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JUDGMENT

EDWARD WIREDU, J.S.C.:

This appeal is from the decision of the Chieftaincy Tribunal of the National House of Chiefs dated 16th August, 1995.

This judgment by a majority of 3 to 2 affirmed the decision of the Ashanti Region House of Chiefs dated 9th March, 1993, in favour of the co-petitioner Respondent who will hereafter be referred to simply as the Respondent.

The Ashanti Regional Houses of Chief by it's decision referred to supra had allowed an appeal brought by the Respondent against the decision of the Judicial Committee of Kumasi Traditional Council which by a majority of 2 to 1 upheld a claim by the petitioner appellant by its judgment dated 31st May, 1991.

The petitioner appellant in this case will hereafter be referred to simply as the appellant.

The main issue raised for determination in this appeal is an answer to the question "Whether there exists a constitutional relationship between the appellant stool and the Asaago Odikro Stool?" The appellant claims that there exits such a relationship and contends that the Asaago Odikro swears the oath of allegiance to him as Taahyenhene to Otumfuo the Asantehene whilst the Respondent by his counter-claim, claims that he is the Head of Family of Asaago Stool. He joined issue with the appellant by an oath contending that the Asaago Stool swears the oath of allegiance direct to the Golden Stool (Asantehene) and that the Asaago Stool is not subservient to the Taahyenhene.

It is of significance to note here that it is this issue which was determined before the trial Chieftancy Tribunal in Kumasi in favour of the appellant.

The proceedings show that both parties provided evidence traditionally as to how their respective stools came from Denkyira to settle in Ashanti, evidence on matters within living memory both oral and documentary. The appellant provided evidence by himself and three other witnesses including the Obaapanin of Asaago, the present Odikro himself and one Baffour Awuah Gyasehene of Atwimahene. The appellant further tendered in evidence proceedings relating to an action the Obaapanin and Asaago Odikro brought before the Kumasi Traditional Council against him when he purported to remove the Odikro by oath. The proceedings in this action show that the matter was settled and the result was accepted by the parties. The appellant further tendered in evidence a letter sent to him by the Respondent claiming a share of monies realised from the sale of a portion of Asaago lands stating in that letter as follows among others that "We are all your children and we all belong to you."

The appellant provided evidence to show that Asaago lands were under his control and that he had settled some Northerners on a portion of Asaago land. There was evidence also that the Asaago Odikro swore before the Taahyenhene when the latter was going to swear the oath of allegiance to the Asantehene (Exhibit A). He further provided evidence to show that the Respondent reported to him in the company of the Gyasehene of Atwimahene (PW1) with the thigh of a slaughtered sheep the removal of Asaago Odikro as the latters overlord. The three witnesses of the appellant supported his case substantially in almost all the material facts especially in matters, of recent events within living memory relating to the two stools.

The Respondent provided traditional evidence as to how the Asaago people came to settle in Ashanti from Denkyira and by three other witnesses.

Traditionally the evidence led on behalf of the co-petitioner Respondent generally accord with the experience in practise that a stranger to Ashanti must first go through an Ashanti Paramount Stool before being introduced to the Asantehene to get settled. To that extent only, the traditional evidence brought by the Respondent as to how his ancestors came to Ashanti appears to be in accord with customary practice but when that evidence however is weighed against recent events as narrated by the appellant as supported by Asaago Obaapanin, the Asaago Odikro himself, the contents of Exhibit B the letter written by Respondent to the appellant such traditional evidence becomes of little significance. It is also not devoid of the usual contradictions and inconsistences associated with this kind of evidence.

The contents of Exhibit A, C and D negate the claim by the Respondent that there is no constitutional relationship between the two stools but that there exist merely a friendly relationship. The evidence of recent events on matters within living memory testified to by the witnesses for the appellant on the Asaago stool clearly show that more weight ought to be given to this than to the traditional evidence which in this case as in all other traditional evidence is full of inconsistencies, contradiction and weaknesses.

The issue posed for determination in this proceedings is one of fact. Two rival stories were put up by the contesting parties namely, i.e. whether the Asaago Odikro swears the oath of allegiance to the Taahyenhene as is contended by the petitioner appellant or whether the Asaago Stool swears the oath of allegiance direct to the Golden Stool as contended by the Respondent.

The trial Chieftaincy Tribunal in my respectful view directed itself properly to this issue and preferred the case presented by and on behalf of the appellant to the case put up by and brought on behalf of the Respondent by making the following finding of fact:

(a) That from time immemorial the Asaago village has always owed allegiance to the Taahyenhene Stool.

(b)  That the Respondent sent the thigh of a sheep in the company of (PW1) to inform him (the Taahyenhene) officially that he Respondent had destooled the Asaago Odikro.

(c)  That the contents of Exhibit A show clearly that on 26th  May, 1975 when the Taahyenhene swore the oath of allegiance, the Asaago Odikro swore in front of him showing that the latter owes allegiance to the former.

(d)  That Asaago lands are under the control of the Taahyenhene and that the Taahyenhene was the person who allocated part of the land to some Northerners to establish the Zongo Community. That pacification rites in Asaago and Oda river are performed by him. The Tribunal rejected the evidence of the Respondent and his witnesses that Asaago swears the oath of allegiance direct to the Asantehene/Golden Stool and that his ancestors have sworn such oath to the Asantehene.

(e) That the Asaago lands and rites thereof are performed by the Akyimpehene or Ankaasehene. The Tribunal further rejected the evidence of the Respondent that it was the Asantehene Nana Osei Tutu who gave the Asaago lands to his ancestors which evidence was contradicted by (DW1) that it was Obiri Yeboah who gave Asaago lands to Respondent ancestors. It further rejected the evidence of the Respondent that he is the Abusuapanin of the Asaago Odikro Stool.

The proceedings in the action taken by the Obaapanin and the Odikro of Asaago against the appellant tendered in evidence as Exhibit (1) was properly and rightly received in evidence by the trial Tribunal and the observations made by the panel members of the Kumasi Traditional Council who settled the case set to rest any doubt that may be entertained as to the Constitutional relationship between the appellant and the Asaago Stool. See the case of Egyin vrs. Aye SC 1962 (2) SLR 187. In this connection the following observations made by the individual members are pertinent:

"Baffour Osei Akoto: I want Nananom to think carefully, about the "matter whether it is proper for Taahyenhene to destool his subordinate "Chief Asaago Odikro arbitrarily".

