Introduction:

[1] I will prefix this judgment with the quote attributed to the English Judge Lord Edmund-Davies, made many years ago but often ignored. He said that “Litigation is not an activity that has contributed markedly to the happiness of mankind”. Like many people in the past the parties herein who claim to be members of the Ashia We Family of Teshie have also ignored the above statement. The parties are divided over their membership of the Ashia We family and in this suit are contesting who is the qualified Head of Family among other issues.

[2] This Court is charged with determining the legal issues surrounding their membership including a declaration that there is no substantive head of Ashia We and that the 1st Defendant was only appointed as a caretaker head of family of Ashia We and not its head and whether or not two divisions, that is Badu Anuaku and Nii Adjei Osabu Kwao constitute Ashia We or four divisions constitute Ashia We. Unfortunately, in the opinion of the Court this judgment may likely not resolve the internal conflict over their membership of the Ashia We of Teshie. Ultimately, in the Court’s opinion it is only the members of the Ashis We Family themselves who collectively, must resolve to settle their conflict by working within the framework of their history, custom and this judgment to let peace prevail as members of the same family.

[3] That being said, I note that this case was transferred to this Court by the hand of the Chief Justice when it was partly-heard before Obimpe J (as he then was). I also note that when the matter came to this Court due to the lack of availability of all of the proceedings, the matter could not be heard immediately. Ultimately, some of the witnesses had to be recalled for their evidence to be retaken. From the available proceedings and based on the dates of adjournments it looks as if some of the proceedings are still missing. For instance on June 13, 2014 the Court adjourned the suit to be continued on 17 and 18, July 2014 but there is no record of what happened. The next available proceedings is dated April 2, 2015. I note that when the Court inquired from Counsel both of whom have been engaged in the matter from its inception they said none of the proceedings was missing and so we proceeded. In order for one to understand the claims made I shall set out in detail the pleadings filed by the parties.

ii. The Plaintiffs Reliefs & Claim:

[4] The Plaintiffs claim against the Defendants as per his Writ of Summons issued on November 11, 2011, is for the following reliefs:

a) Declaration that the Defendants are not indigenous members of the Ashia we family of Teshie having migrated from Mepe in the Volta Region near Bator (and the Monis) having migrated from Takoradi in the Western Region.

b) A Declaration that it is only the Badu Anuako Family and Osabu Adjei Kwao Family which constitutes Ashia We, and the head of Ashia-We comes from the two families.

c) A Declaration that there is no substantive head of Ashia We and the 1st Defendant Nii Boye Kumah, was appointed caretaker of Ashia We and not head of Ashia We.

d) A further Declaration that the 4th Defendant is not from the Badu Anuako Family from which Asafoatse Omrugu is installed and consequently he is not an Asafoatse and cannot hold himself out as Asafoatse Omrugu.

e) A further Declaration that Nii Boye Kumah is not the Wulomo of Ashia We as the incumbent Wulomo is Osabu Wulomo of Obene We.

f) An order upon Nii Boye Kumah to account for his stewardship from the date of his caretakership in 1991 to date.

g) An order to return the proverbial symbol Anuaku Sewahu made of gold and affixed on top of Ashia We Akatamanso.

h) A Declaration that the Defendants being stranger settlers adopted into Ashia We have no place of abode known as “Tsuianaa” at Ashia We but where the ancestors kept their fishing nets.

i) A Declaration that Ashia We belongs to the Plaintiffs and the Defendant cannot interfere with their occupation, possession, ownership and use of Ashia We.

j) Further or other relief as in the circumstances may be just including in particular perpetual injunction to restrain the 1st Defendant and the 4th Defendant from holding themselves out as the Head of Ashia We and Asafoatse Omrugu respectively and further order to restrain the Defendants, whether by themselves, their servants, agents, workmen, assigns whoever or otherwise howsoever from interfering with the Plaintiffs’ use, ownership. occupation and possession of Ashia We.

[5] In the statement of claim the Plaintiff laid out the crux of their claim as follows in paragraphs

6, 7, 10, 11, 12, 14, 15, 16, 18, 20, 21, 22, 23, 24, 28, 30, 31, 24 and 35 in particular that

“6. The Plaintiffs state that they are indigenous members and descendants of Ashia We.

7. The Plaintiffs state that the Defendants are Stranger Settlers who hailed from Mepe near Bator in the Volta Region and Monis from Takoradi in the Western Region who were adopted into Ashia We.

10. The Plaintiffs state that Nii Osabu Adjei Kwao’s brother was Ashia who did not beget an issue however he was a good man and lived well and maintained the family, and in order that his name will not be lost and forgotten his name was used to name the house where the family first settled viz Ashia We.

11. The Plaintiffs state that Nii Osabu Adjei Kwao’s brothers were: Sowah Kwao, Nii Okang Pako, Asafoatse Boye, Ashia, Nmai and Tsekwao and their Sister Naa Atswei.

12. That Plaintiffs state that the Osabu Shrine was given to Nii Osabu Aku from Obene We to Ashia We and that Obene We and Ashia We are a unit family and it is also from this family that the Wulomo is enstooled.

14. The Plaintiffs state that their ancestors who were fishermen built Ashia We and therefore in Ashia We the Badu Anuaku family members and Osabu Adjei Kwao family members have rooms “Tsuianaa” in Ashia We, unlike the Defendants who have no rooms in Ashia We, since time immemorial.

