ANIN vs. ABABIO AND OTHERS [1973] 1 GLR 509

CASES REFERRED TO

(1) Izenkwe v. Nnadozie (1953) 14 W.A.C.A. 361.

(2) Vanderpuye v. Botchway (1956) 2 W.A.L.R. 16, P.C.

(3) Kwow v. Eku II (1934) 2 W.A.C.A. 280.

(4) Atu v. Dapaa, West African Court of Appeal, 2 March 1950, unreported.

(5) Anomabu Stool v. Acquah (1957) 3 W.A.L.R. 265, P.C.

(6) Yamuah IV v. Sekyi (1936) 3 W.A.C.A. 57.

(7) Serwah v. Kesse [1960] G.L.R. 227, S.C.

(8) Boateng alias Beyeden v. Adjei [1963] 1 G.L.R. 285, S.C.

(9) Sarpong v. Antwi [1971] 2 G.L.R. 378, C.A.

(10) Gyeabour II v. Ababio II, High Court, Sunyani, 13 March 1972, unreported.

NATURE OF PROCEEDINGS

APPLICATION by the defendant for an order dismissing the plaintiff’s action for a declaration of title to property, injunction and accounts on the ground that the limitation imposed by sections 52 and 113(1) (d)

of Act 372 ousted the jurisdiction of the court since it was a cause or matter affecting chieftaincy. The facts are fully stated in the ruling.

COUNSEL

Owusu Yaw for the plaintiff.

Owusu Afriyie for the defendants.

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JUDGMENT OF MENSA BOISON J.

The plaintiff was for about 34 years the Bechemhene. He abdicated in July 1967 and the first defendant was subsequently enstooled as the Bechemhene and he is sued in that capacity. The second and the third defendants are sued in respect of certain acts alleged against them in the course of their functions as public officers of the Brong-Ahafo Regional Administration, in connection with the Bechem stool affairs. The two other defendants are hardly of any importance in the present application and need no further mention.

On 10 December 1968, the plaintiff instituted the present action claiming among other things:

(1) A declaration that certain properties (listed in a schedule to the writ of summons) are the self-acquired properties of the plaintiff.

(2) An order of injunction restraining the defendants from interfering with those properties or in respect of the said properties.

(3) An order to account for proceeds, profits and rents out of those properties.

(4) Damages for trespass.

The properties alleged comprise cocoa farms and buildings as well as chattels. The substance of the plaintiff’s statement of claim is that the properties in issue were acquired by him between 1934 and 1966 (being principally the period of his reign) with his personal moneys and through his own exertions to the knowledge and with the consent of the elders of the stool, without the aid of the Bechem stool. The first defendant in his statement of defence denies the plaintiff’s assertions and in substance alleges that the said properties were acquired as stool properties. Pleadings having closed, the first defendant on 21 February 1972 filed this present motion for an order dismissing the plaintiff’s action for want of jurisdiction in this court. The stand of the applicant is that the substance of the plaintiff’s claim raises an issue in “a cause or matter affecting chieftaincy,” in which by statute the jurisdiction of this court is ousted.

It may be convenient to set out the relevant enactments on which the objection is based. Section 52 of the Courts Act, 1971 (Act 372), provides:

“Notwithstanding anything to the contrary in this Act or any other enactment the Court of Appeal, the High Court, a Circuit and a District Court shall not have jurisdiction to entertain either at first instance or on appeal any cause or matter affecting chieftaincy.”

Jurisdiction is given to a traditional council by the Chieftaincy Act, 1971 (Act 370), s. 15 as follows:

“15. (1) Subject to the provisions of this Act and to any appeal therefrom, a Traditional Council shall have exclusive jurisdiction to hear and determine any cause or matter affecting chieftaincy which arises within its area, not being one to which the Asantehene or a Paramount Chief is a party.”

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What is meant by “cause or matter affecting chieftaincy” is defined both in section 113 (1) of the Courts Act, 1971 (Act 372), and section 66 (1) of Act 370 as any cause, matter, question or dispute relating to any of the following:

“(a) the nomination, election, appointment or installation of any person as a Chief or the claim of any person to be nominated, elected, appointed or installed as a Chief;

(b) the destoolment or abdication of any Chief;

(c) the right of any person to take part in the nomination, election, appointment or installation of any person as a Chief or in the destoolment of any Chief;

(d) the recovery or delivery of stool property in connection with any such nomination, election, appointment, installation, destoolment or abdication;

(e) the constitutional relations under customary law between Chiefs.”