"Chief Asaago Odikro arbitarily".

"Akyeamehene page 90:

"Akyeamehene: It is anti-custom for the Taahyenhene to swear the "Great Oath to destool a chief. Oheneba Osei Yaw,

"Kyidomhene has admitted that the Defendant swore the

"Great Oath of destool the Plaintiff and that he Kyidomhene

"invited the Defendant to accompany him to the Palace to

"remove the Great Oath but he refused to do. To assert

"that the Plaintiff says he swores with the Mpomponsus swore

"to Otumfuo is unrealistic because already the Plaintiff

"has swore the oath of allegiance to the Defendant as his "overlord."

Note: Nananom were unanimous in their decision that the

"Defendant has erred for swearing the Great Oath to destool

the Plaintiff, Opanin Kwadwo Nsiah, Asaago Odikro,

Obaapanin Yaa Asantewaa. Secondly, the Defendant has also

erred for refusing to attend the call of Oheneba Osei Yaw,

Kyidomhene to enable Kyidomhene to withdraw the Great Oath

for peaceful settlement. At this juncture the Defendant

rendered apology through Oheneba Osei Yaw, Kyidomhene to

Nana Agyeman Nkwantabisa III, Adontenhene the acting

President. "Kyidomhene and the Plaintiff's Asaago Odikro

and Asaago Obaapanin for wrongful destooling his

subordinate chief." The emphasis are mine.

(g) The Tribunal rejected the traditional evidence on behalf of the Respondent as to who actually settled the Respondents ancestors on the banks of Oda river (Asaago lands) in view of the contradictions by the Respondents witnesses DW1 who testified that it was the Akyimpehene who owns the land and DW3 said the Asaago lands belong to Ankaasehene.

Having accepted the evidence brought by and on behalf of the petitioner appellant, the trial Chieftaincy Tribunal gave its decision in favour of the appellant. On appeal, that decision was reversed by the Ashanti Region House of Chiefs.

A careful examination of the judgment from the Ashanti Region House of Chiefs reveals that its judgment was based on the following:

(1) That an appeal was by way of re-hearing. The House thereafter erroneously assumed that the re-hearing gave the House the same powers as the trial Tribunal without regard to the judgment of the trial Tribunal and the findings of fact made by the trial Tribunal.

(2) By referring to what it considered contradictions, inconsistencies and weaknesses in the traditional evidence brought by and on behalf of the appellant without considering similar inconsistencies, contradictions and weaknesses in the case of Respondent referred to and dealt with by the trial Tribunal in its judgment.

(3) By drawing wrong inferences from the document exhibit 1, the proceedings in the case brought by the Obaapanin and Asaago Odikro against the appellant, Exhibit B the letter written by the Respondent to the appellant in which the Respondent emphatically stated "we are all your children and we all belong to you" after referring to various sums given to individual including the Obaapanin Yaa Obo. Nothing is contained in the said letter that the two stools (i.e. Taahyen and Asaago Stool) own a common land at Asaago which was sold as the House would want it appear to justify the co-petitioner claim as his share of the money.

The majority decision of the members of the Chieftaincy Tribunal of the National House of Chiefs which affirmed the decision of the Regional House of Chiefs fell into the same error by reviewing the whole evidence in the case as if it were re-trying the case itself, thereby assuming the right to make findings of fact of its own entirely different from what the trial Tribunal had made basing its decision mostly on inconsistent and contradictory traditional evidence which the trial Chieftaincy Tribunal had properly addressed itself and considered as unreliable to determine the issue at stake. The National House gave greater weight to the traditional evidence brought by and on behalf of the Respondent disregarding the test to apply to such evidence as laid down and accepted in the Bonsie case reference 1957 (1) GLR 237. 1957 3 WALC 237.

The more serious objection the two appellate Tribunals i.e. (The Ashanti Regional House of Chiefs and the National House of Chiefs) decisions is that they were given per incuriam to the Supreme Court decision in the case of Nana Kwaku Agyemang vrs. Nana Boadu Kwadwo II. Tafohene substituted by Nana Ponko Baffour Civil Appeal No.6/93 of 8/2/94 unreported which determined as to which Adikros in Ashanti may swear the oath of allegiance direct to the Golden Stool. This decision is binding on all the Chieftaincy Tribunal, all the traditional Courts in Ghana and the Supreme Court itself the latter in principle. See the 1992 Constitution. Nothing special or perculiar has been established by the facts of this case to justify a departure from the principles laid down in the above case.

The Supreme Court decision supra affirmed a decision of the Judicial Committee of the Kumasi Traditional Council of 4th October, 1994 which had earlier been affirmed by the National House of Chiefs on 19th March, 1992. The latter decision laid down two conditions which must be satisfied for an Odikro to justify his claim to swearing an oath of allegiance direct to the Asantehene.

Those conditions are:

(a) That the Odikro must perform a direct duty/duties to the Golden Stool and

(b) That on the death of the occupant of the Golden Stool the said Odikro must swear to the deceased body of the Asantehene lying in state and that on the death of said Odikro the Golden Stool must be represented at his funeral.

The above conditions must co-exist.

The respondent did not on his evidence satisfy the above two requirements. His claim to supplying fish (which has ceased) (to the Asantehene was not direct but was through an intermediary).

It is trite law that primary findings of fact are the preserve of trial Tribunals and whenever such findings are supported by evidence on record they are not to be disturbed. Such findings ought to be respected through the hierarchy of the Courts unless they are not supported by evidence on record or are considered to be unreasonable on the facts of the case as presented. See Quaye vrs. Mariamu, 1961 GLR 93 S.C. Adjabeng vrs. Adjetey 1961 GLR 465.

It is not open to an appellate Court to usurp the function of making primary findings of fact by saying if I were trying the case I would have accepted the evidence of this or that witness. That is the preserve of the trial Court.

