ADUMUAH AND ANOTHER vs. TETTEY-KWAO AND OTHERS [1997-98] 1 GLR 344

CASES REFERRED TO

(1) Amoasi III v Twintoh [1987-88] 1 GLR 554, SC.

(2) Kwan v Nyieni [1959] GLR 69.

(3) Owusu v Agyei, Supreme Court, Accra, 11 December 1991, unreported.

(4) Onano v Mensah, Supreme Court (Lands Division), Accra, 21 December 1948, unreported.

(5) Dam v Addo [1962] 2 GLR 200, SC.

(6) Mensah v Ghana Commercial Bank (1957) 3 WALR 123.

(7) Republic v Fijoli-Na, In re Wa-Na; Ex parte Yakubu [1987-88] 1 GLR 180, CA. (8) Osei v Siribour II [1984-86] 1 GLR 588, SC.

(9) Helburahah v Ntakudzi (1927) FC ‘26-’29, 286.

(10) Adanjusic(4) v Hunvoo (1908) Red 233.

(11) Allotey v Abrahams; Tamakloe v Abrahams (1957) 3 WALR 280.

(12) Savage v Asam (1895) WN 109.

(13) Colonial Securities Trust Ltd v Massey (1890) 1 QB 38.

(14) Coghlan v Cumberland [1998] 1 Ch 704.

(15) Montgomerie & Co v Wallace-James [1904] AC 73.

(16) Dominion Trust Co v New York Life Insurance Co [1919] AC 254.

(17) Cooper v General Accident, Fire and Life Assurance Corporation Ltd (1922) 128 LT 481. (18) Mersey Docks and Harbour Board v Procter [1923] AC 253.

(19) Glannibanta, The (1876) 1 PD 283.

(20) Wagstaff, Re v Jalland (1907) 98 LT 149; 24 TLR 136, CA.

NATURE OF PROCEEDINGS

APPEAL by the defendant-appellants, the chief of Appolonia, a village under the Kpone Traditional Area, and the paramount chief of Kpone from the decision of the High Court, Accra in favour of the plaintiff-respondents in their action for, inter alia, a declaration that Appolonia stool lands could validly be alienated by the chief only with their consent as the heads of their respect clans. The facts are sufficiently stated in the judgments of Essilfie-Bondzie and Benin JJA.

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COUNSEL

Nsiah Akuetteh for the defendant-appellants.

Pwamang for the defendant-respondents.

JUDGMENT OF LAMPTEY JA

I agree with the opinion of my brother Benin JA that the appeal be allowed and that the judgment of the High Court dated 26 September 1995 be set aside. I wish to make a few observations in the light of the serious issues of law raised and canvassed by counsel for the parties before us. Three issues of law were raised. These were (1) whether or not the claim by the plaintiffs that they were elders or kingmakers or both of Appolonia raised a dispute affecting chieftaincy; (2) whether or not the plaintiffs have the capacity to sue the defendant in the light of the reliefs claimed by them; and (3) whether the land the subject matter of the dispute is Appolonia land or part and parcel of Kpone stool land. On the first issue, I agree with the conclusion reached by Benin J A that in all the circumstances and the evidence on the record, the claim by each plaintiff that they are kingmakers or elders or both and that by custom and usage they must be necessary parties in the nomination, election and enstoolment of the chief of Appolonia raised a dispute affecting chieftaincy.

I would at this point deal with the third issue, since it is my view that my opinion on this issue would necessarily determine the second issue raised. I have no doubt in my mind that the issue of ownership of the land the subject matter of the dispute was the main cause of the litigation. There is abundant evidence on the issue of ownership of the lands of Appolonia given by the plaintiffs and their witnesses and also from the defendant, co-defendant and their witnesses. The trial judge made a positive finding on this issue in the following language:

“I find therefore that even though it is not disputed that Appolonia lands are owned by the people of Kpone or more precisely by the Kpone stool, grants of portions of that land are made by the chief of Appolonia and his elders and not directly by the Kpone stool.”

(The emphasis is mine.) The trial judge continued further as follows:

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“I find further that these grants are made exclusively by the chief and elders of Appolonia and that there is no established practice that the stool of Kpone should consent to or concur in such grant.”

Before I examine the finding made by the trial judge, I must observe that the plaintiffs claimed in paragraph (3) of their statement of claim that “by custom and tradition the stool lands at Appolonia are alienated by the chief of Appolonia with the consent and concurrence of the ruling clan.” The plaintiffs did not cross-appeal against the finding made by the trial judge that lands at Appolonia formed part of the Kpone stool lands. On the record, there is undisputed evidence to support that finding. I reproduce the pieces of evidence on this issue. The first plaintiff admitted under cross-examination when asked: “Do you know who owns Appolonia lands? He answered: “I know it belongs to the people of Kpone.” Pressed further the first plaintiff gave the following answers:

“Q Are you saying that Appolonia does not form part of the Kpone Traditional Area?

A Appolonia is part of the Kpone lands, but Appolonia is on its own.

Q When you say Appolonia is on its own, what do you mean?

A Appolonia lands are owned by Bediako We.”

It is clear from the answers given by the first plaintiff that contrary to his pleading that the land, the subject matter of the suit is land belonging to and owned by the chief and people of Appolonia, his answers contradicted and conflicted with that pleading. Clearly, the first plaintiff abandoned his claim on behalf of the chief and people of Appolonia and laid ownership in Bediako We. He has put forward a case completely different from and inconsistent with the claim endorsed on his writ of summons. Indeed, the trial judge rejected the case of the plaintiffs on this issue and held that the land the subject matter formed part of Kpone stool land. I agree with this positive finding of the trial judge that the Kpone paramount stool is the absolute owner of the lands at Appolonia.

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I find support for my finding from the evidence given by two of the witnesses called by the plaintiffs, each of whom testified that lands at Appolonia are owned and belong to the Kpone paramount stool. I start with the evidence of the first plaintiff witness, Nene Kanor II. He, the first plaintiff witness, testified as follows: “Appolonia lands are Kpone stool lands.” He was questioned to explain the statement he had made as follows:

“Q When you say Appolonia lands are Kpone stool lands, can you explain?

A. I cannot explain. All I know is that they are Kpone stool lands.”

It is plain and clear that the evidence of the witness of the plaintiffs corroborated the case of the defendant. The second witness was the second plaintiff witness, Nuertey Ablade, who described himself as a kingmaker of Kpone. In his evidence in-chief he testified as follows: “The lands at Appolonia are Kpone lands and the paramount chief of Kpone has authority over it.” This piece of evidence corroborated the case of the defendants and shattered the claim put forward by the plaintiffs that the chief and people of Appolonia owned the Appolonia lands.

In his evidence in-chief the third plaintiff witness, Nelson Tettey stated as follows:

“I am the stool father of Srekpor … I am the father of the chief of Srekpor. The people of Srekpor are citizens of Kpone. Srekpor shares boundary with Appolonia….What I know about Appolonia lands is that the lands there are alienated by the people and chief of Appolonia and not by the chief of Kpone.”

