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Chieftaincy - Review - Judicial
Committee - National House of
Chiefs - Regional House of
Chiefs - Whether or not the
court was bias - Whether or not
there were fundamental and basic
errors of law and facts
committed by the Court, not
necessarily amounting to bias,
but causing a substantial
miscarriage of justice to the
applicants - whether by custom
the Jamasihene has the right to
take away the stool of Yonso
from the Bedomasi-Bretuo family
and give it to any other person
HEADNOTES
The processes culminating in
this review application began at
the Judicial Committee of the
Mampong Traditional Council
(JCMTC) where the
plaintiffs,herein referred to as
the applicants, sued the
defendants, herein referred to
as the respondents in a
chieftaincy matter. The JCMTC
dismissed the action by the
applicants. Not satisfied with
the decision by the JCMTC, the
applicants appealed to the
Judicial Committee of the
Ashanti Regional House of Chiefs
(JCARHC) which allowed the
appeal. The respondents also
appealed against the decision of
the JCARHC to the Judicial
Committee of the National House
of Chiefs (JCNHC) which
dismissed the appeal. The
respondents appealed against the
decision of the JCNHC to this
court which by a majority
decision allowed the appeal on
21st May 2014.
HELD :-
The nomination and election is
the prerogative of the Obaapanin
and the Kingmakers
respectively.” Yet the
Jamasihene did not follow this
time honoured custom and rather
selected the 1st
applicant as the person to
occupy the Yonso stool, without
regard to the Obaapanin and
stool elders of Yonso ? All the
core issues having been resolved
by the JCMTC, this court’s
endorsement thereof was not in
error. In conclusion, for
reasons set out above, there are
no exceptional circumstances to
warrant a review; the
application is accordingly
dismissed.
DISSENTING OPINION -
This court as the last court
whose decisions bind the lower
courts must be able to correct
its own errors if our attention
is drawn to same in cases in
which the circumstances warrant
that our review jurisdiction
should be exercised. I think
that in this case the majority
decision is clearly against the
custom and traditions governing
chieftaincy as an institution
and the error, which the
majority opinions, with due
respect, seeks to endorse should
be corrected for the custom to
prevail. With this, I dissent in
part from the majority decision
delivered by my able brother
Benin JSC.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Supreme Court Rules, 1996, C.I.
16.
Evidence Decree, 1975 (NRCD
323).
CASES REFERRED TO IN JUDGMENT
R. v. Gough (1993) AC 646;
R. v. Inner West London Coroner,
ex parte Dallaglio & Ors. (1994)
4 All ER 139;
Re Pinochet (1999) UK HL 1.
R. v. Justices of County Court
(1910) I.R. 271.
Locabail (UK) Ltd v. Bayfield
Properties Ltd (2000) QB 451
In re Medicaments and Related
Classes of Goods (No.2) (2001)
TLR 84
Metropolitan Properties Co. v.
Lannon (1968) 3 All ER 304
Republic v. High Court, Sekondi;
ex parte Abuna II and Others
(1992) 1 GLR 524 CA
Enrico Bernett v. ABSA Bank Ltd.
(2010) ZACC 28
Quartey v. Central Services Co.
Ltd. (1996-97) SCGLR 398,
R V Inner West London Coroner,
Ex Parte Dallagio &Ors [1994] 4
ALL ER 139
R v Gouch [1993] AC 646
Schandorf V Zeini& Others [1976]
2 GLR 418 CA
Kwaku v Boye [1987-88] 2 GLR 589
CA,
Afranie II v Quarcoo and Others
[1992] 2 GLR 561 SC
Mechanical Lloyd Assembly Plant
Ltd. v Nartey [1987-88] 2 GLR
598
Ababio and Others v Mensah &
Others No.2 [1989-90] I GLR 573
Re Kwao (Decd), Nartey v Armah&
Others [1989-90] 2 GLR 546
BOOKS REFERRED TO IN JUDGMENT
Oxford English Dictionary.
Black’s Law Dictionary, 9th
edition
BBC English Dictionary
Gold Coast Native Institutions
(New Impression) 1970 by J.E.
Casely Hayford
DELIVERING THE LEADING JUDGMENT
BENIN, JSC:
DISSENTING
ANIN-YEBOAH JSC:
COUNSEL
FRANCIS NKRUMAH ESQ. WITH HIM
AKUA SAFO FOR THE PLAINTIFFS/
APPELLANTS/
RESPONDENTS/APPLICANTS.
ASANTE KROBEA ESQ. WITH HIM
OWUSI SEKYERE FOR THE
DEFENDANTS/RESPONDENTS/
APPELLANTS/RESPONDENTS.
----------------------------------------------------------------------------------------------------------------
RULING
----------------------------------------------------------------------------------------------------------------
BENIN, JSC: (FOR THE MAJORITY
OPINION)
The processes culminating in
this review application began at
the Judicial Committee of the
Mampong Traditional Council
(JCMTC) where the
plaintiffs,herein referred to as
the applicants, sued the
defendants, herein referred to
as the respondents in a
chieftaincy matter. The JCMTC
dismissed the action by the
applicants. Not satisfied with
the decision by the JCMTC, the
applicants appealed to the
Judicial Committee of the
Ashanti Regional House of Chiefs
(JCARHC) which allowed the
appeal. The respondents also
appealed against the decision of
the JCARHC to the Judicial
Committee of the National House
of Chiefs (JCNHC) which
dismissed the appeal. The
respondents appealed against the
decision of the JCNHC to this
court which by a majority
decision allowed the appeal on
21st May 2014.
By the present application the
applicants are asking this court
to review its decision delivered
on 21st May 2014. The
applicants canvassed two grounds
and these are set out in
paragraph 3 at page 2 of the
accompanying statement of case
filed on 14th August
2014. They read:
(i)
bias and,
(ii)
other fundamental and basic
errors of law and facts
committed by the Court, not
necessarily amounting to bias,
but causing a substantial
miscarriage of justice to the
applicants.
Before proceeding with this
application, it is necessary to
recount the facts of the case.
The applicants sought these
reliefs against the respondents
at the JCMTC:
a)
A declaration that the
priviledge previously vested in
the Yonso Bedomasi-Bretuo family
to nominate, elect and install a
Yonsohene was validly abrogated
by Nana Adu Gyamfi Brobbey III
the then Jamasihene when the
said family rebelled against the
Jamasi stool and proclaimed
itself no longer subject to the
traditional authority of the
Jamasi stool.
b)
A declaration that Nana Yeboah
Kodie Asare II was lawfully
elevated to the status of
Yonsohene and Benkumhene of
Jamasi by Nana Adu Gyamfi
Brobbey III in the face of the
said rebellion and all customary
rites were duly performed to
seal the elevation.
c)
A declaration that the purported
nomination, election and
installation of one Francis Yaw
Adusei (the 8th
defendant) by the Yonso
Bedomasi-Bretuo family or any
other person as Yonsohene is
contrary to Ashanti custom and
usage and that the same is
therefore null and void.
d)
A declaration that Nana Oforiwaa
Amanfo, the second defendant
herein is an Obaapanin of Yonso
Bretuo-Bedomasi family and not
the queen mother of Yonso.
e)
An injunction to restrain the 2nd
and 8th defendants
from acting or holding
themselves out or allowing
themselves to be held out as the
queen mother and Chief of Yonso
respectively.
It was accepted that the
occupant of the stool of Yonso
has for several years owed
allegiance to the stool of
Jamasi. But as to whether the
Yonso stool was created by the
Jamasihene and whether the
occupancy of the said Yonso
stool was conferred on the
Bedomasi-Bretuo family of Yonso
by the Jamasihene were highly
disputed issues. It was also in
issue whether the Yonsohene who
also serves as the Benkumhene of
Jamasi Divisional Council had
rebelled against the Jamasi
stool, along with his family. It
was the applicants’ case that as
a result of this rebellion by
the Bedomasi-Bretuo family, the
Jamasihene divested the said
family of its priviledge to
occupy the Yonso stool and the
Benkumhene of Jamasi Divisional
Council. The applicants’ case
further was that the Jamasihene
conferred the title of Yonsohene
and Benkumhene of Jamasi on the
1st applicant of the
Asona clan, who was then the
Nkotokuahene of Jamasi and
Odumasehene of Yonso, one of the
clan stools of Yonso.
