The republic Vrs Central regional house of chiefs (J4/8/2008) [2009] GHASC 26 (14 January 2009);

IN THE SUPERIOR COURT OF JUDICATURE

 THE SUPREME COURT

ACCRA – GHANA

 

 

CORAM:      WOOD(MRS), PRESIDING

BROBBEY, J.S.C

ANSAH, J.S.C

DOTSE, J.S.C

BAFFOE-BONNIE, J.S.C

 

 

CIVIL APPEAL

NO J4/8/2008

14TH JANUARY, 2009

 

 

 

THE  REPUBLIC

 

VERSUS

 

CENTRAL  REGIONAL HOUSE OF CHIEFS

EX-PARTE: OPANYIN KOBINA AMOAH     APPLICANTS/RESPONDENTS/

 APPELLANTS

 

KOJO NKRUMAH: INTERESTED PARTY  (APPELLANT/RESPONDENT)

______________________________________________________

 

 

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:-

  1. 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

  1. Deposition charges have been instituted against the chief and
  2. 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