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RULING
EDWARD WIREDU, J.S.C.:
The review jurisdiction of the
Supreme Court has been conferred
by Article 133(1) of the
Constitution, which reads as
follows: —
The Supreme Court may review any
decision made or given by it on
such grounds and subject to such
conditions as may be prescribed
by rules of court.”
Pursuant to this provision, Rule
54 of the Supreme Court Rules,
1996 (C.I.16) was enacted to
regulate the grounds and
conditions under which this
power may be invoked.
Consequently, this Rule provides
as follows:—
"The Court may review any
decision made or given by it on
any of the following grounds —
a. exceptional circumstances
which have resulted in a
miscarriage of justice;
b. discovery of new and
important matter or evidence
which, after the exercise of due
diligence, was not within the
applicant's knowledge or could
not be produced by him at the
time when the decision was
given”. (the emphasis is mine)
Clearly, the jurisdiction is
restricted to the review of
decisions “made or given by it”;
‘it' being with reference to the
Supreme Court. Thus, in an
application for review, the only
decision under scrutiny must be
the decision of the Supreme
Court, not the decisions of any
prior trial or appellate court
or tribunal before whom the case
had previously appeared. It is
for this reason that, time and
again, this court has reiterated
that its review jurisdiction is
not an appellate one and,
therefore, an application for
review may not be used as an
occasion to repeat an appeal or
try-on a new appeal.
Furthermore, when exercising its
review jurisdiction, it is not
the function of the Court to
second-guess the Ordinary Bench
or to substitute its decision
for that of the Ordinary Bench,
as though the matter before it
is yet another appeal. In an
application for review, the
Court's power and sole function,
particularly where the
application is founded on the
first ground stipulated by Rule
54, is to analyse the decision
and the reasoning that led
thereto, entirely for the
purpose of ascertaining whether
or not, indeed, there are
demonstrably exceptional
circumstances which may, indeed,
be said to have resulted in a
miscarriage of justice.
It, therefore, follows that, in
the performance of this
function, it would be highly
improper for the Court to review
the evidence in the case that
had been lodged before the
Ordinary Bench, as though to
test whether or not the decision
is in tune with the evidence.
To do so would amount to the
Review Court treating the
application before it as if it
were an appeal and, thus,
usurping a jurisdiction it does
not have.
Turning to the matter at hand,
this is an application praying
for a review of the judgment
delivered by the Court on
January 21st 1998 in Chieftaincy
Appeal No.10/98. In the
Applicant's affidavit in support
of their application, the
deponent, Opanin Kofi Agyei, set
out no less than 6 grounds in
justification of their
application. However, pursuant
to Rule 54, of these grounds,
the only one that may be legally
considered by us as, possibly,
constituting a proper ground for
the application is that stated
in paragraph F, which reads as
follows:—
“That in all circumstances the
judgment of this Honourable
Court has occasioned grave
miscarriage of justice. There is
therefore exceptional
circumstances for reviewing the
said judgment”.
The remaining purported grounds,
set out in paragraph A to E,
may, at best, be treated as the
circumstances which, in the view
of the Applicants, are so
exceptional as to have
occasioned a miscarriage of
justice of a grievous nature.
These alleged circumstances
might be summarised as follows:
A. the custom and practice
relating to an 'Ayete' stool is
a question of law and not one of
fact.
B. in restricting qualification
for ascending the Adum Stool to
sons and grandsons of previous
occupants of the Adum Stool, the
Court relied upon the principles
of patrilineal inheritance as it
pertains in patrilineal
societies in Ghana, and thus,
completely disregarded 'a
peculiar custom as it pertains
in the matrilineal society of
Ashanti’.
C. In confirming the decision of
the National House of Chiefs,
the Court failed to apply the
positive custom as it is and
rather applied what the ideal
custom ought to be.
D. In purporting to reform or
change the custom of a
particular community, the Court
usurped the functions and powers
of the Legislature.
E. It is a fundamental principle
in Ashanti customary law that
only a person who is absolutely
qualified to mount a stool may
be invited to sit on the lap of
an ailing chief.