The JCMTC found as a fact, inter
alia, that the Yonso stool was
not created by the Jamasihene,
and that its occupancy was not
conferred on the Bedomasi-Bretuo
family by the Jamasihene. Indeed
the JCMTC made a significant
finding that the said Yonso
stool was in existence and owned
by the Bedomasi-Bretuo family
before the arrival of the
Jamasihene to his present site.
The JCMTC also did not accept
the story about the rebellion.
The trial tribunal also held
that it was the prerogative of
the Jamasihene to confer titles
on deserving persons and
families and it was equally his
prerogative to divest the
Yonsohene of the position of
Benkumhene and give same to the
1st applicant since
he was the one who created that
position. All these findings
were based on the facts in
evidence.
On the same facts in evidence,
both the JCARHC and the JCNHC
drew different conclusions from
those of the JCMTC and therefore
upset the decision of the JCMTC.
When the matter came up on
appeal to this court, the
majority opinion confirmed the
findings and decision of the
JCMTC and allowed the appeal.
The following extracts from the
majority opinion are relevant to
the ensuing discussion:
“From the evidence on record, it
appears that Nana Jamasehene has
the prerogative to elevate the
status of any of his sub-chiefs
to the position of Benkumhene.
This he has done by elevating
the 1st plaintiff. We
cannot in this respect agree
more with the conclusion reached
in this matter by the JCMTC as
follows:
‘Nana Jamasehene has the
traditional right to elevate any
of his Adikrofo or sub-chiefs
and even youngmen and women who
have distinguished themselves in
the service of his traditional
area. He can create new stools
to people of his choice but he
cannot transfer an ancient
hereditary royal status from one
family to another.’
We agree with the above
statement and endorse it…………….
We will…….affirm the judgment of
the JCMTC dated 16th
February 1999 which we
accordingly restore.”
The instant application is thus
inviting this court to take
another look at its decision
based on the two grounds set out
above because in their view
there were special circumstances
resulting in a miscarriage of
justice.
To begin with, let us consider
the issue of bias. Simply put,
the applicants are saying that
the majority opinion of this
court read by our distinguished
brother Dotse, JSC, was tainted
by bias. The language employed
in expressing this opinion by
the Solicitors of the applicants
is not in good taste, to say the
least. We shall return to this
later. Judges are not infallible
though, yet they deserve some
respect from legal practitioners
even when they are believed to
have erred in the law. The use
of bad and intemperate language
brings the court into disrepute
and ridicule and that in itself
could be the subject of contempt
against the legal practitioner
who employs such language,
albeit under the guise of
submitting a statement of case
to the court.
Counsel for the applicants set
out the law on bias and cited
some instances when it has been
successfully applied by various
courts. These will be summed up
as follows. Counsel said bias
applies “where circumstances
exist which give rise to a
reasonable apprehension that the
judge trying a case may have
been affected consciously or
otherwise by extraneous matters
to come to some decision.”
Counsel also said that when it
comes to bias the court looks
deeply “at the circumstances
alleged and to consider whether
or not there is such a degree of
possibility of bias, the
decision in question should not
be allowed to stand; in other
words, there are exceptional
circumstances which have
resulted in a miscarriage of
justice”. Further, counsel
submitted that “if on any
question at issue in the
proceedings before the court a
judge had expressed opinions in
such extreme and imbalanced
terms as to throw doubt on his
ability to try the issue with an
objective judicial mind, the
decision cannot stand. This is
because, where bias is
established, it constitutes a
breach of one of the principles
of natural justice- ie. fair
hearing.”
Continuing with his submissions
Counsel for the applicants
recounted some of the forms
whereby bias may appear. He
said:“It may consist of
irrational prejudice or it may
arise from particular
circumstance which for logical
reasons, predispose a Judge
towards a particular view of the
evidence or issue before him.”
Counsel cited these cases in
support of his arguments: R.
v. Gough (1993) AC 646; R. v.
Inner West London Coroner, ex
parte Dallaglio & Ors. (1994) 4
All ER 139; Re Pinochet (1999)
UK HL 1.
After referring to the law and
principles applicable to bias,
Counsel for the applicants
turned to the facts upon which
the application is made. Counsel
submitted that “His Lordship Mr.
Justice Dotse’s pronouncements
in various parts of the majority
judgment which he authored,
exhibited actual bias. This was
a fundamental breach of the
‘fair hearing’ rule. It
occasioned a substantial
miscarriage of justice to the
plaintiffs. The judgment must be
reviewed accordingly and set
aside.”
Counsel then proceeded to set
out those pronouncements in the
lead judgment which in their
view support their claim of
bias. First they pointed out the
Judge’s description of the
applicants’ reliefs sought at
the tribunal of first instance,
set out above, as having been
“craftily drafted”. In counsel’s
view the word “craftily” could
only mean cunningly or
deceitfully or hypocritically,
going by the Oxford English
Dictionary. In counsel’s view
“these reliefs are quite
ordinary, mundane; no hidden
meanings. So unless there
operated on His Lordship’s mind,
consciously or unconsciously,
some suspicions of oblique
motives by the applicants, there
was absolutely no reason for him
to describe them as craftily
drafted.”
For his part, counsel for the
respondents referred to some
decided cases to support his
submission that there was no
foundation for the charge of
bias. In his view a mere or
reasonable suspicion of bias
would not suffice; what was
required was either actual bias
or interest of a pecuniary or
proprietary nature giving rise
to a real likelihood of bias,
citing the dicta of Lord O’Brien
CJ in R. v. Justices of
County Court (1910) I.R. 271.
It must be pointed out that the
law on bias as applied in
England has undergone some
changes with the introduction of
the jurisprudence of the
European Court of Human Rights
(ECHR) in October 2000. Whilst
most of the principles as
applied in cases like R. v.
Gough and ex parte
Dallaglio, supra, are still
applicable in England, yet there
have been some modifications to
bring them in line with the
jurisprudence of the ECHR. Thus
some caution should be applied
in relying on the English
decisions post 2000. However, in
line with the practice in our
courts, we do accept all
external decisions as of
persuasive value only. With that
caution in mind we may proceed
to rely on even the
jurisprudence of
non-commonwealth jurisdictions
if it will help us apply a
correct interpretation to our
own laws.
Prior to the House of Lords’
decision in R. v. Gough,
supra, there were difficulties
in rationalizing the law on bias
with regard to what were the
most appropriate tests or
criteria to apply. The House of
Lords tried to resolve the
conflicts when it got the
opportunity in R. v. Gough,
supra. The court laid down the
following approach to be
followed by a court in deciding
whether to set aside a decision
of an inferior tribunal on
account of bias. These are:
1.
The reviewing court should first
identify all the circumstances
relevant to the issue of bias.
2.
The reviewing court should not
then consider the effect that
those circumstances would have
upon a reasonable observer,
rather
3.
It should itself decide whether,
in the light of the relevant
circumstances, there was a real
danger that the inferior
tribunal was biased.
Yet the difficulty did not end
as some courts in England
believed R. v. Gough had
not completely resolved the
problems associated with bias.
For instance in Locabail (UK)
Ltd v. Bayfield Properties Ltd
(2000) QB 451 at 476 the
Court of Appeal observed that
the test in R. v. Gough,
supra, had not commanded
universal approval outside
England and that most courts in
commonwealth jurisdictions were
inclined towards the
jurisprudence of the ECHR.
In the case of In re
Medicaments and Related Classes
of Goods (No.2) (2001) TLR 84the
English Court of Appeal reviewed
the existing law and decided
cases vis-à-vis the
jurisprudence of the ECHR and
came up with this test at page
85 per Lord Philips, MR, reading
the opinion of the court: “The
court had first to ascertain all
the circumstances which had a
bearing on the suggestion that
the judge was biased. It then
had to ask whether those
circumstances would lead a
fair-minded and informed
observer to conclude that there
was a real possibility, or a
real danger, the two being the
same, that the tribunal was
biased.”
