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J U D G M EN T
BROBBEY, J.S.C:
The undisputed facts in this
application were that the
occupant of the Adonten Stool of
the Twifo Hyeman Traditional
Area died: Succession to that
stool was the prerogative of the
Aberadze family of that
Traditional Area. It was alleged
that the Obaapaanin and head of
that family were acting on the
instructions of the paramount
chief of Twifo Hemang
Traditional Area, the first
respondent herein, to impose on
the stool as a Adontenhene one
Mensah Marfo who did not hail
from the right lineage of the
Adonten Stool.
The litigation started by the
Stool elders filing a petition
in the Central Regional House of
Chiefs for a declaration to
prevent the installation of
Mensah Marfo as Adontenhene. The
appellants in the instant appeal
then filed an application in the
Cape Coast High Court to
restrain the Regional House from
hearing the petition on the
grounds of want of jurisdiction.
The basis of the application was
this; the general rule is that
Regional Houses of Chiefs are
mandated to try disputes
involving the Asantehene and
paramount chiefs as stated in
the Chieftaincy Act, 1971(Act
370), s. 23(1) which provides
that
“Each Regional House of Chiefs
shall have the following
original and appellate
jurisdiction:-
(a)
Original jurisdiction in all
matters relating to a paramount
stool or the occupant of a
paramount stool…”
On the other hand, traditional
councils are mandated to try
disputes involving chiefs below
paramount chiefs. The authority
for this is Act 370, s. 15(1)
which reads:
“Subject to the provisions of
this Act and to any appeal
therefor, a Traditional Council
shall have exclusive
jurisdiction to hear and
determine any cause or matter
affecting Chieftaincy which
arises within its area, not
being one to which the
Asantehene or a paramount chief
is a party.”
The Adonten stool is a
divisional one which is below a
paramount stool: The applicants
therefore argued that a dispute
involving it should be tried in
the Twifo Heman Traditional
Council but not the Regional
House of Chiefs. The respondents
opposed the application by
contending that since disputes
involving a paramount chief were
triable in Regional Houses of
Chiefs and the first respondent
was a paramount chief, the
dispute involving him should be
tried in the Central Regional
House of Chiefs.
The High Court, presided over by
B. O. Tetteh J., granted the
applicants’ application by
ruling that the Twifo Heman
Traditional Area and not the
Central Regional House of Chiefs
had jurisdiction to try the
petition. The respondents to the
application appealed to the
Court of Appeal. By a split
decision of two against one, the
Court allowed the appeal and
reversed the decision of High
Court. It was against that split
decision that the appellants
have appealed to this court.
The grounds of the appeal were
as follows:
“(a) The majority
misdirected itself when it held
that the Judicial Committee of
the Central Region had
jurisdiction to hear the
petition titled
‘Kojo Nkrumah
Joseph Etse
Kwaw
Joseph
Kyeremea
Yaa Kyerewa
v.
Nana Amoa
Sasraku 111
Obaapanyin
Abena Emuyaa’
merely because Nana Amoa Sasraku
ll was a party.
b) The majority misdirected
itself when it distinguished the
decision in Republic v
Western Region House of Chiefs;
Ex parte Aduhene ll
[1994-95] GBR 903.
c) The majority was in error in
its decision in the face of the
relevant provisions of Act 370,
the Chieftaincy Act of 1971.
d) the majority misdirected
itself when it based its
decision on portions of the 1992
Constitution.”
In arguing the appeal on behalf
of the appellants, counsel for
the appellants contended that
the subject matter of the
petition related to the
“Adonten” stool of Twifo Heman
Traditional Area. That stool was
a divisional one. Therefore
disputes involving it should be
tried in the Twifo Heman
Traditional Council: Reliefs
(a), (b) and (c) of the petition
(which are quoted below) should
have been tried in that Council.
On the other hand, they
contended further that since the
1st respondent was a
paramount chief, the dispute
involving him could only be
tried in the Regional House of
Chiefs. Relief (d) (also quoted
below) which was against him
should have been pursued in the
Central Regional House of Chiefs
and not the Twifo Heman
Traditional Council.
The petition which triggered off
the instant litigation claimed
the following reliefs:
“(a) A declaration that the
purported intentions of the
respondents to install one
Mensah Marfo as the next
Adontenhene of the Twifo Heman
Traditional Area is contrary to
the customary practices of Twifo
Heman.