In the instant case the trial Chieftaincy Tribunal directed itself to the issue posed for determination. After carefully considering and reviewing the two rival stories put up by and on behalf of the parties, the Tribunal accepted on the preponderance of evidence especially on matters within living memory, the case presented by and on behalf of the appellant to that brought by and on behalf of Respondent. All the findings made in favour of the appellant are supported by evidence on record. The trial Tribunal rejected the evidence brought by and on behalf of Respondent. The trial Tribunal further rejected the evidence of Respondent and his witnesses that the Asaago Stool swears the oath of allegiance direct to the Golden Stool, it further rejected the evidence that any of the ancestors of the Asaago Odikro had ever sworn the oath of allegiance direct to the Golden Stool. The burden of proving this which rested on the co-petitioner Respondent, he failed to discharge, he was unable to bring himself within the principles and conditions laid down in Nana Kwaku Agyemang case supra.

It is pertinent to note that in this case the Asaago Obaapanin who owns the Asaago Stool and nominates its occupants testified that the Asaago swears the oath of allegiance to the Taahyenhene. Her evidence was substantially supported by the observation made by the members of the Kumasi Traditional Council in Exhibit 'C' which was accepted by the trial Chieftaincy Tribunal, hence its judgment in favour of the appellant. It therefore surprises me that in the face of such overwhelming evidence of established facts of events within living memory tendered at the trial in favour of the appellant and accepted by the trial Tribunal after a careful review of the evidence, which neither the trial Tribunal nor any of the appellate Chieftaincy Tribunals expressed a doubt or any difficulty in arriving at a decision one way or the other on the facts as were presented, that this Court is now being invited to refer back to the National House of Chiefs, this plain and simple issue as to which of the two rival stories touching the issue of allegiance was to be preferred to the other, which issue, each of the lower Courts had determined.

To me the trial Traditional Council was right in its view in resolving that issue in favour of the appellant. Its judgment is unimpeachable. The judgment of both the Regional House of Chiefs and the National House of Chiefs which decided otherwise are wrong and ought to be so held.

EDWARD WIREDU

JUSTICE OF THE SUPREME COURT.

C. HAYFRON-BENJAMIN, J.S.C.:

The Plaintiff in this case, who is now the Appellant before us, swore the Great Oath of Asante in respect of his claim to title to "Asaago town and its outskirt". He also claimed that the Odikro stool of Asaago owed allegiance to the occupant of the Taahyen Stool. The majority of Nanaanom in the Judicial Committee of the Kumasi Traditional Council gave judgment in favour of the Plaintiff to the effect that

"Asaago and all its outskirts belong to the Taahyenhene"

Since the Judicial Committee of the Kumasi Traditional Council has no jurisdiction in land matters that decision was null and void and of no effect. Nanaanom in both the Regional House of Chiefs and in the National House had no difficulty in identifying this illegality and set it aside. Interest in this decision arises because the Plaintiff now Appellant before us prays that this Court should set the judgment of the Chieftaincy Tribunal of the National House which affirmed the decision of the Ashanti Region House of Chiefs and enter judgment in his favour. The effect of such a judgment, in my respectful opinion would be to grant him the reliefs which he sought in the Kumasi Traditional Council and inferentially grant him title to the Asaago town and its outskirts lands. Such a judgment cannot stand. I think the case of MOSI vs. BAGYINA may be invoked in expunging such a paterntly illegal and unwarranted decision from the record. Accordingly I will set aside the declaration of the Judicial Committee of the Kumasi Traditional Council that the Asaago town and its outskirts belong to the Taahyenhene.

Before us the Appellant contends that:

"The central issue calling for determination as far as this appeal is concerned is whether or not the Asaago stool owes allegiance to the Taahyen Stool and whether or not the Defendant Respondent was clothed with the Requisite capacity to initiate his action."

Dealing with the issue of capacity first, I think the Appellant confuses the Oath swearing process with a counterclaim. The Kumasi Traditional Council by their majority also fell into the same error. A customary Oath to initiate a lie must be responded to by a similar Oath either denying the assertion in the Oath or making a counter claim to the same or a superior subject matter. It is only then that issue is joined and the matter may be adjudicated upon. It is a statutorily recognisable form for instituting a cause or matter affecting chieftaincy. In the circumstances if the person upon whom the Oath is pronounced does not respond to the Oath, that person must be customarily arrested (Dadua) and there is then admission of liability or guilt by the person who fails to respond to the Oath and a fine and customary sanctions are imposed. In the present situations I do not think it is proper for the Appellant to swear to a customary instituting a cause or matter affecting chieftaincy and claim that the Respondent had no "capacity to initiate his action". First of all by swearing in response to the Appellants' Oath the Respondent was not thereby making a counterclaim. If the Appellant knew that the Respondent was not the proper person upon whom the Oath was to be sworn, then he had sworn a reckless Oath (Ntamhunu) for which he must suffer the customary sanctions. I do not think that the Appellant is serious in his challenge to the Respondent's capacity: For if the Appellant persists then the Judicial Committee of the Kumasi Traditional Council must have dismissed his claims. The good sense in this situation is that a party cannot institute an action against another when he (the party) knows that the other has capacity and pray the Court or Tribunal to give judgment in that party's favour. In my respectful opinion, the objection to capacity of the Respondent was irrelevant or pershaps had been waived. The issue of capacity is raised because the Appellant lost in the two lower Tribunal to the Court.

There is yet another objection. The Appellant had lost in both the Regional and National House of Chiefs and now seeks further to ventilate his grievance before us. The judgment of this Court in AGYAKOMA vs. OPUNI & ORS. (1987-88) G.L.R.D. 7 is clear on the point and the holdings as distilled by the learned editor at page 13 thereof are instructive and will bear compliance by this Court. For the sake of regularity I will set them down thus:

"Held, dismissing the application: (1) the National House of Chiefs was the highest traditional judicial body in the country and consequently it was the authoritative exponent of the customary law in Ghana and its opinion had to be preferred to those of lesser tribunals. The unanimous views of the judicial committees of the Ashanti Regional House of Chiefs and that of the National House of Chiefs therefore, in the absence of very convincing argument to the contrary, had to command the highest consideration and would prevail with the court. Dictum of Azu Crabbe C.J in Sarkodee I vs. Boateng II [1977] 2 GLR 343 at 348, CA (full bench) applied.

(2) Since the factual matters raised had been adequately dealt with by the appellate traditional tribunals, below, and the defendant had not discharged the burden she faced with two concurrent decisions against her, she could not re-agitate any of the matters raised with any degree of success and accordingly it would be pointless to allow her leave to appeal. srimate Bibhabati Devi v. Kumar Ramendra Nayaran Roy [1946] AC 508, PC and Akofi v. Wiresi and Abagya (1057) 2 WALR 257 cited.