Thus for bias to prevail, there
must be proof of actual bias,
especially in the form of
pecuniary benefit to the
judicial officer. It could also
be proved by interest of a
proprietary or personal nature
which may lead or amount to a
real likelihood of bias. And it
may also arise from the
circumstances of the situation
which a fair-minded and
objective observer may conclude
that there was a real danger or
real possibility of bias.
In most cases where bias has
been raised against judicial
officers, the complaints have
been in respect of their acts,
deeds, utterances that occurred
outside the judicial
proceedings; and where they have
taken place in the course of
judicial proceedings they have
been in the course of hearing,
and not in their opinion or
judgment. This may be due to the
fact that it is difficult to
ascribe bias to a judicial
officer on account of how he has
expressed his opinion. This may
be the justification for the
definition of ‘judicial bias’
proffered by the editors of
Black’s Law Dictionary, 9th
edition at page 183. They say
‘judicial bias’ means a judge’s
bias toward one or more of the
parties to a case over which the
judge presides. It is usually
not enough to disqualify a judge
from presiding over a case
unless the judge’s bias is
personal or based on some
extrajudicial reason. The
definition, although it makes
proof of bias difficult, yet it
leaves room for possible
judicial bias to arise in
certain circumstances,
especially in extrajudicial
situations. Thus In ex parte
Dallagio, supra, the coroner
was removed from his position
not because of any opinion
expressed in court, but on
account of what he said at a
press conference in connection
with the inquest that he was
presiding over. And in In re
Medicaments etc supra, the
charge of bias against a
judicial officer was upheld when
it was found that one of the
panel members had applied for
employment in a firm, one of
whose members was due to appear
before the inferior tribunal as
an expert witness,
notwithstanding that she had
withdrawn the application on
learning of the role the firm
was to play in the enquiry. The
Court of Appeal was of the
opinion that a fair-minded
observer would apprehend that
there was a real danger that
the judicial officer would be
unable to make an objective and
impartial appraisal of the
expert evidence placed before
the court by the firm to which
she had earlier applied for
employment.
The difficulty posed by the
instant application is that it
is based entirely on some
expressions and conclusions in
the decision of the majority
which the applicants claim are
evidence of bias. We would thus
examine all the claims in the
context of the tests of bias set
out above.
Whilst responding to the
applicants’ submissions, counsel
for the respondents referred to
the reason/s given by the
learned judge in describing the
reliefs endorsed on the writ as
being craftily drafted. The
learned judge having reviewed at
length the findings made by the
two appellate courts below and
pointing out inconsistencies
therein held that the decision
of the trial tribunal was sound
and ought not to have been
disturbed. The learned judge
then delivered himself in the
following words:
“However, the crux of this
appeal is the determination of
the constitutional relationship
between the Jamasihene and the
Yonsohene and its effect on the
status of the two chiefs
vis-à-vis their rights and
priviledges. In view of the
claims of one stool having the
power to divest and vest etc.
This no doubt will have some
direct bearing on the reliefs
which the plaintiffs so craftily
drafted in their case at the
JCMTC.”
The learned judge proceeded to
examine the constitutional
relations between the stools of
Jamasi and Yonso and how the
former had tried to divest the
occupant of the latter stool and
give same to the 1st
applicant, contrary to custom.
It is this process he described
as having been achieved by a
crafty plot. What matters is
whether by custom the Jamasihene
has the right to take away the
stool of Yonso from the
Bedomasi-Bretuo family and give
it to any other person, which
the court held he had no such
right. Thus the description
given by the learned judge did
not cause any miscarriage of
justice warranting a review.
It is settled practice that the
reason/s for any decision of a
court or judge should be an
important factor or guiding
light in challenging the
decision. The question that
ought to be answered is whether
the decision is supportable or
not having regard to the
reason/s given. In this
application Counsel for the
applicants made no reference,
and indeed did not give any
thought or consideration, to the
reason/s given by the learned
judge in arriving at the
conclusion that the reliefs were
“craftily drafted” This cannot
form the basis for review.
Counsel’s next line of attack
was in respect of this part of
the judgment where the learned
judge wrote: “Indeed a careful
reading of the reliefs which the
plaintiffs claimed before the
JCMTC reveals a crafty plot to
take away the chiefly status of
the defendants as far as the
Yonso stool is concerned…..It is
not surprising that the JCMTC
saw through this mischievous
attempt and boldly rejected it
in all its forms.” Counsel’s
contention was that the
descriptive words employed by
the learned judge showed he
“gave a jaundiced view of their
(plaintiffs’) claim in
court……According to the BBC
English Dictionary, if a person
or their behavior is crafty,
they achieve things by deceiving
people. There was no evidence of
any deception by the
plaintiffs.”
Once again counsel made no
reference to the learned judge’s
reason/s for the conclusion they
complain about. It was not out
of the blue that the learned
judge said whatever he said.
Without paying any regard to the
reason/s given, it is
inappropriate to ask for a
review of a decision.
Next, counsel for the applicants
referred to the part of the
judgment whereby the learned
judge made reference to Article
277 of the 1992 Constitution and
other constitutional and
statutory provisions and
explained his reason for doing
so was “to hone in the issue
that arises for determination in
this Chieftaincy appeal”. He
went on to set down the issue as
“whether a person who has no
real connection or at all to
royalty can aspire to chiefly
office either through his own
machinations or by the
deliberate acts of others as
happened in this case.”
Counsel took the learned Judge
to task on this. He said it was
unfair for the learned judge to
hone in on a non-existing issue
as the one for determination in
the appealand thereby ascribe
malicious motives to the
applicants. In counsel’s view,
“the quintessential issues that
arose for determination in the
appeal stood out like a sore
thumb. These are:
i)
Whether or not the
Yonsohene-Bedomasihene, Baffour
Kofi Kwarteng of the Bretuo
family, rebelled against his
traditional overlord, the
Jamasihene, and
ii)
Whether or not the Jamasihene
had the right and power to
withdraw, and did withdraw, the
priviledge previously bestowed
on Baffour Kofi Kwarteng and his
Bedomasi-Bretuo family.”
Counsel went on to make
references to the facts in
evidence which he said supported
both issues in favour of the
applicants. He cited the case of
Metropolitan Properties Co.
v. Lannon (1968) 3 All ER 304
which holds that the objective
test should be applied on
questions of bias and that if a
right-minded person would think
that there was a real likelihood
of bias on the part of the judge
then there was bias and the
judge should not sit on the
case.
In considering a judgment of a
court, one should have regard to
the entire decision and not just
a part of it in order to
appreciate what the court’s
decision was and the reason/s
thereof. The issue the learned
judge set down above was not the
only one he considered in the
judgment. He set out in detail
what the issues were and for
purposes of emphasis they are
reproduced here. This is what
the learned judge said:
“Having perused the grounds of
appeal vis-a-vis the evidence in
the appeal record together with
the erudite submissions of
learned Counsel for the parties,
we are of the view that the
following issues arise for
determination in this appeal.
These are:
1.
Whether the allegation of bias
has been adequately made against
some panel members of the JCARHC
by the defendants.
2.
Whether a chiefly status can be
divested from one family and
vested in another family by a
mere verbal declaration by an
overlord chief irrespective of
how that stool was created.
3.
The constitutional relationship
between chiefs in this case, the
Jamasihene and Yonsohene
vis-à-vis a critique of the
reliefs claimed by the
plaintiffs before the JTMTC.
4.
The issue of concurrent findings
made by the two appellate
courts, viz, the JCARHC and
JCNHC and whether on the
strength of the authorities
there is sufficient
justification for this court to
depart from those concurrent
findings.”
