DIVISION: IN THE SUPREME COURT
DATE: 25TH MARCH, 1963
BEFORE: ADUMUA-BOSSMAN, BLAY AND AKUFO-ADDO JJ.S.C.
CASES REFERRED TO
(1) Bedford v. Ellis [1901] A.C. 1; 70 L.J.Ch. 102; 83 L.T. 686, H.L.
(2) Smith v. Cardiff Corporation [1954] 1 Q.B. 210; [1953] 2 All E.R.1373; 118 J.P. 33, C.A.
NATURE OF PROCEEDINGS
APPEAL from a judgment of Apaloo J. delivered in the High Court, Kumasi, on the ground that the
action was incompetent as a representative action and that the learned judge erred in law in ruling
otherwise. The facts are fully set out in the judgment of Akufo-Addo J.S.C.
COUNSEL
N.Y.B. Adade for the appellants.
D.S. Effah for the respondents.
[p.325] of [1963] 1 GLR 323
JUDGMENT OF AKUFO-ADDO J.S.C.
The respondents to this appeal (hereinafter referred to as the plaintiffs) who described themselves as
acting “for themselves and as representing the management committee of Kwamang-Kwabre No. 2 and
the farmers in the Kwamang Area,” brought an action against the appellants (hereinafter referred to as the
defendants) in the High Court, Kumasi, claiming by their writ of summons:
“1. A declaration of the Court that the second defendant’s predecessor in office having sold the timber
trees on Kwamang stool land to the plaintiffs for £G1,000 the first and second defendants have no
legal rights in the said timber trees and are not entitled to enter into any agreement for felling the said
timber trees.
2. An order of perpetual injunction restraining the third defendant upon an alleged agreement between
him and the first and second defendants from cutting timber on Kwamang stool land the said timber
having been sold to the plaintiffs for £G1,000 by the predecessor in office of the second defendant.
3. £G2,000 damages for trespass from the defendants whereof £G1,900 represents special damages
suffered by the plaintiffs through the cutting of timber trees and the destruction of cocoa trees and
other cash crops in their farms by the third defendants and £G100 represents general damages.”
The defendant Nana Owusu Banahene is the Ohene of Kenyasi in Asante, the defendant Kofi Ti is the
Odikro of Kwamang and a sub-chief of the Ohene of Kenyasi. The defendant Owusu is a timber merchant
to whom the other two defendants had granted timber felling rights on Kwamang land. The plaintiffs and
those whom they claim to represent in the action are all natives of Kwamang and therefore subjects of the
Odikro of Kwamang and the Kenyasihene.
The plaintiffs’ case is that the inhabitants of Kwamang are mainly farmers who have reduced into
cultivation the whole of the forest land in Kwamang. Sometime in 1949, according to the plaintiffs, the
Kenyasi stool needed money to defray a debt, and to raise the requisite money the then Kenyasihene and
the Odikro of Kwamang arranged to grant to a timber merchant (not the defendant Owusu) timber felling
rights on Kwamang land in consideration of the sum of £G1,000 which was apparently the amount
required by the Kenyasi stool to clear itself of its debt. The proposed grant was wholly unwelcome to the
farmers of Kwamang who contended that any timber felling operations on Kwamang land would do
irreparable damage to their farms inasmuch as every available timber tree on Kwamang land stood on a
farm belonging to one Kwamang farmer or another. To save their farms therefore from the ravages of
timber felling operations then and thereafter, the farmers of Kwamang offered to pay to the Kenyasi stool
the sum of money required to satisfy the stool’s debt. The offer was accepted, the proposed grant of
timber rights to the timber merchant was called off, and an agreement was reached between the farmers
and the stool of Kenyasi (represented by the Kenyasihene, the Odikro of Kwamang and the principal
elders of the stool) whereby in consideration of the sum of £G1,000 paid to the stool by the farmers, the
[p.326] of [1963] 1 GLR 323
Kenyasi stool, according to the plaintiffs, relinquished all its rights to all timber trees in Kwamang in
favour of the Kwamang farmers. In the words of the plaintiffs’ averment in their statement of claim:
“The Kwamang stool and its wing chiefs agreed with the farmers jointly that £G1,000 was the amount the
Kwamang stool and its wing chiefs expected from royalties for the timber and the farmers in the area
therefore jointly paid to the Kwamang stool £G1,000 on the understanding that ownership of the timber
thereafter vested in the farmers.”
The plaintiffs say in short that by that transaction the Kenyasi stool sold, and the Kwamang farmers
purchased, all timber trees standing on Kwamang land for the price of £G1,000.
