IN THE JUDICIAL COMMITTEE OF THE CENTRAL REGION HOUSE OF CHIEFS HELD AT CAPE COAST ON THURSDAY, THE 30TH DAY OF JUNE, 1977
CORAM:
RECORDER:
MR. A. P. PEPRA, COUNSEL, CENTRAL REGION HOUSE OF CHIEFS
SUIT NO. PET. 2/76
KOW GYAN-PANIN ….. ….. …. …… …. … … PETITIONER
VRS
TUFUHENE ANKWANDOH & OTHERS …. .. ……. ….RESPONDENTS
JUDGMENT
This is a case in which the Petitioner is claiming the following reliefs; namely:-
In the Petition filed on 10/6/76, the Petitioner alleged that from time immemorial the rites to be performed for both enstoolment and destoolment in Effutu have always been the exclusive preserve of the Royal Stool Family of Otuano. He went on and described the rites referred to in the writ and the body of the Petition and added that the Defendants had purported to perform the said rites on or about the 8th of June, 1976, a few days after the appeal lodged by Nana Ghartey V, then Omanhene of Effutu against the Judgement of the Central Region House of Chiefs, had been dismissed by the National House of Chiefs. The Petitioner`s complaint is that the Defendants not being the members of the Otuano Royal House have no right to perform the said rites, hence the petition.
The Defendants contended in their defence that the Petitioner had no locus standi and has never been a party to any destoolment and referred to the destoolment case between the 1st Defendant (representing others) and Nana Ghartey V, the subject matter of the appeal referred to above. They pleaded that from time immemorial the practice of enstoolment and destoolment have been vested in the two Asafo Companies and the Divisional Chiefs of Effutu. They further claimed that there are two stool houses in Effutu, the Otuano and another called Akramano, but that the rites for enstoolment and destoolment have not been performed by the Otuano people. They then went on to describe their version of the rites for the destoolment of an Omanhene of Effutu, a practice completely different from that described by the Petitioner. They therefore alleged that the Petitioner is not entitled to the reliefs sought by him.
In his reply to the defence, the Petitioner joined issues with the Defendants and cited instances where it has been ruled that (1) The ancient Stool of Winneba is at Otuano, (2) That all customary rites of enstoolment and destoolment to be effective, must be performed by the Otuano people and that (3) Departure from the ancient mode of selection and election is merely temporary and should not be taken as permanent or establishing a precedent, or (4) That the tradition, custom and usage of Effutu is not the same as in the Akan Areas.
These pleadings were summed up in an agreed memorandum of issues to be tried, and the issues were as follows; namely: -
The Petitioner himself did not give evidence but called three witnesses to testify to prove his contentions and claims. The First one, Kofi Gyateh, said that he is an elder of Otuano Royal Family where the fetish stool is. He testified that none of the Defendants is a member of the Otuano Family. He said further that nobody can purport to perform any customary rites about the stool unless he is a member of the Otuano Royal family. He added that by the custom of Effutu succession to the Effutu Paramount Stool as always been restricted to the paternal line, except in three cases, where persons from the maternal line have been allowed to occupy the stool.
According to him the first one was Eguase, the son of Ayensuwa, the sistrer of King Ayirebi (the 8th King of Effutu) and daughter of the 6th King of Effutu Bortse Komfo-amo. In this case Eguase`s mother, Ayensuwa was offerred the stool on the death of King Bondzie-Kwei, the 10th King, but she declined it on the grounds that: (1) No woman could occupy the stool and (2) She was 88 years old and was too old. Therefore, she asked the Otuano family (of which she was a member) to permit her son Eguase to reign in her stead. To this Otuano people agreed and so he became King Acquah I. He continued and testified that the other non-Otuano chief were Acquah II and Acquah III (otherwise known as Nana Ayirebi Acquah) and added that the enstoolment rites of both those Kings were performed by the Otuano family. He went on to describe the enstoolment ceremony as follows: - the Oman send the Supis of No.1 and 2 Companies to place leaves at the doors of Otuano Royal House, indicating that the family should nominate a candidate for the vacant Paramount Stool.
When the Otuano people have nominated a candidate, he is carried shoulder-high through the principal streets of Winneba and taken back to the Otuano fetish (Royal) House for confinement, which commenced on Friday night until the following Friday. On the intervening Wednesday, the Candidate is placed on the Otuano Stool, and at midnight on the following Friday, he is taken to the fetish grove at Ayensuano for other ceremonies, by the Otuano people alone. Nobody from outside the family can take part in these rituals. Early on the next day, when the rituals at Ayesuano are over, the new King is sent on the banks of the River Ayensu by the Asafo Companies, who carried him back to the Winneba in a palanquin amid dancing and jubilation, where the swearing of Oath is done. With regard to the rites of destoolment, the witness testified that when the Chief has been found guilty of destoolment charges, the Otuano people are informed of the Oman’s desire or decision to have him destooled, the family go to the fetish and the stool at night, slaughter three sheep for some rituals, after which the Otuano family informed the Oman that the Chief has been destooled. This information (i.e. the performance of the destoolment rituals) is conveyed to the Oman-Kyeamefo who in turn inform the Oman that the destoolment has been done by the Otuano family.
He went on to describe the later ceremonies at Fantsi-Fantsi, the firing of a gun three times, the pouring of libation by the Chief fetish priest of Otuano. Witness said that he witnessed both the enstoolment and destoolment of Nana Ayirebi-Acquah: the enstoolment rites were performed by the Otuano people, and his destoolment was not recognised by the Government until the Otuano people performed the necessary rites after they had been so requested by the Oman. The witness concluded his evidence-in-chief by saying that Nana Ghartey V was enstooled by the Otuano people, but he has not heard that the destoolment rituals have been performed by the Otuano fetish priest. He knows a house called “Akramano” house which derives its name from the fetish Akramano because it is near the fetish; this Akramano is a Fetish of a lower status than Otuano fetish. He said that there is no relationship between the said Akramano house and Otuano Royal House and ended by saying that all Kings of Winneba including the three non-Otuano candidates were enstooled on the Otuano Stool.
Under cross-examination this witness stressed the following points, namely: -
The next witness, P.W.2, was Mr. Meetasman Willie Freebody Acquah, who described himself as a priest of the Musama Disco Christo Church and Secretary to the Effutu State Council from 1952 to 1968. He said that his grandmother, one Madam Cooley was natural sister to the late King Ghartey IV of Winneba, that he was born in the house of the late King Ghartey IV and grew up there, that he connects the Ghartey (Otuano) family through his mother, late Madam Rose Acquah, and that he is not under the Effutu customary law, a member of the Otuano Royal Family. He served Nana Ghartey V and is versed in the history of Effutu in general and the Otuano Family in particular. The witness traced the history of the Effutu from Techiman under King Bondzie Ebi, through the fifteen occupants of the Effutu Omanhene Stool to the present. According to this witness, the first 10 Kings from Bondzie Ebi were either the sons of grandsons (sons of sons) and this law of succession was never varied from father to son until the death of Bondzie kwei, when the Stool was offered to Madam Ayensuwa a sister to King Ayirebi, the 8th King of Effutu , and a daughter to King Bortse Komfo-Amo, the 6th King. He stressed that with the except of three Kings, namely Eguase alias King Henry Acquah (Acquah I) the 11th King of Effutu, King George Acquah (Acquah II, son of Adwoa Bina and grandson of Ayensuwa) and Nana Ayirebi-Acquah III, the maternal nephew of Acquah II, all the other 12 Kings followed the strict patrilineal order by succeeding to their fathers or father`s fathers on the stool. In the case of Acquah I, his mother Ayensuwa was an Otuano, but he himself was not because his father was not an Otuano and he came to the stool in place of his mother Ayensuwa who could not occupy the stool because of her sex and her age, and that Acquah I ascended the Stool with the permission of the Otuano Royal Family. He was succeeded by King Ghartey IV (who had declined the stool because of his numerous business commitments) as he was then entitled to ascend the stool as an Otuano. When Nana Ghartey IV died his eldest son Prince Robert Johnson Ghartey was in England, but when he arrived back home to claim the stool, the then Omanhene of Gomoa Assin, Nana Kojo Nkum, a very powerful ruler, used his influence to have George Acquah Robertson installed as Acquah II, in spite of objection by others Acquah II had already been nominated through the influence of Nana Kojo Nkum , and the protest petition sent against his nomination was dismissed by a three member committee including the said Nana Kojo Nkum. So Robertson was finally accepted by the Otuano people and was enstooled by them. According to the witness Acquah II was declared destooled after a long disagreement with the Oman, but his supposed destoolment by the Oman was accepted by the Government until after the necessary rites had been performed by the Otuano people. Witness added that until the destoolment of Acquah II, an Omanhene of Effutu had ever been destooled. He was reinstated in 1914 after a period of 7 years away from the stool and after a report by one Crowther had so recommended. The report of this Inquiry was tendered and marked as Exhibit “A”. In 1916 Acquah II died after returning to the stool for 2 years.
