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Chieftaincy - National House of
Chiefs - Causes of matter
affecting - Rotational
system of inheritance -
Whether there is
only one royal family of the
Omanhene Stool of Berekum
- Whether the
installation of the Omanhene
conform to the custom of the
Berekum Traditional Area -
Whether the installation was a
breach of the custom - Whether
Judicial Committee of the
National House of Chiefs, erred
in a unanimous decision to
dismiss the appeal
HEADNOTES
The facts that gave birth to the
petition are that the 4threspondent
Dr. Leo Ofori of the Koraso
Royal Family of Berekum was
enstooled as the Omanhene of
Berekum Traditional Area in the
Brong-Ahafo Region, having been
nominated by the 1st respondent
Nana Akua Ameahene (Queen mother
of Berekum) as such. The
appellants and the deceased
petitioners objected to the
installation of the 4th respondent
on the ground that same did not
conform to the custom of the
Berekum Traditional Area. They
subsequently filed a petition
against the respondents at the
Brong-Ahafo Regional House of
Chiefs The case of the
appellants simply was that there
were four (4) families or gates
that constituted the Berekum
Royal Family. These gates they
mentioned as: KORASO; ABONTEMA;
BABIANIHA; and PAPAASE. In the
nomination of a candidate to
fill the vacant stool, the queen
mother was under an obligation
to consult all the four gates or
families. In the case of the 4th respondent,
however, she did not do so. She
consulted only one of the gates;
i.e. the Koraso Royal Family or
gate and that was a breach of
the custom, thus this
litigation. The respondents on
the other hand contended in
their response that there was
only one Royal Family in Berekum
and that was the Koraso Royal
Family, which originated from
Asokore-Ashanti. The nomination
of the 4th respondent
who is from the Koraso Royal
Family by the 1st respondent
and his installation or
enstoolment by the kingmakers as
the Omanhene was therefore
proper as it conformed to the
custom, usages and practice of
the Berekum Traditional Area -
HELD :-
On whether the 4th appellant
was properly nominated, elected
and enstooled, we affirm the
position of the two lower courts
or tribunals that he was. The
choice of a candidate for the
stool in Akan societies, is the
preserve of the queen mother.
She does not share this
responsibility with
anybody”. The 1st respondent
need not consult the three
families in question in the
nomination of her candidate for
the Stool. If that was the
practice in the past as was
known to the appellants, the
respondents were able to
establish the uncustomary nature
of that practice and nothing
debars them from taking steps to
curtail it. We find no merit in
the appeal. We accordingly
dismiss same.-
STATUTES REFERRED TO IN JUDGMENT
1992Constitution, (article 277)
Chieftaincy Act, 2008 [Act
759] section 57 (1)
CASES REFERRED TO IN JUDGMENT
AMOAH v LOKKO & ALFRED QUARTEY
[2011] 1 SCGLR 505
AGYENIM BOATENG v OFORI & YEBOAH
[2010] SCGLR 861
ACHORO v AKANFELA [1996-97]
SCGLR 209
TUAKWA v BOSOM [2001-2002] SCGLR
61
ATADI v LADZEKPO [1981] GLR,
281
R. T. BRISCOE (GH) LTD v
BOATENG [1968] GLR 9
IN RE KWABENG STOOL; KARIKARI &
Another v ABABIO II & Others
[2001-2002] SCGLR 515,
DARKO v DARKO [1982-83] 1 GLR
345
ESSILFIE & Anor v ANAFO VI &
Anor [1993-94] 2 GLR 1,
GREGORY v TANDO IV AND HANSON
[2010] SCGLR 97.
IN RE: WENCHI
STOOL AFFAIRS; NKETIAH & Ors v
SRAMANGYEDUA III AND 2 Ors
[2011] 1 SCGLR 1024
BOOKS REFERRED TO IN JUDGMENT
THE LAW OF CHIEFTAINCY IN GHANA”;
published by the Advanced Legal
Publications
DELIVERING THE LEADING JUDGMENT
APPAU, JSC:-
COUNSEL.
RAPHAEL ALIJINA FOR THE
PETITIONERS/APPELLANTS/APPELLANTS.
WIREDU-PEPRAH
WITH ALFRED TUAH YEBOAH FOR THE
RESPONDENTS/ RESPONDENTS/
RESPONDENTS.
ญญญญญญญญญญญญญญญ
JUDGMENT
APPAU, JSC:-
This is an appeal against
the decision of the Judicial
Committee of the National House
of Chiefs. The Appellants who
are the Krontihene and Gyasehene
of the Berekum Traditional Area
were the 1st and 4th
Petitioners respectively in the
trial judicial committee of the
Brong-Ahafo Regional House of
Chiefs. They would be referred
to simply as appellants in this
judgment. The respondents, on
the other hand, were the 1st,
4th and 5th
respondents to the petition
filed by the appellants and
three others before the trial
judicial committee. The other
three petitioners; i.e. 2nd,
3rd and 5th
who were the Akwamuhene,
Twafohene and Ankobeahene
respectively of Berekum
Traditional Area died in the
cause of the action before the
matter got to this Court. They
were never substituted so they
are not part of this appeal. The
respondents also numbered five
(5) at the trial stage. However,
two of them; i.e. the 2nd
and 3rd died before
the matter came on appeal before
us. They were also not
substituted so they are not part
of this appeal.
