HOME             SUPREME COURT JUDGMENTS

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