He did not only set out the
issues, the learned judge went
on to discuss them in detail and
concluded that the JCMTC had
made the correct primary
findings of fact on all the core
issues, except of course the
first and the last which could
not have arisen before the trial
tribunal. He then rejected the
decision by the JCARHC and the
JCNHC which made concurrent
findings of fact. It was after
going through all these
processes that the learned judge
was led to the conclusion that
there was an attempt to take
away from the appropriate family
what was rightfully theirs and
give same to the 1st
applicant who did not come from
the Bedomasi-Bretuo family and
whose family had never produced
a Yonsohene. It is in this
context that the learned judge’s
decision and pronouncements
should be understood and
appreciated. It is not evidence
of bias. Whatever he said was
supportable on the record which
the trier of facts had found to
exist. At the end of the day the
judge had made it clear that the
Jamasihene had taken the Yonso
stool away from the
Bedomasi-Bretuo family which had
created that stool and occupied
it for well over two centuries
and had given it to the 1st
applicant. The Jamasihene has no
right to take away the Yonso
stool from the Bedomasi-Bretuo
family since he did not create
it as found by the JCMTC. He
could not confer the Yonso stool
on the 1st applicant
since he did not own it. In
these circumstances nobody
reading between the lines could
begrudge the learned judge for
concluding that there was a
mischievous attempt to wrestle
the Yonso stool away from its
rightful owners.
Be that as it may, even if the
remarks appear unpalatable, the
fact remains that the decision
of the court was based on the
facts in evidence as captured by
the trial tribunal which the
court fully endorsed. Anything
else was unimportant as it did
not amount to special
circumstances occasioning a
miscarriage of justice to
warrant a review within the
meaning of rule 54 of the
Supreme Court Rules, 1996, C.I.
16.
Yet another instance of bias
alluded to by the applicants is
the court’s decision on whether
the title of Yonsohene was
vested in the Bedomasi-Bretuo
family by the Jamasihene. The
JCMTC had made a positive
finding that it was not bestowed
on the Bedomasi-Bretuo family by
the Jamasihene. That finding was
set aside by the JCARHC on the
ground that the 8th
defendant had admitted the
Jamasi people were the first to
settle in the area before the
arrival of the Bedomasi-Bretuo
family. The learned judge held
that the JCARHC had no business
to set aside the finding of fact
by the JCMTC. This did not go
down well with the applicants,
especially the expression that
the JCARHC had no business to
depart from the findings made by
the JCMTC. Counsel’s view was
that this portrayed bias of the
clearest type against the
learned judge, since the JCARHC
was a duly and legally
constituted tribunal vested with
the power to upset the findings
of the JCMTC.
With all due respect to the
learned counsel, he has not
properly appreciated the court’s
view. The court had made
reference to the findings of
fact made by the tribunal of
first instance which had seen
and heard the witnesses. The
court’s view was that so long as
the first tribunal could support
its findings of fact from the
evidence on record it was not
open to the appeal tribunal to
disturb those findings. In law
an appellate court cannot set
aside findings of fact made by a
trial court simply because the
court of first instance should
have taken a different view of
the facts, or that the appellate
court takes a different view of
the facts in evidence. The use
of the expression ‘no business’
is what is disturbing the
applicants, but it need not if
it is considered that the court
was only stating the truth of
the matter that an appellate
court was not justified to do
what the JCARHC did by
substituting its own findings
for those of the court of first
instance when the latter’s
decision is supportable from the
evidence on record. We should
not lose sight of the fact that
it is not in every situation
where parties and witnesses on
one side give inconsistent
testimony that the case must be
rejected automatically as the
JCARHC purported to do by
relying on the piece of
admission by the 8th
defendant ignoring all the other
pieces of evidence from the
defendants’ side. It is trite
learning that the court must
consider the totality of the
evidence adduced by and for a
party in reaching a decision one
way or the other. The majority
decision was thus justified and
cannot be attacked on account of
bias.
There is no law or rule of
practice, nor are there hard and
fast rules or guides as to the
type of language a judge may use
in describing events, issues,
acts, etc in the course of
deciding a case. What is
important is that the language
employed should express the
judge’s thoughts and ideas
backed by reasons. Thus the
entire decision will have to be
examined in determining whether
the judge had arrived at a just
solution. If the decision is
unsupportable on legal or
factual grounds it is open to
question, but not because of the
language used. Counsel for the
respondents cited the case of
Republic v. High Court, Sekondi;
ex parte Abuna II and Others
(1992) 1 GLR 524 CA where
the court held that in the
absence of any rule of court
which prescribed a method or
manner for the delivery of a
ruling or a judgment, the trial
judge’s finding that the manner
in which the chairman of the
judicial committee delivered the
ruling terrified and terrorized
the respondents and thereby
constituted sufficient evidence
of bias was not supportable in
law. This case provides an
illustration of the difficulty
in attacking a judicial decision
for bias because of the language
used by the officer. Yet another
illustration was provided by
counsel for the respondentsin a
case decided by the South
African Constitutional Court.
That is reported as Enrico
Bernett v. ABSA Bank Ltd. (2010)
ZACC 28, dated 9th
December 2010. At the court the
applicant raised bias against
some of the justices who sat on
the appeal. The grounds raised
were:
a)
One of the judges held shares in
the respondent bank;
b)
Two of the judges had a prior
association with the respondent
bank, in that their previous
employer had been funded by the
respondent;
c)
The manner in which the
presiding judge conducted the
proceedings and
d)
The factual findings made by
that court, were so unreasonable
that they were inexplicable
except on the basis of bias.
For our present purposes it is
only the last ground which is of
some relevance for this review.
The decision of that court in
respect of the other grounds
should better not be discussed
here for irrelevancy. On the
last ground the court found that
the applicant’s complaints of
erroneous factual findings were
not borne out by the record as
all the issues were properly
considered. In other words once
the judge’s decision and
conclusion are supportable on
the facts and applicable law, a
charge of bias would not lie
simply on account of the
language used to express same.
And if such firm attitude is not
displayed by a reviewing court,
almost every decision will be
contested on account of what a
judge has said in the course of
delivering his opinion which a
party considers detestable.
Earlier we said the language
employed by counsel for the
applicants was in bad taste, to
put it mildly. We return to this
issue. In concluding the first
ground this is what counsel for
the applicants said: “There is
over-riding public interest that
there should be confidence in
the integrity of the
administration of justice in the
country. Ordinarily, judicial
adjudication must always be fair
and reasonable, nurtured on the
wings of humility and
understanding, making due
allowance for human frailties.
This standard must never be lost
sight of. The traditional image
of the goddess of justice is a
fair maiden, blindfolded and
holding a raised sword in her
right hand pointing to the sky
and a pair of weighing scales.
She is presented as the
veritable incarnation of
judicial virtue.
Mr. Justice Dotse’s ravings and
ranting against the plaintiffs,
the JCARHC and the JCNHC in such
extreme and uncontrollable
outbursts are such as to throw
doubt on his Lordship’s
impartiality or his ability to
have tried the appeal before
their Lordships in the Supreme
Court fairly and reasonably; of
course, with an objective
judicial mind.
It is a universal principle of
judicial performance that judges
should, as far as possible avoid
the temptation to discharge
their judicial functions in a
spirit of anger. This is because
a spirit of anger leads to
intemperate language and
intemperate language invariably
leads to bias. In our
submission, a fair reading of
the record leads us to conclude
that his Lordship Dotse appeared
to have succumbed to that
temptation, writing his judgment
obviously in a spirit of anger!
We have shown above without any
doubt that his utterances in
various sections of this Court’s
judgment were, in the words of
their Lordships in the ferry
disaster inquest, injudicious,
insensitive and gratuitously
insulting”
Counsel castigated the learned
judge of not dealing with the
case with an objective judicial
mind. What did the judge say
that makes his opinion
subjective? How on earth could
counsel for the applicants
conclude that the learned judge
wrote his opinion in a fury? It
is unacceptable to impute a
certain conduct to a judicial
officer unless he has used clear
language to connote the
description or unless his acts,
actions and utterances during
the hearing justify the
description. Nothing of the sort
has taken place here. All what
he said was based on the record
especially the findings made by
the JCMTC. His opinion based
upon inferences from established
facts has infuriated the
applicants, but as a judge he is
entitled to draw inferences from
established facts, whether they
are pleasing to a party or not.
The use of words like ravings,
ranting, anger, lacking in
objectivity to describe the
learned judge’s opinion leaves
much to be desired and is highly
deprecated.