The appeal raises two
fundamental issues. These are:
1.
Whether or not the two
lower judicial committees of the
Brong-Ahafo Regional House of
Chiefs and the National House of
Chiefs erred in holding that
there is only one (1) royal
family of the Omanhene Stool of
Berekum; i.e. the Koraso Royal
Family, and
2.
Whether or not the 4th
respondent was properly
nominated, elected, enstooled or
installed as the Omanhene of
Berekum Traditional area.
The facts that gave birth
to the petition are that the 4th
respondent Dr. Leo Ofori of the
Koraso Royal Family of Berekum
was enstooled as the Omanhene of
Berekum Traditional Area in the
Brong-Ahafo Region, having been
nominated by the 1st
respondent Nana Akua Ameahene
(Queen mother of Berekum) as
such. The appellants and the
deceased petitioners objected to
the installation of the 4th
respondent on the ground that
same did not conform to the
custom of the Berekum
Traditional Area. They
subsequently filed a petition
against the respondents at the
Brong-Ahafo Regional House of
Chiefs praying for the following
reliefs:
(i)
a declaration that the
nomination and instalment of the
4th respondent as
Omanhene of Berekum was against
custom, practice and usage and
therefore unlawful and must be
declared as null and void and of
no customary effect;
(ii)
a declaration that it is
the prerogative and customary
duty of the kingmakers to elect
a properly-nominated candidate
and have him installed;
(iii)
an order to compel the 1st
respondent to adhere to the
proper customary procedure for
the nomination, election and
installation of an Omanhene;
(iv)
an order restraining the 1st,
2nd, 3rd
and 5th respondents
from recognising and holding out
the 4th respondent as
the Omanhene of Berekum
Traditional Area and;
(v)
an order restraining the 4th
respondent from holding himself
out as the Omanhene of Berekum
Traditional Area.
The case of the appellants
simply was that there were four
(4) families or gates that
constituted the Berekum Royal
Family. These gates they
mentioned as: KORASO; ABONTEMA;
BABIANIHA; and PAPAASE. In the
nomination of a candidate to
fill the vacant stool, the queen
mother was under an obligation
to consult all the four gates or
families. In the case of the 4th
respondent, however, she did not
do so. She consulted only one of
the gates; i.e. the Koraso Royal
Family or gate and that was a
breach of the custom, thus this
litigation.
The respondents on the
other hand contended in their
response that there was only one
Royal Family in Berekum and that
was the Koraso Royal Family,
which originated from
Asokore-Ashanti. The nomination
of the 4th respondent
who is from the Koraso Royal
Family by the 1st
respondent and his installation
or enstoolment by the kingmakers
as the Omanhene was therefore
proper as it conformed to the
custom, usages and practice of
the Berekum Traditional Area.
Their further response was that
all the three remaining families
mentioned; i.e. ABONTEMA,
BABIANIHA and PAPAASE were not
gates of the Royal Family as
such. Rather, they constituted
the maternal families of
children of the Stool; i.e. the
children of male occupants of
the Stool who, by custom, do not
ascend the Stool. However, due
to the absence of males within
the Royal family to ascend the
Stool after the demise of the 2nd
occupant Nana Kyere Diabour, one
Kwaku Diawuo who was the first
son of the first occupant of the
Stool Nana Amankona Diawuo, was
made to occupy the Stool as a
caretaker chief to assist the
aged queen mother who was both
the queen mother and the Chief,
to administer the traditional
area. On the death of the queen
mother some few years after,
their son who was on the Stool
managed to enstool his sister as
the queen mother. From that
time, the children monopolised
the Stool until 1941 when the
Royal Family petitioned the
Asantehene for the return of the
Stool to its proper place. The
Asantehene went into the matter
and found that the only Royal
family of the Berekum Omanhene
Stool was the Koraso Royal
Family from Asokore-Ashanti so
he ordered that the Stool should
return to its proper place; i.e.
the Koraso Royal Family. That
settlement led to the
installation of the 1st
respondent, who is from the
Koraso Royal Family, as the
queen mother in 1974. The
respondents therefore denied the
claim of the petitioners. Whilst
the appellants agreed with the
respondents that there was once
arbitration before the
Asantehene’s court somewhere in
1941 involving the royal stool
matters of Berekum, they
differed as to what actually
transpired before that court.
