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J U D G M
E N T
BROBBEY, J S C.
This case started when two
contestants were vying to be
installed as the queenmother of
Asante Mampong. One will be
described as the nominee of the
first appellant. The other
contestant was Nana Yaa Adwubi,
the third respondent. The case
of the appellants was that first
appellant’s nominee intimated to
the Mamponghene, the first
respondent, that she was
interested in being considered
for installation as the
queenmother of Asante Mampong.
When the nominee’s supporters
realized that the first
respondent was bent on
nominating the third respondent
in preference to her, they filed
a petition in the Ashanti
Regional House of Chiefs asking
for the following reliefs:
(a) A declaration that members
of the Botase Royal family are
eligible to occupy both male and
female stools of Mampong.
(b) A declaration that, without
having taken a decision on the
application of the first
appellant’s nominee, the first
respondent’s nomination of the
third respondent as the
queenmother of Mampong was
contrary to custom and void.
© A further declaration that
adequate consideration be given
to the candidature of the first
appellant’s nominee and since
the first and second respondents
had failed to do that they were
in breach of their customary
duty.
(d) An order compelling the
first and second respondents to
follow the customary procedure
in installing a queenmother for
Mampong.
(e) An order restraining the
first and second respondents
from going ahead to install the
third respondent as the
queenmother of Mampong.
The petition was filed on 22
February, 2000. On the next day
of 23 February, a motion for
injunction was filed to restrain
the first and second respondents
from installing the third
respondent as the queenmother of
Mampong. The appellants
contended further that
notwithstanding the motion, the
first and second respondents
went ahead and installed the
third respondent as the
queenmother of Asante Mampong on
29 February 2000. On 5
April 2000, they filed a
motion in the High Court to
attach the three respondents for
contempt of the Ashanti Regional
House of Chiefs. According to
the appellants, the basis of the
allegation of contempt was that
on 7th February 2000
there was a meeting of the
Mamponghene and the Mampong
Traditional Council at which the
issue of nomination of the
queenmother was discussed: The
actual enstoolment was conducted
on 29 February 2000 while the
petition and motion for
injunction were already pending.
The enstoolment therefore
constituted contempt of the
Ashanti Regional House of Chiefs
that made the injunction order.
The respondents on the other
hand contended that on 7th
February 2000 the nomination and
installation took place before
the appellants filed their
petition and obtained the order
of injunction.
The High Court granted the
motion, convicted and sentenced
them to various fines in lieu of
which certain terms of
imprisonment were imposed on
them. The respondents appealed
to the Court of Appeal which
allowed the appeals. It is
against the judgment of the
Court of Appeal that the
appellants appealed to this
court.
Before this court, the grounds
of appeal filed were that:
“I. The Court of Appeal erred in
law in holding that the
enstoolment and installation of
the third respondent as
Mamponghemaa took place on the
same day she was nominated as
Mampong-hemaa-elect on 7th
November 2000 when there was no
iota of evidence to support that
finding.
ii. The honorable court erred in
allowing the appeal of the
appellants on the ground that
their conviction for contempt
was not supported by proof
beyond reasonable doubt in the
teeth of overwhelming affidavit
evidence.
iii. The honorable court erred
in holding that viva voce
evidence ought to have been led
at the High Court, Kumasi, where
the contempt proceedings were
conducted.
iv. The judgment is unreasonable
and cannot be supported having
regard to the evidence on
record.
v. Additional grounds to be
filed upon receipt of the
certified copies of the records
of proceedings and
judgment/ruling.”
The appellants filed two
additional grounds which were
that:
“a. That the Court of Appeal
shirked its duty of calling oral
evidence as a court of
re-hearing thus occasioning a
miscarriage of justice.
b. that since the court was of
the opinion that a reference
should have been made to the
appropriate customary body for
the determination of the custom,
it failed in its duty to make
such reference, thus falling
into the same error as it had
accused the trial court of
making; such failure occasioning
a grave miscarriage of justice.”
It will be observed that ground
three of the original grounds
and the two additional grounds
more or less covered the same
ground and will be considered
together.
The most essential issue to be
resolved in the case were the
nature and effect of what took
place on 7 February 2000. A
resolution of the issue calls
for a determination as to what
constitutes enstoolment of a
queen mother in Ashanti Mampong.
