OMANHENE OF SEFWI-WIAWSO v. DONKOR [1965] GLR 462

DIVISION: HIGH COURT, SEKONDI

DATE: 17 JUNE 1965

BEFORE: KORANTENG-ADDOW J.

CASES REFERRED TO

(1) France v. Quartey (1925) D.Ct. ‘21-’25, 194.

(2) Hammond v. Lamptey, High Court, Accra, 10 May 1961, unreported.

(3) Akari v. Donkor (1958) 3 W.A.L.R. 254.

(4) Ofori Atta II v. Mensah (1957) 3 W.A.L.R. 32.

(5) Ofuman Stool v. Nchiraa (1957) 2 W.A.L.R. 229, W.A.C.A.

NATURE OF PROCEEDINGS

APPEAL from a judgment of a local court in an action by the Sefwi-Wiawso paramount stool to enforce against the defendant an agreement relating to the payment of annual tribute.

COUNSEL

Essiem for the appellant.

J. Ofori-Boateng for the respondent.

JUDGMENT OF KORANTENG-ADDOW J.

This is an appeal from the judgment of the Sefwi-Wiawso Local Court presided over by K. Adu Poku,

Esquire, local court magistrate delivered on 28 September 1964. By his writ, the plaintiff, the Omanhene of the Sefwi-Wiawso Traditional Area, claimed as follows:

“Plaintiff claims judicial relief of the honourable court why the defendant has failed to account for one-third share of a cocoa farm left by the late Mr Laaw which farm is now in charge of the defendant and situate and lying at a place commonly known as Kwakwa within Supeano locality and within the Sefwi-Wiawso

Traditional Area by virtue of customary law and usage.”

As appearing from the title of the case the Omanhene sued through one J. A. Koufie, the secretary of the traditional council.

The brief facts of the case are that the father of the defendant obtained a parcel of land from the

Sefwi-Wiawso paramount stool for the purpose of farming some twenty years previous to the institution of this action. The said grantee, the father of the defendant, died some time ago at an unspecified date in

1961. The deceased had before his death cultivated and developed the land into a cocoa farm. For the use of the land the deceased paid to the grantor stool an annual customary fee of £G4 13s.

On the death of his father, the defendant introduced himself as successor to his late father and paid the stool a fee of £G15 by way of homage. The stool however called upon the defendant to enter into a new agreement with the stool whereby the defendant would have to pay an annual tribute of £G18 instead of the amount of £G4 13s. which his late father used to pay. This action was instituted for the purpose of enforcing the purported new agreement. [p.464] of [1965] GLR 462

At the hearing of the appeal Mr. Essiem, learned counsel for the appellant, submitted that the judgment appealed from was erroneous because even though the court purported to base its judgment on the

Administration of Lands Act, 1962,1 in applying that Act it failed to take into consideration the Rents

(Stabilization) Act, 1962,2 and also the Rents (Stabilization) (Amendment) Act, 1963,3 Which amended

Act 109 and excluded certain lands from the operation of the said Act. The main contention was that at the time the land was “granted” to the defendant it was “farmed land.” The above submission of learned counsel was based on the premise that on the death of the original grantee of the land (the father of the defendant), in the absence of any member of the original grantee the land would and in fact reverted to the stool grantor.

I did not call upon Mr. Ofori-Boateng, learned counsel for the respondent. In answer to a question in cross-examination the representative of the traditional council (one Mr. Joseph Albert Koufie, the secretary attached to the traditional council) said:

“The traditional council agreed to accept £G4 13s. as sheep from your late father because the council considered that he had no relatives to succeed him after his death and that the property as such could have gone to the stool.”

It is on this piece of evidence that learned counsel seeks to pin his submission. The first thing to observe about that piece of evidence, however, is that the contention is purely subjective and formed no part of the agreement between the parties—the grantor stool and the late father of the defendant.

On the same page of the record of proceedings the following evidence given by the representative of the council appears:

“The traditional council met and invited the defendant. Between the council and the defendant it was agreed that instead of the council taking possession of the deceased man’s properties, it considered and agreed to enjoy one-third of the out-come of the proceeds from the farm in dispute every year.”