Witness described the enstoolment of Nana Ayirebi-Acquah III as follows: - During the funeral rites of Acaquah II, Nana Kojo Nkun (mentioned above) was present and asked the Oman of Effutu to nominate a candidate, without reference to the Otuano Family. Some chose Ayirebi Acquah, and some Prince Ghartey. Ayirebi Acquah was introduced to the then District Commissioner. This resulted in a commission of Inquiry under one J.T. Furley. Witness tendered the report of the said Commissioner as Exhibit “B”. Upon the result of this Inquiry the Otuano people finally accepted Ayirebi-Acquah for the Stool, on condition that his installation rites should be performed by the Otuano people. This condition was accepted by Ayirebi Acquah in a Declaration signed by his mother and Ebusuapanyin and witnessed by then District Commissioner, so he was enstooled by the Otuano people. He reigned from 1919 until 1941. When the Asafo No.2 Company after protracted litigation, declared him destooled in 1941, without first having the requisite rites performed at Otuano. Ultimately this was done by the Otuano people, and the destoolment was therefore finally accepted officially in 1946.
Continuing his evidence, the witness told the Committee that the No.1 Asafo Company was created by King Bondzie-Ebi II the third King of Winneba for communal labour, and that the No. 2 Company was also founded by King Bondzie Essiedu, the 4th King of Winneba. The same King Bondzie Esseidu created the post of Tufuhene. The first Tufuhene was one Kweku Pembe, who was succeeded by his nephew Kobina Ottubuah. The witness pointed out that no Tufuhene has ever taken part in the ritual of destoolment or enstoolment. All they have ever done in such cases is to publicise the destoolment by jubilation and by publicising an enstoolment by instructing the Asafo Companies to do so, in the latter case after all the rituals have been performed in secret by the Otuano people at the Otuano House and injunction with the Fetish Priest at Ayensuano. Witness pointed out that he cannot tell what the rites performed for the destoolment of Nana Ayirebi Acquah were because he not a member of Otuano family. Witness continued by tendering protest Petition by one Chief I.J. Annobil of Winneba against the enstoolment of Nana Acquah II in 1908 and 1909, and by Prince Robert Ghartey in 1909, and another by Chief I.J. Annobil in the case of Nana Ayirebi Acquah II in 1918 and those in tendered as Exhibit “C”.
The witness then spoke about sub-stools in Winneba created by King Ayirebi and King Henry Acquah, these are the Gyan kuma stool created by King Ayirebi, the 8th King of Winneba, and the Chief Annobil, Takyi and Gyan Stools created by King Henry Acquah, all matrilineal stools and none of whom participates in the nomination, election and enstoolment of an Omanhene of Winneba. He denied that there are two Royal Stools in Winneba and said that the sub-stools mentioned above were created long after Effutu had been founded and settled. He concluded his evidence-in-chief by saying that non-Otuano Kings were buried at the Royal Mausoleum in Winneba as they were not Otuano Kings. All the others, who were Otuano by birth and right, were buried there. He also explained that the singing and dancing by the Effutus at Fantse-fantse is only an indication that the ex-Omanhene has already been destooled.
The cross-examination of this witness estasblished: -
The last witness for the Petitioner was P.W.3 and his evidence was mainly about the part the Asafo and the Oman play during the enstoolment of a candidate. This witness who claimed to be a Supi of No.1 Company testified that when the stool became vacant, the Supis are directed to lay “dwen” leaves in front of the Otuano Royal House. Their next duty is to instruct the Asafos to publicise the enstoolment by carrying the already enstooled Omanhene through the streets of Winneba. The Supis and Asafos and Tufuhene play no other part in the enstoolment, and for the part described above they are given a remuneration.
The cross-examination of this witness centred around his claim to be a Supi. He denied that he had been removed since 1971, and said that he is still the Supi of No1 Company. Exhibit “D” his testimony during the trial of Nana Ghartey V`s destoolment case, was tendered through him, but he had denied earlier that he said that “it is the Asafo Companies who destool and install Chiefs”. The cross-examination went on to allege that his claim to be a Supi is not true. He admitted that it is the Divisional Chiefs together with the “Oman” who request an Omanhene-elect but denied that Tufuhene has anything to do with enstoolment or destoolment of the Omanhene for Effutu. He described the “Oman” as those elderly persons who because of their old age, have ceased to play any active part in the activities of the Asafo Companies. According to him the Tufuhene is the overall head of the Asafo Companies and does not have anything to do with the Oman in decision making. With this the Petitioner`s case was closed.
The 1st Respondent opened the case for the Respondents and told the Committee that he is the Tufuhene of Effutu and that in the absence of Omanhene, he is the next in command and head of Asafo Companies. He then tendered in evidence certain portion of the record in the case.
Tuhuhene Akwandoh II of Effutu Traditional Area, Acting for and
on behalf of himself, the Divisional Chiefs, Supis, Elders
and Representatives of Effutu Traditional Area.
VRS
Nana Ghartey V, Omanhene of Effutu Traditional Area, Winneba.
Exhibit “1” is lines 30-31 on page 21 of that record. Exhibit “2”is lines 1-4 on page 30. Exhibit “4” is pages 128-130, and he testified that there was not challenged on any of these Exhibits during the hearing of the case. Exhibit “3” was an extract from the Gold Coast Gazette No. 22 of 28th March, 1931, setting out the list of Kingmakers and is entitled “List of persons entitled according to native customary law to elect the Paramount Chief of Effutu (Winneba)”.
Continuing, he described the mode of filling a vacant Omanhene Stool thus: The Kwentsir na Akwamu, Supis and Divisional Chiefs instruct leave to be laid at the door of the house whose turn it is to produce a candidate. When the candidate is produced and elected by the Oman the candidate is confined for 7 days, during which period 2 persons from each Asafo Company live with the candidate. At the end of the confinement the 4 accompany him to Ayensuano at dawn, as well as members of the family from which the candidate is chosen. They returned between 7 and 8 a.m. and are met by the Asafo Companies who accompany him throughout the swearing of Oath at Essuekyir and then carry him in a palanquin. While at Ayensuano the candidate is consecrated by the Priest of the River Ayensu and those priests do not come from Otuano house.