In a brief Statement of Case
filed by Counsel for the
Applicants, these matters were
merely repeated without any
substantive demonstration of how
any of them constituted
exceptional circumstances or
that such exceptional
circumstances have, indeed,
occasioned a miscarriage of
justice, grievous or otherwise.
Moreover, although, at all
material times, it was never a
matter of dispute between the
parties that succession to the
Adum Stools is patrilineal (and
Counsel for the Applicants in
his Statement of Case reiterated
this), in an Additional
Statement of Case, subsequently
filed by the said Counsel, he
attempted to make a new case to
try and convince us that the
translation of ‘Mmamadwa’ to
which is attached an Ayete to
mean 'patrilineal' is incorrect,
but rather the best English
translation would be 'paternal'.
Apart from the fact that a
review application cannot, and
must not be, utilised as an
occasion for repeating an appeal
with new arguments or for
putting a new variation on an
old theme, one fails to grasp,
and Counsel did not clarify, how
such a translation, if indeed
relevant, would advance the
Applicants' case herein. After
all both words are derived from
the same Latin root-word,
‘pater’ which bears the same
meaning in both legal and common
parlance. Thus both Black's Law
Dictionary and the Chambers 21st
Century Dictionary define it to
mean 'father'. Accordingly, in
Black's Law Dictionary,
'paternal' is defined as “That
which belongs to the father.”
The purport of Counsel's
contentions in this regard is,
therefore, quite obscure since,
either way, whether patrilineal
or paternal, what we are
concerned with is a stool the
succession to which is founded
on the 'pater' or paternal
antecedents, or a claimant
thereto. It is evident from the
majority opinions that, in the
course of the trial of this
matter, the key factor present
by the Applicants as proof of
the eligibility of the 2nd
Applicant was that the Black
Stools of three of the latter's
ancestors, namely Nana Addo
Kessie, Nana Anum Asamoah and
Nana Agyei Kessie, were amongst
those in the Adum stool House.
However, as was noted by both
Aikins and Akuffo J.J.S.C., in
their contributions to the
judgment in question herein,
although without doubt, these
persons were previous occupants
of the Adum Stool (Nana Anum
Asamoah being the 1st Chief who
ascended the Stool shortly after
the inception of the Ashanti
State, and the other two being
his sons as well as the 2nd and
3rd occupants of the Stool) the
evidence has shown that the 2nd
Applicant herein traced his
claim through Ama Adowa, one of
the daughters of nana Anum
Asamoah. Conversely, the 2nd
Applicant’s father was not shown
to have any linkage, whatsoever,
with any of these three chiefs
(nor with any previous occupant
of the Adum Stool, for that
matter). In consequence, the
only link between the 2nd
Applicant and these ancestral
occupants was, exclusively,
through a long line of females,
commencing from Ama Adowa. How
then could a paternal link be
established between the 2nd
Applicant and the paternal (or
patrilineal) Adum Stool?
In any event, the core issue in
the appeal before the Court was
whether or not the 2nd Applicant
herein is eligible to occupy the
Adum Stool. This is an issue of
both fact and customary law. The
stance of the Applicants
(Appellants herein) was that he
is eligible because he hailed
from the Ayete house attached to
the Adum Stool. The existence of
the practice of Ayete was not
questioned by the Court or the
Respondents, nor was the
designation of the Kyekye
Akenteng House as Ayete to the
Adum Stool. The 2nd Applicant’s
membership of the said House was
also not questioned. The
Respondent, however, contended
that the 2nd Applicant was not
eligible because, he is not the
son or grandson of a previous
occupant of the Adum Stool. This
central issue raised the further
issue of the legal consequences
of an Ayete stool attached to a
stool such as the Adum stool,
which, as was acknowledged by
both parties, is a patrilineal
one. In arriving at the
conclusions that it did, the
majority of the Court took into
account the rationale upon which
the Ashanti Regional House of
Chief had reached its decision
that membership of the Ayete
House made the 2nd Applicant,
ipso facto, eligible to the Adum
Stool, and determined that the
reasons given were clearly
unsupported by the evidence on
record. In a situation where
each party asserted consequences
that were diametrically opposed
to the other, the Court's
acceptance of one party's case,
on the basis of the evidence,
cannot legitimately or legally
be said to have resulted in the
Court treating a question of
customary law as a question of
fact, or of legislating a new
customary law (or substituting
what is with what ought to be).
