AHENKORA II AND ANOTHER v. KUMAH AND OTHERS [1963] 1 GLR 77

DIVISION: IN THE HIGH COURT, KUMASI

DATE: 8TH FEBRUARY, 1963

BEFORE: APALOO J.

CASES REFERRED TO

(1) Pan African Metals Ltd. v. Aaron Ibe S.C. Cyclostyled Judgments, July–December 1959, unreported

(2) Lechmere v. Fletcher (1833) 1 C. & M. 624; 149 E.R. 549

(3) Blyth v. Fladgate [1891] 1 Ch. 337

NATURE OF PROCEEDINGS

ACTION for various sums of money allegedly due as customary cocoa tribute.

COUNSEL

Osei (with him Mensah) for the plaintiffs.

Owusu Yaw for Owusu for the defendants.

[p.79] of [1963] 1 GLR 77

JUDGMENT OF APALOO J.

In this action the first plaintiff who is the present occupant of the Asuboa stool, claims from the defendants various sums of money which he alleges to be due to his stool as customary cocoa tribute. The second plaintiff is the local council with jurisdiction over Asuboa and claims that it has been delegated power by the Administrator of Stool Lands acting under the Ashanti Stool Lands Act, 1958,1 to collect revenue on Asuboa stool lands and that it was entitled to join this action to protect its interest. Its status has been challenged but I shall deal with that aspect of the matter at a later stage.

Before I deal with the extensive and somewhat difficult points of law which have been argued in this case, it is necessary to resolve the disputed facts first. All the defendants have been sued as the elders of the stool of Muramura. The seventh defendant is in fact the present Odikro of that village. There is not a great deal of description of Muramura but it seems to be in origin a small farming settlement. In course of time, it seems to have grown into a fair sized village. Although there are said to be some strangers living there, the evidence shows that by far the greater majority of its citizens are Juabens whose ancestors settled there very late in the last century for the purpose of farming. The original settlement was said to have been made during the Asafu Adjaye war which was estimated to be in 1892. The land on which the village was founded belongs to the Asuboa stool. Although it was averred in paragraph 1 of the statement of defence that the land belonged to the Juaben stool, that was not pressed at the trial. The evidence of the defendants themselves proceeded on the footing that the land does not belong to the Juaben stool of which they are admittedly subjects. It is common ground that the original agreement which the stool of Asuboa made with the defendants’ predecessors was that each person was to pay by way of tribute one load of cocoa per season. Both the plaintiff and the defendants agreed that that agreement was subsequently varied. What became the varied agreement has been the subject of fierce controversy. It is necessary at this stage to state that the first, second and fifth defendants admit liability to the plaintiffs and no sort of issue was joined between these defendants and the plaintiff stool. The other defendants dispute liability and the long bitter battle which was waged in this case, raged between them and the plaintiff stool. I shall for convenience refer to them as the contesting defendants. The plaintiff said the one load cocoa per person tribute was varied in 1928, when all the Juaben citizens of Muramura agreed to pay a collective tribute of £80 per annum. He said this sum was increased in 1948 to £100. The plaintiff says all the defendants were present in the offices of the Kumasi State Council when this agreement was confirmed and approved in 1951 by Mr. John Darkwa who was the financial secretary of the Kumasi State Council. The version of the contesting defendants is that during the reign of Asuboahene by name Kwame Adu, he suggested

[p.80] of [1963] 1 GLR 77 to their ancestors that as they had been on the land for a long time he would no longer regard them as strangers. They were in future to be of the same status as his subjects and were to pay no further tribute. Instead, say the contesting defendants, their ancestors were to contribute like all other subjects of the Asuboa stool to the payment of stool debts if and as they arise. They say their ancestors agreed to this and had on the faith of it, paid various sums to the Asuboa stool to defray its debts. They deny being present in the offices of Mr. Darkwa in about 1951, and say they have at no time entered into any agreement to pay tribute of £100 per annum to the plaintiff stool.

