BUSUMAKURA II AND OTHERS v. YANKUM [1965] GLR 345

DIVISION: SUPREME COURT

DATE: 10 MAY 1965

BEFORE: MILLS-ODOI, OLLENNU AND SIRIBOE JJ.S.C.

CASES REFERRED TO

(1) Bonsi v. Adjena II (1940) 6 W.A.C.A. 241. (2) Hayford v. Ntsin, W.A.C.A., 16 March 1951, unreported. (3) Quarm v. Yankah II (1930) 1 W.A.C.A. 80. (4) Yaw v. Awuah [1964] G.L.R. 128, S.C.

NATURE OF PROCEEDINGS

APPEAL from a judgment of the High Court, Sekondi, upholding the respondent’s claim for the sums endorsed on inter alia two promissory notes signed by the appellants. The facts are set out in the judgment of Ollennu J.S.C.

COUNSEL

Puplampu for the appellants. Dr. de Graft-Johnson for the respondent.

JUDGMENT OF OLLENNU J.S.C.

The respondent, the plaintiff in the court below, claimed against the appellants, hereinafter called the defendants, an amount of £G4,139 16s. 6d. due on three notes as follows: (a) £G1,663 16s. Od. on a promissory note dated 14 July 1955, (b) £G1,560 due on a promissory note dated 31 January 1958, and (c) £G916 Os. 6d. due under a commission note dated 21 August 1953. His claim on the third note was dismissed as one based upon past consideration; but those in respect of the first and second notes were allowed. The defendants have appealed against the judgment in respect of the first two claims on a number of grounds which may be summarised as follows: (1) the plaintiff failed to prove that he did pay the amount mentioned in the two notes, (2) the description of the defendants in the title of the suit is not enough to show that they were sued in a representative capacity,

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(3) the plaintiff failed to prove that the loans were taken upon the authority of the elders of the Takoradi stool, whose consent and concurrence is required to bind the stool, and (4) the trial judge misdirected himself on the principle in Bonsi v. Adjena II1 in not considering the evidence of custom given on behalf of the defence as to the circumstances in which a stool alone may be bound by the acts of its elders. As to the first point it must be observed that the action is upon promissory notes, which at the relevant date were regulated by the Bills of Exchange Ordinance,2 now repealed. Section 84 (1) of the Ordinance defined a promissory note, and section 90 (1) provided that, “Subject to the provisions in this Part, and except as by this section provided, the provisions of this Ordinance relating to bills of exchange apply, with the necessary modifications, to promissory notes.” Again, section 30 (1) of the Ordinance provided that, “Every party whose signature appears on a bill is prima facie deemed to have become a party thereto for value,” while section 89 provided that: “The maker of a promissory note by making it –  (1) Engages that he will pay it according to its tenor;  (2) Is precluded from denying to a holder in due course the existence of the payee, and his then capacity to endorse.” It follows from these provisions of the enactment that the promissory notes speak for themselves and it is only where fraud or illegality is proved that the onus shifts upon the holder to prove that nevertheless, value was in good faith given for it. This is laid down in section 30 (2) as follows: “Every holder of a bill is prima facie deemed to be a holder in due course; but if in an action on a bill it is admitted or proved that the acceptance, issue, or subsequent negotiation of the bill is affected with fraud, duress, or force and fear, or illegality, the burden of proof is shifted unless and until the holder proves that, subsequent to the alleged fraud or illegality, value has in good faith been given for the bill.” That ground of appeal is therefore misconceived. The second point taken has no merit in it either; the description of the defendants in the title of the suit, and the averment in the statement of claim are unambiguous, they make it quite plain that

