OBAAPANIN AMMA SAMANPA vs. KWAME AMPOFO [2003]DLSC6432

Date	2003-11-19
Suit No.	CIVIL APPEAL NO. 2/98
Citation No.	[2003]DLSC6432

MRS. BAMFORD-ADDO J.S.C. (PRESIDING) KPEGAH J.S.C.

ATUGUBA J.S.C.

MRS. WOOD J.S.C.

DR. TWUM J.S.C.

MR. DAVID BOAFO—FOR APPELLANT.

MR. LUTTERODT—FOR RESPONDENT.

[2003]DLSC6432
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													<main id="main" class="content" style="min-height: 60rem" >OBAAPANIN AMMA SAMANPA<o:p></o:p>(APPELLANT)<o:p></o:p>vs.<o:p></o:p>KWAME AMPOFO<o:p></o:p>(RESPONDENT)<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO. 2/98 &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: 19TH NOVEMBER, 2003<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR. DAVID BOAFO—FOR APPELLANT. <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR. LUTTERODT—FOR RESPONDENT. <o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MRS. BAMFORD-ADDO, J.S.C.
(PRESIDING) KPEGAH, J.S.C. ATUGUBA, J.S.C. MRS. WOOD, J.S.C. AND DR. TWUM,
J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGMENT<o:p></o:p>

</div>MRS.
BAMFORD-ADDO, J.S.C. <o:p></o:p>Sometime
in 1944 a dispute arose about which of two rival candidates should occupy the
vacant stool as the successor Krontihene namely the Aduana Clan family of the
Plaintiff/Appellant/Respondent represented by Kwame Hemang on one hand and the
Asona Clan family of the Defendant/Respondent/Appellant represented by F.B.
Amoah a.k.a Abrokwa 'Gyampim on the other hand. Since the rival candidates were
both presented to the Omanhene Nana Frimpong Manso II and is Stool Elders the
same day, the Aduana family led by Obaapanin Afua Donkor petitioned the
District Commissioner at Akim Oda. The petition resulted in the Provincal,
Commissioner setting up under section 25 of the Native Authority (colony)
Ordinance 1944 (No. 21 of 1944) an Enquiry constituted under Section 23 of the
same Ordinance. After due statutory Enquiry in 1947 the Akim Kotoku State
Council gave its decision in favour of the Defendant Asona candidate F.B. Amoah
a.k.a. Abrokwa Gyampim on 25th July, 1947 and made the following Order:— <o:p></o:p>"That
Amoah be recognized as the Krontihene, that the two houses (Asona and Aduana)
become eligible to the office of the Krontihene from the date hereof but that
for the time being the Aduana Stool be made subservient to the Asona Stool
which now holds the office". <o:p></o:p>The
very next day 26th July, 1947, the State Council suo motu varied its Order of
25th July, 1947 by deleting therefrom the words "that the houses (Asona
and Aduana) became eligible to the office of the Krontihene from that date
hereof' and substituted therefore the following decision namely: <o:p></o:p>"That
the Asona family only shall henceforth be eligible to the office on the
Krontihene. That the Aduana House formally Krontihene now owes allegiance to
the Omanhene as Aduanhene under the present Krontihene's house and further that
copies of this variation be served on all parties affected by this Order".
<o:p></o:p>The
Plaintiffs Aduana family appealed against the decision of the Akim Kotoku State
Council under section 26 of the ordinance of (No.21 of 1944) to the Acting
Provincial Commissioner, Eastern Province. The Commissioner in the exercise of
his limited appellate jurisdiction affirmed the State Council's variation or as
he called it, the review decision of the 26th July, 1947 subject however to one
reservation that a passage in the Original decision of 25th July, 1947 itself
be struck out, as the Plaintiffs Aduana Clan would never agree to it. <o:p></o:p>This
is the passage: <o:p></o:p>"but
for the time being the Aduana Stool be made subservient to the Asona which now
holds office". <o:p></o:p>The
Provincial Commissioner then forwarded the record of the enquiry by the State
Council and his findings thereon to the Governor pursuant to the Ordinance. The
Governor on the advice of the Chief Commissioner affirmed the findings of the
Provincial Commissioner. But the Chief Commissioner advised against the
palliative deletion recommended by the Provincial Commissioner and instead
recommended that the Governor should reply that he was not going to intervene
or make any deletion but would rather uphold the full decision of the State
Council. The Plaintiffs' appeal having been rejected by the Governor, the
Defendant F.B. Amoah of the Asona Clan became the Krontihene of Akim Kotoku
from the 26th July, 1947 and was succeeded by others of the Asona Clan family
without complaint until 1986. <o:p></o:p>In
March 1986 about 40 years later Obaapanin Ama Samanpa as the then Head of the
Aduana Clan in Akim Oda sued out an Originating Summons seeking from the High
Court Koforidua a declaration to the effect that, the review decision of Akim
Kotoku State Council on 26th July, 1947 was a nullity since it was made
contrary to the principles of natural justice. The reason being that according
to Plaintiff the Aduana Clan was not given any opportunity to show cause
against the State Council's proposed review of its original decision Defendant
made by the said Council on 26th July, 1947. The Asona Clan the defendant now
present appellant entered an appearance and filed a motion under Order 25 rule
4 of LN (140A) for striking out the Originating Summons in limine. <o:p></o:p>Williams
J after hearing arguments, on 15th October, 1987 delivered his Ruling on the
motion and struck out the summons in limine. He upheld the Defendants
preliminary objection for the following reasons namely that:— <o:p></o:p>(a)
The action could not be properly brought by originating summons s</main>