HIGH COURT, KUMASI
DATE: 31ST JANUARY, 1962
BEFORE: DJABANOR J.
CASE REFERRED TO
John Lewis & Co. v. Tims [1952] A.C. 676; [1952] 1 T.L.R. 1132; [1952] 1 All E.R. 1203, H.L.
NATURE OF PROCEEDINGS
ACTION for £G5,000 damages against defendants jointly and severally for unlawful arrest and false imprisonment. The facts, set out in the headnote, are taken from the judgment of Djabanor, J.
COUNSEL
D.K. Afreh for Owusu Yaw for the plaintiff.
[p.42] of [1962] 1 GLR 40
JUDGMENT OF DJABANOR J.
By his writ of summons the plaintiff claimed from the defendants jointly and severally £G5,000 damages for unlawful arrest and false imprisonment. The brief facts of the case are as follows. The plaintiff was until late in 1958 the chief of Yamfo – a town about thirteen or fourteen miles from Sunyani. During the latter part of that year destoolment charges were preferred against him and by notice published in the Gazette of the 8th November, 1958, he was declared destooled with effect from 26th August, 1958. Subsequent to this notice, the Yamfo Stool Property Order was published in the Gazette Supplement dated the 13th December, 1958, authorising the newly enstooled chief of Yamfo Nana Boama II, to seize, take possession and make an inventory of the stool property pertaining to the Yamfo stool and to eject the occupants of any land or buildings forming part of such stool property. As a result of this order, which the plaintiff claimed not to be aware of, Nana Boama II ejected the plaintiff’s caretakers from and seized the plaintiff’s farm, claiming the same to be stool property. The plaintiff, therefore, made a complaint to the police at Kumasi. Later, on the 18th December, 1958, he proceeded to Sunyani to prosecute his complaint when, as he alleged, he was surrounded by the police, manhandled and forced into a police vehicle and taken to Yamfo, and there forced to surrender the stool property to Nana Boama II. At Yamfo he alleges that he was again manhandled and pushed about and detained in the Ahenfie for the duration of the handing over. When, at the end of the day, he had not completed the handing over, he was again forcibly put on a police vehicle and taken to Sunyani police station where he slept the night on a hard bench in the police charge office. He was released the next day after completing the handing over at Yamfo. He claimed that from the time he arrived at the police station at Sunyani and was surrounded to the next day when he was released after completing the handing over of the properties he had been under unlawful arrest and imprisonment. In his detailed statement of claim, however, the plaintiff claimed in addition to what he claimed in his writ, the return of a car No. AS 4007 or its value estimated at £G400. He alleged that while he was at Sunyani the defendants forced his driver, one Banda, to surrender the car to them which they impounded and gave to one Nana Kofi Boama II. Apart from the fact that this claim is wrong by reason of misjoinder, there is in fact no admissible evidence in support of it. The plaintiff himself was not present when the car was handed over by his driver and the driver did not give evidence. At the material time the car was in the possession of Boama II, who had seized it as stool property. If the plaintiff had any claim it should be against Boama II. That claim therefore cannot succeed.
In support of his claim for unlawful arrest and false imprisonment the plaintiff pleaded these paragraphs:
“5. On or about Thursday the 18th day of December 1958, plaintiff, at the invitation of the defendants, visited the Ghana Police Station at Sunyani in connection with a complaint of stealing previously made by the plaintiff against the aforementioned Kofi Boama II. Plaintiff arrived at the said Police Station at about 8 o’clock in the morning.
7. Defendants thereupon unlawfully, illegally and wrongfully arrested plaintiff, and by causing plaintiff to be surrounded by about thirty Ghana policemen in the courtyard of the said Police Station, deprived plaintiff of his liberty of movement save in a direction ordered by defendants.
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8. Defendants then forced plaintiff into a police vehicle driven by a policeman and carrying other policemen, and conveyed plaintiff, in a convoy of three police vehicles carrying policemen armed with rifles and batons, to Yamfo.
9. At Yamfo plaintiff was ordered by defendants to surrender and hand over the stool property of Yamfo to them defendants, presumably in execution of the aforementioned Gazette Order.
