JUDGMENT
C. HAYFRON-BENJAMIN, J.S.C.:
This is an appeal from the
judgment of the Chieftaincy
Committee of the National House
of Chiefs wherein Nananom
reversed the judgment of the
Ashanti Region House of Chiefs
and thereby affirmed the
judgment of the Kumasi
Traditional Council. For the
purposes of this appeal the
Appellant will hereafter be
called the Plaintiff and the
Respondent the Defendant.
The Plaintiff by the oath
procedure swore that
"Defendant is not to the Krobo
Stool and there he (Defendant)
is not eligible to the Krobo
Stool and that Defendant is
eligible only to the Benkum
Stool of Krobo."
The Defendant also swore back in
reply that
"He being the Krobohene elect
and also a royal to the Krobo
Stool is eligible to the Krobo
Stool in view of his ancestral
link to the Stool."
Upon issues joined the Judicial
Committee of the Kumasi
Traditional Council by a
majority gave judgment for the
Defendant. The Plaintiff
appealed from that decision to
the Judicial Committee of the
Ashanti Region House of Chiefs.
The Regional House of Chiefs
reversed the Traditional
Council. On a further appeal to
the Chieftaincy Committee of the
National House of Chiefs,
Nananom also reversed the
decision of the Chieftaincy
Tribunal of the National House
of Chiefs. This Court
subsequently granted the
Plaintiff leave to appeal to
it. Before us the Plaintiff has
filed five grounds of appeal
four of which is substantive
grounds the Plaintiff contends
that;
(i) The judgment is against the
weight of evidence.
(ii) The National House of
Chiefs misconceived its
functions as a second appellate
Tribunal, and erred in law in
failing to give any or due
weight to the unrebutted
evidence that the name of the
Krobo Stool was "Gyamera Bensua"
Stool.
(iii) The National House of
Chiefs erred in law when it
purported to make findings
without considering the evidence
of Plaintiff/Appellant and her
witnesses.
(iv) The National House of
Chiefs erred in law when it held
that a matrilineal stool could
be CREATED for two friends of
different clans.
Appellant's Counsel in his
statement of case contends that:
"In this case, having conceded,
as the Respondent did, that the
Obaapanin's family is a royal
the presumption is that this
status is exclusive and the
burden falls on the Respondent
to establish satisfactorily how
his family also became a royal
house. This was really the
nature of the dispute...."
When the Appellant's Counsel's
submission is conjoined with the
finding of Nananom of the
National House that:
"The only points in favour of
Respondent (Plaintiff) are the
custom raised by Ashanti
Regional House of Chiefs..."
Then certainly Nananom were in
agreement with their august
colleagues in the Ashanti Region
House of Chiefs about the
declared Ashanti custom which
they declared. Nananom chose one
single custom for their
structures. In the quotation
from their judgment just quoted
above, Nananom continued:
"And we hold the view that the
naming of the Stool could be due
to factors other than the fact
that it was named after the one
who founded or its first
occupant the evidence yields
itself to this conclusion."
With the greatest respect to
Nananom, they were not only
pre-vacations, they were also
indulging in guess work and
inconsequential in order to
avoid calling the name of the
Krobo Stool the "Gyamera Bensua"
Stool. After all from wrongly
calling the name of the Krobo
Stool Asiedu Panin Stool, the
Defendant subsequently admitted
that the name of the Krobo Stool
was Gyamera Bensua Stool. In so
doing, Nananom fell into grave
error, for that was the name
accepted and explained in
accordance with customs by
Nananom in the Ashanti Region
House of Chiefs added strength
was given by Nananom to the
position of the majority in the
Ashanti Region House of Chiefs
when they wrote;
"The issues have been mainly on
custom and resolved on customary
evidence."
The custom under which the
Ashanti Region House of Chiefs
had based their opinion were
that:
(i) "In Akan custom succession
to stools is invariably
matrilineal bearing (sic) a few
exceptions."
(ii) "That granting that the
Respondent version that the
Krobo Stool was created for two
friends is true, the stool ought
to have been a patrilineal stool
rather than matrilineal as it
obtains now."
(iii) "That it is untenable in
Akan custom for a stool to be
created for two friends as
advocated by Respondent
(Defendant)."
(iv) "That the Appellant
(Plaintiff) version on the
founding of the Stool is more
reasonably probable and we
therefore find no compelling
reason to depart from the stand
we have taken."
(v) "It is also the custom that
a Stool is named after its
founder or first occupant...."
In the instant case the
Plaintiff's contention that that
Krobo Stool was founded by
Bensua a corrupted version of
Obeng Asua his (sic) ancestor,
stands uncontroverted."
In addition to these primary
declarations of Akan customary
law and practice, Nananom of the
Ashanti Region House of Chiefs
found
"As a fact that the Krobo Stool
was founded by the Plaintiff's
ancestor Obeng Asua and not
created for the two families as
claimed by the Defendant."
Custom as defined in part by the
learned editors of OSBORN'S
CONCISE LAW DICTIONARY (8th ed.)
is:
"A rule of conduct, obligatory
on those within its scope,
established by long usage. A
valid custom must be of
immemorial antiquity, certain
and reasonable, obligatory not
repugnant to statute law, though
it may derogate statute law."
The customs declared by Nananom
of the Ashanti Region House of
Chiefs must apply to issues
arising out of facts which
accord with custom in Ashanti.
More force and authority must be
added to the declarations of
Ashanti (Akan) customary law and
practices since Ashanti is the
only homogenous Region where all
the citizens subscribe to the
same customary laws and
practices.
In considering the Asante (Akan)
custom as pronounced by the
majority it is pertinent to
consider the view of the
minority on the customs referred
to. It is clear that Nana was
confused about who the parties
were. He wrote
"It is my opinion that it does
accord with Asante custom for a
stool be created for a stranger
before introducing the stranger
to the overlord as the Plaintiff
claims. This claim by the
Plaintiff is therefore untenable
in view or the imminent war
between the Asante national and
the Akyems at that time."
The matters mentioned therein
rather referred to the Defendant
who alleged that his ancestors
had come from Akyem when war
between Asante and Akyem was
imminent. It was also the
Defendant's ancestors who had
lodged at Adesina. The
Defendant's ancestors were
strangers to Asante coming as
they did from Akyem. The
minority declares that coming to
Asante at the time that war was
imminent between Akyem and
Asante it could not:
"Accord with Asante custom for a
stool to be created for a
stranger before introducing the
said stranger to the overlord."
It is unnecessary here to
analyse the confusion of thought
which led the dissenting chief
to disagree with his colleagues.
Certainly no one would create a
Stool for a stranger from a
country against which ones
country is preparing to go to
war. Nor was this all. In an
attempt to differ from his
colleagues on the custom that an
Odikro cannot create another
Odikro, the dissenting Nana
wrote:
"In Akan custom, where an Odikro
is also a Nifahene to his
overlord; the Odikro may create
an Odikro Stool with the
authority of his overlord."
It does not take much to
discredit the whole of the
dissent an untrue statement of
custom. Nana even contends that
S.K. Mainoo was an ASONA
contrary to the clear evidence
on record that he is KONA.
In the face of the unreliability
of the dissenting opinion
Nananom of the National House of
Chiefs should have given greater
credit to the opinions of the
majority of Nananom of the
Ashanti Regional House of
Chiefs. Indeed, from the
beginning of his opinion, Nana
wrote;
"The most crucial issue before
the parties in this appeal as I
perceive it revolves on whether
or not the Krobo Royal Stool was
created exclusively for the
Asona family or for both Asona
and Ekuona family (sic)."
Before us, and reading the
record carefully it is evident
that the parties are agreed that
the Krobo Stool is the Akwamu
Stool to the Antoa Stool: That
the Stool is a matrilineal
Stool. That Obaapanin Ama
Serwaa is the reigning Queen
mother: That in accordance with
custom she is the person who is
deemed to know who are the
royals of her stool. It is also
agreed that the name of the
Krobo Stool is Gyamera Bensua;
that Nananom of the National
House of chiefs that
"The naming of the Stool could
be due (to factors other than)
the fact that it was named after
the one who founded it for its
first occupants."
As I have expressed myself
custom must be "certain and
reasonable". It was therefore
not open to Nananom to introduce
any uncertainty into its
pronouncement. If Nananom were
of the view that "other factors"
could determine the name of the
Stool then it was their duty to
pronounce it rather leave time
honoured Akan custom of naming
the Stool to speculation and
uncertainty. I therefore hold
that under AKAN custom a Stool
is named either for its founder
or its first occupants. In this
appeal therefore it means
"The Krobo Stool was founded by
Bensua corrected version of
Obeng Asua the ancestor of
Plaintiff."
In the light of my findings so
far in this appeal, I agree with
the Plaintiff's Counsel that the
Plaintiff did not assume any
burden of proving more than she
did. The burden was rather on
the Defendant to prove that he
was a member of the Asona Royal
Family of Krobo.
In Exhibit "A" which was the
record of the Great Oath case
which led to the invocation of
the jurisdiction of the Kumasi
Traditional Council culminating
in this appeal it was thus
recorded
"NOTE:— In answer to a question,
Defendant explained that
Plaintiff is his paternal sister
after his father"
meaning that the Plaintiff’s
father is the immediate elder
brother of ALHAJI KWAKU KRU'S
father. It also transpired that
one S.K. Mainoo was on record
shows that this relationship is
true. The issue then can two
brothers answer to this question
in any primitive or civilised
culture must be in the
negative. It is therefore clear
that the Plaintiff and the
Defendant do not belong to the
same family. Both may be ASONA,
but one is not royal of the
KROBO Stool. For my part the
Plaintiff's mother being the
Obaapanin, it is her ASONA
family which owns the KROBO
Stool.
Nananom have roamed a field for
proof of the origins of the
Defendant and his eligibility to
the Krobo Stool, but have not
addressed the issue of their
connection with the Krobo royal
family. The Defendant contends
that his family and the
Plaintiff's family have
"fused". But this
relationship, as has been
demonstrated in this opinion, is
impossible by reason of the
marriage of two brothers
allegedly married in the same
family. Defendant says that his
Abusuapanin is ALHAJI KWAKU KRU
is of the Ekuona clan. It is
very incongruous situation in
Akan Society that an Asona man
should have an Ebusuapanin who
is an Ekuona. The Defendant's
uncle, S.K. Mainoo was also an
Ekuona. Yet again the
Adesinahene under
cross-examination not only
confessed but also contradicted
himself on the issue of the
creation of the Stool which the
Defendant says he did. Said
Nana:-
Q: For whom did Adesinahene
create the Krobo Stool.
A: Nana Adesinahene created the
Krobo Stool for Asiedu Panin and
Opoku Akyeampong.
Q: Do you want to imply that the
Krobo Stool for both Asona and
Ekuona families?
A: Yes, this is what I imply.
