ANNAN VRS. ANKOBEA II (E12/08/2022) [2024] GHAHC 480 (16 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE. IN THE HIGH COURT OF JUSTICE HELD AT CAPE COAST IN THE CENTRAL REGION ON TUESDAY, THE 16TH DAY OF JULY, 2024 BEFORE HIS LORDSHIP JUSTICE BERNARD BENTIL - HIGH COURT JUDGE. SUIT NO.: E12/08/2022 MR. RICHARD KOJO ANNAN - PLAINTIFF VRS 1. OBIRIFO AHUNAKO AHOR ANKOBEA II - DEFENDANTS 2. THE NATIONAL HOUSE OF CHIEFS JUDGMENT The Plaintiff by his Writ of Summons and Statement of Claim filed on 3rd November, 2021 claims against the Defendants the following reliefs: a. A declaration that the 1st Defendant made fraudulent declarations of facts in his Chieftaincy Declaration Form leading to the entry of his name into the register of chiefs as per the particulars of fraud in paragraph 13 of the accompanying Statement of Claim. b. A declaration that the entry of the name of the 1st Defendant in the National Register of Chiefs as Omanhen of Gomoa Akyempim Traditional Area by the 2nd Defendant was erroneous and therefore unlawful, null and void and of no legal effect whatsoever. c. An order to be directed at the 2nd Defendant to expunge/delete the name of the 1st Defendant from the register of chiefs and to publish the fact of the deletion of the 1st Defendant’s name from the National Register of Chiefs. 1 d. Perpetual injunction restraining the 1st Defendant from holding himself out as the gazetted paramount chief of the Gomoa Akyempim Traditional Area. e. An order of injunction restraining the 1st Defendant from conveying or presiding over any official meeting of the Gomoa Akyempim Traditional Council or performing any official administrative or traditional function as president of the Gomoa Akyempim Traditional Council. f. An order of award of costs incidental to the institution of this action. g. An order of grant of any other relief that this Honourable Court may deem fit to grant in the circumstances. From the Plaintiff’s Statement of Claim, he describes himself as a principal member of the Asona Royal Family of Gomoa of Buduatta and from the Mbrowah Gate of the royal family. The 1st Defendant is also the Omanhen of Gomoa Akyempim Traditional Area and a member of the Asona Royal Family. According to the Plaintiff, the 1st Defendant is currently the paramount chief (Omanhen) of Gomoa Akyempim Traditional Area. The Plaintiff’s case is that the 1st Defendant (who is from the Ankobea Gate of the royal family) was installed as the Paramount chief amid oppositions in the year 2001. The Plaintiff says the installation of the 1st Defendant was characterised by dissent from various principal members of the Royal Nsona family of Gomoa Buduatta. At the time of the 1st Defendant’s installation, members of two (2) of the royal gates namely, the Mbrowah gates which was represented by the Plaintiff and the Adadziwah gates petitioned one Nana Kow Attah who nominated the 1st Defendant for installation to withdraw his candidature and a copy of the said petition was delivered to the Akyempim Traditional Council. 2 Subsequently, the Council formed a three-man committee chaired by the late Justice A.B. K. Ampiah, who was then a Justice of the Supreme Court, and the Apesemakahen of the Akyempim Traditional Area to inquire into the petition. Whiles the petition was pending, the 1st Defendant was installed without being sent to the stool room at Gomoa Buduatta for him to be seated on the black stool as demanded by custom and this was because the 1st Defendant was not in possession of the black stool as required by custom. The Plaintiff states that after the installation of the 1st Defendant, he then commenced with the process of having his named entered in the register of chiefs. As part of the requirements for the entry of the name of the 1st Defendant into the register of chiefs, he filled a Chieftaincy Declaration (CD) Form where he indicated that he was in possession of the black stool. Additionally, the 1st Defendant declared that there was no case pending on his installation. The Plaintiff says that these declarations of the 1st Defendant in the CD form are misrepresentations and same are fraudulent calculated to facilitate the entry of the 1st Defendant’s name in the register of chiefs. As to the particulars of fraud listed in paragraph 13 of the Statement of Claim, the Plaintiff avers as follows: 1. At the time the 1st Defendant was installed, he was not in possession of the black stool. 2. At the time the 1st Defendant was installed, a committee had been formed by the Gomoa Akyempim Traditional Council chaired by the late Justice A.K.B. Ampiah to inquire into the petition against the installation. 