In 1960 the Kenyasi stool made a grant to the defendant Owusu of timber felling rights on Kwamang land
to which the Kwamang farmers objected strongly as being in breach of the aforesaid agreement of 1949.
The defendant Owusu actually entered upon the land and started felling operations, hence this action.
The defendants in their defence, inter alia, challenged the propriety of this action as a representative
action and also denied that there was a sale of the timber trees on Kwamang land to the farmers or the
Oman of Kwamang. The defendants did not deny the payment of the £G1,000 to the Kenyasi stool by the
farmers of Kwamang, but they said, to quote from their defence, “The Kwamang people were requested
to, and they did contribute the sum of £G1,000, which they gave to Nana Owusu as a financial assistance
to help him prosecute his case.”
Apaloo J. from whose judgment this appeal has been brought by the defendants rejected the defendants’
challenge to the propriety of the action and found for the plaintiffs on the ground that there was a sale of
all the timber trees on Kwamang land to the Oman of Kwamang.
A number of grounds have been raised by the defendants in their attack on the judgment, but in my view only two of these grounds merit serious consideration. These are the grounds arising out of two of the
defences raised by the defendants in the court below to which reference has hereinbefore been made.
It is necessary to deal first with the ground which challenges the competence of the action and which is as
follows, “The action was incompetent as a representative action, and the learned judge erred in law in
ruling otherwise.” The learned judge’s decision on this point reads:
“It was submitted that the plaintiffs have no locus standi. The action on the face of it was a representative
one taken by the plaintiffs who I am satisfied are farmers and on behalf of the farmers of Kwamang. Exhibit
G shows that they were authorised so to bring this action. It was however submitted that a representative
action was not competent because the plaintiffs and those whom they sought to represent have no common
interest and that the relief sought would not be beneficial to them all. I find the reverse to be the case. All the
farmers claim that they had bought and paid for the timber on Kwamang land. I have already held this
proved. They complain that contrary to their wishes, the defendants have trespassed
[p.327] of [1963] 1 GLR 323
or authorised trespass to the timber and they all seek an order restraining the third defendant. In Bedford
v. Ellis [1901] A.C. 1 Lord Macnaghten put the matter in these words, ‘Given a common interest and a
common grievance a representative suit was in order if the relief sought was in its nature beneficial to all
whom the plaintiff proposed to represent.’ In the latter case of Taff Vale Rly. v. Amalgamated Society of
Railway Servants [1901] A.C. 443 Lord Lindley expressing pleasure at Bedford v. Ellis said, inter alia,
‘The principle is applicable to new cases as to old and ought to be applied to the exigencies of modern life
as occasion requires.’ I would myself respectfully adopt the words which fell from such undoubted
authority and say that the representative action in this case was in order and is clearly the type of case
envisaged by Order 16, r. 9.”
With great respect to the learned judge, is it all that clear?
The plaintiffs’ action purports to have been instituted on behalf of two classes of persons, namely, the
management committee of Kwamang and the farmers of Kwamang in their collective capacity. The
management committee was a committee appointed by a meeting of the Oman of Kwamang on the 1st
July, 1960, in place of the town development committee who had incurred the displeasure of the Oman by
reason of their participation in the grant of timber felling rights. This town development committee, or its
successor the management committee, was not a committee of the farmers of Kwamang qua farmers. It
was, as the learned judge put it, “an all-purpose committee elected by the Oman and charged with
responsibility for development and other self-help projects in the town.”
Although the town development committee, or the management committee for that matter, may strictly
within its terms of reference be said to represent the Oman of Kwamang, such a representation cannot, in
my view, be extended to vest in, or confer upon them (i.e. the committee) any interest in properties owned
by the Oman of Kwamang whose legal or natural representative is the stool of Kwamang personified in
the Odikro of Kwamang. To say that the Oman of Kwamang owns property is only another way of saying
that the stool of Kwamang owns that property.
It was not and it could not have been the case of the plaintiffs that the ownership of the timber trees in
Kwamang was in the stool of Kwamang, and yet all the relevant findings made by the trial judge were
made in favour of the Oman of Kwamang as though the farmers of Kwamang constituted the entire Oman
of Kwamang. The following are some of the findings:
“The plaintiffs’ version of the June meeting is that when the contents of exhibit 2 were read to the Oman the
second defendant as the Odikro and members of the town development committee expressed agreement but
the Oman opposed it and made the first defendant aware of their objection. The reason given by the Oman
for their objection was that they had bought and paid for the timber on Kwamang land.