The evidence of the third plaintiff witness showed that Appolonia lands belonged to the people and chief of Appolonia. He did not say and was not asked to say who in Appolonia had power and authority to alienate land at Appolonia. Indeed, he did not say and was not asked to say whether or not any of the plaintiffs had any part to play in the alienation of Appolonia lands. Some of the answers given by the third plaintiff witness under cross-examination persuaded me that the third plaintiff witness was not

[p.350] of [1997-98] 1 GLR 344 a truthful witness. I support my opinion with a portion of the cross-examination of the third plaintiff witness. When he was asked: “What is the stool name of your son who is the chief of Srekpor? He answered: “I do not know.” I must also point out to his assertion that Srekpor lands do not form part of Kpone stool lands. The third plaintiff witness changed his evidence under cross-examination and admitted that Srekpor was part of Kpone stool lands.

The position at the end of the case for the plaintiffs was that two of the three witnesses called by them left the court in no doubt that Appolonia lands formed part of Kpone stool lands. The evidence of the first plaintiff witness and the second plaintiff witness did not corroborate the evidence of the plaintiffs but rather contradicted and conflicted with the claim of the plaintiffs. Indeed, the evidence of the first plaintiff witness and the second plaintiff witness corroborated the case of the defendant. I find that the finding of the trial judge that Appolonia lands form part of and are Kpone stool lands is correct and is supported by the evidence on the record. I reject the finding of the trial judge that “grants of Appolonia land are made by the chief of Appolonia and his elders” because there is no evidence on the record to support that finding. Again I am satisfied and find there is no evidence to support this other finding by the trial judge: “that grants of Appolonia lands are made exclusively by the chief and elders of Appolonia and that there is no established practice that the stool of Kpone should consent to or concur in such grant.”

I reject and set aside this finding of the trial judge. Since the finding that the lands at Appolonia form part of and are Kpone stool lands, alienation of lands at Appolonia must be governed by the custom and usage of the owners of the land; in this case the Kpone stool.

On the second issue, I adopt my opinion on the third issue, namely that the Kpone paramount stool is the absolute owner of the Appolonia lands. The evidence of the defendant that he is a caretaker of the Appolonia lands is in my view supported by the undisputed evidence on the record. The pith of the complaint of

[p.351] of [1997-98] 1 GLR 344 the plaintiffs was that they and each and everyone of them are by the custom and usage in Appolonia necessary parties to alienation of the Appolonia lands, cannot relate to the Appolonia lands adjudged to be Kpone paramount stool lands. The claim by the plaintiffs in so far as it related to lands adjudged to be Kpone paramount stool lands is plainly and clearly misconceived and must be dismissed. I find that the plaintiffs lacked capacity to sue and claim the reliefs in relation to and in respect of lands adjudged to be Kpone paramount stool lands.

JUDGMENT OF ESSILFIE-BONDZIE JA.

This is an appeal from the judgment of the High Court, Accra dated 26 September 1995 delivered in favour of the plaintiffs. Dissatisfied with the judgment, the appellants (hereinafter referred to as the defendants) have appealed to this court on the following grounds:

“(1) that the trial was vitiated by irregularities in so far as the plaintiffs chose and the trial judge accepted to sit on the case;

(2) that the trial judge erred in assuming jurisdiction over the case;

(3) that the judgment is against the weight of the evidence;

(4) that the learned judge erred in law in holding that the Appolonia sub-stool has the same ruling clans as the Kpone paramount stool;

(5) that the learned judge erred in law in failure to consider material evidence of the defendants;

(6) that the learned judge erred in law in shifting the onus of proof on the defendant;

(7) that the learned trial judge erred in law in not dismissing the second plaintiff’s case against the defendants.”

The plaintiffs’ claim as endorsed on their writ of summons dated 1st September 1994 was for:

“(a) a declaration that the lands of Appolonia can only be alienated with the consent and concumence of the plaintiffs’ clans;

(b) an account of all moneys recovered from sand winning for these years;

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(c) an injunction to restrain the defendant, his agents and servants from further alienating of lands without the consent and concurrence of plaintiffs’ clans.”

The proceedings indicate that the co-defendant who is the paramount chief of Kpone applied and was joined to the suit as the co-defendant. Again, as a result of a preliminary objection raised by counsel for the defendant in respect of the plaintiffs’ relief (b) endorsed on the writ of summons, the trial court struck out relief (b) which was a “claim for an account of all moneys received from sand winning for all these years.” Hearing therefore proceeded on reliefs (a) and (b) of the writ of summons (supra).

There is no dispute that the people of Appolonia are also from Kpone and Appolonia was founded and first settled by people from Kpone. Apart from Appolonia there are other villages in the Kpone Traditional Area such as Bawaleshie, Sadunse, Gbilsile, Nore Lu and the like. There are three ruling houses or “wes” at Kpone. These are Bediako-We, Kojo We and Sanshie-We. The plaintiffs have contended that the three ruling houses or wes are duplicated at Appolonia and that there exists at Appolonia, Bediako We, Kojo We and Sanshie We or Sanshie Sackey We.

In paragraphs (2), (3), and (4) of the statement of claim, the plaintiffs pleaded as follows:

“(2) The defendant is the chief of Appolonia.

(3) By custom and tradition the stool lands at Appolonia are alienated by the chief with the consent and concurrence in respect of the ruling clan.

(4) Contrary to this custom and practice, the defendant herein has alienated large portions of the said land without the consent of the said clans.”

The defendant and co-defendant resisted the plaintiffs’ claim. In his evidence, the defendant said that he was made the chief of Appolonia on 10 May 1974, that is 21 years ago. He said that he was made the chief of Appolonia by the elders of Appolonia and the paramount chief of Kpone. When the stool of Appolonia falls vacant, according to his testimony, the elders of Appolonia meet and discuss who among the ruling clans is fit to be appointed as

[p.353] of [1997-98] 1 GLR 344 chief. When they agree on one candidate they inform the paramount chief of Kpone. He continued that the person nominated as chief then swears the oath of allegiance, first to the elders of Appolonia and later to the paramount chief of Kpone and his elders. His defence is contained mainly in paragraphs (6), (7) and (8) of the statement of defence. He pleaded “(6) In further answer to the said paragraphs, the defendant says that the Appolonia lands all belong to the Kpone paramount stool and the defendant is only a caretaker of the said lands for and on behalf of the Kpone stool.

(7) The defendant shall contend at the trial that the plaintiffs do not have the capacity in law to bring the present action and this honourable court has no jurisdiction to entertain same.”

In his judgment the trial judge accepted the evidence of the plaintiffs and concluded, inter alia, as follows: “I am prepared to accept the word of the plaintiffs that the defendant as chief of Appolonia has been making grant of land without recourse to the plaintiffs as elders or heads of the ruling clans at Appolonia. I find that the plaintiffs have capacity to bring this action and that their claim is properly before this court. I therefore enter judgment in favour of the plaintiffs in respect of the claims (a) and (c) endorsed on their writ of summons. I award costs of ¢500,000 against the defendant and the co-defendant, jointly and severally.”

Learned counsel for the defendants commenced his argument with ground (1) of the grounds of appeal, namely “That the trial judge erred in assuming jurisdiction over the case.” Counsel made reference to the Chieftaincy Act, 1971 (Act 370) and contended that the matter before the court “is a cause or matter affecting chieftaincy” within the meaning of section 66 of Act 370. Counsel argued that as the plaintiffs claim to be the heads of the ruling clans of Appolonia and this is challenged, any attempt by the court to decide the said issue would be tantamount to trying a chieftaincy matter. And since the High Court has no jurisdiction to try a

[p.354] of [1997-98] 1 GLR 344 chieftaincy matter the plaintiffs’ claim should have been dismissed for lack of jurisdiction.

