SARPONG v. ANTWI [1971] 2 GLR 378

DIVISION: IN THE COURT OF APPEAL

DATE: 19 JULY 1971

BEFORE: SIRIBOE J.S.C., SOWAH AND ARCHER JJ.A.

CASE REFERRED TO

Ghambra v. Ewea (1891) Sar. F.L.R. 63.

NATURE OF PROCEEDINGS

APPEAL from a decision of a circuit court wherein the court gave judgment for the respondent in an action to recover stool property from the appellant. The facts are set out in the judgment of Siriboe J.S.C.

COUNSEL

Dua-Sakyi for the appellant.

S .K. Amofa for the respondent.

[p.379] of [1971] 2 GLR 378

JUDGMENT OF SIRIBOE J.S.C.

Siriboe J.S.C. delivered the judgment of the court. The plaintiff-respondent (hereafter referred to for short as “the respondent”) claiming to be the head of the Nyanor family of Asokore in the New Juaben Traditional Area, sued on behalf of himself and the family to recover from the defendant-appellant (hereafter referred to as “the appellant”), certain properties said to belong to the Nyanor family stool, the occupant of which the appellant had been for a period of some 31 years. The ground for this claim and the other relief sought, that is, damages for unlawful detention, was that the appellant was declared destooled on the 5 March 1967, by the respondent and some members of the family after the appellant had refused to appear before them, to answer charges they had preferred and served on him for his destoolment. In spite of his destoolment, the appellant, as contended by the respondent, had refused to hand over the properties even though a successor had been installed in his place.

The properties in question were listed as follows: one black stool, three stools known in Akan as asipim, one umbrella also known in Akan as mpompon kyiriye, six white stools called assese-gya, one double-barrelled gun, one single-barrelled gun and eighteen cocoa farms. Not only did he dispute ownership of the properties some of which he claimed were procured by him personally, but the respondent’s capacity as head of family, and his right and that of all those who allegedly joined in the purported destoolment exercise, were also challenged on the grounds that they, not being the kingmakers, had no customary power to enstool or destool an occupant of the Nyanor stool. Thus, 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. On those two main issues, the learned circuit judge (his honour judge Coussey, as he then was) found for the respondent, and awarded him N¢120.00 damages for unlawful detention with costs of N¢100.00. From that judgment, the appellant appealed to this court on a number of grounds filed on his behalf, one of which being that: “the whole trial is a nullity for want of jurisdiction.” It was certainly not one of the points dealt with before the trial court, but that, however, did not prevent the appellant from relying on it here, as it is well settled with no known authority to the contrary, that the question of jurisdiction can be raised or taken at any stage of the proceedings even before the appellate court.

After hearing briefly Mr. Dua-Sakyi for the appellant on that ground which was the first and only one argued by him, we decided to call upon Mr. Amofa to justify the forum chosen by the respondent. In his argument, learned counsel contended that the trial court had jurisdiction to hear the case, because the issues raised did not concern a claim for recovery of stool properties of the type of chief contemplated by the Chieftaincy Act, 1961 (Act 81), s. 1. That although the occupant of the Nyanor stool is a chief, he is not subservient to any stool in the New Juaben Traditional Area. The present claim, counsel further submitted, relates to the properties of a family stool as distinct from a town stool, and was consequently

[p.380] of [1971] 2 GLR 378 triable by the circuit court. In support of the distinction sought to be drawn, both the learned circuit judge and respondent’s counsel based themselves on the case of Ghambra v. Ewea (1891) Sar.F.L.R. 63. It appears that they sought to draw that distinction without taking into account changes in legislation that have taken place between the year 1891 and the present time. In this regard, it is necessary to examine some of the provisions governing stools, the enstoolment and destoolment of the occupants, and claims made for recovery of properties attached thereto.

Section 1 of the Chieftaincy Act, 1961 (Act 81), referred to, defines a chief as an individual who has been nominated, elected and installed as a chief in accordance with customary law, and is recognised as a chief by the minister. Section 2 goes further to set out the categories of chiefs as follows: “(a) the Asantehene and Paramount Chiefs who are not subordinate to the Asantehene;

(b) Paramount Chiefs who are subordinate to the Asantehene;

(c) Divisional Chiefs;

(d) Adikrofo and other Chiefs not falling within the preceding categories.”

It is with the (d) group that we are concerned in this case, because, it undoubtedly embraces a wide range of minor chiefs including village chiefs described by the Act as Adikrofo. In respect of all these categories of chiefs, the Act as slightly amended by the Chieftaincy (Amendment) Act, 1963 (Act 185), and the provisions of the Chieftaincy Destoolment Proceedings Regulations, 1965 (L.I. 309), made thereunder, lay down the procedure to be followed in matters of their enstoolment and destoolment, those who have the customary right to do so, and where to do same. By section 15 (1) of the Act 81, jurisdiction to hear and determine any cause or matter affecting chieftaincy which arises within the area of jurisdiction of a traditional council, which cause or matter is not one to which the Asantehene or a paramount chief is a party, is without question, vested in the traditional council of the area concerned. What is a cause or matter affecting chieftaincy is defined by section 68 of the Act to mean any cause or matter, question or dispute relating to five things two of which are necessary for our purpose, namely: “(b) the destoolment or abdication of any Chief …

(d) the recovery or delivery of Stool property in connection with [the] destoolment [of any chief].” But it seems our examination of the relevant provisions of the Act will not be complete without reference to section 52. In that section stool property is said to consist 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) movable property and land acquired after the installation of the Chief which, under customary law, has become Stool property.”

