure and judicial decisions
to pleaded it and to tender the
pleadings, proceedings and
judgment in evidence. That way
the opponent will be able to
counter any claims that he is
prevented from leading evidence
contrary to what was held in the
judgment. In this case, the
judgment was not pleaded and was
not tendered in evidence at the
trial. No reference was made to
it in the judgments of the two
lower Judicial Committees and as
to how it found itself into the
record of appeal before us, only
the Registrar of the Judicial
Committee of the National House
of Chiefs can answer.
That notwithstanding, the
petitioner claimed that by
Article 11 of the Constitution,
1992, decisions of courts
are part of the laws of Ghana
and can be relied upon in
judicial proceedings. Article
11 Clauses (1) and (2)
provide as follows;
" 1) The laws of Ghana shall
comprise-
(a) this Constitution;
(b) enactments made by or under
the authority of the Parliament
established by this
Constitution;
(c) any Orders, Rules and
Regulations made by any person
or authority under a power
conferred by this Constitution.
(d) the existing law; and
(e) the common law.
(2) The common law of Ghana
shall comprise the rules of law
generally known as the common
law, the rules generally known
as the doctrines of equity and
the rules of customary law
including those determined by
the Superior Court of
Judicature."
The decision sought to be
referred to in this case is not
a determination of a question of
customary law by a superior
court. The Judicial Committee of
the Northern Regional House of
Chiefs is an inferior tribunal
so its decisions on customary
law do not automatically become
part of the customary law of
Ghana. What is more, the part of
the 1990 decision of the
Judicial Committee of the
Northern Regional House of
Chiefs sought to be relied on by
the petitioners was not in
respect of eligibility of 1st
petitioner to ascend to the
Bimbilla paramount Skin which is
the issue we are concerned with
in this case. We accordingly set
aside petitioners references to
the 1990 judgment of the
Judicial Committee of the
Northern Regional House of
Chiefs and proceed to examine
the evidence from both sides in
respect of the lineage and
qualification of 1st petitioner
to occupy the Bimbilla paramount
Skin.
The petitioners contended
that they led evidence to prove
that 1st petitioner was a
paternal great grandson and that
the two lower Judicial
Committees erred in finding
against them on that issue. In
their statement of case they
referred only to the following
exchange under cross examination
of 1st petitioner as the
evidence of proof of his
lineage;
Q. Your only claim to
membership of Gbumagyili is
through the mother of Lepu Na
Dawuni, Nabi Kasua.
A. Not true, it is because
my grandfather Nabiyon Dramani
and my grandmother Kasua were
all from Gbumagyili.
Q. Nabiyon Dramani never
married Nabiyon Kasua
A. Both of them married
each other.
However, in affirming the
finding of the trial Judicial
Committee that 1st petitioner
related to Gbumagyili only
through his matrilineal line,
the appellate Judicial Committee
relied on and considered the
testimony of 1st defendant which
was corroborated by the evidence
of 2nd defendant and DW4, whilst
the 1st petitioner's terse
testimony on this very material
issue was not supported in
anyway. In the face of the
direct challenge of 1st
petitioner's paternal connection
to Gbumagyili family which is
key to ascending a paternal
Skin, 1st petitioner ought to
have done more than rely on his
testimony alone. Petitioner has
argued that corroboration in
this case has not been made
mandatory by the law. While that
may be true, a tribunal of facts
in making findings has to weigh
the evidence of both parties and
where a party's case is capable
of corroboration but he chooses
to rely on his say so and does
not call evidence in support of
his testimony, he cannot, in the
absence of compelling reasons,
blame the trial tribunal if it
finds against him on the ground
that it believed the
corroborated case of his
opponent. Since there was
evidence upon which the two
lower Judicial Committees made
their concurrent findings in
favour of defendants we are
unable, in the absence of
compelling reasons, to interfere
with those concurrent finding
that 1st petitioner related to
Gbumagyili only through his
matrilineal line and not his
paternal lineage.
With regard to whether
paternal great grandsons are
qualified to mount the Bimbilla
paramount Skin or not,
petitioners said that they can.