The Judicial Committee of
the Brong-Ahafo Regional House
of Chiefs, after hearing from
both parties, dismissed the
petitioners’ petition. The
Committee made very positive
findings. These were:
(i) the only Royal Family
of the Berekum Paramount Stool
was the Koraso Royal Family from
Asokore – Ashanti and that the
remaining three families
mentioned by the petitioners,
namely; Abontema, Babianiha and
Papaase, were indeed sons or
children of the Koraso Royal
House;
(ii) the 4th
respondent hailed from the
Koraso Royal House or family. He
was therefore properly
nominated, elected and installed
as the Omanhene of Berekum.
(iii) the three other
families who are children of the
male occupants of the Stool
managed to ascend the Stool for
generations when their fathers
had no heirs to ascend the
Stool.
After making these
positive findings, the Committee
went on further to make a
consequential order. It ordered
that since the children of the
Koraso Royal family (i.e. the
Abontema, Bababianiha and
Papaase families) were the ones
who preserved the Stool for
their fathers for generations
when they were short of heirs,
the stool should be made to
rotate between the main Koraso
Royal House as one unit or gate
on the one hand and then all the
three other families; i.e.
Abontema, Babianiha and Papaase
put together as another unit or
gate on the other hand. The
petitioners appealed against the
decision of the Judicial
Committee of the Brong-Ahafo
Regional House of Chiefs to the
Judicial Committee of the
National House of Chiefs whilst
the respondents also
cross-appealed against that part
of the decision that tended to
introduce a rotational system of
inheritance within the Berekum
Paramountcy when that system was
unknown and contrary to the
custom, practice and usage of
the Berekum Traditional Area.
The petitioners’ grounds
of appeal as contained in their
notice of appeal to the National
House of Chiefs were:
a.
The Judicial Committee of
the B/A Regional House of Chiefs
erred in law by holding that
there is only one Royal Family
(i.e. the Koraso Royal Family)
but not four royal families
under the Berekum Paramount
Stool;
b.
The Judicial Committee of
the B/A Regional House of Chiefs
erred in law by holding that the
4th respondent was
validly nominated, elected and
installed as paramount chief of
Berekum Traditional Area and;
c.
The judgment was against
the weight of evidence.
The respondents’
cross-appeal contained only one
ground of appeal. This ground
was that:
“The Judicial Committee of the
B/A Regional House of Chiefs
erred when after arriving at the
right finding and conclusion
that the Asokore Koraso Royal
Family of Berekum was the only
Royal Family of Berekum (and
hence the rightful owners of the
Berekum Paramount Stool), it
wrongly went ahead to direct
that henceforth when the Berekum
Omanhene Stool becomes vacant,
the said Stool should rotate
between the said Royal Family on
the one hand and the three
non-royal families namely;
Abontema, Papaase and Baabianiha
together as one unit, on the
other hand; a decision which has
resulted in a miscarriage of
justice to the Asokore Koraso
Royal Family of Berekum and
should therefore be set aside,
and/or reversed by an order of
the Honourable Judicial
Committee of the National House
of Chiefs”
From their petition before
the Brong-Ahafo Regional House
of Chiefs, it was not the case
of the appellants that the
Omanhene Stool be made to rotate
either among the four families
they mentioned as constituting
the Berekum Royal Family or
between the Koraso family on the
one hand and the other three
families as one gate on the
other hand as the trial judicial
committee ordered. Their claim
was that the three families,
namely; Abontema, Papaase and
Babianiha belonged to the Royal
family just as Koraso, so the 1st
respondent who is the queen
mother should have consulted
these families before nominating
the 4th appellant as
the Omanhene. We want to
emphasize that none of the
original petitioners (including
the appellants) belonged to any
of these three families, namely;
Abontema, Papaase and Babianiha,
which they claimed formed part
of the Royal family. By their
positions, they were kingmakers
just like the 1st, 2nd,
3rd and 5th
respondents.
The Judicial Committee of
the National House of Chiefs, in
a unanimous decision, dismissed
the petitioners’ appeal and
allowed the respondents’
cross-appeal. It affirmed the
findings of the trial judicial
committee that the only Royal
family, from which the Omanhene
of Berekum Traditional Area
could be chosen, according to
the customs, practice and usage
of the Berekum people, was the
Asokore/Koraso Royal House or
Family so the 4th
respondent’s nomination and
installation as Omanhene of
Berekum Traditional Area was
proper. Before coming to this
conclusion among others, the 1st
appellate tribunal recognised
three issues that emerged for
its determination. These could
be found at pages 505-506 of the
record of appeal (RoA) and they
are as follows:
a.
Whether or not the
findings of fact by the Judicial
Committee of the Brong-Ahafo
Regional House of Chiefs were
supported by the evidence on
record;
b.
Whether or not the
Judicial Committee of the
National House of Chiefs could
interfere and substitute its own
findings for that of the trial
Judicial Committee;
c.