1st Respondent said further that there are two stool houses in Winneba namely Otuano and Akramano or “Ayirebi” and that the stool at Otuano is the Fetish Stool and the one at Akramano the Oman Stool, the latter created by King Ayirebi. He added that the Otuano stool is the Chief Fetish stool in Winneba, is owned by the Oman, but is merely in the custody of the Otuano people. He said Nana Ghartey V neglected to consecrate the stool at Otuano and that was one of the destoolment charges preferred against him. He added also that the Akramano stool must be consecrated yearly by an Omanhene, himself, and the Oman. He denied that a destoolment of an Omanhene is invalid without the participation of the Otuano Family. Also, that there is no special customary rites to be performed for the destoolment of an Omanhene of Effutu. He said after an Omanhene has been found guilty of destoolable charges prayers are said at Fantse-Fantse by the chief fetish priest and linguists, a sheep is slaughtered, and a gun is fired three times after which there is singing and jubilation. He said that the Head of the Omanhene`s family is informed of offences committed by him, but not of his guilt after trial, but that the case of Nana Ghartey V his Head of Family was informed before he was declared destooled. He ended his evidence-in-chief by saying that P.W.3 was removed from his post of Supi No.1 about 6 years ago.
Under cross-examination 1st Respondent admitted having been removed three times from his post of Tufuhene, and that when he was destooled various customary rites were performed by his elders to signify his destoolment. His answer to another question was that both Asafo Companies performed these rites, but he was not present. As to when the Divisional Chiefs were first given their titles 1st Respondent could not tell. It was suggested to him that the titles were introduced in 1931, but he did not know. He could not tell who was Kyidomhene of Effutu in 1920 and he replied that he did not know because he was not in Winneba. When asked whether Adontenhene comes next in seniority to the Kyidomhene he replied that he did not care so long as the State is run properly. He admitted that Exhibit “3” was produced by a State Council presided over the Nana Ayeribi Acquah III as Omanhene and that because of that the Government accepted it and published it in the Gazette. He heard that on 10/11/67 the Traditional Council presided over by Nana Ghartey V passed a resolution that succession to the Paramount Stool should follow the patrilineal line; he questioned Nana Ghartey V about it but he received no reasonable answer and let the matter lie. He admitted that the first deer to be caught at the aboakyir festival is placed at the feet of the Omanhene who places his feet on it, then the deer is sent to the Fetish Penkye-Otu (another of the Otuano Fetish) and then sacrificed to the fetish. In 1976, however, because Nana Ghartey V had been destooled by the Oman, it was Nsuekyirhene who placed his feet on the first catch.
1st Respondent was then asked about a directive by King Ayirebi that succession to the Effutu Paramount Stool should be through matrilineal line; he had never heard of this directive, but if it was given, then it was wrong. He admitted that all the Effutu Kings up to the time of King Ayirebi were from the patrilineal line. He remembered Exhibits “A” and “B” but could not tell of them because he read them long ago. He could not tell that Nana Ayirebi-Acquah III was made to sign an undertaking that his installation should take place on the Otuano ancient stool before his succession to the Effutu Paramount Stool could be valid. He said that it is not the custom of the Effutus to install an Omanhene on two stools and admitted that it is the elders of the Otuano Stool who should nominate a candidate for the stool. He denied that Acquah II and Nana Ayirebi Acquah III were ever installed on the Otuano Stool but didn’t know that Nana Ayirebi-Acquah III agreed to fulfil any undertaking pertaining to his installation, before enstoolment could be valid.
Answering questions by the Panel, 1st Respondent, said that he did not know why King Ayirebi should curve a Stool for Winneba while the fetish stool still existed. He said also that the paternal family do nominate a candidate but denied that actual installation ceremony is performed by elders of the family. He said there were two Omanhene stools in Effutu, but a candidate is not taken to both for installation rites to be performed. He then said that there is a Royal Mausoleum in Winneba built by King Ghartey IV for his family, that only Nana Ghartey IV is buried there and therefore there is no Royal Mausoleum in Winneba.
The witness for the Respondent R.W.1 testified that before Nana Ghartey V came to occupy the post of Omanhene, the Tufuhene, Kyidomhene, Nifahene and three persons from each Asafo Company met and decided to request a candidate from the paternal family to occupy the vacant Effutu Paramount stool. They invited Nana Ghartey and his brother John, the only two elderly people at Otuano and told them of their request. Prior to this the sub-Chiefs mentioned above had decided to give the stool to Nana Ghartey. The two brothers left, and four days later the chiefs heard that Nana Ghartey had bolted away so he was traced to Elmina and sent back to Winneba. No customary rites were performed in Otuano House. Nana Ghartey was taken to Otuano house and introduced to the then District Commissioner. When he was being taken back to Otuano Nana Ghartey refused to go there because it was a fetish house so he was taken to the house of an Uncle called Barnor, where he was confined for two weeks, being look after by R.W.1, Kojo Gyateh, Kwame Okyekye and Kwesi Kyikyibi. At the end of the two weeks confinement he was taken by the same four persons to Ayensuano, where the four washed him before taking him to the fetish priest at Ayensuano for prayers. The Priests were given a bottle of schnapps for the prayers. By 8.00a.m. the Oman had arrived on the banks of the Ayensu with a Palanquin, so they took him back to town. On the way they met the Asafo Companies and they followed the procession back to town where Oaths were sworn. After the Oaths Nana Ghartey was taken to Otuano house where prayers were said for him because it was his father`s house and also the seat of the fetish priest. He then went on to describe the deer hunting ceremony when the deer is sent to the Penkye-Otu grove for slaughter and returned to the public meeting place for further rites. He told the Committee that prior to the deer hunting festival certain items are provided for the Otuano people to prepare for the rites. He was in town but did not witness the destoolment of Nana Ayirebi-Acquah III.
Under cross-examination, witness admitted having been imprisoned by Nana Ayirebi-Acquah but the reasons for this was not clear, and he denied that he was imprisoned because he was one of the agitators for the destoolment of Nana Ayirebi-Acquah III, on the ground that he was not the proper person to be enstooled. He admitted knowing certain Otuano persons and their being Otuanos but said he did not see any of them during the nomination of Nana Ghartey V. He then said that he and others originally were sent by elders to invite Nana Ghartey and his brother John, but in answer to the next question admitted that he only heard of the invitation but was not one of those sent to invite Nana Ghartey and his brother John. In answer to another question the witness admitted that the nomination of Nana Ghartey was done by the Otuano people alone and nobody else. He also admitted that at the time of the nomination of Nana Ghartey there was no Tufuhene in Effutu, but that the then Tufuhene of Effutu was present and took part in the nomination election and installation of Nana Ayirebi-Acquah. When asked what role the then Tufuhene played, witness answered that the Tufuhene and the Asafo Companies helped to outdoor him. He denied a suggestion that only Otuano people were in Nana Ghartey`s company during his confinement. After saying that Nana Ghartey never sat on the Otuano stool, the witness admitted that the actual ritual of installation is done only by the closet members of the Otuano family and that no outsider ever witnesses the ritual. The witness did not know when the Otuano people began to be responsible for preparing for the deer hunting festival. He could also not tell when the Asafo Companies were first formed. When asked why the Oman requested a candidate from Otuano at Nana Ghartey`s nomination, the witness replied that it was because Otuano is his paternal home. He denied a suggestion that the 18/11/67 resolution mentioned earlier on stipulated that from then on succession to the Omanhene Stool of Winneba should be through the patrilineal line of Otuano. When asked by a member of the committee if the elders agree with Nana Ghartey when he refused to go to Otuano witness said yes, because the Oman had to do his wishes. However, Nana Ghartey agreed to and did go to Ayensuano where the rituals are no different from those at Otuano. He also admitted that the installation ceremony of Nana Ghartey V was the same as practiced in Effutu. He then said that the only reason Nana Ghartey was to have been taken to Otuano was for his confinement and nothing else, he was to be confined in the house because both the fetish and the stool were there. Finally, the witness said that the only ceremony which indicates that a person has been made a Chief is the swearing-in ceremony and that there are two stools in Winneba that is the fetish one at Otuano and another at Ayirebi house.