In conclusion there is no
evidence of a personal,
pecuniary or proprietary
interest raised against the
learned judge. And with regard
to the circumstances of the case
the learned judge based his
remarks, observations, decisions
and conclusions on the facts in
evidence; he did not go outside
them. Any fair-minded and
informed objective observer
would not consider the learned
judge’s views a real danger or
real possibility of bias. The
charge of bias is thus not
established on the record; hence
this ground for review fails.
The second ground for this
application is that there were
fundamental and basic errors of
law and fact committed by the
court which have caused a
substantial miscarriage of
justice to the applicants.
Counsel for the applicants
relied on this court’s decision
in the case of Quartey v.
Central Services Co. Ltd.
(1996-97) SCGLR 398, on the
application of exceptional
circumstances in review
Counsel for the applicants
outlined two instances in the
decision which in his view
amounted to exceptional
circumstances. According to
counsel, ‘the first exceptional
circumstance is that the court
inadvertently made an error of
law in its judgment when it
purported to rehash the matter
for determination in the appeal
as being ‘the issue of whether
a person who has no real
connection or at all to royalty
can aspire to chiefly office
either through his own
machinations or by the
deliberate acts of others such
as has happened in this case’
when the quintessential issue in
the appeal was whether or not
the Yonsohene, Baffuor Kofi
Kwarteng rebelled under
customary law against the
overlord, the Jamasihene and
whether his overlord had the
right and power to withdraw, and
did withdraw the priviledge
previously bestowed on Baffuor
Kofi Kwarteng and his Bedomasi
Bretuo family, having regard to
the constitutional relations
between the two chiefs.”
Counsel continued that “the
second exceptional circumstance
is that the Court inadvertently
made an error of law in its
judgment when it rehashed the
grounds of appeal filed by the
defendants/appellants in this
court and gave judgment on the
rehashed grounds which they
perceived to be the real
issues.”
On the first issue, Counsel made
references to facts in evidence
to show that the respondents’
Bedomasi-Bretuo family had
rebelled against their overlord
who is the Jamasihene, as found
by both the JCARHC and the
JCNHC. Counsel’s view was that
the majority failed to give
consideration to this important
fact. Consequently, the second
ground should have succeeded as
a matter of custom since the
overlord was entitled to divest
a rebellious chief of his
priviledges. Contrary to
counsel’s position the majority
accepted the findings of fact
made by the trial tribunal which
did not accept the claim there
was rebellion.
As rightly pointed out by
counsel for the respondents, a
review is not another appeal
process whereby the court is
called upon to rehear the case
even if the decision of the
ordinary bench is considered
wrong. Review is a special
procedure so all the relevant
factors to be taken into
consideration, as decided in a
long line of cases some of which
were set out by both counsels in
their submissions, must exist in
order to succeed under either
sub-rule a or b of rule 54 of
C.I 16.
But this is a case where the
applicants are saying that the
majority decision did not
address the core issues in the
case. On the other hand they
claim the majority decision was
founded on non-existent issues.
Thus we would be compelled to go
through the record to find out
if indeed the appropriate issues
were not dealt with and if so
whether they constitute special
circumstances resulting in a
miscarriage of justice. In the
process it will appear the
appeal is being re-argued, but
it’s the best way to attain the
ends of justice in this
application.
On the issue of rebellion,
Counsel took issue with that
part of the decision by our able
brother Akamba JSC, whereby he
equated it with a criminal
offence that required a proof
beyond reasonable doubt, albeit
in a civil trial, under section
13(1) of the Evidence Decree,
1975 (NRCD 323). According to
the applicants this has caused a
substantial miscarriage of
justice, since it prevented the
learned judge from appreciating
what rebellion meant in
customary law. The definition
that the learned judge preferred
has both criminal and civil
elements. By applying the
standard of proof in criminal
trial, the learned judge was
drawing attention to the fact
that rebellion was a serious
indictment since it had the
effect of depriving a person or
family of its stool or
chieftaincy title. But even
assuming the learned judge
wrongly raised the level of
proof required for rebellion at
custom, yet that per se did not
cause any miscarriage of justice
as he fully appreciated and
affirmed that the
Bedomasi-Bretuo family had the
sole right to ascend the throne
of Yonso and that the Jamasihene
had no right to abrogate that
right. Thus whether a rebellion
was proven or not, the
Jamasihene could not take away
what he had not granted. But the
lead judgment which was
concurred in, did not apply the
test of proof beyond reasonable
doubt, and that remains the
opinion of the court that in
customary rebellion the normal
standard of proof on a
preponderance of probabilities
would apply.
Still on the issue of rebellion,
the respondents’ head of family
had written Exhibit J1 in
response to Exhibit J written by
Nana Jamasihene. In Exhibit J
Nana Jamasihene had clearly
divested the respondents’ family
of the stool of Yonso. In
reaction they replied they did
not owe him allegiance since
they owned their own stool. This
was after both chiefs had had
their differences reconciled by
the Mamponghene, as per Exhibit
4, dated 14thJuly
1984. It was just two years
after the settlement that the
Jamasihene sought to divest the
respondents’ family of the Yonso
stool. The settlement had wiped
the slate clean so one could not
talk about a rebellion having
persisted for more than
twenty-five years. In these
circumstances, who would fault
the JCMTC for not acceding to
the claim of rebellion. If you
take away from me what is
lawfully mine, you should expect
the worst reaction from me. The
circumstances called for that
kind of reaction. That will
explain why after a lapse of
time and sober reflection, for
time, it is said, heals wounds,
the defendants admitted that the
Jamasihene was their overlord in
response to the applicants’
statement of claim before the
JCMTC, some years after Exhibit
J1 had been written. All the
foregoing facts were in evidence
hence the JCMTC was able to find
that the defendants owed
allegiance to the Jamasehene.
The trial tribunal was bound by
the admission on the pleadings
that respondents owed allegiance
to the Jamasi stool and did not
require any further proof in
law. The pleadings contradicted
Exhibit J1 so the pleadings
being a judicial process would
prevail. Thus when other factors
were considered the JCMTC would
be justified in not paying heed
to the claim of rebellion.
There was also evidence before
the trial tribunal that the
Yonsohene had made it clear that
they were not interested in the
position of Benkumhene of Jamasi
and would thus not continue to
serve in that capacity. Hence he
gave his full backing to the
elevation of 1st
applicant to occupy that
position and partook in his
installation in 1986. Thereafter
the record shows that on 25th
June 1987 at a meeting of the
Mampong Traditional Council over
which Nana Jamasihene presided,
the Yonsohene Baffour Kwarteng
III was present along with the 1st
plaintiff in their capacity as
the Yonsohene and Benkumhene of
Jamasi respectively. Neither the
Jamasihene who presided over the
said meeting, nor the 1st
applicant who claimed to have
been made the Yonsohene a year
earlier, is on record to have
protested the presence of
Baffuor Kwarteng III as the
Yonsohene. Or was it a case of
Yonso having two chiefs
occupying the same stool at the
same time? Certainly not. Thus
if anybody talked about a
rebellion by the Yonsohene that
led to him being stripped of the
title of Benkumhene of Jamasi
and Yonsohene in August 1986
that would plainly be false. The
true position was that the
Yonsohene had told the entire
Mampong Council at a meeting
captured in Exhibit 4 that he
was not prepared to serve as
Benkumhene of Jamasi again.
Whatever reason he had for
saying that is immaterial as
nobody can be compelled to take
up a position he is not
interested in. Thus a vacuum
existed thereafter which the
Jamasihene was entitled to fill
and did fill in fact.
One would expect that for a
serious customary offence as
rebellion, formal charges would
be leveled against the alleged
rebel, leading to appropriate
sanctions permitted by custom.
Exchanges of letters undermining
each other’s authority do not
constitute any charge of
rebellion or conclusive proof
thereof. Customary law requires
that an offence which could lead
to sanction of destoolment,
inter alia, should be charged
against the alleged offender to
give him a chance to defend
himself. The ‘audi alteram
partem’ principle equally
applies to customary matters. It
is only where, after appropriate
charge has been preferred and a
proper hearing has taken place
and the alleged offender has
been found liable may
appropriate customary sanctions
be imposed. Unless this cardinal
principle of hearing, not to
talk of fair hearing, is
insisted upon, impunity will
have a field day in chieftaincy
matters. For an overlord who
believes his subordinate has
offended him will just remove
him from office by a mere
letter, as happened in this
case. No reasonable tribunal
would accept lack of a hearing
as proper customary practice. In
these circumstances the JCMTC
was justified in
discountenancing any talk of
rebellion. The majority cannot
be said to have fallen in error
let alone to talk about causing
a miscarriage of justice.