Nor can it be said that a
substantial miscarriage of
justice has thereby occurred.
This Court has, on occasions too
numerous to count, endeavoured
to press upon applicants that
the review jurisdiction
conferred by Rule 54 is not an
appellate one intended to afford
losing litigants yet another
opportunity to restate or
reargue their appeal. The most
recent of such occasions arose
in the case of Akua Nyamekye V.
Anthony Kwaku Opoku, Civil
Motion No.45/99, wherein I,
after reviewing the applicable
Rules and earlier decision
explained that: —
“It is, therefore, incumbent
upon the applicant to
demonstrate that there has been
'some fundamental or basic
error, which the court
inadvertently committed in the
course of considering its
judgment'. However, this is not
all, the applicant must
additionally demonstrate that as
a result of such fundamental or
basic error, her substantial
rights in the matter have been
or are likely to be so
prejudiced that the interest of
justice and good conscience
dictate that we take a second
look at the judgment complained
of”.
(See also the majority opinion
in the Republic V. Nana Oduro
Numapau II, & 15 others,
Ex-Parte Nana Adu Ameyaw II, CM
39/99, dated 12th January, 2000
(S.C. unreported).
Rule 54 gives us the discretion
to review any decision of ours,
but only upon either of the
specific grounds set out
therein. Having critically
looked at the reasons given by
the majority members of the
appellate panel in arriving at
their decision to uphold the
ruling of the National House of
Chiefs, the irresistible
conclusion is that the decision
does not give rise to any of the
matters alleged by the
Applicants as the bases for
their application herein. None
of the enumerated circumstances
demonstrate any fundamental or
basic error on the part of the
Court, whether inadvertently or
otherwise; nor have the
Applicants shown that, other
than feeling personally piqued
with the outcome of the case,
there has been any miscarriage
of justice occasioned to the
Applicants.
In an adversarial system of
conflict resolution, one party
will always be the winner and
the other party the loser. It
may even be natural, sometimes,
for a losing party to feel that
he should have won his case.
However, it is crucial for the
maintenance of a State of Law
that there be an end to
litigation at some point and it
is not for the mere placation of
an irked losing party that the
review jurisdiction was
conferred on this Court. The
jurisdiction exists to afford
the Court a unique opportunity
to correct a palpable wrong
where it is clearly established
that, in a particular case,
owing to a fundamental error
which has resulted in a
miscarriage of justice, or the
discovery of new evidence not
previously available, the ends
of justice and good conscience
dictate that the decision be
reviewed.
The Applicants having failed to
demonstrate that there has been
any such fundamental error,
which has resulted in a grave
miscarriage of justice, the
judgment in question cannot be
reviewed and the application
herein must fail.
E.K. WIREDU
JUSTICE OF THE SUPREME COURT
BAMFORD-ADDO (MRS.), J.S.C:
I agree with the ruling just
read by my brother Wiredu JSC.
In this case there has been no
miscarriage of justice nor are
there any exceptional
circumstances which calls for a
review of the Judgment of the
Supreme Court in the earlier
appeal, and I would dismiss the
application.
BAMFORD-ADDO (MRS.)
JUSTICE OF THE SUPREME COURT
ADJABENG, J.S.C:
I agree.
E.D.K. ADJABENG
JUSTICE OF THE SUPREME COURT
ACQUAH, J.S.C.:
I agree.
G. K. ACQUAH
JUSTICE OF THE SUPREME COURT
ATUGUBA, J.S.C.:
I agree.
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
MS. AKUFFO, J.S.C.:
I agree.