15. The Plaintiffs further state that a long time ago when the Defendants’ ancestors Moni and Mepe came to “Amoni” fishing they were left behind by their ancestors and became orphans who were later adopted into Ashia We and were lodged in the room in which the fishing net was kept, a stone throw from Ashia We and this is where they hold their family meetings to date.

16. The Plaintiffs state that, these orphan descendants in the course of time became of age and they married and gave birth to the descendants of the present Defendants and in order that they will be distinguished from the indigenous Plaintiffs, their area from which they came from Mepe and Moni were added to their names.

18. The Plaintiffs state that on or about 1991 when Akwasi the caretaker head of Ashia We died, Nii Boye Kumah was appointed caretaker of Ashia We.

20. The Plaintiffs state that the 1st Defendant was made caretaker of Ashia We and he had custody of the Ashia We Akatamanso, which had a golden symbol affixed to it at the top together with the bank note of Ashia We.

21. The Plaintiffs state that the 1st Defendant trespassed into Gbatsu i.e. the shrine and took the golden symbol that is Anuaku Sewahu and took it to Jenayoo near East Legon, to the funeral of Bankadi Tetteh and never returned it, and is still in his custody.

22. The Plaintiffs states that it is their preserve as indigenous Ashia We members to hold meetings, perform family customary rites, outdooring ceremonies, customary marriage rites, funeral gatherings in Ashia We without the help of the Defendants.

23. The Plaintiffs state that the 1st Defendant who is a “southpaw” or left-handed person should not be holding the caretaker position anymore more as by custom in Ashia We, anybody who is incarcerated or remanded in Police Custody should give up his position.

24. The Plaintiffs state that the 1st Defendant having been remanded in prison custody at the Ussher

Fort Prisons, and the Teshie Police Station Cell for a day is unfit to occupy the caretaker’s position.

28. The Plaintiffs state that from time immemorial their ancestors have occupied and enjoyed Ashia We without any let or hindrance from the Defendants or anyone.

30. The Plaintiffs state that on or about sometime in June 2010 during the funeral of Rose Atsewei Kwei a.k.a Naa Tsaade, the 1st Defendant sent one Laryea Pacheco to hit the forehead of the 3rd Plaintiff with a bottle and injured the 3rd Plaintiff and photographs were taken.

31. The Plaintiff state that the conduct of the 1st Defendant and other Defendants was reported to the Police and subsequently the 1st Defendant’s brother promised to settle this case out of a Court and paid GH¢2,600.00 leaving a balance of GH¢2,000.00 which still remains unpaid.

34. The Plaintiffs state that the Defendants have dissipated the funds of Ashia We running into over GH¢20,000.00 since the 1st Defendant was made caretaker of Ashia We and the 1st Defendant has openly disgraced himself by quarrelling with a woman over a child and trading insults in the full glare of the public, creating a piteous spectacle which attracted many people.

35. The Plaintiffs state that by reason of the foregoing matters, the Plaintiffs have suffered loss and damages and continue to suffer loss, damage and deprivation”.

iii. The Statement of Defence, Counterclaim & Reply:

[6] The Defendants denied substantially, all the allegations and claims of the Plaintiffs. They filed a very lengthy Statement of Defence and Counterclaim. It was averred in paragraphs 3, 6, 7, 8, 9, 14, 17, 18, 21, 25, 33, 34, 38, 40, 52, 59 and 62 of the Statement of Defence in particular that:

“3. Defendants say in addition that, 1^st and 3^rd Plaintiffs are descendants of Nii Boye Mante who comes from Mantsewe of Teshie but was brought into Nii Ashia We by Nii Okang Kpako a true member of Nii Ashia We and a uterine brother to Nii Boye Mante.

6. Defendants say that in or about November, 1991 the 1^st Defendant was customarily enstooled as the Head of Family by the Elders and the entire Nii Ashia We upon the demise of the incumbent Nii Laryea (alias Akwasi), the direct uncle of 1^st Defendant.

7.  Defendants say in addition that on or about 19^th of November, 1999 the day and time that Nii Laryea (alias Akwasi) was being taken to be buried, 1^st Defendant was caught and confined as Nii Ashiawe custom demands and later after, the necessary customary rites had been duly performed, 1^st Defendant was enstooled the Head of Family of Nii Ashiawe.

8. Defendants say further that according to tradition and in the history of successive Heads of Family in Nii Ashiawe, Nii Larye (alias Akwasi),the immediate past Head of Family was the direct uncle of 1^st Defendant who also succeeded his brother, Nii Laryea Kumah, the father, 1^st Defendant.

9. Furthermore, Defendants state that 1^st Defendant has at all material times being recognised and respected by Nii Ashia We, the Teshie Traditional Council and the people of Teshie as the leader and the custodian of the heritage, traditions and customary practices of Nii Ashia We and Teshie in General.

14. Further, Defendants say that 4^th Defendant known in private life as Ernest Oko Laryea (aka Alaska) was in or about 1997 by popular acclamation by the Elders and members of Nii Ashia We chosen in addition to six (6) other men and five (5) women from various families of Teshie and installed as Nii Asafoatse Omrugu of Nii Ashia We after all customary rites had been duly performed by the Elders.

17. In answer to paragraphs 5, Defendants assert that Nii Ashia We is made up of four (4) Divisions namely, Nii Adjetey Monney, Nii Osabu Adjei Kwao, Nii Adjei Mepeh and Nii Badu Onuako who are descendants of Asafoatse Sowah Omrugu and Nii Ashia, the indigenous settles who migrated from Nii Asabu We of La Dzrasee to Teshie Obene We and then to Nii Ashia We in or about 1710.

