DIVISION: IN THE HIGH COURT
DATE: 5TH MAY, 1963
BEFORE: DJBANOR J.
NATURE OF PROCEEDINGS
ACTION for value of work done under a building contract.
COUNSEL
Asare for Owusu for the plaintiff.
Kofi Sackey (with him Hayfron) for the defendant.
JUDGMENT OF DJABANOR J.
Sometime ago (I think in early 1957) the defendant as chief of Kofiase together with his elders and people
was thinking seriously of demolishing the Ahenfie and building a suitable one in its place. For this
purpose upon their request the Agonahene permitted them to fell 300 timber trees on Kofiase stool land. I
think the trees were accordingly felled, and at least £G700 was saved for the Ahenfie building project at
the treasury at Agona. Just then as ill luck would have it, the defendant was destooled, and one Mr.
Brentuo was installed Kofiasehene in his place. On the 1st July, 1957, therefore, Mr. Brentuo, now as
Kofiasehene Nana Sarfo III, entered into an agreement with the plaintiff to erect the said Ahenfie at
Kofiase at the cost of £G3,060. The plaintiff began the work and erected the ground floor after advances
totalling £G700 had been paid to plaintiff by the said stool represented by Nana Sarfo III.
Meanwhile the defendant Nana Kofi Kyere had lodged an appeal against his destoolment. This appeal
was heard in due course and allowed. When he came back to the Kofiase stool the defendant refused to
honour the agreement entered into by the said Nana Kofi Sarfo for the building of the Ahenfie on the
grounds as stated in his statement of defence as follows:
“In further answer to paragraphs 2 and 3 of the statement of claim the defendant avers that the lawfully
gazetted Chief of Kofiase the defendant herein, who had then appealed and later won his appeal against his
destoolment and his accredited elders did not execute the said agreement of the 1st of July, 1957.
Furthermore defendant avers that on no occasion has Kofiase stool adopted the unauthorised work of the
plaintiff herein and the Kofiase stool has made no promises to plaintiff herein to make payments to
plaintiff in respect of the said work.” The main issue therefore is whether the agreement entered into by Nana Kofi Sarfo was binding on the Kofiase stool.
[p.411] of [1963] 1 GLR 416
But before I continue let me consider a point of jurisdiction raised by Mr. Kofi Sackey for the defendant
(but not argued). He reminded the court that its jurisdiction is excluded in matters concerning the election
and installation of chiefs, and, inferentially, pointed out that if the efficacy or otherwise of the agreement
depended on whether or not Kofi Sarfo was properly installed a chief then this court has no jurisdiction.
Section 41 of the Courts Act, 1960,1 enacted as follows:
“Notwithstanding anything to the contrary contained in this or any other enactment, the High and Circuit
Courts shall not have jurisdiction to entertain either as of first instance or on appeal any civil cause or matter
instituted for: (a) the trial of any question relating to the election, installation, deposition or abdication of any
Chief whatsoever.”
I do not think that this court is, in the present action, concerned with any question “relating to the election
or installation” of either Kofi Kyere or Kofi Sarfo. What I think is the issue here is whether Nana Kofi
Sarfo could properly enter into contracts for and on behalf of the Kofiase stool, since at the time he was
elected and installed as Kofiasehene, the destoolment of Kofi Kyere had been legally stayed. The position
as I understand it is this: The defendant is not saying that Sarfo was not properly elected or installed;
indeed it appears to have been conceded that Sarfo may have been properly elected and installed. What
the defendant appears to be saying is that in view of the fact that his (defendant’s) own destoolment had
been appealed against, and that that operated (by virtue of section 15 of the State Councils (Ashanti)
Ordinance, 19522 as a stay of execution, he (the defendant) was still chief of Kofiase at the time when
Kofi Sarfo made the agreement as chief of Kofiase; and that therefore Kofi Sarfo had no authority to
make that agreement to bind the stool. In my view this action was not instituted for the trial of any
question relating to the election or installation of either Kofi Kyere or Kofi Sarfo. It was instituted to try
the issue whether the agreement entered into by chief Kofi Sarfo at a time when the decision in respect of
the former chief’s destoolment had been stayed is binding on the Kofiase stool; or if it is not binding on
the Kofiase stool whether by any subsequent act the defendant, as the present Kofiasehene has adopted
that agreement in such a way as to make it binding on the Kofiase stool. I do not think, for the reasons I
have stated, that the jurisdiction of this court in respect of this case is ousted by section 41 of the Courts
Act, 1960.