[p.328] of [1963] 1 GLR 323
As to the claim that the timber on Kwamang land was bought and paid for by the Oman, I find the evidence
well nigh unanimity. A succession of witnesses have told me the same thing. Sometime in 1949, it was said,
the then Kenyasihene by name Owusu Agyeman litigated on land at Mabang and lost. He was minded to
make an appeal but was not in funds. He was going to grant felling rights on Kwamang land to a European to
raise £G1,000 to fight the litigation. Rather than have their cocoa destroyed, the Oman got £G1,000 from the
Co-operative society and paid this sum to the Kenyasihene. They then considered themselves owners of the
timber on the land. . . .
I am absolutely satisfied that Nana Owusu Agyeman, the Kenyasihene in 1949, in consideration of the sum
of £G1,000 paid to him by the Oman, relinquished his property in the timber to the Kwamang people. Mr.
Adade has argued with great force that this does not vest ownership of the timber in the Oman. To this, I
shall later return.
If the Oman bought the timber and well knew that it belonged to it, it seems to me extremely unlikely that
they would agree to its felling unless they were in stringent financial circumstances and wish to commute
their rights in the trees for money. Although the Oman as such owed debts on development projects I find
that it was not in any financial stress in June 1960. . . .
I accordingly find that in June 1960 when the first defendant met the Oman, apart from the second defendant
and the members of the town development committee almost all the inhabitants of Kwamang opposed the
felling of the timber. I am satisfied that the Oman made no secret of their aversion to the felling and brought
this fact home to the first defendant. Notwithstanding the great esteem in which I hold the first defendant, I
am unable to accept his evidence that apart from the £G1,500 the Oman expressed no objection to the felling
of the timber. Indeed the subsequent complaint to the district commissioner by the representatives of the
Oman showed the extent to which they were prepared to advance their objection. . . .
I am satisfied that the timber trees on Kwamang land belong to the Oman of Kwamang and that each farmer
owned as many trees as are in his farm.”
That the plaintiffs themselves conceived their action as one brought on behalf of the Oman of Kwamang
with whom they appeared to have equated the farmers of Kwamang is, I think, made clear from their
evidence. Kwaku Adom, the third plaintiff made the following statements in his evidence:
“The Oman gave us power.”
“I say we have been authorised by the Oman to represent them.”
“Because we have been empowered by the Oman to represent them we did not append our signatures to
exhibit O.”
It may well be, as the learned trial judge found, “that by far the greater majority of its [i.e. Kwamang’s]
inhabitants are farmers,” but that fact does not constitute the farmers of Kwamang the Oman of
Kwamang. However great the number of farmers in Kwamang they are only a section of the Oman of
Kwamang.
[p.329] of [1963] 1 GLR 323
That the farmers of Kwamang are the only section of the Oman of Kwamang interested in the relief
sought by the plaintiffs is in my view too plain for argument. “The meetings we attended” said Kofi Adjei
(a witness for the plaintiffs) in his evidence “were mostly by farmers although the whole of the Oman
were present. Farmers were the people directly affected by the matter.” That being the case, can an action
brought on behalf of the Oman of Kwamang (apart altogether from any consideration whether in law the
plaintiffs could properly bring an action on behalf of the Oman) and the farmers of Kwamang be one that
is “clearly the type of case envisaged by Order 16, r. 9?,” more particularly as the judgment of the court
below was given in favour of the Oman of Kwamang. Order 16, r. 9 (which is in the same terms as O. 16,
r. 9 of the Rules of the Supreme Court of England) requires, according to the dictum of Lord Macnaghten
in Bedford v. Eillis1 cited by the learned judge, that the plaintiffs on whose behalf the action is brought
should have a common interest and a common grievance and that the relief sought must in its nature be
beneficial to all whom the plaintiffs purport to represent.
I am unable to see how an action in which the relief sought is beneficial to the farmers of Kwamang only
can be properly brought on behalf of the Oman of Kwamang and the farmers of Kwamang, since the
Oman of Kwamang as such are not interested in the subject-matter of the action nor can the Oman be said
to be aggrieved by the incidents that gave rise to this action.
It may be argued that although on the face of the claim the action appears to have been instituted not only
on behalf of the farmers of Kwamang but also on behalf of the Oman of Kwamang. There is but little
doubt that the action was essentially brought on behalf of the farmers, and that references to the Oman of
Kwamang both in the evidence and in the judgment should be read as references to the farmers of
Kwamang. Even on such a generous basis I find it difficult to hold that the action is maintainable as a
representative action brought on behalf of the farmers of Kwamang.