3. The 1st Defendant declared in his Chieftaincy Declaration Form (CD Form) that he was in possession of the black stool at the time of his installation but he was not. 3 4. The 1st Defendant declared in his Chieftaincy Declaration Form (CD Form) that there was no dispute pending in relation to his installation but was not true 5. That the 1st Defendant knew and ought to have known that he above declarations are false. The Plaintiff further states that the fact that the 1st Defendant was not in possession of the stool is buttressed by the fact that he filed a suit against the Plaintiff at the Circuit Court, Kasoa, to recover the black stool claiming that the Plaintiff had stolen the stool away. According to the Plaintiff, by the fraudulent declarations highlighted above, the 2nd Defendant entered the name of the 1st Defendant in the register of chiefs. The 1st Defendant, on the other hand, refutes the claims of the Plaintiff. From the Amended Statement of Defence filed on 22nd February, 2022 the 1st Defendant states that the Plaintiff is an ordinary member of the family. He denies his installation as Paramount chief was amid oppositions. The 1st Defendant further states that there was no suit instituted against him before a court of competent jurisdiction to challenge his nomination, selection and confinement as Omanhen of Gomoa Akyempim traditional area by the Kingmaker of the Asona Royal family. The case of the 1st Defendant is that that after his installation, he was out doored to the Oman and made to swear the oath of allegiance to the divisional chiefs as their Paramount Chief and no challenge was made against him from any quarter. He maintains that his nomination, selection, confinement and installation as Omanhen of Gomoa Akyempim traditional area by the Kingmakers was smooth and glorious and devoid of any challenge. According to the 1st Defendant, custom demands that the overall head of the six (6) gates of the royal family is the person tasked to keep custody of the Black 4 Stool and in 2001, the overall head of the family was Ebusuapanyin Kow Attah from the 1st Defendant’s Ankobea Gate. The Black Stool was safely kept in the attic of the family house at Gomoa Buduatta which served as the stool room with other stools of the royal family. The 1st Defendant states that after his confinement, he was sent to the family house at Gomoa Buduatta blindfolded, as customs demands, by the duly appointed “Mbabayin” led by Nana Kwame Egyin II to be seated on the black stool three times. The 1st Defendant avers that family members of the royal family are not allowed to look at the Black Stool as same is taboo and as such, it is the “Mbabayin” who performs this ceremony at the direction of the Kingmakers. Contrary to the Plaintiff’s case, the 1st Defendant states that with the Black Stool at the family house at Gomoa Buduatta, he had access to it and therefore he was in possession of same. The Defendant states that the Black Stool is not an ordinary chattel to be in the physical possession of an individual wherever he goes. The Black Stool, he says, is always kept in the stool room. Regarding the 1st Defendant’s entries in the CD Form, he avers that the entries made thereon were true and not fraudulent. It is the case of the 1st Defendant that after his installation and outdooring, he has performed several annual stool purifications to the knowledge of the Plaintiff until some years ago when the Plaintiff relocated the Black Stool on the premise of sending it to the house of the new overall head of the family for safe custody as is the custom but diverted it to an unknown location. This resulted in the institution of an action by the Kingmakers and principal elders of the family against the Plaintiff to recover the Black Stool or compel him to indicate the whereabouts of the location of the Black Stool which matter is still pending. The 1st Defendant further maintains that the Plaintiff is estopped by conduct, laches, acquiescence and the Limitations Act, 1972 5 (N.R.C.D. 54) from instituting this instant suit on the ground that the Plaintiff, being a member of the royal family and being aware of the 1st Defendant’s installation and gazetting as Omanhen of Gomoa Akyempim traditional area, presented a crate of eggs to the 1st Defendant to congratulate him on his installation. A further ground relied on by the 1st Defendant is that the Plaintiff, being aware of the 1st Defendant’s installation and entry of his name in the National Registrar of Chiefs in or about 2001, neglected, ignored and failed to commence this action until the year 2021, about 20 years of the 1st Defendant’s reign as Omanhen and President of the Gomoa Akyempim Traditional Council. The Plaintiff reacted to the 1st Defendant’s defence by filing a reply on 21st February, 2021 wherein he joined issued with the 1st Defendant. The Plaintiff inter alia states that in 2001, Ebusuapanyin Kobina Fuah was the overall head and not Ebusuapanyin Kwaa Atta who was in possession of the stool together with the then Odikro, Nana Ahunako Bonsu III. The Plaintiff states