18. Save that 2^nd Plaintiff is a true member of Nii Ashia We by virtue of being a descendant of the great ancestors Asafoatse Sowah Omrugu and Nii Ashia of Ashia We Family, paragraph 6 of the Plaintiffs Statement of Claim is vehemently denied.

21. Defendants in answer to paragraph 7, asset that Nii Adjei Mepeh, their ancestor only stayed and worked in Mepe in the Volta Region and any time he came home to Teshie, he was described and called Nii Mepeh.

25. In further answer to paragraph 9 of the Plaintiffs Statement of Claim, Defendants state that Badu Anuako and Nii Osabu Adjei Kwao are true descendants of Asafoiatse Sowah Omrugu and Nii Ashia from Osabu We at La Dzrasee.

33. In answer, Defendants say that 1^st Defendant is the custodian of all customary rites and traditions and activities at the Osabu shrine at Nii Ashia We and all customs and traditional rites are always performed by the 1^st Defendant in conjunction with the Priestess.

34. Further, the Defendants say that 1^st Defendant has oversight responsibilities in Obene We and Nii Ashia We is autonomous when it comes to performance of rites at Osabu shrine except that Obene We’s presence in Nii Ashia We has always been by invitation at the instance of the 1^st Defendant.

38. Defendants say in answer to 15 and 16 that, they are true members and descendants of Nii Adjetey Monney, Nii Adjei Osabu Kwao, Nii Adjei Mepeh and Nii Badu Onuako of Nii Ashia We.

40. Defendants state further that according to the custom of Nii Ashia We, once you are recognised as a member and stand the chance of being elected to a substantive position in the family.

52. 1^st Defendant assets that as the legitimate Head of Family, all properties of Nii Ashia We has been entrusted into his care and he has authority to deal with the property of Nii Ashia We for the benefit of true members of the family.

59. 4^th Defendant say in response to paragraph 27 that, 4^th Defendant is known in private life as Ernest Oko Laryea (aka Alaska) but in or about 1997, he was by popular acclamation by the Elders and members of Nii Ashia We chosen in addition to six (6) other men and five (5) women from various families of Teshie and installed as Nii Asafoiatse Omrugu of Nii Ashiawe after all customary rites had been duly performed by the Elders.

62. In answer to the paragraph 29, the Defendants say that they legitimately hold themselves out as the Head of Family, Nii Asafoiatse Omrugu and the Principal Elders of Nii Ashia We respectively”.

COUNTER CLAIM

The Defendants repeats paragraphs 1 up to 70 and including paragraph 70 of the Statement of Defence and Counterclaim and claims against the Plaintiffs as follows:

i. A declaration that 1^st Defendant is the legitimate and the substantive Head and the custodian of the heritage, traditions and customs of the Nii Ashia We of Teshie.

ii. A declaration that 4^th Defendant is the legitimate Nii Asafoatse Omrugu of Nii Ashia We of Teshie.

iii. A declaration that Nii Ashia We of Teshie is made up of four (4) Divisions namely: Nii Adjetey Monney, Nii Adjei Osabu Kwao, Nii Adjei Mepeh and Nii Badu Onuako respectively.

iv. A declaration that Nii Ashia We does not install Wulomo.

v. A declaration that the 1^st and 3^rd Plaintiffs are not true members of the Nii Ashia We and thus their continuous stay in the Family is subject to good behaviour and respect of all regulations put in place by the leadership of the said family.

vi. An Order by this Honourable Court directed at the Plaintiffs restraining them from interfering with the duties of the 1^st Defendant in particular and the other Principal Elders in general.

vii. An Order for Plaintiffs to account for moneys collected during funeral ceremonies since November, 2010.

viii. An Order of Perpetual Injunction restraining the Plaintiffs, by themselves, their heirs, assigns, personal representatives, agents, servants and all other persons of whatever description claiming through or under them from disturbing Defendants’ quiet use occupation and enjoyment of the Nii Ashia We property.

ix. Any further Orders as this Honourable Court may deem fit.

x. Cost”.

[7] The battle lines were clearly drawn after the filing of the Defence and Counterclaim. The Plaintiffs in the long Reply and Defence to Counterclaim filed vehemently denied all the averments contained in the Statement of Defence and specifically averred at paragraphs 4, 6, 8, 12, 13, 16, 18, 19,

20 and 21 as follows:

“4. In reply to paragraph 6, 7, 8 and 9 of the Statement of Defence the Plaintiffs contend that no such installation or enstoolment of the 1^st Defendant took place as is described in those paragraphs and the custom described in those paragraphs is foreign to Nii Ashia We, the elders, the whole of Teshie know that there is currently 2 Traditional Councils, so which of the two Traditional Councils does the 1st Defendant belong to or has recognized him.

6. In reply to paragraph 15, 16 and 17 of the Statement of Defence the Plaintiffs contend that there are only two heads that constitute Nii Ashia We and not 4. Furthermore the Plaintiffs contend that Osabu We only came into being in 1986 and the pleading in paragraph 17 shows that the Defendant’ ancestors are older than Nii Okang Nmashhie who establish Teshie in 1710.

8. In reply to paragraph 25 of the Statement of Defence the Plaintiffs contend that they do not hail from Osabu We at La Dzrasee but Adjeinkpa We where the Osabu shrine is.

