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CHIEF DZADU, ETC.
V.
CHIEF BRIHIAM FOR SEDDO ADOGO AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
31ST DAY OF MAY, 1943
2PLR/1943/16 (WACA)
OTHER CITATION(S)
2PLR/1943/16 (WACA)
(1943) IX WACA PP. 137 – 141
LEX (1943) – WACA PP. 137 – 141
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BEFORE THEIR LORDSHIPS:
KINGDON, C.J., NIGERIA
GRAHAM PAUL, J.
M’CARTHY, J.
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BETWEEN:
CHIEF DZADU AS HEAD AND ON BEHALF OF THE MEMBERS OF QUASHIE AND KLUVIE FAMILIES PER ELEDJIGBOR LOTSU – Plaintiff-Respondent-Appellant
AND
CHIEF BRIHIAM FOR SEDDO ADOGO FAMILY – Defendant-Appellant-Respondent
SOLOMON E. AKROBOTU – Co-Defendant-Appellant-Respondent
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REPRESENTATION
J. Henley Coussey — for Appellant
Akufo Addo — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ACTION:- Representative action — Native Tribunal — Plaintiff suing in wrong capacity — Suing in accordance with tribal ideas — Defence possibly prejudiced — Not a mere technical defect
EVIDENCE:- Documentary evidence — Proof — Reception — Unauthenticated document — No Proof of document
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CASE SUMMARY
Plaintiff sued in a Paramount Chief’s Tribunal as representing and on behalf of a branch of the Lotsopi tribe for possession of certain lands. The defendant did not belong to the tribe. The lands in question were the property of the tribe and had in the past been apportioned among its several branches, and the plaintiff’s branch had taken only one portion. In the Tribunal the plaintiff got judgment for all the lands in the capacity in which he sued.
The land which was the portion of plaintiff’s branch of the tribe was the subject of a judgment in favour of the defendant given on 3rd February, 1910, against which plaintiff set up an alleged arbitration award of 18th March, 1910. A document purporting to be a certified copy of the arbitration proceedings and award was admitted in the Tribunal against till defendant’s objection that it was not properly authenticated.
It was argued that plaintiff’s bringing suit for the whole of the lands, in the capacity of representative of a branch of the tribe which could only claim part of them, was in accordance with tribal ideas, because the ancestors of his particular branch had wrongfully purported to alienate the lands, and their descendants should seek to remedy the wrong by suing in the names of the wrongdoers for the benefit of the tribe.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held: Appeal dismissed.
1. that though proceedings in Native Tribunals are not to be set aside for technical defect when the substantive issues have been well decided, the judgment in this case could not be amended to make it a judgment in favour of the tribe as a whole, because, inter alia, the defendants might have had other defences to set up had the claim been made on behalf of the whole tribe. This disposed of the appeal as regards the portions of the lands belonging to branches of the tribe other than the plaintiff’s.
2. That though it is not to be expected that a Native Tribunal should require such strict proof of a document as is required by an English Court, yet where, as in this case, the document had been accepted without any proof whatsoever, its reception in evidence was wrong, and plaintiff was estopped by the judgment of 3rd February, 1910.
Kwamin v. Kwaiku, F.C. 1926-29 p. 137, followed.
MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, GRAHAM PAUL, C.J., SIERRA LEONE AND M:’CARTHY, J., GOLD COAST (READ BY M’CARTHY, J.)
The plaintiff in this case for himself as head and on behalf of the members of the Quashie and Kluvie families claimed in the tribunal of the Paramount Chief of the Anlo State as descendants of the said Quashie and Kluvie as against Chief Brihiam for himself and on behalf of the Seddo Adogo family of Atiavie (1) the Fiaborkor creek and its adjoining land, (2) the Avudeke creek and its adjoining land, (3) the Avelie creek and its adjoining land, (4) the Atsidoglo creek and its adjoining land, (5) the Adifiahor land, all situate and being at Atiavie. 2. An order that the deed dated the 18th August, 1891, and executed between the plaintiff’s uncles Kwashie and Kluvie and the defendant’s father Seddo Adogo in regard to the following properties :- (1) Fiaborkor creek and its adjoining land, (2) Wudekey creek and its adjoining land, (3) Avelie creek and its adjoining land (4) Adifiahor land, be brought into the tribunal for cancellation on the grounds of “Change of colour” of the said properties referred to in the said deed contrary to Anlo Native Customary Law, and for non-fulfilment of the provisions of the deed by the defendant, and for recovery of the said properties.
On the case first coming before the Tribunal, one S. E. Akrobotu, who claimed to have an interest in the said properties, was joined as a co-defendant.
The plaintiff’s claim was based (1) on inheritance of the said properties from the original owners, and (2) on an alleged award elated the 18th March, 1910, of the Anloga Union Society to which according to the plaintiff the question of ownership of the said properties had been referred in arbitration. The parties to that arbitration were three, namely :-(1) Klokpa and Kpogo representing the whole Lotsopi Tribe (2) Adogo, ancestor of the present first defendant-appellant-respondent, and (3) Aklai, Dododsi, Djadu representing the same interest as the present plaintiff i.e. the Kluvie and Kwashie branch of the Lotsopi Tribe.
The defendants pleaded res judicata and estoppel. They also defended on the ground that by virtue of the document referred to in plaintiff’s claim as the deed dated the 18th August, 1896, the said Quashie and Kluvie had sold the said properties to the said Seddo Adogo.