These two versions are wholly irreconcileable. I must determine where the truth lies, bearing in mind that there is no burden on the contesting defendants to prove what the plaintiff alleges. The plaintiff’s evidence that at some time the elders of Muramura agreed to pay collective tribute of £80 is supported by the written agreement which the plaintiff tendered in evidence (exhibit A) and which was not objected to by counsel for the contesting defendants. This exhibit shows that the Chief of Muramura agreed to pay £80 bulk tribute. This agreement was entered into before the Omanhene of Bompata, by name Yaw Kwabia, on the 4th July, 1928. The first defendant who struck me as a perfectly honest and truthful witness and who at one time occupied the Muramura stool, also said that when he came on the stool his subjects were paying a bulk tribute of £80 per annum. Again, Nana Yaw Sarpong, the ex-Juabenhene, who showed every sign of being an honest witness confirmed that at one time his subjects at Muramura were paying a bulk tribute of £80 per annum. Indeed, it was he who raised it to £100 to avoid possible prolonged litigation between his subjects and the Asuboa stool. Nana Yaw Sarpong said to avoid the Asuboa stool carrying out its threat of entering into separate agreement with individual farmers, he suggested to the Asuboa stool that the bulk tribute be raised. This, he says, was accepted and stamped. The first defendant also confirms this. And that is the explanation for the tribute being raised from £80 to £100. Mr. Darkwa who is in every sense an independent witness, also testified that both the Asuboahene and his elders and the Muramurahene and his elders met at his office at his invitation on the 20th November, 1951. He understood that the Muramura people had previously agreed to pay a bulk tribute of £100 per annum to the Asuboa stool and that the later stool was trying to go back on that agreement. He therefore decided that the £100 bulk tribute should continue as heretofore. Both sides agreed and the Muramura people there and then paid the sum of £100 which was due for the 1950–51 cocoa season. He said the money was paid to him and he issued an official receipt to the Muramura people. The plaintiff tendered a certified true copy of that receipt as exhibit B. This evidence has the clearest imprint of truth and I have no doubt whatsoever that it is true. The fact that the Muramura people were proved to have agreed to continue to pay bulk tribute to the Asuboa stool in 1951, gives the lie to the case of the contesting defendants that the Asuboahene, Kwame Adu, had accepted them as his subjects and waived the payment of tribute.

[p.81] of [1963] 1 GLR 77

Their case depends upon their bare unsupported assertions alone. I feel no doubt that it is untrue. The contesting defendants have proved themselves wholly wanting in candour and in those cases where there is conflict of testimony between them and the first defendant. I prefer the evidence of the first defendant. The contesting defendants are all (except the third defendant who has since died) persons of some importance in Muramura and I find it impossible to believe that they are unaware of the terms on which their ancestors before them and they themselves were permitted to continue to live and farm on Asuboa stool land. I accept the evidence of the first defendant that all the defendants were present in Mr. Darkwa’s office on the 20th November, 1951, and also concurred in Mr. Darkwa’s decision which then favoured them, that they should continue to pay as before, bulk tribute of £100 per annum to the Asuboa stool. This evidence was also supported by the plaintiff whose veracity seems to me unimpeachable. I therefore find that all the defendants agreed to pay collective tribute of £100 per annum to the Asuboa stool. I am satisfied that apart from the sum of £100 which they paid to the Asuboa stool through Mr. John Darkwa on the 20th November, 1951, in respect of the 1950–51 cocoa season, they have to date paid nothing to the Asuboa stool.

That brings me to the many points of law which were canvassed in this case. It was submitted on behalf of the contesting defendants that no agreement was reached before Mr. Darkwa and that the averment in paragraph 6 of the statement of claim was not made out. In a sense, that is true. Mr. Darkwa merely approved an existing agreement and refused to allow the Asuboa stool to go back on its contract. What the defendants (including the contesting defendants) in effect said before Mr. Darkwa was this, “We have an agreement with the plaintiff stool to pay it £100 cocoa tribute per year. The Asuboa stool is trying to resile from that agreement. We still make that offer.” Mr. Darkwa talked the Asuboa stool into again accepting that offer. Accordingly, it accepted the £100 which the defendants there and then paid. I think that is a binding agreement enforceable against the Asuboa stool by the defendants and vice versa. It was next submitted that on Mr. Darkwa’s evidence, if there was any binding contract, it was between the plaintiff stool and the Muramura stool qua stool and that the action against the defendants in their personal capacities was ill-conceived. Mr. Darkwa in fact thought that the agreement was between the two stools. If that were the case, then this submission is well founded. But the first defendant said he and the others acted for themselves and on behalf of all the farmers of Muramura with their express authority. The plaintiff testified to a like effect in cross-examination. He said “I know that they [meaning the defendants] have authority from the other farmers because they always represented them any time they were wanted for a discussion on the land in question.” Having held themselves out to the plaintiff stool as acting for themselves and on behalf of an indeterminate class of persons, the defendants cannot now justly be heard to say they could not be sued personally. Indeed, had the defendants [p.82] of [1963] 1 GLR 77 not successfully fought the case for themselves and all the other farmers, the Asuboa stool would have implemented its threat of entering into separate agreement with the several farmers on the land. Had that been done, the plaintiff stool would have sued them individually. Having prevented that by holding themselves out as the representatives of these farmers, it does not, in my opinion, now lie in the mouth of the defendants to say that there is no proof of their authority. I hold that the defendants were properly sued on the contract. The identities of the farmers they represent is a matter peculiarly within their own knowledge and it is a matter with which the plaintiff stool need not concern itself.