11. In the evening of the said Thursday plaintiff was escorted back to Sunyani Police Station by defendants in the same style as that in which he had been escorted thence, but accompanied by one Kwame Adwabo, who was arrested by defendant in Yamfo, and who is nephew to one Yaw Ntem, linguist of Yamfo.
12. At Sunyani plaintiff and the said Kwame were ordered to remain seated on a bench behind the counter in the charge office of the Sunyani Police Station, and were compelled to spend the night there, under guard, in a position highly unconducive to comfort, repose and sleep.
13. The next morning, Friday, plaintiff was conducted back to Yamfo by defendants in the style above described, and compelled by defendants to complete the handing-over of the stool property, which ended at about 4.30 o’clock in the afternoon.
15. During the events described in paragraph 7, 8, 9, 10, 11, 12 and 13 herein, plaintiff was assaulted roughly pushed about and manhandled by defendants and other policemen under the orders of defendants.
The defendants, of course, denied the allegations contained in these except paragraph 5. I will first examine the plaintiff’s evidence in support of his claim. The plaintiff alleged that he was called to the police headquarters by a policeman and that when he got to the police station he was immediately surrounded by about 50 policemen. He said the defendants were there at the time and they told him that they were taking him to Yamfo to take inventory of stool properties. He wanted to go in his own car but the defendants did not allow him to do so and the policemen surrounding him forced him into the police vehicle and took him to Yamfo. The plaintiff’s first witness Kwame Afrim – the Abakumahene – was not at Sunyani so he did not know what happened there. Kwame Adwabo too did not accompany the plaintiff to Sunyani when he was surrounded and forced into the vehicle and brought to Yamfo. His third witness Kwaku Appiah also did not go to Sunyani with the plaintiff. That leaves the evidence of the plaintiff alone without corroboration. The plaintiff’s driver, Dauda, is his own son. I do not know why he was not called, nor Alhaji. As against his evidence there is the evidence of Mr. Cobbina, the first defendant, which was corroborated by the second and third defendants and their witness, Chief Nana Boama II.
This is the relevant part of Mr. Cobbina’s evidence: “He came on the 18th December (Thursday). On that day he came at about 9 a.m. – 10 a.m. I told him that I had received no reply. He then said he had further information to give me on that case. He said the cocoa was still being plucked by Nana Boama and his supporters. I said we may require a further statement from him. He was then accompanied by three people. I took him to C.I.D. office and handed him over to sub-Inspector Adjesu (now deceased) to take the statement from him. I left him there and came to my office. About one hour or so afterwards – while in my office – Nana Kofi Boama came to see with a complaint that he had been searching for the plaintiff with a view to serving a Gazette Notice on him in connection with his destoolment and also to request him to hand over the stool properties of Yamfo. Boama showed me the order. He sought my permission to confront plaintiff with it. Plaintiff was in the Police Station at the time. As far as I know he was still with Inspector Adjesu. I said that it was in order and think I detailed one of my
[p.44] of [1962] 1 GLR 40
constables to take him across to Adjesu’s office. Boama left with the constable. He too had about two persons with him. Some ten or fifteen minutes afterwards I heard a lot of shouting coming from the direction of Adjesu’s office in the yard. I went across to find what was going on. Upon enquiring from Adjesu in the presence of plaintiff and Boama he told me that plaintiff resented being shown the Gazette Notice by Boama. I myself observed the plaintiff was very angry. I asked plaintiff whether he has not been destooled, and he said no. I asked him if he knew that Boama was the new Chief of Yamfo and he said he did not know. I explained the contents of the Gazette Notice to him, and told him that it was a genuine document and that he should not argue about it. He said he was surprised that his own nephew a younger brother should treat him in that manner. I told him that they should settle their differences. He then agreed that he would go to Yamfo to hand over the properties to Boama. But he said he would only go on condition that police gave him adequate protection. In the circumstances I came to my office and
telephoned second defendant, Mr. Asante in his office about a quarter of a mile or so away. I requested him to come to my office with about a dozen policemen.”
