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Chieftaincy – Chief – Recognition – Local Government Bulletin – Publication of recognition of chief in bulletin prima facie evidence of status of chief – Government recognition making respondent a chief –Administration of the affairs of chiefdom and incidental customary affairs devolving on chief – Evidence Decree 1975 (NRCD 323) s 154.

Chieftaincy – Chief – Burial of sub-chief – Whether necessary that head chief be customarily notified of death – Whether notification sine qua non for burial and funeral.

The plaintiff-respondent issued a writ in the High Court against the family head of the deceased sub-chief for a declaration that as the chief of Effiduase he ought to be customarily informed of the death of the sub-chief failing which the burial and funeral could not take place. The defendant-appellant contended that the sub-chief, a kingmaker, did not participate in the enstoolment of the defendant-appellant and had never recognised him as the chief hence the refusal to comply with the defendant-appellant’s demand. Before pleadings closed the plaintiff-respondent obtained an order for an interim injunction to restrain the burial and funeral unless he was notified. Counsel for the defendant-appellant contended on appeal to the Court of Appeal that since the status of the plaintiff-respondent as chief was yet to be determined the trial judge erred in granting the order for injunction, as if the plaintiff-respondent had been adjudged the chief, thus prejudging the matter. He contended that even if the plaintiff-respondent were the chief non-performance of the custom was no ground for prohibiting the burial. Counsel for plaintiff-respondent contended that the plaintiff-respondent was recognised in the Local Government Bulletin; besides the sub-chief alone could not invalidate the installation of the plaintiff-respondent.

Held: (1) Under section 154 of the Evidence Decree 1975 (NRCD 323) all official communications appearing in the Ghana Gazette were prima facie evidence of the publication. The Local Government Bulletin appearing in the Gazette was prima facie evidence that the respondent had been recognised by the Government as a chief. The effect of the Government recognition was to make the respondent the chief. As such the administration of the affairs of his chiefdom and incidental customary affairs devolved on him. Until his status was set aside, it remained good and binding. The appellant had conceded in the statement of defence that the respondent had performed chiefly duties and was recognised as such over two years before the sub-chief died. The appeal would therefore be dismissed. MacFoy v UAC [1961] 3 All ER 1169, Eswia v Erziah (1927) FC ‘26-‘29, 280, Ababio v Tutu [1962] 1 GLR 489, SC, Korblah II alias Tetteh v Odartei III [1980] GLR 932, CA, Mosi v Bagyina [1963] 1 GLR 337, SC referred to.

(2) As a general principle the performance of the custom of notification was not a since qua non to the burial of the sub-chief. However once a person became a chief his private life became submerged in the general will of his people. That explained why a chief was given royal burial. It was incongruous to contend that a chief should be buried ordinarily by his family. If the deceased were not the sub-chief, his burial would have been a private family affair but since he was the sub-chief, he was a chief and therefore the argument could not apply to side-step the mandates of custom.

(4) The issue whether the respondent was a chief, which the appellant had raised in his pleadings, could not be said to have been resolved by the ruling of the court below or the judgment of the appeal court. The position was that the respondent had prima facie established that he was the chief but it did not mean that his status could never be impugned.

Cases referred to:

Ababio v Tutu [1962] 1 GLR 489, SC.

Eswia v Erziah (1927) FC ’26-’29, 280.

Korblah II alias Tetteh v Odartei III [1980] GLR 932, CA.

MacFoy v UAC Ltd [1962] AC 152, [1961] 3 WLR 1405, [1961] 3 All ER 1169, 105 SJ 1067, PC.

Mosi v Bagyina [1963] 1 GLR 337, SC.

Republic v National House of Chiefs ex parte Kusi-Apea [1984-86] 2 GLR 90, CA.

Republic v Asokore Traditional Council ex parte Tiwaa [1976] 2 GLR 231, CA.

APPEAL against the ruling of the High Court to the Court of Appeal.

S Kwami Tetteh for the appellant.

Frimpong-Boadu for the respondent.

Editorial note: For a sequel see Republic v High Court, Kumasi ex parte Nsiah [1994-95] GBR 593, SC.