This piece of evidence belies the contention of the plaintiff and the submission of learned counsel, namely, that the land reverted to the stool on the death of the defendant’s father. If anything at all, it points to only one conclusion, namely, that on the death of the defendant’s father the council knew that the original agreement with regard to the land subsisted. What they purported to do was to vary it.

[p.465] of [1965] GLR 462

The Administration of Lands Act, 1962, placed the management of all stool lands in the hands of the

Minister responsible for Lands. The minister was therefore responsible for collecting all revenue accruing from such lands in the nature of rents, dues, fees, royalties, revenue, levies, tributes and other payments, whether in the nature of income or capital from or in connection with land, subject to section 17 (1) of the

Act. Section 17 (1) provides that all rights to receive and all remedies to recover that revenue shall rest in the minister, and subject to the exercise of any power of delegation conferred by the Act, no other person shall have the power to give a good discharge for any liability in respect of the revenue or to exercise any such right or remedy. Section 17 (1) of the Act couched in such mandatory terms makes it abundantly clear that it is only the minister or his nominee who can bring an action like this to enforce the payment of revenue. It thus leaves no room even for an “interested party” to enforce directly the payment of any revenue. He may do so indirectly perhaps by resorting to a prerogative writ directed against the minister.

This action instituted by the traditional council is therefore illegal as offending against the Administration of Lands Act, 1962, and should have been dismissed on that ground alone. The council had no locus standi. The Rents (Stabilization) Act, 1962, was passed originally to “stabilise” the rents appertaining to all lands vested in the President, including stool lands. It was later amended by the Rents (Stabilization)

(Amendment) Act, 1963, which later amending Act, among other things, extended the operation of Act

109 to all lands stool or otherwise, with a few exceptions. Act 168 excluded “farmed lands” that is to say lands cultivated before being put into the hands of tenants. The farm, in dispute would be caught by Act

109 because it is indisputably stool land. According to the incontrovertible evidence it was uncultivated virgin forest when it was granted to the defendant’s father. In Ms hands therefore it would, without doubt, be affected by Act 109.

The contention of the plaintiff and the submission of learned counsel for the plaintiff is that it became

“farmed land” before it reached the defendant. At first blush I must confess that this is an ingenious argument. But the plausibility and hollowness of it become obviously patent on a second look. If the defendant is the customary successor, as he definitely is, then on the death of his father some time in 1961 the property vested in him.

Section 1 (1) of the Administration of Estates Act, 1961,4 reads: “The movable and immovable property of a deceased person shall devolve on his personal representatives with effect from his death.”

[p.466] of [1965] GLR 462

Section 2 (2) of the Act also says: “The personal representatives for the time being of a deceased person are deemed in law his heirs and assigns within the meaning of all trusts and powers.” An “heir” is defined in the Dictionary of English Law (1st ed.) (Second Impression), p. 899 by Earl Jowitt, as “a person who succeeds by descent.”

On the death of a person, therefore, according to section 1 (1) of the Administration of Estates Act, 1961, both the movable and immovable property of the person shall devolve upon his successor, the customary successor by descent. Section 1 (2) of the Act makes it clear that section 1 (1) applies to intestacy as section 1 (2) deals with testacy. Section 1 (2) shows that the Act aims at avoiding a breach in seisin as far as the immovable property of a testator is concerned. The section provides as follows:

“In the absence of an executor the estate shall, until a personal representative is appointed, vest as follows —

(a) if the entire estate devolves under customary law—in successor;

(b) in any other case — in the Chief Justice.”

Before the passage of the Administration of Estates Act, 1961, the immovable property (and for that matter the movable property) became family property and vested in the family — to be more precise, in the successor and in the case of a non-native in the heir or next-of-kin. The position as far as an intestate is concerned does not seem to have been affected by the Act.

The change that has been brought about is with regard to the vesting of the immovable property of a testator. Before the passage of the Act the property vested directly in the devisee. The catch phrase in the headnote of the case of France v. Quartey5 is illuminating. It reads: “Will — real property vests in devisee and not in personal representative —Land Transfer Act, 1897, not in force in this Colony.”