This is what the second defendant, Mr. Asante, had to say. “Upon the instructions of Mr. Cobbina I took plaintiff in my Land Rover to Yamfo because he had no car. I took plaintiff, one Alhaji and about two others to Yamfo in my Land Rover. Plaintiff was not forced into the Land Rover. He sat in the front seat between myself and the driver. I did not use force of any sort on the plaintiff. No other police officer used any force on the plaintiff. I did not in any way threaten the plaintiff. I deny the allegation that I assaulted the plaintiff at Sunyani or at Yamfo. After plaintiff had got in the Land Rover we were driven to Yamfo.”
The third defendant, Mr. Akumeah, too said: “On 18th December, 1958, I went in a police Commer pickup to the Regional Headquarters with another inspector and ten other policemen. We did not alight from the pickup when we got to the Police Headquarters. Later we were instructed to go with second defendant to Yamfo to keep the peace there. I saw plaintiff on the verandah of the A.C.’s office that day. He went in second defendant’s Land Rover to Yamfo. At the Regional Headquarters I did not any way assault the plaintiff. I did not in come down. I did not see second defendant or first defendant or anybody else assault him.”
This was confirmed by the evidence of Nana Kofi Boama II. Upon the totality of the evidence in this regard and from the demeanour of the witnesses I prefer the evidence of the defendants that they did not surround the plaintiff, a man not young, and of no noticeable violent disposition who was coming to the police station of his own volition. I think Mr. Cobbina’s version of the facts is the true statement of what happened. There was clearly no unlawful arrest and/or false imprisonment at this stage.
It is the plaintiff’s case, too, that at Yamfo his liberty was restrained, presumably during the handing over of the stool properties, by the defendants. From the evidence of the plaintiff and his witnesses what the defendants (the first defendant did not go to Yamfo) did at Yamfo was to assist in the handing over of stool properties and to keep watch both inside and outside the Ahenfie so that there was no breach of the peace. There is evidence that there was tension in the town due to the controversy between the rival supporters of the plaintiff and Nana Boama II, and the police were a necessity at the handing over. There is no suggestion that during the handing over the plaintiff wanted to leave and was prevented from so doing. Indeed there would have been no justification for the plaintiff leaving when he had not completed the handing over. The police were in and outside of the Ahenfie not to
[p.45] of [1962] 1 GLR 40
prevent the plaintiff from coming out but, as stated, to keep the peace during the handing over. There could have been no restraint of the liberty of the plaintiff during the handing over on the 18th December.
At the close of the handing over on the 18th December, 1958, the plaintiff was taken back to Sunyani in a police vehicle and kept in the police station in custody. This, the plaintiff claims, is unreasonable and unlawful. He says he was not told for what offence he was taken in custody that night. The answer of the defendants, particularly the second ant third defendants, is that they lawfully escorted the plaintiff to Sunyani on this occasion for the purpose of detaining him in connection with an offence committed in their presence, namely, hindering the said Nana Boama II in the exercise of authority vested in him by the Yamfo Stool Property Order, 1958.
As the Order is made under the provisions of the Statute Law (Amendment) (No. 2) Act, 1957, [1] it might be as well to refer to the Act here. Its provisions include the following:
3. Where under the provisions of any law it is reported to the Governor-General that a person has been deposed as Chief, a notice to that effect shall be published by the Minister in the Gazette.
4. . . .
(1) Upon publication of a notice under the provisions of section 3 of this Act, the Minister may by Order authorise any person to take possession and prepare an inventory of the stool property, and when made the inventory shall be certified by the person authorised and be delivered to the Minister.
(2) By the same or any other Order the Minister may direct any person to seize the Stool property where possession of the Stool property is not obtained within fourteen days of the publication of the Notice under section 3 of this Act. Any such Order may where necessary authorise the ejectment of any occupant of land or buildings forming part of the Stool property.
(3) Every Order made under this section shall be published in the Gazette.” Section 7(1) provides for the punishment upon summary conviction of any person interfering with, hindering or knowingly giving false information to a person in the exercise of his authority under the Act, and section 7(2) extends this proviso to a person who fails to deliver up possession of stool property as required by the Act.