This action was jointly taken against the defendants by the Asuboa stool and the Kumasi East Local Council. Against the latter, it was submitted that it could have no locus standi unless and until it was able to show that the Administrator of Stool Lands acting under section 18 of the Ashanti Stool Lands Act, 1958,2 delegated to it power to collect revenue from the land in dispute. Section 11 (1) provides: “As from the commencement of this Act, all Stool revenue of the Kumasi State shall be collected by the Governor-General and for that purpose all rights to receive and all remedies to recover that revenue shall vest in him and, subject to the exercise of the power of delegation conferred on the Governor-General by Part III of this Act, no other person shall have power to give a good discharge for any liability in respect of the revenue or to exercise any such right or remedy.”

Mr. Ampah the deputy clerk of the second plaintiff council gave evidence before me on the 31st October, 1962, to the effect that the Administrator of Stool Lands in fact delegated such power to the council in 1960. That delegation was published in the Land and Concessions Bulletin on the 16th December, 1960. Counsel next submitted that if it be found to be established, as indeed I do find, that the delegation was to the second plaintiff council alone, then the Asuboa stool on its part, has no locus standi. This submission clearly shows that counsel for the contesting defendants was looking for any stick he could lay hands on to beat the plaintiffs with. While I agree that by reason of the delegation and on a proper construction of section 11 (1) of the Ashanti Stool Lands Act only the local council could sue to recover tribute on the lands in question, the stand taken by the defendants in their pleading makes the joint institution of this suit by the Asuboa stool and the Kumasi East Local Council imperative. Section 18 provides: “(1) There shall be an officer, to be called the Administrator of Stool Lands, who shall be appointed by the Governor-General and who shall perform the functions assigned to him by this Part of this Act.

(2) The Governor-General may delegate to the said Administrator any of the rights and powers exercisable by the Governor-General in relation to the lands to which Part I and Part II of this Act apply.

[p.83] of [1963] 1 GLR 77

(3) The said Administrator may delegate to a local government council or the Accountant-General or any other person the duty of collecting any Kumasi Stool Revenue or any other of the functions conferred on him by this Act or delegated to him under this section. (4) Any delegation under this section may be made either with or without any conditions or limitations.” Although section 11 of the Ashanti Stool Lands Act made the Governor-General, and laterly the President, the sole revenue collecting agent of the lands in question, that legislation did not extinguish the title of the various stools. As I have already said, the contesting defendants expressly dispute the title of the Asuboa stool to the Muramura land and thus obliged it to prove its title. It therefore behoves that stool to be a party to this litigation and establish its title to the land. Although the issue as to title was raised only in the statement of defence, the contesting defendants must have exhibited a similar attitude before the action to make the Asuboa stool and the local council feel that they must “go it together.” I hold that the action was properly jointly taken by both plaintiffs. I am satisfied each has established its locus standi. Even if I am wrong on this, I am satisfied that the joinder of these two entities occasioned no injustice to the contesting defendants, and that love of technicalities apart, it is not something of which they are entitled to complain. Before dealing with the last submission of law made on behalf of the contesting defendants, it is necessary to state the facts on which it is founded. The nature of the agreement, which I have held to have been concluded between the plaintiff stool and the defendants on behalf of themselves and the farmers of Muramura, makes the payment of tribute a debitum in praesenti which is solvendum in futuro at the end of or during every cocoa season. In 1957, the defendants all owed to the plaintiff stool tribute for an aggregate of six seasons namely 1951–52 to 1956–57 cocoa seasons. Accordingly, the plaintiff stool on the 8th October, 1957, issued a writ against all the defendants claiming the sum of £G600 which was clearly due and owing for these seasons. The contesting defendants then, as now, filed a statement of defence in which they disputed liability on various grounds which I do not find useful to set out. The case came before the court on the 17th December, 1958. The first, second and fifth defendants then, as now, submitted to judgment and the court proceeded to give judgment against them (exhibit 4). The court then adjourned the case of the contesting defendants as their counsel sought leave to file an amended statement of defence. This was presumably done. The case eventually came before the court on the 23rd March, 1960. On that day counsel for the plaintiff sought leave to withdraw the action against the contesting defendants. The court acceded to this and awarded thirty guineas costs in their favour (exhibit 5). Although the record does not show that the action was then dismissed or struck out, the court must be deemed to have done one of these by necessary implication. The plaintiff stool did not seek for leave to bring a fresh action and none was granted. For all practical purposes, that action came to an end. [p.84] of [1963] 1 GLR 77

The evidence shows that the defendants who submitted to judgment paid none of the judgment debt. By 1960, further tributes became due and owing to the Asuboa stool from all the defendants. Accordingly, on the 15th March, 1960, the plaintiff stool this time in conjunction with the Kumasi East Local Council, again caused to be issued against all the defendants the present writ. The claim was on three limbs. The first limb claimed against the contesting defendants jointly and severally the sum of £G600 which was due for the periods 1951–52 to 1956–57 cocoa seasons. This, it is to be noted, was the sum due in respect of the seasons in which they were sued as in respect of which the suit was withdrawn without liberty on the 23rd March, 1960, (exhibit 5). The claim on the second limb sought for judgment for the tribute which fell due during three seasons, namely 1957–58 to 1959–1960. The last limb asked for each other tribute as may fall due at the date of judgment.