12. In reply to paragraph 33 of the Statement of Defence, the Plaintiff contend that those paragraphs have been pleaded in very bad faith and that the 1^st Defendant had been stopped from performing the functions of the Wulomo several times but due to his stiff neckedness and his refusal to obey the elders of Ashia We, it has created a rift between him and the Osabu Wulomo.

13. In reply to paragraph 34 and 35 of the Statement of Defendant, the Plaintiffs contends that those paragraphs have not been pleaded in good faith and it’s even calculated to throw dust into the eyes of the Court. Furthermore the Plaintiffs contend that Obene We is always instrumental in whatever is done at Nii Ashia We for instance the “Kotsa yoo” i.e. Sponge woman or keeper or sponge in Ashia We now is from Obene We.

16. In reply to paragraphs 40 & 41 of the Statement of Defence, the Plaintiff contend that no stranger settler is given any such recognition nor is any stranger settler given the headship of Ashia We and that from time immemorial all stranger settlers had always acted as heads and not substantive heads of Nii Ashia We. Furthermore the Plaintiffs contend that although Nii Ashia We does not install Wolumo, the Wulomo comes from Obene We to perform custom as the Osabu shrine in Ashia We.

18. In reply to paragraph 47 of the Statement of Defence, the Plaintiffs contend that it is not a matter of proficiently using the left and right that, the 1^st Defendant is a left-handed and left handed fellows by Ga custom are not installed family heads and chiefs etc.

19. In reply to paragraph 49, 50, 51, 52 & 53 of the Statement of Defence, the Plaintiffs contend that, the Nii Ashia We has bank note and account no. 1041500023611 which the 1^st Defendant presented to the ADR Panel at La, furthermore, Ashia We has a golden symbol now in the custody of the 1^st Defendant but has also a wooden symbol of Anuaku Sewaa hu, beside although the 1^st Defendant had been stopped from so doing, as he is a leftie, he has refused to take heed to good counsel.

20. In reply to paragraph 54 of the Statement of Defence, the Plaintiffs contend that the Anuaku Sewahu and the entire Akatamanso was conveyed to Jen Ayeo, and it was 1^st Defendant who drove the car that conveyed the golden symbol to the funeral and this came up at the ADR at La in the District Court case.

21. In reply to paragraph 59 of the Statement of Defence, the Plaintiff contend that no such installation of the 4^th Defendant has taken place to give him the capacity as Asafoatse Omrugu. Furthermore, since 1997 to date, during funerals, names of chiefs mourners are given and the 4^th Defendant’s name had always appeared as Laryea Alaska and not Asafoatse Omrugu as he is a Voltarian”.

Issues

At the close of the pleadings, the following issues were formulated for the determination by the Court. All the issues were adopted by the Court and same were set down. The issues were as follows:-

i. Whether or not the 4th Defendant is the Asafoatse Omrugu of Ashia We.

ii. Whether or not the 1st Defendant is the substantive head of Ashia We.

iii. Whether or not the Defendants have rooms in Ashia We.

iv. Whether or not 2 divisions i.e. Badu Anuaku and Nii Adjei Osaby Kwao Constitutes Ashia We or 4 divisions constitute Ashia We.

v. Whether or not the 1st Defendant has in his custody the golden symbol Anuakusewaahi.

vi. Whether or not Ashia We belongs to the Badu Anuaku and Nii Adjei Osabu Kwao family.

vii. Whether or not the Defendants are entitled to their counterclaim

viii. Any other issues arising out of the pleadings

Determination of the Issues by the Court

[9] Admittedly, several issues have been raised by the parties for determination by the Court but with respect, most of them can hardly be described as relevant. In the opinion of this court, there are only about three critical Issues which are very central to the determination of the controversy between the parties herein. Indeed it is the policy of the law that only those issues which are germane to the determination of a case must be decided by the court and not irrelevant issues although the parties might have led evidence on them. See DOMFE v ADU (1984-86) 1 GLR 653.

[10] In the opinion of the Court, the relevant issues are issues (i), (ii) (v) and (vii) together with issue (e) because in my view they are the most important issues for determination gathered from the pleadings and the evidence offered in this case.

[11] In my respectful view the above identified issues by the Court will no doubt effectively determine the dispute between the parties. The law is trite that a party who asserts a fact assumes the responsibility of proving same. The burden of producing evidence as well as the burden of persuasion is therefore cast on that party and the standard required is provided for by virtue of sections 10,11 and 12 of the Evidence Act 1975 [NRCD 323). The stated provisions have received judicial blessing as the Supreme Court has pronounced on them in the past to be the nature and standard of proof in civil cases.

[12] One of such decision is the case of ABABIO VRS. AKWASI IV [1994 – 1995] GBR 774 where Aikins JSC expounded the position as follows:

“The general principle of law is that it is the duty of a Plaintiff to prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this he wins, if not, he loses on that particular issue”.

[13] By the above statement of the law Aikins JSC reiterated the position of Kpegah JA. (as he then was) in ZABRAMA V. SEGBEDZI. [1991] 2GLR 221. See also the Supreme Court case of ACKAH V. PERGAH TRANSPORT LTD & ORS [2010] SCGLR 728 as well. In this case because the Defendants have also set up a counterclaim, they carry the same burden as the Plaintiffs in proof of their claim as if they were Plaintiffs for the purposes of proving their counterclaim.