Jurisdiction in chieftaincy disputes is provided in section 15 of Act 370. It reads:

“15. (1) Subject to the provision of this Act and to any appeal therefrom, a Traditional Council shall have exclusive jurisdiction to hear and determine any cause or matter affecting chieftaincy which arises within its area, not being one to which the Asantehene or a Paramount Chief is a party.”

Regarding the definition and interpretation of a “Cause or matter affecting chieftaincy” section 66 of Act 370 says:

“Cause or matter affecting chieftaincy means any cause, matter, question or dispute relating to any of the following— (a) the nomination, election, appointment or installation of any person as a Chief or the claim of any person to be nominated, elected, appointed or installed as a Chief;

(b) the destoolment or abdication of any Chief;

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

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

In this case, it is evident from the plaintiffs’ endorsement on the writ of summons and statement of claim that they are not claiming to be chiefs. The dispute before the court below was not also a claim to take part in the nomination, election, appointment or installation of a chief. Again the reliefs sought by the plaintiffs do not relate to the appointment, nomination, enstoolment or destoolment of a chief. In my view, a mere claim by the plaintiffs

[p.355] of [1997-98] 1 GLR 344 to be the heads of the ruling clans or houses of a village, does not amount to a dispute which should qualify the action before this court as a “Cause or matter affecting chieftaincy.” I am fortified in this view by the case of Amoasi III v Twintoh [1987-88] I GLR 554, SC where the Supreme Court held, as stated in the headnote that “A suit to determine whether a person was the head of a stool family was not a cause or matter affecting chieftaincy and therefore not cognisable by a traditional council.” In the instant case, there is nothing in the plaintiffs’ claim which remotely qualify it as a chieftaincy dispute. The High Court therefore had jurisdiction to hear the case. The first ground of appeal fails.

Counsel for the defendants abandoned grounds (4), (5), (6) and (7). In arguing ground (3) of the appeal, counsel submitted that the plaintiffs had no capacity to bring the action and that there was no sufficient evidence to clothe them with capacity. He argued that the evidence of the first and third plaintiffs did not prove any capacity. He added that although the second plaintiff was in court, he did not give evidence. There was therefore no evidence to prove his capacity.

Learned counsel for the plaintiffs countered the argument of counsel for the defendants by saying that it was established by the plaintiffs and their witnesses and accepted by the court that the plaintiffs are heads of the ruling houses at Appolonia. As heads of the ruling houses and elders of Appolonia they have capacity to institute the instant action against the defendants.

In his testimony the defendant admitted that he was made chief of Appolonia by the elders of Appolonia and the paramount chief of Kpone. He further said “when the stool of Appolonia falls vacant, the elders of Appolonia meet and discuss who among the ruling clans is fit to be appointed as chief.” It was patent from his evidence that he made reference to elders and ruling clans interchangeably. Throughout the proceedings he and his witnesses regarded elders and members of the ruling clans of Appolonia as the same entities. Thus in his evidence in-chief he again said: “the swearing of the oath to the elders of Appolonia is done at Appolonia while the swearing of the oath to the paramount chief and his elders is done at the Kpone Traditional Council.” Under cross-examination by counsel for the plaintiffs the defendant also said:

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“Q Tell us how many ruling houses there are at Kpone?

A There are three ruling houses.

Q Name them (Kodjo We, Bediako We and Sanshie We)?”

Under further cross-examination he made the following admissions:

“Q The first plaintiff, do you know him as belonging to any of the ruling houses?

A He says he comes from Bediako-We.

Q What about the second plaintiff?

A He says he is from Jojo-We.

Q What about the third plaintiff? A He is from Ali We.”

Apart from the evidence of the defendant showing that the ruling clans or houses of Kpone are also duplicated at Appolonia, the co-defendant’s representative also confirmed this under cross-examination. He said as follows:

“Q But you know that Bediako We and Kojo We are at Appolonia?

A Yes.

Q Would you then agree with me that for someone to become a chief at Appolonia the consent and concurrence of these ruling houses would have to be obtained, given the peculiar circumstances of Appolonia?

A I have already said that it is the people of Appolonia who nominate their chief.

Q So in Kpone the three ruling houses nominate the chief but in Appolonia the inhabitants nominate the chief?

A Yes.”

It will be observed that the plaintiffs’ position is that by virtue of being heads and elders of Bediako We, Kojo We and Ali We they are entitled as of right to be involved in land alienation in Appolonia. This assertion was not contradicted and challenged by the members of the said “houses” and “wes” at Appolonia and

[p.357] of [1997-98] 1 GLR 344 was accepted and believed by the court. Again, though the defendant challenged the status of the plaintiffs in Appolonia in cross-examination, he admitted that the plaintiffs were elders of the town who had to be consulted on all matters, including land alienation at Appolonia. He claimed that the plaintiffs themselves had withdrawn from their advisory capacity to the chief. Even if the plaintiffs are not the heads of the ruling clans of Appolonia, which was denied, I hold that as elders of the village of Appolonia they are competent persons to bring action to protect and preserve the property of Appolonia.

In Kwan v Nyieni [1959] GLR 69 exceptions were made to the general rule that a head of family as a representative of the family is the proper person to institute a suit for the recovery of family property or land; one of such exceptions being where family property is in danger of being lost to the family and it is shown that the head of family either out of personal interest or otherwise will not make a move to save or preserve it.

It must be pointed out that the principle in Kwan v Nyieni (supra) has been extended to cover stool lands and properties in the recent Supreme Court case of Owusu v Agyei [1991] 2 GLR 493, SC. This is a suit which was instituted by some citizens of Kumawu as the plaintiffs representing the Oman of Kumawu in order to halt an illegality perpetrated by the chiefs and traditional title holders, of Kumawu in enriching themselves at the expense of the state. The Court of Appeal overturned the decision of the High Court on the ground that the plaintiffs had no capacity to institute the action. The court felt that the plaintiff had no locus standi and could not urge the ground of necessity to clothe them with capacity under the exceptions in Kwan v Nyieni (supra). The Supreme Court however restored the judgment of the High Court by allowing an appeal from the judgment of the Court of Appeal. In delivering the judgment of the Supreme Court, Francois JSC said at 505:

“Where those clothed with authority to protect family interests fail to do so, and as it were; form an unholy alliance or conspiracy to damage the interest of the family, an urgent situation must be deemed to have arisen allowing for a

[p.358] of [1997-98] 1 GLR 344 relaxation of rules and permitting more responsible members of the family to protect the endangered family interests.

I find in this appeal that the three exceptions to the Kwan v Nyieni (supra) rule may fruitfully be pressed into service to clothe the plaintiffs with capacity. The respondents who should have protected Kumawu stool revenue, formed an unholy alliance to enrich themselves at the expense of the state.”

The learned judge went on to declare at 505-506 that:

“A more apposite example of the application of the exceptions to the Kwan v Nyieni (supra) principle would be hard to find. In my view, the categories of the application of the exceptions have yet to be exhausted. They may never close.”

