Chieftaincy Installation and Power to Destool a Chief
Chieftaincy Cause or - matter affecting chieftaincy – Jurisdiction – Dispute concerning purported intention to install a divisional chief of a traditional area – Effect of mere naming of party to the petition – Installation of a chief – Formal enstoolment of chief – Various forms of – Destoolment – When proper – Grounds for deposition of a person as chief specified in Act 759, s40(3).
SUPREME COURT, ACCRA (Civil Appeal J4/8/2008)
Published Thursday, November 19, 2009
Story: Dr. S. Y. Bismpong-Buta, FGA, Barrister at Law.
IN RE ADONTEN DIVISIONAL STOOL OF TWIFO HEMAN TRADITIONAL AREA; REPUBLIC v CENTRAL REGIONAL HOUSE OF CHIEFS; EX PARTE AMOA SASRAKU II & OTHERS (NKRUMAH & OTHERS INTERESTED PARTIES)
BEFORE THEIR LORDSHIPS: GEORGINA WOOD CJ. BROBBEY, ANSAH, DOTSE AND BAFFOE-BONNIE JJSC
Judgment on January 14, 2009
The disputes raised in the petition bought before the judicial Committee of the Central Regional House of Chiefs concerned the purported intention of the responds to the petition to install the Adontenhene for Twifo Heman Traditional Area.
Since the Adonten Stool was a divisional stool, it was the Judicial Committee of the Twifo Heman Traditional Council which had jurisdiction to hear the petition.
The Supreme Court unanimously so held in allowing and setting aside the majority decision for the Court of Appeal, which had itself set aside the decision of the High Court, Cape Coast, which had held that the Judicial Council of the Twifo Heman Traditional Council, and not the Central Regional House of Chiefs, and jurisdiction to determine the chieftaincy dispute involving the Adonten stool of the death of the occupant of the Adonten Stool, a divisional stool of the Twifo Heman Traditional Area.
The relevant facts of the case were as follows. After the death of the occupant of the Adonten Stool, a divisional stool of the Twifo Heman Traditional Area, the Royal Aberadzi Family, alleged that the obaapanyin and head of the royal family, were acting on the instructions of the Paramount Chief of the Twifo Heman Traditional Area, to impose on the stool, as the next Adontenhene, a person who did not hail from the right lineage of the Adonten Stool.
The stool elders therefore, filed a petition before the judicial Committee of the Central Regional House of Chiefs for two declaratory reliefs: (a) declaration that the respondents to install one Mensah Marfo as the next Adontenhene should be someone of by the Aberazi Family of Twifo Heman.
The petitioners also sought an order of perpetual injunction to restrain the first respondent, the Paramount Chief of the Twifo Heman Traditional Area, from participating in any ceremony relating to the installation or swearing-in of a non-royal as the next Adontehene.
Consequently, the first and second respondents to the petition, Nana Amoa Sasraku II, the Paramount Chief of the Twifo Heman Traditional Area, and the obaapanyin of the royal family respectively, filed an application in the High Court, Cape Coast to restrain the Central Regional House of Chiefs from hearing the petition on the grounds of lack of jurisdiction, contending that since the cause or matter related to the Adonte stool, a divisional stool of the paramount stool, the proper forum to hear the petition was the Twifo Heman Traditional Council.
However, the same respondents also argued that since disputes involving a paramount chief were triable in regional houses of chief that part of the dispute involving him, should be tried before the Judicial committee of the Central Regional House of Chiefs.
The High Court upheld the application to restrain the Central Regional House of Chiefs to hear the petition because the traditional council, and not the Central Regional House of Chiefs, had the jurisdiction to determine the dispute involving the Adonten Stool, a divisional stool of the Twifo Heman Traditional Area.
The decision of the High Court was on appeal, reversed by a two to one majority decision of the Court of Appeal, which held that the proper forum to hear the petition was the Central Regional House of Chiefs. The appellants (the applicants in the application brought before the High Court) therefore brought the instant appeal to the Supreme Court from the majority decision of the Court of Appeal.
On these facts, the Supreme Court further held that the mere naming of the first respondent, the paramount chief, as a party to the petition, would not be conclusive in determining the nature of the case for the purpose of the case for the purpose of deciding on the jurisdiction of the judicial committee to hear or try the chieftaincy dispute raised in the petition.
To determine the nature of a dispute for the purpose of a dispute for the purpose of deciding which judicial committee had jurisdiction to try or hear it, one had to consider the parties, the nature of the relief claimed, and the facts adduced in support of the claim. It could be misleading to rely only on the reliefs claimed or the names appearing as parties.
The facts relied upon had to be given due consideration as well. It was also incorrect to describe the swearing-in ceremony of a divisional chief by a paramount chief warranting the determination of the dispute in the Central Regional House of Chiefs.
The peripheral or perfunctory ceremony which was to be conducted by the paramount chief could not justify describing the issues in the petition either in whole or in part as a paramount stool dispute, which should be sent to the Central Regional House of Chiefs for determination.
Consequently, the majority of the Court of Appeal had erred in deciding, contrary to the decision of the High Court, that the dispute should be determined by the Central Regional House of Chiefs.
The Supreme Court further held that installation was the formal enstoolment of the chief-elect onto the stool, taking various forms; and the ceremony deferred from one tribe or clan to the other.
In the Akan areas of which the Twifo Heman Traditional Area was one, installation took the form of the chief-elect swearing the oath of allegiance to his overlord or paramount chief in turn, would swear to him, after which he would be lowered thrice on the stool
The most significant feature of installation was that it would climax the enstoolment ceremony. It did not begin the enstoolment; and it did not take place in the middle of the enstoolment. In essence, the individual would be nominated first, and then he would be elected or selected as the chief.
Each process had its own requirements and preconditions which must be satisfied. The thrust of all the two processes of nomination and election or selection was that it was after the individual had gone through them that he would be made a chief by the stool elders and kingmakers who are members of the royal family.
It was further held that at a customary law, the individual to be sworn did not appear before the paramount chief in his capacity as a contestant applying to be made a chief. He would appear before the paramount chief after he had gone through the three main processes of being made a chief.
Simply stated, by the time he appeared before him, he was already a chief. The ex post facto function of having to be sworn in by the paramount chief would not be enough to transform the swearing in ceremony before the chief into a function of the paramount chief who was to perform the swearing in ceremony.
There was the temptation to argue that without the swearing in by the paramount chief, the intended installation of the adontenhene would be invalid. That argument would imply that even after the chief had been nominated, elected or selected and installed by the stool elders and kingmakers of his family, his family, his status as a chief could be invalidated by the paramount chief. That argument would be rejected as incorrect.
Finally, the Supreme Court held that under the new Chieftaincy Act, 2008 (Act 759), section 40(1) (which has replaced the old Chieftaincy Act, 1971 (Act 370), section 33), a person was not entitled to institute proceedings for the deposition of a chief unless that person was entitled to do so under the custom of the area concerned.
Thus, under section 40(3) of Act 759, no one could be destooled as a chief unless the law as contained in section 40(3) of Act 759 was complied with, namely, that except where the deposition was accepted without challenge, and subject to an appeal, a chief could not be deposed unless (i) deposition charges had been instituted against the chief, and (ii) the appropriate customary practices of deposition in the area concerned had been complied with. Thus, merely refusing to allow a divisional chief to swear before a paramount chief, could not constitute lawful deposition or destoolment of a chief.
Daily Graphic, Page: 7 Thursday, November 19, 2009