DJANGMAH VRS DORKUTSO & ANOR (J2/01/2024) [2024] GHASC 46 (30 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA, AD – 2024

Coram

SACKEY TORKORNOO, CJ (PRESIDING) OWUSU, JSC L-JOHNSON JSC MENSA-BONSU, JSC ACKAH-YENSU, JSC

Chieftaincy Appeal

NO: J2/01/2024

30TH OCTOBER, 2024

NUMO OSROAGBO DJANGMAH … PETITIONER/ (SUBT. BY NUMO SOBUABEH APPELLANT/ OSROAGBO) RESPONDENT

Head and Lawful Representative

OF THE ROYAL FAMILY OF LOWEH ADAINYA

VRS

1. NUMO HUAGO DORKUTSO

Head of Loweh Kpone Family

H/NO. A/45, OLD NINGO RESPONDENTS/

2. NUMO TETTEH HUAGO … RESPONDENTS/ (SUBST. BY KWEI NORTEY ADDO APPELLANTS HUAGO) H/NO. A/45, OLD NINGO

Judgment

ACKAH-YENSU, JSC

Introduction

It is almost two (2) decades since the present conflict surrounding the paramountcy of the Great Ningo Traditional Area was submitted for judicial intervention. This, however, is not the first-time issues surrounding the stool have emerged for determination. The cases of Huago & Others v Djangmah II & Others [1997-98] 1 GLR 300; Huago IV & Others v Djangmah II & Others (1998-99) SCGLR 255 attest to the longevity of the Ningo Paramount Stool conflicts.

The principal interrogatory which confronted the Judicial Committee of the Greater Accra Regional House of Chiefs (JCGARHC), through to the Judicial Committee of the National House of Chiefs (JCNHC), and now, the Supreme Court, is; which family should the Mantse of Ningo hails from?

For ease of reference, the Petitioner/Appellant/Respondent shall be referred to as the “Respondent”, whereas the Respondents/ Respondents/Appellants shall also be referred to as the “Appellants”.

For the Appellants, there are two ruling houses from which the occupant of the Ningo Stool must belong. They are, the Royal Adainya and Loweh Kpono families, whose succession is by rotation. The Respondent contends however, that “the Loweh Adainya Royal Family of Ningo is the sole royal family from which the Mantse of Ningo should hail, and

that it is the said Loweh Adainya family which has the sole prerogative of supplying the occupant of the Ningo Stool”.

In a cause or matter affecting chieftaincy, the issue of the appropriate family to enstool a chief is no mean an issue, having found constitutional impetus in defining who a chief is. Article 277 of the Constitution, 1992 defines a chief as a person who, “hailing from the appropriate family and lineage, has been validly nominated, elected or selected and enstooled, enskinned or installed as a chief or queen mother in accordance with the relevant customary law and usage.” A person thus, cannot be validated as a chief under our customary constitutional settings, unless that person is from the appropriate royal family.

Not uncommonly, the Judicial Committee of the relevant Traditional Council, or Houses of Chiefs, and even this apex court, are confronted with situations to determine among competing families, who has the prerogative to nominate or select a person to be enthroned a chief of a traditional society in the Republic. In resolving such impasse, which is often shrouded in a mire of conflicting traditional and ancestral facts, the application of the law to the facts and evidence must involve a careful evaluation of all the material on record, and applying same to the evidence of recent memory.

There is a tall list of judicial guidance on the proper approach to the evaluation of conflicting traditional evidence. The test has always been, and continues to be, that the same should be resolved by examining the conflict in the light of such recent facts as established by the evidence adduced by the parties. The Privy Council settled the principle in 1957 in the case of Adjeibi-Kojo v Bonsie [1957] 3 WALR 257, per Lord Denning as follows: “[T]he dispute was all as to the traditional history which had been handed down by word of mouth from their forefathers. In this regard it must be recognized that, in the course of

transmission from generation to generation, mistakes may occur without dishonest motives whatsoever…The most satisfactory method of testing traditional history is by examining it in the light of such more recent facts as can be established by evidence in order to establish which of two conflicting statements of tradition is more probably correct.”

