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RULING
EDWARD WIREDU, J.S.C.:
This is an application praying
this Court to review its
judgement given on July 17th,
1999 dismissing the Applicant's
appeal.
When Rule 54 of the Supreme
Court Rules, 1996 (C.I. 16) was
enacted, it was the hope of all
that having spelt out, in
statutory terms, the only
grounds upon which the review
jurisdiction of this Court may
be exercised, litigants would be
duly guided thereby and the
previous attempts to use the
review jurisdiction as an avenue
for a rehearing of lost appeals
would cease or, at least, be
significantly reduced.
Unfortunately this does not
appear to be the effect. To make
matters worse, it also appears
that counsel for losing parties
are under the misapprehension
that the 'reviewability' of a
matter is determined by
numerical factors and any
decision of the court which is
not unanimous must be subject to
review.
Illustrative of this point is
the statement in the Applicant's
Statement of Case herein that
the application is for:—
"... review of the split
decision of the Supreme Court
... by a majority of 3-2 ...
(and that in this matter)
Except... in the National House
of Chief where the decision was
unanimous in all the other
adjudicating bodies which have
dealt with this case the
decisions have been split,
meaning therefore that there may
well be very good reasons for
reviewing the majority decision
of the Supreme Court..."
I will however, reiterate, by
way of a reminder, the words of
Taylor, J.S.C. in Bisi vrs.
Kwayie [1987-88] 2 GLR 295 at
297 that:—
"In our system of adjudication,
the majority view of a plural
bench of a court represents the
binding judgment of the court,
even if it can be subsequently
demonstrated to be vulnerable to
attacks."
By virtue of Rule 54 (supra), in
an application for review, what
is in issue is, not a matter of
headcount, otherwise, why not
count all the way from the trial
court/tribunal, up to the
Supreme Court, to ascertain what
should be the right decision.
Rather, the only matters this
Court is permitted by the law to
take into account in a review
application are those that
demonstrably show that there are
(1) exceptional circumstances
which have resulted in a
miscarriage of justice to the
Applicant; or
(2) there is some new matter or
evidence that have come to light
after the decision, which, will
all due diligence, had not been
within the Applicant's knowledge
or could not have been produced
by him earlier.
This special jurisdiction of the
court will not, cannot and must
not, therefore, be exercised
merely because counsel for the
Applicant refines his appellate
statement of case, or thinks up
more ingenious arguments, which,
he believes, might have favoured
the Applicant had they been so
presented in the appeal hearing.
An opportunity for a second bite
at the cherry is not the purpose
for which this Court was given
the power of review. In the case
of Quartey et als. vrs. Central
Services Co. Ltd. et als.
[1996-97] SGGLR 398 Abban, C.J.,
at page 399, explained the
review jurisdiction of this
Court in the following terms:-
"A review of a judgement is a
special jurisdiction and not an
appellate jurisdiction conferred
on the court; and the court
would exercise that special
jurisdiction in favour of an
applicant only in exceptional
circumstances. This implies that
such an applicant should satisfy
the court that there has been
some fundamental or basic error
which the court inadvertently
committed in the course of
considering its judgment; and
which fundamental error has
thereby resulted in a gross
miscarriage of justice. These
principles have been stated over
and over again by this court.
Consequently a losing party is
not entitled to use the process
to prevail upon the court to
have another or a second look at
his case."
Although this decision, and the
greater number of decisions
which sought to define the
principles upon which this Court
will exercise the review
jurisdiction, predate the
enactment of Rule 54, there is
no doubt that the Rule itself is
an encapsulation of these
principles and the earlier
learning still holds good in
determining whether an
application is one worthy of the
exercise of this special
jurisdiction.
Thus Rule 56 of C.I. 16 requires
the Applicant's affidavit and
statement of case to set out
clearly and argue fully all
relevant grounds on which the
Applicant relies. This
requirement means that rather
than a mere recitation of one of
the grounds stipulated in Rule
54, the Applicant must specify
the attendant circumstances
which would necessarily and
prima facie place their case for
review under one of those
grounds. A mere repetition of
appeal arguments is, therefore,
not enough. Furthermore, as was
pointed out by Adade, J.S.C. in
Ribeiro vrs. Ribeiro (No. 2)
[1989-90] 2 GLR 130, “small
pinpricks here and there are not
enough."