Exhibit G which is the plaintiffs’ authority for bringing this action is subscribed to by one hundred and
forty-three persons who in the opening lines of that document, described themselves as “farmers or
persons of Kwamang, Kwabre Area No. 2.” This document was prepared by one Adomako Mensah a
native of Kwamang and one of the signatories thereto. He gave evidence at the trial at the instance of the
plaintiffs and said, inter alia,
“I myself have no farm at Kwamang but my parents have. My signature is on exhibit G. It is No. 74. Not all
of the objectors [that is the signatories to exhibit G] were farmers. I cannot say how many of the signatories
on exhibit G are farmers.”
This piece of evidence taken together with other evidence to which reference has already been made
demonstrates clearly that some inhabitants of Kwamang who were not farmers for some reason or other
objected
[p.330] of [1963] 1 GLR 323
to the felling agreement and added the weight of their objection to that of the farmers by subscribing to
exhibit G. This shows that the plaintiffs’ authority to sue did not derive solely from the farmers of
Kwamang, and that among the people on whose behalf this action was brought were persons who, not
being farmers, could have no interest in the subject-matter and who could derive no benefit from the relief
sought.
Mr. Adade, learned counsel for the defendants, relied on the English case of Smith v. Cardiff
Corporation2 decided by the Court of Appeal in England. In that case the four plaintiffs representing over
thirteen thousand tenants of houses belonging to the Cardiff Corporation brought an action against the
corporation to have declared ultra vires and void a differential rent scheme which the corporation had
introduced. By that scheme some of the tenants would have to pay an increased rent while the rent of
other tenants remained unchanged. On an appeal from a ruling on a motion by the corporation to set aside
the writ on the ground that the action was not competent as a representative action, it was held, following
the dictum of Lord Macnaghten in Bedford v. Ellis3 (supra), that the rent scheme had the effect of
grouping the tenants into at least two categories: those who would have to pay increased rent and those
whose rent remained unchanged and that therefore the two categories of tenants could not have a common
interest and a common grievance and the relief sought would therefore not be beneficial to all the tenants
on whose behalf the action had been brought. The action was therefore held not to be one contemplated by Order 16, r. 9. The same is true of the action in this appeal which, as I have already stated, was brought not only on behalf of the Oman of Kwamang who as such Oman had no interest in the timber trees but also on behalf of a number of people (the signatories to exhibit G) who are not all farmers of Kwamang. In the result Mr. Adade’s objection to the propriety of the action must be upheld.
Mr. Effah, learned counsel for the plaintiffs, invited us to adopt the procedure followed by the English
Court of Appeal in the case of Smith v. Cardiff Corporation aforesaid and to strike out the reference that
the plaintiffs were suing in a representative capacity and consider the action as one brought by the three
plaintiffs as individuals and treat the action as a test case. I do not feel able to follow that procedure for
the simple reason that in Smith v. Cardiff Corporation the question of the propriety of the action was
determined on a preliminary point raised on a motion to set aside the writ, and that the decision on the
preliminary point left the plaintiffs free to have the merits of their case gone into, whereas in this case the
merits of the case have been fully gone into and judgment actually entered for the Oman of Kwamang
who as I have said have no interest in the subject-matter. To accede to Mr. Effah’s request, the case would
have to be remitted to the court below for re-trial with the necessary directions regarding the amendment
of the description of the plaintiffs, for the
[p.331] of [1963] 1 GLR 323
plaintiffs cannot at this stage be allowed to prosecute the appeal as individuals. In my view the cause of
the farmers of Kwamang would be better served if they were given an opportunity to institute a fresh
action.
Although I must rest the determination of this appeal on the issue raised of the propriety of the action, I
would like to say that the claim by the farmers of Kwamang that they purchased all the timber trees in
Kwamang is grossly misconceived. To say that, however, is not to say that having regard to the
circumstances they have no rights which call for protection under the law, but in my view those rights
cannot be founded on an allegation of the sale to them of the timber trees.
I hold that the action is not one that falls within the provisions of Order 16, r. 9 and is therefore not
maintainable.
I would therefore allow the appeal, set aside the writ of summons and the judgment appealed from
together with the order for costs, and I would grant the plaintiffs liberty to bring a fresh action.
The defendants will have their costs in this court and in the court below.
JUDGMENT OF ADUMUA-BOSSMAN J.S.C.
I agree.
JUDGMENT OF BLAY J.S.C.
I also agree.
DECISION
Appeal allowed.
Liberty to bring fresh action.
J.D.