Whether or not the
decision by the trial Judicial
Committee that “…henceforth
when the Berekum Omanhene Stool
becomes vacant, the Asokore
Koraso Family on one hand and
the Abontema, Papaase and
Baabianiha families together as
one unit on the other hand shall
ascend and occupy the Stool on
rotational basis and whoever is
the Queenmother at any point in
time shall nominate a candidate
accordingly…” thus making
the Berekum Paramount Stool
rotatory, was erroneous.
After reminding itself of
the position of this Court on
how appellate courts must deal
with findings of fact made by
trial courts, with reference to
the decisions in the cases of
AMOAH v LOKKO & ALFRED QUARTEY
[2011] 1 SCGLR 505 and
AGYENIM BOATENG v OFORI & YEBOAH
[2010] SCGLR 861, the first
appellate court dismissed the
petitioners’ appeal in the
following words:
“We have meticulously gone
through the Record of Appeal as
well as the respective arguments
by both counsel for the
appellants and respondents per
their written submissions filed
in this appeal and we find that
the findings of fact made by the
trial Judicial Committee of the
Brong-Ahafo Regional House of
Chiefs are supported by the
evidence on record.
In fact, the evidence of
DW1 and DW2 are very instructive
as they corroborate the evidence
of the 3rd respondent
as to the origin of the Berekum
Stool and the fact that there is
only one royal family at Berekum
which is the Koraso/Asokore
Royal Family of Berekum and to
which the 1st and 4th
respondents belong.
It is equally important to
note that the said findings by
the trial Judicial Committee are
founded on the evidence adduced
during the trial when the
parties and their respective
witnesses appeared before
Nananom at the Judicial
Committee below and who had the
opportunity to see, hear and
assess the said parties and
witnesses that testified.
With this position and
supported by the authorities as
cited above, we have no reason
to interfere with the said
findings of fact by the Judicial
Committee below and will
therefore not disturb same. This
to a greater extent resolves
issues (a) and (b) hereinabove
raised.
In respect of issue (c),
the trial Judicial Committee
rightly found as borne out by
the record that members of the
Abontema, Papaase and Baabianiha
families are children of the
Berekum Paramount Stool and
hence do not form an integral
part of the Asokore/Koraso royal
family… It stands to reason
therefore that the occupation by
the Abontema, Papaase and
Baabianiha families to the
Berekum Paramount Stool at one
point in time, however long, as
borne out by the record, does
not and can never make them part
of the Asokore/Koraso royal
family to be entitled to occupy
the Berekum Paramount Stool and
as the saying goes; ‘however
long a log stays in water, it
cannot turn into a crocodile.’
Consequently, this
Judicial Committee cannot
interfere with the
aforementioned findings of fact
by the Judicial Committee of the
Brong-Ahafo Regional House of
Chiefs and we hereby affirm
same. It follows therefore that
the Berekum Paramount Stool
family is made up of one and
only the Asokore/Koraso Royal
Family of Berekum and
eligibility to occupation of the
Berekum Paramount Stool cannot
be rotatory. Furthermore,
nomination for election and
installation as Paramount Chief
for the Berekum Paramount Stool
remains the prerogative and
customary duty of the queen
mother in consultation with her
said Stool Family in accordance
with Akan Custom as pertains in
Berekum.
Accordingly, the decision
and/or order by the Judicial
Committee of the Brong-Ahafo
Regional House of Chiefs in the
following terms – ‘…we
therefore decide that henceforth
when the Berekum Omanhene Stool
becomes vacant, the Asokore
Koraso royal family on one hand
and the Abontema, Papaase and
Baabianiha families together as
one unit on the other hand shall
ascend and occupy the Stool on
rotational basis and whoever is
the queen mother at any point in
time shall nominate a candidate
accordingly…’, thus making
the Berekum Paramount Stool
rotatory and entitling the three
(3) families, namely; Abontema,
Papaase and Baabianiha eligible
to occupation of the Berekum
Paramount Stool, is erroneous
and same is hereby set aside.”
The major issue that
emerged in this appeal was;
whether or not the finding of
the trial judicial committee as
affirmed by the 1st
appellate judicial committee
that there was only one Royal
family of the Omanhene Stool of
Berekum; i.e. the Koraso Royal
family, was against the weight
of evidence adduced at the
trial. Referring to two
authoritative decisions of this
Court in the cases of ACHORO
v AKANFELA [1996-97] SCGLR 209
and TUAKWA v BOSOM
[2001-2002] SCGLR 61 on how
an appellate court has to deal
with findings of fact made by a
trial court and the fact that an
appeal is by way of re-hearing,
appellants rightly contended
that it was clearly their duty
or task to demonstrate that the
findings made by the trial
judicial committee and affirmed
by the 1st appellate
judicial committee or tribunal
were perverse and unjustified.
In our view, they failed to do
so in their submissions as we
have demonstrated below.