Having closely examined the
affidavit in support of the
present application, as well as
the two Statements of Case filed
on behalf of the Applicant, it
is clear that the ground upon
which we are being invited to
review the decision of the
ordinary bench of the Court is
that there are exceptional
circumstances, which have
resulted in a miscarriage of
justice.
Although there can never be an
exhaustive list of what
situations would constitute
exceptional circumstances, the
criteria suggested by Taylor,
J.S.C. in Mechanical Lloyd
Assembly Plant vrs. Nartey
[1987-88] 2 GLR 598 continue to
provide a useful guideline as to
the classes of situations
envisaged under Rule 54 (a). At
page 638 of the report, his
Lordship suggested, inter alia,
as follows:—
"Another circumstance is the one
falling within the principle ...
so ably enunciated by that
pillar of legality, Akuffo-Addo,
C.J. in Mosi vrs Bagyina [1963]
1 GLR 337. A third circumstance
comes within the class of cases
which can legitimately be said
to be decisions given per
incuriam for failure to consider
a statute or case law or
fundamental principle of
procedure and practice relevant
to the decision and which would
have resulted in a different
decision. A fourth class of case
must fall within the
constitutional mandate ... by
which we were enjoined to depart
from our previous decisions when
it appears right so to do. This
must be a sort of omnibus
criterion covering all other
cases not falling within the
three classes I have itemised,
for in the numerous conditions
governing human relationship it
is impossible to formulate a
prior propositions that will
cover all cases without
exception."
See also the opinion of Kpegah,
J.S.C. in Kwa Nana vrs. Appa et
al. (unreported) SC judgment
dated 29th January, 1997
(digested in 1998 1 GQLJ 12).
It is, therefore, incumbent upon
the Applicant to demonstrate
that there has been 'some
fundamental or basic error,
which the court inadvertently
committed in the course of
considering its judgement.'
However, this is not all, the
Applicant must additionally
demonstrate that as a result of
such fundamental or basic error,
her substantial rights in the
matter have been or likely to be
so prejudiced that the interest
of justice and good conscience
dictate that we take a second
look at the judgment complained
of. (See also the majority
ruling in the Republic vrs. Nana
Oduro Numapau II, & 15 Ors.,
Ex-Parte: Nana Adu Ameyaw II,
C.M. 39/99, dated 12th January,
2000 (S.C. unreported) as well
as the earlier decisions cited
therein).
The crux of the Applicant's case
in support of this application,
after eliminating the tedious
repetition of her case on
appeal, may be discerned from
paragraphs 3, 4 and 11 of the
affidavit in support of the
application, which may be
summarised as follows:—
1. the decision dismissing the
appeal is entirely wrong and so
out of harmony with the basic
notions of clanship and
customary right to stool
occupancy among Akans that it
amounts to a miscarriage of
justice since it will make it
possible for three separate
clans and families, to aspire to
the Krobo Stool.
2. the decision of the court is
so dangerous and intolerable
that it will make it impossible,
in future, to decide who should
occupy the Krobo Stool.
3. by Akan customary law, a
Stool is created for only one
family and therefore the right
of occupancy is the exclusive
preserve of members of that
family alone.
Counsel for the Applicant filed
a statement of case wherein all
he did was rehash the matters
that he had raised in the appeal
regarding the failure of the
Respondent's evidence to support
his case.
The supplementary Statement of
Case subsequently filed by said
counsel, is in the main, merely
further expatiation on old
matters. Counsel's contentions
were that:—
1. recent acts or practices
following the death of Osei
Sampam (a previous occupant of
the Stool kinship with whom is
claimed by both the Applicant
and the Respondent) resolve the
conflicting traditions in favour
of the Applicant since from that
time, it was members of the
Applicant's family that has
occupied both the male and
female stools of Krobo.
2. the majority's reliance on
the installation of S.K. Mainoo
on the Krobo Stool is misplaced
since he was an Ekuona man and
since the accession of Mainoo to
the Stool did not evoke any
dispute in the course of which
the tradition espoused by the
Respondent was invoked,
challenged and adjudicated upon
the Respondent cannot rely upon
Mainoo's installation to support
his eligibility to the Stool.