The 3rd Respondent agreed with the testimonies of the 1st Respondent and R.W.1 and had nothing more to add. This ended the case for the Respondents.
Counsel for the Respondents Address began by setting out the Petitioner`s claims and the issues as agreed upon and went on to say that by virtue of the publication in the 1st April, 1977 issue of the Local Government Bulleting (No. 12 page 138) the Government withdrew the recognition from Nana Ghartey V as Omanhene of Effutu Traditional Area and that legally, the reliefs sought by the Petitioner had been rendered abortive.
He however wished the issue to be adjudicated upon in order to bring orderliness into the Traditional administration of the Effutu Traditional Area.
Counsel then submitted on issue No.3 that there is in existence an Akramano stool in addition to Otuano Stool and argued as follows: -
There is ample evidence both oral and documentary to establish that claim, as supported by the evidence of P.W.2, 1st Respondent and R.E.1. There is also enough evidence in Exhibits “A” and “B” to support the claim. In this the Commissioners found as a fact that the Acquahs claimed their descent through King Ayirebi whose stool is preserved, and that Ayirebi was the founder of that line of chiefs. Further the house of Ayirebi adopted the practice of succession in the female line from the time Eguase (Acquah I), and that at that time Ayirebi had eligible sons but they did not raise any objection to the ascension of Acquah I. Further, Crowther in Exhibit “A” found that an arrangement had been established by usage whereby succession moves from one house to the other (both being of the same stock) and that two chiefs had occupied the stool through that arrangement. Counsel then submitted that the fact that Nana Acquah II was succeeded by his nephew Nana Ayirebi-Acquah III points to one conclusion only and that is there is an Akramano or Ayirebi house, both Kings coming from that house.
Counsel then dealt with issue Nos. 3 and 4 together. On these, Counsel submitted that both the evidence on record and section 48(1) of Chieftaincy Act, 1971, Act. 370 settle the issue. The Act does not mention the word “enstool”, but it can only be presumed that the word “instal” is meant.
Counsel submitted that it is clear that a stool house or family can only nominate an Omanhene-elect. The election and installation are done by the Oman who requested the candidate. This is amply borne out by the evidence of P.W. S 1, 2 and 3. He went on and submitted that it is the Oman who made the request for a Chief who must accept or reject the nominated candidate. According to Counsel, this is amply borne out in Crowther on page 6 of Exhibit “A”.
On the question of installation, Counsel submitted that both parties agree that it is done through the important ceremony at Ayensuano where the Omanhene-elect is purified and consecrated by the State Priest and does not include any member of the Otuano family. This is followed by the procession which ends at the Public meeting place where Oaths are exchanged. Neither the Otuano nor Akramano take part in these procedures. Counsel submitted that Furley`s conditions laid down in Exhibit “B” that Nana Ayirebi Acquah III`s installation to be taken place on the ancient stool of Otuano was only an attempt to established peace. The Omanhene-elect had the support of the Kingmakers. The Fetish stool belongs to the whole Effutu State, and the performance of rites by the Otuano people does not conclude that it is the Otuano people who instal Omanhene. Enstoolment can only take place in the House from which a candidate is nominated and elected. According to R.W.1 Nana Ghartey V refused to go to Otuano because it is a fetish house, and it was only after the swearing of Oaths that libation was poured at Otuano.
Counsel then referred to Exhibit “4” and submitted that if the Kingmakers were the Otuano people the agreement would have been between themselves and the Oman and not the Oman and the Omanhene-elect. Counsel submitted further that Exhibit “3” being a Government document must be taken to set out the customary law and practice. Counsel submitted further that the emergence of Divisional stool in the 1920`s paved the way for Ohene of Winneba to became Omanhene after the promulgation of the Native Authority Ordinance of 1925.
Counsel submitted further that it is those who make Kings who have the right to unmake them. Stool houses merely nominate the candidate and cannot claim that they alone have the right to destool or perform the customary rights of destoolment, as to allow such a claim would be to make them judges in their own cause.
Counsel submitted again that the evidence of 1st Respondent in Exhibit “2” page 30 lines 2-2 which is not contradicted, must be taken in conjunction with the evidence of P.W.3 on page 51 lines 7 and 8 of Exhibit “D” as corroborated.
Counsel finally argued that no evidence has so far been led to establish what ceremony is performed at Otuano for the destoolment of an Omanhene and that the only destoolment ceremonies are the firing of a gun three times, the slaughtering of sheep and pouring of libation at Fantse-Fantse, and that this evidence is not contradicted and should be taken as the only valid ceremony. Counsel therefore submitted that the Committee must find:- (1) that it is the Oman who constitute the Kingmakers since they request, reject or accept a candidate and that most of the installation ceremonies are performed by them, (2) there are two stool houses – Ayirebi or Akramano and Otuano (3) enstoolment is the right of the particular family from which a candidate is requested, and (4) Otuano is not the only institutional set-up for the destoolment of Nana Ghartey V.
Counsel for Petitioner submitted that the claims be allowed on the following grounds: - The evidence of P.W.1 when describing the rituals of installation and destoolment was not challenged or contradicted by the Respondents and their witnesses. The evidence went on to say that nobody who is not a member of the Otuano family has ever witnesses the rituals at Otuano, and this was also not contradicted. In the case of Nana Ayirebi Acquah III for instance, the rituals were performed by the Otuano people as laid down in Furley`s Report and evidenced by the undertaking signed by Nana Ayirebi Acquah himself, the mother and Head of family and witnesses by the then District Commissioner of Winneba. At the time of Eguase and Nana Ghartey IV leaves were laid as had been the practice from time immemorial and there was no evidence to contradict this. The evidence of P.W.1 and P.W.2 are partly traditional and partly direct and the provision of Section 24 of Act. 370 allows the hearsay evidence to be admitted to prove or disprove any fact relevant to the subject matter before the Committee. The authority of Poh vrs. Kunamba and Ors (1957) 3 W.A.C.R. provides that members of the family can give traditional evidence concerning the family and that P.W.1 and P.W.2 qualified in the Effutu and Akan senses of membership of the family respectively. R.W.1`s evidence supports that of P.W.1 and 2; the 1st Respondent admits that he would not know about the Otuano Family. R.W.1`s evidence wholly supports that of the Petitioner`s witness as to who does the nomination, and that is the Otuano people. The role of Tufuhene and Asafos is restricted to the publication of facts of nomination and installation by the Otuano people. R.W.1 further admitted under cross-examination that the actual rites of installation is done by the closet members of the Otuano family and that no outsider can witness the ritual. 1st Respondent himself admitted under cross-examination that it is the Otuano people who nominate a candidate for the stool, and this corroborates the evidence adduced by the Petitioner`s witnesses. The evidence of P.W.2 that No.1 Asafo Company was formed by Bondzie-Ebi and for communal labour and No. 2 by Bondzie Esseidu (4th King) was not contradicted nor was the evidence that the post of Tufuhene was created by Bondzie Esseidu to settled difference between the two Companies challenged or contradicted either. If the Asafo Companies came into being along after the Effutu were settled there is nothing on record to when they acquired the right (or sole right) to participate in the nomination, election and installation of the Omanhene. Counsel quote Cussey Hayford on “Gold Coast Native Institutions” 1903 Second Edition to fortify his submission that Asafos and Tufuhene are merely military organisations and an officer of the King respectively. Therefore, the uncontradicted evidence on the Otuano sole right to nominate and elect must be accepted without any doubt. On the second issue as to whether there is another Stool House called “Akramano”, Counsel submitted that the answer should not. 1st Respondent claimed that there are two stool houses, Otuano and Akramano (or Ayirebi) but says that the Omanhene-elect can only be installed on one stool. 1st Respondent regards the Ayirebi stool as the only stool but there is no evidence that any of the chiefs since Ayirebi has ever been installed on the Ayirebi stool, as should be the case if there was in fact an Ayirebi stool. Counsel refers to a passage in Crowther`s report which admits that the Ancient Stool is at Otuano and adds that Acquah II was placed on that stool during his installation. Counsel then submits that since the occupant of the Omanhene Stool up to the 10th Omanhene have traced their lineage through the patrilineal line (as is the custom of Effutu) anyone who does not claim his lineage through that line cannot be held to say that he had founded a new house. Henry Acquah came to the Stool because of his mother`s Otuano heritage and with the consent of Otuano people, and not because he claimed his heritage through the Ayirebi line. He contends that Crowther was wrong in saying that there was an Ayirebi house because none of the Acquah`s could claim their lineage through the patrilineal line of King Bondzie-Ebi I, the founder of the Omanhene stool. Ayirebi never founded or created a house and there cannot be Ayirebi House. The only legitimate house is the Otuano House.