that Ebusuapanyin Kobina Fuah and Nana Ahunako Bonsu III played no role in the installation of the 1st Defendant as they were petitioners against the installation of the 1st Defendant. Further, the Plaintiff avers that the Black Stool is not kept in a family house. There is always a designated stool house known to the principal members and some selected Mbabanyin who are allowed to have access together with the overall Ebusuapanyin and the Odikro. The Plaintiff maintains that the 1st Defendant was never taken to the stool house. According to the Plaintiff, the 1st Defendant was never seated on the Black Stool because he did not have custody or access to same. In response to the 1st Defendant’s claim of acquiescence, the Plaintiff states that it recently came to his notice that the 1st Defendant had made false 6 representations in his CD Forms and thus the Plaintiff is entitled to the relied indorsed on his Writ of Summons. Directions were taken on 2nd March, 2022 where this Court (differently constituted) adopted the following issues, and rightly so, as issues for trial: a. Whether or not at the time the 1st Defendant was installed as a chief, there was a pending litigation against his installation before the Akyempim Traditional Council; b. Whether or not the 1st Defendant was in possession of the Black Stool at the time of his installation; and c. Whether or not the Plaintiff is estopped by conduct and laches from bringing this action. Moving on to the issue of fraud as alleged by the Plaintiff, the Plaintiff states that the Defendant declared in his CD Form that he is in possession of the Black Stool. This allegation is clearly a cause affecting chieftaincy and therefore this Court is forbidden by the Chieftaincy Act, 2008 (Act 759) and section 57 of the Courts Act, 1993 (Act 459) from making a determination one way or the other in that regard. It is trite that a court has a duty to decide on the true nature of a claim, however camouflaged, disguised or dressed up. Even though the claim of the Plaintiff on this ground is bothered on fraud, in substance, it is a cause affecting chieftaincy to which this Court has not the jurisdiction to entertain. Section 76 of the Chieftaincy Act defines a cause affecting chieftaincy as follows: “Cause or matter affecting chieftaincy” means a cause, matter, question or dispute relating to any of the following: 7 (a) The nomination, election, selection or installation of a person as a chief or the claim of a person to be nominated, elected, selected or installed as a chief, (b) the deposition or abdication of a chief, (c) the right of a person to take part in the nomination, election, selection or installation of a person as a chief or in the deposition of a chief, (d) the recovery or delivery of stool property in connection with the nomination, election, selection, installation, deposition or abdication of a chief, and (e) the constitutional relations under customary law between chiefs; Whether or not the 1st Defendant was in possession of the Black Stool at the time of his installation goes to the propriety of his installation as a chief and thus a question affecting chieftaincy. Put differently, a determination one way or the other would settle once and for all a chieftaincy dispute (in this case, the question of the propriety of the installation of the 1st Defendant) unless overturned on appeal therefore, taking the character of a cause affecting chieftaincy. See REPUBLIC V HIGH COURT, KOFORIDUA; EX PARTE BEDIAKO II (1998-99) SCGLR 91. According to Brobbey JSC in his book “THE LAW OF CHIEFTAINCY IN GHANA” the learned jurist opined that where evidence on how the party was nominated, elected, selected, enstooled, deposed or abdicated has to be adduced before the issue raised in the case can be determined then the case is almost certainly a cause or matter affecting chieftaincy. The relevant portion of the Witness Statement of the Plaintiff in this regard is reproduced as follows: 8 24. I say emphatically that the SACRED RITUAL of seating a Chief on the Black Stool was not done in the case of the 1st Defendant and this is not a sacred ritual to be performed in the presence of the elders of the family. 25. In fact, Chief Nana Kwame Egyin who was a fugitive of justice in connection with a missing Clinic vehicle donated by the ex-while PNDC Administration could not have taken part in any ritual of the 1st Defendant’s installation. 