Accordingly, it was strenuously contended on behalf of the contesting defendants, that the plaintiff stool is estopped from re-litigating the first limb of the claim in this case inasmuch as it was the subject of the claim in the former action which was withdrawn without liberty. As against the second plaintiff council it was said it was privy in estate to the plaintiff stool and was similarly estopped. Counsel relied strongly on the decision of the Supreme Court in the Pan African Metals Ltd. v. Aaron Ibe.3 Counsel for the plaintiffs, contrariwise, contended that no such estoppel arises inasmuch as the defendants were sued jointly and severally and there is evidence that the first judgment has not been satisfied. For his part, he relied on the old cases of Lechmere v. Fletcher4 and Blyth v. Fladgate.5 The statement of principle on which he relied appears in Lechmere v. Fletcher6 and was adopted and approved in the later case.

It reads as follows:

“There are many cases in the books as to joint and several bonds, from which it appears, that, though you have entered judgment on a joint and several bond against one obligor, you are still at liberty to sue the other; unless indeed the judgment has been satisfied: but so long as any part of the demand remains due, you are at liberty to sue the other, notwithstanding you have obtained judgment against one.”

This statement of the law clearly presupposes that only one of two joint obligors was sued on a joint and several debt and thus declares the right of the creditor to sue the other obligor in the event of the judgment obtained against the first obligor not being satisfied. It seems to me clearly inapplicable to this case, for in the former action the contesting defendants were sued jointly and severally with the non-contesting defendants. As I understand the principle of law enunciated in those two cases, it can properly apply to this case only if the non-contesting defendants had not been sued in the former action. In this case, they were sued for the same

[p.85] of [1963] 1 GLR 77 debt and after they disputed liability, the action against them was withdrawn and for all purposes, determined. In my opinion, in these circumstances, they are entitled to say that they ought not bis vexare. I think counsel for the contesting defendants is right in his contention.

In my opinion, the case of the Pan African Metals Ltd. v. Aaron Ibe7 covers this case and decides the issue of estoppel completely against the plaintiff stool and its statutory agent, the second plaintiff council. I hold therefore that by reason of the unconditional withdrawal of the former suit without liberty, and the fact that the res litiga in the previous action is the same as the one in the instant suit, both plaintiffs are estopped from maintaining an action in respect of the first limb of the writ. In my judgment, that claim fails and is dismissed.

But in view of the finding which I have made in the foregoing paragraphs, the second limb of the claim succeeds. The plaintiffs also claim such tributes as may become due from the date of the action to the time of judgment. The tributes which become payable after the date of the action, fell due for the main cocoa seasons in 1960–61, 1961–62 and 1962–63. The tribute due in respect of the last cocoa season is not now recoverable as the agreement to pay tribute in the sum of £G100 per annum, which I have held to have been concluded between the plaintiff stool and the defendants, was statutorily abrogated by the combined effect of subsection (2) of section 1 of the Rents (Stabilisation) Act, 19628 and regulation 1 (2) of the Rents (Cocoa Farms) Regulations, 1962.9 The plaintiffs are however entitled to recover what was due for the two cocoa seasons aforementioned before the Rents (Cocoa Farms) Regulations became operative on the 4th May, 1962. That comes up to £G200.

It follows that the plaintiffs are entitled to judgment against all the defendants jointly and severally for the sum of £G300 due on the second limb of the claim and for £G200 which is due on the third limb. Accordingly, save and except the third defendant (who has since died) I give judgment for the plaintiffs against the defendants jointly and severally in the sum of £G500.

I find my mind troubled about costs. This suit has suffered no less than twenty-three adjournments over a period of three years and costs must have been, in the ordinary nature of things, considerable. The contesting defendants have however succeeded in resisting £G600 of what would have been a £G1,100 claim against themselves. But in doing so they merely clutched at a technicality and successfully avoided the payment of what is otherwise a just debt. This has resulted in the anomalous position that the non-contesting defendants who, as events show, have been honest, would bear the £G600 debt by themselves alone. In those circumstances, I do not consider that I should take any account of

[p.86] of [1963] 1 GLR 77 the partial success of the contesting defendants as far as the award of costs is concerned. Accordingly, I order that the plaintiff shall recover from all the defendants jointly and severally 120 guineas inclusive costs

DECISION

Judgment for the plaintiffs.

J. D.