It was the 1st petitioner and
PW2 who stated in their evidence
that under Nanum custom and
usage great grandsons qualify to
ascend the Bimbilla Skin but
under cross examination they
were challenged and asked to
provide instances in Nanum
history when a great grandson
became Bimbilla Na. They were
not able to mention even one
instance. The case of the
defendants on this issue was
supported by the evidence of 1st
and 2nd defendants and that of
DW4. The trial Judicial
Committee found as a rule of
Nanum customary law that great
grandsons of a Bimbilla Na do
not qualify to ascend the
Bimbilla paramount Skin and that
only paternal sons and grandsons
of a Bimbilla Na qualify. This
finding of Nanum customary law
was affirmed by the Judicial
Committee of the National House
of Chiefs. We have not been
given any justifiable grounds to
disturb those concurrent
findings.
We finally deal with
ground (g) of the appeal where
the petitioner is challenging
the finding of the two lower
Judicial Committees that the 1st
defendant was qualified under
the custom and usage of Nanum to
be nominated by Gbumagyili
family for selection as Bimbilla
Na. One leg of petitioner's
argument on this ground is that
1st defendant was not incumbent
Nakpa Na so he was not qualified
to mount the Bimbilla Skin on
behalf of Gbumagyili gate. This
argument cannot stand because we
have already endorsed the
finding of the two lower
Judicial Committees that a royal
did not necessarily have to be a
Nakpa Na or Dakpam Na to qualify
to become Bimbilla Na. Another
leg of their case on this ground
is that under Nanum custom and
tradition a non title holder
could not occupy the Bimbilla
Skin and though in the past
princes could be given titles in
order to qualify them to occupy
vacant skins in Nanum, the
evidence adduced showed that it
was done only in relation to
lesser skins and not the
paramount Bimbilla Skin. Finally
on this ground petitioner stated
that the title Kamkapuya Na that
was conferred on 1st defendant
is found only in Dagbon and does
not exist in Nanum. This is how
Nananom of the Judicial
Committee of the National House
of Chiefs answered the above
issues raised by the
petitioners;
"“The answers given by the
1st Appellant,
particularly, on the fact that
certain titles did not exist in
Nanum but could be conferred
on a Prince, and could even
be borrowed from Dagbon
corroborates the evidence of the
Respondents on this issue. The
evidence of the Respondents and
other evidence on record tend to
support the finding of the
committee that titles like
“Vo-Na” and Kampakuya are titles
that could be conferred on
Princes in the Nanum area.
There was also sufficient
evidence to establish that some
of those who occupied Bimbilla
skin did not previously occupy
lesser skins before their
enskinment. And it was on this
category of candidates that such
titles were conferred before
being enskinned as Bimbilla Na."
We have reviewed the
evidence on this issue and agree
with the conclusion reached by
Nananom that at Nanum customary
law it is permissible to confer
the kingship title Kamkapuya Na
on a prince in order for him to
ascend to the Bimbilla Skin.
Even if it were true that the
practice in the past was limited
to lesser skins as claimed by
the petitioners, it would still
be permissible to apply it to
the paramount Bimbilla Skin
because as was said by Date-Bah
JSC in the chieftaincy appeal
case of B.K. Adama (Subt by)
Issah Bukari v Yakubu Seidu
[2005-2006] SCGLR 1088, at page
1100;
"..it was nevertheless
legitimate for the National
House of Chiefs to develop Wala
customary law further through
interpretation. Interstitial
gap-filling through constructive
and purposive interpretation of
customary practice is a
legitimate part of their
judicial function and we are not
willing to reverse their
decision on this issue. Indeed,
this Court should positively
endorse this decision in the
interest of certainty."
We have examined the
evidence and are satisfied that
the finding by the Judicial
Committee of the Northern
Regional House of Chiefs which
was affirmed by the Judicial
Committee of the National House
of Chiefs to the effect that the
1st defendant hailed from the
appropriate family and lineage
and was validly nominated,
selected and enskinned Bimbilla
Na in accordance with Nanum
custom and usage is supported by
the evidence and the documents
on the record. We according
endorse that finding.
CONCLUSION.
In conclusion, the
petitioners have not succeeded
in convincing us that the
Judicial Committee of the
National House of Chiefs
committed any blunders or errors
in their evaluation of the
evidence or application of the
law so as to warrant a reversal
of their judgment. We find no
merit in this appeal and same is
dismissed in its entirety.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
Y.APPAU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
THADDEUS SORY WITH HIM ALI
JUAN JAGIARA FOR THE
PETITIONERS/ APPELLANTS/
APPELLANTS.
MOHAMMED ALHASSAN FOR THE
RESPONDENTS/ RESPONDENTS/
RESPONDENTS. |