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JUDGMENT
AMPIAH, J.S.C.:
This is an appeal from the
decision of the National House
of Chiefs. On 3rd February,
1989, the
Petitioners/Respondents herein
(some of whom are admitted to be
kingmakers of the Owusu-Asare
Paramount Stool of Atebubu)
petitioned the Brong-Ahafo
Regional House of Chiefs for the
removal of the
Respondent/Appellant herein as
the Omanhene (Paramount Chief)
of the Atebubu Traditional Area.
They sought —
"1. A declaration that the
Respondent herein as occupant of
Owusu-Asare Stool '(Atebubu
Paramount Stool) has violated
customs and taboos of Atebubu'
which violations render him
liable to be destooled in
accordance with Atebubu
Customary Law and Usage.
2. An order of destoolment of
the Respondent herein Nana Owusu
Akyeaw Brempong II as Omanhene
of Atebubu".
In all, twelve (12) charges were
preferred against the
Respondent. On these charges,
the Petitioners led evidence and
called witnesses in support.
They concluded that the
Respondent, "does not heed the
advice of the kingmakers. He
does what pleases him. He has
not been observing our custom.
The Respondent's behaviour has
led to quarrels and tribulations
throughout the Atebubu
Traditional Area" and must
therefore be removed.
The Judicial Committee of the
Brong-Ahafo Regional House of
Chiefs found the
Respondent/Appellant herein
guilty on two of the charges and
ordered his destoolment. The
Respondent appealed to the
National House of Chiefs which
dismissed his appeal and
affirmed the decision of the
lower tribunal. It is against
this decision that this appeal
has been brought.
The Respondent filed as many as
seven (7) grounds of appeal some
of which dealt with the cost
awarded and a charge which no
longer exists. In its decision,
the Regional House of Chiefs
concluded,
"The Defendant committed a
destoolable offence when he
entered the Stool House of
Atoobi Kofi in November, 1987.
The misappropriation of Car No.
GK 1990 by the Defendant and the
inability of the Defendant to
either produce the missing items
listed in Exhibit 'A' or give a
reasonable explanation as to
their whereabouts are also
matters for which he can be
destooled. We accordingly
declare that the Defendant has
committed offences for which the
Petitioners are entitled to
destool him under Atebubu
Customary Law..."
On 9th July, 1997 this Court
allowed an appeal by the
Respondent in respect of the
charge in connection with the
Mercedes Benz Saloon Car No. GK
1990 of which the trial tribunal
had held that the Respondent had
misappropriated. (See Brempong
II vrs. The Republic (1996-97)
SC GLR 267 at 627). Counsel for
the Petitioners submitted quite
rightly that "...the Respondents
will therefore be limited to the
only charge now standing against
the Appellant i.e. violation of
customs and taboos of Atebubu by
entering the Stool House of the
Asasewura against the advice and
protests of his divisional
chiefs during a festival in
1987".
Accordingly, I think this case
can be disposed of on the
ground, whether or not there was
evidence in support of the
charge; in other words whether
or not the judgment was against
the weight of evidence.
It may be argued that this Court
should not disturb concurrent
findings of fact made by the
lower tribunals. But in Achoro &
Anor. vrs. Akanfela & Anor.
([1996-97] SC GLR 209) the
Supreme Court held among others
that,
"in an appeal against findings
of facts to a second appellate
court like.. (the Supreme
Court), where the lower
appellate court had concurred in
the findings of the trial court,
especially in a dispute, the
subject-matter of which was
peculiarly within the bosom of
the two lower courts or
tribunals, this Court would not
interfere with the concurrent
findings of the two lower courts
unless it was established with
absolute clearness that some
blunder or error resulting in a
miscarriage of justice, was
apparent in the way in which the
lower tribunals had dealt with
the facts. It must be
established, eg. that the lower
courts had clearly erred in the
face of a crucial documentary
evidence, or that a principle of
evidence had not been properly
applied; or, that the finding
was so based on erroneous
proposition of the law that if
that proposition be corrected,
the finding would disappear. It
must be demonstrated that the
judgments of the courts below
were clearly wrong."