Their Lordships in the AGYAKOMA case supra, emphasised that "in the absence of very convincing argument to the contrary" the unanimous views of two high chieftaincy committee "would prevail with the Court. I accept the dicta in the AGYARKWA case, supra, and I think this Court is bound by that decision unless of course there are convincing arguments to the contrary.

It was with these matters in mind that I tried to prevail on my learned and respected brethren to let us seek clarifications on some aspects of the customary laws and practices relevant for a consideration. I fear therefore that our inability to do so may seriously affect the quality of our opinions. In so saying I am fortified by the provisions of the Chieftaincy Act 1970 and Court Act (Act 459) which make it obligatory on Courts and tribunals to consult the appropriate customary laws and practices, text books and other sources in the ascertainment of customary. Contrary, therefore, to what learned Counsel for the Appellant says that customary law is a question of fact, by the 1992 Constitution customary law is a question of law. It must therefore be ascertained with a certain exactitude so as to express the customs of the communities which practice it. In BOAMPONG vs. ABOAGYE (1981) G.L.R. 927 the Supreme Court did not think it below its dignity to consult the National House of Chiefs on the proper circumstances under which a chief may be said to have abdicated. The Supreme Court decision subsequent to the enquiry reflected on the quality of the advise so given. In the absence of such enquiry, we are bound to rely on our knowledge of the customary law and as revealed by the record. We must however bear in mind that we cannot substitute logic for customary law.

I agree with Appellant's Counsel that the central issue in this appeal is whether the Respondent Stool owes allegiance to the Appellant Stool. This is undoubtedly a cause or matter affecting chieftaincy. The majority of Nanaanom in the Kumasi Traditional Council however mixed the issue of title to the Asaago Township with allegiance of one stool to the other. Nanaanom in both the Regional and National House of Chiefs found correctly that the two matters could not be jointly assessed to arrive at the decision which the majority in the Judicial Committee of the Kumasi Traditional Council reached. Nanaanom in the Regional House of Chiefs said:

"Perhaps the issue which when determined would dispose of this appeal hinges on whether the Asaago Stool swears to Taahyen Stool or to the Asantehene directly prior to determining the issue from the evidence on record, it is imperative to bear in that in the hierarchy of chiefs on chief may be subordinate to another but that alone does not connote subservience. Similarly it does not also imply that the one lower in status swears the Oath of allegiance to the one higher in the hierarchy. From this premise, there is evidence on record that the Asaago Odikro swears before the Taahyenhene in front of the Otumfuo, which in our view merely illustrates the point that the two stools belong to the same Fekuo. This traditional ceremony in no way implies that the Asaago Odikro is subservient to the Taahyen Stool or that the former necessarily swears the Oath of allegiance to the other."

It is obvious that the majority decision did not consider this cardinal principle of the customary law of allegiance ably enunciated by the Paramount Chiefs of Ashanti constituting the Judicial Committee of the Ashanti Regional House of Chiefs.

How such allegiance may prove was firmly stated by the minority opinion in the Kumasi Traditional Council when Nana wrote:

"....the Odikro of Asaago has not in fact sworn any Oath of allegiance to the Taahyenhene, because the laid down tradition and custom of Ashanti for swearing of oath of allegiance was not followed by not using any traditional sword (afena) to swear the oath of allegiance to the  Taahyenhene"

This was a crucial finding by the minority, which correctly stated the custom and negatived the peripheral findings of the majority. The statement was straight and simple "no traditional sword used, no valid swearing of the oath of allegiance". The evidence on record was certain that the Odikro of Asaago had not sworn any oath of allegiance to the Taahyenhene. The Asaago Odikro in evidence in chief, and giving evidence on behalf of the Appellant stated categorically that he did not swear any oath of allegiance to the Taahyenhene. Rather he danced before him and that was all. Yet again the Appellant could not name the traditional sword by which the Respondent swore the oath of allegiance to him.

Did the Appellant have a traditional sword by which he could take the oath of the Respondent. The clear answer is No. Exhibit "A" which was admitted without objection refers to TAAHYEN STOOL AFFAIRS. From that exhibit it was shown that both the Appellant and the Respondent belong to the KYIDOM FEKUO whose leaders are the Prices of the Golden Stool such as the AKYEMPIMHENE and the ANKAASEHENE. By the same Exhibit A the Appellant swears by the traditional sword called "AHWEHWEBA". But the Respondent swears by the traditional sword called "GYAPATIA"

Now the AHWEHWEBA is the lowest of the swords of chivalry in the hierarchy of Asante State swords used in pledging a chief's allegiance to the Asantehene. It is so used by Adikrofo and lesser chiefs. The assertion therefore that Appellant belongs to the Obinempong class known as "AGUDIE" could not be correct as otherwise he would be swearing by the principal traditional sword called "MPOMPONSIO". The sword by which the Appellant swears - AHWEHWEBA - means that he is an ordinary Odikro and therefore he only has elders and not sub-chiefs. Thus the Appellant and his elders would use the same sword in pleading their allegiance to the Asantehene. The Respondent was not proved to be an elder of the Taahyen Stool. It was because the Respondent mistakenly got into the KYIDOM FEKUW line when the Appellant was swearing his Oath of Allegiance that Appellant contends that he owes allegiance to him such a state of affairs was denied by OHENEBA BEKOE - the Mmarimahene of Akyempim Stool saying it was a serious error which should have been corrected.

The witness was right, for the witness was aware that the Respondent swore by the traditional sword 'GYAPATIA'.

Now what is this traditional sword "GYAPATIA" . There was evidence that this sword is used by chiefs who perform personal service of supply the Asantehene with food or for want of a better expression supply the Asantehene such victuals which he would eat. Such a chief would in addition "Drink the Gods" (Nanabosim) with the Asantehene. Now "drinking the gods" means taking an oath of secrecy. Captain RATTRAY in his learned treatise on ASANTI CONSTITUTION gives an example of the occasion of the return of the Juabens from exile back to Asante from AKIM ABUAKWA that the Juaben chiefs were made to "drink the gods" never to divulge any secrets or sensitive knowledge they had acquired during their sojourns in AKIM ABUAKWA. There was uncontroverted evidence on record that:

"Later the Asantehene, Nana Osei Tutu enquired from the visitors (that is the Respondents ancestors) the form of traditional services they used to perform to the Denkyira Stool. They replied Otumfuo that when they were at first domiciled at Denkyira they used to fish to serve the Denkyirahene. The Asantehene accepted the visitors and decreed that they should "drink" Abosom (to drink fetish) to cement their loyalty and allegiance to him".

