BUKURUWA STOOL v. KUMAWU STOOL
[HIGH COURT, ACCRA]
DATE: 14TH MAY, 1962
COUNSEL
Twum-Barima for the plaintiff.
Joe Reindorf (with him Asumadu Sakyi) for the defendant.
JUDGMENT OF OLLENNU J.
In this case the plaintiff, the Ohene of Bukuruwa, as representing the stool of Bukuruwa claims
against the defendant, the Ohene of Kumawu, as representing the stool of Kumawu, a declaration of
title to two pieces of land situate in Kwahu, and an order for injunction. The defendant also, on behalf
of his stool, counterclaims against the plaintiff’s stool declaration of title to and an order for
injunction in respect of the same parcels of land, described as one piece of land.
The defendant’s stool pleaded, among other things, that the dispute between the two stools is res
judicata by reason of a judgment delivered on the 23rd February, 1959, by the Land Court of the then
Ashanti Judicial Division of the Supreme Court of Ghana, Kumasi, in a suit entitled Nana Otuo
Achampong I, Kumawuhene, for and on behalf of the Kumawu Stool v. Nana Yaa Sakaa,
Bukuruwahema, for and on behalf of Bukuruwa Stool and two others.1(1) This issue as to whether the
dispute is res judicata has been tried as a preliminary issue.
There is no question that the subject-matter of this suit is identical with the subject-matter of the suit
pleaded; nor is it in dispute that the issues in the two suits are the same, or that the Kumawu stool, the
plaintiff in the former suit is the defendant in the present suit. It is not in dispute either that the former
suit purported to have been taken against the Bukuruwa stool. The only issue is whether the judgment
obtained by the Kumawu stool in that suit is binding upon the Bukuruwa stool. It has been proved that
the writ of summons, pleadings and motion papers in that other suit were duly served upon Nana Yaa
Sakaa.
Now the Bukuruwa stool was vacant from 1953 to 1959; the plaintiff, the present Bukuruwahene was
enstooled on the 7th September, 1959. Sometime in 1955, the Gyasehene of Bukuruwa, P.W. 1,
jointly with the Krontihene and Nana Yaa Sakaa, then queenmother, executed a deed of mortgage on
the lands in dispute in favour of one Kwabena Foli to secure a loan which the said Kwabena Foli gave
to the Bukuruwa stool.
It was submitted by counsel for the Kumawu stool that Nana Yaa Sakaa, as a traditional elder of the
Bukuruwa stool could be appointed to represent the stool, and that the fact that she joined two other
traditional elders, the Gyasehene and the Krontihene, to execute a mortgage on behalf of the stool
proves that she had such authority to represent the stool. In support of that submission counsel cited
Amah v. Kaifio,2(2) Ofuman Stool v. Nchiraa and Branam Stools,3(3) and Ofori Atta II and Ors. v.
Boateng.4(4)
Amah v. Kaifio restated the well-known principle of customary law that in the absence of a
substantive head of a family, the oldest member of the family, or failing him, any other elder of the
family who has been authorised by the family to take care of the family property
[p.355] of [1962] 1 GLR 353
or in other respects to act as the head of the family would be presumed to have the family’s authority to litigate the family’s title to property. In that case it was proved that the family to which the plaintiff
Amah belonged had been without a substantive head for a long time, that upon appointment by the
family Amah had, during all that time, been administering the family property, letting portions of it to
tenants and collecting rents. Alleging that the defendant Kaifio was a tenant and that she had failed to
pay rents, Amah sued her for recovery of arrears of rent and possession of rooms she occupied on the
family premises. It was held that in these peculiar circumstances he must be presumed to have been
authorised by the family to litigate the family’s title to the property.
Ofuman Stool v. Nchiraa and Branam Stools was a case between three stools. The case started in a
native court. The occupant of the Ofuman stool instituted an action against the Nchiraa stool and the
Branam stool, and the occupant of each of those stools was served with the writ of summons. At the
trial of the suit, each of the three stools was represented by a person, not a traditional elder, appointed
by the occupant of the stool under a power of attorney. It was held by the West African Court of
Appeal, that for the purposes of litigation, only persons belonging to a limited class of traditional
elders of the stool including a linguist, who are natural representatives of a stool, may be appointed by
the stool to represent the stool in litigation, and that the class of such office holders of the stool will
not be extended save where particular local custom permitting such extension is proved. It was
therefore held that since the attorneys so appointed by the three stools were not members of that
permitted class, and as no local custom was proved to vary the rule, they were not competent to
represent the stools.
The case of Ofori Atta II and Ors. v. Boateng laid down a similar principle. The plaintiffs in that case,
the Omanhene of Akim Abuakwa, and the Ohene of Asafo Akyem, occupants of stools, instituted an
action against an ex-occupant of the stool of the second plaintiff; they each caused their linguist to
represent them at the trial. It was held that the linguists came within the class of traditional elders who
can be appointed by the council of the stool to represent the stool in a litigation.
The ratio decidendi in those two cases Ofuman Stool v. Nchiraa and Branam Stools, and Ofori Atta II
and Ors. v. Boateng is, that where the occupant of the stool has sued on behalf of the stool or has been
sued on behalf of the stool and served with the writ of summons, the stool, i.e. the council of the stool
in any such case can appoint an elder to represent the stool at the trial of the suit, but the person they
so appoint must be a traditional elder belonging to the limited class of traditional representatives.