Q: What is the customary
implication in Ashanti when we
refer to a Stool as being
matrilineal stool?
A: A matrilineal stool implies
that inheritance to that stool
can be effected only through
one's mother (emphasis mine).
Q: What is the name of the Krobo
Stool that Adesina created for
hunters and farmers?
A: The Adesinahene never created
for Asiedu Panin and Acheampong
Stool (sic) (emphasis mine).
Q: The Defendant has stated that
the Krobo Stool is called
Gyamera and Obeng Asua Stool and
you claim it is called Asiedu
Panin and Akyeampong Stool. How
do you reconcile the two
statements?
A: Since I created the Krobo
Stool, what I have said is the
gospel truth.
It is clear that this witness
was not being truthful. But one
thing stood out quite clearly.
If the Defendant says that the
Adesinahene created the Asiedu
Panin and Akyeampong Stool for
the Defendant's family it is not
correct. The Adesinahene as an
Odikro could not create another
Odikro. It is therefore safe to
conclude once again that the
beginnings of the Krobo Stool
are from Gyamera and Obeng Asua
the ancestors of the Plaintiff.
If these two were indeed the
founders or the first chief and
his brother Gyamera Afram of the
Krobo Stool then the alleged
Stools of Asiedu Panin and
Akyeampong do not exist in the
Stool room of the Krobo Stool
their existence or non-existence
is not an issue in this appeal,
however, on the supposition that
these black stools were among
the Krobo Stools, the burden was
on the Defendant upon being
challenged and his claim denied
to offer evidence which would
satisfy a Court or Tribunal that
the Stools exist. In the
instant appeal the Defendant by
admitting that the name of the
stool was GYAMERA and BENSUA
inferentially fixed the
commencement of the stool to the
time of OBENG ASUA in the reign
of OPOKU WARE I. I therefore
hold that the Krobo Stool was
founded in the reign of Opoku
Ware I. I also do not believe
that the Defendant's ancestors
were fleeing from Akyem Adesina
to Asante in the reign of Osei
Tutu when the latter was
planning a war against the
Akyem. It was therefore an
untenable situation for Osei
Tutu to readily accept strangers
(Defendant's ancestors) while
there was "imminent war between
the Asante nation and the Akyems
at that time."
Nananom of the National House of
chiefs have sought, as I have
said for want of a better
expression to bend the evidence
in favour of the Defendant.
Alhaji Kwaku Kru was not the
Abusuapanin of the Krobo Royal
Asona Family—a position he could
not hold if for nothing else,
because he is an Ekuona. In
EXHIBIT "A" the record of the
KUMASI TRADITIONAL COUNCIL when
the Plaintiff denied that Alhaji
Kwaku Kru was her Abusuapanin,
the Plaintiff said:
'Defendant is not the
Abusuapanin. The true
Abusuapanin is one Afram."
(emphasis mine)
On the 20th May, 1995 the
Plaintiff made an application to
the Ashanti Region House of
Chiefs to be substituted for the
Obaapanin who had died. OPANIN
KWAKU AFRAM swore an affidavit,
without objection from Alhaji
Kwaku Kru, that he was head of
the Asona Royal Family of Krobo.
In any case it was agreed that
Kwaku Kru had been up in the
Krobo Palace (Ahenfi) and he
knew a lot about the Krobo Stool
Affairs and was the spokesman
for the Obaapanin, but he was
not the Abusuapanin of the Asona
Royal Family of Krobo.
The evidence on record clearly
shows that the Obaapanin made
two nominations, namely:-
"My own child Kwame Nyamekye and
my grandson Opoku Mensah."
On the evidence the Obaapanin
did not have her constitutional
minimum of three nominations,
for the elders themselves
nominated the Defendant which
precipitated the present
litigation. On the 18th October,
1991 the Elders swore to an
affidavit that they "have agreed
and installed NANA BARIMA OPOKU"
as Krobohene. In their statutory
declaration they stated:-
"That Barima Opoku, in view of
his developments within the
village, all the citizens
including we the elders, have
nominated him as our Chief."
This was, to say the least, a
most irregular "installation" of
a Chief and I hereby declare the
same null and void.
Finally, Nananom of the National
House of Chiefs as well of the
majority of them in the Kumasi
Traditional Council seem to set
great store on a quotation from
Warrington's Notes which
obviously E.E. Obeng copied into
his book referred to by them
that:-
"No Ashanti has power to change
his allegiance and voluntarily
become the naturalized subject
of another Ashanti Chief."
Warrington is a useful source
book on Ashanti customary law
and practices. But as the editor
says they were compiled for the
use of the Colonial District
Commissioners and it was
expected that government
approval would be given to them,
which the editor says was not
done. The notes refer to the
proceedings of the ASHANTI
CONFEDERACY COUNCIL which was a
statutory body. It is now the
informal body known as ASANTEMAN
COUNCIL. The confederacy was a
body of independent Chiefdoms in
Ashanti bound together under the
leadership of the GOLDEN STOOL
and the Asantehene who is indeed
also the Paramount Chief of the
KUMASI TRADITIONAL AREA. It
therefore stands to reason that
any shifts in allegiance will
affect the constitution of its
component parts. Thus when the
Confederacy says there can be no
change of allegiance, what it
means is that no Ashanti can
change his allegiance from say
Kumasi State to say Mampong
State. Allegiance is "the
natural and legal obedience
which every subject owes to his
sovereign". Sovereign in the
context of this appeal means a
Paramount Chief and not an
Odikro or even a Divisional
Chief or Obrempong. I think
Nananom misunderstood the
meaning of that statement.
Within the context of their
opinions that statement from
Warrington was not in apposite.
Was there any fusion of the two
Asona Families in Krobo? Apart
from Alhaji Kwaku Kru no other
member of the Defendant's family
gave evidence of any such fusion
of families. Indeed Alhaji Kwaku
Kru's own statement furnishes a
palpable lie to the assertion by
the Defendant, notwithstanding
the Plaintiff's own admission
that the Defendant is an Asona
from a different family. At the
meeting of the Kumasi
Traditional Council in respect
of the swearing of the Great
Oath of Ashanti. Alhaji Kwaku
Kru asserted that:-
"....Anthony (Defendant) (is)
also his real nephew because
Anthony's mother comes
immediately after him
(Abusuapanin)." (emphasis mine).
If Alhaji Kwaku Kru is Ekuona,
how can his direct nephew be
Asona. In my respectful opinion
therefore the Defendant's case
"was a deliberate falsehood
intended to pre-empt the
Plaintiff's legitimate claim to
the stool."
In my respectful opinion the
Defendant falsely constructed a
case which flew in the face of
all pristine Akan customs as
conclusively stated by Nananom
of the Judicial Committee of the
Ashanti Region House of Chiefs.
An amorphous group of Paramount
Chiefs, the majority of whom
belong to traditions which are
essentially patrilineal in
customary laws and practices
have unwittingly driven a
serious nail into the coffin of
Akan Customary Laws and
Practices. This Court has by its
majority substituted logic and
legal technicalities for the
correct Akan customary laws on
Akan Chieftaincy practices the
effect of which institutions I
will not dare to fathom.
I will therefore allow the
Appeal.
AMPIAH, J.S.C.:
This action concerns the
Krobo/Kwabre Stool in Ashanti;
the issue being, who is entitled
to occupy that Stool? By an
oath, the Plaintiff/Appellant
(hereinafter referred to simply
as the Plaintiff) challenged the
eligibility of the
Defendant/Respondent (also
referred to hereinafter simply
as the Defendant) to the Krobo
Stool. The Respondent having
responded to the Oath, "a cause
or matter affecting Chieftaincy"
was raised before the Kumasi
Traditional Council for
determination.
One Madam Akua Nyamekye who
initiated the action as the
Attorney of Nana Ama Serwaa, the
undisputed Obaapanin/Queenmother
of the Krobo Stool, was
subsequently substituted as the
Plaintiff on the demise of
Obaapanin Nana Ama Serwaa.
According to the Defendant, his
Asona Family had traveled
together with Alhaji Kwaku Kru's
Kuona Family from Akyem Adesina
to their present abode to avoid
an imminent threat of war by the
Ashantis. They had settled
together as friends at Ashanti
Adesina and the Odikro of
Adesina had created the Krobo
Stool for their joint
occupation. Thus, the Krobo
Stool was created jointly for
the Defendant's Asona Family and
Alhaji Kwaku Kru's Ekuona
Family. He said the Plaintiff's
family had come to settle at
Krobo at the time when Nana Osei
Sampam, his ancestor was the
Odikdro of Krobo. He said an
ancestor of the Plaintiff named
Adoma (others say Amoakowaa) had
come to trade in groundnuts with
them. He said since Adoma (or
Amoakowaa) was of the same Asona
Clan like Nana Osei Sampam, she
had been accepted into the joint
family together with her people
and later given an opportunity
or right to occupy the Krobo
Stool.
The Plaintiff had denied the
story of the Defendant and had
claimed that her family had
migrated from Beposo in Ashanti
because of some calamity and
that on their arrival at Antoa,
the Antoahene had deputed his
Krontihene to find a place near
Adesina to settle them; they had
settled near a 'Krobo' Tree,
which gave the town its name.
Later, a Stool had been created
for her family by the Antoahene.
She said further that the
Defendant's family had later
joined them and they being
Asonas had been accepted into
the family and a Benkum Stool (a
sub-stool) had been created for
them.
The Defendant claimed that as a
member of the joint family, he
had been nominated for
enstoolment by the Kingmakers
and Elders of Krobo. He said he
had validly been nominated after
the Obaapanin had exhausted her
three chances of nominating a
candidate as enjoined by custom.
The issues which arose for
determination in the matter
were:-
(i) Which family was entitled
to ascend the Krobo Stool?
(ii) Was the Defendant eligible
to ascend the Stool?
(iii) Was the Defendant validly
nominated?
Both parties led evidence
themselves and called witnesses
in support of their case. The
Kumasi Traditional Council by a
majority of 2 to 1 gave judgment
in favour of the Defendant. The
Plaintiff appealed to the
Ashanti Regional House of chiefs
which by a majority of 2 to 1
allowed the appeal and set aside
the decision of the Judicial
Committee of the Kumasi
Traditional Council. On appeal
to the National House of chiefs
by the Defendant, the Judicial
Committee of that House,
unanimously allowed the appeal,
set aside the judgment of the
Ashanti Regional House of Chiefs
and upheld the decision of the
Kumasi Traditional Council.