3. since the Respondent did not
claim an exclusive entitlement
for the Akyem Asona and the
Ekuona families, the majority
placed undue reliance on how
Krobo was founded because this
was an irrelevant issue in the
case.
4. the majority did not give due
consideration to the
significance of the customary
name of the Stool.
5. the traditional evidence
given by the Respondent was
unreasonable, intrinsically
flawed and unacceptable,
therefore, 'any recent act which
is consistent with it must be
due to a freak.'
With all due respect to counsel,
none of these points raise any
matters that demonstrate
exceptional circumstances. The
matter before the ordinary bench
of the court was an appeal from
a decision of the National House
of Chiefs. These are all points
that had been covered at every
stage of the litigation.
Essentially, the appeal before
the ordinary bench was an appeal
on the facts. As such,
therefore, the court's
fundamental duty was to test the
conclusions of Nananom against
the totality of the record and
ascertain whether the evidence
supported those conclusions. The
record amply supported the
findings of fact made or
confirmed by the National House
of Chiefs. The most cursory look
at the opinions delivered by
Adjabeng, Atuguba and Akuffo,
JJ.S.C., reveals quite clearly
that this is the approach they
applied. Not only did they
consider the testimony given by
the witnesses in the trial
tribunal, but also they tested,
in each case, the conclusions
arrived at by each of the
intervening appellate tribunals.
The mere fact that an appeal is
by way of a rehearsing does not
dictate that an appellate Court
is bound to re-evaluate the
evidence and re-assign different
weight to it, unless there are
pressing circumstances that
would justify such a course.
(See Ababio vrs. Bekoe II
[1996-97] SCGLR, 392 Adam Achoro
vrs. Akanfela [1996-97] SCGLR
384). There were no such
compelling reasons in the appeal
that came before the court.
The only new nuance introduced
by the Supplementary Statement
of Case was the contention that,
even if the Respondent's family
and the Ekuona family had once
been eligible to the Krobo
Stool, after the death of Osei
Sampam, the Respondent's
family's dynasty was displaced
by the right acquired by the
Applicant's family to occupy the
Stool, which right they
exercised continuously up to
Osei Kufour. Thus, according to
counsel:—
"The evidence as it stands in
this case, shows that the
dynasty which existed up to Osei
Sampam's death was replaced by
the dynasty of the Applicant's
family and that unless there is
strong evidence to the contrary
the right of the Respondent's
family members to occupy the
Krobo Stool has become extant."
One fails to appreciate how such
an argument advances the
application herein, nor the
manner in which it demonstrates
the existence of exceptional
circumstances that have resulted
in a miscarriage of justice to
the Applicant. A Statement of
Case in support of an
application for review is
certainly not the appropriate
occasion for rehearing such an
argument. In any event, the very
fact that, as is demonstrated by
the evidence:—
a) S.K. Mainoo, a member of the
'extant' Ekuona family was
installed as Krobohene after the
abdication of Nana Osei Kufour,
b) at all material times within
living memory, Alhaji Kru, also
a member of the latter family
functioned as the Abusuapanin of
the entire Krobo Stool family,
and
c) the Applicant's predecessor,
as Obaapanin who was presumed to
know her royals, accepted
dwantoa from the Respondent in
his bid for the Stool, which
dwantoa was shared amongst the
kingmakers (a piece of evidence
which was never challenged by
the Applicant or any of her
witnesses)
effectively debunks this concept
of an extant dynasty.
Furthermore, at all material
points in the litigation, the
Respondent's case was that as a
member of the Akyem-Asona family
of Krobo he was eligible to the
Stool and had been duly
nominated and elected as such.
The Applicant's case was that
since the foundation of Krobo,
the Stool had been the exclusive
preserve of her Beposo-Asona
family. How then can she, in an
application for review, be
permitted to put up such a new
case?
In conclusion, although the
Applicant had made a valiant
effort to reargue her appeal in
this application, she has
woefully failed to demonstrate
any exceptional circumstance,
let alone one that has resulted
in a substantial miscarriage of
justice such as, together, would
justify the granting of her
application in accordance with
the rules of this Court. The
application must, therefore, be
dismissed for being entirely
without any merit whatsoever.
MRS. BAMFORD-ADDO, J.S.C.:
I agree completely with the
Ruling just read by my noble
brother Wiredu, J.S.C. Since he
has covered all the various
issues raised in this
application I have nothing
useful to add to the said
ruling.
