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JUDGMENT
AMPIAH J.S.C.:
I have had the opportunity of
reading before hand the opinion
of my brother Acquah, J.S.C. and
I am in agreement with him that
the appeal should be dismissed.
I however have this short
comment to make on the judgment
of the Judicial Committee of the
National House of Chiefs.
The Judicial Committee of the
National House of chiefs in
restoring the decision of the
Asebu Traditional Council
affirmed the decision that the
Stool of Asebu Ekroful belonged
to the Defendant's Nsona
Family. Having thus found, it
was not open to the Committee to
order that the plaintiff should
stay on the stool until his
death and that after his death
no other person from his family
should claim the Stool or ascend
it.
It is now accepted that either
gazetting a Chief or putting his
name on the Register of Chiefs
does not put finality to the
status of that person. That by
itself would not create an
estoppel on any person or family
which subsequently legitimately
claims the Stool. It is true
that the defendant's family has
not positively taken steps to
claim that Stool and that the
plaintiff has been on the Stool
for over 16 years before the
action, but as it was held in
Agyakoma v. Opuni (1987-88) 1
GLR 47 S.C. at 49,
"... accepting a substool was no
renunciation of a royal
birthright which was sealed by
the possession of royal blood".
And in Darko v. Brako (1982-83)
1 GLR 345 S.C. it was held that
non-ascension to a Stool for 150
years was no bar to the
appellant's family's claim
thereto:
The order by the Judicial
Committee was made out of
jurisdiction and should not have
affected execution of the
Judgment. However, it is now
established that the plaintiff
in the action is dead; whatever
right was given him died with
him
KPEGAH, J.S.C.:
I have read the opinion agree
with him that the appeal be
dismissed
ADJABENG, J.S.C.:
I agree that the appeal be
dismissed.
ACQUAH. J.S.C.:
This is an appeal challenging
part of the judgment of the
National House of Chiefs dated
8th May, 1991 in respect of a
chieftaincy dispute from Ekroful
near Asebu in the Central Region
of the Republic of Ghana. The
parties would be referred to in
the manner they appeared at the
trial Tribunal.
The plaintiff, Nana Kwesi Andzie
VIII issued a writ of summons at
the Judicial Committee of the
Asebu Traditional Council
claiming from the defendant:
"Plaintiff requires defendant to
show cause as to why he,
defendant has publicly asserted
that plaintiff is not Chief of
Asebu Ekroful, which statement
defendant made public
during a meeting at Asebu
Ahenfie, whilst plaintiff is the
accredited and gazetted chief of
Asebu Ekroful since about 16
years".
In an affidavit accompanying his
summons the plaintiff swore that
he was enstooled chief of Asebu
Ekroful about 16 years ago and
had been gazetted as such since
the last five years, and that
his enstoolment was authorized
by his royal Adwinadze family.
But then the defendant who
succeeded his late uncle Nana
Andzie Bofo VIII as Tufuhene
about ten months ago, started
laying claims to the Ekroful
stool on grounds that he the
defendant's ancestors founded
the town of Ekroful, and
therefore the plaintiff was not
the rightful person to be the
chief of the town. Consequently
at a meeting at the palace of
the paramount chief at Asebu,
the defendant did publicly
assert that the plaintiff was
not the chief of Ekroful, and
that he, the defendant was the
chief. Hence the summons.
In his statement of defence, the
defendant denied that the
plaintiff was the chief of
Ekroful.
He contended that the chief of
Ekroful had always been from his
Nsona family, the original
founders of Ekroful. And that
the plaintiff who was from the
Adwinadze family was not the
chief. He stated that he was
presently the chief of Ekroful
following his installation as
such in succession to his late
uncle Nana Andzie Bofo VIII on
29th September, 1979. At the
trial at the Judicial Committee
of Asebu Traditional Council,
the plaintiff in his evidence
traced the founding of Ekroful
to his Adwinadze family led by
his ancestor Nana Kwesi Andzie,
and contended that members of
his said family had from time
immemorial ruled Ekroful. He
tendered a number of exhibits
and categorically asserted that
he had been installed and
functioned as chief of Ekroful
to the knowledge of the whole
townsfolk for the past 16 years
and had also been gazetted as
such. He called three witnesses
in support of his case.