MS. S. K.B. AKUFFO (MS.)
JUSTICE OF THE SUPREME COURT
AMPIAH, JSC:
This is an application for
review of the judgment of this
Court given on 21st January,
1998 dismissing an appeal
brought by the applicants
against the decision of the
National House of Chiefs.
The plaintiffs in the action
(now respondents herein) had
taken action against the
defendants (now applicant
herein) claiming –
"...a declaration that the
purported nomination election
and installation of the 2nd
defendant as Adumhene is
unconstitutional and null and
void on the several ground that:
1. The 2nd defendant is not
eligible for the Adum Stool
2. The 1st, 2nd, 3rd and 4th
plaintiffs and other kingmakers
of the Adum Stool were by the
conduct of the 1st defendant
unlawfully and
unconstitutionally denied their
right to take part in the
election and installation of a
successor to the late Asamoah
Totoe III, Adumhene”
The Kumasi Traditional Council
unanimously gave judgment for
the defendants and, the Ashanti
Regional House of Chiefs
affirmed the decision on appeal.
The National House of Chiefs
overturned the decision of the
lower tribunals. By its
decision, this Court affirmed
the decision of the National
House of Chiefs. It is this
decision of the Court which the
applicants seek to have
reviewed.
In exceptional circumstances
which have resulted in a
miscarriage of justice, this
Court has the power to review a
decision given by it - vide Rule
54(a) of the Supreme Court Rules
1996, (C.I. 16).
I am not unmindful of the
principle that this Court should
not use the review process as an
indirect means of having the
appeal reheard.: The applicant
must not be allowed to use the
review process to re-argue
issues raised in the appeal
whose decision has, in one way
or the other, been given—See
Pianin v. Ekwan (1996-97) SCGLR
431; Afranie II v. Quarcoo
(1992) 2 GLR 561.
Exceptional circumstances may
arise however where—
(i) the circumstances were of a
nature as to convince the court
that the judgment should be
reversed in the interest of
justice and indicated clearly
that there had been a
miscarriage of justice; or
(ii) the demands of justice made
the exercise extremely necessary
to avoid irremediable harm to
the applicant; or
(iii) a fundamental and basic
error might have inadvertently
been committed by the Court
resulting in a grave miscarriage
of justice; or
(iv) a decision had been given
per incuriam for failure to
consider a statute or a binding
case law or a fundamental
principle of practice and
procedure relevant to the
decision and which would have
resulted in a different
decision; or
(v) the applicant had sought for
a specific relief which
materially affected the appeal
and had argued grounds in
support but the appellate court
had failed or neglected to make
a decision on it”,
See Afranie II v. Quarcoo (1992)
2 GLR 561.
It is the contention of the
applicant that in the particular
circumstances of this case,
there has not been a critical
look at the peculiar customary
law applicable and also that
established principles of law
have been ignored by the Court
in coming to its conclusion. If
that is so, then I would say
that there are exceptional
circumstances which call for a
review, more so, where by the
judgment the applicant has lost
an opportunity to ascend the
Adum Stool.
The principle of law well
established is that, an
appellate Court should be wary
in disturbing findings of fact
made by the trial court. This
injunction becomes stronger
where the findings have been
concurred in by an appellate
Court.
In Achoro v. Akanfele (1996-97)
SCGLR 209, Acquah JSC said:
“... in an appeal against
findings of facts to a second
appellate Court, like this
Court, where the lower appellate
court had concurred in the
finding of the trial court,
especially in a dispute, the
subject-matter of which is
particularly within the bosom of
the two lower courts or
tribunals, this Court will not
interfere with the concurrent
findings of the lower courts
unless it is established with
absolute clearness that some
blunder or error resulting in a
miscarriage of justice, is
apparent in the way in which the
lower tribunals dealt with the
facts. (emphasis supplied). See
also Obrasiwah II v. Out
(1996-97) SCGLR
618.