The principle of law as to who may sue and be sued on behalf of a family is set out clearly in Kwan v.
Nyieni and Anor.5(5) and applies mutatis mutandis to a stool. The general principle is that only the
occupant of the stool or the head of the family can sue or be sued in respect of stool or family
property. When a stool is vacant the regent or a person appointed by the council of the stool may sue
or be sued. Other exceptions are set out in Kwan v. Nyieni and Anor. To give effect to that principle
of
[p.356] of [1962] 1 GLR 353
the customary law, Order 16, rule 8 (b) of the Supreme [High] Court (Civil Procedure) Rules, 1954,
provides that:
“(b) The head of a family in accordance with custom, and the occupant of a Stool (or where the Stool
is vacant, the Regent or Caretaker of such Stool) may sue and be sued on behalf of or as
representing such Family or Stool. “
It follows that where a stool is vacant, a plaintiff who sues a person as representing that stool takes
upon himself the onus of proving that the person he sues as representing the stool is the regent or the
caretaker of the stool, otherwise any judgment he obtains against that defendant cannot bind the stool.
This is particularly so if the party sued fails to appear and to bring elders of the stool to prove that he
is such regent or caretaker of the stool. Generally stated, the principle is that where a person is sued in
a representative capacity, and he either failed to appear, or appears and denies that he has authority to
represent the family, the stool or the body on behalf of whom he is sued, the plaintiff cannot succeed against the family or stool or body unless he proves satisfactorily that the defendant is the duly
authorised representative of the stool, the family or that body of persons: see Keelson v. Mensah.6(6)
It appears from the writ of summons, the pleadings, and the motion papers and the judgment of the
former suit, that the Kumawu stool never even alleged that Nana Yaa Sakaa was a regent or caretaker
of the Bukuruwa stool, and of course, they made no effort to prove that she was such regent or
caretaker, or that not being a regent, or caretaker, she had been specially authorised to defend the suit
on behalf of the Bukuruwa stool. The mere fact that an elder of a stool belongs to the class of
traditional elders who could be appointed to represent the stool does not mean that such an elder has a
general authority to sue or be sued on behalf of the stool, and it does not justify a plaintiff to choose
that elder and sue him for and on behalf of the stool. It is the stool who should elect, appoint and
authorise a particular elder of the class of natural representatives to represent the stool when the stool
wants to sue or when the stool is properly sued and served with a writ of summons. It is not for an
outsider who wishes to litigate with the stool to decide who should represent the stool.
Here it should be pointed out that the submission of counsel that by causing Nana Yaa Sakaa to
execute a deed of mortgage jointly with the Gyasehene and the Krontihene on behalf of the stool, the
stool should be deemed to have constituted Nana Yaa Sakaa a representative with authority to litigate
the stool’s title to the land mortgaged, has not much force in it. If the stool thought it wise that as
many as three traditional office holders should represent them to execute the mortgage, can it be said
that by their act in insisting upon as many as three persons to represent them in that transaction, they
intended that any one of these three should be competent separately to bind the stool? I do not think
so. If the Kumawu stool had sued all the three elders together who executed the mortgage on behalf of
the Bukuruwa stool, there could have been some force in that argument, but not otherwise.
To hold that when a stool or headship of a family is vacant, a person who claims title to property
adverse to that of a stool or family could sue just any elder of the stool or family as representative of
the stool or family, and that a judgment he obtains in default of appearance of the
[p.357] of [1962] 1 GLR 353
particular representative of his election would bind the stool or the family is to lay down a most
dangerous principle which will jeopardise the interest of all stools and families in property. It would
mean that in such a case if the representative of the plaintiff’s choice fails to appear either in collusion
with the plaintiff, or because he knows he has been wrongly sued, the stool or family would lose their
valuable property. A judgment obtained in that way is of no force and effect whatsoever; it is not
binding on the person so sued individually because he was not sued in his personal and individual
capacity, and it is not binding on the stool or family either because the person served with the writ has
no authority, to represent the stool or family.
The defendant has failed to prove that Nana Yaa Sakaa was regent or caretaker of the Bukuruwa stool
on the 23rd February, 1959, the date on which the judgment pleaded was delivered or at any other
time; he has also failed to prove that Nana Yaa Sakaa ever had authority to litigate the Bukuruwa
stool’s title to the land in dispute or any land. On the contrary, there is positive evidence that by the
custom of Bukuruwa, only one of two traditional office holders can be appointed regent or caretaker
of the Bukuruwa stool when the stool is vacant, and those persons are the Gyasehene or the
Krontihene, and further that during the interregnum of 1953 to 1959, the Gyasehene P.W.1 was the
duly authorised person who acted for the stool. There is the further uncontradicted evidence that in
any event Nana Yaa Sakaa was not Bukuruwahema on the 23rd February, 1959, the date when the
judgment relied upon by the defence was delivered.
For the reasons given above I hold that the judgment delivered by the Land Court, Kumasi on the
23rd February, 1959, is of no force and effect as against the Bukuruwa stool, and is not binding on the
said stool. I rule that the suit is not res judicata. I order that the trial should proceed on the merits.
Costs to be costs in the cause.
DECISION
Submission overruled.