Counsel for Petitioner submitted that the claims be allowed on the following grounds: - The evidence of P.W.1 when describing the rituals of installation and destoolment was not challenged or contradicted by the Respondents and their witnesses. The evidence went on to say that nobody who is not a member of the Otuano family has ever witnesses the rituals at Otuano, and this was also not contradicted. In the case of Nana Ayirebi Acquah III for instance, the rituals were performed by the Otuano people as laid down in Furley`s Report and evidenced by the undertaking signed by Nana Ayirebi Acquah himself, the mother and Head of family and witnesses by the then District Commissioner of Winneba. At the time of Eguase and Nana Ghartey IV leaves were laid as had been the practice from time immemorial and there was no evidence to contradict this. The evidence of P.W.1 and P.W.2 are partly traditional and partly direct and the provision of Section 24 of Act. 370 allows the hearsay evidence to be admitted to prove or disprove any fact relevant to the subject matter before the Committee. The authority of Poh vrs. Kunamba and Ors (1957) 3 W.A.C.R. provides that members of the family can give traditional evidence concerning the family and that P.W.1 and P.W.2 qualified in the Effutu and Akan senses of membership of the family respectively. R.W.1`s evidence supports that of P.W.1 and 2; the 1st Respondent admits that he would not know about the Otuano Family. R.W.1`s evidence wholly supports that of the Petitioner`s witness as to who does the nomination, and that is the Otuano people. The role of Tufuhene and Asafos is restricted to the publication of facts of nomination and installation by the Otuano people. R.W.1 further admitted under cross-examination that the actual rites of installation is done by the closet members of the Otuano family and that no outsider can witness the ritual. 1st Respondent himself admitted under cross-examination that it is the Otuano people who nominate a candidate for the stool, and this corroborates the evidence adduced by the Petitioner`s witnesses. The evidence of P.W.2 that No.1 Asafo Company was formed by Bondzie-Ebi and for communal labour and No. 2 by Bondzie Esseidu (4th King) was not contradicted nor was the evidence that the post of Tufuhene was created by Bondzie Esseidu to settled difference between the two Companies challenged or contradicted either. If the Asafo Companies came into being along after the Effutu were settled there is nothing on record to when they acquired the right (or sole right) to participate in the nomination, election and installation of the Omanhene. Counsel quote Cussey Hayford on “Gold Coast Native Institutions” 1903 Second Edition to fortify his submission that Asafos and Tufuhene are merely military organisations and an officer of the King respectively. Therefore, the uncontradicted evidence on the Otuano sole right to nominate and elect must be accepted without any doubt. On the second issue as to whether there is another Stool House called “Akramano”, Counsel submitted that the answer should not. 1st Respondent claimed that there are two stool houses, Otuano and Akramano (or Ayirebi) but says that the Omanhene-elect can only be installed on one stool. 1st Respondent regards the Ayirebi stool as the only stool but there is no evidence that any of the chiefs since Ayirebi has ever been installed on the Ayirebi stool, as should be the case if there was in fact an Ayirebi stool. Counsel refers to a passage in Crowther`s report which admits that the Ancient Stool is at Otuano and adds that Acquah II was placed on that stool during his installation. Counsel then submits that since the occupant of the Omanhene Stool up to the 10th Omanhene have traced their lineage through the patrilineal line (as is the custom of Effutu) anyone who does not claim his lineage through that line cannot be held to say that he had founded a new house. Henry Acquah came to the Stool because of his mother`s Otuano heritage and with the consent of Otuano people, and not because he claimed his heritage through the Ayirebi line. He contends that Crowther was wrong in saying that there was an Ayirebi house because none of the Acquah`s could claim their lineage through the patrilineal line of King Bondzie-Ebi I, the founder of the Omanhene stool. Ayirebi never founded or created a house and there cannot be Ayirebi House. The only legitimate house is the Otuano House.
Counsel then quoted from the evidence to support his submission that Ayirebi could not have founded a house. The sum total of the evidence is that even if Ayirebi had directed that succession to the Omanhene stool should be through the matrilineal line, he could have been wrong. This contention Counsel submits, is confirmed by the testimony of R.W.2. Counsel further submits that Crowther`s finding that there was an Ayirebi house is based on his misunderstanding of the customary law and was meant only to solve an administrative problem and prevent strive among the Asafo Companies. Furley was astute in that while not solving the succession problem, he at least gave an indication of admitting the Otuano claim that any installation should be done at Otuano as evidenced by his recommendation that Nana Ayirebi III should be installed at Otuano. Counsel further submitted that since the wing-chiefs or sub-chiefs were created long after the Effutu Constitution at been well formed any claim by them as the Tufuhene would want the Committee to believe to be entitled to dictate succession to the stool must be false, as showed by the historical evidence of P.W.2 and the findings of Furley. Counsel submits that Nana Ayirebi III`s innovations in 1931 and published in Exhibit “2” was only an attempt to adopt the Fanti system and must be rejected because when he came to the stool, the custom had already been well established, and he had no right to change them.
With regard to the third issue, Counsel submitted that the Otuano`s are among the Kingmakers if not the Kingmakers of the Paramount Stool of Effutu. They are the owners of the stool and both Crowther and Furley agree that they do the nomination and installation of the candidate. With regard to election Counsel concedes that the matter is in doubt since there is no evidence on the question of election. Counsel finally submits that there is no evidence that when the Asafo Companies were established they were given any express powers to participate in the nomination, election and installation of a King. In the case of sub-chiefs also there is no evidence that at their creation they were given any right to nominate or enstool. The owners of the stool are the only persons who have the right to determine both succession and performance of rituals of enstoolment and destoolment. Counsel therefore invites the Committee to accept the Petitioner`s claim as established and that the Petitioner`s prayer be granted.