The defendant also in his
evidence traced the founding of
Ekroful to his Nsona family
originally lead by Nana Andzie
Bofo I and also contended that
his Nsona family members had
since ruled Ekroful. And that
his predecessor, Nana Andzie
Bofo VIII was the chief of
Ekroful, after whom he was
installed in 1979. He called
five witnesses including the
head of the Nsona family.
In its judgment, the trial
Judicial Committee found that
the stool of Ekroful belonged to
the defendant's Nsona family and
entered judgment for them. The
Central Region House of Chiefs
set aside the Traditional
Council's judgement on grounds
that there was sufficient
evidence on record that the
plaintiff was the chief of
Ekroful. The National House in
its judgment observed that while
the Traditional Council's
decision was based on the
definition of a chief in the
Chieftaincy Act 1971 (Act 370),
that of the Regional House was
based on the Chieftaincy Act
1961 (Act 81). It noted that at
the time of the dispute the
relevant law was Act 81, and
therefore by that law the
plaintiff was the valid chief of
Ekroful. However, the House
found that the finding of the
Traditional Council that the
stool of Ekroful belonged to the
defendant's Nsona family stood
unrebutted, and therefore set
aside the judgment of the
Regional House and restored that
of the Traditional Council.
Earlier the House had said that
having regard to the definition
of a chief in Act 370 as
re-appearing in the 1979
Constitution, although the
plaintiff was the chief of
Ekroful, yet on his death, his
successors would have no claim
to the Ekroful stool.
It is this statement by the
National House that sparked the
instant appeal to this court.
This statement obviously stems
from the National House
acceptance of the finding of the
Traditional Council that the
stool of Ekroful belonged to the
defendant's Nsona family. Not
surprisingly therefore, in his
Notice of Appeal, the
plaintiff/appellant stated in
paragraph 2 thereof that the
part of the decision complained
of was:
"That part of the judgment
purporting to find that the
defendant's family owns the
Odikro stool of Asebu and that
after the death of the appellant
herein, no member of his family
can mount the Odikro stool".
The grounds of his appeal are:
(a) That the Judicial Committee
of the National House of chiefs
erred in finding that the
defendant's family owns the
Odikro stool of Asebu Ekroful
since same was not an issue
before the said Judicial
Committee.
(b) That the judgment to the
extent that it purports to find
that the defendant's family owns
the Odikro stool of Asebu
Ekroful and that after the
plaintiffs death, no member of
his family can mount the Odikro
stool is not in line with the
relief sought and to that
extent, the Judicial Committee
of the National House of Chiefs,
Kumasi deviated from the issue
for adjudication.
(c) The Judicial Committee of
the National House of Chiefs
erred in not finding that the
plaintiff sued in his personal
capacity and not representing
his family.
Arguing grounds (a) and (b)
together in his statement of
case plaintiff submitted that
from his writ of summons, the
ownership of the Ekroful stool
was not in issue, neither did
the defendant put in a
counterclaim for the stool.
There was therefore no
justification for the National
House to go into that issue to
find that the stool belonged to
the defendant's family. And
since the defendant did not
counterclaim it was incompetent
for the House to declare that
the plaintiff's successors would
have no claim to the Ekroful
stool. On ground (c) the
plaintiff contended that since
the action was personal to the
plaintiff it was wrong to make
an order affecting the ancestors
of the plaintiff.
On his part, the defendant
argued that from the evidence on
record, the action was indeed a
contest between the families of
the parties as to which of them
owned the Ekroful stool - that
is, whether the Ekroful stool
belonged to the plaintiff's
Adwinadze family or the
defendant's Nsona family. To
this end, the defendant
continued, both parties at the
trial, lead traditional evidence
to link the founding of Ekroful
town to their respective family.