In the instant case, there was sufficient evidence to support the plaintiffs’ claim and in the absence of evidence challenging their capacity by the elders and members of the ruling clan houses of Appolonia, it is my view that the plaintiffs were clothed with capacity to bring the action. The appellants ground challenging the capacity of the plaintiffs also fails.

It was also argued that the plaintiffs failed to prove that the chief of Appolonia cannot alienate lands at Appolonia without the consent and concurrence of the plaintiffs, heads of the ruling clans of Appolonia.

It would be recalled that the plaintiffs’ complaint is that for the past four years the defendant, the chief of Appolonia, has been alienating Appolonia lands without the consent and concurrence of the ruling clans or elders of Appolonia. The first plaintiff testified that the custom affecting the grant of land of Appolonia lands is that before a chief gives out land he must call the ruling clans or elders and inform them about it. The chief must also tell the kingmakers, as he put it, the purpose for which the land is being alienated. If the chief wants to dispose of the land and the kingmakers or elders are opposed to it the chief cannot proceed with the disposition. He maintained that the chief can only alienate lands at Appolonia with the consent and concurrence of the ruling clans or kingmakers. The third plaintiff also emphasised that the

[p.359] of [1997-98] 1 GLR 344 lands of Appolonia are alienated by the chief with the consent of the elders of Appolonia. He contended that the paramount chief of Kpone has no right to alienate lands of Appolonia without the consent of the clan elders of Appolonia.

The defendant, the chief of Appolonia also gave evidence as to how land is alienated at Appolonia. He said under cross-examination that a stranger who wants to be granted land presents drinks through a request to the chief and his elders. The chief and his elders will then examine the purpose for which the land is being acquired and whether it will benefit the citizens of Appolonia. If it is decided to grant the land, the stranger presents drinks in the form of money to the chief and his elders. The money is used to develop the village. The transaction is then reported to the Kpone Traditional Council. The defendant went on that where a stranger wishes to acquire a large tract of land for development, the method of alienation is modified. Here according to him, the stranger approaches the chief and elders of Appolonia; the transaction is then reported to the Kpone Traditional Council and when the council grants permission, the land is released to the stranger.

It is important to note here that the defendant’s evidence as to the mode of alienation of Appolonia lands is completely at variance and inconsistent with his pleadings. In paragraphs (6) and (7) of the statement of defence the defendant pleaded as follows:

“(6) In further answer to the said paragraphs, ie (3), (4) and (5) the defendant says that the Appolonia lands all belong to the Kpone paramount stool and the defendant is only a caretaker of the said lands for and on behalf of the Kpone stool.

(7) Any action taken by the defendant in respect of Appolonia lands is taken with the authority, consent and concurrence of the landlords—the Kpone stool”

In his evidence, the defendant did not say that he was a caretaker of Appolonia lands for the Kpone stool nor did he make a distinction between grants of large tracts of land and small grants in his pleadings. His stand was that he could make grants of lands at Appolonia with his elders and then report the grant to the Kpone Traditional Council. He did not say that the consent and

[p.360] of [1997-98] 1 GLR 344 concurrence of the Kpone stool is requisite for the grant. In the circumstances, I agree with the assertion of the learned trial judge that it does not lie in the mouth of a caretaker to say he is entitled to make grants of land to the exclusion of his overlord or principal and in the same breadth claim that he can only do so with the authority, consent and concurrence of his overlord or principal. Besides, Gideon Doku Tettey, the first defendant witness, the defendant’s only witness, testified that:

“If somebody wants land for development at Appolonia the chief calls his elders and we meet to decide whether the development would benefit the people of Appolonia. If we conclude that the development is beneficial we grant the land to the person who wants it. If the three plaintiffs are absent at such a meeting of the elders it would still be a valid meeting.”

It is obvious that the witness did not support the claim of the defendant in his pleadings that the consent of the Kpone stool is necessary for the alienation of lands at Appolonia. In fact, the claim that Kpone as the head stool has the right to alienate Kpone village lands was not supported by the evidence.

Significantly, when the co-defendant’s representative who said he is the stool father of Kpone was asked to name one land transaction at Appolonia in respect of which the Kpone Mantse was donor, he replied that he did not know of any such transaction. The pleading of the co-defendant as could be observed is also not borne out by the evidence. And as already demonstrated, the defendant’s pleadings are similarly at variance with his evidence in this court. The settled law is that where during a trial the evidence appears to have disclosed a claim inconsistent with the case put forward by one of the parties, then unless the statement of claim or the statement of defence as the case may be is amended, that party must lose: see Dam v Addo [1962] 2 GLR 200, SC.

In this case, although as disclosed, the defendant’s statement of defence is inconsistent with the evidence of the defendant in court, he closed his case without any amendment. His claim that the chief of Appolonia can validly alienate lands at Appolonia with the consent and approval of the Kpone stool cannot be true.

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Aside of this, the defendant has admitted under cross-examination that there was only one grant of land; a grant to Fem Industrial Complex Ltd that he referred to the Kpone Traditional Council. This transaction was in May 1995 during the pendency of this suit. He also gave the following evidence under cross-examination by counsel for the plaintiffs:

“Q So you are telling the court that in the whole history of Appolonia and since you were enstooled, it is only on one occasion that you have referred a land transaction to Kpone?

A Yes.”

The defendant also testified as follows:

“Q I am suggesting to you that you know very well that grants of land at Appolonia are made by the chief and elders of Appolonia and that no such transaction is referred to the Kpone Traditional Council?

A My elders and I have the power to grant land for farming and for residential, building and development. We have granted land for a biogas plant. When I say we have made grants of land for development, I mean a grant that will be beneficial to the community in general. Out of the biogas project, we have been able to get water and electricity.”

It is evidently clear from the proceedings that there is overwhelming evidence on the record to justify the findings of the trial judge that grants of land at Appolonia are made by the chief of Appolonia and his elders and not directly by the Kpone stool. Even though it is not disputed that Appolonia lands are owned by the Kpone stool, the paramount stool, they are directly controlled and administered by the chief of Appolonia and his elders. This is in accord with the customary law principle that for any piece of land property to be said to belong to the head stool or paramount stool, it must first of all belong or be attached to a sub-stool to administer the land. In supporting the decision in the case of Onano V v Mensah (1948) DC (Land) ‘48-51, 97 Ollennu stated

[p.362] of [1997-98] 1 GLR 344 in his Principles of Customary Land Law in Ghana, (1962 ed) at p 23 as follows:

“Thus both the Native Court, who were the repositories of the Customary Law and the Land Court, who had before it the evidence of custom given in that case, held that by Customary Law the head of a quarter or the occupant of the sub-stool, as the case may be and his elders, are the proper persons entitled to administer and deal with stool lands, but they should keep the occupant of the Paramount Stool informed of all dealings with the grants they make of Stool Lands.

Of course custom demands that upon report by the quarter or sub-stool to the head stool, the head stool should be given its customary share of the customary drink which the quarter or sub-stool took from the grantee.”

See also Mensah v Ghana Commercial Bank (1957) 3 WALR 123.

It is evident from the matters canvassed above that the ownership by a sub-stool of land attached to the stool is a customary law principle which has assumed a national character and dimension. I hold that although all lands of the various Kpone villages are Kpone stool lands, those lands are under the direct control of the different villages of Kpone, each village has its own lands which it holds under the Kpone stool and that by customary law the chief and elders of each village are the proper authority to make grants of portions of the lands attached to their villages. As established, the plaintiffs are not only elders but heads of their respective clans or “wes” at Appolonia. It is my judgment that the lands of Appolonia can only be alienated with the consent and concurrence of the plaintiffs’ clans or elders of Appolonia without the consent and concurrence of the Kpone stool.

