SIASUOM AND ANOTHER v. KYI AND OTHERS [1971] 1 GLR 483

DIVISION: IN THE COURT OF APPEAL

DATE: 29 MARCH 1971

BEFORE: APALOO, ANIN AND ARCHER JJ.A.

CASES REFERRED TO

(1) Sokpui II v. Agbozo III (1951) 13 W.A.C.A. 241.

(2) Mason v. Schuppisser (1899) 81 L. T. 147.

[p.485] of [1971] 1 GLR 483

NATURE OF PROCEEDINGS

APPEAL from a ruling of Edusei J., High Court, Sekondi, 27 January 1970, unreported, in which he interpreted a finding of the judicial commissioner with respect to a dispute between the parties.

COUNSEL

E. B. Gaisie for appellants

J. Mercer for the respondents.

JUDGMENT OF APALOO J.A.

The parties to this appeal appear to belong to the Nvaviley stool family of Brewire, Axim. The evidence shows that there have been in the past disputes between their predecessors as to which party in the wider family was entitled to elect a candidate to the stool and from which branch of the family the election was to be made. One such dispute was determined by Morgan J. in 1904.

At a date prior to May 1955, Chief Kwamin Gharmin II died and a person called Ebie Mienzah was elected as a successor to him. This provoked a dispute in which his right to do so was questioned in the Upper Axim State Council. The council’s decision was adverse to the appellants. The state council’s decision was appealed against to the judicial commissioner who reversed it. His finding was accepted by the President who caused it to be published in the Local Government Bulletin of 28 June 1963. That decision was final and is binding on the parties. Its binding efficacy is not now in issue. But it seems that the parties have put two conflicting interpretations on the second limb of that judgment. Accordingly, in order to obtain an authoritative interpretation from the court, the respondents on 10 March 1969, caused to be served on the appellants an originating summons in which they invited the court to determine:

“Whether or not the finding of the judicial commissioner confirmed and as appearing in the Local Government Bulletin No. 28 of June 28, 1963, namely, ‘that if at any time the question as to who has a better right to the Brewire stool is to be considered, preference should first be given to the descendants of Ekua Brisie otherwise known as Gyanteh Ekua’ necessarily restricts the right to the Brewire stool to the descendants of Ekua Brisie alone to the exclusion of all other persons.”

On 27 January 1970, the issue of interpretation came before Edusei J. in the High Court, Sekondi, when counsel for the parties presented their arguments to the court. The learned trial judge preferred the construction proffered on behalf of the respondents and on 19 March 1970, determined that the right of election to the Brewire stool was not restricted to the descendants of Ekua Brisie but that their claim to the stool ought to be considered before any other eligible candidates.

There was also raised by the appellants, a subsidiary issue, namely, that Armah Kyi (the first plaintiff at the trial) was not the head of the Nvaviley family and had, therefore, no locus standi to seek the relief he sought from the court. The learned judge acceded to this contention but said the remaining two plaintiffs were entitled to seek the court’s aid in interpreting the judgment. He did not say on what basis but clearly implied

[p.486] of [1971] 1 GLR 483 that they were entitled to do so as members of the family. The appellants also raised as a preliminary issue, that the matter before the court was a constitutional one and that the High Court was bereft of jurisdiction to determine it. The learned judge wrote a considered ruling in which he rejected that contention holding that as the issue was merely one of construction of a written instrument, the court was seised with jurisdiction to entertain it. The appellants contest all these conclusions by this appeal. Almost all the contentions which failed in the court below were reiterated before us. Mr. Gaisie put in the forefront of his argument the contention that the respondents failed to show the capacity in which they brought the action and as this was challenged, they ought to prove it strictly. He then referred us to the rather familiar case of Sokpui II v. Agbozo III (1951) 13 W.A.C.A. 241. Mr. Mercer replied that as the application was for an interpretation under Order 54A, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), all the respondents need show was “interest” within the meaning of that rule and not locus standi in its usually accepted sense. He submitted that as the respondents were all members of the family they have shown such interest.

If Mr. Mercer felt himself obliged to resist a point which seems almost common – place, it is in part his own making. Instead of instituting the originating summons on the simple ground that the respondents were members of the Nvaviley family and on that account wish to have the document which regulates the devolution of the family stool interpreted, they claim collectively to be “entitled to part ownership of the Brewire stool.” How some members of a family can be part owners of an indivisible stool is, to me, an entirely novel concept. It does not therefore surprise me that Mr. Gaisie should have made this averment the pivot of his attack against the judgment.

