OPANIN KWABENA AGYEI vs. OPANIN KWADWO WIREDU [2006]DLSC2429

Date	2006-02-15
Suit No.	CHIEFTAINCY APPEAL NO. J2/2/2005
Citation No.	[2006]DLSC2429

MISS AKUFFO (MS) J.S.C. (PRESIDING)

DR. TWUM J.S.C

DR. DATE-BAH J.S.C

PROF. OCRAN J.S.C

ANINAKWA J.S.C.

MR. J. K. KODUA FOR APPELLANTS.

MR. ISAAC OKYERE DARKO FOR RESPONDENTS.

[2006]DLSC2429
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													<main id="main" class="content" style="min-height: 60rem" >OPANIN KWABENA AGYEI<o:p></o:p>vs.<o:p></o:p>OPANIN KWADWO WIREDU<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CHIEFTAINCY
APPEAL NO. J2/2/2005<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">

DATE: 15TH FEBRUARY, 2006<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
J. K. KODUA FOR APPELLANTS.<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">

MR.
ISAAC OKYERE DARKO FOR RESPONDENTS.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

MISS
AKUFFO (MS), J.S.C. (PRESIDING), DR. TWUM, J.S.C., DR. DATE-BAH, J.S.C., PROF.
OCRAN, J.S.C., ANINAKWA, J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>J U D G M E N T<o:p></o:p>PROF. T.M. OCRAN, J.S.C:-<o:p></o:p>This
is an appeal from the unanimous decision of Judicial Committee of the National
House of Chief, Kumasi, delivered on 8th July 2004.<o:p></o:p>THE FACTS AND ISSUES<o:p></o:p>The
facts of the case, as laid out in the decision of the National House and the
Statements of Case submitted by both sides to the controversy, may be summed up
as follows.<o:p></o:p>As
a result of a war between Juaben in Ashanti, and the rest of Ashanti, in or
about 1875, the Juabenhene and some of his people migrated to the present
Eastern Region, settled in the Koforidua area and created New Juaben. The land
acquired by Nana Asafo Agyei, the Omanhene who led his people to New Juaben,
included Suhyen, where&nbsp;&nbsp; some of his
subjects had settled.<o:p></o:p>In
or around 1915, a successor Omanhene of New Juaben, Nana Kwaku Boateng I, while
on a tour of Suhyen, appointed an Odikro for the town, purportedly because of
its strategic importance as the boundary between the Stool lands of New Juaben
and Akyem. This first Odikro, Nana Kwaku Amofa Diatuo, belonged to the Asona
Clan. He was succeeded by his maternal brother, Nana Ankam, who, with the
permission of the New Juaben Omanhene, blackened the Stool of his predecessor.
Thus a black Stool for the ruling family of Suhyen came into being.<o:p></o:p>The
position of Odikro continued to be held by the Asona family of Nana Diatuo,
until after the reign of Nana Obiri Nyebi, when members of other clans
including the Ekuona, Aduana and Agona, began to sit on the Stool.&nbsp; Thus Nana Frimpong Manso I, an Ekuona,
occupied the Stool in 1954. The Respondents insist that anytime someone outside
the Asona Clan sat on the Stool, he did so with the prior consent or approval
of the Asona ruling family. During the reign of Frimpong Manso I, the Omanhene
of New Juaben Nana Akrasi elevated the Suhyen Odikro Stool into an Mponua or
Divisional Stool. The occupant of the new elevated Stool then created the queen
mother Stool, whose first occupant was also an Ekuona. Nana Frimpong Manso I
was followed by Frimpong Manso II, also an Ekuona. The dispute that has found
its way to this Court arose after the latter was destooled and the Elders
embarked on a search for a successor. <o:p></o:p>The
Plaintiffs/Respondents claimed that they remained the rightful owners of the
Stool, which had been created by their Asona ancestors with an Odikro status
and later elevated to a divisional status. This elevation, in their view, made
no difference to their ownership of the Stool. The Defendants/Appellants, on
the other hand, contended that with the elevation of the Suhyen Odikro Stool to
an Mponua status in 1954 a new Stool had come into being, created for the
Ekuona clan as a gift from New Juaben Omanhene Nana Akrasi to the Ekuona
matrilineal family of Nana Frimpong Manso I. They contended that even if the
Suhyen Stool was a continuation of the original Stool created around 1915 by
Nana Kwaku Boateng I, the occupancy of the Stool by the Ekuona clan for over
50years since the reign of Nana Frimpong Manso I meant that the Asona clan had
acquiesced in the new status of the Ekuona clan and were estopped by conduct in
laying claim to the Stool. The Plaintiffs/ Respondents lost the case in the
Judicial Committee of the New Juaben Traditional Council but won an appeal to
the Judicial Committee of the Eastern Region House of Chief by a unanimous
decision. The Defendant/Appellants then appealed further to the Judicial
Committee of the National House of Chiefs, which dismissed their appeal with
costs, on 8th July 2004. The Defendants/Appellants of the Ekuona clan remain
unhappy with the positions taken by the Eastern Region and National House of
Chiefs, and have come before us on further appeal.<o:p></o:p>The
grounds of appeal, as spelt out in the Notice of Appeal dated 17th September
2004, may be summarized as follows:-<o:p></o:p>a)&nbsp;&nbsp;
The Judgment of the Judicial Committee of the National Chiefs is against
the weight of evidence adduced.<o:p></o:p>&nbsp;<o:p></o:p>b) The Judicial Committee erred in law
when it held that&nbsp; Plaintiffs/Respondents
were not conclusively estopped by the Evidence Decree (NRCD 323) SS. 24 and 26
(and decided cases thereon) from challenging the exclusive right of the
Defendants/Appellants to the male and female Stools of Suhyen.<o:p></o:p>c) The Judicial Committee erred in law
by failing to consider decided cases on the creation of gifts as it relates to
the purported gift of the Suhyen Mponua Stool to the Ekuona matrilineal family
by the New Juaben Omanhene.<o:p></o:p>The
first ground of appeal, namely, that the judgment of the National House of
Chiefs is against the weight of evidence, follows the unhelpful practice of
throwing in an omnibus ground of appeal as a backup, even when there is very
little difference in the evidence or the facts as submitted by parties on both
sides to a suit. <o:p></o:p>My
Lords, if we look closely at the Statement of Case of the Defendants/Appellants
filed on 6th May 2005, and the Statement of the Plaintiffs/Respondents filed on
16th June, 2005 there is convergence of evidence on the core facts upon which
</main>