In the face of this close traditional tie with the Asantehene, how could the Appellant also claim that the Respondent owes allegiance to him?

In my respectful opinion not much traditional history or either party was disclosed. It was agreed that both parties were emigrants from Denkyira. Indeed it is agreed that both parties eventually settled on the banks of the Oda River. The difference, however, was in how they came to settle on the banks of that river. For the Appellant, the land was given to him by the Asantehene "on a silver platter". For the Respondent, his ancestors came from Denkyira in search of a relative, Mawoso, who introduced him to the Akyempim - here who also led him to his father, the Asantehene. It was when the Asantehene discovered that they were fishermen to the Denkyira that he asked the Akyempimhene to settle them by the Oda River: That the Respondents ancestors were fishermen for the Asantehene was comfirmed by the OTI Odikro, the Respondent neighbour who fulfils a similar function for the Asantehene. The parties both belong to the KYIDOM FEKUO. But the Appellant swears by the AHWEHWEBA, traditional sword while the respondent swears by the GYAPATIA traditional sword. "Exhibit B" is a letter indicating there was a relationship between the parties in respect of both familiar and formal proceeds from land sales in the area of settlement.

In my respectful opinion the assessment of the traditional evidence was poor and contained fallacious statements not warranted by the evidence. Thus wrote the Majority of Nanaanom in the Judicial Committee of the Kumasi Traditional Council:

"it is to be noted in accordance with Asante constitution a thigh of a slaughtered sheep is always sent to inform a superior chief of his subordinate chiefs destoolment. And this is exactly what happened in the Asaago case"

Yet in "Exhibit C" the proceedings (though in the settling that it was conducted illegal and void) the charge was that the Appellant had sworn the Great Oath of Asante to destool the Asaago Odikro.

The majority decision also admitted that it was the Akyempimhene, the Ansasehene and the Amantemhene who as leaders of the KYIDOM FEKUO "that sought Otumfuo's permission to enable Taahyenhene to swear the Oath of allegiance to him". The judgment then castigates the Akyempimhene for not swearing the Great Oath on the Asaago Odikro when he saw him swearing in front of the Taahyenhene. I think there is ample evidence that it was a mistake and I accept it.

In all the circumstances the majority of the Judicial Committee of Kumasi Traditional Council failed to test any valid recent act or acts against the traditional histories of the parties.

I think the principles enunciated in the ADJEIBI-KOJO vs. BONSIE 3 W.A.L 257 at 260 must be understood in its proper perspective. Where the trial court or tribunal prefers one history to the other principle does not apply. It is only when the trial tribunal is in doubt about which rival story to prefer that it must look for evidence of recent acts. But I will go forward and say that application of the ADJEIBI-KOJO principle must be predicated on the rival claims to the same property, office allegiance or some such claim. In my respectful opinion in the present appeal there are no rival claims to the same allegiance. The Appellant claims the Respondent owes allegiance to him. The Respondent says he owes allegiance to the Asantehene. It is a matter of evidence as confidently enunciated by the Ashanti Region House of Chiefs what the true position is. The ADJEIBI-KOJO principle could not apply. This was the view taken by Nanaanom in the Regional House of Chiefs and supported by the National House of Chiefs. Thus wrote Nanaanom:

"We are also mindful of Respondents Counsel's submission that where traditional history is unreliable events must be resorted to in compliance with the principle laid down in the celebrated case of Kwadwo v. Bonsie 3 WARL 257. However, we have to state that events must have a bearing with the past, however, remote. It is in this light that this again accepts without any reservation the evidence of the Appellant (Respondent before the Supreme Court) in preference to that of the Respondent (now Appellant before the Supreme Court). The Appellants version on the founding of the Asaago and Taahyen Stools is more reasonably probable and this Committee accordingly accept it. Hence the Appellants claim that Asaago Stool swears directly to the Asantehene is not in doubt".

The National House of Chiefs in confirming the decision of the Ashanti Region House of the Chiefs agreed that the Respondent evidence was the "more probable".

I have in this opinion tried to illustrate that it would repaid a visit by this Court to the Traditional authorities and others for explanation to the purport and significance of such emblems as traditional swords and the implications of their application within the performance of traditional ceremonies and the effect on the constitutional relationships, if at all, between any two chiefs. As it happened I must express my regret this Court was unable to consult the traditional bodies on the vital customary issues raised by this appeal without which the decision of this Court may be honoured more in its breach than in its observance. No Court or Tribunal has the right or authority to make a pronouncement or alter the course and application of our customary laws. Our constitution decrees that the customary law is that which is practised and accepted by our various communities. When there is doubt as to the correctness of the customary law or practice, statute enjoins all Courts and Tribunals to enquire from the statutorily stated sources.

In the result, this appeal is dismissed. The judgment of the National House of Chiefs and the Regional House of Chiefs are affirmed. The judgment of the Judicial Committee of the Kumasi Traditional Council is set aside and in its place I enter judgment for the Defendant-Respondent in that tribunal.

KPEGAH, J.S.C.:

I will also allow the appeal in this case.

ACQUAH, J.S.C.:

This appeal from the judgment of the National House of chiefs reveals that notwithstanding the clear guideline by Lord Denning in Adjeibi Kojo vrs Bonsie (1958) 3 WALR 257 at 260 on the method of assessing rival traditional evidence, some of our courts and tribunals still have some difficulty in the assessment of traditional evidence.

Now traditional evidence is evidence derived from tradition or reputation or statements of deceased persons with regard to questions of pedigree, ancient boundaries and the like, when no living witnesses are available to testify about such matter. Thus the person who is himself narrating such evidence has no personal knowledge about the matters he is testifying. The same usually applies to the person who also told the person testifying. Such evidence is therefore hearsay evidence, and had the common law and sections 128 and 129 of the Evidence Decree 1975 (NRCD 323) not made same admissible as an exception to the hearsay rule, such evidence would undoubtedly have been inadmissible. Now because traditional evidence is handed down by word of mouth,

"... it must be recognized 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 or more years ago": Adjeibi Kojo vrs. Bonsie (supra) at page 260.