From the evidence adduced by the
parties concerning their
history, I feel there is need
for a further evaluation of the
evidence and the ascertainment
of the customary law applicable
in the matter. In proceedings
before these traditional
tribunals where pleadings are
normally not ordered and the
Plaintiff invariably gives his
evidence first, care must be
taken not to evaluate the
evidence on alleged
"unchallenged" evidence. It is
not uncommon for the party who
gives his evidence last to take
advantage of the sequence of the
trial. In such situations the
Plaintiff mounts the box to
narrate his evidence and call
his witnesses to support it. The
Defendant then mounts the box to
give his evidence and call his
witnesses. Apart from the
general suggestion that what the
other has said is false, there
is no formal or critical
challenge of the other's
evidence. Under such
circumstances it is unsafe for
the tribunal to rely on the oft
quoted expression "the evidence
was not challenged" to come to
conclusions on the evidence.
The defendant has appealed to
this Court on the following
grounds:-
"(i) The judgment is against the
weight of evidence.
(ii) The National House of
Chiefs misconceived its function
as a second appellate Tribunal,
and erred in law in failing to
give any or due weight to the
unrebutted evidence that the
name of the Krobo Stool was
"Gyamera Bensua" Stool.
(i) The National House of Chiefs
erred in law when it purported
to make findings without
considering the evidence of the
Plaintiff/Appellant and her
witnesses.
(ii) The National House of
Chiefs erred in law when it held
That a matrilineal stool could
be CREATED for two friends of
different clans.
(iii) Other grounds of appeal
will be filed upon receipt of a
copy of the record of appeal".
I intend to deal with these
together.
The Judicial Committee of the
National House of Chiefs after
narrating the respective
histories of the parties, set
down the findings and
conclusions made by the two
lower tribunals. It then set out
to evaluate the evidence itself
and apply the customary law and
practices which it considered
applicable to the matter.
Needless to say that it accepted
the findings and conclusions of
the Kumasi Traditional Council
and allowed the appeal.
It observed,
"Judging from custom reasons on
the sequence of events we find
that the evidence on migration
of the appellant is more
reasonably probable than that of
the Respondent".
On the issue of migration and
settlement it seems to me that
the National House did not
understand the Plaintiff's case
and did not fully appreciate the
history given by the parties. It
may be true that the Defendant's
ancestors had arrived earlier,
but the evidence revealed that
they had some family
relationship with the Ashanti
Adesina people. This is what
Alhaji Kwaku Kru (DW1) said,
"The above five people led their
respective families from Akyem
to Asante. On the arrival of my
family at Asante, they learnt of
the existence of another Adesina
at Antoa in Ashante and that
Adesina (Ashante) was related to
the Akyem Adisina so my family
quickly found their way to
Asante Adesina in the Antoa
area".
How related were they? He stated
that they had heard of another
Adesina. It is most likely
therefore that on their arrival
they had stayed with the Asante
Adesina people at Adesina
without any settlement
elsewhere. In fact the evidence
is that having settled briefly
at Kenyase, they came to Asante
Adesina and were settled at a
place called Papaase until later
they moved to where the 'Kro'
tree was! For how long they
stayed at Papaase before moving
to the place where the 'Kro'
tree was, the evidence was not
clear. The word 'Krobo' had
first been used by the Plaintiff
and his witnesses as the source
of their town's name. The
Defendant had stuck to the name
'Kro'. How this name came to
be changed to 'Krobo' he did not
explain. It is obvious from the
evidence that the Plaintiff
having used the name 'Krobo',
the defendant found a name
derived out of 'Krobo' and used
it but could not explain how the
'Kro' turned to 'Krobo' which
has long been recognised and
accepted as the only name of the
town. Otumfuo Opoku Ware
succeeded Osei Tutu as
Asantehene between 1731 - 1742
(others say between 1720 - 1750)
There is no certainty about the
date. See "The Life History of
Otumfuo Opoku Ware II etc" by
E.K. Braffi. It is not clear in
which part of Osei Tutu's reign
the Defendant and his family had
actually arrived. D.W. 1 was not
able to tell the Committee who
the Chiefs of Antoa were when
the Plaintiff's family arrived
at Antoa. This incident
happened after the settlement.
If this witness was not able to
tell what happened then how was
he able to tell with certainty,
the period of their arrival? It
is clear that when the Plaintiff
stated his period of arrival,
the defendant had tried to put
in a period earlier in time just
to create the impression that
they had arrived earlier, so, in
all probability they had settled
earlier in the place.
The Committee also relied on the
incidence of allegiance to
accept the evidence of the
defendant.
It observed,
"........ the change of
allegiance has been found to be
contrary to the custom as
evidenced in E.E. Obeng's book
and the Notes of Warrington
already referred to……"
The specific references made
from Warringtons Notes have not
been stated. It was necessary
that the context within which
the Notes were made should be
made known. It is also not
stated how authoritative the
writings of E.E. Obeng's on the
customary law of Ashanti is. I
do not think Obeng's work at the
Asantehene's office as a junior
clerk clothed him with authority
on Ashanti custom. But a more
critical look at his statement
would reveal other matters. In
his book 'Ancient Ashanti
Chieftaincy' at page 29
paragraph 2 he states the
following:-
"No Ashanti has the power to
change his allegiance and
voluntarily become the
naturalised subject of another
Ashanti Chief. As a result of
war his allegiance might
compulsorily be transferred.
And, as a matter of dire
necessity, a persons could in
the older days, with the consent
of his chief, sell himself and
his family to another chief in
order to pay his debts. An
Ashantiman "could" move from his
Division to another Chief's
Division for, for instance, the
purpose of obtaining land for
farming, but he could transfer
his allegiance to the Chief on
whose land he farmed in order to
obtain the land free of charge".
Assuming that what Obeng said
was correct, there are still
situations where an Ashanti
could change his allegiance
within Ashanti. The evidence was
that the Plaintiff's ancestors
"came from Beposo in Ashanti
because of great tragedy which
turned to be frequent tribal
wars ..." Surely, there must
be exceptions. Besides, the
Plaintiff's family had migrated
from Beposo since the time of
Opoku Ware (1720 - 1750). It is
too late to use the fact of
change of allegiance against the
Plaintiff when according to the
Defendant—even if his evidence
is to be accepted—the
Plaintiff's family has been
accorded recognition to ascend
the Stool. The Odikro of Beposo
himself had not complained. The
Antoahene who must be deemed to
know the custom, if indeed it
exists, carried out the creation
of a Stool for the Plaintiff's
family. The Ashanti Regional
House of Chiefs which consists
of only Ashanti Chiefs
(Paramount Chiefs for that
matter) must be credited with
knowledge of the custom that
exists. The acceptance of that
unproven custom by non-Ashanti
Chiefs is unsafe and doubtful.
Also, it is said that the
Adesina Odikro as the caretaker
of the Antoahene was in a better
position to create a Stool for
the strangers. It is not
disputed that the whole land
including that portion on which
Adesina herself is, is part of
the Antoahene's land and that it
was the Antoahene who created a
Stool for the Adesinahene. If
that is so, how could the
"caretaker"'create a Stool equal
to his own Stool on land which
is not his? The evidence of the
Antoahene (P.W.2) and of the
Krontihene of Antoa (P.W.1)
fully supported the evidence of
the Plaintiff in all material
particulars. His evidence was
that when his predecessor
created the Stool for the
Plaintiff's family, the then
Adesinahene was present. The
mere fact that the Adesinahene
lives on part of the Antoahene's
land which is close to the land
on which the Plaintiff's family
settled, did not make the
Adesinahene the "caretaker" of
these lands.
The real problem in this matter
is the ascertainment of the
eligible family to the Stool of
Krobo. The evidence shows that
there were three families
claiming eligible to the Stool,
namely,
(i) The Plaintiff's ASONA family
which migrated from Beposo in
Ashanti.
(ii) The Defendant's ASONA
family which migrated From Akyem
Adesina and
(iii) Alhaji Kwaku Kru's EKUONA
family which also migrated from
Akyem Adesina as friends of the
ASONA family of Akyem Adesina.
The evidence shows further that
those who have validly occupied
the Krobo Stool in recent times
were all from the Plaintiff's
ASONA family. Even if S.K.
Mainoo from the EKUONA family
attempted to ascend the Stool,
which is denied, he was not
customarily enstooled. The
Defendant's family do not deny
the Plaintiff's family's
eligibility to the Stool, though
they give conflicting and
unreasonable reasons why the
Plaintiffs family came to be on
the Stool. The evidence that it
was an ancestor of the Plaintiff
who came to trade in the area
and was adopted by the
Defendant's family was not
creditably supported; the
evidence was conflicting as some
say it was Adoma and others say
it was Amoakowaa. When pressed
to show why a royal Stool should
be relinquished to trangers who
had come to the place only to
trade, the Defendant's evidence
was that it was because the
royals of their families were
minors! Minors for how long?
And, this was at a time when
they were finding people to
become Ebusuapanin and Stool
elders! It is true that there
was evidence that Plaintiff's
family admitted seeing farms in
the area, but this was not
strange. It is a common
practice that persons living in
towns adjacent to lands not yet
settled on often cultivate on
the vacant unoccupied lands
without necessarily claiming
title to those lands; they are
mere squatters.
The Committee came to a
conclusion that if the
Plaintiff's ancestors hid their
stools which they alleged they
brought from Beposo, then they
must have been just some
'youngmen'! The plaintiff named
the ancestors who had come with
them. Could these persons be
'youngmen' who were capable of
ascending the Stool? As they
were not going to occupy their
stools on another chief's
territory, what was the need for
asserting their chiefly status
at that stage? If it had been a
paramount Stool, could they have
held on to that position on some
one's land? They said they
belonged to the Akwamu Division
of Beposo. Accordingly when the
Antoahene decided to elevate the
Krobo Stool he took into
consideration this fact and
created the Krobo Stool, the
Akwamu Stool of Antoa, a status
higher than that of the Adesina
Stool.
The Defendant denied his
ancestors ever swore the oath of
allegiance to the Antoahene.
That could not be true on the
evidence. Firstly, the Antoahene
gave evidence as to how the
Odikro of Krobo has been
swearing the oath of allegiance
to his Stool in the presence of
the Adesina Odikro. This was not
denied. The Adesinahene admitted
that the Antoahene is his
overlord. If the two Stools
Adesina and Krobo are equal why
should the Krobo Stool swear the
oath to the Adesina Stool? In
any case according to the
Defendant and the Adesinahene,
after swearing the oath of
allegiance to the Adesinahene,
the Krobohene is taken to the
Antoahene as the overlord, to
swear to him. Why? It only
means that without swearing the
oath of allegiance to the
Antoahene, the Krobohene could
not be recognised as an Odikro.
Why did S.K. Mainoo decide to
swear to the Asantehene instead
of the Antoahene or for that
matter, the Adesinahene, if
indeed they have been swearing
to the Adesinahene?