What were the findings on the
issue respecting the entry to
the Stool House? The trial
tribunal observed,
"The evidence in support of the
allegation that the Defendant
entered the Stool House of
Atoobi Kofi was forthright and
convincing. We accordingly
accept the evidence of the
Petitioner".
But the evidence of the 7th
Petitioner (the Spokesman for
the Petitioners was contradicted
in material particular by his
two witnesses PW1 and PW2.
According to 7th Petitioner,
contrary to custom the
Respondent entered the Stool
House and that when the
Adontenhene tried to restrain
him Nana hit the Adontenhene on
the chest and that some elders
around saved the Adontenhene.
PW1 however denied that there
was any struggle at all and that
Nana had gone there alone. The
trial tribunal did not find that
there was any assault on any
person as claimed by the 7th
Petitioner. Against this
evidence, we had the evidence of
the Respondent himself and that
of his witness (DW3) who said
Nana did not enter the Stool
House. To say simply that the
evidence of entry was
"forthright and convincing" is
an abandonment of a legal duty
to make critical analysis of
evidence before it before
arriving at a judgment. See
Khoury vrs. Choitel (1964) GLR
100. A finding by a Civil Court
is presumed to be right. That
would be so if the finding of
fact was arrived at by a trial
court after a reasoned
appreciation of the case put
forward by either side. The
National House of Chiefs however
came to a conclusion on the same
issue on a proposition of law
difficult to understand. It was
submitted that it was the Stool
room rather where the Respondent
as an Omanhene should not enter
and that even if it is accepted
that Nana entered the house, not
the room, that would not amount
to a violation of a custom. The
National House of Chiefs
reasoned,
"The Petitioners say the taboo
is that the Omanhene is
forbidden to enter the Stool
House whereas the Respondent
says that it is the Stool Room
that Omanhene does not enter but
not the house. From the evidence
our understanding is that the
taboo is that the Omanhene does
not see the Stools there. We
accept that the Stools are kept
in the Stool Room in the house.
If the forbidden thing is that
the Omanhene should not set eyes
on the Stools, then it is plain
to us that the Stools may be
seen not by people who enter the
room but also by people who are
in the house but not in the room
when the door to the room is
ajar. If therefore the taboo
must be held inviolate then the
version of the Petitioners that
the taboo is that the Omanhene
does not enter the house is more
in keeping with common sense
than the version put forward by
the Appellant."
Where is the finding? Did the
Respondent see the Stool or not?
Was there a violation of custom
or common sense? If this was a
house which houses the Stool
room, then it is clear that
there are other parts of the
house which are used for other
purposes. According to the
Respondent, he had tried to
enter the house to settle a
dispute between two of his
elders in a portion of the house
but he was prevented. The Police
Officer, Kwame Seidu who gave
evidence as DW1 was emphatic
that the Respondent never
entered even the house as
alleged. But if the taboo was
that the Respondent should not
see the Stool, the question is,
did Nana see the Stool? There
was evidence that the keys to
the room were kept by Nana. How
could the Stool room be ajar?
Since there was no evidence that
the Stool room was ajar, the
proposition that if Nana entered
the house, he might see the
Stool if the Stool room was ajar
could not be a finding of fact.
There could therefore not be any
concurrent findings of fact by
the two lower tribunals. In fact
no finding was made! This Court,
as an appellate Court, has power
to review the evidence as a
whole and find whether the
conclusion by the lower trial
tribunal is supported by the
evidence.
Even though the complaints
against the Respondent are
referred to as "charges" or
"offences", they cannot be said
to be criminal; they remain
civil and can be tried as such
under customary law. Section
11(1), (2), (3) of the Evidence
Decree 1975 (NRCD 323) requires
proof beyond reasonable doubt in
all criminal actions. Section
11(4) of NRCD 323 however
provides,
"(4) In other circumstances the
burden of producing evidence
requires a party to produce
sufficient evidence so that on
all the evidence a reasonable
mind could conclude that the
existence of the act was more
probable than its
non-existence."