Therefore the National House of
Chiefs was right in the view it
took of the evidence on record.
Now it is important to observe
from the appellants first and
second grounds of appeal and his
submissions based thereon that
his complaint is not that the
finding of ownership of Ekroful
stool in the Nsona family made
by the Traditional Council and
affirmed by the National House,
was not supported by evidence on
record, but that the said
finding did not arise from the
claim of the appellant
especially as the defendant did
not put in a counterclaim. Thus
in his written submissions, the
plaintiff states:
"It is contended that the
appellant herein having sued the
respondents because the
respondents statement to the
effect that the appellant was
not the chief of Asebu Ekroful
and to the extent that the
respondent did not put in any
counterclaim asking for a
specific relief that the Odikro
stool of Asebu Ekroful belongs
to his family, all that the
National House of Chiefs was to
concern itself with was whether
the statement made by the
respondent culminating in the
action being instituted was true
or false".
Such a submission implies that
all evidence lead by both
parties on the ownership of the
Ekroful stool ought to have been
disregarded since in the
plaintiff's view, that issue did
not arise, neither did the
defendant put in a counterclaim
for the stool. Is this a valid
submission?
Now as has been said over and
over again, chieftaincy
tribunals are not subject to the
strict technical rules of the
ordinary courts, as they are
more of a fact - finding
tribunal. And in the instant
case, the Central Region House
of Chiefs in its judgment
recognized this, when it said:
"This is a fact finding tribunal
and will not allow itself to be
bamboozed by any
technicalities".
This is certainly correct, and
is even reflected in the
procedural rules governing the
various chieftaincy tribunals.
In respect of proceedings at
the Judicial Committees of the
Traditional Council where
pleadings are not mandatory and
lawyers do not appear for the
parties, the whole trial is
summary. And it would therefore
be highly misleading for one to
rely on the way the summons is
couched rather than the
substance of the action as
revealed in the evidence.
Indeed, the filing of a
counterclaim by a defendant at a
chieftaincy tribunal, is not
known in the chieftaincy
procedural rules. Thus
Chieftaincy (National and
Regional House of Chiefs)
Procedural Rules, 1972 (C.I. 27)
provides in rules 5 that a
defendant who wishes to contest
an action when a petition is
served on him, shall
"...within fourteen day of such
service or of such time as the
Judicial Committee upon terms
may direct file a statement of
the defendant's case which shall
be signed by the defendant or
his counsel and which state
(a) the facts and particulars
upon which the defendant seeks
to rely;
(b) the names and particulars of
the witnesses; if any, whom he
intends to call at the hearing;
(c) the address for service of
his counsel, where he is
represented by counsel".
Now apart from filing his
statement of case in accordance
with rule 5 of CI 27, and
subject to any amendment that
the defendant may later apply to
make under rule 7 thereof, all
what the parties are at liberty
to file either on their own or
at the direction of the Judicial
Committee, is a Memorandum of
agreed issues as provided in
rule 8(1) of CI 27. The rule
reads:
"8(1) The parties may agree to
file, or shall if so ordered by
the Judicial Committee, file a
memorandum specifying the issues
agreed by them to be tried at
the hearing of the action".
Indeed at the Judicial Committee
of the Traditional Council, a
defendant is not obliged to file
any statement of his case.
Neither are the parties required
to file any memorandum of agreed
issues. Thus rule 4(6) of
chieftaincy (Proceedings and
Functions) (Traditional
Councils) Regulations 1972 (LI
798), provides.
"4(6) A Judicial Committee may,
after receipt of the statement
of the defendant's case or where
the defendant does not file any
statement of defence, at the
expiration of the time within
which to file the statement of
defence, appoint a time at which
the parties shall appear before
the Judicial Committee for
hearing of the action".