The evidence, of the Antoahene,
the owner of all the land on
which Krobo and for that matter
Ashanti Adesina settled was
clear and emphatic. He stated in
no uncertain terms that it was
his predecessor who created the
Krobo Stool; the fact that the
Beposo group had deserted its
former allegiance
notwithstanding. The question
whether the Beposo group i.e.
the Plaintiff's family had
brought any properties at all
when they came, was irrelevant
for, they did not come to assert
their status at Antoa. They
infact revealed their royal
status to the Antoahene who
later accorded them the status
of Akwamuhene. The Antoahene's
evidence which supported the
Plaintiff's claim was that the
Plaintiff's family was presented
to the Asantehene when they
arrived and that he directed his
Krontihene to find a place on
Antoahene's own land for the
Plaintiff's family. The
Adesinahene was himself on the
Antoahenene's land; he was not a
caretaker of the Antoahene's and
even if he was he could not have
prevented the Antoahene himself
from allocating a portion of his
land to other people. He was
not in possession of these lands
apart from the one he
(Adesinahene) occupies: It was,
according to the Defendant, the
Antoahene who directed the
Adesinahene to find a place near
his town for the Defendant.
According to the Antoahene
whatever he did was done in the
presence of his sub-chiefs
including the Adesinahene. It is
not true and could not be true
that the Krobo Stool does not
swear the oath of allegiance to
the Antoahene. The National
House of Chiefs accepted the
finding by the Traditional
Council that it was Nana Asamoah
Yaw from the Plaintiff's family
who first swore the oath of
allegiance to the Antoahene.
Even if it is accepted that the
Defendant's family ever ascended
the Krobo Stool, the Statement
of the Traditional Council
which was accepted by the
national House, was not
supported by the evidence on
record. At page 109 of the
record of proceedings D.W.1,
Alhaji Kwaku Kru said —
"After (the) S.K. Mainoo had
been given the Krobo Stool, he
positively declared that even
though his predecessors had
already sworn the oath of
allegiance to Antoahene he would
no longer follow that path
........."
Also at page 156 of the record,
D.W.1, when asked,
"Q. Which superior Chief does
Krobohene swear the allegiance?
A. The Krobo Stool swear to Nana
Antoahene".
While the National House of
Chiefs was critical of the
discrepancies in the evidence of
the Plaintiff it did not find
any such fault with the
Defendant's evidence. It is a
fact that part of the
defendant's evidence supported
the plaintiff's evidence.
According to the Plaintiff, his
ancestors who journeyed to
Antoa were Obeng Asua, Nana
Amoakowaa, Gyamera and Durowaa.
Obeng Asua was the brother of
Nana Amoakowaa; Gyamera and
Durowaa were the son and
daughter respectively of Nana
Amoakowaa. Consequently, the
male Stool which was created for
the family was named after the
first male ancestors —Obeng Asua
and Gyamera. This historical
fact was admitted by the
defendant who said the name of
the Krobo Stool was Gyamera and
Anbengsua (a corrupted form of
Obeng Sua) even though D.W.11
(the Adesinahene) said the Stool
was called Asiedu Panin and
Akyeampong. Defendant who
claims to be owner of the Stool,
supported the Plaintiff's
evidence! With this
contradiction in the Defendant's
evidence, the Plaintiff's
evidence stood supported and
more creditable. Under customary
law, a Stool is named after the
first ancestors for whom a Stool
is created. This evidence
supports unmistakenly the
Plaintiff's claim that it was
his family for whom the Krobo
Stool was created and that it
was the Antoahene alone who
could have created that Stool.
As to the women who had occupied
the female Stool, the
Plaintiff's evidence was that
Nana Adwoa Serwaa was the
Obaapanin, She was followed by
Nana Saa, Nana Adoma and Nana
Ama Serwa in that order.
Defendant's evidence was that
Nana Gyaakye was the first
Obaapain and that as Abena Asor
was old she was by-passed.
According to him, Gyaakye was
succeeded by Abrafi from the
Asona family, then Adwoa Serwaa,
Adoma and Ama Serwaa, all from
the Plaintiff's family. It is
strange that Abrafi a sister of
Akyeampong who had travelled
together with him, should be
by-passed for Gyaakye, a younger
person. Alhaji Kru (D.W.1) was
emphatic that the 1st Obaapanin
of the Stool was rather Abena
Asor followed by Gyaakye. Why
this inconsistency! It is
obvious that the Defendant was
very unsure of his own history.
In the circumstances the more
acceptable evidence was that the
Defendant's family together with
Kru's has never occupied the
female Stool. It is also strange
that after Abena Asor (even if
she is accepted to be the lst
Obaapanin) Gyaakye and Abrafi,
all the subsequent Obaapanins
had come from the Plaintiff's
family; a family which had only
come to trade and had been
accommodated! Is it also the
case that only minors were left
or that there were no more
females in that family?
It could be seen that while the
Plaintiff's evidence showed
consistency and support from his
witnesses, the Defendant's
evidence revealed such fatal
contradictions that made his
evidence unreliable.
It was not enough to say one has
some Stools, in the Stool room,
actual physical proof was
required especially, when Alhaji
Kru claimed he had removed them
to the Gyasehene's place. After
all, the Defendant did not deny
the Plaintiff's eligibility to
the Stool even if he did not
accept that the Stool was
created for them (Plaintiff's
family). The burden was upon the
Defendant to show that really
his Stools were among the stools
in the Stool room. This was
capable of proof!
The National House of Chiefs,
had, on the evidence accepted
that Alhaji Kru was the overall
head of the Stool family. This
they said was true otherwise,
the Queen mother would not have
given him Power of Attorney to
represent her. Is that the
custom, one may ask? The Head
of Family does not require any
Power of Attorney to act on
behalf of the family. In
Ashanti, apart from the
Obapanin's (Queenmother) primary
authority to nominate a
candidate for enstoolment on the
Stool, she exercises no other
power for and above the Head of
Family (Abusuapanin)
particularly when the matter
concerns the Stool, land or is
in respect of litigation. He
exercises that authority in his
own right. To obtain a Power of
Attorney from the Obaapanin
(Queenmother) who could also
take away that power, before the
head of family could act, does
not accord with custom. What it
means is that that Head of
Family could not be the head or
overall head of the Stool
family. The Plaintiff said that
his head of family was one
Afram.
The Defendant to a question,
"Q. Do you know Kwaakuma?"
Answered
"A. Yes, I know him". Asked
again,
"Q. What is Kwaakuma's status at
Krobo?" Answered
"A. Kwaakuma was the head of my
mother's family.
Does that mean that each family
has its own Head of Family?
Under custom, it is possible for
each family to have its own
family head, but it is
unthinkable that three different
families of different clans
would have one head even if they
have joined together. The
Plaintiff explained that she had
given a Power of Attorney to
Alhaji Kru to perform certain
specific functions on her behalf
and that as soon as that
assignment was over, she had
withdrawn the power. The
evidence shows that Alhaji Kru
was related patrilineally to the
Plaintiff. Alhaji Kru was also
older. There was nothing wrong
with the Plaintiff giving him
Power of Attorney to represent
her in a matter unrelated to
headship of the Krobo Stool. As
a matter of fact, it was
suggested to the Plaintiff that
she had admitted before Oheneba
Akyeampemhene, the Acting
President of the Kumasi
Traditional Council that Alhaji
Kru was the undisputed
Abusuapanin of the Krobo Stool.
This, the Plaintiff had denied.
No attempt was made to prove
this.
Another issue which related to
the Stool was the family to
which Osei Sampam who is
admitted to have ascended the
Krobo Stool, belonged.
According to the Defendant, it
was during the reign of Osei
Sampam that the Plaintiff's
family arrived at Krobo. The
Plaintiff had denied this and
had said Osei Sampam was a
member of her family and had
succeeded Nana Obeng-Asua on the
Stool after the latter's death.
She had explained that Osei
Sampam, the brother of Adwoa
Serwaa was the son of Adutwumwaa
who was the daughter of Durowaa
a daughter of Nana Amoakowaa.
While the Plaintiff's story
stood uncontradicted, the
Defendant could not trace
clearly the ancestry of Osei
Sampam, apart from saying that
Osei Sampam was an Asona. That
Osei Sampam was an Asona was not
in dispute, but to which Asona
group was he? The evidence shows
overwhelmingly that he was of
the Plaintiff's family.
There is another matter which
the Committee faulted in its
conclusion. The Committee seems
to have come to the conclusion
that the Defendant had been
nominated for enstoolment as
Krobohene. Even if the
Defendant was eligible to that
Stool, there was no conclusive
evidence that he had been
properly nominated for
enstoolment. What the evidence
shows is that after the
rejection of Opoku Mensah, the
Obaapanin's nominee, there were
no further nominations by the
Obaapanin. Rather, the
Kingmakers and elders had
nominated the Defendant,
whereupon the Plaintiff had
sworn the Great oath. According
to the Plaintiff -
"........ In view of these three
charges preferred against my
candidate Opoku Mensah he swore
Otumfuo's Great oath that the
charges made against him could
not in any was constitute a
barrier and impediment to his
coming to mount his ancestral
Stool ....................... I,
Plaintiff’s Attorney therefore
initiated Otumfuo's Great Oath
that Anthony Kweku Opoku
(Defendant herein) is not
eligible to the Krobo Stool but
rather Krobo Benkum Stool ..."
Earlier, to a question asked by
the Plaintiff,
Q. Can you name the three
candidates the Obaapanin
nominated and were rejected?"
The Defendant answered,
"A. I was told that Alhaji
Kwaku Kru head of the royal
family nominated Osei Yaw, Kwasi
Nyamekye and Opoku but they were
rejected by the Krobo Elders and
people".
Further, when cross-examined by
the Plaintiff on this issue —
“Q. Do you not remember that
when the case came before
Otumfuo you were found liable
and that Otumfuo directed that
you must follow the laid down
customary procedure in your bid
for the Stool if indeed you are
eligible.
Alhaji Kwaku Kru (D.W.1)
answered,
"A. When we appeared before
Otumfuo, he nullified the
installation that we made at
Krobo on the ground that we did
not follow the laid down Asante
custom".
It is clear from the evidence
that, the finding made by the
House was not borne out by the
evidence on record. While the
House was quick to find fault
with the Plaintiff's evidence,
it failed to look critically at
the evidence led by the
Defendant. If it had done so it
would not have come to the wrong
conclusion it came to. I accept
the conclusions came to by the
Regional House of Chiefs: These
were based on the evidence
adduced and the relevant
customary law applicable in the
matter. I would accordingly
allow the appeal, set aside the
judgment of the National House
of Chiefs and that of the Kumasi
Traditional Council and restore
the judgment of the Regional
House of Chiefs. The Plaintiff
succeeds on her claim and is
entitled to judgment
accordingly.
ADJABENG, J.S.C.:
This is an appeal by the
Plaintiff/Appellant against the
unanimous decision of the
Judicial Committee of the
National House of Chiefs which
had reversed the majority
decision of the Ashanti Regional
House of Chiefs and restored the
majority decision of the Kumasi
Traditional Council. The
decision restored by the
National House of Chiefs was in
favour of the
Defendant/Respondent herein.