And, Section 12 of NRCD 323
provides,
"12.(1) Except as otherwise
provided by law, the burden of
persuasion requires proof by a
preponderance of the
probabilities.
(2) "Preponderance of the
probabilities" means that degree
of certainty of belief in the
mind of the tribunal of fact or
the Court by which it is
convinced that the existence of
a fact is more probable than its
non-existence."
The charge on which there is
this appeal is that
"It is a taboo for the occupant
of Owusu Asare Stool, the
Paramount Stool of Atebubu to
enter the Stool house of the
Asasewura (Atoobi Kofi House);
but the Respondent against
advice and protest of his
Divisional Chiefs did enter the
said forbidden place in
November, 1987 during a
festival. The sanction for
violating this taboo is
destoolment."
The Respondent denied the
charge. The burden of proof by a
preponderance of the
probabilities therefore fell on
the Petitioners to establish to
that degree of certainty of
belief in the mind of the
tribunal of fact or the Court by
which it is convinced that the
existence of that fact is more
probable than its non-existence.
A destoolment offence or an
offence which when established
would result in the destoolment
of the occupant of the Stool is
a very serious one! It is my
opinion therefore that the
severity of the punishment calls
for a stricter or higher proof
of the offence.
The evidence offered by the
Petitioners in support of this
charge or offence consisted of
the narration by the 7th
Petitioner as to what happened
that day. In the first place,
the evidence of this so-called
spokesman for the Petitioners
was contradicted by his own
witnesses PW1 and PW2 who said
emphatically that they never saw
the Respondent assault anybody
and that the Respondent was
alone. On the other hand the
Respondent produced evidence by
himself and his witnesses that
he never assaulted any person
that day and that he never
entered even the house let alone
the Stool room. The trial
tribunal never made a finding
that the Respondent entered the
Stool room and the appellate
tribunal i.e. the National House
of Chiefs, came to an absurd
conclusion that if the
Respondent had entered the Stool
House and the Stool Room was
ajar, the Respondent could have
seen the Stool; it made no
finding however that the
Respondent saw the Stool. The
only credible evidence left then
was that of the Respondent; but
the House placed the burden of
proof on the Respondent. It
rejected the Respondent's
evidence as an afterthought even
though it was supported by the
Respondent's witnesses. It said,
the Queenmother's evidence would
have been very helpful. To whom?
Was the House requesting the
Respondent to establish that he
did not enter the room? In my
opinion the tribunal did not
critically analyse the evidence
of the parties as enjoined by
law. If it had done so it would
not have come to the erroneous
conclusion it came to.
There were other matters which
the tribunal should have taken
into consideration in its
evaluation of the evidence.
Firstly, there was evidence that
no customary rites were
performed when the Respondent
was alleged to have broken a
taboo. As was admitted in
evidence, that was a customary
requirement. Besides, it took
almost two years for an issue of
such magnitude to be brought up
against the Respondent; the
commission of that offence, if
true, made him unfit to sit on
the Stool, according to their
custom; yet they waited! It is
also unfortunate that the
tribunal did not seriously
comment on the conduct of the
7th Petitioner. If it had done
that it would have been on its
guard as to the motive of the
Petitioner and, how much
reliance should be placed on his
evidence: The 7th Petitioner in
the course of the trial withdrew
from the case twice even though
his withdrawals were not
accepted.
On the totality of the evidence,
I find the charge against the
Respondent not proved. I think
both lower tribunals, erred in
finding against the Respondent.
Accordingly, I will allow the
appeal and set aside the
decisions of both the National
House of Chiefs and the
Brong-Ahafo Regional House of
Chiefs.
ATUGUBA, J.S.C.:
I agree.
MS. AKUFFO, J.S.C.:
I agree.
LAMPTEY, J.S.C.:
I agree.
ADZOE, J.S.C.:
I agree.
COUNSEL
Mr. Charles Agbanu for the
Respondent/Appellant.
Mr. G. Osafo-Osei for the
Petitioners/Respondents. |