There are two main questions to be answered in this case, and they can be summed up as: - (1) whether or not Otuano House is the only stool house in Winneba, and (2) whether or not any enstoolment and destoolment is valid without the participation in or performance of the customary rituals of enstoolment and destoolment of the Omanhene of Effutu by the Otuano people. The first question can be answered by a look at the historical evidence on record as adduced by the parties and their witnesses. An account of history of the founding of the Effutu State has been given by P.W.2 who narrated how the Effutu emigrated from Techiman under Bondzie-Ebi I, their travels and ultimate settlement at Winneba. The witness also gave evidence as to the Kings of Effutu up to the time of Nana Ghartey V, and since there was no variation or contradiction of this evidence the Committee sees no reason not to believe it. Most important of all is the evidence as to the change of Kingship from the patrilineal line to matrilineal at the time of King Henry Acquah alias Eguase, the return to the patrilineal at the time of King Ghartey IV, and the subsequent return to matrilineal at the time of George Acquah Robertson and Nana Ayirebi Acquah III, and the final return to the patrilineal line on the succession of Nana Ghartey V is not contradicted either, and this Committee accept it. The problem arises when we came to the reasons for the changes from patrilineal to matrilineal and back to patrilineal, but it is in these reasons that the soluition to the first question can be found. According to P.W.2 on the death of King Bondzie Kwei (the 10th King) the man who was later to became Nana Ghartey IV (and was son of Ghartey III) and known as Kwame Akyeampong, was a trader living at Anomabu. He was nominated but decline because of business commitments so he suggested that the stool be given to Ayensua, daughter of King Bortse Komfo-Amo (6th King) who was from Otuano house. She also declined because she was too old at 88 years and also because of her sex, so she pleaded with the Otuano people to allow her son Eguase to reign in her stead. This the Otuano people agreed to and so Eguase became King Henry Acquah. When he died and Ghartey IV had succeeded him and died, George Acquah Robertson became King, not because there was no person from Otuano but through the intervention of King Kojo Nkum of Gomoa Assin who persisted that Robertson be placed on the stool. At that time the eldest son of King Ghartey IV was in England. On his return home he raised an objection, but this was rejected again through the influence of Kojo Nkum and Robertson became Acquah II. We need not go into the unchallenged sequence of events during the period between his succession and death in 1916, but it is apparent that his occupation of the stool was not what might be described as proper. On his death again, we have the unchallenged evidence of P.W.2 that Nana Ayirebi Acquah was practically nominated by Nana Kojo Nkum, resulting in the Furley`s Committee of Inquiry. Again, there is the uncontroverted testimony of P.W.2, and this is confirmed by the recommendation of Furley, that Nana Ayirebi Acquah could only became King if he was installed by the Otuano people. At page 18 of Exhibit “B” Furley wrote (“c”) That similarly as his predecessors in the same line were, Sackey`s (Ayirebi Acquah`s) installation ceremonies must include those of formal installation on the ancient stool at Otuano, that of Bondzie-Ebi, by the Priests. P.W.2 testified that Nana Ayirebi Acquah his mother and Ebusuapanyin all signed a declaration to this effect and that he was accordingly installed at Otuano. All the foregoing narrative has not been denied by the Respondents, so what remains is to find out what it all amount to.
The pertinent question is ‘why was it necessary to have the permission of the Otuano people before Eguase was enstooled; why should it be necessary for George Acquah Robertson to be put on the Otuano stool by the Otuano people; and why should Nana Ayirebi Acquah undertake to be installed on the Otuano fetish stool. The Petitioner says that all these questions have only one answer because they were not of the Otuano family the Stool belonged to the Otuano people, and they were only people who could grant permission for them to become Kings of Effutu State. On the other hand, we have the testimony of the Respondents and their witnesses (and also of P.W.2) that King Ayirebi created a Stool for Oman of Effutu. The Respondents say that, that stool become a stool for future Kings and that the Otuano stool was the fetish stool. P.W.2 mentioned the creation of the stool but denies that it was consecrated for the Oman. The Respondents are silent on this point, so the only conclusive testimony is that the Stool created by Ayirebi was for an unknown purpose. Can one therefore say that a stool has been created for Oman? There is no evidence that Ayirebi himself ever sat on that Stool; there is no evidence that any of the Kings including both Otuano and non-Otuano ever sat on that stool. What was the purpose of that stool? Ayirebi himself, according to the available evidence, was an Otuano man (the being the son of Bortse Komfoamo) so that one might suppose that the Stool he created would be meant for Otuano people. He was succeeded by Ghartey III, son of Ghartey II, another Otuano man and he did not use the stool either. On what grounds can one safely say that Ayirebi stool was meant to be occupied by future generations or to find a royal house? After the 1st Respondent had insisted that there were two stools, he was cross-examined in this way: -
Question:
Did you hear it was asked of P.W.2 that Ayirebi decided that succession to the Effutu Stool should be through matrilineal line?
Answer:
No.
Question:
If Ayirebi gave this directive would you say he was right in so doing under Effutu customary practice?
Answer:
No. It would not be right.
Question:
Did you know that from the foundation of Effutu State until the time of Ayirebi succession to the stool was by patrilineal line?
Answer:
Yes.
Question:
Is it the custom of the Effutus to instal your Omanhen on two stools?
Answer:
No. Still further on.
Question:
In whose reign did it become necessary to carve a new Stool for Winneba?
Answer:
Ayirebi.
Question:
What caused the carving to be done when the fetish stool is still exists?
Answer:
I do not know.
From the evidence before us and these questions and answers from the record, we still cannot find why or for what use Ayirebi carved the new stool, and we have not been told to what use it has been put since it came into being.
Crowther at page 2 of Exhibit “A” talks of Ayirebi house but does not say how the house came into being. He contends that because at the ascension of Eguase Ayirebi has sons of mature age but did not protest against the ascension of Eguase, therefore concluded that there is an Ayirebi house. We are unable to agree. At page 6 of the same Exhibit he described the Ayirebi house as the “elder”. By what reason he arrived at these conclusions we are not told, but we agree with Petitioner`s Counsel when he submits …………….” the Respondents; if they should be able to prove their claim that there are two houses, they must show that the three Acquahs` who occupied the Stool descended from any of the male children of Bondzie-Ebi or any of the brothers of Bondzie-Ebi, the founder of the State, for it is they and they alone who could have created a stool house in the constitutional sense with potential right of succession to the original founder of the nation”.
Without going much into the evidence, we find and hold that there is only one Royal House in Effutu and that is the Otuano House. All the Kings who have occupied the Effutu Paramount Stool who were not from Otuano, Eguase or Acquah I, Acquah II and Ayirebi Acquah – did so because they were permitted to do so for the reasons enumerated above. Therefore, we find as a fact and hold that there is no other Paramount stool apart from the Otuano stool.
We now came to the next main questions whether or not any enstoolment or destoolment is valid without the participation in or performance of the customary rites by the Otuano people. Again, we will look at the records and answer this question. P.W.1 gave evidence that whenever the Omanhene stool of Effutu becomes vacant, the Oman sent some persons to lay leaves in front of Otuano house, indicating a request for a candidate. On seeing the leaves, the elders of Otuano house send to ask what it wanted of them. The answer comes back that they must nominate a candidate. The elders of Otuano house then meet and nominate a candidate and he is presented to the Oman (here we must interpose and say that it is agreed by both sides that no such condition has ever been rejected in the history of Effutu). The candidate is then confined in the Otuano stool house for a week. The confinement begins on Saturday, and on Wednesday night the candidate is placed on the stool. He is reserved from confinement on Friday night and taken to Ayensuano and crossed to the far bank of River Ayensu (Ayensuano) where certain further rites are performed. According to P.W.1 what goes on in Otuano house during the confinement is a closely guarded secret, and nobody who is not a member of the Otuano family has ever witnessed it or taken part in it. After the ceremonies at Ayensuano the King-elect is then ferried back across the river and handed over to the Asafo Companies who carry him in a Palanquin through the streets of Winneba to a public place where the swearing of Oaths takes place. There is jubilation and dancing and then he is handed back to the Otuano family who takes him home to Ahenfie. This evidence is corroborated by the evidence of P.W.2, but in his case he, not being a member of the Otuano family (by Effutu custom) cannot tell what goes on during the confinement or at Ayensuano.