The action in this matter
started by the swearing of the
great oath of Ashanti by the
Appellant herein for and on
behalf of the Queenmother of
Krobo in Ashanti to the effect
that the Defendant/Respondent
herein is not a royal to the
Krobo Stool and is, therefore,
not eligible to ascend the said
stool, and that he is only
eligible to ascend the Benkum
Stool of Krobo.
The Defendant/Respondent replied
by also swearing the great oath
to the effect that he is a royal
of the Krobo Stool and that his
ancestors' black stools exist
among the black stools of Krobo
and, therefore, eligible to
ascend the said stool. According
to the majority decision of the
Judicial Committee of the Kumasi
Traditional Council, the
Appellant gave evidence before
them that
"their ancestors, Nana
Amoakowaa, Obeng Asia (the
brother of Amoakowaa) Gyamera
and Duruwaa all children of
Amoakowaa moved from Beposo in
the Ashanti Region and founded
Krobo near Antoa, their present
domicile."
That the Appellant said that
"….their ancestors brought with
them their male and female Asona
black stools to Krobo.
Plaintiff's ancestors passed
through Dumanafuo on their
journey to Antoa. On reaching
Antoa they were hosted by the
then Krontihene [of] Antoa, Nana
Derkyi. Later they were
introduced to the Chief of
Antoa, Nana Antoa Nyinah I, by
Nana Derkyi Krontihene of Antoa,
their host. After their
introduction to Antoahene, they
were introduced to King Opoku
Ware I by Antoahene. These
customary introductions having
been completed, Nana Antoahene
requested the host of
Plaintiff's ancestors (Nana
Derkyi, Krontihene of Antoa) to
allocate a piece of land beyond
Adesina to Plaintiff's ancestors
to settle on" At all these
material times, states the
majority decision of the Kumasi
Traditional Council, the
Appellant's ancestors "never
disclosed the presence of their
two black stools to neither
their host, Antoahene nor the
Asantehene for no apparent
reason."
The Appellant explained in her
evidence at the trial in the
Kumasi Traditional Council that
her ancestors moved from Beposo
because of tribal wars that were
rampant in the area at the time.
According to her, their
ancestor, Nana Obeng Asia,
became the first Odikro of Krobo
after it had been founded. His
successors were Nana Osei
Sampan, Nana Kofi Abe, Nana
Kwasi Obeng, Nana Asamoah Yaw,
and Nana Osei Kuffour and that
all these were members of their
Asona Family.
In respect of the female stool,
the Appellant said that the
Queenmothers of Krobo were Nana
Adwoa Serwaa and her successors,
Nana Saa, Nana Adoma and Nana
Ama Serwaa who was the
Queenmother of Krobo at the time
of the trial, and that all came
from the Plaintiff/Appellant's
Asona Family.
Giving evidence on the
Defendant/Respondent's ancestry,
the Appellant said that the
Defendant's ancestors who were
also Asona came to Krobo shortly
after it had been founded.
According to the Appellant,
"the Defendant's Family who are
also from the Asona Clan in the
olden days came to join
us and seek family alliance with
my family." However, the two
families, even though they
stayed together for a very long
time yet, according to the
Plaintiff, they are "different
and distinct in the sense that
each family holds its own
funeral." Also, according to the
Plaintiff, because of "the
cordial and long relationship
between my family and Anthony's
family my granduncle Asamoah yaw
decided to create the Benkum
Stool of Krobo for Defendant's
family."
The Plaintiff called four
witnesses in support of her
case, namely, the Krontihene of
Antoa (P.W.1), the Antoahene
(P.W.2), one Akosua Kwadwowa
(P.W.3), a member of the
Plaintiff's family, and one
Collins K. Edusei, a Registrar
at the Kumasi Traditional
Council.
In his evidence, the
Defendant/Respondent traced his
eligibility to the Krobo Stool
through his ancestors Nana
Akyeampong, Abrafi, and Osei
Sampan who all belonged to the
Asona Clan and migrated from
Akyem Adesina, According to the
Defendant's evidence, his Asona
ancestors and some Ekuona people
all from Akyem Adesina moved
from their home at Akyem to
Ashanti to escape from the
threatened invasion of Akyem by
the Asantehene at the time,
Otumfuo Osei Tutu I. In
Ashanti, they lodged the
Adesinahene who, the following
day, led them to his overlord,
the Antoahene, and told him of
their mission. The Antoahene in
turn led them to the Asantehene,
Otumfuo Osei Tutu I. The
Asantehene then directed that a
suitable place be found to
settle the Defendant's
ancestors. On their return to
Antoa, the Antoahene asked the
Adesinahene, who was the host of
the Defendant's ancestors, to
allocate a portion of his land
to settle the strangers. Hence
the Adesinahene allocated a
place to them where they
settled, and that place is the
present Krobo. A Stool was later
created for them by the
Adesinahene, their host, to be
occupied jointly by the
Defendant's Asona Clan and the
Ekuonas with whom the
Defendant's ancestors came. The
first occupant of the stool was
Nana Asiedu Panin who was an
Ekuona with whom the Defendant's
ancestor Nana Akyeampong came
from Akyem Adesina. He was the
first to occupy the stool
because he was senior to Nana
Akyeampong, an Asona, who became
the second occupant of the stool
after the death of Nana Asiedu
Panin. After the death of Nana
Akyeampong, an Ekuona, Nana Kofi
Dadwa, succeeded, and after him,
Nana Osei Sampan, an Asona,
again succeeded.
As to how the Plaintiff's Asona
Clan came to enjoy the Krobo
Stool with them, the Defendant
said in his evidence that the
Plaintiff's ancestress, Adoma,
an Asona, moved from Beposo, her
ancestral home, and settled at
Krobo to trade in groundnuts and
established an alliance with the
Defendant's Asona family. The
Plaintiff's ancestors were,
therefore, later accorded the
same privileges and rights as
the Defendant's Asona Family at
Krobo. Thus, the Krobo stool
came to be enjoyed jointly by
the Ekuona, the Defendant's
Asona, and the Plaintiff's Asona
Families. To support this
contention with recent events,
the Defendant gave evidence that
when Nana Osei Kuffour, from the
Plaintiff's Asona Family, was
destooled, the Queenmother, on
whose behalf this action was
instituted, gave a Power of
Attorney to Alhaji Kwaku Kru
(D.W.1), an Ekuona, to look
after Krobo until a chief was
installed. The said D.W.1 was at
the time the Abusuapanin of
Krobo. Later, one S.K. Mainoo,
an Ekuona was installed as the
Chief of Krobo with the consent
of the said Queenmother.
Later, when the said S.K. Mainoo
died in the course of his
dispute with the Antoahene as to
whether to swear oath to
Antoahene or directly to the
Asantehene, the Defendant
applied to the Plaintiff, the
Queenmother, for the stool.
According to his evidence, the
Defendant was accepted by the
said Queenmother and,
consequently, the Defendant was
installed as the Krobohene by
the King makers and elders of
Krobo. The Defendant called
three witnesses in support of
his case, and also tendered in
evidence five exhibits.
After considering the evidence
adduced by both parties, the
majority of the members of the
Judicial Committee of the Kumasi
Traditional Council concluded
that they were not impressed by
the Plaintiff's case and so
rejected her story. They
accepted the Defendant's case as
they were satisfied with the
evidence adduced by him. They
gave many reasons for their
decision.
On appeal to the Ashanti Region
House of Chiefs, the majority of
the Judicial Committee there
reversed the decision of the
Traditional Council. In their
effort to justify their
decision, the majority of the
Nananom, purported to make their
own findings of fact without
regard to the findings made by
the trial Tribunal who saw the
witnesses, and without regard to
the whole evidence adduced.
Worse of all, they either
distorted the evidence, or they
did not understand it. For
example, the Defendant never
said in his evidence that his
ancestor was an Ekuona. The
Defendant's evidence was that he
traced his ancestry to Nana
Akyeampong, an Asona, who was
the second Krobo Chief. The
majority decision of the Kumasi
Traditional Council made a
finding to that effect and their
finding is supported by the
evidence. It was wrong,
therefore, for the majority of
the Ashanti Region House of
Chiefs, an appellate tribunal,
to ignore the findings of the
trial tribunal which is
supported by the evidence, and
purport to make their own
findings. And to do this when
they even seemed not to have
understood the evidence on
record is unpardonable.
Reading through their decision,
one can find numerous instances
of this error. Indeed, the
majority decision of the Ashanti
Region House of Chiefs was based
on facts which had been rejected
by the trial tribunal for good
reasons. It must be stated,
however, that the minority
decision of the Ashanti Region
House of Chiefs did well and
even quoted the evidence of
P.W.2, Antoahene, to show that
the trial tribunal's findings
that D.W.1, Alhaji Kwaku Kru,
was the Abusuapanyin of Krobo,
was supported by the evidence,
whilst the majority decision
purported to make their own
findings that the said D.W.1 was
not the Abusuapanyin, obviously
without reference to the
evidence of even the Plaintiff's
own witness.
The errors committed in the
majority decision of the Ashanti
Region House of Chiefs are so
glaring, especially when one
compares it with the minority
decision therein, that it is not
surprising at all that the
National House of Chiefs
unanimously reversed the said
majority decision when the
matter came before them on
appeal. Against the decision of
the National House of Chiefs,
the Defendant/Appellant appealed
to this court on four grounds.
These are: —
"(i) The judgment is against
the weight of evidence.
(ii) The National House of
Chiefs misconceived its function
as a second appellate Tribunal,
and erred in law in failing to
give any or due weight to the
unrebutted evidence that the
name of the Krobo Stool was
'Gyamera Bensua' Stool.
(iii) The National House of
Chiefs erred in law when it
purported to make findings
without considering the evidence
of the Plaintiff/Appellant and
her witnesses.
(iv) The National House of
Chiefs erred in law when it held
that a matrilineal stool could
be CREATED for two friends of
different clans."
In her statement of case filed
in this Court, the Appellant's
Counsel concedes that:–
"At first the Obaapanin seemed
to say that that stool was
brought by her ancestors with
them from Beposo but, as will
soon be seen later, she changed
her stand on this to accept the
history given by Antoahene to
the effect that the Krobo
[Stool] was rather created for
the Obaapanin's Family by
Antoahene. This volte face would
in some other Chieftaincy
dispute have had a serious
adverse effect on the
Obaapanin's case as far as it
was based on traditional
history but, having regard to
the nature of the dispute in
this case, the contradiction is
of no significance. It is of no
significance because, once the
Obaapanin's family is considered
as being a royal house of Krobo
the Obaapanin had no burden of
proving how her family came by
the Krobo Stool in order to
succeed in this suit. In other
words, the royal status of her
family not being in dispute it
becomes [ir] relevant how that
family gained a royal status
since the lawfulness or
legitimacy of its royal origin
is conclusively presumed. It
would have been otherwise if
this case had been that type of
Chieftaincy dispute in which
while the Obaapanin was claiming
exclusive royal status for her
family the Respondent was also
doing the same for his family;
in that event each party would
have borne an equal burden of
establishing how his or her
family acquired the royal status
claimed. In this case, having
conceded, as the Respondent did,
that the Obaapanin's family is a
royal the presumption is that
this status is exclusive and the
burden falls on the Respondent
to establish satisfactorily how
his family also became a royal
house."