As no evidence was taken, there is very little material to determine the actual relationship of the parties on grounds of consanguinity. But it seems the first appellant is a lineal descendant of Ekua Brisie alias Gyanteh Ekua and the respondents are probably her collateral descendants, but certainly members of the wider Nvaviley family, to which both parties belong. There is a judgment which decides the devolution of the family stool and the right to its succession. The appellants put a certain interpretation on that document. The respondents put on it the entirely opposite construction. Therefore, if the respondents are “interested” in that judgment within the meaning of Order 54A, then they were properly in court. But what is the meaning of “interested” in this context? In Mason v. Schuppisser (1899) 81 L.T. 147, Stirling J. ascribed to it a meaning which commends itself to me. He said at p. 148:

“Next, as to the meaning of the word ‘interested.’ The words are, ‘any person claiming to be interested under a deed, will, or other written instrument.’ & c. The word is a wide one, and ought to extend, as it seems to me, to the claim of any person who has an interest of any sort, whether vested or contingent, whether absolute or defeasible, whether in possession or reversion, under an instrument within the meaning of the rule.”

[p.487] of [1971] 1 GLR 483

I think it manifest that the respondents were “interested” within the meaning of this rule. As members of the Nvaviley family and as the remoter descendants of Ekua Brisie, they have a contigent right to the succession of the Brewire stool, if there are no suitable lineal descendants of Ekua Brisie to be elected to the stool. Indeed, it is the attempt by the appellants to deny them that right that occasioned the instant litigation. In my judgment, the respondents were properly in court with a legitimate grievance and were within their rights in invoking the jurisdiction of the court.

Mr. Gaisie next contends that the interpretation which the learned judge put on the word “preference” was wrong. He says in the context of that judgment and in accordance with the history of this litigation, it means that the descendants of Ekua Brisie are the only persons entitled to be elected to the stool. With respect, that construction does considerable violence to language and does not seem to me to accord with common sense. Words which have no special technical connotation import their ordinary meaning. “Preference” according to the Concise Oxford Dictionary, means: “Liking of one thing better than the other, thing one prefers, prior right.” Basic to the word, is the notion that there is more than one thing from which a choice is to be made. And one cannot make a choice from only one thing. The judgment properly construed, implies that there are other persons apart from the lineal descendants of Ekua Brisie entitled to be elected to the stool. But the rights of such persons are postponed to those of her descendants. This is a very different thing from saying that only her descendants are eligible to be elected to the stool.

Mr. Gaisie then sought refuge in the finding of Morgan J. in what seems a similar dispute between the predecessors of the parties in 1904 (unreported). But that finding is against the construction for which counsel contends. Morgan J. said: “I find that the person to be placed on the stool should in the first instance be sought for among the descendants of Gyanteh Ekua.” It is precisely the same notion that the judicial commissioner expressed by the use of the words “preference should first be given to the descendants of Ekua Brisie otherwise known as Gyanteh Ekua.”

Morgan J. was faced with the competing claims to the stool of the descendants of two females, namely, Gyanteh Ekua and Gyanteya, and he held, so to speak, that the descendants of the former have a first refusal to the stool. That is how Edusei J. understood the matter and his interpretation was: “The words used clearly show that there are descendants of another line who may have a claim to the Brewire stool but their claim comes to be considered after the claim of the descendants of Ekua Brisie. This means that the kingmakers of the Brewire stool must first look for a chief for their vacant stool at any given time from the descendants of Ekua Brisie and if no such descendant is available or such descendant is available but not suitable in the eyes of the kingmakers, then they may look for an occupant of the stool from other qualified persons who are not descendants of Ekua Brisie.”

[p.488] of [1971] 1 GLR 483

I think that construction of the word accords not only with the actual words used in the judgment in question but with both the history and common sense of the matter. In my judgment, it is plainly right. Mr. Gaisie’s last and slightly half-hearted contention was that the High Court had no jurisdiction to entertain this matter inasmuch as it is a chieftaincy dispute and he relied on section 15 (1) of the Chieftaincy Act, 1961 (Act 81), which confers jurisdiction on chieftaincy matters on a traditional council and paragraph 66 of the Courts Decree, 1966 (N.L.C.D. 84), which denies the High Court jurisdiction in such matters. But section 68 of the Chieftaincy Act defines in great detail what is a “cause or matter affecting chieftaincy” within the meaning of that legislation. The question at issue in this case is: What is the true meaning of the second limb of the judicial commissioner’s finding as published in the Local Government Bulletin of 28 June 1963? It is plain that this is not a chieftaincy dispute within the statutory definition. It is clear that it is an issue involving the construction of a written instrument within the true intendment of Order 54A and is properly cognisable by the High Court.

In my opinion, the ruling of Edusei J. on the preliminary issue of jurisdiction and his interpretation of the judicial commissioner’s finding were right and ought to be affirmed. I would, therefore, dismiss this appeal with costs.

JUDGMENT OF ANIN J.A.

I agree.

JUDGMENT OF ARCHER J.A.

I also agree.

DECISION

Appeal dismissed.

T. G. K.