BROBBEY JA. The plaintiff claimed that he was the chief of Effiduase in the Asante Mampong traditional area and Acting President of the Asante Mampong Traditional Council. Nana Akuamoah Boateng was the Benkumhene of Effiduase. He died some time in late 1993. The plaintiff averred that by custom, the Effiduasehene had to be formally informed of the death of the Benkumhene before he would be buried.

The defendant, Opanin Kwabena Nsiah, is the head of the family of which the deceased Nana Boateng was a member. The deceased was one of the kingmakers of Effiduase stool with the customary right and prerogative to participate in the installation of the Effiduasehene. According to the defendant, a group of people “purported” to have installed the plaintiff as the chief of Effiduase without inviting the Benkumhene to participate as required by custom. Thereafter the deceased was not recognised by the plaintiff as Benkumhene and the late Benkumhene also never gave recognition to the plaintiff as the chief of Effiduase. The defendant therefore contended that the family of the deceased Benkumhene would not perform the custom of officially informing the plaintiff of the death of the Benkumhene because to do so would amount to giving recognition to the plaintiff as the chief of Effiduase.

The defendant nevertheless threatened to go ahead with the burial without performing the requisite custom. The plaintiff therefore issued a writ at the High Court against the defendant. The writ was for declaratory orders that: (1) it was the “customary and constitutional prerogative right of the office of the Effiduasehene to be customarily informed of the death of the Benkumhene Nana Akuamoah Boateng before his burial and funeral.” (2) that the “defendant was not competent to organise and arrange the burial and funeral rites of the said Benkumhene without the authority and consent of the plaintiff” and (3) “an order of injunction restraining the defendant or his agents from organising or arranging the burial and funeral rites of the late Benkumhene without first customarily informing the plaintiff as the Effiduasehene for the time being of his death.”

The defendant resisted the claim, mainly on the lines as already described, namely, that since the Benkumhene did not recognise the plaintiff as the Effiduasehene the head of family could not inform the plaintiff of the death because to do so would amount to giving recognition to the plaintiff as the Effiduasehene.

While the substantive case was pending an indeed before pleadings closed the plaintiff applied for an interim injunction order to restrain the defendant and his agents from organising and arranging the burial and funeral rites of Nana Akuamoah Boateng the late Benkumhene without first customarily informing the applicant about the death of the deceased pending the final hearing and determination of this suit. The High Court granted the interim order of injunction in favour of the plaintiff. It was against that order that the defendant who shall hereafter be referred to as the appellant, appealed to this court. The plaintiff will hereafter be referred to as the respondent.

In arguing the appeal, counsel for the appellant Mr Kwami Tetteh, contended that the late Benkumhene never recognised the respondent as the chief of Effiduase and whether he was a chief

was put in issue in the instant case. That issue has not been determined as yet and so the trial judge erred by basing his ruling on the premise that the respondent was a chief since that prejudged the issue pending in the substantive suit. He further contended that granting that the respondent was the chief and that in accordance with custom the respondent was to be informed of the death of the Benkumhene the performance of that custom was not a sine qua non to the burial of the deceased. He based this contention on the fact that the burial was a matter for the family of the deceased. He rounded off this point by submitting that the non-performance of that custom was no ground for prohibiting the burial but at least could be saved by purification.

Mr Frimpong Boadu who argued the case for the respondent contended that the appellant had conceded in paragraphs 3 and 5 of his statement of defence that on the death of the Benkumhene, the chief had to be informed before burial could take place. The status of the respondent as a chief had been published in the Local Government Bulletin of 25 October 1991 and that he submitted, confirmed his position, which demanded that his position as chief be recognised. He also maintained that even if the issue was to be decided in court, a single kingmaker such as the Benkumhene could not invalidate the installation of a chief by a majority of kingmakers. In any case, he finally contended, purification takes place when an act or omission flouting custom was unknowingly done or left undone, not when the appellant states that he knew that custom had to be performed but refused to do so. The following facts which are not in dispute should be set out in order to clarify the issues in this case:

(1) In accordance with custom the occupant of the Effiduase stool in his capacity as the Effiduasehene has to be officially informed of the death of the Benkumhene of the stool. This is apparent from paragraph three of the statement of defence.

