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J U D G M E N T
GBADEGBE JSC:
We have before us in these
proceedings an appeal from the
decision of the Judicial
Committee of the National House
of Chiefs of 29 July 2009 that
dismissed an appeal in the
matter herein from the judgment
of the Judicial Committee of the
Western Region House of Chiefs.
By its decision the National
House of Chiefs affirmed the
judgment of the Judicial
Committee of the Western Region
House of Chiefs which had
allowed an appeal from the
decision of the Judicial
Committee of the Ahanta
Traditional Council in the
matter herein. In the action
before the Ahanta Traditional
Council, the appellant sued in
his capacity as the divisional
Chief of Takoradi against the
respondent claiming reliefs that
are in their nature causes
affecting chieftaincy. The
reliefs claimed in the action
herein by the appellant against
the respondent are as follows:
(a) A declaration that the
Defendant’s purported
nomination, election and
installation as chief is null
and void and of no effect.
(b) A declaration that the
defendant is not the chief of
new Takoradi, Takoradi or of any
place.
(c) A perpetual injunction
restraining the Defendant from
acting or holding himself out as
the Chief of New Takoradi,
Takoradi or of any place within
the jurisdiction of the Ahanta
Traditional Area.
In compliance with the practice
and procedure of chieftaincy
tribunals, the appellant filed a
statement of case, which spelt
out the facts on which he relied
to sustain the action against
the respondent. Upon service on
the latter of the processes that
initiated the action before the
traditional council; he also
filed his response to the claim
against him and counterclaimed
for the following reliefs:
(a)
A declaration that the purported
nomination, election and
installation of the plaintiff as
the chief of Takoradi or
Takoradi New Takoradi is null
and void and of no effect, he
not hailing from the Akona
Royal family of Takoradi.
(b)
The plaintiff should be
perpetually restrained from
acting or holding himself out as
the Divisional Chief of Takoradi
or the chief of New Takoradi or
the Chief of any town, village
or place within Takoradi
Division of the Ahanta
Traditional Area.
(c)
The Defendant is the duly
nominated, elected and installed
Divisional Chief of Takoradi
with the stool name Osahene
Katakyi Busumakura III
The matter proceeded to a trial
that was determined in favour of
the appellant against the
respondent. In its judgment, the
Judicial Committee of the Ahanta
Traditional Council was of the
view that the position of chief
was one that was available to
two royal houses and rotational.
As a result of this, the panel
concluded that the previous
occupant of the Akona stool
having come from the line of the
respondents, the successor must
come from the other line- that
of the appellants. In its
delivery that is contained at
pages 47-50 0f the record of
proceedings, the panel at page
50 pronounced as follows.
“The Committee is therefore
of the opinion that since Nana
Busumakura II, was the incumbent
chief of Takoradi from the AMOA
EKUA’s section of the family and
died as the reigning chief, it
is now the turn of ADWOA
AMOANU’s section of the family
to elect and install a chief of
Takoradi. Judgment is therefore
entered in favour of the
Plaintiff.”
Following the delivery of the
said judgment, the respondents
lodged an appeal to the Western
Region House of Chiefs. After
hearing the parties, the
Judicial Committee in its
judgment came to a different
conclusion on the proven facts
and in particular allowed the
appeal that was lodged before it
by the respondents. By the said
judgment, the installation of
the respondent which the
appellant called in question by
his action before the Ahanta
Traditional Council was
confirmed. As a result of the
said decision, the appellant
herein filed an appeal to the
Judicial Committee of the
National House of Chiefs which
in its judgment of the 29th July
2009 dismissed his appeal and
affirmed the decision of the
Judicial Committee of the
Western Region House of Chiefs.
The instant proceedings arise
before us by virtue of an appeal
therefrom by the appellant who
seeks a reversal of the decision
in his favour.
It is observed that since the
determinations subsequent to the
trial by the Judicial Committee
of the Ahanta Traditional
Council reversed the findings of
the trier of fact so to say, the
important question that we have
to decide is whether the
tribunal which heard and saw the
parties came to a conclusion on
the facts that was perverse or
unreasonable? In this regard
there must be available evidence
from the record of proceedings
placed before the first trial
court that would render their
decision one that does not point
to the effect of the evidence or
is based on wrong inferences
from proven facts that make the
decision based thereon
unreasonable or perverse. In
such a case it is right to say
that no tribunal composed of
reasonable men would have come
to the decision that the
tribunal came to on the
evidence. Therefore the
question for our determination
in these proceedings is whether
a consideration of the judgment
of the Judicial Committee of the
Ahanta Traditional Council shows
that it was unreasonable or
perverse?
In its decision, the Judicial
Committee of the National House
of Chiefs thought that from the
evidence before the tribunal of
first instance, the case put up
by the appellant was that his
line was exclusively entitled to
succeed to the stool. The
decision of the tribunal
unfortunately was that both
parties to the dispute come from
the two lines that are entitled
to succeed to the stool.