In most instances, the coherence of a party's traditional evidence, depends on the level of intelligence of the witness narrating. For a story told to two persons would be differently recounted by each of them. Yet both heard the same story.

Accordingly in assessing rival traditional evidence the coherence of a party's version or his demeanour should not be the sole criterion for its preference over the other version: What is important is to find out which of the rival versions is authenticated by acts and events within living memory. Especially where such acts and events are acts of possession and ownership by a party claiming ownership and title to the subject-matter of the claim. For what raises a presumption of ownership in favour of a party is not his impressive demeanour nor the coherence of his traditional evidence but acts of possession and ownership he exercises over the subject-matter of the action. Thus in Dua III vrs. Tandoh (1927) PC 74-28, 109 wherein the trial judge relying on the coherence of one party's traditional evidence in preference to the others acts of possession, found for that party, the Privy Council in disapproving such finding, said at page 110:

"Their Lordship are clearly of opinion that the facts proved and admitted establish that the Bekwai people are in possession of the disputed land, and this fact throws upon the respondent the burden of providing his title, ... The real question is, Did the evidence rebut the prima facie title of the Bekwais shown by possession. The learned trial judge who tried the case thought that it did not, and relied upon the evidence of one Yaw Atwidei, ... this evidence was traditional; ...But Tradition, though of great value when supported by action and facts, becomes of lessened consequence when brought into collision with a series of definite incidents inexplicable if the tradition be regarded as accurate".

Now this presumption of title raised by acts of possession and ownership now appears as section 48 of the Evidence Decree 1975 (NCRD 323), which reads:

"48(1) the things which a person possesses are presumed to be owned by him.

(2) A person who exercises acts of ownership over property is presumed to be the owner of it".

It follows from the foregoing that a party can succeed in his claim even if his traditional evidence is rejected. And so in Ebu vrs: Ababio (1956) 2 WALR 55 at 57 it was held:

"Traditional evidence has a part to play in actions for declarations of title but there are cases in which a party can succeed even if he fails to obtain a finding in his favour on the traditional evidence".

As pointed out above, it is against the background of events and acts within living memory that rival traditional evidence should be assessed and not by the demeanour of the party nor the coherence of his version, because those who are narrating the story, and indeed those who told these witnesses, had no personal knowledge of the events they are testifying about. And an intelligent witness may be able to render his story more coherent than the other party, though his version may be false. Hence the need to ensure that notwithstanding the brilliant and confident way a version of the traditional evidence had been recounted, that version is in accord with or supported by events and acts in recent years. For as directed in Adjeibi Kojo vrs. Bonsie (supra) at 260:

"Where there is a conflict of traditional history ... the best way is to test the traditional history by reference to facts in recent years established and by seeing which of two competing histories is the most probable".

Explaining the import of the above guideline, Wiredu, JSC in Adjei vrs. Acquah (1991) 1 GLR 13 at 29-30 said:

"I do not think the guidelines ... are to the effect that for a plaintiff to succeed his traditional story must be accepted as proved. This is not a sine qua non to succeeding; See Ebu vrs. Ababio (1956) 2 WALR 55. What the authorities require is that such stories must be weighed along with recent facts as acts of exercise of right ownership to see which of the two rival stories appear more probable. Facts established by matters and events within living memory, especially evidence of acts of exercise of ownership and possession must take precedence over mere traditional evidence".

To sum up, the court in assessing rival traditional evidence,

i. Must not allow itself to be carried away solely by the impressive manner in which one party narrated his version, and how coherent that version is.

ii. But must examine the events and acts within living memory established by the evidence, paying particular attention to undisputed acts of ownership and possession on record.

iii. And then to see which version of the traditional evidence, whether coherent or incoherent, is rendered more probable by the established acts and events.

iv. And finally, the party whose traditional evidence such established acts and events support or render more probable, must succeed unless there exists on the record of proceedings, a very cogent reason to the contrary.

On the basis of the above exposition, let me now turn to the appeal. But first the facts. The Taahyenhene of Kumasi, Nana Kwame Gyamfi Kwanini II swore the great oath of Ashanti.

I.   that the Asaago town and its outskirts belong to the Taahyen stool of Kumasi.

II.  That the Odikro of Asaago owes allegiance to the occupant of the Taahyen stool of Kumasi.

To this, the defendant countermanded by swearing the said oath

i. that the lands of Asaago were gifted to defendant's ancestor Kwame Gyasi by the Asantehene through Ankaasehene of the Kyidom division of Kumasi.

ii. That the Odikro of Asaago owes allegiance to the Asantehene.

At the trial which took place at the Judicial Committee of the Kumasi Traditional Council, the plaintiff, Nana Kwame Gyamfi II traced his ancestry from Denkyira to Taahyen where they were settled by Otumfuo, Nana Osei Tutu who created a stool for them and conferred the customary duty of supplying him with tobacco; and as an insignia of that office, he gave them two pipes, and made them to swear directly to him. The village of Asaago, he continued, was gifted to his ancestors. He then enumerated those who had since occupied the Taahyen stool as Nana Gyamfi Kumanin I, Kwame Frimpong, Kwame Gyekye, Kwabena Kununky, Kwame Antwi Agyei, Kwadwo Boaduaa, Kwame Antwi Agyei Tiaa, Kwame Poku, Kwadwo Agyekum and finally he himself. He said it was his predecessor Nana Kwame Poku who created the first odikro of Asaago village in the person of Kwame Gyasi who was later destooled and replaced by Ama Hiaa, as there was no male successor. She was in turn succeeded by Yaa Obo. He said the present odikro of Asaago, Kwame Gyasi, swore the oath of allegiance to his Taahyenhene's predecessor called Nana Agyekum. The plaintiff stated further that he himself swore the oath of allegiance to the Asantehene Nana Opoku Ware on 26th May, 1975 and that at that swearing, the Asaago odikro swore in front of him as custom demands. And in support of this he tendered as Exhibit A, the document on the said swearing from the Kumasi Traditional council. He then enumerated a series of act and events in his favour, evidencing his overlordship over the Asaago village and concluded with the incident of 23rd, October, 1990 when the Defendant in the company of others, and with a thigh of a sheep called on him at his village and informed him that, he, the defendant had slaughtered sheep to destool the Asaago odikro because the Asaago odikro had collaborated with him, the Taahyenhene, to deny the Asaago people of their lands: At this juncture, the plaintiff said, he swore the great oath of Ashanti, to affirm that the Asaago village and its outskirts belong to the Taahyen stool and that the Asaago stool owed allegiance to the Taahyen stool.