As to the alleged award they submitted it was not proved. Judgment was on the 17th July, 1941, given in favour of the plaintiff by the Tribunal which awarded to the plaintiff recovery of possession of all the properties enumerated in the writ of summons with costs.
From this judgment the defendants appealed to the Court of the Provincial Commissioner, Eastern Province, which on the 26th August, 1942, allowed the appeal with costs.
The Acting Deputy Provincial Commissioner who constituted the Court held (1) that the properties in dispute had been given to the defendants-appellants’ ancestors under a deed of gift, (2) that even if the said deed did not satisfactorily establish the gift, the undisputed possession of the properties by the defendants and their predecessors for 46 years had in the circumstances mentioned by him ripened into full ownership, (3) that the plaintiffs-respondents had parted with their right and claim to the said properties by virtue of the said deed of gift and various judgments which had been put in evidence in the tribunal by the defendants-appellants. From this judgment the plaintiff has appealed to this Court. It appears from the evidence that the said properties had originally belonged to one Adadji, the founder of the Lotsopi tribe, that from him they descended to his son Adelablebua and that upon the latter’s death they were apportioned among his seven sons.
Counsel for the appellant was kind enough to prepare for the use of the Court a family tree of the Lotsopi tribe showing the respective branches to which the various creeks and land were apportioned. We reproduce that family tree, which greatly simplifies the understanding of this case.
Counsel for the plaintiff-respondent-appellant was invited by this Court to explain why his client, who apparently is the present head of the tribe, chose to sue on behalf of the descendants of Quashie and Kluvie who are described by him in his claim as the original owners of the said properties, seeing that on his own showing only the Adifiahor land was apportioned to the branch to which Quashie and Kluvie belonged, and that the other properties were apportioned to other branches of the tribe. The answer was that as Quashie and Kluvie had wrongfully purported to alienate the said properties to Sedo Adogo, it was in accordance with tribal ideas that their descendants should seek to remedy the said wrong by suing in the names of these persons for recovery of the properties for the benefit of the tribe.
It is to be noted that the judgment of the tribunal was for recovery of possession of the said properties by the plaintiff in the capacity in which he sued. It seems to us that plaintiff expressly representing as he did, not the tribe, but the descendants of Quasie and Kluvie, who had according to him, wrongfully purported to alienate the said properties, was not entitled to maintain this action in respect of properties apportioned to other branches. The evidence shows that the branch of the tribe which the plaintiff expressly in his writ represents has in the past been guilty on several occasions of dealing with and claiming the properties of the whole tribe as if they were the properties of the branch. It is, we think, evident that the judgment could not be allowed to stand in the form in which it was given. This Court has frequently acted upon the principle that proceedings in Native Tribunals should not be set aside on the ground of technical defects when the substantive issuee have been well understood and decided. But this principle cannot be applied in this case, since, in our view, it would not be fair to the defendants to amend the judgment in the sense of making it a judgment in favour of the tribe, having regard, to the defences which were set up with especial reference to the claim as it was framed and to the possibility that the defendant, would have had other defences to put forward if these properties had been claimed on behalf of the whole tribe. The judgment of the Provincial Commissioner’s Court, so far as it is relates to properties other than Adifiahor land, will therefore be affirmed on this ground, and not on the grounds given by the Provincial Commissioner’s Court upon which it is unnecessary for us to express any opinion.
As regards Adifiahor land, which was apportioned to the plaintiff’s ancestor Agbeli, judgment was given by the same tribunal on the 3rd February, 1910, in an action brought by Seddo Adogo against members of the plaintiff’s branch of the tribe, including the present plaintiff’s father of the same name, in which the said land was declared to be the property of Seddo Adogo. This would ordinarily have the effect of rendering the issue as to this property res judicata between the present parties. But it is contended by the plaintiff that the said judgment has ceased to have effect by virtue of the alleged award in the arbitration proceedings above-mentioned. A document purporting to be a certified copy of the said proceedings and award was admitted in evidence by the tribunal although (as already mentioned) objected to by the defendants on the ground that it was not properly authenticated.
It is clear that the document was not properly authenticated, and ought not to have been admitted. In this case of Kwamin v. Kwaiku (F. C. 1926-29 p. 137) Hall, J. said at page 138:-
“I do not consider that it is to be expected that a Native Tribunal should require such strict proof of a document as is required by an English court, but, at the same time, there must be some limit to the acceptance of uncertified copies of proceedings and such like documents, without any proof whatsoever, as in this case. I consider, therefore, that Exhibit ‘A’ should not have been received by the Tribunal, unless some proof of its genuineness and admissibility was forthcoming.”
Those words apply, mutatis mutandis to Exhibit “B” in the present case. Without that document the judgment in the previous case (Exhibit “H”) clearly operates as res judicata against the plaintiff and we accordingly direct the dismissal of the claim in respect of Adifiahor land on that ground instead of the grounds upon which the Provincial Commissioner’s Court allowed the appeal to it.
We wish to make it clear that nothing in our decision in respect of any of the land or creeks in dispute should operate as a bar to a claim being put forward on behalf of the Tribe through its proper representative. If such a claim is put forward it will of course be competent to prove the arbitration award properly, when it can be taken cognizance of so far as it is relevant to the matters in dispute. For the reasons given the appeal is dismissed with costs assessed at £36 19s 0d.
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