Let us move on to the next
point. It was the evidence that
the JCMTC accepted and which the
majority in this court endorsed
being that the Yonso stool was
not conferred on the
Bedomasi-Bretuo family by the
Jamasihene. Contrary to what the
Jamasehene had said in Exhibits
J and K, the JCMTC found as a
fact that no family or clan
other than the respondents’
family had occupied the Yonso
stool since the town was
founded. What this means is that
nobody has the customary right
to take away the Yonso stool
from the Bedomasi-Bretuo family,
much less to give it to another
person or family. The title of
Benkumhene of Jamasi was
conferred by the Jamasihene and
that is what by custom he could
take away from the respondents.
The judgment is very clear on
this. The JCMTC made these
findings at page 187 of the
record:
“From plaintiffs’ evidence and
that of their witnesses and the
defendants and their witnesses
they all accept the fact that
the Bedomasi-Bretuo family have
been chiefs at Yonso ever since
the town was founded. Throughout
the proceedings the plaintiffs
could not establish any claim
that any of their ancestors have
ever been Odikro or chief at
Yonso. If therefore the Apaahene
claims he gave Yonso land to
Yonsohene and Frepo lands to 1st
plaintiff’s great granduncle
then it is clear that the land
was given to the first chief of
Yonso who happens to be Nana
Oforiwa Amanfo.”
The above-quoted findings were
based on facts in evidence.
Under cross examination, the 1st
applicant admitted that it is
the Bedomasi-Bretuo family which
produces the Yonsohene. This is
an extract from his
cross-examination:
“Q- How is Yonsohene enstooled?
A-
Bedomasi Obaapanin nominates a
candidate for approval by the
elders.
Q- After nomination what
follows?
A-
She nominates for the elders of
the Bedomasi family. If accepted
he is installed.
Q- Is the candidate nominated
for the Bedomasi elders alone or
Yonso elders?
A-
He is shown to Yonso elders.”
He admits it is the Bedomasi
family that produces the
Yonsohene, notwithstanding his
claim to have been given that
title. He admitted he was not
nominated by the Obaapanin of
Bedomasi. He also admits he is
not from the Bedomasi-Bretuo
family.
Besides the admission by the 1st
applicant that it is the
Bedomasi family which produces
the Yonsohene, the 2nd
applicant at page 39 of the
record admitted that apart from
the Bedomasi-Bretuo family he
was not aware that any other
family had ascended the Yonso
stool. Then PW3 Baffuor Kofi
Akuoku who was the Twafohene of
Yonso also affirmed that apart
from the Bedomasi-Bretuo family
no other family had ascended the
Yonso stool. And DW2 who is a
member of the 1st
applicant’s family and indeed
his nephew also said at page 133
of the record that the Yonso
stool has been occupied solely
by the Bedomasi-Bretuo family of
Yonso. All these pieces of
evidence negative the
Jamasehene’s claim that the 1st
applicant’s family was the first
to occupy the Yonso stool so he
was only restoring to them what
was rightfully theirs, see
Exhibit K at page 215 of the
record paragraphs (ii) and
(iii). No wonder the JCMTC
rejected it and no wonder Dotse
JSC described it as a
mischievous attempt to take away
the Yonso stool and confer it on
the 1st applicant who
did not come from the rightful
lineage, which Dotse JSC
described as not coming from
royalty.
Next Counsel for the applicants
took the position that “by
allowing the appeal and
restoring the judgment of the
JCMTC, the court had, by
necessary implication restored
the errors of law committed by
the trial Committee and reversed
by the two appellate Committees,
in holding that the 1st
Appellant could be elevated to
the status of Benkumhene of
Jamasi Division whilst at the
same time holding that the said
Benkumhene cannot be Yonsohene,
when under Ashanti custom, there
could be no Benkumhene in the
air and the finding by the trial
committee that the1stappellant
was Benkumhene of Jamase
Division but not Yonsohene was
contradictory and palpably
contrary to Ashanti
Constitutional arrangements
relating to Chiefs and their
sub-chiefs with respect to power
and authority between them which
was military in character and
called for the supply of men for
war.”
Contrary to what Counsel for the
applicants submitted above, the
title of Benkumhene of Jamasi
that was conferred on the 1st
applicant did not exist “in the
air”. The 1st
applicant was the
Yonso-Odumasihene who owed
direct allegiance to the
Jamasihene. So it was in that
capacity that he was given that
position.Before then he also
held the position of
Nkotokuahene of Jamasi so he was
elevated from Nkotokuahene of
Jamasi to its Benkumhene, whilst
at all material time he held the
position of Odumasihene of
Yonso.Thus it was perfectly in
line with Ashanti custom, the
position of Benkumhene of Jamasi
only changed hands from the
Yonsohene to the Odumasehene. No
error of customary law was
committed.
The next issue under reference
is that the learned judge honed
in the issues to just a
non-existent one; but as earlier
pointed out, it was not the only
one dealt with by the majority
opinion. They dealt with all the
issues and endorsed the decision
of the trial tribunal. By its
endorsement of the judgment of
the JCMTC, this court had
endorsed the issues set down for
trial therein as well as the
findings of fact and decision.
Thus any review would also have
to focus on the decision of the
JCMTC. Did the trial tribunal
consider what the applicants
describe as the quintessential
issues? It is only then can this
court be said to have failed to
consider the core issues in the
case, assuming, but without
admitting that it failed to
consider all relevant issues or
draw the appropriate inferences
from the established facts. Let
us return to the judgment of the
JCMTC at pages 185-186, where
the JCMTC said:
“In dealing with issues of this
nature one may ask the following
questions:
1.
Who were the first settlers
(Jamase or Yonso) and who
settled first on Yonso lands-the
Bedomasi-Bretuo family or the
Asona Odumasi family?
2.
How was the title Yonsohene
acquired by the Bedomasi-Bretuo
family?
3.
What customary position was
given to Nana Yeboah Kodie Asare
by Nana Adu Gyamfi Brobbey III
on his elevation?
4.
Who is the Obaapanin of Yonso
and whether her installation was
according to custom?
5.
Has Nana Adu Gyamfi Brobbey the
customary right to strip Baffuor
Kwarteng of all his titles if he
actually rebelled against him?
These questions will have to be
answered from the evidence
adduced by both parties and
their witnesses.”
The last issue set down by the
JCMTC embraces two matters,
namely whether in fact Nana
Kwarteng had rebelled against
the Jamasehene; and if he had,
whether the Jamasehene had the
right to divest him of the Yonso
stool and Benkumhene of Jamasi.
These cover “the quintessential”
issues the applicants talk
about. The trial court dealt
with them and the majority
decision accepted their findings
and decision that since the
occupancy of the Yonso stool was
not conferred on the defendants
by the Jamasihene, the latter
had no right to take it away
from them. The court found the
title of Benkumhene of Jamasi
was conferred on the 1st
applicant by the Jamasihene and
held it was right by custom.
This was confirmed by the
majority decision. Thus even if
there was rebellion by the
defendants’ family against the
Jamasihene, the latter could
only take away the title of
Benkumhene of Jamasi which he
did. Thus the two positions
Yonsohene and Benkumhene of
Jamasi were decoupled since they
are not one and the same despite
the fact that in the past the
same person had occupied both at
the same time. Whereas the Yonso
stool was created by the
Bedomasi-Bretuo family and was
thus their preserve, the title
of Benkumhene of Jamasi was the
creation of the Jamasihene.
From the evidence on record all
the issues were dealt with and
properly so too by the JCMTC
which this court endorsed. On
the second issue, the JCMTC
resolved that the title of
Yonsohene was not conferred on
the Bedomasi-Bretuo family by
the Jamasihene for reasons
explained on the record.
One other contested issue was
the third one listed by the
JCMTC, as regards what title the
Jamasihene conferred on the 1stapplicant.