Learned counsel has argued that since the second plaintiff failed to go into the witness box to give evidence, he must be deemed to have made no case at all against the defendant and co-defendant. I must state at once that a plaintiff need not enter the witness-box to give evidence himself. He can refuse to give evidence but call witnesses to support his claim. In this case the first, second and third plaintiffs’ witnesses gave evidence that

[p.363] of [1997-98] 1 GLR 344 lands in the various Kpone villages come under the direct control and administration of the various heads of the villages in consultation with their elders. This piece of evidence, as the judgment indicates, was accepted by the court.

Furthermore, under cross-examination by counsel for the plaintiffs, the defendant said as follows:

“Q I want to suggest to you that of late you have not been consulting with the plaintiffs as you used to and this has been the source of confusion in four villages?

A My elders and I have no quarrel with them. The plaintiffs themselves have distanced themselves from us and they know why they have done so.”

(The emphasis is mine.) This is an additional admission by the defendant that he considers the plaintiffs as elders of Appolonia. This admission together with the evidence adduced on behalf of the plaintiffs which were accepted by the court, prove the plaintiffs’ claim. It is my view that the submission by counsel for the defendants that the second plaintiff’s claim against the defendants should be dismissed, is misconceived and should not be counternanced by this court.

In the light of the foregoing, it is my judgment that there is sufficient evidence on the record to support the judgment of the trial court. And this court should not disturb it. I dismiss the appeal.

JUDGMENT OF BENIN JA

The plaintiffs-respondents (hereinafter referred to as the plaintiffs) sued only the defendant-appellant claiming these reliefs:

“(a) Declaration that the lands of Appolonia can only be alienated with the consent and concurrence of the plaintiffs’ clans.

(b) An account of all moneys received from the sand winning for all the years.

(c) An injunction to restrain the defendant, his agents, servants from further alienating of lands without the consent and concurrence of the plaintiffs’ clan.”

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In the accompanying statement of claim filed on 1 September 1994, the plaintiffs described themselves as the respective heads of the ruling clans of Appolonia. The defendant was described as the chief of Appolonia. The bedrock of the plaintiffs’ claim is contained in paragraph (3) of the statement of claim and it reads:

“By custom and tradition the stool lands at Appolonia are alienated by the chief with the consent and concurrence in respect of the ruling clans.” This pleading concedes the important fact that the land that the action is talking about is stool land. It also concedes that there are ruling clans at Appolonia and read together with paragraph (1) of the statement of claim, they are saying that the stool land at Appolonia can only be alienated with the consent and concurrence of the ruling clans of which they are the heads. The pleadings continue that the defendant has been alienating portions of the stool lands without consulting the ruling clans; hence the reliefs endorsed on the writ of summons.

In his statement of defence, the defendant denied that any ruling clans existed at Appolonia. The crux of the defence is contained in paragraphs (6) and (7) and they provide:

“(6) … the defendant says that the Appolonia lands all belong to the Kpone paramount stool and the defendant is only a caretaker of the said lands for and on behalf of the Kpone stool.

(5) Any action taken by the defendant in respect of Appolonia lands is taken with the authority consent and concurrence of the landlords—the Kpone stool.”

He challenged the plaintiffs’ capacity in law to bring this action and denied the court’s jurisdiction to entertain same.

In their reply, the plaintiffs appeared to have shifted ground when in answer to paragraph (6) of the statement of defence they pleaded that “all Appolonia lands belong to the people of Appolonia and are administered as such” and denied that as the chief of Appolonia the defendant was a caretaker of the Appolonia lands for the Kpone paramountcy. They maintained that as elders and heads of the ruling clans they have the capacity to bring this action.

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At the summons for directions the following issues were agreed upon for trial:

“(a) Whether or not the plaintiffs have the capacity to institute this action.

(b) Whether or not there are ruling clans at Appolonia.

(c) Whether or not Appolonia lands all belong to the Kpone Paramount stool.

(d) Whether or not the defendant is only a caretaker of Appolonia lands for and on behalf of the Kpone stool.

(e) Whether or not by the custom and tradition of the people of Appolonia the defendant can alienate or take any action in respect of Appolonia lands without the concurrence of and consent of the ruling clans or houses.

(f) Whether or not by the custom and tradition of the people of Appolonia land at Appolonia is only alienable with the consent and concurrence of the Kpone paramount stool.”

After the summons for directions was taken, Nii Tetteh Otu II, Chief of Kpone and President of the Kpone Traditional Council applied to be joined as co-defendant and this request was granted. In his statement of defence filed on 13 June 1995 the co-defendant averred that all the Appolonia lands like other Kpone village lands belong to the Kpone paramount stool. He further averred as follows:

“(6) The village chiefs such as the defendant herein can validly alienate village lands with the consent, concurrence and approval of the Kpone stool.

(7) The right to alienate Kpone village lands has never belonged to nor has it been ceded to the village chiefs and their elders and any claim to the contrary in respect of Appolonia lands is false.”

In their answer to the co-defendant’s statement of defence, the plaintiffs averred in answer to paragraphs (6) and (7) that:

“Appolonia lands can only be validly alienated by the chief of

[p.366] of [1997-98] 1 GLR 344

Appolonia with the consent and concurrence of the people of Appolonia. “ Upon application by the defendant, relief (b) endorsed on the writ was struck out by the court which ordered the trial to proceed on reliefs (a) and (c) only. Evidence was led by both sides and at the end of it, judgment went in favour of the plaintiffs on the ground, inter alia, that grants of Appolonia land are made by the chief of Appolonia and his elders without the consent of the Kpone paramount stool, and that the plaintiffs are parties to be consulted in land alienation by the chief of Appolonia.

The defendants have appealed to this court on the following grounds:

“(i) That the trial was vitiated by irregularities in so far as the plaintiff chose and the trial judge accepted to sit on the case.

(ii) That the trial judge erred in assuming jurisdiction over the case.

(iii) That the judgment is against the weight of the evidence.

(iv) That the learned judge erred in law in holding that the Appolonia sub-stool has the same ruling clans as the Kpone paramount stool.

(v) That the learned judge erred in law in his failure to consider material evidence of the defendants.

(vi) That the learned judge erred in law in shifting the onus of proof on the defendant.

(vii) That the learned trial judge erred in law in not dismissing the second plaintiff’s case against the defendants.”

