YIADOM AND OTHERS vs. KONADU AND OTHERS [1993]DLSC4981

Date	1993-07-28
Suit No.	[1992 – 1993] 3 G B R 1094 – 1101 C.A
Citation No.	[1993]DLSC4981

ARCHER CJ

FRANCOIS JSC

AMUA-SEKYI JSC

AIKINS JSC

AMPIAH JSC

OBENG MANU FOR THE APPELLANTS.

MMIEH FOR THE RESPONDENTS.

[1993]DLSC4981
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													<main id="main" class="content" style="min-height: 60rem" >YIADOM AND OTHERS<o:p></o:p>vs.<o:p></o:p>KONADU AND OTHERS<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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[1992 – 1993] 3 G B R 1094 – 1101
C.A&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 28 JULY 1993<o:p></o:p>

MMIEH
FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>ARCHER CJ. <o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>FRANCOIS JSC. <o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>AMUA-SEKYI JSC. <o:p></o:p>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.<o:p></o:p>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.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>AIKINS JSC. <o:p></o:p>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.<o:p></o:p>I
would like, however, to make a few observations. The case for each party was
built on oral tr</main>