The Plaintiff’s Evidence:

[14] The Plaintiff’s case consisted of the testimony of Nii Sowah Kpewie, the 3rd Plaintiff who described himself as the Deputy Head of the Osabu Kwao Family. His testimony started on July 11, 2012 and concluded on April 2, 2015. As part of his testimony he tendered some documentary evidence such as photographs and obituary notices in support of the Plaintiffs’ case and same were marked in the record as exhibits.

[15] The pith and substance of the evidence of Nii Sowah Kpewie from the record was that the Ashia We consist of two families namely Badu Anuaku and Nii Osabu Adjei Kwao families. He said they are the indigenous family members of Nii Ashia We. According to him their ancestors come from La Nmati Dzraase Nii Adjei Kpawe family. He told the Court that:

“the Moni family comes from the Fanteland and the Mefe family comes from the Eweland. The ancestors of Moni family came first and they came to Teshie. The Moni fishermen came and left their children behind and went back to Fanteland. They intended coming to pick them but they never returned. The Mefe people are from a town near Bator. They came and stayed at Teshie and they were living like orphans. They Mefe people started mingling with our ancestors. Our ancestors had sympathy on them and gave them a place to stay and to put their nets. Because of this help, our ancestors always called on the Mefe people and because of age, they started marrying the Teshie women, and started having children. They then approached the old folks to give names to the children. The children were given names and the names of where they come from were added to it. The real meaning of the name Moni is Momoni which changed over the years to Money. The names Mefe was added to all the names of the Ewe groups. 4^th defendant is from the Mefe family. The 1^st defendant is a Moni, he comes from the Moni group. Nii Osaby Aku gave birth to Nii Osabu Adjei Kwao”.

[16] His further testimony was that the ancestors of Defendants do not have rooms in the Teshie house. According to him the Plaintiffs’ ancestors gave the Defendants ancestors a place and right now they are living there and using it. He said “the place is about 22 feet from the shrine. It was a room. That is where the ancestors keep their fishing gear”. According to the witness for the Plaintiffs “strangers do not have any role to play is Ashia We”. He also said the 1st Defendant is a caretaker and the 4th Defendant does not have any office even though the 4th defendant calls himself Omrugu. According to the witness the 4th Defendant has appropriated the title of Omrugu. Nii Sowah Kpewie also said the 4th Defendant does not come from Badu Anuaku or Osabu Adjei family and therefore cannot be an Asafoatse. He said “Omrugu is the title of the Asafoatse and 4th Defendant is not”.

[17] Nii Sowah Kpewie’s further evidence in regards to the 4th Defendant was that “to be appointed, confirmed and out doored by a chief, you will have to swear an oath to the chief. For a long time Teshie has not got a chief and so we do not have a chief therefore we do not know who out doored him”. He also said the 1st Defendant is not qualified to be the Head of Family because “he is a leftee and by custom he cannot become even a caretaker. In addition he has been in cells before and by custom he is not fit to hold any position. He was once remanded for two weeks at Usher Fort and because of that he cannot hold any post. He cannot therefore be the head of the family for Ahia We.

When Bankadi Tetteh’s wife died. 1^st defendant went and locked the doors of Bankadi Tetteh and he was arrested and taken to the Nima Police Station. He locked the door so that children of Bankadi will not be able to enter the room. 1st Defendant had no right to enter the shrine. First of all he is a leftee and he is not a fetish priest. The shrine has its own fetish priest, 1st Defendant has not got the right to pour libation for the gods. He was hiding the fact that he was a leftee to us”.

[18] The Plaintiff also called Nuumo Sowah Obeney. His evidence was that the 1st Defendant is left-handed and therefore not qualified as the head of family of Ashia We. According to him even though the 1st Defendant is not qualified to be the head of family he has also usurped the functions of the Osabu Wolomo, the deity of Ashia We and poured libation at the shrine and desecrated the shrine as a result. According to the witness the 1st Defendant was never elected as the Head of Family because “traditionally anytime a new head of family is elected, as the traditional priest of the family I have to perform the rite for the person and since the demise of the last head of family I have not performed any rite for any person as head of family”. The Plaintiffs did not call any further evidence and closed their case.

The Defendants’ Evidence:

[19] It is worth mentioning that the Defendants denied substantially the claims of the Plaintiffs and testified that the Plaintiffs claims have no basis and so should be dismissed. The 1st Defendant denied the allegation that he has stolen the “Anuaku Sewahu” that is the golden symbol of the family. The 1st Defendant testified for himself and the other Defendants. His evidence was that he is from Teshie Nii Ashia We and the other Defendants are also from Ashia We. He testified that he is the head of the Ashia We family and he has held that position since 1991. Let us hear him from his own words;

“In 1991 the elders called me that they wanted to see me. These elders include Nii Bakadi Tetteh, Nii Laryea Bukosi, Nii Dzorbua, Nii Mefe Adjei, Nii Adzete Borsu and other elders. They told me the head of family, Nii Laryea Kordzo alias Akwesi was not feeling well so I should act as the head. I agreed and performed some rites. Libation was poured. Two months on, the substantive head died and I was the one who performed the burial ceremony of the deceased head of family. “Komi” was brought and placed on my neck and they poured powder on me. The one who placed the komi on me was called Nii Allah Amraku Atse from La. He came with Nii Allah Korkor who was also the Asafoatse. I resumed my function in 1991. I cannot tell the month and date.