At the hearing, counsel for the defendant and co-defendant appellants (hereinafter called the appellants) abandoned grounds (1), (4), (5), (6) and (7) and argued only grounds (2) and (3). I start with ground (2). Counsel for the appellants submitted that having regard to the writ of summons and the statement of claim the real issue in controversy is a cause or matter affecting chieftaincy. He referred to paragraphs (1) to (4) of the statement of claim and contended that to enable the issues to be determined, the court has

[p.367] of [1997-98] 1 GLR 344 necessarily to determine whether the plaintiffs are the respective heads of the ruling clans of Appolonia and what the ruling clans of Appolonia are. After that the court has to determine whether by custom and practice the chief has to alienate lands with the consent of the ruling clan heads. He submitted that in an attempt to make these findings, the court will necessarily have to determine a cause or matter affecting chieftaincy contrary to sections 15(1) and 66(1) of the Chieftaincy Act, 1971 (Act 370). He referred to the fact that the trial court had to go into the chieftaincy matter before deciding the issues before it. The preliminary issue arose as to whether the plaintiffs were kingmakers of Appolonia (that is the heads of the ruling clans of Appolonia), and this was certainly a cause or matter affecting chieftaincy. Hence the plaintiffs’ capacity to sue was raised as an issue. He cited the case of In re Wa-Na; Republic v Fijoli Na; Ex parte Yakubu [1987-88] 1 GLR 180, CA. He referred to the trial court’s decision clothing the plaintiffs with capacity as kingmakers and heads of ruling clans (those clans from which chiefs are elected).

In his response, counsel for the plaintiffs submitted that the plaintiffs’ claims did not fall within the definition of cause or matter affecting chieftaincy in section 57 of the Courts Act, 1993 (Act 459); for a claim to belong to a ruling clan is not a cause or matter affecting chieftaincy. He cited the case of Osei v Siribour II [1984-86] 1 GLR 588, SC in support. It is only where a claim to belong to a ruling clan is made or asserted in relation to a right to be nominated, elected, etc as a chief that it comes within the definition of cause or matter affecting chieftaincy. He cited Amoasi III v Twintoh [1987-88] 1 GLR 554, SC which decided that a claim to be head of a stool or royal family was not a cause or matter affecting chieftaincy. He argued therefore that this was not a cause or matter affecting chieftaincy. The plaintiffs therefore had capacity to institute this action.

Section 15(1) of Act 370 as well as section 57 of Act 459 both deny jurisdiction in a cause or matter affecting chieftaincy to the High Court, among other courts. Section 66 of Act 370 defines cause or matter affecting chieftaincy to mean any cause, matter, question or dispute relating to any of the following:

[p.368] of [1997-98] 1 GLR 344

“(a) the nomination, election, appointment or installation of any person as a Chief or the claim of any person to be nominated, elected, appointed or installed as a chief;

(a) the destoolment or abdication of any Chief;

(b) the right of any person to take part in the nomination, election, appointment or installation of any person as a Chief or in the destoolment of any Chief;

(c) the recovery or delivery of stool property in connection with any such nomination, election, appointment, installation, destoolment or abdication;

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

The definition provided above suggests that the issue at stake must find expression in anyone of the meanings (a) to (e) in order to say it is a cause or matter affecting chieftaincy. It is not the mere mention of certain words denoting royalty which brings an issue within the definition of cause or matter affecting chieftaincy; the issue must necessarily involve a chieftaincy dispute, or a declaration which must necessarily involve a person’s right to occupy a stool either by himself or his family members, etc in the future or claim to be a kingmaker. These points were set out very clearly in Osei v Siribour II (supra) by the Supreme Court which decided, inter alia, that a claim to belong to a royal family is not prima facie a cause or matter affecting chieftaincy and so is a claim to be a royal. In the same vein the Supreme Court decided in the Amoasi III v Twintoh case (supra) that a suit to determine whether a person was the head of a stool family was not a cause or matter affecting chieftaincy and therefore not cognisable by a traditional council. A head of family is not a chief. In my view, each case will have to be considered on its merits to determine whether the facts or issues or both involve a cause or matter affecting chieftaincy; in that respect not only the endorsement, but the entire statement of claim and defence and, indeed, the entire record of the case has to be considered in order to discover whether any cause or matter affecting chieftaincy is raised.

Counsel for the appellants referred to paragraphs (1)-(4) of the statement of claim to back his argument. I set these paragraphs out in extenso:

[p.369] of [1997-98] 1 GLR 344

“(1) The plaintiffs are the respective heads of the ruling clans of Appolonia.

(2) The defendant is the chief of Appolonia.

(3) By custom and tradition the stool lands at Appolonia are alienated by the chief with the consent and concurrence in respect of the ruling clans.

(4) Contrary to this custom and practice, the defendant herein has alienated large portions of the said land without the consent of the said clans.”

Those pleadings per se do not raise any cause or matter affecting chieftaincy for, as already said, a claim to be the head of a royal family, or clan (as in this case) is not a cause or matter that affects chieftaincy, nor does the mere mention of the defendant as chief of Appolonia.

It was counsel’s contention that the court was bound to make a determination whether or not the plaintiffs’ clans are in existence at Appolonia and if, so whether they are the ruling clans, and that any such determination will involve a cause or matter affecting chieftaincy. The argument can only be fully understood if the defence is considered, for at this stage of the pleadings where only the statement of claim was referred to by counsel, no issues had been joined. In the statement of defence, paragraph (1) of the statement of claim was denied and so were paragraphs (3) and (4). It was averred also that there are no ruling clans at Appolonia. So at the summons for directions two of the issues agreed upon were:

“(b) Whether or not there are ruling clans at Appolonia;

(c) Whether or not by the custom and tradition of the people of Appolonia the defendant can alienate or take any action in respect of Appolonia lands without the consent and concurrence of the ruling clans or houses.”

I think this argument centres around the meaning of “ruling clans” at Appolonia. Ordinary language will dictate that by “ruling clans” is meant the clans from which eligible persons are selected to occupy the Appolonia stool, or clans which constitute the kingmakers or both. I will, however, defer to what the parties themselves meant by the use of the words “ruling clans at Appolonia.”

[p.370] of [1997-98] 1 GLR 344

The plaintiffs in their reply to the statement of defence named the three “wes” to be Kojo We, Bediako We, and Sackey We which is an off-shoot of Sanshie We of which they are either heads or elders and averred that these are the ruling houses of Appolonia and maintained that there are houses or wes (clans) at Appolonia. It appears houses or “wes” (clans) are used interchangeably in these proceedings and are meant to have a common meaning. But I think clans are larger than houses.

When the co-defendant was joined to the suit he, like the defendant, also denied the existence of these clans at Appolonia. He went on to plead in paragraph (8) of his statement of defence:

“(8) That the customary and traditional constitution of the Kpone villages are not the same as that of the Kpone town nor are the ruling houses of Kpone town similar to those in the villages, Appolonia included.”

This averment was denied by the plaintiffs in their reply. So that on the pleadings a very vital issue as to whether or not there are ruling clans at Appolonia, and if so what they are, was raised. And by ruling clans, the first plaintiff and the defendant in their testimony made it clear that these were the clans which provide both the kingmakers and chiefs at Appolonia. Said the first plaintiff:

“The defendant does not come from any of the three ruling clans of Appolonia but we made him our chief because of his education . . . The three ruling houses are the ruling houses of both Kpone and Appolonia … The basic custom at Appolonia is that before the chief gives out land he must call the kingmakers and inform them about the alienation and the purpose for which the land is being alienated. The kingmakers are the Kodwo We, Bediako We and Sackey We. If the chief wants to dispose of land and the kingmakers are opposed to it, the chief cannot proceed to sell the land.”