KPEGAH, J.S.C.:
I agree that the application for
review be disallowed as it is
only a re-agitation of matters
earlier canvassed and rejected.
The instant application is
clearly subversive of the
time-honoured principle that
there must be an end to
litigation.
ADJABENG, J.S.C.:
I agree.
ATUGUBA, J.S.C.:
I agree.
MS. AKUFFO. J.S.C.
I also agree.
AMPIAH, J.S.C.:
On 21st July, 1999, this court
gave judgment in an appeal
brought before it from the
National House of Chiefs. The
instant application is for a
review of the court's judgment.
The thrust of the applicant's
submission is that the judgment
was given without regard for
established principles of
customary law and practice and
that this failure has occasioned
a substantial miscarriage of
justice in that it has deprived
her family of the exclusive
succession to the Krobo Stool.
The respondent however maintains
that the judgment was sound and
impeccable and that no good
grounds have been shown for
disturbing it. He contends
further that the present
application is only an attempt
to have the appeal re-argued.
This application is brought
under Rule 54 of the Supreme
Court Rules, 1996 (C.I. 16)
which provides—
"54. The Court may review any
decision made or given by it on
any of the following grounds—
(a) exceptional circumstances
which have resorted in a
miscarriage of justice;
(b) discovery of new and
important matter or evidence
which after the exercise of due
diligence was not within the
applicant's knowledge or could
not be produced by him at the
time when the decision was
given".
This court has held that ..." a
review of a judgment is a
special jurisdiction and not an
appellate jurisdiction conferred
on the court and the court would
exercise that special
jurisdiction in favour of an
applicant only in exceptional
circumstances - see Quartey v.
Central Services Co. Ltd.
(1996-97) SCGLR 398.
In Afranie II v. Quarcoo (1992)
2 GLR 561, the Supreme Court
held in its holding (2) that—
"Under the law the only ground
for the review of a decision of
the Supreme Court was that the
circumstances were exceptional
and that in the interest of
justice there should be a
review. Although what exactly
constituted exceptional
circumstances had not been spelt
out, on the authorities the
court had found exceptional
circumstances where,
(a) the circumstances were of a
nature as to convince the court
that the judgment should be
reversed in the interest of
justice and indicated clearly
that there had been a
miscarriage of justice; or
(b) the demands of justice made
the exercise extremely necessary
to avoid irremediable harm to
the applicant; or
(c) a fundamental and basic
error might have inadvertently
been committed by the court
resulting in a grave miscarriage
of justice; or
(d) a decision had been given
per incuriam for failure to
consider a statute or a binding
case law or a fundamental
principle of practice and
procedure relevant to the
decision and which would have
resulted in a different
decision; or
(e) the applicant had sought for
a specific relief which
materially affected the appeal
and had argued grounds in
support but the appellate court
had failed or neglected to make
a decision on it".
As stated earlier, the
applicants' contention has been
that the judgment was given
without regard for the
established principles of
customary law and practice.
In its assessment of the
evidence, the National House of
Chiefs stated,
"The issues have been mainly on
custom and resolved on customary
evidence..."
In Obaapanin Akua Amoanimaa etc.
v. Nana Osei Kwame (1995) 1 GSCJ
334 at 338 Adade, JSC observed,
"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 dissentions,
and, at 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 form
the decision of the Court. Where
they 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 had to
practices within relatively
recent times to determine what
the tradition probably is."
As stated later in this my
opinion, all the traditional
tribunals which have had
anything to do with this matter,
agree that the issues involved
are mainly customary. It is
therefore necessary that for the
sake of stability within the
community concerned a solution
be sought which is anchored
firmly in the traditions of that
Stool and which respects these
traditions. As observed by
Adade, J.S.C. in the Obaapanin
Akua Amoanimaa case (supra),
"... 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 dissentions
and, at the least provocation,
civil strife and conflicts..".
Some of the pertinent customary
issues which arose in this case
for determination were,
(1) Who first settled at Krobo
(2) Who was the first Odikro
(3) Could the Adesinahene create
an Odikro Stool equal to his own
Stool and on his (Adesinahene)
overlord's (Antoahene) land with
or without his overlord's
knowledge and consent.