(b) A declaration that the next
Adontenhene should be someone
appointed and approved of by the
Aberadze family of Twifo Heman
© An order for perpetual
injunction to restrain the 2nd
and 3rd respondents
or any person lawfully claiming
through them from installing one
Mensah Marfo as the next
Adontenhene.
(d) An order for perpetual
injunction to restrain the 1st
respondent from participating in
any ceremony relating to the
installation of or swearing one
Mensah Marfo as the next
Adontenhene.”
A simple reading of the reliefs
will disclose that the real
issue raised by the petition was
the installation of the
Adontenhene of Twifo Hemang.
That issue involved the
nomination, election, selection
and installation of the right
person as the Adontenhene. This
is what is required by the 1992
Constitution, art 277. The
article provides for the
definition of a chief but it at
the same time outlines the
processes for the making of a
chief. Article 277 provides
that:
“In this Chapter unless the
context otherwise requires,
‘chief’ means a person who,
hailing from the appropriate
family and lineage, has been
validly nominated, elected or
selected and enstooled,
enskinned or installed as a
chief or queenmother in
accordance with the relevant
customary law and usage.”
From this passage, it can be
deduced that it is out of the
appropriate family that an
individual can be made a chief.
It is that family who knows who
constitute its members and its
royals and those who should be
in the right lineage.
When a chief has to be
installed, there are designated
elders of the family in the
position of kingmakers who are
entrusted with the power to take
decisions on the processes to be
followed. In practice, king
makers have the authority to
“nominate, elect or select and
enstool , enskin or install a
chief or queenmother.” This was
expatiated upon in In re
Kwabeng Stool; Karikari v Ababio[2001-2002]
SCGLR 515 in holding three of
the report. That case involved
the installation of a queen
mother but it expounded the
general principles on
installation as follows:
“There are three processes
involved in the enstoolment of a
chief or queen mother, namely,
nomination, election and
installation. While the right to
nominate the omanhene (paramount
chief) or ohene (chief) lies
with the queenmother, the right
to nominate the queenmother lies
with the omanhene or ohene.
After the nomination, the
election is made by the
kingmakers with all the relevant
sections of the family; and the
installation is done with the
people (including the elders)
who take turns to swear the oath
of allegiance to the omanhene or
ohene after he has sworn to
them.”
This passage, like that of
article 277 quoted above, also
emphasizes the fact that a
person is made a chief by his
kingmakers who must necessarily
be members of his family.
The definition in article 277
and the decision in In re
Kwarbeng Stool alluded
to raise the issue of
installation. Installation is
the formal enstoolment of the
chief elect onto the stool. It
takes various forms and the
ceremony differs from one tribe
or clan to the other. In the
Akan areas of which the Twifo
Heman Traditional Authority is
one, it takes the form of the
chief elect swearing the oath of
allegiance to his overlord or
paramount chief while the
overlord or paramount chief in
turns swears to him, after which
he will be lowered thrice on the
stool.
The most significant feature of
the installation is that it
climaxes the enstoolment
ceremony. It is does not begin
the enstoolment and it does not
take place in the middle of the
enstoolment. In essence, the
individual is nominated first,
and then he is elected and
selected as the chief. Each
process has its own requirements
and preconditions which must be
satisfied. The thrust of all the
three processes of nomination,
election or selection is that it
is after the individual has gone
through them that he is made a
chief. He is made a chief by the
stool elders and king makers who
are members of the Aberadze
family. It is the contention of
the appellants that the first
respondent is not a member of
the Aberadze family which has
the prerogative to nominate,
elect and select the Adontenhene.
That has not been denied by the
respondents. He cannot
participate in the decision to
nominate, elect or select the
candidate as a chief, let alone
take it upon himself to decide
who should be the Adontenhene of
Twifo Heman.
At customary law, the individual
to be sworn does not appear
before the paramount chief in
his capacity as a contestant
applying to be made a chief. He
appears before him after he has
gone through the three main
processes of being made a chief:
Simply stated, by the time he
appears before the paramount
chief to swear before him, he is
already a chief. The ex post
facto function of having to be
sworn in by the paramount chief
will not be enough to transform
the swearing in ceremony before
the chief into a function of the
paramount chief who is
performing the swearing in
ceremony.