Since the two defendants admit that they restrained the liberty of the plaintiff, it is for them to show the legal justification for so doing. According to the defendants, the plaintiff was not taken back to Sunyani because he did not complete the handing over, but because he refused to hand over the black stools contrary to section 7 of the Statute Law (Amendment) (No. 2) Act, 1957. [1] Nana Boama II confirmed this evidence too. The plaintiff denied that he refused to hand over the black stools. He said when it came to the black stools he remarked that they were with Yaw Ntem, the linguist, and that if he was not present (as he was not on that day) then one Kwame Adwabo, P.W.2, could bring the stools. He said in spite of this announcement the police took him again into custody to Sunyani.
According to the police the plaintiff said he did not know where the black stools were. In support of the chief, Yaw Afrim confirmed that he told the gathering where the black stools could be found but the police did not agree. But this witness did not impress me as a truthful man at all. He weaved a web of lies around himself in connection with the car until he apologised and confessed that he had not been truthful.
[p.46] of [1962] 1 GLR 40
Adwabo is the only other witness who spoke about the black stools incident. Even he was not in the Ahenfie at the time. He deposed as follows: “On the day plaintiff and the police came the stools were in Yaw Ntem’s room. When we were going to the Ahenfie and were driven away I went to the outskirt of the town. I stayed there for sometime and when I came back and was told that they were looking for the black stools I went and produced them from the place where my uncle told me he had kept them before he went away. A brother-in-law of mine called Kwaku Poku told me that they were looking for the black stools and could not find them so they had taken my uncle back to Sunyani until the black stools were produced. I therefore ran to the place the black stools were kept and with the assistance of the sons of the plaintiff we brought them to the Ahenfie. By this time plaintiff had been taken back to Sunyani. When I brought the stools to the Ahenfie the new chief and the policemen asked me to show them where I produced the black stools from.”
It now appears that the plaintiff was taken back to Sunyani “until the black stools were produced”. One point that struck me as odd, was the evidence that it was quite permissible for the black stools of this town to be moved about from the stool room to Yaw Ntem’s house, to his bedroom which presumably he shares with his wife. I do not think that it is in conformity with native custom. A black stool is not just a piece of furniture. It is a sacred emblem signifying the progress and unity of the state, town or clan. Special ceremonies are performed for it on special occasions. It is so sacred that it is not permitted to be seen at random. When the plaintiff says therefore that for purposes of safe custody of the black stools he had them removed from the stool room in the Ahenfie to Yaw Ntem’s house any time that he was away, I became suspicious of the real reasons why they were removed
from the stool room. My suspicion was confirmed when it came out in evidence that the plaintiff was removed unceremoniously from the stool and that he left the town, as he told the police at the Ahenfie, also unceremoniously. It seems to me that when he was being sent away so unceremoniously he arranged to have the black stools removed from their usual sacred abode. I think the plaintiff intended to conceal the existence and whereabouts of both the black stools and other items of stool property. According to the defendants the rooms were open and empty and it was not until Nana Boama threatened them that persons began to go and fetch the several items of stool property one by one. I believe that that was what happened. Adwabo admitted that he was told that the plaintiff had been arrested and taken to Sunyani for not surrendering the black stools and that he would be kept in police hands until the black stools were produced. He said in view of this he and the plaintiff’s sons went and surrendered the stools. I believe that the defendants took the plaintiff into custody when he refused to show where the black stools were and surrender the same. In those circumstances even if the police did not tell him why he was being taken into custody (and I am sure they told him) on the authority of John Lewis v. Tims [2] I hold that the plaintiff himself ought to have known – the circumstances were such that it was not necessary for him to have been told. He was released within 24 hours when, for good reasons, the defendants decide not to prefer the charge against the plaintiff for hindering the handing over of the stool properties.
From the foregoing I am satisfied that the plaintiff was not unlawfully arrested or detained either at Sunyani or at Yamfo and his claim accordingly fails. There will be judgment for defendants against the plaintiff.
DECISION
Judgment for the defendants.