(4) Who customarily was entitled
to create a Stool for a
stranger, the land owner and the
overlord Chief or the caretaker
of the land and the sub Chief of
the overlord Chief.
(5) What was the name of the
Stool created for the Krobos.
(6) What was the custom
concerning the naming of a newly
created Stool.
(7) How many black Stools were
in the Stool room of the Krobos.
How many belonged to each
claimant. How is this proved.
(8) How many Queenmothers had
the Stool had?
(9) Could a Stool be created for
two different families - would
that be a patrilineal Stool or
matrilineal Stool.
(10) The Krobo Odikro who
created the Krobo Benkum Stool
was he an Asona? If so is he
from the Plaintiff's Asona or
from the Defendant's Asona.
(11) The Benkum Stool which was
created, was it for the joint
families or exclusively for the
Asona Section.
The Kumasi Traditional Council
by a majority of 2 to 1 upheld
the claim by the Defendants and
dismissed the Plaintiffs claim.
The Ashanti Regional House of
Chiefs by a majority of 2 to 1
allowed an appeal filed by the
Plaintiff, thus accepting her
claim. The National House of
Chiefs however allowed the
Defendant's subsequent appeal
and restored the decision of the
Traditional Council. It is worth
noting that both the Traditional
Council and the Regional House
of Chiefs were Chieftaincy
Institutions constituted by
persons who themselves are
Ashantis from the community
where the customary law and
practices involved in the matter
are practised.
As to what the custom is, the
Ashanti Regional House of Chiefs
disagreed with the Kumasi
Traditional Council. The
National House of Chiefs was
therefore called upon to settle
the custom if it could. The
Supreme Court had the chance to
settle the issue finally.
As stated before, it is not the
purpose of a review application
to evaluate the evidence all
over again, but, where in a
situation, the conclusions
arrived at on the evidence fly
in the face of the established
custom, it becomes the duty of
the Court to review the evidence
so as to avoid miscarriage of
justice. The matter must not be
left to rest in surmise,
conjecture or guesses.
Section 55(1) of the Courts Act,
1993 (Act 459) provides—
"55(1) Any question as to
existence or content of a rule
of customary law is a question
of law for the court and not a
question of fact."
This provision enjoins a court
seised with proceedings in which
the existence or content of a
rule of customary law falls to
be ascertained, to adjourn the
proceedings if in doubt, to
enable it inquire into the
matter by calling for testimony
of witnesses and further
submissions from the parties,
and, if necessary, to request a
House of Chiefs, a Divisional or
Traditional Council or other
body with knowledge of the
customary law in question to
state its opinion which may be
laid before the inquiry in
written form - vide Section 55
(2), (3), (4) and (5) of Act
459.
In the instant matter there was
need to ascertain the customary
law and practice applicable to
the particular community, This
was necessary since the lower
tribunals which were supposed to
be conversant with the
applicable customary law and
practices could not agree, even
though the restatement of the
custom by the higher tribunal
ie. the Ashanti Regional House
of Chiefs was expected to have
carried more weight.
Having set down the opinions and
reasons of the lower tribunals
in support of their conclusions,
the National House of Chiefs
concluded,
"We have listened to both
Counsel and their submissions.
We find that all the submissions
were on elaboration on the
evidence and the arguments
already made at the lower courts
and we need not repeat them but
only consider their weight and
refer to them when necessary."
It then proceeded to evaluate
the evidence thus,
"Judging from custom, reasons
and the sequence of events we
find that the evidence on
migration of the Appellants is
more reasonably probable than
that of the Respondent."
Judging from what custom, one
may ask? As stated clearly by
the tribunals, the issues
involved in this case were the
determination of the relevant
customary law and practices
pertaining to this particular
community. It has been the
complaint of the applicant that
the judgment was given without
regard for the established
principles of customary law and
practices.
There was clear evidence from
the Antoahene as to how the
Beposo Asona group had settled
on the land and how he had
created a Stool for them. The
question as to whether or not
being Ashantis, the Beposo
Asonas could have migrated to
another part of Ashanti was of
no consequence as it is
undeniable that whether they
migrated against custom or not
their claim to the Krobo Stool
has been admitted by their
opponents. And, they have been
elevated to the 'Akwamu' status
which significantly, they
claimed to have occupied when
they were at Beposo. Was it for
no reason or purpose that they
were raised to that status?