There is the temptation to argue
that without the swearing in by
the paramount chief, the
installation of the Adontenhene
is invalid. That argument will
imply that even after the chief
has been nominated, elected,
selected and installed by his
people, his status as a chief
can be invalidated by the
paramount chief. That argument
will not be correct because the
customary rule is that it is
only those who enstool who have
the capacity to destool.
Authority for this can be found
in Essilfie v Anafo
[1993-94] 2GLR 1 in which the
customary law principle was
stated as follows in the
headnote:
“The power to destool a chief
was a customary right vested in
the kingmakers who alone have
the power to make and unmake a
chief at customary law.”
The principle that it is only
those who enstool who can
destool makes a great deal of
sense. This is because that
aspect of chieftaincy disputes
is like the feeling of pain in
the body of a person. No-one can
feel pain for another person. A
person is a chief over those who
have nominated, elected,
selected and installed him as
their chief. For the purpose of
determining the validity of his
capacity as a chief, he is not a
chief over people outside his
paramountcy or division. This is
the position, notwithstanding
the courtesies accorded him by
every one who encounters him in
his official capacity after he
has been installed as a chief.
It follows that people outside
the paramountcy or division
cannot take it upon themselves
to depose a person who is not
their chief. The paramount chief
of Twifo Heman is outside the
people who are within the
division of the Adontenhene and
who can make the Adontenhene: He
therefore cannot take it upon
himself to nullify the
installation of the Adontenhene
or invalidate the installation
by his refusal to swear in the
Adontenhene. To hold otherwise
would imply giving the paramount
chief the power to decide who
should be the chief for the
people of Twifo Heman
traditional area. That will be
contrary to customary law.
Statutorily, the principle that
only those who enstool have the
power to destool used to be
covered by the Chieftaincy Act,
1971(370), s 33 which has now
been replaced by the Chieftaincy
Act, 2008 (759), s 40(1).
Section 40(1) reads as follows:
“A person is not entitled under
this Act to institute
proceedings for the deposition
of a chief unless that person is
entitled to do so under the
custom of the area concerned.”
Even if the paramount chief had
the capacity to destool a chief,
the rule now is that no one can
be destooled unless the law as
contained in Act 759, s 40(3) is
complied with. Section 40(3)
provides that:
“Except where the deposition is
accepted without challenge, and
subject to an appeal, a chief is
not deposed, unless
(a)
Deposition charges have been
instituted against the chief and
(b)
The appropriate customary
practice of deposition in the
area concerned have been
complied with.”
Merely refusing to allow the
divisional chief to swear before
him cannot constitute deposition
within the law as stated above.
In areas where the custom of
swearing in is said to be an
integral part of the
installation, it is argued that
the installation ceremony will
be incomplete until the chief
elect has been sworn in. That
cannot be correct because such
swearing in ceremony will only
enable the chief to perform
certain customary or statutory
duties. The fact of his not
being sworn in cannot have the
effect of unmaking him as a
chief. In such areas, the fact
will remain that the person to
be sworn in becomes a chief
before he is sworn in and he
will continue to remain a chief
of his people even if the
swearing in does not take place
for one reason or the other.
In my opinion, it cannot be
correct to describe the swearing
in by the paramount chief as a
function of the paramount chief
warranting the determination of
its dispute by the Regional
House of Chiefs. This can be
illustrated by divers swearing
in analogies: The most obvious
one is when a new President is
elected: He is sworn in by the
Chief Justice. Does the fact
that the swearing in ceremony is
conducted by the Chief Justice
make the ceremony that of the
swearing in of the Chief
Justice? Further, when justices
of the Supreme Court are
appointed, they are sworn in by
the President; does the ceremony
become the swearing in of the
President merely because he is
the one conducting the swearing
in, so as to warrant a dispute
involving the ceremony or a
dispute involving the judges to
be decided with rules made for
resolving Presidential disputes?
The answer to both situations
will be in the negative.
By parity of reasoning, the fact
that the first respondent who
has to conduct the swearing in
of the divisional chief elect
happens to be a paramount chief
is no reason why the swearing of
the divisional chief of Twifo
Heman should be described as a
ceremony of a paramount chief
warranting any dispute involving
it to be determined by the
Regional House of Chiefs. The
peripheral or perfunctory
ceremony conducted by the
paramount chief cannot justify
describing the issues in the
petition – either in whole or in
part – as paramount stool
disputes which should be sent to
the Regional House for
determination.