Both parties gave what they
considered to be enstoolment in
Ashanti Mampong. It was the case
of the appellant that on that
day, the third respondent was
merely nominated by the first
respondent as the queenmother of
her choice but actual
enstoolment was postponed to 29
February. The respondents on the
other hand maintained that what
took place on that 7 February
amounted to enstoolment.
To resolve the conflict in the
two versions, it has been argued
that the trial court should have
ordered investigation into the
exact nature of the custom that
prevails in Ashanti Mampong for
the enstoolment of a
queenmother. For two main
reasons, there was no need for
the order: First, because the
affidavit evidence on the record
was sufficient to resolve the
issue; and secondly if
investigations were to be
ordered, it appears that no
higher authorities could have
given testimony of the alleged
custom than the very people who
at the trial court provided
information on the custom in
question: They were the
Mamponghene himself, the
Abusuapanin of the Botase
family, the family to which the
appellants belonged, the
Krontihene and Akwamuhene of
Mampong, and Nana Afua Saka, a
principal member of the Botase
Royal family. All these swore to
various affidavits which were
used to support one side or the
other of the disputed custom.
Ground iii of the original
grounds of appeal and the two
additional grounds of appeal
therefore fail and are
dismissed.
A consideration of ground one of
the grounds of appeal will
entail examination of the
evidence on the record.
Similarly, ground four which
attacks the judgment of the
Court of Appeal as being against
the weight of the evidence will
involve an examination of the
evidence. Grounds one and four
will therefore be considered
together.
As the evidence stood, the
appellants insisted that after
the nomination that took place
on 7 February 2000
there were other customs to be
performed before installation
would be complete: They included
confinement, placing of the
queenmother-elect on the stool,
the handing over of stool
regalia to the queenmother-elect
and introduction to the
Asantehemaa.
On the other hand, the
respondents contended that the
installation comprised the
Mamponghene consulting families
authorized to put forward names
of contestants for prospective
queenmothers, making his choice
out of the names of contestants,
disclosing his choice to the
kingmakers at a meeting with
them and if his choice was
accepted, to inform the winning
contestant, who then accepts
the offer by giving thanks to
the Omanghene and the
kingmakers. According to the
respondents, whatever would be
done thereafter in connection
with the enstoolment would be
formalities and would not form
part of the installation
process.
The court had to decide the case
on affidavit evidence. It was
however not impossible to come
to conclusion on the issues. To
determine which of the two
conflicting versions to accept,
one has to consider the source
from where the information came.
The information of the appellant
was from Nana Afua Saka, a
principal member of the Botase
Royal family of Mampong. The
trial judge accepted her version
that what took place on 7
February was only nomination and
not installation or enstoolment.
In support of that he relied on
provision of the 1992
Constitution and the Chieftaincy
Act, 1971(Act 370) and
dictionary meanings of some of
the expression used to define
the requisites for installing a
chief or queenmother.
There is no doubt about the
requirements for enstooling a
chief as stated in the 1992
Constitution and Act 370. These
were that the candidate should
hail from the appropriate
family; he should belong to the
appropriate lineage within the
family; and he must be
nominated, selected and
installed in accordance with
customary law. The first point
that militated against the
analysis of the trial judge was
that there was not a single
affidavit from any other
principal members of the Botase
Royal family who filed an
affidavit in support of the
allegations of Nana Afua Saka on
the requirements for enstooling
a queenmother in Mampong.
Additionally, she alleged that
she knew the customs in question
because she had been acting
queenmother of Mampong from 1993
to February 2000. That turned
out to be untrue. The affidavit
in which she deposed to that
fact was filed on 11 January
2004. In an affidavit filed by
the Senior Registrar of Mampong
Traditional Council and
supported by minutes of the
council meting, there was clear
evidence that she ceased to be
acting Mamponghemaa from 1994
and this was brought to her
notice. The capacity in which
she claimed to know the Asante
Mampong custom on enstoolment
having been proved false and
seriously undermined, the trial
judge erred in relying on her
affidavit to conclude that her
version was the truth.