Lastly there is no dispute that the stool of Bechem falls within a traditional council within the meaning of Act 370. What concerns us here is paragraph (d) of section 113 (1) of Act 372 and section 66 (d) of Act 370. It was the submission of counsel for the defendants that since the admitted fact is that the plaintiff acquired the properties during the 34 years of his reign, there is a presumption that what he acquired is stool property. The denial by the defendants, it was contended, did not therefore alter the position that the claim is for recovery of stool property in connection with such abdication (of the plaintiff as a chief), within the purview of section 113 (1) (d) of the Courts Act, 1971. Consequently the dispute is a cause or matter affecting chieftaincy. Indeed counsel’s submission goes much farther in that it is sufficient if from the nature of the claim it appears to be such a cause or matter, so that the court is precluded from even embarking upon any investigation of the matter.

For the plaintiff it was submitted that there was no such presumption that what an occupant acquires whilst on the stool is stool property. So as the plaintiff’s claim raises the issue whether the properties in dispute are self-acquired or not the court should first investigate on evidence; and it is only if it concludes the property to be stool property that it stays its hands. Counsel further submitted that the issue was determined by the plaintiff’s claim, which, in this case was principally for a declaration of title only; and that as the writ does not ask for recovery or delivery it does not offend sections 52 and 113 (1) (d) of the Courts Act, 1971, were it even stool property. It was further submitted on behalf of the plaintiff that the declaration sought does not relate to an issue of installation or abdication.

I am unable to accede to the plaintiff’s submission in its entirety. For the court to stay its hands when it concludes that the property is stool property and not self-acquired, would mean determining the merits of the claim, which is the very thing it cannot do if it has no jurisdiction.

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But the right of the court to investigate its jurisdiction is another thing. That can, in my opinion, be done by examination of the issues raised by the claim without going into the merits. The principle of law was stated in Izenkwe v. Nnadozie (1953) 14 W.A.C.A. 361 at p. 363 thus:

“In the first place it is a fundamental principle that jurisdiction is determined by the plaintiff’s demand and not by a defendant’s answer which, as in this case, only disputes the existence of the claim, but does not alter or affect its nature. In other words, ordinarily it is the claim and not the defence which is to be looked at to determine the jurisdiction.”

I accept it as the law, and in doing so I do not find it inconsistent with the statement of the law in Vanderpuye v. Botchway (1956) 2 W.A.L.R. 16, P.C. This I think is revealed in some of the expressions approved of or used by the Privy Council in Botchway’s case (supra). The Privy Council at p. 20 cited first the words of Kingdon C.J. in Kwow v. Eku II (1934) 2 W.A.C.A. 180 that “In cases such as this the real issue between the parties must be the test and not merely the wording of the suit,” and then referred to Adu v. Dapaa, West African Court of Appeal, 2 March 1950, unreported, and continued:

“In that case Smith J. said that it has long been the policy of Appeal Courts hearing appeals from Native Courts to look beyond the wording of the claim as brought and to decide the real matter in issue by a study of the whole record of the case.”

Then at p. 21 the Privy Council said:

“It is plain, therefore, that the jurisdiction of a Native Court to deal with a matter depends on whether the cause is a suit relating to the ownership, possession or occupation of land or a suit relating to the succession to property of a deceased native. In their Lordships’ opinion therefore the decisions under the earlier Ordinance still apply. They decided that a suit must fall into one category or the other and that in order to determine into which category a particular suit falls the court must apply the test of what is the real issue between the parties and not look only at the wording of the plaint.”

(The emphasis is mine.) See also Anomabu Stool v. Acquah (1957) 3 W.A.L.R. 265, P.C. I think Botchway’s case provides a means and a test for ascertaining the issue in deciding upon jurisdiction and is not in my respectful view in any way at variance with the statement of the law in Izenkwe’s case.

Learned counsel for the defendant in support of the presumption that whatever an occupant of a stool acquired belonged to the stool, relied first on a passage from R. S. Rattray, Ashanti Law and Constitution (2nd Imp.), p. 331 which states as follows:

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“There was an immemorial law to the effect that everything which became attached to a Stool became the inalienable property of that stool . . . In the application of this law, everything which a Chief brought with him when he stepped forth from his kindred group to occupy the Stool of a dead or destooled predecessor became ipso facto Stool property, e.g. his wives, slaves, and all other private property which he had possessed prior to his enstoolment … The curious claims of some present-day Chiefs, on destoolment, to an assessment of their own private property, which they claim to recover, would therefore appear ultra vires and to be wholly without precedent in Ashanti law.”