26. The act of seating the chief on the black stool signifies his possession of the stool and in the case of the 1st Defendant, it never happened. As a matter of fact, he has not set foot on the compound of the stool house then and after his installation over twenty-one (21) years now. Also, the Plaintiff’s case is that the 1st Defendant made fraudulent representation in the CD Form and relying on these misrepresentations, the 2nd Defendant entered the name of the 1st Defendant into the Register of chiefs. This allegation is that the 1st Defendant declared in the CD Form that there was no case/dispute pending in relation to his installation. The Plaintiff contends that this declaration is false and that the 1st Defendant knew or ought to have known same to be false. The Plaintiff in a bid to prove his case tendered in evidence as EXHIBIT A, a Petition addressed to one Nana Kow Attah who nominated the 1st Defendant for installation to withdraw the 1st Defendant as a candidate for the stool. The Plaintiff stated in his Witness Statement that the Petition was by some members of two of the Royal Gates namely, the Mbrowah and Adadziwah Gates. The Plaintiff further stated that following the petition, a three-member committee was formed by the Traditional Council and chaired by the late Justice A. B. K. Ampiah to inquire into the petition. With this particular issue I may strive to avoid getting entangled in chieftaincy matters, but despite my best efforts, I fear 9 that some traces of involvement may still linger. I feel the need to provide justification for this court's decision to decline jurisdiction in this matter. However, I am cautious not to delve into chieftaincy-related issues, as doing so would be inappropriate. As the saying goes, “one should not go where he is not invited”. I must tread carefully and avoid discussing sensitive topics that could be perceived as overstepping boundaries. Therefore, it is wise for me to exercise caution and avoid getting involved altogether. I am not oblivious of the principle of law which states that the mere fact of the question of whether a person is a chief rearing its head in proceedings does not necessarily or automatically make it one affecting chieftaincy. See REPUBLIC V HIGH COURT, KOFORIDUA; EX PARTE BEDIAKO II (1998-99) SCGLR 91. For the purposes of understanding the scope of this principle of law, I wish to state in full what the Supreme Court, speaking through Sophia Akuffo JSC (as she then was), held in respect of this principle: To my mind, the mere fact that the question of whether or not a person is a chief rears its head during an application for certiorari before the High Court does not necessarily constitute the matter as one affecting chieftaincy for the purposes of section 57 of Courts Act, 1971, where such a question arises secondary to the determination of the fundamental question of whether or not an inferior body had the jurisdiction to do something, and does not give rise to the necessity to make a final determination of such status and whether or not such a person has been properly nominated, elected and installed 10 according to the applicable custom or usage. In order to constitute a matter as one affecting chieftaincy, it must, in my view, be the determination of which, unless overturned on appeal, would settle once and for all, a chieftaincy matter or dispute.” It is clear from the dictum above that the principle is only applicable where the question arises secondary to the determination of a fundamental question in a particular case. Therefore, for such a question to amount to a cause or matter affecting chieftaincy, it must (in substance) be the fundamental or germane issue for determination considering the pleadings in its entirety. In this instant case, this Court cannot make a final determination of the issues in this instant case without encroaching on the special jurisdiction of the Traditional Council, and the Judicial Committees of the Regional and National Houses of Chiefs. Consistent with my previous analysis regarding matters affecting chieftaincy, this specific issue similarly falls within that category, thereby rendering me unable to proceed with any further analysis. This Court is precluded from adjudicating on chieftaincy matters, which means I am not empowered to comment on the evidence presented. Any attempt to analyze or interpret the evidence would be a breach of this Court's limitations. I inherited this case from my predecessor and initially questioned whether it involved a chieftaincy matter. However, the evidence adduced has made it clear that this Court is precluded from adjudicating on this issue. The cumulative effect of all the evidence presented by both Parties collectively undermines the jurisdiction of this Court. 11 Therefore, I conclude that this Court lacks the jurisdiction to proceed. Notwithstanding, a trial was conducted. In the circumstances, I am obliged to decline making any pronouncements or decisions. Instead, I direct that the matter be assigned to the appropriate House of Chiefs, which is the proper forum for its determination and resolution. No order is made as to the payment of cost. (SGD) BERNARD BENTIL, J. [HIGH COURT JUDGE] COUNSEL DANIEL ARTHUR ESQ. FOR THE PLAINTIFF. PHILIP M. YOUNG ESQ. FOR THE 1ST DEFENDANT. 12