Of course rule 4(5) of LI 798
allows a defendant who desires
to file a defence, to do so
within ten days of the service
of the plaintiffs writ upon
him. But from rule 4(6) of LI.
798 it is clear that a defendant
at the Judicial Committee of the
Traditional Council, needs not
file any defence. Yet the
Judicial Committee is duty bound
to set the case down for
hearing, hear same and deliver
its judgment accordingly. What
is important for the Judicial
Committees, is to determine the
issues raised and to resolve
same in their judgment. In the
case of a trial at the Regional
House of Chiefs, the parties may
either on their own or on the
direction of the committee file
such issues. While in the case
of the Traditional Councils it
is the Judicial Committee itself
which must identify such issues
either from the pleadings, if
any and the evidence, or from
the evidence where no pleadings
are filed. Accordingly where a
plaintiff before a chieftaincy
tribunal claims against a
defendant, ownership of a stool,
and the defendant in his
statement of defence or evidence
denies such a claim and asserts
his claim to that stool, the
obvious issue that arises is
which of the parties owns that
stool. And the Judicial
Committee's finding that the
stool belongings to the
defendant and not the plaintiff
is justified because of the
nature of the defence. To
dispute such a finding on
grounds that the defendant never
counter-claimed is a gross
misconception of the fact that a
judicial tribunal is duty bound
to examine the evidence lead and
make findings of fact on the
issues joined between the
parties. The making of findings
of fact has nothing to do with
the presence or absence of a
counterclaim. And at the
Judicial Committee of a
Traditional Council where the
trial is summary, the committee
is obliged to resolve issues
arising in the course of the
evidence, and make findings
thereon.
Thus what is to be determined in
the instant appeal is whether
the issue of ownership of the
Ekroful Stool arose from the
pleadings and evidence
notwithstanding the way the
plaintiff couched his relief in
his writ of summons. Now in the
instant case although the
plaintiff couched his claim as
calling upon the defendant to
justify why the defendant was
disputing his plaintiff's
position as chief of Ekroful,
the plaintiff had no doubt in
his mind that the basis of the
defendant's challenge was that
the town of Ekroful was founded
by the defendant ancestors and
not the plaintiff's ancestors.
Thus in paragraph 7 of his
affidavit supporting his
summons, the plaintiff swore
that the defendant
"publicly asserted that I could
not be the chief of Asebu
Ekroful for it was his ancestors
who came and established the
town of Ekroful and as such he
should be the right person to be
the chief of the town, hence the
cause of this action".
Earlier on, the plaintiff had
sworn in paragraph 3 of the said
affidavit that his enstoolment
as chief of Ekroful
"was on the sanction and
authority of my head of family,
Kweku Mensah of Adwinadze Royal
Stool family, with the consent
and concurrence of the whole
Adwinadze family of Ekroful".
To this affidavit, the defendant
in his statement of defence
categorically asserted in
paragraph 2 thereof that
"2 ,,, the only family from
which chiefs of Asebu Ekroful
have been and are selected is
the Nsona Royal family of Asebu
Ekroful".
He then went on to state in
paragraph 4 that he the
defendant was installed on
29/9/79 in succession to his
late uncle Nana Andzie Bofo
VIII, as chief of Ekroful and
that
"as laid down by custom only
members of the family of Andzie
Bofo I who founded Asebu Ekroful
and became its chief have
successively been installed and
enstooled and reigned as chief
of Asebu Ekroful".