The trial court considered this evidence. He also considered the defendant’s testimony that it is the elders of Appolonia who have to meet and discuss among themselves as to who should be made a chief from the ruling clans at Appolonia. Thus any decision as

[p.371] of [1997-98] 1 GLR 344 to whether or not the plaintiffs belong to the ruling clans and are the heads thereof would be a determination that they are the kingmakers of Appolonia. The fact that this clanship was related to chieftaincy is further buttressed by the first plaintiff’s evidence that they the plaintiffs have even sued the co-defendant at Dodowa, ie the Greater Accra Regional House of Chiefs. Indeed, this issue is not the main cause of action but it became the focal point of any decision the court would eventually take.

In my view, a determination as to which house or clan is the royal house or clan and a determination as to whether a person is a kingmaker constitute matters which affect chieftaincy. In this action the issues of ruling clans and kingmakers were interwoven and inseparable: if the plaintiffs were kingmakers then they belonged to the ruling clans, and if they were the heads, then also they were the kingmakers. But the claims could still be decided without resolving this apparently chieftaincy issue if they are limited to whether the heads or elders or both of these clans have to be consulted in land alienation. So I will not allow the appeal on this ground. I will however go further on this ground.

The court below accepted the plaintiffs’ case that they were the kingmakers by virtue of their headship of the ruling clans. As kingmakers it entitles the plaintiffs to take part in the nomination, etc of the chief of Appolonia. The court also accepted that the ruling clans at Kpone are duplicated at Appolonia, an issue which was also hotly contested. This also appears to involve a determination as to the constitutional relations under the customary law applicable in the Kpone Traditional Area between the ruling clans of Kpone and Appolonia. In either event, it appears the issues involved a cause or matter affecting chieftaincy as defined by section 66 of Act 370.

What was the court to do in the circumstances, when the main issue before it was to determine the mode of alienating Appolonia land? There was an old case decided by the Full Court of the then Gold Coast which seemed to support the position taken by the trial court in treating the chieftaincy cause as only a marginal issue to the determination of the main issue in the case. Could the court make a determination of that without infringing the law that the court cannot deal with a cause or matter affecting chieftaincy? That was the old case of Helburabahsic(5) v Ntakudzi (1927) FC ‘26-’29,

[p.372] of [1997-98] 1 GLR 344 286. These were the facts of that case: The plaintiff was arrested by the first defendant who claimed to be the head chief of Elmina. The plaintiff sued him for damages for wrongfully and maliciously without reasonable or probable cause, causing his arrest. Under an existing legislation, the first defendant would be justified if he was truly a chief or regent. And the court was not given jurisdiction to determine chieftaincy matters. Thus a preliminary point was taken whether the court could give a ruling on the status of the first defendant as a chief or regent at the time he caused the arrest of the plaintiff. The court ruled that the first defendant was not a chief and hence the action against him was proper. The first defendant appealed to the Full Court which decided that it was not in every situation that the jurisdiction of the court was excluded in chieftaincy matters. It accepted and followed the decision of the Full Court of Nigeria in the case of Adanji v Hunvoo (1908) Red 233 decided on 8 September 1908 where it was held per Hall Ag CJ at 289-90 that there was jurisdiction to try a chieftaincy issue “when it is a question of fact upon the decision of which the main issue in the case depends,”.

It appears that that decision, useful as it were, has not found favour with modern day decisions of our superior courts which have consistently held that so long as a cause or matter affecting chieftaincy is raised as an issue in the case, the court, except those expressly empowered by legislation to hear chieftaincy matters, has no jurisdiction to entertain it. Numerous examples can be found in the reported cases. It appears the modern view has come about as a resuit of the consistent and deliberate attempt to insulate chieftaincy matters from the civil jurisdiction of the courts. Hence a prohibitive provision has been reproduced in every important legislation touching the subject: see the various Courts Acts, including those of 1971 (Act 372) and 1993 (Act 459); as well as Act 370. It would appear from these legislations and judicial decisions that the moment the court forms an opinion that a cause or matter affecting chieftaincy is raised, the court’s jurisdiction is ousted and if it has jurisdiction over the other issues raised, it can stay proceedings pending a determination of the particular cause or matter affecting chieftaincy by the appropriate chieftaincy tribunals; it cannot determine it as a marginal issue as was done in the Helburabahsic(6) v Ntakudzi case (supra) and Adanji v Hunvoo case

[p.373] of [1997-98] 1 GLR 344

(supra). But if on the other hand the cause can be taken without necessarily deciding on the issue affecting chieftaincy it can entertain the action.

Thus in this case by raising the issues: (1) What the ruling clans at Appolonia are; (2) whether the plaintiffs are kingmakers of Appolonia; and (3) whether the ruling clans at Kpone and Appolonia have any constitutional relationship at customary law, I think, a cause or matter affecting chieftaincy was clearly raised by this action. The first plaintiff’s testimony was clear that land could only be alienated by reference to the kingmakers. Thus, it is not possible to determine the mode of alienation without determining who these kingmakers are if in truth their consent is required in land alienation at Appolonia. The court below accepted part of the defendant’s story as regards the process used in selecting a chief for Appolonia when the stool is vacant in his finding that there are ruling clans at Appolonia. The court below also accepted the plaintiffs’ version that there are ruling clans at Appolonia and that they are the heads of those clans and also kingmakers and by virtue of that they have to be consulted in land transfers. At this stage the court ought to have stayed a further hearing and asked the parties to go before the appropriate chieftaincy tribunal to determine what ruling clans exist at Appolonia and whether the plaintiffs are the kingmakers thereat. It had no jurisdiction to determine those issues, and any such decision on the record, whether directly or indirectly, is set aside. But whilst this chieftaincy issue was raised on the record, yet the court proceeded on the basis that the plaintiffs are persons whose consent was necessary in alienating land at Appolonia. The defendant and his witness, the first defendant witness, appeared to accept that the plaintiffs are elders who might be consulted but did not accept their claim to royalty.

Ground (3) is that the judgment is against the weight of the evidence. The first point taken in argument by counsel for the appellants was the issue of the plaintiff’s capacity. Thus, in my view, the chieftaincy issue could be taken up later and the case determined on whether the plaintiffs as elders have to be consulted in land alienation. He submitted that no sufficient evidence exists on the record to prove they have capacity. The trial court found the plaintiffs to be heads or elders of the ruling clans at Appolonia and

[p.374] of [1997-98] 1 GLR 344 therefore have the capacity to bring this action. He submitted that a right to be consulted is different from a right to concur in an action by a chief; whilst a chief may consult any person at all for advice which is not binding on him, the right to obtain the consent and concurrence of certain persons is binding on him. He referred to the admissions under cross-examination by the first plaintiff that the only members of Bediako We at Appolonia are his children and that his children are therefore the elders of Bediako We.

At this stage I will refer to the trial court’s findings on the position of the Appolonia lands. The court said:

“I find therefore that even though it is not disputed that Appolonia lands are owned by the people of Kpone or more precisely by the Kpone stool, grants of portions of that land are made by the chief of Appolonia and his elders and not directly by the Kpone stool. I find further that these grants are made exclusively by the chief and elders of Appolonia and there is no established practice that the stool of Kpone should consent to or concur in such grants. I am satisfied that Appolonia lands though part of Kpone stool lands are directly controlled and administered by the chief of Appolonia and his elders.”

Against these findings there has been no quarrel from anybody and I think those findings are right. The only problem is who the Appolonia stool elders are, whose consent and concurrence the chief has to obtain in alienating land.