According to the 1st Respondent the candidate is confined for 7 days, during which 2 persons from each Asafo Company keep him company. At the end of the confinement, the four accompanied him to the Fetish at Ayensuano at dawn, prayers being said all the way. They are accompanied by the members of family from which the candidate is chosen. They return to town at 7 – 8.00 a.m. and are met on the way by the Asafo Companies who carry him to Essuekyir for the swearing of Oath ceremony and then brought back to Winneba. R.W.1 confined his evidence of the ceremonies to that of Nana Ghartey, who, according to him refused to be confined at Otuano, because it was fetish house. This witness also testified that Nana Ghartey was confined for 2 weeks and then taken to Ayensuano. Everything that followed was exactly as narrated by the other witnesses. 1st Respondent did not say where the confinement is normally done, so we take it he means at the Otuano House.
The most important question now is “when does the enstoolment or installation actually happen during all these proceedings? According to P.W.1 the actual installation occurs during the confinement when certain rites are performed, and the King-elect is place on the stool. This is supported by Crowther at page 2 of Exhibit “A”. “Item of opinion therefore what prior to some date about 120 years ago the office of priest and chief were combined and that the ancient stool at Otuano is the ancient of the dual office; upon which the chiefs are still enstooled”. Furley at page 18 of Exhibit “B” has this to say,” that similarly as his predecessors in the same line were Sackey`s (Ayirebi-Acquah`s) installation ceremonies must include those of formal installation on the ancient stool at Otuano, that of Bondzie-Ebi, by the priests”. The 1st Respondent does not give any evidence on this. But R.W.1 has this to say: -
Question: You have said that you did not see the Stool on which Nana Ghartey was installed?
Answer: There is a Fetish Stool at Otuano Nana Ghartey never sat on it.
Question: So Nana Ghartey has been an imposter?
Answer: He was not.
Question: I put it to you that the actual ritual of installation is performed by the closest members of the Otuano (Egyamba) and that no outsider can ever witness the ritual
Answer: Yes, that is true.
All these and more go to show that in fact the actual ritual of installation is done at Otuano, on the Otuano stool by the Otuano people. Throughout the record we have not come across any evidence which points to the fact that any of the fifteen Amanhene of Effutu has ever been installed on any other stool. The Petitioner`s witnesses, as well as R.W.1 all agreed that the actual installation is done at Otuano in secret, and this is confirmed by the passages quoted from Crowther`s and Furley`s findings in Exhibit “A” and “B” respectively. How one may ask “what is the essence or importance of this ritual of installation”? The placing of a person on the ancestral stool is the point where his ancestors’ spirits granted the power to look after the Oman and in our opinion, this is the most important ritual throughout the making of a chief or King. In Akan, as well as in the North (enskinment) and all other tribal ceremonies, a person can never be regarded as Chief or King unless and until this ceremony of enstoolment or enskinment is performed. R.W.1 said: -
Question: What indicates that a person has been made a Chief?
Answer: The swearing-in ceremony.
Question: So there is no other customary rites to indicate that the candidate has been installed?
Answer: No.
We completely disagree with these answers and have come to the conclusion that either these witness does not know anything about the making of a chief or is intentionally not being truthful and is misleading the Committee, and we discuss his testimony on this point. Now therefore if the actual ritual of installation – placing the chief-elect on the stool in done by the Otuano people and nobody else, we come to the only possible conclusion, and that is if the Otuano people do not perform the ritual, no candidate for the Effutu Paramount Stool can be described as having been installed or can call himself the Omanhene.
Counsel for Respondents argued at length on Exhibit “3” and urged the Committee to take judicial notice of the document.
The Committee cannot accept the submission because it is difficult to understand how Nana Ayirebi Acquah III having given an undertaking and accept as a condition to the validity of his enstoolment to be installed at Otuano, come out to say that enstoolment ceremony takes place in Ayirebi house and not Otuano. This act of Nana Ayirebi-Acquah III is suspicious and makes the contents of the document untenable. Incidentally, despite this document Nana Ghartey V his immediate successor was validly, properly and customarily enstooled by the Otuano people and not at so called Ayirebi house and he was duly recognised by the Government despite and contrary to the contents of Exhibit “3”.
The matter of destoolment is the next point to be discussed. P.W.2 has given instances when King`s of Effutu have been declared destooled by the Oman without the performance of some ritual by Otuano people. He described the cases of Acquah II and Nana Ayirebi-Acquah III, whose destoolments were recognised by the Government only after the Otuano people had been approached to, and did, perform certain rituals of destoolment. These rituals have been described by P.W.1 in these words “if the chief defaults, the complaint should be laid before the Otuano family. When it has been decided to destool the default chief the Otuano family get up at night and take along three live sheep to the black stool for some ceremonies. Sheep is slaughtered for the fetish and the stool after which the family informed the Oman that they can henceforth regard the Chief as destooled ………… after the Otuano family have performed all the necessary rites in the stool and fetish house, they (the Omankyeamefo) are informed that the rites are completed, and that they can inform the Oman that the chief has been destooled. The Omankyeamefo then inform the Supis of No.1 and 2 companies and together they inform the Oman …………….. the Oman meet a place known as Fantse-Fantse, and there the Chief is sent for to appear before the Oman ………… and then three guns are fired. The Oman then go to the Ahenfie where a gun is fired three times. That ends the destoolment. Libation is poured at Fantse-Fantse by the fetish priest of Otuano family ………… if any person purports to destool the Omanhene without passing through the ritual described above their actions will be to no avail and will be null and void”.
” I witnessed the enstoolment of Nana Ayirebi-Acquah III……….. I also witnessed his destoolment. He was purported to have been destooled so many times, but none was effective until finally the Oman approached the Otuano family to perform the rituals. He was able to be destooled after the Otuano family performed the rites described above …………. The request was made to the Head of the Otuano family called Kwa Bonne. The family performed all the rites described above, and as a result Nana Ayirebi Acquah was destooled”. P.W.2 has this to say about the destoolment of Nana Ayirebi Acquah III. “Nana Ayirebi Acquah was finally declared destooled in August, 1941………… He was declared destooled by No. 2 Asafo Company because he was in conflict with them. The Asafo Company appealed to the Otuano people through their Counsel. The Otuano people consented and performed the necessary destoolment rites. The destoolment was accepted after 5 years dispute. In 1946 the Otuano people finally consented and destooled him and did so”. Further on P.W.2 narrated the following:- During the wrangle between the Asafo and Nana Ayirebi Acquah, the Asafo failed to inform the Otuano people about their intention to destool the Omanhene, so they remained neutral. After 5 years of conflict, the Asafo Companies sent an apology to Otuano people. After the apology and pacification were accepted, the Otuano people then performed the customary rites for the destoolment of Nana Ayirebi Acquah. The Oman informed their Counsel Messers Sakyi and Sackeyfio at Cape Coast. They in turn informed the Commissioner for the Central Region who then inquired from the District Commissioner at Winneba whether in fact the customary rites for the destoolment of Nana Ayirebi Acquah had been performed. The District Commissioner investigated from the Otuano people who confirmed it ………….. All these incidents happened in my presence …………. I do not know what ceremonies were performed to destool Nana Ayirebi Acquah because I am not of the Otuano family, and only Otuano people can describe what is done in such cases. Nana Ayirebi Acquah`s destoolment was finally confirmed by the Government in 1946”.
It is significant to note that P.W.1 was not cross-examined or challenged on his account of the rites allegedly performed for the destoolment of Omanhene of Winneba.
1st Respondent`s version of the rites for the destoolment of Effutu Omanhene is this “There is no special customary rites to perform for the destoolment as alleged by P.W.1 and P.W.2”. When the Omanhene has been found guilty prayers are said at Fantse-Fantse by the chief fetish priest and linguists. A sheep is slaughtered, and a gun fired three times. Then there is singing and jubilation and that is end of the ceremony, and the whole Oman and Asafo Companies take part in it. The Head of family is not informed of his guilt. In the case of Nana Ghartey V we informed his head of family before we declared him destooled”. The Committee wonders why in the case of Nana Ghartey the head of family was informed if, as 1st Respondent has just said above, that does not form part of the ceremony or it is not the customary practice. This is what was brought out in cross-examination: -
Question: Q. When you were destooled various customary rites were performed by your elders to signify your destoolment?