The JCMTC resolved that the
title conferred on the 1st
applicant was that of Benkumhene
of Jamasi only and not Yonsohene
as well. The majority affirmed
this as customarily legitimate
and factually correct. The
applicants, however, contend
that the evidence was not duly
considered as the majority chose
to deal with non-existent
issues, instead of a finding
that the two positions, namely
Yonsohene and Benkumhene of
Jamasi being one and the same.
Once again we are compelled to
delve into the record to find
out whether the applicants were
right or not.
At the hearing before the JCMTC
the 2nd applicant
testified that when the Yonso
queen mother died they enstooled
the second respondent in her
stead. After that they performed
the funeral rites of the late
queen mother. He continued after
the funeral “Nana Adu Gyamfi
Brobbey III summoned all the
elders of Yonso and told us that
Yonso was lacking behind all the
towns under Jamasi so we should
sit down and think over the
issue……He informed us that he
was making the Benkumhene of
Jamasi the new Yonsohene. We
told him we were going to inform
our elders since we could not
give an answer outright. After
this we received a letter from
Jamasihene and all the people of
Yonso assembled and the letter
was read to them by the
Assemblyman Mr. George Amofa.
The contents of the letter was
(sic) that the Benkumhene of
Jamasi have (sic) been made the
Yonsohene so we should all help
him to administer the affairs of
Yonso…..”
It is on record that the funeral
of the late queen mother was
held some time in 1992. Also
from the record the said letter
is Exhibit J. Thus the import
and relevance of the 2nd
applicant’s testimony were the
following:
i.
By this letter the Jamasihene
was announcing the removal of
the Yonso stool from the
Bedomasi=Bretuo family following
a decision he and the Divisional
Council had taken for alleged
acts of rebellion without a
customary charge and hearing
from the affected family.
ii.
As of 1992 the 1st
applicant had not been made
Yonsohene.
iii.
The Jamasihene made the 1st
applicant Yonsohene without
reference to the elders of
Yonso. The elders were only
notified by a letter, Exhibit J.
iv.
The people of Yonso and the
assembled elders were notified
of Nana Jamasihene’s decision by
the Assemblyman. When did an
assemblyman become important or
relevant in the scheme of
customary chieftaincy matters?
It is insulting to the good
people of Yonso and their elders
to be notified by the
Assemblyman as regards such an
important issue as who reigns as
their chief. This only gives
credence to the view that there
was a plot to deprive the
defendants of their right. How
else would the Jamasihene not
wait to hear from the elders
before making any such move
final? Otherwise how comewere
the elders of Yonso not given
the chance to deliberate over
his decision before it was
announced by the Assemblyman?
Custom demands that the rightful
customary title holders announce
the choice of a chief to the
people, and an assemblyman does
not fall into that category of
persons. It gives the impression
that the right thing was not
being done.
Besides the foregoing, the JCMTC
took into account the contents
of a complimentary card that the
1st applicant gave
the 8th respondent.
This appears at page 262 of the
record as Exhibit 18. On that
card the 1st
applicant had described himself
as the Yonso-Odumasehene and
Benkumhene of Jamasi; he never
described himself as Yonsohene.
There was no objection and 1st
applicant did not challenge its
contents as inaccurate, nor did
he lead any rebuttal evidence.
The probative value of this
piece of evidence was that the 1st
applicant himself had portrayed
himself to others that he was
Yonso-Odumasihene and Benkumhene
of Jamasi and not as Yonsohene,
which title would surely have
appeared on such information if
indeed he was the Yonsohene.
Thus the JCMTC was justified in
taking this into consideration
in regard to the 1st
applicant’s status.
Yet again there was evidence
from the 2nd
applicant that Baffuor Kwarteng
III remained Yonsohene until he
abdicated on 4th
October 1989. Even before the 2nd
applicant had made this
important assertion, the 1st
applicant himself had stated the
abdication of Nana Kwarteng in
October 1989 as a fact and he
tendered a document, viz Exhibit
M at pages 219-221 of the record
in support. This effectively
debunks and exposes as a lie any
claim by the 1st
applicant that he was made
Yonsohene in 1986, for as
earlier pointed out, there could
not be two persons occupying the
same stool in the same town at
the same time.
Putting the icing on the cake,
DW2, a nephew of the 1st
applicant said he accompanied
his uncle Opanin Adade the then
Atumtufuohene of Mampong to
Jamasi palace to witness the
swearing in ceremony of the 1st
applicant as the Benkumhene of
Jamasi on 23rd August
1986. He said before the
swearing of the oath by the 1st
applicant, the chiefs and elders
present took turns to advise
him. The last person to take his
turn was Nana Jamasihene and he
advised the 1st
applicant that since there was a
sitting Yonsohene he should
co-operate with him. Thus there
was overwhelming evidence from
which the JCMTC could find that
the title conferred on the 1st
applicant was Benkumhene of
Jamasi and not Yonsohene. It
concludedat page 292 of the
record “that Nana Yeboah Kodie
Asare II swore the oath of
allegiance to the Jamasihene and
his elders as Benkumhene of
Jamasi but not as Yonsohene.”
The 1st applicant
himself knew that he could not
become Yonsohene until the
Obaapanin of Bedomasi had
nominated him for consideration
by the elders of Bedomasi; he
had not gone through any such
process. The Jamasihene tried to
impose him on the people of
Yonso knowing full well that
even if the Asona family of
Yonso was given the right to
produce a chief of Yonso, yet it
is that family which has to
nominate and install somebody
before introducing him to the
overlord for his acceptance. The
Jamasihene as overlord on his
own cannot hand pick anybody and
make him the chief of Yonso
without even consulting the
elders of the town, as happened
in this case. The JCMTC found as
a fact that the position of
Yonsohene was elective and not
appointive. It explained that
what this means is that “Nana
Jamasihene cannot nominate,
appoint or enstool Yonsohene.
The nomination and election is
the prerogative of the Obaapanin
and the Kingmakers
respectively.” Yet the
Jamasihene did not follow this
time honoured custom and rather
selected the 1st
applicant as the person to
occupy the Yonso stool, without
regard to the Obaapanin and
stool elders of Yonso. See page
192 of the record. Was it not a
customary coup d’etat, as held
by Dotse JSC? All the core
issues having been resolved by
the JCMTC, this court’s
endorsement thereof was not in
error.
In conclusion, for reasons set
out above, there are no
exceptional circumstances to
warrant a review; the
application is accordingly
dismissed.
(SGD) A. A. BENIN
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) S. O. A. ADINYIRA
(MRS)
JUSTICE OF THE SUPREME COURT
(SGD)
V. AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
(SGD)
J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
DISSENTING OPINIONS
ANIN-YEBOAHJSC:
The applicants herein have moved
this court for a review of the
majority decision of this court
delivered on 21st of
May 2014. The facts of this
application are amply captured
in the opinion of my esteemed
brother Benin JSC and it serves
no purpose for me to repeat
same. I have read the majority
opinion several times but I find
myself unable to agree with it
as I think that it seeks to
undermine basic customary law
principles regulating
chieftaincy which is one of the
revered traditional institutions
in our country.
This application has been argued
at length in two main grounds
clearly set out in the motion
of the applicant as follows:
(a)
Bias, and
(b)
Fundamental and basic errors of
law and facts committed by the
court, nor necessarily amounting
to bias, but causing a
substantial miscarriage of
justice to the applicants.
Both parties argued ground (a)
first. I wish to consider it
before I proceed to deal with
ground (b). Learned counsel for
the applicants has argued the
issue of bias against one of our
esteemed members of this court
who delivered the majority
opinion reversing as it did, the
judgment of the National House
of Chiefs affirming the judgment
of the Ashanti Regional House of
Chiefs. Several decided cases
were cited in course of the
argument to support this
allegation of bias which was
indeed never raised before the
hearing of the substantive
appeal but after the delivery of
our judgments. The crux of the
allegation of bias is based on
the majority’s opinion which
according to counsel for the
applicants amounted to extreme
and imbalanced terms as to throw
doubt on his ability to try the
issue with an objective judicial
mind, the decision cannot
stand.