With the greatest respect, apart from its interest as legal history, it is plain from the text that the statement quoted above did not even represent the current law at the time the distinguished author was writing, in so far as it denied an occupant of a stool the right of owning property or acquiring it.

In Yamuah IV v. Sekyi (1936) 3 W.A.C.A. 57 at pp. 58-59 the customary law was stated thus:

“‘The private property of a man put on the Stool as Ohene does not go to the stool and he can dispose of it as he likes, and that if he is trading whilst on the Stool he can do what he likes with what he makes by his trading if he is trading with his own money’.”

Indeed in Serwah v. Kesse [1960] G.L.R. 227, S.C. in which counsel finds his second ground of support for the presumption advanced, the Supreme Court applying the statement of the law in Yamuah IV v. Sekyi (supra) upheld the judgment of Ollennu J. (as he then was) that Nana Juaben Serwah (then deposed) was entitled to the rehabilitation grant from the government in respect of certain farms as the private property of her immediate family, as against the claim of the occupant of the stool that the farms were stool property.

It seems to me a recent leading statement of the law on the point was Boateng alias Beyeden v. Adjei [1963] 1 G.L.R. 285, S.C. That was a case in which the plaintiff claimed property of an ancestor as self-acquired, as against the wider family stool. The contention of the defendants that by accession to the family stool the ancestor’s property became family stool property was rejected by the Supreme Court in a judgment read by Akufo-Addo J.S.C. (as he then was) in these words at p. 290:

“Except in the special case of forfeiture for breach of conditions of limited ownership, I know of no principle of customary law which operates to terminate the ownership of property save by the voluntary act of the owner of property, and there is no principle of customary law which in this respect distinguishes property owned by a stool occupant from that owned by the head of a family or by any other member of a family.

When therefore a stool occupant

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like any other person lays claim to property as being his self-acquired property the criterion for adjudication must be, ‘is there proof that the property is the self-acquired property of the claimant?’ and not, ‘was the property claimed earmarked upon the claimant’s accession to the stool?’ “

It appears Boateng v. Adjei (supra) was not in respect of a stool coming within a traditional council, but in my opinion that does not detract from the authority of principle as stated.

Finally, I think the statutory definition of what is stool property does not support any presumption of law as advanced by learned counsel for the defendants. Section 36 of Act 370 defines it as consisting of:

“(a) the stool itself and all the insignia of the stool;

(b) such other movable property and land as was handed over or declared as stool property to the Chief on his installation;

(c) any property movable or immovable acquired as stool property after the installation of the Chief.”

It follows that at least what the occupant acquires not as stool property may be his own. If there is any presumption at all, it is no more than a rule of evidence, and it does not preclude me from determining on the issue whether the claim is ousted by section 52 of Act 372.

I should say at the outset that I am unable to agree with counsel for the plaintiff that the declaration sought does not amount to a claim for recovery or delivery of property. By asking for an order of injunction and for account it seems to me the plaintiff, if he should succeed, gains possession of the properties in question by way of rents or profits. The essence of the matter, however, seems to me to be whether the recovery or delivery raises primarily issues which call for an adjudication of matters in connection with the abdication of the plaintiff or the installation of the defendant. If it is, then the claim will fall within section 113 (1) (d) of the Courts Act, 1971 (Act 372), and the jurisdiction of the court is taken away by section 52 of that Act.

Now the provisions of section 52 as defined in section 113 (1) are not new to the legislature. They were enacted in section 88 of the Courts Ordinance, Cap. 4 (1951 Rev.). This was replaced in turn by section 39 of the Courts Act, 1960 (C.A. 9), and later by paragraph 66 of the Courts Decree, 1966 (N.L.C.D. 84). It is clear that the repealed enactments and the present deal with the same subject-matter. The wording of each succeeding enactment has borrowed almost the same expressions from the proceeding enactment. In my opinion therefore the judicial interpretation given by the courts to the earlier enactments will be a useful guide to the construction of sections 52 and 113 (1) of the present Courts Act, 1971.

It is a principle of interpretation as stated in Odgers on The Construction of Deeds and Statutes (4th ed.), p. 241 that:

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“If two statutes are in pari materia, any judicial decision as to the construction of one `is a sound rule of construction for the other.’ So that ‘when a particular form of legislative enactment which has received authoritative interpretation, whether by judicial decision or by a long course of practice, is adopted in the framing of a later statute, it is a sound rule of construction to hold that the words so adopted were intended by the legislature to bear the meaning which had been so put upon them’.”