Answer: Yes.
Question: Who preside over the performance of these rites?
Answer: The Tuafo and Dentsifo, but I was not present.
What these rites were, the Committee has not been told.
R.W.1 did not give any evidence as to the method of destoolment, so the only evidence on the matter is that of P.W.1 and P.W.2 and 1st Respondent. All three are agreed as to what occurs at Fantse-Fantse, but 1st Respondent denies that the Otuano people perform any rituals prior to the open one at Fantse-Fantse.
We completely agree with the submission of Counsel for the Respondents when he says it is only those who have the right to make a Chief or King who also have the right to unmake a Chief or King. We have already found as a fact that it is the Otuano people who perform certain secret rituals to install the King, and we have nothing to show us that they have nothing to do with his destoolment. There is an Akan proverb “You cannot tie a knot without using the thumb”. If the Otuano people are instrumental in the installation, we do not see why they should be left out in the destoolment. From the evidence we have before us, we are bound to hold that P.W.1`s and P.W.2`s unchallenged account of the destoolment ceremony and rituals appear to common sense and reality more than the rather incomplete version of 1st Respondent, and find from all the evidence, that destoolment of Omanhene of Effutu cannot be valid unless certain customary rites are performed by members of Otuano house. Counsel for Respondent quoted Section 48(1) of Act 370. That Section does not add or subtracted from the ancient customary procedure from making a person a chief. In our opinion all it does is to make sure that all three ceremonies are performed, before the Government can recognise a person as a chief. It would be very unfortunate if a chief should not be regarded as Ruler because he has not yet been gazetted. There are so many customary and traditional functions a non-gazetted chief is entitled to do or perform such as pouring libation, consecrating stools, performing yearly festivals, holding arbitration, meeting his elders for discussion and a lot more. But he cannot be a member of a Judicial Committee or attend a Traditional Council meeting unless he is gazetted. If a non-gazetted Chief offends his people, they can still destool him, and to do so they must perform certain rites. We therefore hold that the Chieftaincy Act, 1971 (Act. 370) does not help us in this trial.
We now come to the third issue in the memorandum “Even if Otuano is the only Stool House, whether or not they are among the Kingmakers in respect of the Paramount Stool of Effutu Traditional Area”. It is agreed by both parties that the Otuano people nominate the Candidate for the vacant Effutu Paramount Stool. We have also held that it is the Otuano people who performed the actual rites of installing the Chief-elect on the Otuano stool sometimes during the confinement, as evidenced by the record and Furley`s findings. Counsel for the Respondents has submitted that if the Otuano people were the Kingmakers the agreement signed between Nana Ghartey V and the Oman would have been signed not between Nana Ghartey V and the Oman but between the Otuano family and the Oman. Reading through the agreement however, we find that the terms of the agreement begin in the first preamble with “……………….. the Oman have approached the Ghartey family for a candidate …………………. and whereas the said family had offered ………………..”. The second preamble reads as follows: -“and whereas the said Kwamaina Gyate-Kuma Ghartey has been duly elected to that Office ……………………. “. The first term of the agreement reads …………….. “The Omanhene-elect will on his part undertake to follow up with the final ceremony of installation as by custom ordained ………”. Paragraph 2 deals with royalty to the people, the Government……………….. and the Majesty the King of England: paragraph 3 deals with his promise to abide by the Native Customary Laws and Usages of the people. These are followed by counter-promises by the Oman, to help Nana Ghartey V in his administration and other items which we need not go into. The agreement presupposes that the nomination and election have been completed and all they wanted to do was to have some sort of counter-promises to bind Nana Ghartey to his promise to accept the stool. We personally do not see why the Otuano people should be parties to the agreement. In our opinion they should be parties if for instance there were to be drastic changes in the procedure to be followed in the nomination, election or installation or some fundamental alteration of these established customs and usages affecting them as Otuano people. We cannot therefore see how their non-participation in the making of the agreement should deprive them of their position as Kingmakers.
The Petitioner on the other hand submits that the fact of the Otuano family being the nominators and those who instal makes them the Kingmakers, if not the only Kingmakers. He conceded that the question of election is shrouded in doubt and only exists in theory and that there is no evidence that it has never been used. To become a chief a person has to be nominated, elected and installed and in our opinion those person who take part in all or any of the three stages are Kingmakers in the modern and wide sense. Without any of the three stages having been gone through, the procedure cannot be completed and so we therefore find and hold that the Otuano people being responsible for the nomination and installation aspect of the act of kingmaking, are among the Kingmakers in respect of the Paramount stool of Winneba. The respondent contended that the Oman and Divisional Chiefs, together with the Tufuhene are the only kingmakers. In the case of the Tufuhene, the evidence on record states that historically his post was created during the time of Bondzie Esseidu after he had formed the Asafo No. 2 Company, and his position was to settle dispute between this Company and the No. 1 formed by earlier on by King Bondzi-Ebi II. This evidence is not contradicted by Respondents or their witnesses. 1st Respondent never mentioned it, and R.W.1 did not know when the Companies were formed, in fact he also admits that at the time of nomination, selection and installation of Nana Ghartey V, there was no Tufuhene in Effutu. There is no other evidence on record to show that the Tufuhene has ever played any instrumental part in the making or unmaking of any Omanhene of Effutu, except in the case of Nana Ghartey V`s case, where the 1st Respondent, Petitioner in that case, represented the Divisional Chiefs in preferring destoolment charges against the Omanhene. We find as a fact and hold that the only part played by Tufuhene of Effutu through the History of Effutu is to direct the Asafos as to what to do during the installation – publication by carrying the new Omanhene from Ayensuano to Winneba town and carrying him to the Ahenfie after the swearing-in ceremony. The Tufuhene plays no significant part in the destoolment process. There is no doubt that it is the Oman and the Divisional Chief who request the Otuano Family for a candidate, and we have no hesitation in saying that they are among the kingmakers.
Issue No. 4 raises little problem, in view of our findings on issues Nos. 1, 2 and 3. R.W.1 gave a very graphic and rather comic evidence on the circumstances surrounding Nana Ghartey V`s nomination, his escape to Elmina, his refusal to go to Otuano because it is a fetish house and his subsequent installation. The impression created by this story of Nana Ghartey`s refusal to go to Otuano house for confinement is that he was never properly installed. After saying in cross-examination that Nana Ghartey V never sat on the fetish stool at Otuano, the witness was asked whether Nana Ghartey V was an imposter, i.e. was never properly installed- witness said no. Questioned by a member of the Committee whether the installation ceremony of Nana Ghartey V was the same procedure as is usually followed in Effutu area, witness said yes. In view of these answers we have no alternative but to conclude that Nana Ghartey V was properly installed according to the ancient custom of Effutu. It follows therefore that his destoolment must also follow the ancient customary procedure in Effutu. We have already held above that the Otuano house is the only institutional organ with the right to perform the customary rites of destoolment, and we hold that the same must apply to the case of Nana Ghartey V. His destoolment must include the performance of customary rites at Otuano house by the Otuano family.
In conclusion we find the Petioner`s petition proved. The reliefs sought by the Petitoner are hereby granted. We hereby grant: -
Costs to Petitioner in the sum of ¢800.00
(SGD) ODEEFUO BOA AMPONSEM III
CHAIRMAN
NANA AMANKWA BUADU VII
MEMBER
NANA KWABU EWUSIE VII
MEMBER
(SGD) A. P. PEPRA
COUNSEL