In support of his claim to the
stool, the appellant tendered
several documents including
Exhibit 12, a judgment that was
delivered on 13 August 1963 and
entitled A. E. QUAYSON and
ANOTHER v KOBINA BENUYIE.
The said judgment delivered by
the Ahanta Traditional Council
had set aside a previous
determination of 1944 that
involved privies of the parties
herein on which the appellant
placed great reliance in his
attempt to obtain judgment on
the exclusivity of his right to
succeed to the stool. In fact,
in his statement of defence to
the action the respondent had in
paragraph 2d thereof pleaded the
1963 decision as having on in
point of time confirmed his
family’s right to the stool. The
judgment- Exhibit 12 is
contained at pages 167-169 of
the record of proceedings.
(See also pages 171-173 of the
record of proceedings). A
careful reading of Exhibit 12,
discloses that there can be no
question as to the identity of
the cause of action. The cause
of action of the appellant
consisted in the series of facts
by which he sought to
substantiate his right to the
stool which is not different
from that which was contested in
the case of A. E. QUAYSON
and ANOTHER v
KOBINA BENUYIE that was
decided in 1963. The said
decision from the evidence
adduced at the trial before the
Judicial Committee of the Ahanta
Traditional Council that
resulted in the judgment of
October 1, 2004 is a subsisting
decision involving the same
parties and or their privies on
the same cause of action. That
common cause of action as
between the two contending
parties being which of them is
entitled to succeed to the Akona
stool. The right of the parties
to the said stool was in our
opinion concluded by the earlier
judgment of 1963. Since it is
subsisting and no evidence was
led to preclude the application
of the doctrine of estoppel by
judgment to it, the parties
before us are estopped from
seeking to re-open the issue
that was decided by the judgment
as it related to the same issue
as that which is in contention
before us in these proceedings
for our determination.
Accordingly, the appellant could
not competently take out an
action that has the effect of
re-opening the same issue that
had been finally and if we may
say so conclusively determined
between his privies and that of
the respondents. See:
ADINYIRA JSC in the case of In
Re MENSAH and Sey v
Intercontinental Bank (Ghana)
Limited (Decd) [2010] SCGLR 118
at 125
The plaintiffs in the 1963
judgment are privies to the
respondents herein while the
appellant claims through the
defendants to that action. Since
the same issue had previously
been determined by a tribunal of
competent jurisdiction, it
appears that the judicial
committee of the Ahanta
Traditional Council came to a
conclusion that it was not
entitled to and in the context
of the subsisting judgment, it
is right to say that its
decision on the facts was
unreasonable and or perverse.
Reference is made to the
judgment contained in Exhibit
12. Delivering the judgment in
the said case, the panel
pronounced on the crucial issue
of fact on which the appellant
based his right (and indeed that
of his family) to occupy the
Akone stool as follows:
“In customary point of view,
no chief is valid in office
apart from everything, which is
not in possession of a ‘sacred’
stool on which the usual
customary process connected with
chieftaincy is performed on
enstoolment and during
Kuntimtide. In view of the
foregoing circumstances, the
Council has arrived at a
conclusion that, Defendant may
merely belong to Akona clan in
line of tribalism and not
directly connected with the
Stool of Takoradi Akona family
about which the Defendant did
not in the least impress this
Council with its existing
genealogical history. Judgment
is therefore entered for
Plaintiffs with costs to be
taxed.”
(See page 169 of the record of
proceedings herein).
Although the above finding was
previous to the commencement of
the action herein which relates
to the same cause of action and
concerns parties who are privy
to those in the previous action,
the Judicial Committee of the
Ahanta Traditional Council in
its judgment of October 1, 2004
delivered itself differently
on the same question of
succession to the Akona stool.
Earlier on in the course of this
judgment we made reference to
the finding by the Judicial
Committee of the Ahanta
Traditional Council which is
on appeal to us, but we think
that for a better understanding
of the plea of res judicata on
which this decision turns, it is
useful to refer to it once more.
What fell from the panel on the
issue of succession to the Akona
stool is in the following words:
“The Committee is therefore
of the opinion that since Nana
Busumakura II was the incumbent
chief of Takoradi from the AMOA
EKUA”S section of the family and
died as the reigning chief, it
is now the turn of ADWOA AMANU’s
section of the family to elect
and install a chief of Takoradi.
Judgment is therefore entered in
favour of the Plaintiff.”
(See page 50 of the record of
proceedings herein).
We say without any hesitation
that having regard to the very
clear finding contained in the
1963 judgment, the only
reasonable conclusion that any
tribunal composed of reasonable
men would have come to on the
same question is that the
appellant being a privy to the
defendant in the 1963 case is
not entitled to succeed to the
Akona stool as indeed the
Judicial Committee of the
National House of Chiefs decided
in affirming the previous
determination by the Judicial
Committee of the Western Region
House of Chiefs. This being the
position, we think that the
decision of the Judicial
Committee of the National House
of Chiefs on appeal to us
suffers from no legitimate
complaint as on the evidence the
appellant can no longer
maintain an action in respect of
the same cause of action.