Their main submission was
that the respondents by their
conduct, actions and inactions
prior to the institution of this
action, did admit that there
were four gates to the Royal
family of Berekum, namely;
Koraso, Abontema, Papase and
Babianha. They were therefore
estopped by conduct and
acquiescence from contending
otherwise. They referred to
exhibits E, F,
G, H and J,
which were authored on the
instructions of the 1st
respondent some time ago, as
supporting their claim that
there were four gates to the
Royal family. According to them,
the two lower judicial
committees or tribunals failed
to give any consideration to the
exhibits referred to above.
Again, they did not consider the
testimonies of the 1st
and 4th appellants
and the corroborative
testimonies of P.W.1, 3rd
respondent and D.W.1 on the
subject, which occasioned a
substantial miscarriage of
justice to the appellants. They
described as unfortunate the
findings of the two lower
judicial committees that there
was only one Royal family at
Berekum when the evidence to
that effect was undermined by
material contradictions in the
testimonies of the respondents
and their witnesses,
particularly; the fact that
members from the three families
described as children of the
stool, have occupied the stool
for several years more than
members from the Koraso Royal
family.
As we have already
indicated above, at the heart of
the dispute between the parties
is; whether or not there are
four gates to the Berekum Royal
family or just one royal family.
These two conflicting positions
held by each of the parties was
an invitation to them to lead
cogent and satisfactory evidence
to support or justify their
conflicting positions. We
disagree with the appellants
position that they had nothing
to prove since it were the
respondents who asserted that
the other three families,
namely; Abontema, Papaase and
Babianiha constituted children
of the Koraso Royal family, and
having made that assertion, the
onus was on them to prove it.
There is no denial to the fact
that it were the appellants who
petitioned that in nominating
the 4th respondent
for installation or enstoolment
as the Omanhene of Berekum
Traditional Area, the 1st
respondent breached custom when
she failed to consult the three
other gates of the Royal family,
namely, Abontema, Papaase and
Babianiha. The onus therefore
fell on the appellants to
provide sufficient evidence to
establish that these three
families formed part of the
Berekum Royal family from which
an Omanhene or a Paramount Chief
could be chosen in the wake of
the assertion by the respondents
that members from these three
families ascended the stool as
caretakers but not as royals as
such.
A ‘chief’ has been defined
in the Constitution, 1992
(article 277) and under section
57 (1) of the Chieftaincy Act,
2008 [Act 759] as; “a person
who, hailing from the
appropriate family and lineage,
has been validly nominated,
elected or selected and
enstooled, enskinned or
installed as a chief or queen
mother in accordance with the
relevant customary law and
usage”. {Emphasis ours}.
Since chiefs are selected or
chosen from royal families,
those chosen must hail from the
appropriate family and lineage
from which the selection is
made. However, examples abound
from our case law on
chieftaincy, where persons who
do not hail from the appropriate
family or lineage as
constitutionally mandated,
manage to ascend the royal stool
due to one reason or the other.
Such chiefs are described as
‘caretaker chiefs’. Brobbey,
JSC, gave three typical factors
that normally give rise to
caretakership in chieftaincy at
pages 114-115 of his book;
“THE LAW OF CHIEFTAINCY IN
GHANA”; published by the
Advanced Legal Publications,
Accra, Ghana in 2008. According
to the learned author and
eminent jurist, caretakership
can arise in the matrilineal
system when the matrilineal
family has no male child to
ascend the throne and a distant
relative (like a son), is made
to take over the throne. This is
typified by the facts the
respondents narrated in this
case. The second factor is;
“where there is the need for
money for some pressing family
matter and the one who provides
the money is given the stool as
security for the debt”. The
third is; “where a
representative of a strong
overlord or a powerful tribal
head is allowed to occupy the
stool or skin in return for
protection against an invading
force”. These are but a few
examples of how such caretaker
chiefs who are not from the
appropriate family and lineage
emerge. Politics has not been
ruled out completely as a
contributing factor to such
developments, which constitute a
complete aberration of our
traditional systems.
As Brobbey, JSC rightly
stated in his book under
reference supra, when such
non-royal chiefs ascend the
stool for many years, the
arguments canvassed by their
offspring is that they too are
eligible to ascend the stool by
virtue of the fact that their
great grand-uncle once ascended
the stool and that was proof
that their family too was part
of the royal family. However,
claimants from families
described as caretaker families
cannot claim to be members of
the royal family entitled to
succeed or ascend the stool.
They do not hail from the
appropriate family or lineage
for the purposes of succession
as clearly provided under the
Constitution. Therefore when a
dispute arises as to the
eligibility of one as a royal,
it is incumbent upon the one
asserting that right to prove
that he/she did descend from the
originator of the royal family.
This was the task that
confronted the appellants in
their petition before the trial
judicial committee.