Of course this principle of construction may not apply where there is something in the later enactment to the contrary. It is to be noted, however, that section 15 of Act 370 for the first time introduces the word “exclusive.” But to my mind it does not affect the meaning of the provisions in sections 52 and 113 (1) of Act 372. And looking at sections 52 and 113 (1) of the Courts Act, 1971, 1 do not discover anything in those provisions which should rebut the presumption that the words and expressions in sections 52 and 113 (1) of Act 372 are used in the meaning which has been judicially given to them and they must therefore bear the same meaning as section 88 of Cap. 4 and section 39 the Courts Act, 1960 (C.A. 9), as well as paragraph 66 of N.L.C.D. 84.

I have already referred in brief to the facts of Serwah v. Kesse [1960] G.L.R. 227, S.C. That was an appeal from an action for a declaration of title to land as against a stool, tried before Ollennu J. (as he then was) at the High Court. The point squarely raised on appeal was whether by reason of section 88 (2) of Cap. 4 (1951 Rev.), which at the time of the appeal had been replaced by section 41 (b) of the Courts Act. 1960 (C.A. 9), the jurisdiction of the court was ousted. The contention was rejected by the Supreme Court in these words at p. 229 of the judgment:

“I have already clearly indicated that the action in this case is brought to determine title to certain farms in dispute in order to ascertain which of the parties is entitled to receive the rehabilitation grants payable in respect of them. I cannot by any stretch of imagination conceive that this can be a constitutional matter and that the Land Court has no jurisdiction, as learned counsel for the appellant has submitted before this court.

Attention has been drawn to section 88 (2), Cap. 4 (now section 41 (b), Courts Act, 1960). The earlier section read as follows: ‘The High Court and Magistrates’ Courts shall not have jurisdiction to entertain either as of first-instance or on appeal any civil cause or civil matter instituted for. . . (2) the recovery or delivery up of Stool property in connection with any such election, installation, deposition or abdication’.

That this is not such a case is clear, and I find no substance in the argument advanced as to want of jurisdiction in the court where the case was tried. A claim for a declaration of title to land even against a stool which may lay claim to such land as a stool property

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does not oust the jurisdiction of the courts within the meaning of the above quoted limitation of [1973] 1 GLR 509-517imposed upon the jurisdiction of the High Court.”

A contrary decision is that of Sarpong v. Antwi [1971] 2 G.L.R. 378, C.A. There the plaintiff as head of family, for himself and on behalf of the family brought an action in the Circuit Court, Koforidua, to recover some stool properties from the defendant, when the defendant was destooled as occupant of the Nyanor stool of Asokore in the New Juaben Traditional Area. It was held on appeal that the stool was one in the hierarchy of the New Juaben traditional set-up, and that the jurisdiction of the trial circuit court was ousted by the Courts Decree, 1966 (N.L.C.D. 84), para. 66 now repealed but replaced almost word for word by the Courts Act, 1971 (Act 372), s. 52. As stated at p. 379 of the judgment of the Court of Appeal read by Siriboe J.S.C., “the issues raised between the parties for determination were, whether or not the destoolment of the appellant had been validly carried out in accordance with custom, and whether or not the properties claimed were wholly owned by the Nyanor stool.”

It seems to me that the determination of the primary issue, whether the defendant was validly destooled so as to found the claim for recovery of any properties from him was a constitutional matter, and as such was within the prohibition of para. 66 of N.L.C.D. 84 (now s. 52 of Act 372).

In that respect Sarpong v. Antwi is distinguishable from the case of Serwah v. Kesse (supra). In my opinion the present case is governed by Serwah’s case. The action is one purely for a declaration of title to certain properties which with the claim for injunction will of course result in possession and therefore recovery or delivery of the property to one party. Although this may be in consequence of the abdication of the plaintiff, there is in my opinion no such issue raised as to make the recovery or delivery of the property one in connection with his abdication or the installation of the defendant within sections 52 and 113 (1) (d) of Act 372.

In coming to this conclusion I have had respectfully to differ from my brother Anterkyi J. for whose judgment I have the highest esteem, in his ruling on the same point between the same parties in Gyeabour II v. Ababio II, High Court, Sunyani, 13 March 1972, unreported. There will be costs of ¢ 30.00 for this motion.

DECISION

Application dismissed.

S. E. K.