The above principle has been accepted and applied in various decisions requiring the evaluation of conflicting traditional evidence in our legal system. See such authorities like: Ago Sai & Others v Kpobi Tetteh Tsru III [2010] SCGLR 763; Hilodjie & Anor. v George [2005-2006] SCGLR 974; In Re Krobo Stool (No. 1); Nyamekye (No. 1) v Opoku [2000] SCGLR 347; In Re Taahyen & Asaago Stools; Kumanin II v Anin [1998 -99] SCGLR 399; In Re Kodie Stool; Adowaa V Osei [1998-99] SCGLR 23; Achoro v Akanfela [1996-97] SCGLR 209; Adjei v Acquah [1991] 1 GLR 13

This test remains useful in the present action.

Background

On 16th November 2005, the Respondent petitioned the Judicial Committee of the Greater Accra Regional House of Chiefs for the following reliefs against the Appellants:

1. A declaration that the Plaintiff family is the only Royal family with the lawful responsibility to nominate, elect, enstool or install a paramount chief for the Great Ningo Traditional Area.

2. Perpetual Injunction to retrain the Defendants, their servants, agents and all those claiming through them from further interference with all matters relating to the

nomination, election, enstoolment or installation of a paramount chief for Great Ningo Traditional Area.

3. Perpetual injunction restraining the Defendants, their servants, agents and all those claiming through them from holding themselves out as the paramount chief of Great Ningo Traditional Area.

4. General damages.

From the record, the present Respondent substituted the original Petitioner in the person of Numo Osroagbo Djangmah. The original 1st Respondent was sued as the Head of the Loweh Kpono Family of Ningo. The original 2 nd Respondent is an elder/principal member of the same family. The original 2nd Respondent was substituted by Kwei Nortey Addo Huago, the 2nd Appellant herein.

THE CASE OF THE RESPONDENT The Respondent’s case as per the Petition is that, by the Great Ningo customary law and practice, the Loweh Adainya Royal Family of Ningo is the only family with the lawful authority to nominate, elect, enstool and install a paramount chief for the Great Ningo Traditional Area whenever the position is vacant. The Respondent contends, that the authority of the Loweh Adainya family of Great Ningo as the only family with the responsibility to install a paramount chief for the Ningo Traditional Area is rooted in antiquity.

According to the Respondent, the Loweh Adainya family was the only royal family recognized by the colonial administration as the family with the responsibility to install persons to occupy the paramount stool, as documented in a book entitled “ GREAT

NINGO STOOL AFFAIRS”. Respondent averred, that the Appellants had threatened to install a new paramount chief in place of the former who hailed from the Respondent’s family and who died recently.

THE CASE OF THE APPELLANTS In their defence, the Appellants challenged the contention of the Respondent that, it was only Respondent’s Loweh Adainya Family that could nominate and appoint the occupant of the Ningo Stool. The Appellants averred that, the Supreme Court had pronounced, that there were two ruling houses in respect of the Paramount Stool in the Great Ningo Traditional Area, being the Royal Adainya and Lower Kpono families. According to the Appellants, succession to the stool, per the authorities, was by rotation. The Appellants further averred, that the Petition was frivolous and ought to be dismissed.

Application to Dismiss the Petition

Upon the settlement of pleadings, the Appellants applied to the JCGARHC to strike out the petition on grounds of res judicata. The thrust of the application was that, ascension to the Ningo Stool was by rotation between the Respondent’s Loweh Adainya Family and the Appellants’ Loweh Kpono Family. This contention, according to the Appellants, had been judicially conclusively determined. The application was upheld by the Judicial Committee of the GARHC.

The Judicial Committee of GARHC in upholding the application reasoned as follows: “Next we now look at what was the reliefs brought in the previous action by petitioner’s predecessor in office in the 1985 action and indeed what was the judgment of the Judicial Committee of this House in 1990.

Even though it appears that, that action was not particularly about the declaration being sought now, it is clear that this relief forms the basis for that litigation. That action was about whether an abdication was valid, but was fought on the basis that the petitioner then Nene Osroagbo Djangmah II and other current petitioner’s predecessor in office was chief on the ticket of Lower Adainya Royal Family and that of Lower Kpono family ascended the stool in turns that is, by rotation and that since he had not validly abdicated, it was only after his death that the next house would have validly abdicated, it was only after his death that the next house would have the opportunity to install their candidate. The Judicial Committee found as a fact that indeed there are two (2) ruling houses in Ningo who take turns to install paramount Chief. Remember this is basically a fact-finding committee. The decisions even though was not on the main legal issue for determination was and is and shall remain the decision of the Judicial Committee of this House until it is specifically set aside or stuck out or quashed. What the petitioner in this case is asking us to do now is to set aside this finding of fact and replace it with our own view.