(2) There is no doubt that at the time of the “purported” installation in 1991 and up till his death in 1993, the deceased Nana Akuamoah Boateng was the Benkumhene of the Effiduase stool.

(3) There is also no doubt that the respondent was installed as chief of Effiduase in 1991. The installation was admitted in paragraph 5 of the appellant’s statement of defence, although he preferred to describe it as “purported” and

(4) There is no doubt that the status of the respondent as a chief was given Governmental or statutory recognition by the Local Government Bulletin No.18 dated 25 October 1991.

The most fundamental issue raised in this case is this: the said Bulletin indicated that he had been recognised by the government as the Chief of Effiduase. What is the legal effect of the recognition given in the Local Government Bulletin of the status of the respondent as a chief? The immediate answer to this issue will be found in Order 37 rule 55 of LN140A which provides that:

“All nominations, appointments and other official communications, appearing in any such Gazette, may be proved by the production of such Gazette, and are prima facie evidence of any fact of a public nature which they are intended to notify.”

This rule has been interpreted in a number of cases to mean that Gazette notice and other government publications are “prima facie” evidence of the facts notified therein. The cases include Eswia v Erziah (1927) FC 26-29, 280 at page 282, Ababio v Tutu [1962] 1 GLR 489, SC and Korblah II alias Tetteh v Odartei III [1980] GLR 932, CA. Although Order 37 rule 55 has been repealed by s 180 (2)(a) of the Evidence Decree 1975 (NRCD 323) the prima facie presumption that arises from Gazette notification under the Local Government Bulletin of 25 October 1991 issued in terms of section 48(2) of PNDCL 107 still holds valid by virtue of s 154 of the Evidence Decree. That section provides as follows:

“154. All proclamations, Acts of State, whether legislative or executive, nomination appointments and other official communications appearing in the Ghana Gazette are prima facie evidence of any fact of a public nature which they are intended to notify.”

The Local Government Bulletin of 25 October 1991 appearing in the Gazette is an official communication and is therefore covered by this provision. The law as it was under LN 140A and which those cases elaborate therefore still holds good. From these authorities, it can be asserted that the Gazette notification provided prima facie evidence that the respondent had been recognized by the Government as the Chief of Effiduase. For the purpose of this issue the state of the law as it existed under the 1979 Constitution was more relevant since the enstoolment took place in 1991 before the 1992 Constitution came into effect. This court has held in Republic v National House of Chiefs ex parte Kusi-Apea [1984-86] 2 GLR 90 that under article 181 of the 1979 Constitution which was continued in force by PNDCL 43 recognition by the Secretary for Chieftaincy Affairs was no longer necessary. The same case however held further that if a chief wished to exercise the functions of a chief provided for under any enactment, then, as in the previous law, he needed the recognition of the Secretary.

When status is said to have been proved or established by prima facie evidence, it also means, as Mr Tetteh for the appellant rightly put it, that that status can be impugned. It does not put a seal to the status. It is susceptible to attack. In other words, it raises a rebuttable presumption. However, until it is attacked and nullified invalidated or set aside, it remains good and binding. The status of the respondent as a chief recognised in the Local Government Bulletin can be said to voidable. The precise connotation of an act being voidable was well set out by Lord Denning in MacFoy v UAC Ltd [1961] 3 All ER 1169 at page 1172-1173 as follows:

“If an act is only voidable, then it is not to be avoided unless something is done to avoid it. There must be an order of the court setting it aside, and the court has a discretion whether to set it aside or not. It will do so if justice demands it but not otherwise. Meanwhile it remains good and a support for all that has been done under it.”

This statement of the law has been applied in a number of cases including the celebrated case of Mosi v Bagyina [1963] 1 GLR 337 at page 347, SC. In the light of the Local Government Bulletin, the status of the respondent as the Chief of Effiduase therefore remains good for the time being until it is nullified. This is the state of the law. The Chieftaincy Act 1970 (Act 370) and the Chieftaincy (Proceedings and Functions) (Traditional Council) Regulations 1972 (LI 798) provide procedures for impugning the status of a chief with the view to having him destooled. This was well settled in Republic v Asokore Traditional Council ex parte Tiwaa [1976] 2 GLR 231, CA.