The relevant section 23(1) of
Act 370 (already quoted in full
above) provides that the
Regional House of Chiefs shall
have
“Original jurisdiction in all
matters relating to a paramount
stool or the occupant of a
paramount stool.”
If the case were to be sent to
the Regional House of Chiefs,
what is the nature of the
paramount stool dispute that
will have to be determined? None
of the parties controverts the
fact that the first respondent
is a paramount chief. There is
therefore no dispute about the
status or capacity of the first
respondent as a paramount chief
which has to be determined. His
role in the entire enstoolment
process is to swear in the chief
elect. He does so in his
capacity as the Omanhene or
paramount chief in charge of
that paramountcy. It has been
held in Ansu-Agyei v Fimah
[1993-94] I GLR 299, SC that the
refusal of the Omanhene to allow
the sub chief to swear before
him is not a cause or matter
affecting chieftaincy but is a
“purely customary” matter. That
case concerned the refusal of a
paramount chief to allow a chief
to swear before him. If the
apprehension of respondents in
the instant case is that the
first respondent would not allow
the chief elect to be sworn in
as demanded by custom, that
issue is not a cause or matter
to be determined by the Regional
House of Chiefs.
It is equally untenable, as
contended by the respondent, to
argue that the disputes should
be divided into two so that the
portion concerning the paramount
chief will be sent to the
Regional House while the portion
concerning the divisional chief
is sent to the traditional
council. As explained above,
there is no issue or dispute
about a paramount chief that can
be determined by the Regional
House for which reason the case
may be sent there. The Central
Regional House of Chiefs
therefore has no jurisdiction
over the disputes raised in the
petition.
The disputes to be raised in the
petition concern the making of
an Adontenhene for Twifo Heman
Traditional Area. All the
parties agree that the stool of
Adontenhene is a divisional one.
It follows that it is the Twifo
Heman Traditional Council that
has jurisdiction to hear the
petition. The majority of the
Court of Appeal judges erred in
deciding that the dispute should
be determined by the Regional
House of Chiefs.
This decision is consistent with
the decision in the
Republic v Western Regional
House of Chiefs; Ex parte
Aduhene [1994-95] GBR
903, SC which held that in
determining the jurisdiction of
the appropriate judicial
committee forum, the relief
claimed and the facts relied on
are the determining factors. In
the instant case, the reliefs
were as contained in the
petition quoted in this
judgment. The facts relied upon
however indicated that the real
dispute before the court
concerned the Adonten stool
which is a divisional one.
The decision in this case is
also consistent with the final
outcome of the Aduhene
case. In that case, like the
instant one, the plaintiff
issued a writ claiming that the
nomination and installation of
the Ankobeahene of Sefwi were
void, and so were all
installations made by him. The
writ was issued in the Western
Regional House of Chiefs but the
Ankobeahene was a divisional
chief. Since the relief did not
involve a paramount chief, this
court held that it could not be
tried in the Regional House of
Chiefs. In the case of
Ansu-Agyei v Fimah
(supra), it was also held that
since the action did not involve
a paramount chief, it could not
be tried in the Brong Ahafo
Regional House of Chiefs.
The instant case further
illustrates that to determine
the nature of a dispute for the
purpose of deciding which
judicial committee has
jurisdiction to try or hear it,
one has to consider the parties,
the nature of the relief claimed
and the facts adduced in support
of the claim. It can be
misleading to rely only on the
reliefs claimed or the names
appearing as parties. The facts
relied upon have to be given due
consideration as well.
The most important principle
established in this case is that
the mere naming of a party on a
chieftaincy petition will not be
conclusive in determining the
nature of the case for the
purpose of deciding on the
jurisdiction of the judicial
committee to hear or try the
chieftaincy dispute raised in
that petition.
The appeal succeeds and is
allowed.
S. A. BROBBEY
(JUSTICE OF THE SUPREME COURT)
BAFFOE-BONNIE J S C;-
I have had the benefit of
reading beforehand the lucid
opinion read by my learned
brother and I am wholly in
agreement with the decision to
allow the appeal .
I will begin my short opinion
with a quote
“Where the original jurisdiction
of the regional house of chiefs
is invoked, it must be shown on
the face of the petition that
the matters alleged pertain to a
paramount stool or its
occupant. So for example, I
should think that matters
affecting the nomination,
election or destoolment of the
occupant himself would be
covered, so also for example
matters in relation to that
paramount stool’s properties.