In his statement of case,
counsel made reference to cases
like R V Inner West London
Coroner, Ex Parte Dallagio &Ors
[1994] 4 ALL ER 139 and R
v Gouch [1993] AC 646 to
support his contention that the
use of certain words in the
majority decision such as,“craftily
drafted”, “mischievous”
attempt’ etc. are all traces
of bias against the applicants.
I have carefully read the
judgment of the majority and I
must confess that I find it very
difficult to agree with learned
counsel for the applicants that
the majority judgment had traces
of bias against the applicants.
In my respectful opinion, a
judge seized with a matter
should be at liberty to express
his opinion on the facts and law
apparent on the face of the
proceedings even though the use
of certain words may not be
acceptable to one of the
parties. In the case of
Schandorf V Zeini& Others
[1976] 2 GLR 418 CA, the Court
of Appeal, then the highest
court of this country per
Amissah JA said in the opening
sentence of the judgment as
follows:
“The appellants are rogues.
They were found by the learned
trial judge Koranten-Addow J to
have fabricated a case and to
have suborned witness to put up
that case to the court.”
The finding was borne out by the
evidence on record and the
learned judge could not be
criticized for being biased. In
this application I entirely
agree with the opinion of the
majority that no sufficient
material was placed before this
court by the applicants to
demonstrate in the least that
the use of certain words in the
judgment of the majority
amounted to bias.
Bias like every allegation must
be proved by compelling evidence
by the party making the
allegation against a judicial
officer who is exercising normal
judicial functions care should
be taken to allow such
allegations to gain currency in
the administration of justice.
I think that ground (a), which
was even though argued at length
did not in any anyway persuade
me to form a view that the
judgment of the majority had any
traces of bias. I accordingly
reject this ground as
unmeritorious and in my view
does not warrant any
consideration under our review
jurisdiction.
The second ground of this
application which was argued in
detail is worthy of serious
consideration. The applicants
complain that the majority
decision was in error as it did
not accord with Ashanti custom
and usage. In our contemporary
situation article 20 (1) of the
1992 Constitution has preserved
the institution of chieftaincy
as follows:-
270 (1) “The institution of
chieftaincy together with its
traditional councils as
established by customary law and
usage is hereby guaranteed.”
It has never been disputed
throughout the commencement of
this case that the Yonso stool’s
overlord is the Jamasihene and
that the Yonso stool could not
directly owe allegiance to
Mamponghene without passing
through the immediate overlord
who is the Jamasihene. It was
also not disputed that Exhibit 9
was written by the Abusuapanin
of the Yonso stool stating
categorically that their stool
did not owe any allegiance to
the Jamasihene. On record, ever
since Exhibit 9 was written more
than a decade ago, the family
has not distanced itself from
the contents. In clear customary
manner it amounts to denouncing
the overlord and also
rebellious. In my respectful
opinion, this action runs
counter to Article 270 (1) of
the Constitution of 1992 as it
seeks to subvert the existing
traditional or customary
arrangements in the Mampong
Traditional Council. On record
the evidence established
conclusively that the Buetuo
family which installed Nana
Kwarteng III as Yonsohene swore
the oath of allegiance to the
then Chief of Jamasi, Nana Adu
Gyamfi Brobbey III. Swearing of
oath of allegiance to an
overlord has serious customary
significance in the institution
of chieftaincy. In the case of
Kwaku v Boye [1987-88] 2
GLR 589 CA, the Court of
Appeal declared as null and void
a purported severance by a party
of his allegiance to the Golden
Stool. It is not a case
involving stools like the ones
in this application before us
and the case is cited for its
significance in dealing with
swearing of allegiance by one
stool occupant to the overlord.
In Gold Coast Native
Institutions (New Impression)
1970 by J.E. Casely Hayford the
author at pages 51-52 clearly
states the position of customary
allegiance as follows:-
“Allegiance is that personal
relationship between the
occupants of two stools whereby
the inferior acknowledges the
authority of the superior over
him. Such relationship has
nothing to do with the lands of
the vassal. It may happen that
the superior Lord is at the same
time licensor of the vassal in
respect of his holding, but that
will be merely accidental.”
In the Kwaku v Boye case,
(supra) Taylor JSC said of the
consequences of severance at
page 595 as follows:-
“In the olden days
such an attempt at severance
would result in war.”
The Jamasihene whose oath of
allegiance was breached by the
Yonsohene in Exhibit “9” has all
the customary powers vested in
him as the overlord to punish as
it were, the family which
installed Nana Kwarteng III as
the Yonoshene. The oath of
allegiance is nothing more than
a faithful and solemn
declaration by the Yonsohene to
serve the Jamasihene in a manner
which would preserve the
traditional values and customs
of the two stools. A declaration
of severance is such a serious
customary offence which is
visited with dire consequences
which as pointed out could lead
to war in the olden days.
The majority in their judgment
in my respectful view, failed to
appreciate that in our
customary law governing
chieftaincy an overlord who
confers title on a sub-chief has
the power to withdraw any title,
honour or whatever he has
conferred on the sub-stool. This
may be a form of punishment
which could affect the
descendants of the stool
occupant and for that matter the
whole stool family. The Bretuo
family of Yonso did nothing for
over a period of over
twenty-five years by exhibiting
remorse for the severance and
rebellious attitude exhibited
towards the Jamasihene. In my
respectful opinion the opinion
of the minority delivered by my
able brother AnsahJSC which I
agreed with him in its entirety
reflects the customary law
position.
The Constitution merely
preserves the existing
chieftaincy institution and its
coming into force did not permit
any subversion of the existing
relationship between chiefs. I
think that the applicants have
succeeded in establishing that a
case for review is made out for
us to review our decision. For
in the first case of review
application under the 1992
Constitution, which is
Afranie II v Quarcoo and Others
[1992] 2 GLR 561 SC this court
was called upon to correct an
error when the ordinary bench
had overlooked a clear statutory
provision regulating landlord
and tenant action concerning
recovery of possession. This
court proceeded to correct the
error which it had acknowledged.
Reviews are conferred on us as
the last option for a litigant
who has discovered that a patent
error should not be allowed to
exist if the grounds for
correcting such error in review
application exists and the
circumstances are exceptional.
In the oft-quoted case of
Mechanical Lloyd Assembly Plant
Ltd. v Nartey [1987-88] 2 GLR
598 it was held that:-
“It was therefore up to the
court to determine the matter on
the facts and circumstances of
each case and as dictated by the
ends of justice”
In the case of Ababio and
Others v Mensah & Others No.2
[1989-90] I GLR 573,
Taylor JSC made it clear that
decisions of this court which
were given per incuriam and void
orders may constitute
exceptional circumstances to
warrant the invocation of our
review jurisdiction.
Another case worth mentioning is
that of Re Kwao (Decd),
Nartey v Armah& Others
[1989-90] 2 GLR 546 affirmed the
principle that exceptional
circumstances if not corrected
which would lead to miscarriage
of justice should be a ground
for review.
This court as the last court
whose decisions bind the lower
courts must be able to correct
its own errors if our attention
is drawn to same in cases in
which the circumstances warrant
that our review jurisdiction
should be exercised. I think
that in this case the majority
decision is clearly against the
custom and traditions governing
chieftaincy as an institution
and the error, which the
majority opinions, with due
respect, seeks to endorse should
be corrected for the custom to
prevail. With this, I dissent in
part from the majority decision
delivered by my able brother
Benin JSC.
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
BAFFOE-BONNIE JSC:
I had the opportunity of reading
beforehand the opinion of my
brother Yeboah JSC on dissent
and of the majority. I think the
exceptional circumstances of
this case warrants a review to
set right the customary law
position which my brother
Yeboah JSC has amply demonstrate
in his dissenting opinion.
I accordingly grant the
application.
(SGD) P. BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
COUNSEL
FRANCIS NKRUMAH ESQ. WITH HIM
AKUA SAFO FOR THE PLAINTIFFS/
APPELLANTS/
RESPONDENTS/APPLICANTS.
ASANTE KROBEA ESQ. WITH HIM
OWUSI SEKYERE FOR THE
DEFENDANTS/RESPONDENTS/
APPELLANTS/RESPONDENTS.
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