NYAN v. EBBI [1965] GLR 133

DIVISION: HIGH COURT, SEKONDI

DATE: 8 MARCH 1965

BEFORE: DJABANOR J.

CASES REFERRED TO

(1) Ahenkora v. Ofe (1957) 3 W.A.L.R. 145, C.A.

(2) The Resident, Ibadan Province v. Lagunju (1954) 14 W.A.C.A. 549.

NATURE OF PROCEEDINGS

RULING on the jurisdiction of the court in a claim for damages for trespass to stool farms. COUNSEL

J. K. Polley (with him Amua Sakyi) for the plaintiff.

T. Amihere Mensah for the defendant.

JUDGMENT OF DJABANOR J.

In this case the plaintiff, for himself and as representing the stool of Adjaza, claims from the defendant the sum of £G500 damages for trespass to six stool farms, and perpetual injunction restraining the defendant, his agents, etc. from interfering with the possession and control of the said farms. It is conceded that the defendant was elected and installed as successor to the late chief of Adjaza. But he has not been recognised by the minister as a chief. It appears that on his installation these stool properties devolved upon him. The plaintiff avers that the unrecognised chief (the defendant) has since been destooled, and in spite of that he continues to enjoy the proceeds of the farms. The defendant on his part admits that he has not yet been recognised by the minister, but contends that he still is the chief and denies that he has been destooled. He therefore contends that he is entitled to the farms. The defendant was installed in 1962.

In a very forceful submission counsel for the defendant contended that the court’s jurisdiction over this case is ousted by virtue of

[p.135] of [1965] GLR 133 section 39 of the Courts Act, 1960,1 because clearly this is a civil cause or matter, instituted for the recovery of stool property. That section provides:

“39. (1) 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;

(b) the recovery or delivery of stool or skin property in connection with any such election, installation, deposition or abdication.”

Counsel in his submission referred to the plaintiff’s statement of claim, the defendant’s statement of defence and the issues as filed, and contended that the real issue is the recovery of the stool farms. The defendant’s claim is that he is still chief, that he has not been destooled, and so he is entitled to the property. The court must therefore of necessity decide whether or not the defendant has been destooled.

The plaintiff ‘s counsel countered this submission with an equally forceful argument. He made the point that the claim was for trespass and an injunction and not for a declaration of title because it is conceded that the farms are for the stool. The plaintiff’s point is that the defendant should be restrained from going to the farm because he is not a chief as defined by the Chieftaincy Act, 1961,2 which states that a person is a chief only after he has been recognised as such by the minister. The defendant has not been so recognised since 1962. He is therefore an individual.

I have not been referred to any decided case on this point and I have been unable to find any. But I have benefitted to a certain measure by a study of the case of Ahenkora v. Ofe3 and also The Resident, Ibadan

Province v. Lagunju.4 Guided by these cases and from my own interpretation it seems to me that what I am to decide is whether or not this action was instituted for the determination of any of the matters prohibited by section 39 of the Courts Act, 1960. Is this action instituted for the determination of any matter relating to or affecting the election of a chief, or the installation of a chief,

[p.136] of [1965] GLR 133 or the deposition (destoolment) of a chief? Or for the recovery or delivery up of stool property in connection with his election, installation, or destoolment? Let me start by stating that in my view an action for an injunction to restrain a person from exercising rights over landed property tantamounts to an action for the delivery up or recovery of that property, because in connection with land it is the usufructuary right of that property that is being taken away. In this case therefore I hold that the action relates to the recovery or delivery up of stool property.

In determining this matter the material provisions of the law appear to be the following sections of Act

81:

“1.(1) A Chief is an individual who—

(a) has been nominated, elected and installed as a Chief in accordance with customary law, and

(b) is recognized as a Chief by the Minister responsible for Local Government (in this Act referred to as ‘the Minister’).”

“68. . . . ‘cause or matter affecting chieftaincy’ means any cause, matter, question or dispute relating to any of the following—

(a) the election or installation of any person as a Chief or the claim of any person to be elected or installed as a Chief;

(b) the destoolment or abdication of any Chief;

(c) the right of any person to take part in the election 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 election, installation, destoolment or abdication;

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

From a proper construction and interpretation of these provisions I make the following observations:

(a) When two persons each claim to have been elected and installed as chief and they both want that recognition of the minister then it becomes a cause or matter affecting chieftaincy. Such a cause or matter cannot be determined by the High Court. And if the issue is whether or not the minister’s recognition should be given consequent upon an installation, the High Court has no jurisdiction.

That is not the issue here. It is agreed that the defendant was customarily installed as a chief.

[p.137] of [1965] GLR 133

(b) It is stated that when the dispute relates to the destoolment of a chief then a constitutional matter has arisen. What does “chief” mean in this context? A chief as defined is a person who has been installed and recognised by the minister. I think that it is the destoolment of such a person that is meant in this context, for it seems to me that the natural course of events is that an individual is first nominated, elected and installed, and recognised before he becomes a chief. It is this chief who may abdicate or be destooled. When, after he has been gazetted as chief he abdicates or is declared destooled—the minister withdraws his recognition—then he ceases to be a chief.

Section 56 of Act 81 states that:

“[W]here—

(a) the Minister has withdrawn recognition from a chief . . .’or (b) a Chief has been destooled but the Minister has not yet withdrawn recognition; . . . the Minister may … order any local authority or public officer to take possession of the Stool property.”

This shows clearly that stool property is recoverable only from a person who has ceased to be a gazetted chief, i.e. though recognised as chief he has been destooled but the minister has not yet withdrawn his recognition, or that the minister has confirmed his destoolment and or withdrawn his recognition of him.

In my view that is the crux of this matter. A person who has been installed but not recognised is not a chief. He is an individual. He gets the protection afforded to a chief under the Chieftaincy Act, 1961, and section 39 of the Courts Act, 1960, only after the minister has recognised him. In my view, paragraphs (3) and (5) of the plaintiff’s statement of claim notwithstanding, what in law the plaintiffs are saying is:

“We nominated you, elected you, and installed you for recognition as a chief. We then gave you the use of the stool farms. The minister did not make you a chief. We are asking you—an individual—not to have the use of the stool land again.”

The defendant would appear to be saying in answer to this that he has been properly and lawfully installed as chief, and that the recognition of the minister may yet be granted in which case the recognition would be retrospective. I fully sympathise with this argument, but that is not the point.

[p.138] of [1965] GLR 133

The issue as I see it is the first one agreed upon, i.e. whether or not the defendant not having been recognised by the minister as a chief can retain the stool farms which only a recognised chief is entitled to. In my view he cannot.

There is also this other aspect of the matter to be considered. If the defendant denies that the courts have jurisdiction in the matter—then who has jurisdiction? Since he has not ever been gazetted as chief, the traditional council, with authority over chiefs only, cannot assume jurisdiction. I am sure that either the defendant is a chief or he is not. In this case he is not so he must come before the courts.

In conclusion I rule that this action is not one instituted for any of the matters in respect of which this court’s jurisdiction is ousted. The submission of the defendant is therefore rejected with fifteen guineas costs.

DECISION

Action to continue.

E. A.-A.