[20] He also said his father was the head of family when he was young and that it was after the death of his father that Nii Akosi was made Chief. According to him “Nii Akwasi was from my father’s side of the family and I was made head of family after the death of Nii Akwasi. He also testified that after becoming the head of family he performed rites at funerals and also poured libation for the deity. He further testified that “since I had been made head of family, no one had challenged my authority. I performed the funeral rites of all those who elected me. Nobody challenged me. I had been performing certain functions including Homowo. I do so with the consent of Wulomo of Teshie. I have a publication and a picture performing Teshie Homowo with the Wulomo”. He tendered for example a publication in the Ghanaian Times of August 13, 1998 and same was marked as Exhibit “3”.

[21] The further evidence of the 1st Defendant was that the “La Kpang Okang was the 1st son of Moni and was my grandfather who gave birth to my father. He was the chief priest of La and Teshie. The La Kpang Okang I and the La Kpang Okang II are all from the Nii Moni family. According to him “the word Moni is not tied up with the word Momoni”. He said “Moni was so handsome and very fair in colour and so his mother came for him to go trade in Fanteland and whenever they went for trading the white men used to give the boy money and he will be refusing and the white guys will be shouting, this is money. That is the origin of money as a name. Money actually came from La. Amoni fishing came only in the 1950’s”. He also said that his grandfathers settled over 300 years ago and so the Moni name there could not have been coming from any fish.

[22] Nii Boye Kumah further testified that “Our grandfather Nii Adjei travelled to Mefe as a laundry and washing man. He took this work to Mefe and was doing it there when he returned, people referred to him as Nii Adjei Mefe. The name then stuck as Mefe. He said they have four division in Ashia We. Nii Adjetey Moni, Nii Adjei Mefe, Nii Badu Anuaku and Nii Osabu Adjei Kwao. These four division had been there since 300 years ago. He said the 1st and 3rd Plaintiffs are from the Nii Osabu Adjei Kwao family. Their grandfather who gave birth to their father is from the Nii Badu Anuaku family of Ashia We. The Plaintiffs are a part of the family but they have no positions. According to him the 4th Defendant was appointed by the family as Asafoatse but the 3rd Plaintiff does not know because at the time he was not coming home so he does not know 2nd Plaintiff prevented the appointment. According to Nii Boye Kumah the 4th Defendant has the right to be the Asafoatse because all the oldmen who appointed him at a dawn meeting are all dead and gone.

[23] Nii Boye Kumah admitted that he is left-handed but insisted that there is no custom that precludes him from being the head of family on that account. According to him the elders who appointed him knew that he was left-handed but they nevertheless appointed him. No other witness was called by the Defendants before closing their case.

The Court’s Opinion & Analysis:

[24] In ABAKAH AND OTHERS v. AMBRADU [1963] 1 GLR 456 the Supreme Court laid down the law that “the right of removing the head of family from office is vested in the principal members of the family and the act of the majority would be binding upon the rest”. The Court further held at Holding 3 that “A head of family cannot be removed without notice. A complaint must be lodged against him and he must be summoned to answer it”.

[25] In QUARCOO v. ALLOTEY [1980] GLR 788 also, Edward Wiredu J (as he then was) held at holding 2 that “The requirements of the customary procedure for the appointment and removal of a head of family or a successor were that: (a) a meeting of the family must be convened; (b) the purpose of the meeting must be spelt out, (i.e. to consider complaints brought against the head or successor (c) all principal members of the family entitled to be invited must be so invited. Such principal members were those recognised by the family as qualified to take part in the appointment of a successor or head; (d) decision must be taken by vote of the majority of the invited principal members present (that was always done in conference by consultation); (e) the proceedings must not violate any fundamental principle of the administration of justice; and (f) it was also desirable that the charges must be set forth in advance before the meeting day if they were in written form. Where the head was first informed of the charges on the day of the meeting an adjournment should be acceded to at his request in order to afford him a reasonable opportunity to answer the charges.

[26] In the case at bar the Plaintiffs’ pleaded that the Defendants and in particular the 1st Defendant refused to respond to their call hence the filing of the suit. The Court however notes that no evidence by way of any invitation of the 1st Defendant to attend a family meeting and/or a complaint against him was put before the Court to support the contention. I am therefore proceeding on the basis that even though the Plaintiffs concede that the 1st Defendant was appointed a caretaker head of family and has indeed acted for many years the above customary procedure was not followed before they instituted the suit imploring the Court to pronounce on the eligibility of the 1st Defendant as the head of family.

Issues i and ii:

[27] I shall proceed to address the issues I have identified above with the understanding that the Plaintiffs case is that the 1st Defendant is a self-acclaimed head of family of the Ashia We family and the 4th Defendant has also arrogated to himself the position of Asafoatse Omrugu, a traditional office reserved for the indigenous members of the Ashia We. The Plaintiffs claim that the Defendants are stranger settlers whose ancestors hail from Mepe in the Volta Region and Moni in the Western Region. They also contend that the 1st Defendant in particular apart from not being an indigene of Ashia We is also a southpaw and therefore not qualified to hold that position. They also contend that he was locked up in police cells and that also disqualifies him. And so, at the end of the trial did the Plaintiffs discharge the legal burden placed on them?