Since the capacity in which Nana Kofi Sarfo entered into the agreement was challenged, it is for the
plaintiff to prove it. His authority has been challenged not because he was not elected or installed
according to custom. Indeed his election and installation was reported by the Agona State Council to the
Governor in compliance with the relevant current legislation. That, according to the definition of chief in
the State Councils (Ashanti) Ordinance,3 is all that is requisite to recognise a person as a
[p.412] of [1963] 1 GLR 416
chief. As far as Nana Kofi Sarfo was concerned, argued the plaintiff, he was the chief of Kofiase and was
held out as such. He was accordingly the rightful person to enter into an agreement which can bind the
Kofiase stool. The defendant, per Mr. Kofi Sackey, on the other hand says that at the time that Nana Kofi
Sarfo entered into the agreement his destoolment had not been confirmed. He referred to section 15 of the
State Councils (Ashanti) Ordinance4 which states: “An appeal . . . shall operate as a stay of execution of
the decision appealed against pending the final determination of the appeal . . .” What is a stay of
execution and what is its effect, particularly in this case? A “stay of execution” simply means to suspend the enforcement of a judgment or order. The case of Clifton Securities Ltd. v. Huntley5 is illustrative of this. The lessees of a workshop which formed part of a factory had a right of way to it through the factory and received their electricity, gas and water supplies through pipes laid in the factory. The lessors successfully instituted an action to eject the lessees from the premises. That was on the 13th January,
1947. The lessees appealed and were granted a stay of execution pending appeal. Not certain what the
result of the appeal might be, the lessors on the 19th January, 1947, gave a valid notice to quit to the
lessees effective from the 1st May, 1947. By the 1st May the appeal had not been heard and the lessees
refused to quit in compliance with the valid notice given during the pendency of the stay of execution.
The lessors therefore cut off the supply of electricity, gas and water and shortly afterwards barricaded the
right of way. The lessors thereafter having won the appeal brought an action against the lessees for mesne
profits. The lessees counter-claimed on the ground that they were entitled to undisturbed possession while
the stay was in force, and claimed damages for cutting off the supplies of electricity, gas and water.
Denning J. (as he then was) dismissing the counterclaim had the following to say of the lessee’s
contention6 “That is a complete misconception of the effect of a stay. A stay of execution only prevents the plaintiffs
from putting into operation the machinery of law-the legal processes of warrants of execution and so forth-in
order to regain possession. It does not take away any other rights which they have. It does not prevent their
exercising any right or remedy which they have apart from the process of the court.”
It seems to me, following, with respect, the dictum above quoted, that the stay of execution in this case
only prevented the defendant Nana Kofi Kyere from being ejected from the stool house and stool farms,
and saved him from being made to surrender the stool properties to the elders who had destooled him. I
do not think that it kept him on the stool.
The further question now must be: Could the elders and people of Kofiase legally install another chief
while the stay of execution in respect of Nana Kofi Kyere’s destoolment was operating? Following the
dictum of Denning J. (as he then was) recited above I think the answer must be yes.