Is there any evidence that the status of the respondent as a chief has in any way been impugned? Mr Frimpong Boadu for the respondent maintained emphatically that there were no proceedings in any court or traditional council to destool the respondent. Mr Tetteh on the other hand contended in his argument that there was a spate of litigation seeking to destool the respondent. In the face of the conflicting stand points taken by both counsel, this court can only rely on the record which is before us. The record contains no reference to any dispute in any court or traditional council seeking to destool the respondent. If there is, it is not before us. In an appeal like the instant one, we are bound by the record. This court cannot rely on the word of counsel at the Bar on a vital factual issue like the one in this case, especially where both counsel are poles apart and have stuck to conflicting positions. In the result, it is apparent that there is no reference whatsoever not even remotely or obliquely or a shred of evidence on the record before us that the appellant has taken steps provided by law to impugn the status of the respondent as a chief or to destool him besides of course the instant litigation.

It has already been stated by the law applicable to this case when the respondent was enstooled, recognition was not necessary but it was required if a chief wanted to exercise his powers under a statute or the law. Of course every chief wants to exercise his functions as a chief and under the law too and in this case the statutory law, otherwise what would he be doing as a chief? If a chief needs recognition before he can exercise his functions then the definition of a “chief” under article 181 of the 1979 Constitution has in reality not altered the law as it existed before the coming into force of that constitution.

In the instant case, the respondent was enstooled in 1991. Under the then operative law, he put himself in a valid position to exercise his functions under the Chieftaincy Act, 1970 (Act 370) and subsidiary legislations made thereunder by the recognition contained in the Local Government Bulletin. As the appellant has conceded in paragraph six of his statement of defence, the respondent has in fact carried out the chieftaincy administration in Effiduase, even if the appellant chose to describe that administration too as “purported.”

The position therefore boiled down to this: The respondent was recognised as a chief in 1991. The late Benkumhene lived for over two years from May 1991 until he died in the latter part of 1993 without taking any steps to have him destooled. The law is well settled that the effect of the government recognition in the Local Government Bulletin was to prima facie make the respondent the chief of Effiduase. As such chief the administration of the affairs of Effiduase as far they concern chieftaincy and its incidental customary affairs devolve on the respondent. By that recognition of government he did exercise the functions of the chief: He described himself as the Acting President of the Mampong Traditional Council.

If the law recognised a state of affairs albeit prima facie and the same law makes provision which any one against that position could take to set that position at nought, the law must be complied with. That person must take steps to set that position at nought, but until that has been done and the position declared null and void and invalid by the law, everyone is bound by the law and the law should be respected and obeyed. This means that any individual displeased with the law but who takes no steps to ensure a change in the law to his liking is bound to obey the law as it stands. Relating these principles to the instant case, the state of the law now is that the recognition in the Local Government Bulletin makes the respondent a chief even if prima facie only. Until such time that the appellant has succeeded in getting the recognition in the Bulletin reversed, nullified or invalidated or until he obtains an order from the court or a traditional council nullifying or invalidating the status of the respondent as the chief of Effiduase the appellant must treat him as such. So long as the appellant, concedes as he does in paragraph three of his statement of defence that when the Benkumhene dies the chief of Effiduase should be informed the appellant is bound to comply with that custom.

Mr Tetteh argued that the performance of that custom is not a since qua non to the burial of the Benkumhene and that the burial could be permitted and the harm taken care of by purification. That argument was grounded on his earlier contention that the burial of a dead body is the responsibility of the family of the deceased. As a general principle, that statement may be correct. Where however a person becomes a chief in his life time, his private family life becomes submerged within the general will of the people over whom he is the chief because the moment he becomes a chief, he holds a public position in trust for the people over whom he is the chief. His status as a chief over-shadows his private family life. That is why a chief is given royal burial when he dies in contradistinction to ordinary burials given to citizens who are not chiefs. Needless to say, the customs which are performed distinguish royal burials from ordinary burials. I find it incongruous to say that a person who was a chief when alive should revert to his private status and be buried ordinarily by his private family after he has died. If he was not destooled and did not abdicate before he died, it would be an affront to the deceased and contrary to custom to treat the corpse of a chief like that of a private citizen and leave his burial to his private family. If the deceased were not the Benkumhene, his burial would have been a private affair for his family. Since he was the Benkumhene, he was a chief and therefore that principle cannot be invoked to side-step what custom mandates to be done by the dead man’s family and his people by virtue of his position as a chief. As counsel for the respondent rightly stated, purification rites come into play where custom is broken unconsciously or unknowingly.