[p.381] of [1971] 2 GLR 378

Against the background of the foregoing provisions, must be considered the evidence and the arguments advanced for the parties, to be able to decide which side wins; in other words, to ascertain whether or not the appellant comes within the provisions of Act 81. If he does, then no further proof will be required in making a pronouncement in favour of the appellant, declaring the trial a nullity for want of jurisdiction, having regard to paragraph 66 (a) and (b) of the Courts Decree, 1966 (N.L.C.D. 84), being the law applicable both at the time of the initiation and trial of the action. In that case, by virtue of the provisions of section 15 of Act 81 already referred to, the claim will be a cause or matter affecting chieftaincy which is properly cognisable by the traditional council and evidently, not the circuit court. Paragraph 66 (a) and (b) of N.L.C.D. 84 mentioned, state that:

“Notwithstanding anything to the contrary contained in this or any other enactment, the High, Circuit and District 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 . . .”

The facts before the trial court, not disputed in any way, are that the position of the abusuapanin, that is, the head of the Nyanor family, is separate and distinct from that of the appellant-occupant of the Nyanor stool—who is the Abadiekyire to the Asokorehene. As Abadiekyire, the appellant is next in rank to the Asokore or Benkum stool of New Juaben.

It is also on record that on the installation of a person on the Nyanor stool, he is presented to the Asokorehene. This is because, by his enstoolment, the new chief becomes an asafohene to the occupant of the Asokore or Benkum stool. At the time of the presentation, so runs the evidence, the names of the kingmakers are entered in a book kept for that purpose at the Asokorehene’s palace. In respect of the appellant’s enstoolment, this was what the respondent said under cross-examination: “I am aware that custom demands that when a new chief is enstooled he is presented to the Asokorehene. I know of Achampomaa as standing behind the defendant when he was presented to the Asokorehene.” Incidentally Achampomaa (now dead) was, according to the respondent’s first witness, the obaapanin who nominated the appellant for enstoolment. Apart from enstoolments, the Asokorehene is made aware also of the destoolment of chiefs of the Nyanor stool. That accounts for the reason why, as the evidence makes it quite clear, a copy of the charges preferred against the appellant was sent by the respondent to him. Others to whom copies were sent included the erstwhile Regional Administrative Committee whose Chairman was Major Yeboah at the time. In this connection it may be of [p.382] of [1971] 2 GLR 378 interest to refer to the evidence concerning what transpired when the respondent appeared before Major Yeboah, as narrated by the respondent himself:

“Major Yeboah asked me why I had declared the defendant destooled and that the defendant had told him that he had committed no offence…. I told him that we had destooled the defendant because he had been mismanaging our affairs. Major Yeboah advised that I should go about it in a constitutional manner.” If the status of the appellant is of the calibre portrayed to us by learned counsel for the respondent in the course of his argument, then one may wish to know why the respondent went to all that extent in his attempt to remove the appellant from that so-called mere family office he held, by circulating copies of his destoolment charges as was done.

In our view, it is because the contrary seems to be the true position. For as the Abadiekyire to the Benkumhene of the New Juaben Traditional Area, the occupant of the Nyanor stool must of necessity have a place in the hierarchy of the traditional set-up. Such a place or role quite naturally imposes upon him, certain customary rights and duties, the exercise or performance of which transcends the family confines or limits to the domain of the greater community in which the appellant and his family live. The totality of the evidence tends to support this view. In the circumstances we are of the opinion that the appellant is a chief who falls within one of the categories of chiefs contemplated by the Chieftaincy Act,

1961 (Act 81), to be precise, section 2 (4) thereof. His destoolment or claims such as those brought against him in the present case, therefore, relate to a cause or matter affecting chieftaincy which is properly cognisable under section 15 of Act 81, by the traditional council and certainly not the circuit court. The Courts Decree, 1966 (N.L.C.D. 84), makes the prohibition of the circuit court from exercising jurisdiction quite clear.

Consequently, the ground as to want or lack of jurisdiction succeeds, and the appeal is accordingly allowed. The judgment of the trial court together with all the consequential orders made including those as to damages and costs is set aside. There will be substituted therefore a judgment dismissing the respondent’s claims with costs in this court fixed at N¢154.20 and N¢100.00 in the court below. It is further ordered that if any amount has been paid by way of damages or costs in pursuance of the trial court’s judgment, such amount should be refunded.

DECISION

Appeal allowed.