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the defendants were sued in their representative capacity as representing the Takoradi stool, and not in their individual capacities, or as representatives of their separate families. Moreover, the defendants had no misconceptions whatever as to the capacity in which they were sued. Thus the first defendant in the course of his evidence under cross-examination said, “I am sued in this case in my capacity as Ohene of Takoradi.” In support of the third point, namely, that the plaintiff failed to prove that the loans acknowledged on the promissory notes were taken with the authority of the elders of the stool, counsel for the defendants submitted that the mere fact that the first and third defendants admit signing the promissory notes, and the predecessor-in-office of the second defendant is also proved to have signed them, is not conclusive evidence that the loans were taken upon the authority of the elders of the stool for and on behalf of the stool so as to make the stool liable, and therefore the plaintiff should have led evidence of such consent and concurrence. To support his argument, counsel cited the case of Hayford v. Ntsin3, where by separate judgments the members of the court were unanimous in opinion that the judgment of Dean C.J. in Quarm v. Yankah II,4 is not an absolute proposition of customary law that any document signed by a chief and his linguist is ipso facto binding on the stool; and that for such a document to bind the stool there must be some prima facie evidence either from traditional office held by attesting witnesses or otherwise that the necessary previous consent was given. That case is clearly distinguishable from the present case. In that case it was proved (i) that the promissory note in question was prepared by the chief himself, a literate person, who put the names and marks and some persons on the same; (ii) that those illiterate elders whose names and marks appeared on the note were not aware of the contents of the note, and not aware also that a loan had been taken by the chief, and there was no proof either that the person whose name and mark the chief put on the promissory note as linguist really held that traditional office. There was therefore no prima facie evidence of consent and concurrence of the elders of the stool in the loan transaction. In this case however each of the signatories to the promissory notes is literate, and signed the notes with full knowledge of their contents, and more important still, each of the two persons who joined the chief, the first defendant, to execute the note, is admittedly a holder of a traditional office under the stool, and is one of the

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persons whose consent and concurrence in a transaction is requisite and necessary to bind the stool. Therefore prima facie the loan was taken with the previous consent and concurrence of the elders of the stool. After all it is not necessary for each and every elder to sign the note in order to indicate consent of the council of elders; the usual thing is for the consent and concurrence of the principal elders to be signified by some only of the principal elders joining the occupant of the stool to execute the document, or attesting to the execution thereof by the occupant of the stool. The plaintiff might well have rested his case upon this prima facie evidence of the consent and concurrence by the stool elders, and left it to the defendants to rebut it if they could. But as a matter of fact he did not; he is himself an elder of the stool having inside knowledge of the proceedings, and he led positive evidence that it was upon the authority of the whole oman, the elders and the asafo, that the advances were taken from him to finance litigation by the stool; he also called witnesses who supported his evidence in that regard. The defendants made to attempt to rebut that evidence; that evidence therefore stands uncontradicted. The court must therefore accept it as conclusively proved that the loans were taken with the consent and concurrence of the elders of the stool, and the stool is therefore liable to pay the amounts. Finally it was contended for the defendants that since by section 67(1) of the Courts Act, 1960,5 a question of custom is now a question of law and no longer a question of fact as it was prior to 1 July 1960 the provisions of Order 19,r.31 of the Supreme [High] Court (Civil Procedure) Rules 1954,6 requiring a question of customary law to be pleaded by a person relying upon such customary law, is no longer necessary and therefore the learned judge of the High Court misdirected himself in relying upon Bonsi v. Adjena II,7. in refusing to consider the evidence of custom that unless every single elder of stool gives his consent and concurrence, any transaction entered into on behalf of a stool is void ab initio no matter the number of elders who gave their consent and concurrence to it. This submission placed learned counsel on the horns of a dilemma, for since customary law is a question of law, it is not necessary for evidence to be given of it, all that counsel need do is to make submissions on the law to the court and refer the court to authorities, textbooks, learned articles, reports and the like on the point, not to lead evidence; but when asked to refer us to any such authorities or treatise on the subject he was unable to do so. On the other hand, if the point

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urged is a peculiar custom requiring proof, then it is only reasonable that the rules on the subject for the time being should be complied with, and the learned judge would be quite in order not to entertain the questionable evidence led in that regard since the alleged peculiar custom has been pleaded. This question has been not discussed in Yaw v. Awuah.8 In any event the question raised in no way affects the decision in the case since the defence were unable to produce any single elder whose consent and concurrence was not obtained, which should have been obtained. There is no ground whatever upon which the judgment of the lower court can justly be interfered with. The appeal is dismissed with costs fixed at £G71.

JUDGMENT OF MILLS-ODOI J.S.C.

I agree.

JUDGMENT OF SIRIBOE J.SC.

I also agree.

DECISION

Appeal dismissed.

A. K. F.