The National House of Chiefs had
accepted the version of the
defendant with regard to the
settlement on the land and had
reasoned,
"The appellant's version of
migration having been accepted,
it follows that they arrived
earlier than the respondent".
It continued,
"It follows that the appellants
might have settled before the
arrival of the respondents."
(emphasis supplied).
Despite accepting the version of
the defendant, the House was not
certain that the position was
so! There was no doubt that the
land on which the plaintiffs
family settled belonged to the
Antoahene. It was he who ordered
his Krontihene (P.W.1) to settle
the plaintiff's family on the
land. The Adesinahene was a
caretaker of the land for the
Antoahene and if he (the
Adesinahene) had earlier settled
some strangers on the land, it
was a customary requirement that
his overlord (the Antoahene)
should be informed. There was no
evidence to that effect.
The majority of the Regional
House of Chiefs was of the view
that the evidence that the
Adesinahene created the Krobo
Stool was contrary to custom. To
it the evidence of the Antoahene
was to be accorded credibility
and reliance on the founding and
creation of the said stool, as
the overlord of both Adesina and
Krobo. It observed,
"This view is based on the fact
that in Akan custom the occupant
of the Odikro Stool cannot
create an Odikro Stool."
Reliance on E.E. Obeng's
statement in his book and
Warrington's Notes was very
dangerous. How authoritative
were these authors? With the
direct evidence of the Antoahene,
the overlord, it is very
difficult to accept these
non-authoritative statements. In
any case, the issue of
migration, namely whether an
Ashanti could move from one part
of Ashanti to another changing
his allegiance, could not have
disqualified the plaintiffs
family from ascending the Krobo
Stool. It was therefore
irrelevant to the determination
of who owned the Krobo Stool.
Since the defendant's family
conceded that the plaintiffs
family was entitled to ascend
the Stool, the proper issue
which arose was whether the
defendant's family and for that
matter the other Asona family
from Adesina were also entitled
to ascend the Stool. The onus
was on the defendant. There was
no evidence that the Adesinahene
allegedly created the Krobo
Stool when he was elevated to
the status of Nifahene of Antoa.
Krobo itself was elevated to the
status of Akwamuhene of Antoa, a
position higher than that of
Adesinahene who claimed to have
created the Krobo Stool. As the
situation stood at the time of
the settlement of Krobo,
customarily, Adesinahene could
not have created a Stool equal
to his. This is the decision
arrived at by the Regional House
of Chiefs and which decision
accorded with custom. It was
therefore necessary for this
Court to re-examine the evidence
critically. This the Court
failed to do.
The Court also accepted without
proof that the defendant's
family and the other Asona
Family had their ancestors'
stools kept in the Stool room.
That the plaintiffs family had
their ancestors' Stools in the
Stool room was not challenged.
The plaintiff however challenged
the assertion by the defendant.
It was therefore necessary that
some evidence capable of proof
be established. The Stools in
the Stool room could have been
inspected and counted in
accordance with custom. In
Majolagbe Vrs. Larbi (1959) GLR
190 the Court stated the
principle of law regarding such
proof thus,
"Proof in law is the
establishment of facts by proper
legal means. Where a party makes
an averment capable of proof in
some positive way, say e.g. by
producing documents, description
of things, reference to other
facts instances or
circumstances, and his averment
is denied, he does not prove it
by merely going into the witness
box and repeating averment on
oath or having it repeated on
oath by his witness. He proves
it by producing other evidence
of facts and circumstances, from
which Court, can be satisfied
that what he avers is true."
Also, the plaintiff had said the
name of her Stool was 'Bensua'
(a corrupted version of Obeng
Asua) named after her first
ancestors. This was admitted by
the defendant. The Regional
House of Chiefs held this to be
the established custom. The
Traditional Council thought it
was possible to have a
"different name" other than the
founding ancestors'. The
National House of Chiefs only
accepted the finding by the
Traditional Council without
assigning any tangible reason
for the preference. It said,
"It is sometime named after
somebody who not being a founder
or first occupant but who after
its creation performs some
powers to enhance the dignity
and prestige of the Stool."
