Nsiah v Ameyaw II

BROBBEY JA. The plaintiff claimed that he was the chief of Effiduase in the Asante Mampong traditional area and Acting President of the Asante Mampong Traditional Council. Nana Akuamoah Boateng was the Benkumhene of Effiduase. He died some time in late 1993. The plaintiff averred that by custom, the Effiduasehene had to be formally informed of the death of the Benkumhene before he would be buried.

The defendant, Opanin Kwabena Nkasi, is the head of the family of which the deceased Nana Boateng was a member. The deceased was one of the kingmakers of Effiduase stool with the customary right and prerogative to participate in the installation of the Effiduasehene. According to the defendant, a group of people “purported” to have installed the plaintiff as the chief of Effiduase without inviting the Benkumhene to participate as required by custom. Thereafter the deceased was not recognised by the plaintiff as Benkumhene and the late Benkumhene also never gave recognition to the plaintiff as the chief of Effiduase. The defendant therefore contended that the family of the deceased Benkumhene would not perform the custom of officially informing the plaintiff of the death of the Benkumhene because to do so would amount to giving recognition to the plaintiff as the chief of Effiduase.

The defendant nevertheless threatened to go ahead with the burial without performing the requisite custom. The plaintiff therefore issued a writ at the High Court against the defendant. The writ was for declaratory orders that: (1) it was the “customary and constitutional prerogative right of the office of the Effiduasehene to be customarily informed of the death of the Benkumhene Nana Akumaoah Boateng before his burial and funeral.” (2) that the “defendant was not competent to organise and arrange the burial and funeral rites of the said Benkumhene without the authority and consent of the plaintiff” and (3) “an order of injunction restraining the defendant or his agents from organising or arranging the burial and funeral rites of the late Benkumhene without first customarily informing the plaintiff as the Effiduasehene for the time being of his death.”

The defendant resisted the claim, mainly on the lines as already described, namely, that since the Benkumhene did not recognise the plaintiff as the Effiduasehene the head of family could not inform the plaintiff of the death because to do so would amount to giving recognition to the plaintiff as the Effiduasehene.

W