Practice and procedure – Appeal – Findings of fact – Appellate court not to reverse findings of fact in concurrent judgments in the courts below except for misdirection or wrongful assessment of evidence.

The plaintiffs who claimed to be royals of the Pankrono Stool, instituted proceedings in the judicial committee of the Kumasi traditional council against the defendants for declarations that the 5th defendant was not a royal and that his nomination by the 1st, 2nd, 3rd and 4th defendants for enstoolment on the Pankrono stool was uncustomary. They claimed also perpetual injunction to restrain the installation of the 5th defendant on the stool. Both sides testified on the tradition as well as recent acts regarding the stool. The plaintiffs testified that originally succession to the Pankrono stool was matrilineal until one Miawani, a member of the matrilineal family, offered himself and was sacrificed in a ritual that led to the success of an Ashanti war. Okomfo Anokye, the fetish priest of Ashanti decreed thenceforth that succession to the stool should be patrilineal and outlawed matrilineal succession to the stool as a taboo. By this decree, the stool went to the sons and grandsons of Nkwantakesehene stool and the descendants of the said Miawani. The judicial committee of the Kumasi traditional council accepted the evidence of the plaintiff, declared the nomination of the 5th defendant null and void and authorised the queenmother of Pankrono to nominate a fresh candidate for enstoolment by the kingmakers of the Pankrono stool. The defendants (except the 2nd defendant) appealed to the Ashanti Region House of Chiefs, which dismissed the appeal and affirmed the decision of the judicial committee of the Kumasi traditional council. The defendants appealed further to the National House of Chiefs. In allowing the appeal, the National House of Chiefs held that the plaintiff’s case was improbable and that of the defendants’ was probable. The plaintiffs appealed to the Supreme Court.

Held, Amua-Sekyi and Aikins JJSC dissenting, since both judicial committees of the Kumasi traditional council and the Ashanti Regional House of Chiefs found that originally succession to the Pankrono stool was matrilineal but, by the decree of Okomfo Anokye, it became patrilineal, it was not open to the National House of Chiefs to question the custom. Where findings of fact had been made in two concurrent judgments, based on the evidence and the credibility of witnesses, an appellate court had no power to make its own findings contrary to the findings of the tribunal of first instance, which had the advantage of seeing and hearing the witnesses - an advantage denied the appellate tribunal. Short of misdirection or wrongful assessment of evidence, an appellate tribunal ought not disturb findings of fact made by the trial tribunal. The appeal would therefore be allowed. Yendi Skin Affairs; Yakubu II v Abudulai [1984-86] 2 GLR 23, Asibey III v Ayisi [1973] 1 GLR 102, Praka v Ketewa [1964] GLR 423, SC, Republic v Asafu -Adjaye (No 2)  [1968] GLR 567 applied.

Cases referred to:

Adjeibi-Kojo v Bonsie (1957) 3 WALR 257, [1957] 1 WLR 1223, 101 SJ 972, PC.

Asibey III v Ayisi [1973] 1 GLR 102.

Beng v Poku [1965] GLR 167, SC.

Gyewu v Nana Nuaben Asare II 12 July 1990, SC.

Praka v Ketewa [1964] GLR 423, SC.

Republic v Asafu A-djaye (No 2)  [1968] GLR 567, CA.

Yendi Skin Affairs Re, Yakubu II v Abudulai [1984-86] 2 GLR 239, SC.

APPEAL from the decision of the National House of Chiefs to the Supreme Court.

Obeng Manu for the appellants.

Mmieh for the respondents.

ARCHER CJ. I have had the advantage of reading beforehand the opinion of my brother Ampiah JSC and I agree that the appeal should be allowed. However, there is one aspect of this appeal which should be stressed. There is an established principle in appellate courts, that where findings of fact on the evidence and on the credibility of witnesses have been made in two concurrent judgments, an appellate court has no unfettered licence and unbridled discretion to make its own findings contrary to the facts found in the concurrent judgments of the courts below. In this particular appeal, the judicial committee of the National House of Chiefs ignored this principle and embarked upon speculating on what the probable custom was. I do not think an appellate court is entitled to tread such a path. Where there are concurrent findings of fact, and there is sufficient evidence to support them, those findings of fact should not be disturbed. This has been an established principle since appeals were heard by the Privy Council and the West African Court of Appeal. It is a sound principle and has not, to my knowledge, been relegated to the forensic limbo of oblivion so far as the courts in this country are concerned.

FRANCOIS JSC. I have had the privilege of reading the judgment of my brother Ampiah JSC beforehand and I agree with his reasons and conclusions and have nothing useful to add.