But before putting this appeal
to rest, there is the question
raised by the appellant that we
need turn our attention to. The
appellant in ground 2 of his
notice of appeal to this Court
complains in the words that
follow shortly:
“The Committee of the
National House of Chiefs erred
by failing to hold that the
judgment given by the Ahanta
Traditional Council which forms
the basis of the Respondent’s
case was a nullity.”
The thrust of the submission
made to us on this ground
appears to be that the power of
attorney that empowered Evans
Danso to represent the
respondent in the tribunal of
first instance was limited to a
representative capacity as may
be read from the document. A
careful reading of the document
by which the said representative
was constituted into an attorney
shows that he was to act not
only for him but also for the
stool as well. The position of a
chief though personal to the
occupant is one that does not
belong only to the occupant but
the entire community that is
subject to the stool and indeed
in the peculiar circumstances of
this case the family which was
found by the tribunals as being
entitled to succeed to or occupy
the stool as chief. In our
thinking, the case though
brought against the respondent
personally was against him in a
representative capacity as the
occupant of the stool and by
implication against those on
whose behalf he was acting. In
any event, it is plain from the
power of attorney that the
representation was not limited
to only the stool by the use of
the words
“ to defend my interest and that
of the stool aforesaid in the
suit OPANYIN BANKAM KOW v
JOSEPH TETTEH DJABA and OSAHENE
KATAKYIE BUSUMA KURA III
as Plaintiff, Defendant and Co-
Defendant respectively and now
pending at the District Court,
Sekondi and to prosecute and
defend all other cases affecting
the said stool which might arise
in the future in respect thereof
as I myself may do.”
The said document in our view
adequately catered for the
representation that the attorney
had in the case herein. We think
that there is no force in the
complaint now made relating to
the attorney’s active
participation in the trial as
the respondent in the course of
the hearing was involved in an
accident and could not
personally attend the hearing.
Further to this, a close reading
of the record of proceedings on
which this appeal turns reveals
that the matters in dispute were
based essentially on the
construction of documents
including judgments that were
tendered by the parties. In
fact, it would appear that this
fact might have informed the
appellant’s decision not to call
any evidence beyond his
testimony in the matter. At page
33 of the record of proceedings
had in the matter on 20 July
2004, the day on which the
appellant testified has this
interesting record:
“S.O.B. by Plaintiff in Fanti
Language: Plaintiff says he has
no witness in the above suit but
has enough documents to prove
his case. Defendant informed the
court that all documents
relating to the above suit
should be stamped by
Commissioner of Oath as
authentic.”
In our opinion were the action
herein tried by a tribunal made
of professionals or in the
ordinary courts perhaps having
regard to the previous
determination concerning the
issue that was being
relitigated, the hearing would
have been done by regard to a
legal point namely whether or
not the parties are not estopped
by the previous decision of the
Ahanta Traditional Council of
1963 to which reference has
already been made in the course
of this delivery. As it is, the
subject matter of the action
coming within the designation of
a cause or matter affecting
chieftaincy its proper forum is
the chieftaincy tribunals which
by virtue of their composition
are constrained and lack the
capacity to have actions
determined by legal arguments.
Although oral evidence was
placed before the Ahanta
Traditional Council in the
action herein, the determination
of the main issue for trial
turned mainly on the
construction of the several
documents that were tendered in
evidence by the parties.
Therefore, the complaint now
made in relation to the
admissibility of the evidence of
the said representative would
not be decisive of the matter
herein as in the words of the
appellant himself the decision
turns on the construction of
the documents that he described
in his evidence as being capable
of proving his case. We are of
the opinion that the action
herein having commenced before a
tribunal that did not have the
benefit of legal knowledge and
was preceding purely on
customary law it is not out of
place in such matters to have
the action tried on the evidence
of representatives. Thus to
accede to what is purely a
technical point that seeks to
derogate from the substantive
effect of the way and manner in
which the case was conducted
particularly at this late stage
is a conduct that is
tantamount to the objecting
party seeking to eat his pie and
yet have it in his micro-wave.
We think that the objection
contained in the said ground
fails and is dismissed.
The result is that the instant
appeal fails in its entirety and
same is dismissed. We proceed to
affirm the decision of the
National House of Chiefs in the
matter herein dated 29 July
2009.
(SGD)
N.S. GBADEGBE
JUSTICE
OF THE SUPREME COURT
(SGD)
W. A. ATUGUBA
JUSTICE
OF THE SUPREME COURT
(SGD)
J. ANSAH
JUSTICE
OF THE SUPREME COURT
(SGD)
R. OWUSU (MS)
JUSTICE
OF THE SUPREME COURT
(SGD)
V. AKOTO-BAMFO (MRS)
JUSTICE OF
THE SUPREME COURT
COUNSEL;
ELIZABETH OFOSU AGYARE(WITH HER
CYNTHIA OPARE) FOR THE APPELLANT
J.A. DAWSON (WITH HIM D.A. OTOO)
FOR THE RESPONDENT |