In the view of the Appellant's
Counsel, this was really the
nature of the dispute in this
case and that the National House
of Chiefs "treated the dispute
as if both the Appellant and the
Respondent were required to show
how their respective families
acquired the right to the status
of a royal house in relation to
the Krobo Stool". Counsel argued
that if the National House of
Chiefs
"had been able to appreciate the
central issue in this case and
recognized that the onus was on
the Respondent to prove
satisfactorily how his family
became a royal house to the
Krobo Stool and had appreciated
that the Respondent'
evidence...., failed to meet
that onus the House would not
have entered judgment for the
Respondent as it did. As it
happened, having missed the
central issue in the case the
National House was misled into
giving a judgment touching the
central issue which is clearly
against the weight of evidence."
No doubt, the above submissions
are the basis of the
Plaintiff/Appellant's appeal
before us. On the submissions,
I think that Counsel is wrong in
his contention that the burden
of proof was only on the
Defendant/Respondent in this
case. Counsel, in my view, is
also wrong in his submission
that the Respondent's evidence
failed to meet the burden that
was on him. In respect of the
first submission, it is well
established by our Courts that
chieftaincy trials are
fact-finding proceedings in
which both parties are required
to establish satisfactorily
their respective cases. Thus
the full bench of the Court of
Appeal observed in Kyere vrs.
Kangah [1978] 1 G.L.R. 83 at 91
that
"broadly, the trial of a dispute
involving chieftaincy is more in
the nature of fact-finding
inquiry."
See also Nyamekye vrs. Tawiah
[1979] G.L.R. 265 and this
Court's recent case of Obrasiwah
II vrs. Out [1996-97] SC G.L.R.
618 at 621. Since the parties
disputed each others story as to
the history of the Krobo Stool,
each had a duty to establish his
or her case to the satisfaction
of the trial Judicial Committee
of the Kumasi Traditional
Council who saw and heard the
parties and their witnesses.
From what they heard and saw,
the said Committee accepted the
case of the Defendant that the
Krobo Town was founded by his
ancestor Nana Akyeampong jointly
with his friend Nana Asiedu
Panin both of whom had migrated
from Akyem Adesina. That a
stool was subsequently created
for the two friends and that
Asiedu Panin, an Ekuona, being
the senior, was the first Chief
to occupy the Stool. That after
his death the Defendant's said
ancestor, Akyeampong, succeeded
him. He was an Asona. That after
Nana Akyeampong, another Ekuona,
called Nana Dadwa succeeded.
Then another Asona, Nana Osei
Sampa, succeeded. Thereafter,
members of the Plaintiff's Asona
Family who had migrated from
Beposo-Ashanti and had by now
formed a close relationship with
the Defendant's Asona Family
also started to ascend the Krobo
Stool. The Judicial Committee of
the Kumasi Traditional Council
also found that it was the
Adesinahene, who was the host of
the Defendant's ancestors and
was directed by the Antoahene to
allocate part of his land to
them to settle on, who created
the Krobo Stool for them, and
that there was nothing wrong
customarily with the creation of
the stool by the Adesinahene. In
their judgment, they said:–
"The Committee accepts the
evidence of Defendant that a
stool can be created for two
separate family clans for
example Ekuona and Asona
Families as in the case of the
Krobo Stool. This is because
Akyeampong, an Asona and Asiedu
Panin an Ekuona were good
friends at Akim Adesina and
moved together with their
families to Asante. Krobo was
also founded by the two
families. By Asante custom,
therefore, when a stool is being
created for the founder of the
settlement (Krobo), it would be
for the two families, i.e.
Ekuona and Asona groups of
family, who are the founders of
the settlement, Krobo. And it
is for this reason that
Akyeampong, an Asona and
co-founder of Krobo succeeded
Asiedu Panin, an Ekuona, and
first Odikro of Krobo."
The Judicial Committee of the
Kumasi Traditional Council also
accepted the Defendant's
evidence that he, Defendant, did
apply for the Krobo Stool and
that his customary drinks which
he presented to the Plaintiff,
the Queenmother, were accepted
by her. Of this the said
Judicial Committee said as
follows:–
"it is further evidenced by
D.W.1 Abusuapanin of the Krobo
Stool that the share of the
customary drinks presented by
Defendant given to Plaintiff was
ten thousand cedis (¢10,000.00)
and two bottles of schnapps. It
must be pointed out that this
averment of witness still stands
unchallenged by Plaintiff. We
hold the view that if Defendant
is not eligible to the Krobo
Stool, Plaintiff by custom would
have said so immediately and
would have refused his customary
'dwantoa' drinks, but to accept
the customary drinks for his
dwantoa and have them shared as
Plaintiff did is an indication
that Defendant has right of
eligibility to the Krobo Stool."
Another matter which greatly
influenced the decision of the
majority of the Judicial
Committee of the Kumasi
Traditional Council was their
acceptance of the Defendant's
evidence that his ancestors'
black stools were among the
black stools of Krobo.
On the whole, therefore, the
majority of the Kumasi
Traditional Council accepted the
Defendant's case and rejected
the Plaintiff's case. They gave
cogent reasons for rejecting the
Plaintiff's case, some of which
were that some of the evidence
of the Plaintiff and her
witnesses was contradictory,
that her principal witness, the
Antoahene, said he did not know
"the eligible and non-eligible
royals of Krobo," and that the
Plaintiff's story about their
migration from Beposo Ashanti to
Krobo with two black stools was
not believed. They thus gave
judgment for the Defendant and,
it must be stated, that their
findings and the judgment are
fully supported by the evidence
on record.
As I have said earlier in this
judgment, the majority of the
Judicial Committee of the
Ashanti Region House of Chiefs
purported to make their own
findings of fact regardless of
the findings already made by the
trial tribunal which saw and
heard the evidence. And in
making their new findings, the
majority of the Ashanti Region
House of Chiefs distorted some
of the evidence on record or
just did not understand it. For
example, they purported to have
found, contrary to the evidence
on record, that the Defendant is
an Ekuona and that his ancestors
were Ekuonas. Also, they found
that D.W.1, Alhaji Kwaku Kru, an
Ekuona, was not Abusuapanin of
Krobo when the trial tribunal
had already found that D.W.1 was
Abusuapanin of Krobo and,
especially, when the evidence of
the Plaintiff's own witness,
P.W.2, the Antoahene, had
confirmed that fact under
cross-examination.
What the majority of the Ashanti
Region House of Chiefs did in
this case when the appeal went
before them was the very thing
that this Court condemned in the
case of Ababio vrs. Bekoe II
[1996-97] SC G.LR. 392. The
Court in that case, per Ampiah,
J.S.C., held, as stated in the
head note that:
"Not having seen the witnesses,
the Appellate Court was in a
permanent position of
disadvantage against the trial
judge. Consequently, unless it
could be shown that the trial
judge had failed to use or had
palpably misused his advantage,
by for example, failing to
observe inconsistencies or
indisputable fact or material
probabilities, the higher Courts
ought not to take the
responsibility of reversing
conclusions so arrived at merely
as a result of their own
comparison and criticisms of the
witnesses and of their own view
of the probabilities of the
case. In the instant case, the
Ashanti Regional House of Chiefs
had erred in reversing the
findings of the Kumasi
Traditional Council since there
was evidence in support of the
Traditional Council's findings
and which were rightly accepted
by the National House of
Chiefs."
In the case before us, I have no
hesitation at all in saying that
the National House of Chiefs was
right, on the above authority,
in reversing the majority
decision of the Ashanti Region
House of Chiefs, and in
restoring the majority decision
of the Kumasi Traditional
Council. See also the decision
of this Court in Achoro vrs.
Akanfela [1996-97] SC G.L.R.
209.
For the reasons given above the
appeal must fail and ought to be
dismissed.
ATUGUBA, J.S.C.:
This is a case which ought to be
decided by the Heavens
themselves than by men. But by
men it must be decided and so I
decide it.
In this case the Appellant lost
in the trial Traditional Council
by a majority of 2-1, won in the
Ashanti Regional House of Chiefs
by a majority of 2-1 and lost
unanimously in the National
House of Chiefs. Both the
Kumasi Traditional Council and
the National House of Chiefs
based their judgments on careful
and analytical consideration of
traditional evidence tested
against recent acts. That is
the approach laid down by the
Courts of this country with
consistency.
The said principle was restated
admirably by Adade, J.S.C. in
OBAAPANIN AKUA AMOANIMAA PER
OPANIN KWAKU DUA (ATTORNEY) VRS.
NANA OSEI KWAME (1995) 1
G.S.C.J. 334 at 338 as follows:
—
"The institution of Chieftaincy
is itself a traditional
institution, and constitutes the
social and political foundation
of the particular community.
Thus when a Chieftaincy dispute
arises, it is always essential
that, at least for the sake of
stability within the community,
a solution is sought which is
anchored firmly in the
traditions of that stool, and
which respects those traditions.
A solution which flies in the
face of the tradition and is
seen glaringly to contradict it,
is not likely to be acceptable
to the community, and creates a
recipe for dissatisfaction,
disaffection and dissensions,
and, at the least provocation
civil strife and conflicts. Thus
in all these cases every effort
must be made to ascertain what
the tradition of the stool is.
Where the parties broadly agree
on the tradition, this must
inform the decision of the
Court. Where parties do not
agree, as where the traditional
accounts are widely and wildly
divergent, or where the
traditional history is lost in
the murky corridors of time,
then recourse may be hard to
practices within relatively
recent times to determine what
the tradition probably is."
But let it be emphasised that
the recent events or practices
are called in only as an aid to
ascertaining the tradition, as
far as this can be done.
This to me is the whole point in
Adjeibi Kojo vrs. Bonsie 3
W.A.L.R. 257, an authority with
which we are constantly assailed
in virtually every chieftaincy
appeal. The particular passage
often thrown at us runs:
"Where there is a conflict of
traditional history, one side or
the other must be mistaken, yet
both may be honest in their
beliefs. In such a case
demeanour is little guide to the
truth. The best way is to test
the traditional history by
reference to the facts in recent
years as established by evidence
and by seeing which of two
conflicting competing
traditional histories is the
most probable..... (ibid at page
260) (emphasis supplied).
Therefore the quest, ultimately,
is for an acceptable traditional
history, not just a recent
practice.”
In this case certain essential
facts have been admitted.