Michelin J. sums up the position in the following words, “The law simply regarded the will as a conveyance of property.”6 See also on this point the case of Hammond v. Lamptey,7 a judgment of

Ollennu J. (as he then was) in the High Court, Accra. In the said judgment the learned judge said among other things:

“Firstly as the real estate, by the law applicable to this country which is the same as was in England in 1874 and before 1898, as under the Wills Act, 1837, real estate devised vested at the death of the testator in the devisee thereof and not in the personal representative. The devisee therefore takes the devised property [p.467] of [1965] GLR 462 without the necessity of formal conveyance thereof to him by the executor.”

Now, it should, in the meantime, vest either in the successor or in the Chief Justice.

It is obvious therefore that the continuity, of the seisin is not affected by the passage of the Administration of Estates Act, 1961. The property vested somewhere. A vesting deed is now necessary in the case of a devise but in the case of intestacy under the customary law no such deed becomes necessary.

If I am right in my opinion then on the death of the father of the defendant in 1961 whether or not the death took place before 7 June 1961 the property vested in the defendant as the customary successor. The defendant stepped into or rather stood in the shoes of his late father and there was no break in the seisin.

The farm did not therefore change hands and was not given to the defendant by the grantor stool as

“farmed land.”

The two consequences of the position are therefore:

(i) The farm is caught up by Act 109 and does not fall within the exceptions created by Act 168. Even if it fell within the exceptions, being stool land, Act 123 would still apply to it as far as the collection of revenue is concerned.

(ii) The purported variation of the original contract or agreement is unlawful and contrary to the principles of customary law and as offending against the principle of sanctity of contract. As

Adumua-Bossman J. (as he then was) in the case of Akari v. Donkor8 put it, “There would be no security for any tenant, if such were the position according to native custom” if an agreement duly entered into with a stool were to be abrogated in this fashion. The purported agreement which the plaintiff sought to enforce is illegal, uncustomary and unenforceable at law.

Another minor point that calls for consideration in this appeal is the question of representation of the plaintiff. Though properly instituted in the name of the Omanhene of Sefwi-Wiawso the action was fought in the name of the Wiawso Traditional Council. Even though the traditional council is the highest authority within the state, it is not the proper person to sue and to litigate with regard to stool lands. The lands are vested in the stool. By customary law it is a well-established principle that it is only the head of a family or the occupant of a stool who can sue and be sued in respect of family or stool property.

“It is only in states where this ‘soul’ or the ‘symbol of solidarity, authority and unity,’ the stool, is absent that a state council

[p.468] of [1965] GLR 462 may sue either in its own name or, what is more usual and indeed proper, depute some person or persons to act for the state council as the proper person to litigate over state land.”

See per Ollennu J. (as he then was) in Ofori Attah II v. Mensah.9

The class of persons who can represent the stool in litigation is limited. They are either a linguist or elder or office holder of the stool who are regarded as the “natural representatives” of the stool. That does not include a clerk of a traditional council. In the case of Ofuman Stool v. Nchiraa and Branam Stools10 the

West African Court of Appeal expressed itself on the point in the following terms:

“The question posed in the direct terms appearing in the present case may not have been before this the subject of a decision of this court but it is apparent that the courts of the Gold Coast have held the view that a stool may be properly represented by a linguist or elder or office holder of the stool, these being the persons who are, to borrow the phrase used by counsel for the appellant, the ‘natural representatives’ of the stool. I should not be prepared to extend further the classes of person who may represent the stool unless I were impelled thereto by the direct authority of decided cases or reliable evidence of customary law in support of such extension.”

The representation of the Omanhene of Sefwi-Wiawso by the clerk of council is therefore bad in law and makes the proceedings irregular.

In the result I uphold the judgment of Sefwi-Wiawso Local Court and dismiss this appeal. Costs in this court are assessed at 30 guineas. Costs in the court below to be taxed.

DECISION

Appeal dismissed.

A. K. F.