In support of his case the plaintiff called as his witness Baafour Awuah as PW1 who testified on the 23rd October 1990 incident; Yaa Asantewaa, the Obaapanyin of Asaago as PW2 who confirmed that the Asaago Stool owed allegiance to the Taahyen stool, that Asaago land belonged to the Taahyen stool and that the defendant, his grandson, was not the head of the Asaago stool family; and finally the odikro of Asaago, Nana Kwame Gyasi as PW3 who also supported the plaintiffs claim that the Asaago stool owed allegiance to the Taahyen stool.

The defendant, described in the summons as the ebusuapanyin of the Asaago stool family, traced his ancestry to one Kusi, a native of Denkyira who came with his people to Ashanti in search of one Amponsem, also a Denkyira. They found him and were introduced to the Otumfuo by the Akyempimhene and the Ankaasehene. He said when Otumfuo saw that his ancestors were fishermen, he settled them near the river Oda and made them swear to him to be faithful and to supply him with fish. They were placed in the Kyidom division as their sub-divisional head, although they swear directly to Otumfuo. He said his ancestors migrated to Denkyira with their own black stool and god called Atiekesia. On the relationship between the Asaago stool and the Taahyen stool, he said that it was only a long friendly one, and not one of master and servant.

In support of his case the defendant called Nana Owusu Bekoe, the Akyempimhene's Mamahene as DW1 who testified on the traditional history as narrated by the defendant; Ama Serwa, the Obaapanyin of Odaso as DW2 who also supported the defendants traditional history; and finally Nana Osei Ababio DW3 who testified that during the Nkrumah regime the people in their area decided to build a new township with Asaago as their head village. He said the permission for this new township was obtained from the Ankaasehene.

The Judicial Committee of the Kumasi Traditional Council, relying on events and acts within living memory as established by the evidence, by a majority of 2:1 gave judgment for the plaintiff. The Ashanti Regional House of chiefs, relying on what they perceived to be improbabilities in the plaintiffs traditional evidence unanimously reverted the judgment of the trial court. On the plaintiff claim to the ownership of Asaago, they held, rightly in my view, that that was not a claim within the competence of chieftaincy tribunals. On further appeal to the National House of Chiefs, the judgment of the Regional House of chiefs was affirmed by a split decision of 3:2. It is against this spilt decision that the plaintiff/appellant lodged the instant appeal to this court on ground that

i. The National House of Chiefs, chieftaincy tribunal made a wrong finding of fact by determining the issue of allegiance solely on traditional history without taking into consideration recent facts and events.

ii. The National House of Chiefs, chieftaincy tribunal erred in law by holding that the respondent swore oath of allegiance directly to the Asantehene, even though respondent has not complied with the conditions necessary before an occupant of a stool in Ashanti can swear directly to the Asantehene.

iii. The National House of chiefs, chieftaincy tribunal erred in law when it held that the respondent had capacity to respond to the oath sworn to by the appellant.

Now from the grounds of appeal, and the undisputed fact that chieftaincy tribunals have no jurisdiction to determine land suits, the issues for resolution in this appeal are first that of the defendant's capacity, and then the claim that the Asaago stool owes allegiance to the Taahyen stool..

In his written submissions the plaintiff contended that from the evidence of Yaa Asantewaa PW2, the defendant was not the head of the Asaago family and therefore not competent to respondent to the oath of the plaintiff and the National House erred in holding otherwise.

I really find it difficult to comprehend the import of the plaintiff's objection to the defendant's capacity because throughout the trial, it was not the case of the plaintiff that the defendant had no capacity to respondent to his oath. And if indeed the defendant did not have such capacity, but nevertheless the plaintiff chose to sue a person he knew did not have capacity to defend his action, then it is the plaintiff's action which ought to be thrown out as having been directed at the wrong person. But I agree with the National House that as a member of the Asaago family he is entitled to defend the action so as to defendant the interest of that family, if even he is not the head of that family.

On the allegiance, the plaintiff referred to this Court's decision in Owusu Agyeman vrs. Nana Baodu Kwadwo II, Ch. A No. 8/93 of  8th December 1994 wherein this court accepted that for a stool to owe allegiance direct to the Otumfuo, the following conditions must be satisfied:

a)  The occupant must perform direct duties to the Asantehene; and

b) On his death the Asantehene must be represented whilst lying in state or on the death of the Asantehene whilst the body is lying in state he must swear the oath of allegiance to the dead body of the Asantehene.

He contended that there was no evidence that any of the above conditions had been satisfied by the defendant, and therefore the National House erred in so finding.

Now the evidence led by both parties was mainly traditional but the Regional House of Chiefs whose decision was upheld by the National House expressed its approach to the assessment of the evidence, as follows:

"Our desire as committee to rely on a recent event such as whether the Asaago odikro swore the oath of allegiance to the Taahyenhene at the former's installation is of no assistance to us".

And on the basis of what they perceived to be improbabilities in the evidence of the plaintiffs witness, the National House of Chiefs too affirmed the approach and conclusion of the Regional House of Chiefs. Thus in respect of the evidence of PW1, for instance, the National House reasoned that "The explanation (of the respondent) may be reasonable because in the first place Baffour Awuah was not shown to be an Okyeame of Taahyenhene so sending the thigh of sheep officially through him to Taahyenhene is not customary and that sort of evidence should be disbelieved".

From the exposition on the proper assessment of traditional evidence, it is clear that the above method of the assessment by the National House is wrong. For the evidence clearly established that the defendant in the company of others took the thigh of a sheep to the plaintiff to inform him that the Asaago odikro had been destooled.

The proper approach therefore to the assessment of the evidence, is how far does this undisputed event and other events and acts established by the evidence, support or does not support either of the rival traditional evidence lead in respect of the authority to which Asaago stool owes allegiance.

On the part of the plaintiff there is first, Exhibit A dated 26th May 1975 headed Taahyen enstoolment affairs which showed that when the plaintiff swore before the Otumfuo on 26th May 1975, the Asaago odikro swore in front of him: and in respect of this event, the defendant was thus cross examined:

"Q. You claim you swear to Otumfuo, why is it that the Asaago chief swears in front of Taahyenhene.