(1) At page 42, between lines
20-28 of the record, P.W.1 the
Krontihene of the Antoa Stool
testified as follows:
"Q. Do you not know that some
people had cultivated groundnuts
at the area your predecessor
allocated to the visitors?
A. Yes it is true that the area
(has) been connected with the
cultivation of Groundnuts at the
time of the strangers arrival."
It is easy from the record to
tell that this weighs in favour
of the Respondents' account of
the founding of Krobo.
(2) That the name Krobo is
derived from a tree at the site
of the Krobo settlement. It is
clear from the record that
whilst the Respondents say that
that tree was a "Kro" tree, the
Appellants say it was a Krobo
Tree. It should not be
difficult to tell whether the
name "Krobo" was derived from
"Kro" or rather from "Krobo".
(3) That Nana osei Tutu I
preceded Nana Opoku Ware I and
that while Appellant's family
persists with great evidential
support that they came to Krobo
during the reign of Nana Opoku
Ware I the Respondent's family
similarly persists that they
came to Krobo during the reign
of Nana Osei Tutu I. The bearing
of this on the issue of which
family founded Krobo, is
obvious.
(4) At p. 73 between lines 6-14
of the record P.W.3 admitted as
follows:
"Q. Will you not agree with me
that Alhaji Kwa Kru is quite
conversant with the history of
Krobo Stool that is why the
Obaapanin mandated him to
contest a case on her behalf?
A. Yes, I accept that Alhaji Kwa
Kru was given the Power of
Attorney by the Obaapanin of
Krobo to litigate on her behalf
in view of the fact that he
(Alhaji) is quite conversant
with Krobo Stool history.
It is undisputable that this
same Alhaji Kwa Kru (whether an
Abusuapanin of the Krobo Stool
or not) testified to Krobo
history in support of the
Respondent's case.
It has been held in NYAMEKYE
vrs. TAWIAH (1979) G.L.R 265
that though notions of burden of
proof do not apply to trials by
Chieftaincy Tribunals, yet they
can utilise admissions in favour
of a party's case to arrive at
their decisions. Some of the
admissions
I have referred to supra and
others were used and could have
been used to support the
judgments of the National House
of Chief and the Kumasi
Traditional Council in favour of
the Respondents' case.
It is also noteworthy that an
entirely independent witness,
D.W.3, Nana Atta Frimpong Manso
II, the Abontendonhene of Krobo,
supported the Respondents' case
in all material aspects.
It is however noteworthy that
the Defendant admitted in
cross-examination that the name
of the Krobo Stool is "Gyamera
Bonsuo" as contended by the
Appellant. But the National
House of Chiefs has explained
that that does not necessarily
mean that the name is derived
from the founder of the stool.
It is also contended that
because the Defendant is
patrilineally related to the
Plaintiff therefore the
Defendant cannot be a royal.
But the Plaintiff who contends
that her family has the
exclusive ownership of the Krobo
Stool is faced with the stark
reality of the ascension to that
stool by the late S.K. Mainoo of
the Ekuona Clan and that Clan
persistently claims that it owns
the Krobo Stool jointly with the
family of the Defendant and
rather admitted the Plaintiff's
family to that stool out of
grace; it also being an Asona
migrant, albeit from Beposo in
Ashanti while they originated
from Akyem.
I agree with Adade, J.S.C.'s
dictum in OBAAPANIN AKUA
AMONANIMAA vrs. NANA OSEI KWAME,
supra that
"The question of the de facto
occupant of the Stool is
however, not completely
irrelevant, it may help to
determine ownership. But the
answer to it must be used in
concert with the totality of the
evidence before the tribunal.
After all, a person occupying a
house is not necessarily the
owner of the house."
But in this case the ascension
of S.K. Mainoo to the disputed
stool is not merely de facto.
It is based on the presence of
the black stools of his family
among the Krobo Stools. As the
Kumasi Traditional Council said
in its majority judgment, at
pages 176 - 177 of the record,
"in support of our acceptance
that Defendant is eligible to
the Krobo Stool, we quote as an
authority, the customary law
enunciated in the case between
Dr. F.S. Gyapong and Nana Poku
Tuase Kanko heard by the
Chieftaincy Tribunal of the
National House of Chiefs under
the Chairmanship of Odeefuo Boa
Amponsem III, Denkyirahene.
"The National House of Chiefs
have said more than once that
the creation and or blackening
of a stool for a line or family
is not fancy and once that is
done it entitles the group or
line or family for which the
stool was created or blackened
to succeed to the stool and when
the new stool(s) is or are mixed
with other stools all the stools
acquire the same rights and
status without discrimination.
"Ade to bom mu a yenyi" (if
something fails in a deep well
it is irretrievable.")" The
National House of Chiefs,
following suit in this appeal,
has held at page 303 of the
Record as follows:
"All these aside there is the
uncontroverted claim by the
Appellants that they have three
stools of their ancestors among
the stools of Krobo, stools
belonging to Asona of Akyem
origin and Ekuona. This fact in
the absence of any evidence that
the stool was created
specifically for patrilineal
descent goes to buttress the
fact that both Asona and Ekuona
can ascend the Krobo Stool from
maternal line and still supports
the version of the Appellants.
In any effect the totality of
the evidence admits the fact
that Appellant is a royal to the
Krobo Stool either through
creation of the stool for both
Asona and Ekuona or the fact
that his ancestors have their
stools among the stools of
Krobo."
It is a worn-out principle of
law that findings of fact made
by a trial Court are presumed to
be right and the onus is on the
Respondent to displace that
presumption. This aspect has
been amply dealt with by my
brother Adjabeng, J.S.C. and I
need not further belabour it.
Even though my mind wavered over
this matter like a ship on the
tempestuous high seas, it
finally found the vivid
judgments of the Kumasi
Traditional Council and the
National House of Chiefs a safe
harbour and therein docked.
It has been held in several
cases that the National House of
Chiefs is the highest authority
in Chieftaincy matters in this
country subject to a few
well-known caveats.
I would also dismiss this
appeal.
SOPHIA AKUFFO, J.S.C.:
On July 21st 1999, I supported
my learned brothers, Adjabeng
and Atuguba, JJ.S.C., in
dismissing this appeal and
indicated that I would file my
reasons later.
The genesis of the suit, which
gave rise to this appeal has
been summarised by my brother
Adjabeng, in his learned opinion
and there is no reason for me to
elaborate thereon. The grounds
of appeal, as set out in the
Appellant's Notice of Appeal
filed on July 11 th 1997, are as
follows:–
(a) The judgment is against the
weight of the evidence.
(b) The National House of Chiefs
misconceived its function as a
second appellate tribunal and
erred in law in failing to give
any or due weight to the
unrebutted evidence that the
name of the Krobo Stool was
"Gyamera Brensua" Stool.
(c) The National House of
Chiefs erred in law when it
purported to make findings
without considering the evidence
of the Appellant and her
witnesses.
(d) The National House of Chiefs
erred in law when it held that a
matrilineal stool could be
created for two friends of
different clans.
The reliefs sought by the
Appellant are that the judgment
of the National House of Chiefs
be set aside and judgment
entered for the Appellant.
A close analysis of the
Appellant Counsel's Statement of
Case, however, shows that the
gravamen of the appeal is what
is contained in the first ground
of appeal since the second and
third grounds are in reality,
aspects of the first ground and
may subsumed thereunder. As to
the fourth ground of appeal, I
have not come across any law
that in Krobo in particular or
Ashanti in general a matrilineal
stool may never be created for
two friends from different
clans. Counsel also was not able
to draw our attention to any
such law. It, therefore, becomes
a question of whether or, not on
the evidence, the Krobo Stool,
though matrilineal, was indeed
created for two different clans.
Essentially, therefore, this is
an appeal on facts and our sole
task is to determine whether or
not the evidence on record
sufficiently supports the
conclusions reached by the
National House of Chiefs.
I have combed through the
evidence presented by both
parties before the Traditional
Council and it is clear to me
that the judgment of the
National House of Chiefs is
fully supported by the record.
Coupled with this is the fact
that the majority of the
Traditional Council had earlier
arrived at the same conclusion.
Both tribunals found the case,
as presented by the Respondent,
herein to be the more probable.
Moreover, when one reads the
majority judgment of the
Regional House of Chiefs, one
cannot help but wonder whether
they were indeed dealing with
the same sets of evidence as are
contained in the record before
us. If they were, then, one can
only conclude that they totally
failed to comprehend the record
before them.
In the case of Achoro v.
Akanfela [1996-97] SC G.L.R.
209, my learned brother Acquah,
J.S.C. delivering the judgment
of this court, at page 214-215,
put the legal position in the
following terms:–
"... in an appeal against
findings of facts to a second
appellate Court like this Court,
where a 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. It must be established
... that the lower courts
clearly erred in the face of a
crucial documentary evidence, or
that a principle of evidence had
not properly been applied ...
or... that the finding is so
based on erroneous proposition
of the law that if that
proposition be corrected, the
finding disappears. In short it
must be demonstrated that the
judgments of the courts below
are clearly wrong...."
Furthermore, as was pointed out
by the Court of Appeal in
Ampomah v. Volta River Authority
[1989-90] 2 G.L.R. 28, in an
appeal, which is, essentially,
based on a charge that the
judgment is against the weight
of the evidence, it is for the
Appellant to demonstrate to us
that the judgment was indeed
against the weight of the
evidence. (See also Akenteng II
v. Ayeremah [1996-97] SC G.L.R.
384 at 387 where this approach
was adopted by my learned sister
Bamford-Addo, J.S.C). Our only
duty in this matter is to test
the conclusions arrived at by
the National House of Chiefs
against the totality of the
evidence on record to ascertain
whether or not the evidence
supports those conclusions.
Thus, if the totality of the
evidence on record sufficiently
support the conclusions reached
by the National House of Chiefs,
it is not our function, as an
appellate court, to substitute
our own evaluation of the
evidence in place of that of
Nananom merely on the basis
that, from our perspective,
particular pieces of the
evidence ought to have been
assigned more or less weight.
In arriving at its unanimous
decision, the National House of
Chiefs, thoroughly reviewed the
evidence adduced by both parties
and reduced the historical and
other evidence of both parties
into the following issues:–
1 Migration
2. Settlement
3. Fusion of the two Asona
groups
4. Creation of the Stool
5. The position of Alhaji Kwaku
Kru
Considering the nature of the
dispute and the evidence
presented by the parties to
support their respective claims,
one cannot fault the approach
taken by Nananom to simplify
their analysis of the evidence.