Thus I think the pertinent
question to ask in such a matter
is; does the matter pending
before the Regional House of
Chiefs relate to a paramount
stool or its occupant? I
think one helpful
way of answering such a question
is to look at the reliefs
together with the facts upon
which reliefs are founded and
more particularly the reliefs
sought. In this case we
look at the reliefs together
with the facts which the
respondent alleges that he is
capable of proving and we find
they do not relate to either a
paramount stool or occupant
thereof.” (emphasis added)
If this quotation sounds
familiar it s a quotation from
the judgment delivered by our
esteemed sister, Lutterodt JA(
as she then was ) in the case of
Republic v Western Regional
House of Chiefs Ex parte Aduhene
II [1994-95 GBR 903.
In this case the reliefs being
sought for in the original
petition are as follows;
1
A declaration that the purported
intention of the respondents to
install one Mensah Marfo as the
next Adontenhehe of twifo Hemang
Traditional Area is contrary to
the customary practices of Twifo
Hemang
2
A declaration that the next
Adontenhene should be someone
appointed and approved of by the
Aboradze family of Twifo Hemang
3
An order for perpetual
injunction to restrain the 2nd
and 3rd Respondents
or any person or persons
lawfully claiming through them
from installing Mensah Marfo as
next Adontenhene.
4
An order for perpetual
injunction to restrain the 1st
respondent from participating in
any ceremony relating to the
installation of or swearing in
of the said Mensah Marfo as
Adontenhene
If one examines the reliefs
being claimed in the petition
which gave rise to these
proceedings, with ex parte
Aduhene as a guide, it
becomes clear that the
respondents case is untenable.
Of the four reliefs being
claimed in the petition it is my
view that it is only the fourth
one that genuinely could ground
the application under certain
circumstances and given certain
facts. The second and third
reliefs do not mention the 1st
respondent at all. Even though
the first relief relates to the
occupant of a paramount stool it
could be dismissed just with the
wave of the hand on the grounds
that the 1st
respondent, not being a member,
of the royal Aboradze family of
Twifo Hemang and therefore not a
king maker of that family
cannot, acting alone or in
concert with others, install a
chief. Obviously, as the
overlord he may have his
preference and may even scheme
to have his preferred choice
accepted. But until such an
intention crystallizes I do not
think a cause of action against
him arises.
With regard to the fourth
relief, in the present
circumstances of this case and
given the facts, that too cannot
form a basis of conferring
jurisdiction on the regional
house of chiefs. The ceremony of
swearing of a chief actually is
in two parts; ie. swearing to
his people (subjects) and
swearing to his overlord.
Swearing to his people is part
of his installation process and
failure to do it could be deemed
to be a failure to complete the
process and could lead to
annulment of his enstoolment.
The same thing cannot be said of
the swearing of a chief to his
overlord. A sub chief who
refuses, or is not permitted to
swear to his overlord cannot on
that score alone be destooled by
his overlord. The simple reason
is that the overlord not being
his king maker cannot destool
him.See the case of Essilfie
v Anafo [1993-94] 2 GLR 1 where
this court speaking through
Ampiah JSC said at page 8,
“Even if there had been evidence
to support the charges, the
traditional tribunals as
established by law, have no
power to destool a chief or to
make an order for his
destoolment. The power to
destool a chief is a customary
right vested wholly in king
makers who alone have the power
to make and unmake a chief
customarily”
And in any case as was held
in the case of Ansu-Agyei v
Fimah[1993-94] 1 GLR 309 SC ,
the refusal of an Omanhene to
allow his sub-chief to swear
before him is not a cause or
matter affecting chieftaincy but
is a “purely customary matter”
Since the crux of the
petitioners’ claim is to
question the propriety of Mensah
Marfo, a non royal, being
imposed on the royal Aboradze
family as Adontenhene their
actual plaint is against the
other two respondents. The
paramount chief is only nominal
to the action. In fact the
action can conveniently go on
without him!
It is for these reasons
that I agree with the decision
that the right forum is the
Judicial Committee of the Twifo
Hemang Traditional Council and
so the appeal be allowed and the
majority decision at the court
of appeal be reversed.
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
I agree
G. T. WOOD (MRS)
(CHIEF JUSTICE)
I
agree
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
I agree
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
KWABENA OWUSU FOR THE
APPLICANT/RESPONDENT/APPELLANT
GUSTAVA ADDINGTON FOR THE
INTERESTED PARTY/RESPONDENT
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