BARNIE AND ANOTHER vs. MANU [1994]DLSC5288

Date	1994-01-25
Suit No.	[1994 - 95] 2 G B R 933 – 936 SC
Citation No.	[1994]DLSC5288

ADADE JSC

ABBAN JSC

AMUA-SEKYI JSC

WIREDU JSC

BAMFORD-ADDO JSC

HAYFRON-BENJAMIN JSC

AMPIAH JSC

T TOTOE FOR THE APPELLANT.

DR SETH TWUM FOR THE RESPONDENT.

[1994]DLSC5288
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													<main id="main" class="content" style="min-height: 60rem" >BARNIE AND ANOTHER<o:p></o:p>vs.<o:p></o:p>MANU<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;
padding:0in 0in 1.0pt 0in">

[1994 - 95] 2 G B R 933 – 936&nbsp; SC&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 25 JANUARY 1994<o:p></o:p>

DR
SETH TWUM FOR THE RESPONDENT.<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;
padding:0in 0in 1.0pt 0in">

ADADE
JSC, ABBAN JSC, AMUA-SEKYI JSC, WIREDU JSC, BAMFORD-ADDO JSC, HAYFRON-BENJAMIN
JSC, AMPIAH JSC<o:p></o:p>

</div>ADADE JSC. <o:p></o:p>This
is an appeal from a decision of the National House of Chiefs dated 30 May 1991.
The action was commenced in the Kumasi Traditional Council by an oath sworn by
the 1st plaintiff for and on behalf of the 2nd plaintiff to the effect that:<o:p></o:p>“... by virtue of 2nd plaintiff’s
marriage to the Asantehene, she is the legitimate Ananta Obaapanin, and
therefore the Ananta Gyasehene cannot nominate a candidate to occupy the vacant
Ananta stool without consulting her”.<o:p></o:p>The
defendant countered this claim with the assertion that “the 2nd plaintiff is
just a stool wife to the Asantehene but not the Ananta Obaapanin.” The
defendant further contended that the Ananta Obaapanin stool was vacant.<o:p></o:p>After
hearing evidence the judicial committee of the Kumasi Traditional Council found
in favour of the defendant, on the main ground that:<o:p></o:p>“The 2nd plaintiff has sworn a
reckless oath and should be found liable since she knows that there had been a
pending oath case on the Ananta Obaapanin issue at Manhyia but went forward to
swear the oath.”<o:p></o:p>The
tribunal said that the 2nd plaintiff “should have joined the oath suit at the
palace as co-defendant to protect her interest. Not having joined the oath
suit, the tribunal concluded that it was “improper for plaintiff to style
herself as Ananta Obaapanin.” Judgment was therefore given against the
plaintiffs in favour of the defendant. The plaintiffs appealed to the Ashanti Regional
House of Chiefs, where they won. A further appeal to the National House of
Chiefs restored the decision of the trial tribunal.<o:p></o:p>Throughout
all this we have observed that none of the tribunals made adequate findings of
fact in respect of the real mattes in issue. It is not advisable that we detail
these in this ruling, having taken a decision that the case must go back. A
detailed analysis of the issues thrown up and the nature of evidence required
to establish these are bound to have prejudicial effect at the retrial.<o:p></o:p>One
thing, however, is certain, namely that prior to the commencement of these
proceedings, there had in fact been pending at the Manhyia palace another oath
case on the same Obaapanin stool of Ananta. It would seem from the judgment of the
Kumasi Traditional Council that the first oath case was the result of an oath
sworn by Anantahene Baffour Danquah (now deceased) against one Bediako Kontor,
occupant of Esaase Eboomu stool, for attempting to install the present
defendant, Afua Manu of Esaase, as the Ananta Obaapanin. The oath case, as
appears from the record, is pending at the palace, and not before the judicial
committee of the Kumasi Traditional Council. It is clear to us that in order
that justice may be done to the parties, the oath case must be moved to the
Kumasi Traditional Council, consolidated with the present one, and heard along
with it.<o:p></o:p>We
order therefore that within two months of the date of this judgment the
successor to the late Anantahene Baffour Danquah (or such other person as the
Ananta stool may nominate) institute an action before the Kumasi Traditional
Council in terms of the oath case now pending at the palace against Nana
Bediako Kontor of the Esaase Eboomu stool and Madam Afua Manu, as defendants.
That action, when instituted, is to be consolidated with the present one and
tried together. The oath case before the palace should then abate. If the
Ananta stool fails to take out the writ ordered herein within the time
stipulated, the Kumasi Traditional Council is to proceed to hear the present
action, without reference to the oath case pending at the palace. Any of the
parties herein, or to the oath case, is at liberty hereafter to join such other
person(s) as he may deem fit, or to discontinue his action or defence, or amend
same as he may consider necessary.<o:p></o:p>It
is a pity that by the rules operating in the traditional councils, legal
practitioners are not permitted to appear and practice before the judicial
committees of these councils. Parties and the committees themselves are
deprived of legal assistance in the handling of cases before them. The result
is that cases are often not properly built up at that level, making it
extremely difficult for an appellate tribunal such as the Supreme Court, to be
of much assistance at a later stage. This case provides an excellent example.
We have no doubt that if lawyers had appeared in it from the beginning, the
issues would have been better identified and the relevant evidence marshalled
and led in proof of the matters in issue. Besides, the judicial committee
itself would have been the better enabled to know what issues were at stake,
and what findings of fact were required to be made. As it turned out, all the
parties as well as the committee were cast adrift in an open sea, with no
compasses to guide them.<o:p></o:p>We
wish to recommend that with the experience of hind sight, the practice
obtaining in the regional and national houses of chiefs be extended to the
traditional councils, and lawyers permitted to appear there also.<o:p></o:p>Given
the record and the three judgments therein, we have no option but to allow the
appeal, and remit the case to the judicial committee of the Kumasi Traditional
Council to be heard afresh, jointly with the oath case pending at the Manhyia
palace, as directed in this judgment.<o:p></o:p>The
costs of this appeal, as well as those in the traditional council, the regional
house and national house of chiefs to be costs in the cause, and abide the
result of the retrial. Any costs paid by either party are to be refunded.<o:p></o:p>