This is stool land and by customary law it is only the chief (the occupant of the stool) and the principal elders of the stool or some of them who can validly alienate such land: See the case of Allotey v Abrahams; Tamakloe v Abrahams (1957) 3 WALR 280. It was thus necessary to have regard to the totality of the evidence led on the record in deciding who these elders are whose concurrence is necessary. The plaintiffs’ testimony was limited to what they called the ruling clans at Apolonia. The defendant went further to explain that there are no ruling clans but houses, and the ruling houses he mentioned coincided with the names given by the plaintiffs as ruling clans. But the issue at stake now is not what

[p.375] of [1997-98] 1 GLR 344 are the ruling clans, or houses, but who are the principal elders of Appolonia whose consent and concurrence is required in alienating Appolonia stool land. The defendant testified that the elders of Appolonia are from Kodzo We, Antiaye We, Appiah We and Nii Dum We. This was not disputed under cross-examination. For the purposes of dealing with this ground of appeal, I am proceeding on the basis that the plaintiffs’ claims are based on the fact that they are principal stool elders who have to be invited to any meeting intended to alienate Appolonia stool lands. In other words, that they are heads or elders of wes to which they belong, without determining whether those are the ruling clans or whether they are kingmakers or whether the ruling clans at Kpone are duplicated at Appolonia.

The defendant admitted that the first plaintiff is one of the elders who has to be considered in matters pertaining to Appolonia. But it is clear that there are other elders at Appolonia. He was asked: “I want to suggest to you that you have not been consulting with the plaintiffs as you used to in the past and this has been the source of confusion in your village?” And his answer was: “My elders and I have no quarrel with them. The plaintiffs themselves have distanced themselves from us and they know why they have done so.” This answer was in no way disputed that the plaintiffs have alienated themselves. The answer further implies that there are other elders besides the plaintiffs. One of such elders testified as the first defendant witness, his name was Gideon Doku Tettey. Reference was made to his testimony by the trial court but only in relation to who has authority to alienate Appolonia stool lands. The important part glossed over was that he is one such stool elder who has participated in all land alienations at Appolonia. A very vital part of his testimony which was also glossed over by the trial was this:

“If somebody wants land for development at Appolonia, the chief calls his elders and we meet to decide whether the development would benefit the people of Appolonia. If we conclude that the development is beneficial we grant the land to the person who wants it. If the three plaintiffs are absent at such a meeting of the elders, it would still be a valid meeting.”

[p.376] of [1997-98] 1 GLR 344

(The emphasis is mine.).

The inferences to be drawn from this testimony is that the plaintiffs are also elders of the Appolonia stool, but that they are not the only elders, and that their presence at a meeting to alienate Appolonia stool land is not a sine qua non. And indeed his testimony was not seriously disputed under cross-examination. Rather some two questions asked him suggest that he was an elder of the Appolonia stool. The first question was: “You are one of the elders working with the chief of Appolonia”, to which he answered in the affirmative. Next he was asked: “You have been working with your chief, the defendant for a long time,” and he answered “Yes.” As an elder and a person who had worked with the defendant for a long time, the first defendant witness would know a lot about alienation of land at Appolonia. The proper inferences to be drawn from all the accepted evidence were these:

(a) the plaintiffs as well as other persons including the first defendant withnesssic(7) are the elders of the Appolonia stool and for that reason the plaintiffs have that capacity to bring this action to protect or advance their interest;

(b) a meeting of the chief and some of the elders to decide on land alienation is valid;

(c) the plaintiffs need not be present at such a meeting but as elders they should be invited to attend and if they fail to, the meeting could still go ahead; and

(d) the plaintiffs have voluntarily distanced themselves from the chief and his other elders.

In reaching this conclusion, I am mindful of the legal position, as did Lopes LJ in Savage v Asam (1895) WN 109, that when a case tried by a judge without a jury comes up on appeal, a presumption is raised that the decision of the court below on the facts was right, and that presumption must be displaced by the appellant. If the appellant satisfied the Court of Appeal that the judge below was wrong then, inasmuch as the appeal is in the nature of a rehearing, the decision should be reversed. A similar decision was given in Colonial Securities Trust Ltd v Massey (1890) I QB 38. See also Coghlan v Cumberland [1998] 1 Ch 704 per Lindley MR. But where the question that arises is as to the proper inference to be drawn from truthful evidence, then the original tribunal is in no better position to decide than the judges

[p.377] of [1997-98] 1 GLR 344 of an appellate court, per Lord Halsbury C in Montgmeriesic(8) & Co v Wallace-James [1904] AC 73. The point being made and as decided in Dominion Trust Co Ltd v New York Life Insurance Co [1919] AC 254 is that in considering the weight to be attached by an appellate court to a finding of fact, a distinction should be drawn between cases in which the issue depends upon the veracity of the witnesses, and those in which it depends upon the proper inferences to be drawn from truthful evidence. In the latter class of cases, the original tribunal is in no better position than the judges of the appellate court. See also the following decisions on the same point: Cooper v General Accident, Fire & Life Assurnacesic(9) Corporation Ltd (1922) 128 LT 481; Mersey Docks & Harbour Board v Procter [1923] AC 253 per Lord Cave C; The Glannibanta (1876) 1 PD 283 at 287 per Baggallay JA. In the case before us where important evidence was overlooked or glossed over, this court cannot shut its eyes simply because it is an appellate court which has neither seen nor heard the witnesses. Cozens-Hardy MR gave an important instruction in the case of Re Wagstaff v Jalland (1907) 98 LT 149; CA, where he said that: “the duty of the Court of Appeal in a case of this kind, as I conceive it, is to approach the evidence which was before the learned judge in the court below, with care and with due regard to the fact that the Court of Appeal cannot enjoy the same advantage which the court below did. The court below has had the inestimable advantage of judging from the demeanour of the witnesses whether they are speaking the truth; and I think, further, that the Court of Appeal ought not in a case of this kind to depart from or vary the findings of fact of the learned judge in the court below, unless the Court of Appeal is clearly satisfied that there has been something important over-looked or, in short, that the learned judge has made such a mistake as would almost have justified another division of the court in directing a new trial on the ground that the verdict was against the weight of evidence.”

As I have said, from the evidence, the plaintiffs are elders of Appolonia but not the only ones; stool land at Appolonia is alienated by the chief and his principal elders or some of them,

[p.378] of [1997-98] 1 GLR 344 and not with clans or houses, though the elders may come from particular clans or houses. Thus the only conclusion that could be reached from the accepted facts which I have set out by way of inferences was that the plaintiffs’ action failed even on its merits, particularly because it is they themselves who have distanced themselves from the chief. But as said from the evidence on the record, they have to be invited to attend meetings to alienate land. So far the evidence discloses they have alienated themselves from the chief. They can only complain if they are not invited at a future date. Ground (3) thus succeeds.

I will therefore allow the appeal except to emphasis that the plaintiffs are entitled to be allowed in such meetings on land alienation.

DECISION

Appeal allowed.

Endnotes

1 (Popup – Footnote) sic same in original. 2 (Popup – Footnote) sic same in original. 3 (Popup – Footnote) sic same in original. 4 (Popup – Footnote) sic same in original. 5 (Popup – Footnote) sic same in original. 6 (Popup – Footnote) sic same in original. 7 (Popup – Footnote) sic same in document 8 (Popup – Footnote) sic same in original. 9 (Popup – Footnote) sic same in original.