As against that, the version of
the respondents on the custom
was supported by the Krontihene,
Akwamuhene and Abusuapanin of
the Bretuo Botase Royal family.
These are people who can
certainly be considered as
knowledgeable in the customs of
Asante Mampong. They all swore
affidavits to deny the
allegations of the principal
member of the family. Between
the two versions, the
allegations of the respondents
were more credible.
What the respondents established
was that the events of 7
February constituted the custom
for the installation of the
queenmother of Asante Mampong.
It is important to bear in mind
when dealing with customs of
various people in this country
that customs differ from one
traditional area to the other.
What may be the essential
practice in one area may not
necessarily be the practice in
another area. This principle is
emphasized by the 1992
Constitution, art. 11(3) which
defines customary law as “the
rules of law which by custom are
applicable to particular
communities in Ghana.”
There are several features of
customary law pertaining to
installation of queenmothers.
They include confinement,
outdooring to the populace,
presentation of the queenmother-
elect to the overlord chief and
others. It is the stool elders
and kingmakers who decide which
aspect of the custom will be
applicable to a particular area.
There are basic rules which are
applicable to specific areas.
But rules on aspects of custom
do not apply with equal force in
all areas. While compliance with
one rule will be imperative in
one area, it may either not
apply at all or be applicable
but not subject to the same
force and compulsion as its
application in another area.
This is the essence of the
constitutional provision that
customary law is the rule of law
which by custom is applicable to
particular communities
in Ghana. It is important to
note that the provision does not
refer to general application to
all communities in Ghana.
In the instant case, the
respondents, led by the first
respondent, Omanghene of Asante
Mampong himself, and supported
by other customary authorities
of the area, deposed in
affidavits that the enstoolment
of queenmothers in Asante
Mampong comprises the following:
-
Request by the Omanghene to
the appropriate families to
put forward names of
candidates to be considered
as queenmothers.
-
Submission of names of the
eligible candidates through
established queenmothers
already at post.
-
Decision by the Omanghene on
his choice from the names
submitted
-
Disclosing his choice of
queenmother to stool elders
and kingmakers at a meeting
with them.
-
Approval of that choice by
the kingmakers and stool
elders.
-
Acceptance by the
queenmother-elect who then
gives thanks to the
Omanghene and the
kingmakers.
-
Introduction of the
queenmother-elect to the
public.
After these, the stool regalia
will be handed over to her,
including the stool on which
queenmother-elect may sit. The
argument of the appellants that
the installation is incomplete
without the queenmother-elect
being seated on a stool or being
in possession of the stool
regalia is untenable.
Republic v Sito l; Ex parte
Fordjour [2001-2002] SCGLR
322 at page 338, explains
circumstances when enstoolment
can be valid even where the
person installed is not seated
on a stool. In that case, the
stool regalia were in the
possession of the opponent who
would not make it available for
use by the person nominated and
yet the installation was ruled
as valid by the Brong Ahafo
Regional House of Chiefs and the
National House of Chiefs. In the
instant case, Nana Afua Saka who
opposed the nomination of the
third respondent deposed to an
affidavit that the stool regalia
were in her custody: In fact,
she added that the stool room
had to be broken into and the
stool regalia forcibly removed
by the Okyeame and others. She
reported the incident to the
police. Like the situation in
Ex parte Fordjour, if the
installation took place without
the stool regalia, it was
because those opposed to the
installation would not make the
stool regalia available. How can
the same people turn round to
complain that the installation
was not complete because of the
unavailability of stool regalia
and the stool to sit on? It is
to avert situations like these
where opponents may attempt to
frustrate installations that the
law in its wisdom validates
installations in which the
incumbent cannot immediately be
made to sit on a stool. It
follows therefore that even if
the third respondent did not
comply with the requirement to
possess stool regalia or sit on
the stool on February 7, 2000,
the non performance of those
customs did not invalidate the
installation.
The respondents contended that
the requirements that the
queenmother should be introduced
to the Asantehemaa was also a
formality and not essential part
of the installation process. To
determine whether that is an
essential part of the
installation, one has to
consider the effect on the
installation if it is not
performed. The Asantehemaa is
not part of the decision-making
panel members who have the
responsibility to determine the
right candidate. It cannot
therefore be the case that the
introduction will take place
while the decision is in the
process of being taken.