To our mind, this is re-litigating a matter that was brought to a close in 1990 as far as the Judicial Committee is concern. It may be set aside on appeal or quashed by a superior court, but definitely it cannot be re heard by this Judicial Committee.

We shall therefore strike out the suit based on the Legal maxim of estoppel per r es judicatam”.

The Respondent successfully appealed against the decision to the JCNHC. The JCNHC resolved contra, that the issue of rotation, had not been conclusively determined on the merits. The House reasoned that:

“In the instant case, it is clear from the record made available to us that rotation was not an issue before the trial Judicial Committee and therefore no evidence was specifically adduced on the matter. Consequently, the ruling of the Judicial Committee of the Greater Accra Regional House of Chiefs which struck out the petition on grounds of estoppel per rem judicatam is hereby set aside as unmeritorious”.

The JCNHC then remitted the suit to the JCGARHC to determine same on its merits.

DECISION ON THE MERITS BY THE JUDICIAL COMMITTEE OF THE GREATER

Accra Regional House of Chiefs

On 19th November 2018, the JCGARHC delivered its judgment. In its judgment, the Committee rejected the case of the Appellants, rather holding that by history, custom, and tradition, the Great Ningo Paramount Stool is occupied by male descendants of the Royal Family of Loweh Adainya. The Committee concluded in their judgment that “besides the Loweh Adainya Royal Family of Great Ningo, there is no other family in Ningo clothed with Authority to nominate, elect and install a paramount Chief for the Traditional Area.”

The Committee further found that, ascension to the office of the Ningo Mantse rotated between two gates within the Loweh Adainya Family. THE DECISION OF THE JUDICIAL COMMITTEE OF THE NATIONAL HOUSE OF CHIEFS Dissatisfied with the decision of the JCGARHC, both parties appealed against the same to the JCNHC which delivered its judgment on the 15th of October 2020 in favour of the Respondent herein. The Respondent’s challenge was only in respect of the recognition of some two gates within the Loweh Adainya Family as per the JCGARHC’s decision.

In its judgment, the JCNHC upheld the Respondent’s appeal and dismissed the crossappeal of the Appellants. The JCNHC reasoned that, there were no two gates within the Loweh Adainya Family for purposes of succession to the Stool. And in any event, the dispute between the parties involves the determination of which of the two competing families the chief must be a member of. The JCNHC however upheld the holding that it is only the Loweh Adainya Family that was entitled to enstool the Mantse of Ningo. Specifically, the JCNHC declared as follows:

1. “The Loweh Adainya Royal Family of the Ningo Traditional Area is (sic) only appropriate Royal Family clothed with the lawful responsibility to nominate, elect, enstool or install a Paramount Chief for the Great Ningo Traditional Area.

2. The Respondents/Respondents, their assigns, agents and all those claiming through them are perpetually restrained from further interference with matters relating to the nomination, election, enstoolment or installation of a Paramount Chief of the Great Ningo Traditional Area.

3. The Respondents/Respondents, their assigns, agents and all those claiming through them are perpetually restrained from holding themselves out as the Paramount Chief of the Great Ningo Traditional Area.”

APPEAL TO THE SUPREME COURT Being dissatisfied with the judgment of the JCNHC and with the leave of that House, the Appellants launched the present appeal per a Notice of Appeal dated 29th November 2023 on the following grounds:

“i. The judgment is against the weight of evidence.

ii. The Honourable Judicial Committee of the NHC erred in law and in fact when they failed to follow previous authority or departed from same without assigning any reason. Thus, contrary to the principles of stare decisis. (Please see in the particulars the pr evious decisions that the committee failed to consider before arriving at their decision).

Particulars of error of law based on previous decisions.

a. In the Consolidated Ningo Paramount Stool Chieftaincy Dispute case of:

TETTEH HUAGO & 4 OTHERS AND