[p.413] of [1963] 1 GLR 416
Yes, because the stay of execution does not prevent the people from exercising any right or remedy which
they had apart from the normal process of executing the decision to destool the defendant. I have no doubt
that the people have the right to choose a chief during the interregnum, and I think they can do so in spite
of the stay of execution. The fact, therefore, that Nana Kofi Kyere’s destoolment had been stayed does
not invalidate the installation of Nana Kofi Sarfo in the meantime. In the final result I hold that since there
was no dispute about Nana Kofi Sarfo’s election and installation, since his said installation was reported
to the Governor in accordance with the regulations, and since the grant of stay of execution of the
decision destooling Nana Kofi Kyere did not operate to prevent the Kofiase people from installing
another chief, the said Nana Kofi Sarfo had authority and capacity in law to enter into an agreement on
behalf of the Kofiase stool. I therefore hold that the agreement between the plaintiff and Kofi Sarfo must
be, and is, binding on the defendant as the present occupant of the Kofiase stool.
There appears also to be this point of law arising out of the fact of the stool being a corporation sole. Take
this hypothetical case: Suppose I took my monthly statement from Kingsway Stores Ltd. to that store to
settle my account; and suppose that when I got there I met a man behind the cashier’s desk who received
my money and gave me a stamped official receipt signed for Kingsway Stores, Ltd. Suppose that
unknown to me this cashier had been dismissed previous to his receiving my payment and he absconded
with the money. Does my payment constitute a valid settlement of my account? I think that the answer
must be yes. For being a bona fide purchaser without notice I cannot be affected.
Furthermore by analogy the principle applicable to problems arising from the law regarding executors and administrators may be considered with advantage. In the case of Ingall v. Moran7 Luxmore L.J. stated:
“It is true that when a grant of administration is made the intestate’s estate including all choses in action vests
in the person to whom the grant is made, and the title thereto then relates back to the date of the intestate’s
death. . . .” But if upon the death of a tenant the landlord served a valid notice to quit on the resident and
subsequently the personal representative (in this case the son) took out letters of administration, this grant,
it has been held, did not relate back in order to defeat the notice to quit served on the resident, because
that notice too is valid: Fred Long & Sons Ltd. v. Burgess.8 Again, by the same law of executors and
administrators, if a person applied for and was granted letters of administration, and after he had paid out
moneys and generally administered the estate for some time a will be subsequently found and the grant of
probate obtained, although the probate relates back to the time of the testator’s death yet that would not
invalidate
[p.414] of [1963] 1 GLR 416
any dealings with the estate by the person to whom letters of administration were granted. Upon the effect
of revocation of letters of administration Halsbury in his Laws of England (3rd ed.), Vol. 16, at page 275,
para. 519 has this to say:
“All payments and dispositions made in good faith to a personal representative under a representation which
is subsequently revoked are a valid discharge to the person making the same. . .”
By analogy I think that so long as the election and installation of Nana Kofi Sarfo III and the report
thereon to the Governor, was proper and in accordance with law and custom, then the fact that the appeal
of the destooled Nana Kofi Kyere was allowed does not affect the validity of any lawful act of Nana Kofi
Sarfo while he was acting as a chief of Kofiase. The agreement entered into by Nana Kofi Sarfo with the
plaintiff therefore is valid and binds the Kofiase stool, and the defendant is fully liable under that
agreement. The plaintiff is therefore entitled to his remedy under that agreement.
The next point for consideration was whether or not the defendant, since his re-instalment, had expressly
or impliedly adopted the agreement entered into by Nana Kofi Sarfo on behalf of the Kofiase stool. There
is no doubt that the people of Kofiase as well as the defendant expressed the wish to have the Ahenfie
built. There is also no doubt that for that purpose the Agonahene granted, and afterwards rescinded the
grant of, permission to the defendant for about 1,000 timber trees to be felled and the proceeds used to
build the Ahenfie. According to Nana Kofi Sarfo the conclusion arrived at in the district commissioner’s
office was that the defendant agreed that the plaintiff should continue building the Ahenfie in January
1962; and that the defendant did not then deny that he (Nana Sarfo) had authority to enter into the
agreement. I am inclined to believe this because it was at a time when the differences between the two
chiefs had been amicably settled. In those circumstances I think it most improbable that Nana Kyere will
still insist that Nana Sarfo had no authority to implement the decision-arrived at in his own time-to build
the Ahenfie. This Ahenfie, I may observe, is being built for persons like the defendant to live in while
they occupy the stool.
