The High Court has declared the supposed Ga traditional customs which deny southpaw or left-handed (Leftees) persons the opportunity to hold a family position as discriminatory and is therefore unconstitutional.
According to the Court, such a practice is stereotypical and thus not a reasonable limitation in a free and democratic society like Ghana.
Justice Kweku Tawiah Ackaah-Boafo, now a Justice of the Court of Appeal, delivered this judgement in the case filed by the members of the Ashia We Family of Teshie in contention over who was qualified to be Head of the Family in March 27, 2019.
The Plaintiffs in the matter who initiated that action were Nii Boye John, Nii Kormetteh Okang and Nii Kpewie Sowah.
Whilst the defendants of whom the action was against were Nii Boye Kumah, the 1st Defendants, Nii Kyle Adjei, the 2nd Defendant, Nii Agoe Laryea, Nii Laryea Alaska, the Asafoatse of Omrugu whose status was also challenged, Andrews Okai Laryea and NH Sowah Achia.
The plaintiffs were seeking the declaration that the substantive head of the family, Nii Boye Kumah was only appointed caretaker of the Ashia We family but not as its head.
As part of the Plaintiffs making their case in court through Nii Sowah Kpewie, told the Court that the substantive family head, “is a ‘leftee’ and by their custom, he cannot become even a caretaker.”
It was the case of the Plaintiffs that, the substantive head, Nii Boye Kumah had no right to enter the shrine because he is a ‘leftee’ and also not a fetish priest.
The Plaintiffs further contended that the substantive family head had not got the right to pour libation for the gods.
They also testified that Nii Boye Kumah who is the 1st Defendant – the family head had been hiding the fact that he is a ‘leftee’ from them.
But, the 1st Defendant though admitted that he is a southpaw rebuffed the assertion from the Plaintiffs in the matter that, such was the case.
Justice Ackaah-Boafo, who delivered this judgment in March 27, 2019 when he was a Justice of the High Court (General Jurisdiction 6) said, the court established that no acceptable customary evidence was provided to support the Plaintiffs’ contention that a ‘leftee’ cannot be a family head.
Justice Ackaah-Boafo’s court held that such a customary belief is not only repugnant to good conscience but inconsistent with the provisions of the 1992 Constitution.
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”.
It was the decision of the Court, such an invitation by the Plaintiffs is stereotypical 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 and rejected the same.
The Court also dismissed the Plaintiffs’ objection that the substantive family head was not qualified because his ancestors were strangers and held the 1st defendant, Nii Boye Kumah as the substantive head of the Ashia We family.
Plaintiffs’ Argument
While making their case, Nii Sowah Kpewie’ one of the Plaintiffs in his evidence to the court 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.”
He also added that, the 1st Defendant has been in cells before and by custom he is not fit to hold any position.
According to him, he was once remanded for two weeks at Usher Fort and because of that he cannot hold any post and cannot therefore be the head of the family for Ahia We.
He told the Court that, when Bankadi Tetteh’s wife died, the 1st 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”.
The Plaintiffs also called Nuumo Sowah Obeney and it was also his evidence 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 had 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”.
1st Defendant’s opposition
Opposing to the Plaintiffs’ contention, Nii Boye Kumah (1st Defendant) though admitted that he is left-handed, denied the existence of such a custom.
He however, 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.
By Court
Justice Ackaah-Boafo, now a Justice of the Court of Appeal, in his judgement said, 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.
“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 1st Defendant’s confirmation and outdooring by the elders was tendered at trial for instance the appointment and confirmation did not take place. To my mind the argument and submission are too simplistic.
“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”.
Justice Ackaah-Boafo said, “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.
Weird position
“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,” the Court stated.
“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,” Justice Ackaah-Boafo affirmed the 1st Defendant as substantive head of family.
The Plaintiffs Reliefs & Claims
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.
Defendants Counterclaim
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 1st 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 4th 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 1st and 3rd 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 1st 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”.
Source: Kasapafmonline.com/Murtala Inusah