AMUA-SEKYI JSC. This was a claim for a declaration that the fifth defendant, Kwaku Nyamekye, was not a royal of the stool of Pankrono in Ashanti. The basis of the claim was that following the sacrifice of the occupant of the stool to the gods for success in war during the time of Nana Osei Tutu and Okomfo Anokye, it was decreed that no member of the matrilineal family should thenceforth occupy the stool. This evidence and contention was accepted by both judicial committees of the Kumasi traditional council and the Ashanti Region House of Chiefs, but was rejected unreservedly by the National House of Chiefs. While the former accepted without question that a person who was sacrificed in the circumstances could have such a penalty imposed on his family, the latter thought that such a person would be rewarded, not punished, and the order more likely to have been made was as claimed by the defendants, namely, that thenceforth no person from Pankrono should suffer death by decapitation.

In this appeal, we have been told that the National House erred because the issue was not whether the alleged order of Okomfo Anokye was reasonable, but whether it was in fact made. Osei Tutu and Okomfo Anokye lived three hundred years ago. There was no writing then, so that all we have to go by is the oral tradition of the people. In the nature of things, this is bound to be coloured by self-interest. The temptation to falsify facts and history are much too great. Where facts of antiquity cannot be conclusively proved, the reasonableness or otherwise of those facts ought to be taken into account.

It seems to me that if we are to look only at the admitted facts, then the plaintiffs might well be right if Miawani, as the then chief was called, was seized against his will and slaughtered like a goat. This is hardly likely having regard to his status as occupant of a stool. If however, Miawani offered himself for sacrifice, the story of the defendants would be the more probable. Although no evidence was offered by either side to show the circumstances under which Miawani was sacrificed, that is, whether he was a willing party to it, the plaintiffs offered evidence that since that time no member of the stool family had succeeded to the stool. They said that instead, sons of the Pankrono stool had occupied the stool whenever it became vacant. Unfortunately for the plaintiffs, this is demonstrably false. The record shows that during his cross-examination, Nyamekye was asked to give the names of royals and sons of the Pankrono stool who had occupied the stool since the death of Miawani. He gave two names; Nana Brobbey Kwakye I and Nana Osei Kwadwo as royals, and named four other persons as sons of the stool. So, at the end of the day, all that the plaintiffs were able to prove was that sons have been permitted to occupy the stool. This is by no means

 unusual; for, even strangers who were in a position to render services to stools have been known to be offered the stool on condition that succession remained the exclusive right of royals. I make no comment as to whether this practice is a laudable one. The undisputed fact is that it is to be found in all parts of the country and has, regrettably, sometimes led to unnecessary litigation. In my opinion, even if the contention of the plaintiffs is true, the so-called order of Okomfo Anokye has been disregarded on at least two occasions. It is much too late in the day to declare it sacrosanct. Like the taboo that an Asantehene was not to cross a certain river, it should now be regarded as a relic of the past. It comes as no surprise to me that the Asantehene sent his linguist to give evidence for the defendants. I would dismiss the appeal.

AIKINS JSC. This is a case which I would have wished we were able to settle the rights of the parties in a unanimous way. However, our failure to do so vindicates the independent and conscientious spirit which pervades the deliberations of justices of this court. For my part, having carefully studied the record of proceedings and the divergent histories of the parties I agree entirely with the decision contained in the opinion of my brother Amua-Sekyi JSC that this appeal must be dismissed.

I would like, however, to make a few observations. The case for each party was built on oral traditional history. It was generally agreed that at one time the first Odikro of Pankrono, Owura Miawani, was used in a ritual by Okomfo Anokye for the Ashanti nation. The contention of the plaintiffs is that after the success of the Ashantis in the war in which Owura Miawani was used in the sacrificial ritual, Okomfo Anokye decreed that it was a taboo for the members of Owura Miawani’s family to ascend the stool of Pankrono. There is no evidence that the then King of Ashanti, Nana Osei Tutu, consented to the decree of Okomfo Anokye. This may well be so otherwise there would not have been so much noise about it. However, this is of no moment. The essence of this assertion is that the decree changed the succession to the stool from matrilineal to patrilineal thereby depriving the maternal members of the family of their right to occupy the Pankrono stool.

The defendants, on the other hand, assert that Okomfo Anokye decreed that none of the citizens of Pankrono should be punished by decapitation as a reward for Owura Miawani’s bravery and love for Asanteman. The plaintiffs assert that their ancestor Boakye Yaw Panin, the first Nkwantakesehene, brought down his stool from Denkyira Mmarayen followed by a large retinue and settled at Dote near Bukron. He then founded Pankrono and created a stool there for Owura Miawani, and later founded Dome and appointed Owura Asie as his Twafouhene and Odikro of Dome. From there he founded Abuakwa and Bukron. As against this history, the defendants say that their ancestors took leave of Nkwantakesehene Boakye Yaw who was then Kyidomhene of Denkyirahene and migrated from Denkyira Mmarayem and settled

 at Dote. Their ancestors then founded Pankrono and sent a message to Nana Boakye, Nkwantakesehene (at his request) to join them at Pankrono. There, Nkwantakesehene founded Abuakwa and Bukron. The defendants deny, therefore, that Pankrono was founded by Nkwantakesehene.