[28] As a general rule, in determining whether an alien or a foreigner has become identified with a family, the whole evidence must be looked at to see whether there is that degree of participation and association as would be sufficient to show a case of complete identity with the family, and the evidence of participation and association must be clear and unambiguous. As stated above the Plaintiffs contend that the Defendants are stranger settlers who were adopted by the indigenous members of the Ashia We family and therefore are not qualified to occupy any chiefly position. A review of the evidence clearly shows that apart from the bare assertions of the Plaintiffs’ witness no proof was provided to the Court. It is trite that he who asserts must prove. No historical data was tendered to back the assertion and no witness without a vested interest was called. The whole evidence bothered on allegations and denials and nothing more.

[29] In fact, the Plaintiffs evidence as to whether or not the 1st Defendant is the head of family and or whether he is qualified in the first place is riddled with inconsistencies and contradictions such that it is not worthy of believe. In one breath they contend that he is not qualified because he is a descendant of a stranger settler and also lefthanded. But in a clear departure from that assertion they say he was appointed as a “caretaker”. That clearly is a contradiction in terms because how could he be qualified as a caretaker head of family as a lefthanded person but not qualified for the real deal?

[30] A review of the evidence shows that many members of the 1st Defendant’s family line occupied either the same position he is occupying now or some other positions previously and the Plaintiffs’ witness conceded to same. This is what transpired when the 3rd Plaintiff, Nii Sowah Kpewie was cross-examined by Counsel for the Defendants on 23 January 2014.

“Q: You know Nii Laryea Bukoshie

A: Yes

Q: He is deceased

A: Yes

Q: In his lifetime he was a linguist

A: Yes and also a leader of the family

Q: Who was there before Bukoshie took over

A: Nobody

Q: Are you saying there had never been a linguist until Bukoshie came?

A: There was a linguist

Q: Who was the linguist?

A: I cannot tell. I was young then…

Q: I suggest to you that all names I have mentioned earlier were all linguists

A: That is not true.

Q: I put it to you that it was not Bukoshie who performed your father’s funeral. It was 1^st Defendant who presided over the funeral

A: That is not true. At that time 1^st Defendant had no position.

Q: You said 1^st Defendant is only a caretaker

A: Yes

Q: To the best of your knowledge when did the 1^st Defendant begin acting as head of Ashia We family?

A: He started from 1999. In his acting he was straying into areas he was not supposed to go to or do.

Q: Is your problem with his position or what he was not doing properly that is the legality of what he was doing

A: That is so. He was acting ultra vires

Q: He was acting since 1999

A: Yes…

Q: Before the 1^st Defendant, who was the head of family?

A: It was NiiLaryea Bukoshie

Q: Was Nii Laryea Bukoshie a linguist or head of family?

A: He was a linguist and at the same time the head of family.

Q: In Teshie and in Ashia We family it is never the case that the head of family can be the linguist of the family

A: After the death of our ancestors there had not been any specific installation of head of family. Everybody arrogates the position of the head of family

Q: When did the last head of Ashia We family die?

A: In 1997. That was Nii Laryea Bukoshie

Q: I put it to you that 1^st Defendant was acting since 1991

A: At that time we were not referring to 1^st Defendant as head of family

Q: Who was the head of family in 1991?

Q: How old were you by then

A: I was 22 years then”.

[31] In yet another snippet of cross-examination, the Plaintiffs’ witness confirmed the role of the 1st Defendant and some elders who lived before him in the Ashia We Family on April 2, 2015. This is what transpired:

Q: Do you know any of the heads of Ashia We family

A: I know a lot of them. Tikuo Nuumo Mensah, Atta Tsu and Nii Tsenesa. I met my father too. Nuumo Obene Kwao and my grandfather Nuumo Adjei Obene

Q: Have you ever heard of Nii Laryea Kuma

A: My lord I came to hear it

Q: You heard of him as what.

A: One of the heads of the heads of the family

Q: What about Nii Laryea Kojo alias Akwesi as head of the Ashia We family

A: If I am going by our custom I will explain further

Q: 1st Defendant is the son of Nii Laryea Kumah

A: That is so

Q: Nii Laryea Kojo alias Akwesi is the nephew of the 1^st Defendant

A: Yes the names mentioned as my grandfather’s younger siblings.

Q: Since 1991 he has performed all these duties without any challenges including you

A: The customs that he is performing no one has given him the authority to do”.

[32] It is clear from the above exchange that the Plaintiffs’ concede that the 1st Defendant’s ancestors and in particular his father and uncle held positions in the Ashia We Family despite the Plaintiffs contention that they were strangers and not qualified to hold responsible positions in the family.

[33] Based on the evidence heard at trial it is my holding that the Plaintiffs objection to the 1st Defendant that he is not qualified to be the head of family on the grounds that his ancestors were strangers is without basis and untenable. No cogent and/or properly acceptable evidence was proffered by the Plaintiffs to support the allegations. Rather, I am persuaded by the Defendant that he first acted as a caretaker and later confirmed by the elders. The exhibits tendered including photographs showing him perform the role as the head of family lead me to accept his version of the story as more reasonable and plausible. In coming to this conclusion, I reject the Plaintiff’s Counsel’s line of cross-examination and the submission that because no photograph of the 1 Defendant’s confirmation and outdooring by the elders was tendered at trial for instance the appointment and confirmation it did not take place. To my mind the argument and submission are too simplistic.

[34] I wish to state that I have no difficulty in dismissing the Plaintiffs basis for challenging the 1st Defendant’s qualification as the head on family on the ground that he is left-handed. First no acceptable customary evidence was provided to the Court to support the contention and therefore the allegation remained unproven. Secondly, in my respectful view any such customary belief is not only repugnant to good conscience and common sense but would be inconsistent with the 1992 Constitution as the supreme law of the land and to the extent of the inconsistency is of no legal effect.