The trial judicial
committee, did find, as was
affirmed by the 1st
appellate tribunal or committee
that though members of the three
families of Abontema, Papaase
and Babianiha have ascended the
Omanhene stool on several
occasions as the respondents
themselves admitted, they did so
for some reasons and that they
do not hail from the appropriate
family and lineage from which
chiefs in an Akan setting like
Berekum, are chosen under
customary law. The trial
judicial committee came to this
finding after hearing from both
parties and their witnesses and
observing their demeanours.
Having made this crucial
finding, it was for the
appellants to convince us that
this finding was perverse,
judging from the evidence on
record, or that the finding was
not supported in any way by the
totality of the evidence on
record, so the first appellate
tribunal erred in affirming
same. However, the only evidence
the petitioners led to establish
that the said three families
formed part of the Royal family
that ascends the Omanhene Stool
of Berekum was rooted in
estoppel. It was in two legs:
(1)
majority of the Paramount Chiefs
or Amanhene of Berekum in the
past came from these three
families, and
(2)
the 1st respondent
queen mother and the 3rd
respondent, have by their
conduct, through documents
authored at the 1st
respondent’s instance, admitted
that there were four but not one
royal family of the Berekum
Stool.
Their case was basically
built around the common law
principle of estoppel by conduct
and acquiescence. They argued
that since the 1st
respondent has, by her conduct,
made them believe that there are
four royal families forming the
Berekum Royal Family and that
members from the three other
families have ascended the
throne before, the respondents
were estopped from denying this
fact. Aside of the common law
principle of estoppel that the
appellants invoked, they did not
lead any further evidence to
positively prove that members of
the three families of Abontema,
Papaase and Babianiha families
are not children of the Koraso
Royal family as such but
originate from the maternal line
of the Royal family. They did
not satisfy the constitutional
requirement that whoever claims
to be eligible for enstoolment
as a chief or queen mother must
establish that he/she hails from
the appropriate family and/or
lineage from which such chiefs
are chosen.
The appellants, from the
record before us, demonstrated
their ignorance of the history
of the Berekum Royal Stool. The
2nd appellant herein,
(who was the 4th
petitioner) said the Stool
originated from Adansi. His
testimony was that it was the
Abontema family from Adansi that
founded the Berekum Stool. From
his testimony, he acknowledged
the fact that the first chief or
Omanhene of Berekum was Amankona
Diawuo who he said was from
Adansi but not Asokore. When
quizzed further during
cross-examination, he said
emphatically that he did not
know that Kwaku Diawuo who
became chief after Kyere
Diabour, was the son of Amankona
Diawuo, however, he was told
Kwaku Diawuo hailed from
Abontema family which was from
Adansi. His testimony was
contradicted by the 1st
appellant (the 1st
petitioner) who admitted during
cross-examination that the
Berekum Omanhene Stool
originated from Asokore-Ashanti
as was contended by the
respondents.
It is well settled that
whenever the testimony of a
party on a crucial issue was in
conflict with the testimony of
his own witness on that issue,
it was not open to a trial court
to gloss over such a conflict
and make a specific finding on
that issue in favour of the
party whose case contained the
conflicting evidence on the
issue. {See the case of ATADI
v LADZEKPO [1981] GLR, 281 @ P
224}. The trial judicial
committee could not therefore
have glossed over this serious
conflict in the testimonies of
the appellants on the roots of
the Berekum Royal family, which
the appellants appeared to be
ignorant about. Again, the
appellants said nothing about
the roots of Papaase and
Babianiha whom the respondents
said constituted the families of
the wives of the male occupants
of the Stool just like Abontema.
None of the appellants belonged
to any of the three families
they claimed were branches of
the Berekum Royal family. They
did not, from their testimonies,
know the original roots of these
families. Unfortunately, they
did not call any witness from
any of the three families to
support their claim that these
families belonged to the
appropriate royal family or
lineage from which the paramount
chiefs and queen mothers of
Berekum are chosen. They only
relied on estoppel and
acquiescence.
The respondents did not
deny that majority of the chiefs
who have ascended the Omanhene
Stool of Berekum were chosen
from the three families of
Abontema, Papaase and
Baabianiha. They gave reasons to
explain why that had been the
case and wanted the anomaly to
be rectified. It was their quest
to have what they called
‘uncustomary’ practice halted
that brought about the dispute
now on appeal before us. The
reasons they gave as the cause
of that uncustomary practice,
found favour with the Regional
Chieftaincy Tribunal that is
mandated to delve into such
matters and subsequently
affirmed by the National
Chieftaincy Tribunal when the
matter proceeded on appeal
before it. Again, apart from the
1st respondent, none
of the other respondents was a
privy to the exhibits the
appellants are relying on as
constituting estoppel against
the respondents. The doctrine or
principle of estoppel per rem
judicatam is founded on the
maxim: ‘interest reipulicae
ut sit finis litium’, which
simply means that public
interest, demands that there
must be an end to litigation.