It is not easy on the face of the two historical accounts of the parties to determine which of the two traditional histories is the more probable. In a situation like this, a court of competent jurisdiction dealing with the matter must consider other accomplished facts not in dispute and accept the tradition which is supported by accomplished facts; see Beng v Poku [1965] GLR 167 and Adjeibi-Kojo v Bonsie (1957) 3 WALR 257. As I said in my opinion in the case of Kwame Gyewu v Nana Nuaben Asare II  dated 12 July 1990, SC,  both parties may be honest in their beliefs, but the fact still remains that the two histories are in conflict, and the demeanour of the witnesses is of little guide to the truth. When parties testify about events of this nature which had been handed down from generation it must be recognised, if I may borrow the language of the Privy Council in the Adjeibi-Kojo case, that in the course of transmission from generation to generation mistakes may occur without any dishonest motives whatever and witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. In the instant case the events took place more than three hundred years ago.

The issue, as can be gleaned from the evidence available touching the decree of Okomfo Anokye, is not so much the sacrosanctity of the decrees of Okomfo Anokye, which must be accepted willy-nilly according to Ashanti custom, as which of the two divergent versions of the decree was in fact made by Okomfo Anokye. The confusion was initiated by the judicial committee of the Ashanti Regional House of Chiefs, then speaking in support of the decision of the trial tribunal that nobody from the matrilineal family of Owura Miawani has occupied the Pankrono stool since the era of Miawani because Okomfo Anokye decreed that they should not. The House said:

“The question is not whether the decree was reasonable or not, but that Okomfo Anokye’s decree is sacrosanct in Ashanti custom, and the Tribunal was therefore right in upholding the decree.”

In my view the judicial committee of the National House of Chiefs appreciated the correct issue involved when it observed:

“It is clear that what is in dispute between the parties relates to the order which was made by Okomfo Anokye upon the sacrifice of Owura Miawani, ie was it an order that his descendants should never ascend the stool thereafter or that his successor should never after that be punished by decapitation. One looks like a deprivation, one was certainly a privilege.”

I must venture to say that this court can take judicial notice of the fact that Ashanti custom recognises that an animal (or any animate creature) for ritual sacrifice is first decapitated before any other sacrificial process takes place. So that if a decree was being made in respect of or in favour of a chief who has been so sacrificed to save a nation, it is most probable that his descendants would be rewarded by being excluded from decapitation The judicial committee continued in their opinion:

“We understand the culture of a people to include their custom, beliefs etc. The people of Ashanti believe that it is an honour to die for your nation. It was a privilege to be sacrificed in defence of your nation and so it was to be used in a ritual sacrifice to ensure victory for Asanteman in war. A person who died in such circumstances and his family were rewarded with privileges but never suffered disqualification, disability or degradation. We are aware of examples of this, and we think that was the more probable case.”

The judicial committee of the National House of Chiefs was therefore right to reject the invitation to find that because no member of his family has ascended the stool after the death of Owura Miawani, the irresistible inference was that the order debarred his descendants, and conferred no privilege on them. The committee rightly accepted the explanation of the respondents that no suitable member of their family was available  for enstoolment and that on an occasion when the stool was vacant the 5th defendant, then 27 years did, not contest because his family preferred a more experienced person to ascend the stool and litigate on their behalf. The committee held rightly that these matters should not adversely affect the case of the respondents because “it is not always the availability of a candidate which matters but also his suitability.” In actual fact the record shows, and that is the contention of the respondents, that at least two Pankrono chiefs hailed from the maternal family of the 5th defendant, namely, Nana Brobbey Kwakye and Nana Osei Kwadwo, and four from the 1st plaintiff’s paternal family, Yaw Konko (regent), Kwaku Oppong who abdicated, Kofi Kontoh who also abdicated and Kwakye Brobbey Asare II.

The plaintiffs claim that because these four chiefs hail from their paternal family, they were entitled to be enstooled on the Pankrono stool, while the respondents claim that they are royals the absence of their candidates on the stool for some time is of no moment because “once a royal always a royal.”

It should be noted that at custom, patrilineal stools in Ashanti do not normally have queenmothers, and where such queenmothers exist, their roles are limited and do not include nominating candidates to occupy the stool, as was clearly pointed out by DW3, Kyeame Antwi Buasiako, delegated by Otumfuo Opoku Ware II to represent him at the trial. This witness further stated that by Ashanti custom when a stool is defunct of royals or eligible royals, a non-royal may be requested to ascend the female stool as a caretaker until such time that eligible royals are available. This, in my view, strengthens the case of the respondents.