Was there any such evidence? The
National House of Chiefs was
trying to find a reason for the
defendant giving the Stool the
same name as the plaintiff. It
found it difficult to agree with
the Regional House of Chiefs'
restatement of the custom. It
said,
"We will not agree that it is a
hard and fast rule that a Stool
is named only after the founder
or first occupant. We would say
that is a rebuttable
presumption."
And was it rebutted? In the
absence of any such evidence,
the custom as proven to exist
must prevail,
The tribunals also flouted the
established principle of law
that where the evidence of a
party supports the opponent's
then the opponent's evidence
must be accepted. The force of
corroborative evidence from an
opponent has long been enshrined
in cases like, Tsirfo V vrs.
Duah VIII (1959) GLR 63.
As stated above, without
positive proof that the
defendant's family had three of
its Stools in the Stool room,
the conclusion that,
"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 Asonas of Akyem
origin and Ekuona. This fact is
the absence of any evidence that
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",
could not support the
conjectured customary law and
practice. In the first place
that evidence was challenged.
There was also positive evidence
that the Stool was created for
the Beposo Asona family. Thus,
while the Traditional Council
and the National House of Chiefs
were surmising as to what the
custom could be, the Regional
House of Chiefs was positive on
the custom. It stated in no
uncertain terms,
"That in Akan custom succession
to stools is invariably
matrilineal barring a few
exceptions. In that regard
granting that the Respondent's
version that the Krobo Stool was
created for the two friends, if
true the Stool ought to have
been a patrilineal Stool rather
than matrilineal as it obtains
now."
There is no evidence of
exceptional circumstances. This
Court only accepted the judgment
of the National House of Chiefs
without critically examining the
evidence as to the custom.
Yet still, even though the
plaintiffs family is said to
have been accepted into the Akim
families (Asona and Ekuona),
through Adoma or Animaa later,
of the eight (8) Chiefs who,
according to the defendant, had
ascended the Stool, four (4) of
them are admitted to have come
from the plaintiffs family. The
plaintiffs family however denied
that any member of the Akim
families had ever ascended the
Stool; it claimed that all the
six (6) Chiefs who had ascended
the Stool came from the
plaintiffs family. Again, out of
the five (5) women who were
alleged to have become
queenmothers, three (3) were
from the plaintiff's family.
From which family was Osei
Sampan? The evidence showed that
even though he was an Asona he
was of the plaintiff's Asona
Family. Thus from Nana Obeng Sua
whose name was given to the
Stool, all the subsequent
occupants of the Stool had come
from the plaintiff's family.
In its assessment or evaluation
of the evidence, the National
House of Chiefs came to the
conclusion that,
"The only points in favour of
respondents are the custom
raised by Ashanti Regional House
of Chiefs 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 it or
its first occupant. The evidence
yields itself to this conclusion
and we find it so."
What evidence yields itself to
this conclusion? This was a most
unsatisfactory way of concluding
on a custom which affects a
particular community. The
National House of Chiefs refused
to accept the plaintiffs
evidence on mere discrepancies
and contradictions which
appeared in the evidence of
P.W.1 and P.W.2 on the
historical aspect of the case.
But as observed by Lord Denning
in Adjeibi-Kojo vrs. Bonsie
(1957) 3 WALR 257 at page 260,
once traditional history is
handed down by word or mouth, it
must—
"....... be recognised that, in
the course of transmission from
generation to generation,
mistakes may occur without any
dishonest motives whatever.
Witnesses of the utmost veracity
may speak honestly but
erroneously as to what took
place a hundred years or more
ago."
A Court therefore should not
simply reject a party's
traditional evidence on such
petty and trifling matters.
Unfortunately the Supreme Court,
with respect, failed to look
critically at the customary law
and practice propounded by the
lower tribunals. It also dwelt
on the alleged conflicts and
discrepancies found by the lower
tribunals as a basis for
accepting the decision of the
National House of Chiefs. It
also failed to apply the
established legal principles
laid down for the evaluation of
the evidence. As it is, it left
the determination of the
customary law and practices
applicable to the community
concerned unresolved and thus
imposed on them an alien custom.
By so doing grave miscarriage of
justice was occasioned. I would
in the circumstances grant the
application and review the
judgment.
COUNSEL
Ahenkora for the Applicant
Kuenyehia for the Respondent
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