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Practice and procedure – Appeal – Findings of fact – Appellate court not to reverse conclusions of trial court merely on the views of the appellate court on the probabilities of the case.

The Kumasi Traditional Council gave judgment against the plaintiff and he appealed to the Ashanti Regional House of Chiefs, which allowed the appeal. The defendant appealed to the National House of Chiefs which also allowed the appeal and affirmed the decision of the traditional council. By leave of the Supreme Court, the plaintiff appealed to the Supreme Court.

Held: Not having seen the witnesses at the trial, appellate judges were placed in a position of disadvantage, and unless it could be shown that the trial court had failed to use or had palpably misused its advantage of observing the witnesses before it, eg that it failed to observe inconsistencies or undisputable facts or material probabilities, an appellate court ought not reverse the conclusions of the trial court merely on its own view of the probabilities of the case. Since there was evidence in support of the findings of the traditional council, the Ashanti Regional House of Chiefs ought not to have reversed those conclusions. Republic v Nana Akuamoah Boateng II, ex parte Dansoa [1982-83] GLR 913, SC, SS Hontestroom v SS Sagaporack [1927] AC 37 referred to.

Cases referred to:

Republic v Nana Akuamoah Boateng II, Ex parte Dansoa [1982-83] 2 GLR 913, SC.

SS Hontestroom v SS Sagaporack [1927] AC 37, [1927] All ER Rep 831, 95 LJP 153, 136 LT 33, 17 Asp MLC 123, HL.

APPEAL from the judgment of the National House of Chiefs to the Supreme Court.

Thomas Totoe for the appellant.

Mmieh for the respondent.

AMPIAH JSC. This is an appeal from the decision of the National House of Chiefs. On 30 August 1989, the plaintiff-appellant (hereinafter referred to as the “plaintiff”) instituted an action at the Kumasi Traditional Council against the defendant-respondent (also referred to hereinafter as the “defendant”) for a declaration that as the Ohenediemhene, he swore the oath of allegiance direct to Otumfuo the Asantehene and not through the Deduakohene, the defendant herein. The traditional council found against the plaintiff and held that the Ohenediemhene swore to the Deduakohene and not to Otumfuo the Asantehene. Dissatisfied with this decision the plaintiff appealed to the Ashanti Region House of Chiefs which allowed the appeal and reversed the decision of the traditional council. It was then the turn of the defendant to appeal. He appealed against the decision of the Ashanti Region House of Chiefs to the National House of Chiefs. The national house allowed the appeal, affirming the decision of the Kumasi Traditional Council. By leave of the Supreme Court, the National House of Chiefs having refused leave, the plaintiff appealed to the Supreme Court. This is the appeal now before us.

By the majority judgment, the Kumasi Traditional Council observed,

“The evidence showed that the portions of land that the plaintiff’s ancestors settled upon from the time of their being gifted by the Asantehene to date, belonged to the Deduako stool; that the Asantehene had the power to make a presentation of gift of any nature to an individual chief in the Fekuo district; that captives given to a Safohene or an individual became subjects and not slaves, and thus were looked upon as adopted members of the Fekuo to which the Safohene belonged (See Warington’s Notes on Ashanti Custom pages 59 and 61). The defendant’s assertion that the plaintiff’s ancestors were gifted to his stool by Nana Osei Bonsu, Asantehene, and that his predecessor settled them on Deduako stool land and later created a stool for them cannot be denied and we accept the assertion of defendant.”

From its observation, the council made the following findings:

1. That the people of Ohenediem were captives of the Asantehene from the Gyaman war.

2. That these captives were given to the Deduakohene to settle them on his stool land.

3. That these captives were settled originally at Anwiam (which later became known as Seyemo) a portion of the Deduako stool land, and that later, they were moved to a place which came to be known as Ohenediem.

4. That a stool was created for the Ohenediem settlers by the Deduakohene.

5. That on their part, the Ohenediem people offered customary services to the Deduako stool by skinning sheep at the palace of the Deduakohene.

These findings were amply supported by the evidence on record. It was not disputed that the Ohenediem people were captives of the Asantehene Nana Osei Bonsu from the Gyaman War. It was found that eventually they were settled by the Deduakohene who created a stool for them. It was also established on the evidence that by custom even though the Ohenediem people performed some customary services to the Asantehene, they still owed allegiance to the Deduako stool which created their stool for them.

The National House of Chiefs accepted the findings by the Kumasi Traditional Council and set aside the decision of the Ashanti Region House of Chiefs which had accepted the minority decision of the Kumasi Traditional Council.

In the Republic v Nana Akuamoah Boateng II, ex parte Dansoa [1982-83] 2 GLR 913, SC it was held inter alia:

“An appellate court should be slow in reversing a decision of the trial court where it was founded on the credibility or otherwise of witnesses.”

Not to have seen the witnesses appellate judges unlike trial judges are placed in a permanent position of disadvantage and unless it can be shown that the trial judge has failed to use or has palpably misused his advantage – for example has failed to observe inconsistencies or indisputable or material probabilities – the appellate courts ought not to take the responsibility of reversing conclusions arrived at merely as the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. See SS Hontestroom v SS Sagaporack [1937] AC 37 at page 47.