One other point that must be considered is whether the nomination of the 5th defendant, in the words of the judicial committee of the National House of Chiefs, by the 1st, 2nd, 3rd and 4th defendants was customary and lawful. It is urged that if he is a royal in the matrilineal sense, he should have been nominated by the queenmother, and not by the 1st, 2nd, 3rd and 4th defendants. What I have been able to find out is that it was the plaintiffs who claimed in paragraph 16 of their statement of claim that the 1st, 2nd, 3rd and 4th defendants conspired, connived and colluded together and without the knowledge and, or consent of the Obaapanin to nominate the 5th defendant to occupy the Pankrono stool. But this was denied by the defendants in paragraph 18 of their statement of defence. The plaintiffs led no evidence to establish their claim; it was rather the trial tribunal which was mindful of this and questioned the 5th defendant on it.

In reply, the 5th defendant said that he was nominated by the Dome dikro in his capacity as the head of family of Pankrono stool. He admitted that by custom it was the responsibility of the Queenmother to nominate a candidate, but in the event she had exhausted all her chances as custom demanded, and even failed to satisfy the family with her fourth choice, a magnanimous gesture of the family, and so it was incumbent upon the Abusuapanin, as custom required, to nominate a candidate, and so he nominated the 5th defendant. The plaintiffs did not question the 5th defendant on this issue. Evidence on the role of the 1st, 2nd, and 3rd defendants in the enstoolment of a chief was given by the third defence witness, Kyeame Antwi Buasiako. He said:

“During the enstoolment of Pankrono Chief, there arose exchanges of oath between the queenmother and the stool elders of Pankrono. The issue was who was right to nominate a candidate. In the end, Otumfuo made an order that the queenmother was to nominate a candidate with the support of the stool elders. Nana Nkwantakesehene was however ordered not to involve himself in the enstoolment process for the chief of Pankrono.” (Emphasis supplied.)

This evidence was not challenged by the plaintiffs and when answering questions put to him by the trial tribunal, the 5th defendant said that the elders of Pankrono stool family are the Gyasehene, Akwamuhene, Akyeamehene (ie 1st, 2nd and 3rd defendants herein) and Obaapanin. With this evidence on record I would say that even though I agree with the judicial committee of the National House of Chiefs that the 5th defendant’s nomination was lawful, the committee’s order must be straightened out to read that the said Kwaku Nyamekye, the 5th defendant is a royal to the Pankrono stool and that his nomination by the abusuapanin of Pankrono stool with the support of the stool elders, 1st, 2nd and 3rd defendants was customary and lawful, and I so hold.

I further agree with the committee that the sons and grandsons having ascended the stool without question for this long period of 300 years and more, it will not be equitable now to say that they are ineligible to the stool, and for that matter they are eligible to the stool as the descendants of Owura Miawani. For the above reasons I would also dismiss the appeal.

AMPIAH JSC. This is an appeal from the decision of the chieftaincy tribunal of the National House of Chiefs. On 22 August 1989, the plaintiffs-appellants (hereinafter referred to as the “plaintiffs”) who claim to be royals of the Pankrono stool, initiated proceedings in the judicial committee of the Kumasi traditional council against the defendants-respondents (also hereinafter referred to as the “defendants”) who also claim to be royals of the same stool aforesaid for:

“(1) A declaration that Kwaku Nyamekye (5th defendant) is not a royal to Pankrono Stool.

(2) A declaration that the purported nomination of Kweku Nyamekye by the 1st, 2nd, 3rd and 4th defendants for the Pankrono stool is uncustomary and unlawful.

(3) Perpetual injunction restraining the 1st, 2nd, 3rd and 4th defendants their servants, agents and or family members from attempting to nominate, elect and or install the 5th defendant as Pankrono Dikro.”

What had triggered off the action was apparently an oath-swearing incident in 1988, when the parties or their privies had claimed entitlement to succeeded to the Pankrono stool. The matter had come before a meeting of the Kumasi traditional council which had presumed an amicable settlement of the dispute. According to the Buokronhene, Nana Owusu Bempah, DW1:

“I invited Nana Nkosohene. At the meeting, all the parties agreed to settle the issues amicably out of court. I therefore withdrew the cases from the court. I successfully settled the issues amicably at home. Drinks were paid to confirm the settlement and the share of Otumfuo was accordingly paid to him. It was accepted that the stool elders and the Queenmother of Pankrono should go back and enstool a suitable candidate on the Pankrono stool. This ended all the court cases. I brought the terms of settlement to the notice of Otumfuo.” (Emphasis supplied.)

Unfortunately, the alleged amicable settlement left unresolved the main issue in the dispute namely, which of the parties was a royal to the Pankrono stool and therefore entitled to succeed to the stool. To a question whether the Pankrono stool is a royal or