Now from the plaintiff's own
paragraph 7 of his affidavit and
the defence, it is quite evident
that the challenge to the
plaintiff's occupation of the
Ekroful stool boils down to a
challenge of the right of the
plaintiff's Adwinadze family to
occupy the said stool since as
the defendant contended the town
of Ekroful was founded by his
ancestor Andzie Bofo I of the
Nsona family. Because the
plaintiff fully realized that
the right of his Adwinadze
family to the Ekroful stool was
in issue, he led extensive
evidence about his ancestry and
claimed that Ekroful was founded
by his ancestors of the
Adwinadze family. And that it
was his said ancestors who
allowed the defendant's
ancestor, Andzie Bofo, to settle
on a portion of the Ekroful
land. He said because his
ancestors founded Ekroful, his
family always provided a bottle
of gin at Banmu during the
festival of Kae Arko. The
plaintiff furthered tendered in
support of his ancestors claim
to Ekroful, exhibits including a
history book.
Thus the defendant also had no
option but to trace his ancestry
to the founding of Ekroful and
to call his head of family to
testify in support of that.
There is therefore no doubt from
the record of proceedings that
notwithstanding the wording of
the plaintiff's claim in his
summons, each party laid a
strong claim that his ancestors
founded Ekroful and established
the Ekroful stool. And in the
face of such a claim the
Judicial Committee was duty
bound to resolve the conflicting
claims to the ownership of the
Ekroful stool. As pointed out
earlier, the resolution of such
an issue has nothing to do with
the presence or absence of a
counterclaim. It is an issue
initiated in paragraphs 2 and 7
of the plaintiffs affidavit in
support of his summons and
re-emphasized in the defendant's
defence, resulting in both
parties leading evidence on it
at the trial. Thus the general
trend of the evidence showed
that the dispute between the
parties centered on the right of
the two families - Adwinadze and
Nsona - based on ancient
tradition to provide a candidate
for enstoolment on the Ekroful
stool. It is therefore
fallacious for the plaintiff to
contend that the issue of
ownership did not arise.
Again it is clear from the
nature of the proceedings at the
chieftaincy tribunals, and in
particular the relevant
procedural rules governing such
trials (that is LI. 798 and CI.
27) that the submissions based
on an alleged absence of a
counterclaim is misconceived.
The first two grounds of appeal
are therefore dismissed.
Now the third ground of appeal
which alleges that the
plaintiff's action was personal
and therefore the National House
of Chiefs had no justification
in making a finding affecting
the plaintiff's family is
obviously untenable having
regard to the analysis of the
issue arising from the pleadings
and evidence at the Traditional
Council. As said earlier on, the
pleadings and evidence made it
imperative for the Traditional
Council to determine which of
the parties family had a right
to the Ekroful stool. For as the
plaintiff recognized from the
nature of the challenge to his
status, his claim as chief of
Ekroful was not in his own
personal right, but from his
membership of the Adwinadze
family which he believed owned
the stool. Accordingly although
his action appeared personal
from the way he couched his
claim in his summons, it was in
substance an action to determine
whether the Adwinadze or Nsona
family had a right to the
Ekroful stool. Hence the
plaintiff sought in his evidence
and exhibits, to demonstrate
that the Ekroful stool had from
time immemorial belonged to his
Adwinadze family. Consequently
the defendant likewise sought to
establish his Nsona family's
title to the said stool. On the
basis of such rival claims, a
finding by the Traditional
Council as later affirmed by the
National House, that the
defendant's Nsona family owned
the stool logically implies that
the plaintiff's Adwinadze family
had lost his claim to that
stool. And thus the National
House of Chiefs' assertion that
the plaintiff's successors would
have no claim to the Ekroful
stool after death of the
plaintiff is a logical
consequence of that finding, and
is therefore not unjustified.
This ground of appeal likewise
fails.
In conclusion, all the three
grounds of appeal fail, and the
judgment of the National House
of Chiefs is hereby affirmed.
(JUSTICE G. K. ACQUAH)
JUSTICE OF THE SUPREME COURT
ATUGUBA, J.S.C.
I agree.
(JUSTICE W. A. ATUGUBA)
JUSTICE OF THE SUPREME COURT
COUNSEL
E.B. oduro for appellant
Dr. S. Twum holding Mr.
Ahenkorah's brief for Respondent
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