A. It is uncustomary for the Asaago odikro to swear in front of Taahyenhene at Manhyia palace. Again we were not aware of Asaago odikro going to swear in front of Taahyenhene otherwise we would have opposed that move".

The above answer from the defendant did not deny the fact of the said swearing in. Now it was further put to the defendant,

"Q. I put it to you that you yourself accepted the installation proceedings from Manhyia palace.

A.  Yes, I remember I accepted the installation proceedings which you tendered".

Now in Ashanti custom the very fact that the Asaago odikro swears before the Taahyenhene at Manhyia palace, signifies that the Asaago odikro owes allegiance to the Taahyenhene. And the defendant's own witness. Nana Owusu Bekoe, DW1, was made to acknowledge and admit this custom when he was cross-examined as follows:

"Q. Do you know that in accordance with Asante custom, if a divisional head (Fekutire) is swearing the oath of allegiance, all the Fekuo members swear in front of him?

A. Yes I know that it is the laid down custom for all Fekuo members to swear in front of their divisional head".

Such a confirmatory evidence from the defendant's witness in support of the plaintiff's version renders plaintiff's version preferable to that of the defendant's version.

Now when DW1, after the above admission, was confronted with the obvious question as to why he was alleging that. Asaago odikro swears directly to the Otumfuo when event of 26th May 1975 was to the contrary, he answered by claiming ignorance of the happening of that event. He answered:

"A. If it is true that Asaago odikro swore in front of you at Manhyia palace, then it means that Asaago odikro had assumed a wrong chieftaincy title. It was an anomaly on the part of the Asaago odikro to swear in front of you and that anomaly should be rectified?"

One may ask, when? Exhibit A clearly shows that the event did indeed take place. But such an answer claiming ignorance cannot help the witness nor the defendant since the swearing in ceremony evidenced by Exhibit A was arranged by DW1's overlord, the Akyempimhene together with the Ankaasehene - the two chiefs whom the defendant claimed were the overlords of Asaago village. It was put to DW1 thus:

"Q. I put it to you that Akyempimhene, Ankaasehene and Oheneba Hiahenene and Akumantihene went to seek permission for my swearing of oath of allegiance?

A. Yes I agree that the above chiefs sought permission for your swearing".

The second recent act in favour of the plaintiff is that of exhibit B, the letter dated 7th June 1989, written by the defendant to the plaintiff at a time when no litigation was in view, clearly evidences the defendant's admission of the subordinate position of the people of Asaago to the Taahyenhene. In this letter the defendant talked about the plaintiff selling some sand at Asaago and giving some of the money from the sale to some people at Asaago, without the defendant and some of the family members having a share. He pleaded for their share reminding the plaintiff that "we are all your children and we all belong to you".

Now if the relationship between Asaago and Taahyen stool is only one of friendly relationship with what authority can the plaintiff go to Asaago to sell sand, and how can the defendant write that he and his family members are all children of the plaintiff and belonged to him?

The third event was the presentation of the thigh of a sheep by again this same defendant, in the company of others, to the plaintiff to inform him of the alleged destoolment of the Asaago odikro.

Now whatever explanation the defendant attempted to offer, it was not denied that the event took place. And as the majority decision of the trial tribunal rightly observed, the incident was in accordance with Ashanti custom that a thigh of a slaughtered sheep is always sent to inform a superior chief of the destoolment of his subordinate chief. The defendant explained that he sent the thigh for onward transmission to the Okyempimhene. Did the defendant later check to find whether the Akyempimhene received the said thigh? And having regard to the defendant's statement in his letter, Exhibit B, that he and his family nembers were all children of the plaintiff, there is no doubt that the thigh was meant for the plaintiff, the 'father' of the defendant and his people.

The above events and acts positively give credence to the plaintiffs claim that the Asaago stool owes allegiance to his stool.

Now on the part of the defendant who claimed that the Asaago stool owed allegiance direct to the Otumfuo, he could not testify to a single event in living memory at which an Asaago Odikro swore directly to the Asantehene. The defendant who claimed that his ancestors migrated to Ashanti with their own god and black stool, said that no one was occupying that black stool. He was asked:

"Q. Who is the present occupant of the black stool which you brought from Denkyira?

A. No one is currently occupying that stool we brought from Denkyira".

And as to why no one is occupying that stool, he said:

"A. It is because we did not have male royals to occupy the stool for us, that is why the stool was left vacant".

Again the defendant testified that his ancestors drank fetish to owe allegiance to the Otumfuo and were assigned the duty of supplying fish. But there is no single act or event in living memory when any such fish were sent to Otumfuo, or any event showing that such a fetish was drank. Indeed while the defendant himself testified that his family had stopped the supply of the fish to Otumfuo, DW1 said the practice was still in existence, and yet he could not mention a single such incident. The defendant was asked

"Q. May we know whether you still continue supplying the Asantehene with fish?

A. No, we have stopped with the supply of fish to the Asantehene".

While DW1 in his evidence in chief, said:

"From time immemorial, the visitors had always taken fish from river Oda to serve Otumfuo and the practice is still in existence".

Now whether the supply of fish has stopped or still in existence, was there any occasion in living memory when such fish was supplied?

It is indeed not enough for the defendant to allege that his people owe allegiance direct to Otumfuo, or that his ancestor drank fetish with Otumfuo, or that his ancestors supplied fish to Otumfuo. Such claim of direct allegiance to Otumfuo must be authenticated by concrete acts and events in living memory unequivocably evidencing such direct allegiance by the Asaago stool to the Otumfuo. The evidence on record establishes none of such acts. And in the absence of any such acts and events to rebut the acts and event in support of the plaintiffs version, the National House of Chiefs erred in affirming the judgment of the Regional House of Chiefs.

I will accordingly allow the appeal, set aside the judgment of the National House of Chiefs, and in place thereof enter judgment for the plaintiff for a declaration that the Asaago stool owes allegiance to the Taahyen Stool. The defendant's counterclaim that the Odikro of Asaago owes allegiance to the Asantehene is hereby dismissed.

ATUGUBA, J.S.C.:

I will also allow the appeal.

COUNSEL

Mr. Boafo for the Appellant.

Respondent in person.

I.W.