The Constitution provides under Article 17 as follows:

“(1) All persons shall be equal before the law.

(2) A person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status.

(3) For the purposes of this article, "discriminate" means to give different treatment to different persons attributable only or mainly to their respective descriptions by race, place of origin, political opinions, colour, gender, occupation, religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description”.

[35] Applying the above Constitutional provisions to the facts of this case, I am of the view that the effect of the Plaintiffs’ position is to deny any citizen whose physical make-up includes being a left-handed person from participating and holding a family position such as a head of family. To confirm their weird position the Plaintiffs are in Court to recruit the Court to participate in and give its imprimatur to their discriminatory enterprise. Sitting as a judge I cannot accept that invitation because it reflects stereotypical views of a group based upon their personal characteristics, thus promoting the view that those who are left-handed or have certain physical attributes are less worthy of recognition as members of the Ga society or Ghanaian Society generally. This is clearly not a reasonable limitation in a free and democratic society and I unequivocally reject same.

[36] I also note that no evidence of conviction against the 1st Defendant was provided to the Court as basis for his disqualification. There is a record of conviction of any person once that conviction is entered against that individual. The fact that no record was tendered to confirm the so-called conviction of the 1st Defendant informs me that the allegation is not true. The Plaintiffs ought to know that there is a world of difference between a conviction and a police arrest. The fact that the 1st Defendant was arrested by the police or remanded in custody again cannot be the basis for the argument that he is not qualified to be the head of a family when no evidence was provided except the testimony of a witness whose credibility based on the proceedings is questionable. Therefore, based on all of the above I wholly reject the Plaintiffs protestations as without basis and hold that the 1st Defendant is the substantive head of the Ashia We family.

[37] I now turn my attention to the status of the 4th Defendant as the Asafoatse Omrugu of Ashia We. Giving evidence in support of the assertion that the 4th Defendant is not the Asafoatse Nii Sowah Kpewie and Nuumo Sowah Obeney said he was not appointed because according to the Osabu Wulormor as the traditional priest he has not performed any rites to confirm the election and confirmation. In my opinion the onus was on the Plaintiffs to again provide the Court with cogently acceptable evidence but they again fell short. In the opinion of the Court Mr. Neequaye properly stated the law when he relied on the Supreme Court case of T.K. SEEBERH & CO LTD. V. MENSAH [2005-2006] SCGLR 341 in his submission to the Court that “mere assertion by a witness does not amount to proof”. Even though he used the case against the Defendants, in my view the principle rather applies to the Plaintiffs who came to Court to challenge the status of the 4th Defendant. They only provided assertions which were based on nothing.

[38] Significantly, in my view Nii Boye Kumah was never challenged on his material evidence that the 4th Defendant was appointed as an Asafoatse by the elders of the Ashia We family either by way of cross-examination or any evidence offered by the Plaintiff’s in rebuttal. As a settled rule of law, where a party has given a material evidence and was not cross-examined on that material evidence no issue was joined and that party needed not offer further evidence in that respect. The cardinal presumption is that the other party admits the evidence proffered. See: FORI v AYIREBI (1966) GLR 627 SC and TAKORADI FLOOR MILLS vs. SAMIR FARIS [2005-2006] SCGLR 882. In the result I accept it for a fact that the 4th Defendant is the Asafotse of the Ashia We because again, no customary evidence was submitted by the Plaintiffs to show that the 4th Defendant is not qualified to be the Asafoatse. As earlier stated the case of the Plaintiffs is riddled with serious doubts, untruths and inconsistencies and discrepancies which make it difficult to believe.

[39] The issue v is whether or not the 1st Defendant has in his custody the golden symbol Anuaku Sewahu? Having heard the evidence it is my understanding that this demand is untenable because the Anuaku Sewahu is said to be a symbol associated with position of the Head of Family. As held earlier, if the 1st Defendant is the head of family then he is entitled to keep same to signify his authority. In any case, like the other claims the Plaintiffs only mounted the box to make allegations of the theft without more. Again, I am not persuaded that any cogent evidence was led support the Plaintiffs allegations of theft.

[40] The other issues, including whether or not the Defendants have rooms in Ashia We, I think are of no moment since that is not central to the determination of the real controversy between the parties. Thus it is not necessary for the court to embark on any voyage which will not assist it in the determination of the central issue. Also, with regards to the 1st Defendant accounting for his stewardship as the head of family, it is my holding that the Plaintiffs should resort to the laid down rules established by both custom and the Courts.

[41] Finally, on the issue whether or not the Defendants are entitled to their counterclaim. Having reviewed the evidence in its entirety, I am of the view that the Defendants are entitled to judgment on their reliefs (i), (ii) (vii) and (ix). I am unable to grant the other reliefs because as Plaintiffs in the Counterclaim with the burden to establish their claim with acceptable evidence to the Court, they failed because the Court did not receive any acceptable evidence for the grant of the other reliefs; in particular reliefs (iii) and (vi) for instance.

[42] Consequently, the Plaintiffs’ claims are all DISMISSED as unproven because this Court cannot remove the 1st Defendant as the head of family and or a caretaker head of family. The other reliefs of the Defendants save the ones granted in paragraph 41 above are also DISMISSED. Cost of GH¢5,000.00 to the Defendants against the Plaintiffs.