The Judicial Committee of the Regional House of Chiefs dismissed the petition and thus gave judgment in favour of the respondents to the petition.
The petitioners appealed to the Judicial Committee of the National Housed of Chiefs which allowed the appeal and entered judgment for the petitioners. The appellants in the instant proceedings, i.e. the respondents to the petition, in turn appealed to the Supreme Court from the Judgment of the National House of chiefs.
At the hearing of the appeal before the Supreme Court, counsel for the appellants contended that the National House of Chiefs had erred in basing its decision on a previous Report of the Committee of Inquiry into the Wenchi Stool Affairs.
On these facts, the Supreme Court further held that nomination should first take place before all the other processes could follow. In other word, it should always precede the election/selection, enstoolment/enskinment and installation of chief.
The processes after the nomination would depend on the existence of an appropriate candidate. They could only be performed after nomination. If no person was nominated, there would be no person to be elected/selection, enstoolment/enskinment and installation of the chief.
Nomination thus provided the foundation on which the other processes would take place. If there was no nomination at all, or where the nomination was as flawed or faulty as to be void, there would be no basis for performing and other processes. In effect, nomination was the sine qua non to the making of a chief. On the facts of the instant case, the purported nomination of the first appellant was totally flawed, faulty, invalid and void. The ex post facto processes, i.e. the processes made after the election/selection, enstoolment/enskinment and installation of the first appellant were irrelevant because they lacked the necessary foundation on the basis of which they could stand.
In so holding, the Supreme Court (per His Lordship Brobbey JSC) said: “When it became apparent to the appellants that the queen mother was not going to nominate a candidate within the time that they wanted, the kingmakers were alleged to have contacted the Obaapanyin of the family by name Abena Frema Atuahene, It is not clear if she had nominated the first appellant for the position of Paramount Chief of Wenchi… If the one who performs the function is not a queen mother, she is not qualified to perform that function. Obaapanin Frema Atuahene was not a queen mother.
Even if she had been contacted to nominate the first appellant as the chief and did it in fact nominate him as such, she was not qualified to do so. That is the same as saying that she did not have the capacity to make the nomination or perform the function exclusively assigned to queen mothers. Her nomination was therefore invalid.”
It was further held that at customary law, there were clearly well-settled procedures to follow in making the nomination. It was not everybody or anybody who could make a nomination. By custom, only accredited queen mothers were authorized to make nominations.
The only exception to the rule on nomination by queen mothers was where the kingmakers had taken over the making of a chief after the failure or refusal of the queen mother to make the nomination. In the instant case, all the parties had accepted the fact that the first respondent to the instant proceedings, was the Queen mother of Wenchi, In the capacity, she was the rightful person to nominate a candidate for consideration as the Paramount Chief of Wenchi.
So long as the substantive holder of the position of the queen mother had not been removed, resigned or abdicated or died, the office could not be vacant for another person to be asked to perform her functions while she continued to remain at post as queen mother and continued to operate as such queen mother.
The queen mother could not be said to have acted unreasonably merely because she had not nominated a candidate within twenty four hours of the kingmakers making their demand for a candidate. The consequence of not giving the queen mother sufficient time to nominate a candidate and proceeding without her involvement was that the first appellant’s election/selection, enstoolment and installation had taken place without a valid nomination.
The Supreme Court further held that the alleged failure of the queen mother to attend to the calls of the kingmakers would constitute a ground for destoolment.
Common sense alone would dictate that if any queen mother including the first respondent was recalcitrant to, or refused to heed the call of the elders, that would constitute a ground for her deposition so as to pave the way for another person to be appointed as the queen mother to perform the functions assigned to queen mothers.
Finally, the Supreme Court held that the contention by the appellants that Judicial committee of the National House of Chiefs could not base its decision on the Report of the Committee of Enquiry into the Wenchi Stool Affairs was untenable, considering the provision in the courts Act, 1993 (Act459), s55 (2), permitting the courts to consider reported cases, textbooks and other sources that might be appropriate” when deciding on the contents of customary law. The issue at stake in the instant case was the content of the customary law of Wenchi which was covered by the said report.
The regional House of Chiefs had, as affirmed by the National House of Chiefs, rightly taken into account the Report of the Committee on Wenchi Stool Affairs which was clearly one of appropriate sources.
Source: Daily Graphic, Thursday, February 9, 2012 Page 7