In the instant case, the appellant himself concedes that that custom exists but to satisfy his personal view of the respondent, he asks to be allowed to flout the custom knowingly, consciously and deliberately so that he would atone for his error later by purification. What kind of purification or atonement would that be? I find that submission unacceptable for the simple reason that it seeks to make mockery of custom if a person were to be allowed consciously to flout the performance of custom so that he will later make amends by purification.

One of the main complaints of counsel for the appellant was that the ruling of the trial court disposed of the issues before the court. That, with respect, is not wholly correct. The issue whether the respondent is a chief which the appellant has raised in his pleadings cannot be said to have been resolved by that ruling or even this judgment. All that is said here is that the respondent has, prima facie, been established to be a chief but, as stated already, that does not mean that his status as a chief can never be impugned. The case will proceed if only to resolve the issue whether or not the grounds on the basis of which the appellant challenges the respondent’s status as a chief can be sustained for the respondent to be destooled The appellant cannot seriously complain that the ruling of the trial court has disposed of the question whether or not the custom exists that on the death of the Benkumhene of Effiduase, the Effiduasehene has to be formally informed. This is because that question has already been answered affirmatively by paragraph three of the appellant’s own statement of defence.

Counsel for the appellant finally invited the court to consider the provisions of Order 50 r 7 of LN 104A with the view to ordering what is just and convenient. The short answer to that is this: Customary law has long been part of the laws of this country. This is now fully covered by article 2 of the 1992 Constitution. Where a person concedes that custom has to be performed, it will not be just for him to be permitted to flout that custom where that would amount to flouting the law itself, more especially where the permission to flout the custom and the law has to be granted by the very court set up to ensure that citizens of this country comply with the laws and customs. Further, it is difficult to fathom what is the convenience of the appellant on the particular facts of this case. It is not that the appellant has already started proceedings in any court or traditional council before the instant case, whose outcome may be made nugatory if he performs the custom in question. He has not shown that he has any case anywhere in this world against the respondent as far as this court is concerned. In this court, he has not counterclaimed for anything. Even the question whether the respondent is a chief has only been raised in the pleadings by implication. The grounds or the basis of which he claims that the respondent cannot be a chief have not been set out in the record for them to be considered so as to decide how far he would be inconvenienced by performing the custom. All he asserts is that to him, the respondent is no chief and so he should be allowed to treat him as such. If this attitude towards the respondent is what is giving rise to the inconvenience, it has to be weighed against respect for law and custom and the effect of the recognition by the government as well as the convenience of perhaps those people from Effiduase who enstooled the respondent and recognise him as the chief.

A very significant consideration in this case is what precedent would be set for the people of this country to allow a person who concedes that custom has to be performed but will not perform it to have his way and be allowed by a court of law to flout that custom because, notwithstanding what the law is, to him the one to whom he has to perform the custom is not a chief, even though the law makes him, prima facie, a chief. Apart from the just aspect of the case, it will obviously be more convenient for the status quo in respect of the respondent’s position as a chief to be maintained until expressly nullified so long as that satisfies the latter than to pander to the wishes of the appellant and his family based on some undisclosed grounds of convenience.

Lastly, it would appear that the issue whether or not the respondent can be destooled by a single kingmaker should not be considered at this stage since it will affect the unresolved question as to whether or not Benkumhene has sufficient grounds to cause the respondent to be destooled. For all the foregoing, it is my view that the order of the trial judge was in order and should be affirmed. There is no merit in this appeal and I would dismiss it.