The successful candidate is to
be queenmother for the people of
Asante Mampong. It is only fair
that they should be the ones who
decide on the person to be
queenmother. That is performed
on behalf of the people by the
stool elders and kingmakers. No
one outside Asante Mampong can
take it upon himself or her self
the right to decide upon a
queenmother for them. After the
people of Asante Mampong have
selected their own queenmother,
presenting her to the Asantehene
or Asantehemaa can therefore
only be a formality based on
recognition that within the
unitary chieftaincy system
prevailing in Ashanti, the
over-all female chief of the
entire Ashanti Region has to
know who are the chiefs in the
Region. That is ex post facto
function. The installation will
first have to take place for the
person to be a queen mother for
Mampong. She will then have to
be introduced, in her capacity
as queenmother-elect, to the
Asantehemaa who will receive her
as the queenmother already
installed for Mampong. She will
not receive her as a contestant
vying to be a queenmother.
Obviously, such ex post facto
function can only be a
formality.
According to the respondents,
the enumerated seven points form
the crux of the installation
process in Asante Mampong. Of
all the seven points, the most
essential one is the decision by
the Omanghene on his choice of
queenmother out of the
candidates submitted. The well
established rule is that it is
the prerogative of the chief or
Omanghene to nominate the person
to be queenmother under his
rule. According to Chambers 21st
Dictionary, second edition, at
page 1096, the word
“prerogative” means “an
exclusive right or position
arising from one’s rank or
position.” Even more explicit is
the definition of that word in
Collins English Dictionary, 21st
edition, at page 1222 which
reads:
“An exclusive privilege or right
exercised by a person or group
of people holding a particular
office or hereditary rank.”
The connotation of the
exclusiveness of the right
vested in the chief presupposes
that he alone has the right to
choose who should be his queen
mother. That should be the case
because the chief is a
traditional ruler and the
queenmother is to assist him to
rule traditionally. Common sense
dictates that the ruler should
have the prerogative to select
the one he believes can assist
him to rule the traditional
area, just like the selection of
a cabinet minister to assist a
head of state to rule a nation.
It is apparent that the problems
arising from this case have
partly been fanned by comparison
between the installation of male
chiefs and those of
queenmothers. There is no doubt
that there are similarities in
the installation of male chiefs
and queenmothers: These will be
found in the personal
characteristics that both
contestants to a male or female
stools should possess,
reputation, family
qualifications and others; there
are at the same time significant
differences in the two processes
of installation.
For the installation of a male
chief, the queenmother has three
chances to nominate candidates
or her choice: See Boampong v
Aboagye [1981] GLR 927, SC.
There is no such rule in the
installation of a queenmother.
The appellants contended that
the queenmother has to be
confined. That may be a
requirement in the installation
of male and female chiefs. The
Omanghene and the stool
authorities deposed that
confinement was not part of the
Asante Mampong custom during the
enstoolment of queenmothers.
The authorities require that
before deciding on his choice of
a queenmother, the chief should
consult his kingmakers and stool
elders as well as the relevant
family members: The decision
will be annulled if the relevant
family is not consulted, as it
happened in In re Kwabeng
Stool; Karikari v Ababio ll
[2001-2002] SCGLR 515, SC.
Consultations with families,
stool elders and kingmakers are
to ensure that the right
decision is taken at the right
time. They do not give those
consulted the right to make the
decision for the chief.
In the instant case, the first
respondent deposed in an
affidavit that he consulted the
relevant families before making
his choice. That was supported
by the minutes of the meeting of
February 7 2000 and the fact
that at that meeting when the
third respondent was announced
as the one chosen by the
Omanghene, there were over
fifteen chiefs and kingmakers
present including the
Botasehene, Nana Owusu Ansah
Ababio who is the head of family
of the first appellant. He
raised no objection to the
nomination, neither did he
complain of not having been
consulted. Rather, they
unanimously gave approval to the
choice of the Omanghene.