On the first issue, Nananom took
into particular account the
following pieces of evidence:–
a. The Respondent's evidence
that at the time his ancestors
migrated from Akyem to the
Ashanti Kingdom, Nana Osei Tutu
I was the Asantehene and there
was a war looming between the
Ashantis and the Akyems.
b. The Respondent's evidence
that his ancestors migrated from
Akyem Adesina and lodged with
the Ashanti Adesinahene, who
introduced them to his overlord,
the Antoahene.
c. The Respondent's evidence
that the Antoahene, in turn, led
the migrants to Nana Osei Tutu I
who accepted them and ordered
that they be accommodated by the
Antoahene.
d. The Respondent's evidence
that the Antoahene handed the
migrants back to their host, the
Adesinahene with instructions to
find them a place for
settlement.
e. The evidence that the
Adesinahene settled them and
subsequently created for them
the Krobo stool whose occupant,
until the reign of Asamoah Yaw
when the Stool was elevated a
divisional status under the
Antoahene, swore to the
Adesinahene.
f. The Appellant's evidence
that her ancestors migrated from
Beposo, in Ashanti because of
frequent tribal wars.
g. The Appellant's evidence
that, though they had migrated
with their own Stools, they did
not disclose this fact to their
host. Regarding this piece of
evidence, Nananom agreed with
the conclusion of the
Traditional Council that, since
they did not reveal their
possession of the stools to the
Antoahene, they must have
arrived as ordinary young men
without any special skills who
are changing their domicile
within Ashanti. In that case,
there would have been no need to
introduce them to the Asantehene
for any special recognition
culminating in the creation of a
stool for them. Here it is worth
reminding oneself that, by the
Appellant's own evidence, the
alleged introduction to the
Asantehene is said to have
occurred before the alleged
creation of the new stool.
h. The Appellant's evidence that
everything done for the
migrants, including even the
alleged introduction to Nana
Opoku Ware, was done through the
Antoa Krontihene, without an
Okyeame, rather than the
Antoahene.
i. The Appellant's evidence
that although, to reach the site
of settlement, the Krontihene
and the migrants had to pass
through Adesina, the Krontihene
did not at any time then or
thereafter contact the
Adesinahene to introduce the
migrants who were about to
become his neighbours.
Nananom arrived at the
conclusion that:–
"Judging from the custom,
reasons and the sequence of
events we find the evidence on
migration of the Appellant
(Respondents herein) is more
reasonably probable than that of
the Respondent (Appellant
herein)."
In my view, the record, as well
as custom, supports this
conclusion and I see no reason
to reverse it. It is worthy of
note that the tribunal of first
instance, the Kumasi Traditional
Council, had likewise, preferred
the Respondent's version of
settlement against that of the
Appellant. In arriving at its
conclusion, the Traditional
Council based itself, in part,
on the customary law, as
expounded by E.E. Obeng
("Ancient Ashanti Chieftaincy"
page 2) and Warrington ("Notes
on Ashanti Custom" page 76) that
no Ashanti has the power to
change his allegiance from one
Ashanti Chief to another Ashanti
Chief. The Traditional Council
had also accepted the
Respondent's evidence on the
arrival of his ancestors and
their introduction to the
Asantehene as the more
probable. Their rationale was
unquestionable. As migrants from
a nation about to go to war with
the Ashantis, their host, the
Adesinahene, was customarily
bound to introduce them to his
overlord, the Antoahene. In
turn, the Adesinahene was bound
to introduce them, irrespective
of their status, to his
overlord, Nana Osei Tutu I, if
he wished to avoid the wrath of
the Asantehene.
Having thus preferred the
Respondent's version of the
sequence of events in the
migration of the ancestors of
the parties, the National House
of Chiefs also concluded that
the Respondent's version of the
settlement of the migrants was
the more probable. This
conclusion was irresistible for
the simple reason that Nana Osei
Tutu's reign preceded that of
Nana Opoku Ware. Additionally,
however, there was also the
evidence that the Respondent's
ancestors were groundnut farmers
and by the time the Appellant's
ancestor's arrived at Krobo,
groundnut was already being
cultivated in the vicinity, as
admitted by the Appellant's own
witness, the Krontihene of Antoa
(P.W.1).
The Respondent's evidence that
the Akyem and Beposo Asona
groups became fused, during the
reign of the 4th occupant of the
Krobo Stool, as a result of his
ancestors making alliance with
the Appellant's ancestress,
Adomaa, who was a groundnut
trader, was also preferred by
the National House of Chiefs as
the more probable. In opting for
the Respondent's version,
Nananom gave due consideration
to the Appellant's story that
the Respondent's ancestors,
whilst in transit, arrived in
Krobo and, because they were
Asona, were allowed to stay with
the Appellant's Beposo Asona
family without any prior enquiry
about their place of origin or
the reasons for their journey.
However, this story, in the view
of Nananom, was improbable given
the state of matters within
Ashanti at that time. This
conclusion in my view, is borne
out by the evidence.
In determining the issue of the
creation of the stool, Nananom
concluded that, even if the
Appellants had arrived from
Beposo with their own stools, as
alleged, from the conflicting
testimony of the Appellant and
her witnesses, they did not
disclose this fact to anyone.
Nananom took into account:–
a. The Appellant's testimony,
the effect of which was that her
ancestors arrived from Beposo
with male and female stools of
their own which they proceeded
to occupy and which was
subsequently upgraded.
b. The Appellant's admission on
cross-examination that her
ancestors did not disclose to
anyone before or after their
settlement that they had brought
their own stools from Beposo.
c. P.W.1's testimony that the
stool was created for them by
the Antoahene after their
introduction to Nana Opoku Ware
I.
d. P.W.2's testimony that
without enquiring whether or not
they had their own stools he
created an Odikro Stool for
them.
Nananom also found that there is
no hard and fast rule of
customary law pertaining to the
naming of stools and it is
possible for stools to be named
after an occupant who, not being
the original occupant,
nevertheless distinguished
himself during his reign. They,
therefore, concluded that
although there was no real
controversy that the Krobo Stool
is named Gyamera Bensua (the
latter being an obvious
corruption of Obeng Asua, the
person claimed by the Appellant
as the first occupant of the
Krobo stool) it did not
necessarily follow that the mere
name of the stool conclusively
resolved the issue. Nananom
further concluded that the
Adesinahene, as Nifahene of
Antoa, could create an Odikro
Stool under him and that it was
possible for a matrilineal stool
to be created for two friends
from different clans. These
conclusions, in effect, follow
lines of reasoning similar to
those that swayed the
Traditional Council and I see no
reason to fault them.
Finally, Nananom also rejected
the finding by the majority of
the Ashanti Regional House of
Chiefs that Alhaji Kwaku Kru is
neither a Royal nor the
Abusuapanin of the Krobo Stool.
The importance of the true
status of Alhaji Kwaku Kru in
Krobo lies in the fact that
since the parties proffered
conflicting traditional evidence
in support of their respective
claims, the law requires that
recent events which support the
claim of either party should
sway the determination of the
dispute. (See Achoro v. Akanfela
supra). In this case, it is
clear on the record that,
although a member of the Ekuona
clan, the Alhaji performed
various important customary
functions on behalf of the Krobo
Stool which are normally the
preserve of a royal. Thus, on
record, it was undisputed that
for many years prior to the
commencement of the suit, a
period within living memory, he
had functioned as the
Abusuapanin of the Krobo Stool
Family. According to the
Appellant however, he performed
this function under a power of
attorney granted him by the
Obaapanin who subsequently
withdrew the same. Although,
according to the Appellant and
one of her witnesses, Kwadwowaa,
the true Abusuapanin is one
Afram, it is worthy of note
that, on the record, this Afram
did not feature in any
significant customary activity
or event, before the
commencement of this case.
Furthermore, according to the
testimony of the Appellant's own
witness, the Antoahene, even
after the purported withdrawal
of the alleged power of
attorney, he led Kwaku Kru, in
the latter's capacity as
Abusuapanin of the stool family,
to appear before the Kumasi
Traditional Council. The
documentary evidence produced
from this appearance, Exhibit 1,
shows that, throughout the
proceedings, Kwaku Kru was
acknowledged as the Abusuapanin
of Krobo. Nananom, correctly in
my view, therefore, found that
Kwaku Kru, an Ekuona, was indeed
the Abusuapanin of the Krobo
stool family.
Furthermore, the evidence is
overwhelming that one S.K.
Mainoo, a nephew of Kru, was
once nominated by the Obaapanin
of Krobo to ascend the stool of
Krobo without any objection or
challenge from any party.
Indeed, it is clear from the
record that not only did the
Kingmakers accept this
nomination, but also he was
installed as such, except that,
instead of swearing to the
Antoahene to complete the
customary installation process,
Mainoo insisted that he would
only swear to the Asantehene
himself. Whilst the issue raised
by this departure from what had
become the norm was yet to be
resolved, S.K. Mainoo died and
the stool fell vacant once more.
Thus, it is clear that in the
normal course of things, and
without any intervention from
the Almighty, S.K. Mainoo would
have been the Krobohene today.
The National House of Chiefs
was, therefore, in my view,
correct in rejecting as yet
another ruse, the Appellant's
claim that S.K. Mainoo was
merely nominated by the
Obaapanin to act as a
caretaker. By accepting the
evidence that Kru was the
Abusuapanin of Krobo and that
S.K. Mainoo was nominated by the
Obaapanin as a substantive chief
of Krobo, it necessarily
followed that the Respondent's
version of the traditional
history of the Krobo Stool was
the true one.
The National House of Chiefs, as
well as the Traditional Council,
had also been swayed by the
Respondent's claim, in support
of his assertion of eligibility,
that three of the black stools
of Krobo belonged to his Akyem
Asona Family of settlers.
Neither the Appellant, nor any
of her witnesses, was able to
pose any serious challenge to
this contention. On this point,
the Traditional Council took
into account the requisite
customary ingredients for
establishing eligibility to a
stool, namely:–
"a. Lineage to the particular
stool family being "Bogya" or
member of the Abusua.
b. The existence of one's
ancestor or ancestors black
stool among the existing black
stools and
c. The occupation of one's
ancestor or ancestors on the
particular black stool at one
time or the other."
Having accepted the Respondent's
claim of the existence of these
stools, Nananom then relied on
the customary law expounded by
the National House of Chiefs in
the case of Dr. K.S. Gyapong v.
Nana Poku Tuase Kanko (already
quoted by my brother Adjabeng)
and concluded that:–
"This fact in the absence of any
evidence that the stool was
created specifically for
patrilineal descent goes to
buttress the fact that both
Asona and Ekuona can ascend the
Krobo Stool from maternal line
and still supports the version
of the Appellant (Respondent
herein.)"
In my opinion, the evidence of
traditional history and recent
events relied upon by the
National House of Chiefs to
arrive at their conclusions were
amply supported by the totality
of evidence of record. I see
nothing perverse or erroneous in
the manner in which Nananom
analysed and evaluated such
evidence.
Consequently, I cannot find any
reason to reverse their decision
and can only conclude that the
appeal herein has no merit.
COUNSEL
MR. JAMES AHENKORAH FOR THE
APPELLANT
MR. OBENG MANU FOR THE
RESPONDENT
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