The district commissioner, Mr. Akosa, confirmed that Nana Sarfo did not complete this Ahenfie before he
was destooled, and that when Nana Kyere came on he was in agreement with what Nana Sarfo had done.
He said that after dealing with the chiefs (settling their differences and discussing the Ahenfie) he called
the plaintiff and told him to be patient and that if the 1,000 trees were procured he (the district
commissioner) would arrange for the work to continue and the work already done assessed. The district
commissioner tendered as exhibit 2 the notes of the proceedings at his meeting with the chiefs. From the
notes it is clear that he asked the defendant to ascertain from the Kofiase people if they still wanted the
Ahenfie. If the people still wanted it then the chief should get permission from the Agonahene to fell 1,000 trees for that purpose.
[p.415] of [1963] 1 GLR 416
Nana Sarfo then agreed that if the 1,000 trees were granted he would arrange for a timber contractor to
fell the trees so that money may be obtained to accelerate the construction. He reminded the district
commissioner and the defendant that the estimated cost was £G3,060 and that £G700 had already been
paid to the plaintiff. According to the exhibit the defendant agreed to all this and said he would consult
the Kofiase people about their willingness for the building to be put up and then negotiate with the
Agonahene for the trees. It turned out that the Kofiase people gave the project their overwhelming support
and the Agonahene too agreed and gave the defendant the 1,000 trees. An amount of £G300 was
subsequently deposited in connection with this project. Then the Agonahene unilaterally abrogated the
agreement. I have considered in detail the defendant’s denials: that he never agreed that the plaintiff
should do the work; that all he agreed to was that when the money had been procured he would then
negotiate with the plaintiff afresh; that since the Agonahene withdrew the offer he could not possibly go
on and arrange for the continuation of the building; and that therefore the agreement between plaintiff and
Nana Sarfo was not adopted.
I have already intimated that the probabilities are in favour of the plaintiff’s story-namely that through
various acts of the defendant he showed clearly that he was adopting the agreement entered into between
Kofi Sarfo and the plaintiff. First of all, there is the fact that the differences between defendant and Nana
Sarfo were settled; then also the fact that if the Ahenfie was finished it would be the defendant who would
benefit by it and enjoy it; then there is the fact that the Kofiase people again gave the defendant the
mandate to go ahead; then the decision arrived at the district commissioner’s office. From all this I am
persuaded to believe that the defendant expressly agreed that the work should go on, and that the cost of
the building which he was told was £G3,060, of which £G700 had been met, would be met by him from
the proceeds of the timber trees. I believe that the defendant adopted Nana Sarfo’s agreement with the
plaintiff for the building and reject as untrue and improbable the defendant’s case to the contrary. I
sympathise with the defendant but I think that he was forced to reject the plaintiff’s claim because of the
unilateral act of the Agonahene in making it impossible for him to pay for the work.
The plaintiff has claimed, as amended, that the value of the work he has done to date is £G1,992 3s. 6d.
He has led evidence to that effect which stands unchallenged. I therefore must hold that the plaintiff has
done work on the Ahenfie contract entered into between himself and Nana Sarfo to the value of £G1,992,
and that £G700 of this has been paid to the plaintiff. The balance outstanding which is now demanded is
£G1,292 3s. 6d. Having found both in law and in fact that the defendant is bound by this agreement, I
now hold that the defendant is liable to the plaintiff in that sum.
[p.416] of [1963] 1 GLR 416
I therefore give judgment to the plaintiff against the defendant for £G1,292 3s. 6d. and 60 guineas costs.
DECISION
Judgment for the plaintiff.
J. D.