The evidence on the record
showed that there were two
contestants in the persons of
the third respondent and the
first appellant’s nominee. Each
contestant passed her request
through the appropriate
customary sources to reach the
Omanghene. He received each
request. According the first
respondent, he considered each
request and finally decided that
he preferred the third
respondent to the first
appellant’s nominee. His choice
having been unanimously endorsed
by the stool elders and
kingmakers at the meeting of
February 7, 2000 should have
ended the issue as to who should
be the queenmother of Asante
Mampong.
The affidavit evidence of the
Omanghene of Asante Mampong,
supported by affidavits of stool
elders and kingmakers, showed
that all the seven points
enumerated above were complied
with. According to those stool
authorities, what took place on
February 7 2000 amounted to
installation of the queenmother
of Asante Mampong. Other
traditional areas may lay
different emphasis on different
aspects of the process of
installation but that does not
amount to diminution of the
process in Asante Mampong. The
effect of the evidence is that
the constitutional requirements
of nomination, selection and
installation had been satisfied.
The nomination was undoubtedly
done by the Omanghene, the first
respondent; the selection was
done by the stool elders and
kingmakers present at the
meeting of February 7, 2000. The
installation was done on the
same day by the Omanghene, stool
elders and the kingmakers at
that meeting.
Much capital was made of the
time that it took to install the
queenmother. The length of time
taken for the installation
depends on the customs to be
performed. Where for instance
confinement is compulsory, the
period of confinement alone
takes any time from three weeks,
two weeks, one week, three days
or one day. The period differs
from one traditional area to the
other. Confinement obviously
will make the installation
period longer. In the instant
case, the evidence from the
respondents is that there is no
confinement when the queenmother
is being installed. If that was
the case, the period of
installation will certainly be
short. That possibly accounted
for the installation taking no
more than one day. The fact that
this particular installation
took one day will be no ground
for invalidating it.
On the basis that what took
place on that day constituted
installation of the third
respondent, the first ground of
appeal failed and is dismissed.
Ground two of the grounds of
appeal attacked the decision of
the Court of Appeal for the
reason that the court erred in
its ruling that the allegation
of contempt was not proved
beyond reasonable doubt. The law
is now well settled that
contempt of court is a quasi
criminal process: The onus of
proof required in contempt
proceedings is proof beyond
reasonable doubt. This is so
even in civil cases. As was
rightly stated in Comet
Products UK Ltd v. Hawkex
Plastics Ltd [1971] 1 All E
R 1141 at page 1143-1144, CA:
“Although this is a civil
contempt, it partakes of the
nature of a criminal charge. The
defendant is liable to be
punished for it. He may be sent
to prison. The rules as to
criminal charges have always
been applied to such
proceedings. It must be proved
with the same degree of
satisfaction as in a criminal
charge.”
The local locus classicus on
this seems to be In re
Effiduase Stool Affairs (No 2)
[1998-99] SCGLR 639. The same
principles were applied in
Akele v Cofie; Akele
(Consolidated) [1979] GLR 84
and Kangah v. Kyere
[1979] GLR 458. The trial court
and the Court of Appeal
articulated the issues clearly
and therefore there is no need
to elaborate on the principles
further. Relating the principles
to the facts of the instant
case, the affidavit evidence on
the record shows that all the
above seven points took place on
February 7, 2000.
That clearly demonstrates that
by time the motion for contempt
was filed on 23 February 2000,
the installation had already
been completed. z
To be guilty of contempt of
court or contempt of the
Regional House of Chiefs, there
must be conduct, action or
omission on the part of the
person charged with contempt
which tends to undermine the
authority of the court or
tribunal by interfering with
process pending in that court or
tribunal. Since the proceedings
to be undermined in the instant
case did not exist at all at the
time when the installation took
place, that instillation could
not ground a charge of contempt
of the Ashanti Regional House of
Chiefs.
For all the foregoing reasons,
the appeal fails and is
dismissed.
The decision of the Court of
Appeal is affirmed but on
different grounds.
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
G. T. WOOD(MRS.)
JUSTICE OF THE SUPREMCOURT
S. A. B ROBBEY
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
S. O.A. ADINYIRA(MRS.)
JUSTICE OF THE SUPREME
COURT
COUNSEL
Mr. Thomas Hughes for Appellant.
Mr. Kwasi Afrifa for Respondent.
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