The custom in dispute, is, the
“Ayete” system of succession
peculiar to the Ashanti. It is
a system whereby the family
members of a 'wife' family
including her children are
permitted to ascend the
patrilineal Stool. The trial
tribunal (the Kumasi Traditional
Council) consisting only of
Ashanti Chiefs and elders found
for the defendants. The Ashanti
Regional House of Chiefs also
consisting of only Ashanti
Paramount Chief and elders,
concurring in the finding by the
Traditional Council, affirmed
the decision of the lower
tribunal. The National House
of Chiefs' Judicial Committee
however set aside the decision
by the lower tribunals without
establishing with absolute
clearness that some blunder or
error resulting in a miscarriage
of justice, apparent on the face
of the record, had occurred. The
decision of the Supreme Court
also fell foul to this error. It
could not distinguish the
difference between the “Ayete”
System and the ordinary
patrilineal succession. If
indeed it had difficulty in
ascertaining the custom, Section
55 (2) of the Courts Act (Act
459) provided an answer. It
states,
“(2) If there is doubt as to the
existence or content of a rule
of customary law relevant in any
proceedings before a court, the
court may adjourn the
proceedings to enable an inquiry
to be made under sub-section (3)
of this section after the court
has considered submission made
by or on behalf of the parties
and after the court has
considered reported cases,
textbooks and other sources that
may be appropriate to the
proceedings”.
And, the Court may request a
House of Chiefs, Divisional or
Traditional Council or other
body with the knowledge of the
customary law in question to
state its opinion which may be
laid before the inquiry in
written form—vide Section 55(5)
of Act 459. See also Section
24(7) and (8) of the Chieftaincy
Act 1971 (Act 370). It was not
enough to dismiss the “Ayete”
system solely as an
“innovation”, particularly when
that system was known and
accepted by the very people
about whom the system applied.
The National House of Chiefs
declared,
“The election and installation
or enstoolment of a candidate in
a patrilineal stool is the
prerogative of the sons and
grandsons of Chiefs who have
occupied the Stool before ….”.
The 5th plaintiff, Nana Kwaku
Asamoah, the spokesman for the
plaintiffs named those who were
kingmakers of the Adum Stool.
They were different from those
declared by the National House
of Chiefs. PW1 admitted that the
'Ayete' system had been in the
house from time immemorial but
could not tell how the family
became 'Ayete' of the Adum
Stool. It would appear
therefore that, both the
National House of Chiefs and the
Supreme Court sitting on the
appeal were trying to write a
new custom for the people to
which this peculiar custom
applied.
In Obaapanin Akua Amoanimaa etc.
v. Nana Osei Kwame (1995) 1 GSCJ
334 at p.338 Adade JSC observed,
“The institution of Chieftaincy
is itself a traditional
institution and constitutes the
social and political foundation
of the particular community.
Thus when a Chieftaincy dispute
arises, it is always essential
that, at least for the sake of
stability within the community,
a solution is sought which is
anchored firmly in the
traditions of that Stool, and
which respects those traditions.
A solution which flies in the
face of the tradition and seen
glaringly to contradict it, is
not likely to be acceptable to
the Community, and creates a
recipe for dissatisfaction,
disaffection and dissensions
and, at least, provocation,
civil strife and conflicts. Thus
in all these cases every effort
must be made to ascertain what
the tradition of the Stool is.
Where the parties broadly agree
on the tradition, this must form
the decision of the court. Where
parties do not agree, as where
the traditional accounts are
widely and wildly divergent, or
where the traditional history is
lost in the murky corridors of
time, then recourse may be had
to practices within relatively
recent times to determine what
the tradition probably is”
I find this observation not only
instructive but also apposite to
the instant case. There was need
for a critical look at the
custom and practices as obtained
in the community. The reliance
by the court on their own
analysis of the custom and what
they felt it should be, flew in
the face of the established
custom. A review therefore is
necessary to correct the
situation. For these reasons, I
would grant the application and
review our decision of 21st
January, 1998.
A.K.B. AMPIAH
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. Adumuah Bossman for the 2nd
Defendant/Applicant
Mr. Kwaku Gyan for the
Respondent |