In its judgment, the Ashanti Regional House of Chiefs posed the main issues for determination as:

“(1) Whether the Chief of Ohenediem swears oath of allegiance to Deduakohene or to Otumfuo direct and

(2) Whether the petitioner-appellant is the Chief of Ohenediem.”

It then set out to evaluate the evidence and came out with a decision of its own without first faulting the conclusions on these issues on the evidence before the traditional council. Since there was evidence in support of the traditional council’s findings, the Ashanti Regional House of Chiefs should not have taken the responsibility of reversing the conclusions so arrived at merely as the result of their own comparisons and criticism of the witnesses and of their own view of the probabilities of the case. In so doing the Ashanti Regional House of Chiefs erred. The National House of Chiefs considered all the evidence and was satisfied with the findings made by the Kumasi Traditional Council, the trial tribunal. In the circumstances I am of the opinion that the National House of Chiefs was right in the conclusion it came to; the Ashanti Regional House of Chief’s decision ought not to stand. I would affirm the decision of the National House of Chiefs and dismiss the appeal.

ADJABENG JSC. This is an appeal by the plaintiff-appellant herein against the decision of the National House of Chiefs reversing the decision of the Ashanti Regional House of Chiefs which had earlier reversed the decision given in favour of the defendant-respondent herein by the Kumasi Traditional Council. The plaintiff-appellant in his action at the Kumasi Traditional Council sought a declaration that he was the Chief of Ohenediem and swears the oath of allegiance directly to Otumfuo the Asantehene and not to the defendant-respondent herein.

The Kumasi Traditional Council by a majority accepted the case of the respondent, which was amply supported. They found that the stool of the appellant was created by a predecessor of the respondent and that the predecessors of the appellant swore the oath of

allegiance to the occupants of the respondent’s stool. They also accepted the evidence of the respondent which was fully supported by even a member of the appellant’s family, DW3 that out of the six occupants of the appellant’s Ohenediem stool, five did swear the oath of allegiance to the occupants of the respondent’s stool; and that it was because the sixth occupant refused to swear to the respondent’s stool that this litigation arose. There was also evidence on record, which was accepted, to the effect that the present Otumfuo had asked the appellant to swear the oath of allegiance to the respondent and said that the fact that the appellant owed the performance of certain duties to him, the Asantehene, would not change his status and his allegiance to the respondent.

At the Ashanti Regional House of Chiefs, the judicial committee seems to have deliberately ignored many important pieces of evidence adduced during the trial at the Kumasi Traditional Council and the findings made thereon. For example, they completely ignored the important evidence that five out of six occupants of the appellant’s stool swore the oath of allegiance to the respondent’s predecessors. They also did not seem to appreciate the significance of what the Otumfuo had said on the issue in exhibit 4, as mentioned above, and the fact that the appellant did not seek the support of Otumfuo at the trial, if indeed it was true that the appellant directly owed allegiance to Otumfuo as he claimed. Yet, interestingly, the judicial committee of the Ashanti Regional House of Chiefs was able to fish out the finding made in the minority judgment in the Kumasi Traditional Council that it was the Asantehene who created the appellant’s stool, and falsely treated it as a finding of the majority.

It is not surprising, therefore, that the National House of Chiefs did not hesitate to set aside this decision and to restore the decision of the Kumasi Traditional Council. The National House of Chiefs, in my view, dealt with all the relevant issues that needed to be addressed. No wonder that the House refused to grant the appellant leave to appeal to this court. The leave for this appeal was granted by this court.

“The evidence tendered by both parties on the issue who created the Ohenediem stool and assigned its customary duty of supplying foodstuffs to the Golden Stool was traditional. Both parties agreed that the stool supplies foodstuffs to the Golden Stool. The principle in Agyei-Bi Kojo v Bonsie (1958) 3 WALR 257, PC requires traditional evidence to be tested against recent acts accepted by the parties. The Regional House found, as an accepted fact, that Ohenediem stool supplies foodstuffs to the Golden Stool. The conclusion by the House that the Asantehene created the Ohenediem stool and was entitled to its allegiance as claimed by the appellant is therefore right and the National House erred in setting it aside.” (Emphasis mine.)

Considering the evidence on record, it is clear that the conclusion reached by the Ashanti Regional House of Chiefs cannot stand in view of what the Asantehene himself said in exhibit 4, the minutes of a meeting of the Kumasi Traditional Council. The Asantehene is stated to have said as follows:

“Some Ahenkwaa in this house do perform special customary duties to me yet they serve their masters somewhere. This meant nothing of the change of status when Opanin Dapaah swears the oath of allegiance to Deduakohene. His customary duties at Ahenfie will not be changed.”

The mere fact, therefore that the Ohenediem stool supplies foodstuffs to the Golden Stool cannot be the basis for concluding that the Ohenediem stool was created by the Asantehene. The other pieces of evidence on the record should have been considered, including exhibit 4 referred to. The Ashanti Regional House of Chiefs failed to do this and so erred. The National House of Chiefs was in the circumstances right in setting aside their judgment. The judgment of the National House cannot be faulted. The appeal must therefore be dismissed and the judgment appealed against affirmed.