The contents of the exhibits do
not constitute authoritative
pronouncements on the number of
royal families within the
Berekum Paramountcy. They cannot
therefore operate as estoppel
against the respondents.
Ascension to a stool in an
Akan state is grounded on
custom. Any admission that runs
counter to the custom of the
people or community concerned
cannot be accepted. It was
therefore incumbent on the
appellants to establish the
roots of the three families of
Abontema, Babianiha and Papaase
to the original stool, which
they agreed, with the exception
of the 2nd appellant,
originated from Asokore-Ashanti.
The question is; could the
appellants trace the three
families of Abontema, Papaase
and Babianiha to the original
Koraso Ekoana Royal family from
Asokore-Ashanti? The answer is
no. The appellants led no
evidence to establish any such
link. They were even not ad idem
as to the originator of the
Berekum Royal Stool. On the
other hand, the evidence of the
respondents on how the three
families in question came to
associate with the Royal Family
was immense and overwhelming and
the two lower courts or
tribunals could not have ignored
that piece of evidence. The
respondents were able to
establish that it was the wife
of the first chief Nana Amankona
Diawuo of the Koraso Royal
family called Bomo who was from
Adansi. The third chief Kwaku
Diawuo was the son of Amakona
Diawuo and his wife Bomo. It is
this Bomo who hailed from the
Asona clan that originated from
Adansi. Her family is the
Abotema family and her son Kwaku
Diawuo was therefore from the
Abontema family from Adansi as
the 2nd appellant
rightly contended.
As the respondents argued,
Kwaku Diawuo was placed on the
Stool by his grandmother the
then queen mother called Nana
Ameahene to help her administer
the stool as there was no male
child in her family. However,
when she died two years later,
Kwaku Diawuo enstooled his
sister as queen mother and from
that time, the children of the
Royal family monopolised the
stool until this dispute arose
as to their eligibility. The
claim by the appellants in their
statement of case that DW1
contradicted the testimony of
the 3rd respondent on
how the three families of
Abontema, Babianiha and Papaase
came to occupy the Stool is not
supported by the evidence on
record. The substance of their
testimonies was the same. The
crux of their testimonies was
that when the 2nd
occupant of the stool Nana Kyere
Diabour who was the younger
brother of Nana Amankona Diawuo
died, there were no male heirs
in the royal family so the then
queen mother invited the first
son of the 1st
occupant to ascend the stool to
assist her administer the state
as she was old. Not quite long,
she died and the son who was
made to occupy the stool,
enstooled her sister as the
queen mother. That was how,
according to the two of them,
the monopoly over the stool by
the children started.
As was held by the Court
of Appeal in the case of R.
T. BRISCOE (GH) LTD v BOATENG
[1968] GLR 9 at pages 11 and
12, a judge is not entitled
to disbelieve a witness merely
because in narrating his account
of events, which happened some
time ago, he slips here and
there or because there are a few
discrepancies between his story
and that of another witness
called to support him on that
particular issue. “The
accepted principle of law on
this matter is rather that where
the discrepancies are really
material and make the version of
the witness on the point or
points at issue highly
improbable when viewed against
the general background of the
dispute, the court of appeal in
hearing the appeal may say that
the judge of the trial court
erred in accepting and believing
what such witness has testified
about”. This Court endorses
that principle as enunciated
above.
The appellants did not
narrate any historical account
as to how the three families of
Abontema, Papaase and Babianiha
came to occupy the stool to
enable the trial judicial
committee compare the two on the
balance or preponderance of
probabilities to determine which
of the two narrations was more
probable. They only relied on
the fact that members from these
families had ascended the stool
before, a fact which the
respondents do not deny. In the
case of IN RE KWABENG STOOL;
KARIKARI & Another v ABABIO II &
Others [2001-2002] SCGLR 515,
Ampiah, JSC stated the point
rightly at page 538 of his
judgment when he opined that;
“the institution of Chieftaincy
is a sacred one and things that
are uncustomary should not be
allowed to desecrate the stool”.
Thus, this Court, in DARKO v
DARKO [1982-83] 1 GLR 345
held that; “non-ascension to
the stool for over 150 years was
not a bar to a family’s claim to
the stool”. This means that
the fact that non-members of the
royal family have ascended the
stool continuously for over
hundred years does not debar the
original or appropriate royal
family from making a claim for
the retrieval of the stool from
the non-members. Matters that
are strictly of constitutional
character, do not lend
themselves to common law
principles like acquiescence and
estoppel. The fact that a
constitutional provision has
been breached for a long period
cannot operate as estoppel to
its challenge in a future
action.
This Court has held in
several cases that the notion of
rotatory succession to Stools
should not be established on the
mere fact that a non-member of a
royal stool family had through
some circumstances, ascended the
royal stool. In ESSILFIE &
Anor v ANAFO VI & Anor [1993-94]
2 GLR 1, this Court held
that the rotatory system could
only be declared if there is
satisfactory evidence that that
has been the custom and practice
of the people. It is presumed
that the National House of
Chiefs is an authoritative
exponent of the customary law of
the land. Though this is a
rebuttable presumption, where
the National House of Chiefs has
affirmed a specific finding of
fact made by the Regional House
of Chiefs on the customs of a
particular community, as in this
case, this Court must be slow in
disturbing that finding unless
it has been established that the
said finding was not supported
by the evidence on record or
that …”there were strong pieces
of evidence on record which made
it manifestly clear that the
findings of the trial court and
the 1st appellate
court were perverse” -
GREGORY v TANDO IV AND HANSON
[2010] SCGLR 97.
The appellants, from the
record before us, were not able
to establish that the findings
of the trial judicial tribunal
as affirmed by the 1st
appellate tribunal was perverse.
The appellants could not prove
that members of the three
families of Abontema, Papaase
and Babianiha belong to the
original royal family that
descended from Asokore in the
Ashanti Region. Whilst the 1st
appellant admitted that the
original royal family came from
Asokore as contended by the
respondents, the 2nd
appellant said it came from
Adansi. That was a material
contradiction that goes to the
root of the matter in issue.
There was abundant evidence that
the original royal family that
descended from Asokore was the
Koraso Royal Family of the
Ekoana Clan and that the wife of
the first chief called Bomo of
Abontema family, was the one who
hailed from Adansi and of the
Asona Clan. The trial judicial
tribunal that heard from the
witnesses believed the
respondents’ story as to how
members of the three families of
Abontema, Papaase and Babianiha
came to occupy the stool. This
made the committee to rule that
the long occupation of the stool
by members from these three
families did not make them
royals eligible to ascend the
stool. Their eligibility is
determined by their being
members of the original Koraso
Royal Family. They must hail
from the ‘appropriate family and
lineage’, as provided under the
definition of a chief in the
Constitution, 1992 – article
277. The evidence on record is
that the Koraso royal family and
the Abontema family belong to
different clans. Whilst Koraso
is of the Ekoana Clan from
Asokore, Abontema belongs to the
Asona Clan from Adansi. A Clan
is defined as a group of people
with a common ancestor so
invariably; the two families of
Koraso and Abontema do not have
a common ancestor. Being two
different ancestral units, they
do not hail from the same family
and lineage. Appellants said
nothing about Papaase and
Babianiha, apart from their
claim that they are branches of
the royal family as was in the
case of Abontema.
This Court, in the In re:
Kwabeng Stool case (cited
supra), held that: -
“Estoppel of all kinds are
subject to one general rule;
they cannot override a statutory
provision. Thus where a
particular formality is required
by statute, no estoppel will
cure the defect…” The issue
before the Court is of a
constitutional character. It
does not therefore lend itself
to common law principles like
estoppel and acquiescence as the
appellants have heavily hammered
on. The question is; do members
of the three families of
Abontema, Papaase and Babianiha,
contrary to the findings of the
two lower courts, originate from
Asokore where the original royal
stool emanated from? The
appellants did not establish
that as the two lower courts
rightly found. Rather, the
appellants proved to know very
little of, or not at all, the
history of the royal family of
Berekum. They relied on the fact
that members from those three
families have ascended the stool
before and again the 1st
respondent, from her previous
conduct, had made them to
believe that the three were part
of the royal family. But that
alone cannot guarantee their
claim that the three families in
question truly belong to the
Royal family. They must trace
their roots to the originator of
the stool. This, the two lower
tribunals found they could not
do. We cannot depart from these
findings as they are supported
by the evidence on record.
On whether the 4th
appellant was properly
nominated, elected and enstooled,
we affirm the position of the
two lower courts or tribunals
that he was. The choice of a
candidate for the stool in Akan
societies, as was held by this
Court in the case of - IN RE:
WENCHI STOOL AFFAIRS; NKETIAH
& Ors v SRAMANGYEDUA III AND 2
Ors [2011] 1 SCGLR 1024; “is
the preserve of the queen
mother. She does not share this
responsibility with anybody”.
The 1st respondent
need not consult the three
families in question in the
nomination of her candidate for
the Stool. If that was the
practice in the past as was
known to the appellants, the
respondents were able to
establish the uncustomary nature
of that practice and nothing
debars them from taking steps to
curtail it.
We find no merit in the
appeal. We accordingly dismiss
same.
Y.
APPAU
(JUSTICE OF THE SUPREME COURT)
W. A.
ATUGUBA
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
A. A. BENIN
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL:
RAPHAEL ALIJINA FOR THE
PETITIONERS/APPELLANTS/APPELLANTS.
WIREDU-PEPRAH WITH ALFRED TUAH
YEBOAH FOR THE RESPONDENTS/
RESPONDENTS/ RESPONDENTS.
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