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KWASI SAFO
V.
CHIEF KOFI YENSU AND OTHERS
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
8TH DAY OF DECEMBER, 1941
2PLR/1941/46 (WACA)
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OTHER CITATION(S)
2PLR/1941/46 (WACA)
(1941) VII WACA PP. 167 – 171
LEX (1941) – VII WACA PP. 167 – 171
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
STROTHER-STEWART, J.
BANNERMAN, J.
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BETWEEN:
KWASI SAFO — Plaintiff-Judgment-Creditor-Respondent
AND
1. CHIEF KOFI YENSU
2. KRONTIHENE OBENG YAW
3. JASEHENE KOFI
4. OBAPANIN ABINA YEBOAH
5. KWADWO OWUSU AMOAH — Defendants-Judgment-Debtors
6. KRONTIHENE KOFI BOANDWO OF TEKYIMAN — Claimant-Appellant
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REPRESENTATION
Frans Dove with H. A. H. Benjamin — for Appellant
E. O. Asafu-Adjaye — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW – LAND:- Title to land based on traditional history – Settlors right based on ancient permission pre-settling stool – Whether open to pre-settlors to re-assert title by way of interpleader action where settlor’s on the verge of losing the land due to unsatisfied debt – How treated
DEBTOR AND CREDITOR LAW:- Attachment of communally owned land to satisfy debt secured by a way of a promissory note – Interpleader action by third party community resisting attachment on ground of pre-existent title to the land – How treated
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PRACTICE AND PROCEDURE ISSUE(S)
Interpleader Suit — Techiman Stool alleged that land attached belonged to them and not to Offuman lands — Res judicata — Powers of Committee of Privileges
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CASE SUMMARY
Offuman Stool borrowed money from Plaintiff and gave a promissory note and a guarantee. The guarantee stipulated that if borrowers defaulted proceedings could be taken against land specified in guarantee. The Debtors defaulted and the judgment-creditor attached the land.
The Stool of Techiman interpleaded and stated that the land was theirs. The trial Judge held land belonged exclusively to Offuman Stool. Appellant argued inter alia –
(i) that the traditional history of Offuman lands was clearly supported by Boundary decision of T. E. Fell,
(ii) that the matter was Res judicata,
(iii) that the Chief of Offuman admitted that the Techiman Stool had given Offumans permission to settle on Offuman land,
(iv) that Committee of Privileges had neither power to deal with land nor to transfer land from one Chief to another and
(v) that the traditional history of Offuman lands as given in this case was not supported by reliable evidence.
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DECISION OF THE WEST AFRICAN COURT OF ACTION
Held:
(i) That mere fact that lands are within administrative boundaries of a certain division could not raise presumption that they belong to the Stool of that division.
(ii) That though divisional boundaries were fixed during the short period that the Offumans were serving the Techimanhene this did not pass the ownership of Offuman land to the Techimanhene and hence there was no res judicata.
(iii) That the Offumans only served the Techimanhene for the short period mentioned in (ii).
(iv) That the Techimanhene could have appealed against the decision of the committee of Privileges but he did not do so.
(v) That there was ample evidence to support the traditional history of the Offuman lands.
Appeal dismissed.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, STROTHER-STEWART AND BANNERMAN, JJ., GOLD COAST.
This is an appeal by the claimant-appellant from the judgment of Fuad, J. dated 22nd March, 1941, in which he dismissed the appellant’s claim. The appellant who was the claimant in the Court below represented the Techiman Stool. The contest was really between the Techiman Stool and the Offuman Stool. In other words the representatives of the Offuman Stool (judgment-debtors) joined issue with the Techiman Stool as to the ownership of the land seized in execution by the judgment creditor.
Sometime in 1937, Kofi Yensu (the Ohene of Offuman) and his elders received two separate loans from one Kwasi Safo. In respect of these two loans Kofi Yensu and his elders as representatives of the Offuman Stool gave a guarantee and promissory note to Kwasi Safo. The guarantee is dated 18th August, 1937, and the promissory note is dated 6th October, 1937. According to the terms of the guarantee Kofi Yensu and his elders stipulated that if they defaulted proceedings could be taken against them for the recovery of the amount and execution levied against the land the subject matter of this litigation.
On the 29th August, 1938, Safo brought an action in the Divisional Court, Kumasi, against Yensu and his elders for the recovery of the debts covered by the guarantee and the promissory note. The case, on the application of Safo, was placed on the “Undefended List.” The defendants did not contest the claim and judgment went against them with costs. Subsequent to this judgment, the judgment-creditor (Safo) attached the land in dispute for sale. It was at this stage that the Stool of Techiman brought an interpleader suit against the judgment-creditor alleging that the land attached belongs to the Techiman Stool and not to the Offuman Stool. It may be observed in passing that the land in dispute was not described in the interpleader summons, but in paragraph 4 of the affidavit in support of the application for the writ the land was sufficiently described. This description roughly corresponds to the description given in the guarantee already referred to.
There were no pleadings in this case but the issue involved is clear from the opening statements of counsel on both sides. The issue is whether the land seized in execution by Safo belongs to the Techiman Stool or to the Offuman Stool. The learned trial Judge dismissed the claim of the Techiman Stool. In effect the learned Judge held that the land belongs to the Offuman Stool exclusively. It is common ground that the Techiman people were occupying Techiman land before the Offumans settled on Offuman land. According to learned counsel for the respondent, the Offumans settled on Offuman land 200 years ago. He contended that during this period of 200 years the Offumans have exclusive rights of ownership in respect of the land.
Before this Court the following grounds were argued by learned Counsel for the appellant:
(1) Error in law:
(a) Because the traditional history of the Offuman lands as narrated by the claimant was clearly supported by the Boundary Decision of T. E. Fell vide Exhibit 3.
(b) Because the matter was Res Judicata in that the title in Offuman lands was clearly in the Techiman Stool vide Exhibit 3 and the Boundary, Land, Tribute, and Fishery disputes (Executive Decision and Validation) Ordinance, Chapter 120.
(c) Because the Chief of Offuman admitted in the case of Ankaman versus Yensu before the Techiman Council that it was the Queen-mother of Techiman who gave the Offumans permission to settle on Offuman land.
(d) Because the Committee of Privileges set up after the restoration of the Confederacy had no power to deal with land cases nor had it power to transfer land fromone chief to another chief or chiefs.
(f) Because the traditional history of the Offuman lands as given by Kweku Atta was not supported by any reliable evidences upon which the trial Judge could legally base his findings.
3. Judgment was against the weight of evidence.
The following additional grounds were filed:
4. Because the plaintiff creditor and or the defendants judgment debtors did not give the exact or particular portion of land within the Techiman boundaries that was alleged to be Offuman land and liable to seizure and sale.
5. Because inasmuch as the alleged Offuman land was within the Techiman boundaries the judgment debtors’ possession could not be adverse or independent unless there had been a judgment to that effect by a competent Court or Tribunal.
6. Because the Court misinterpreted paragraphs 6, 7 and 8 pf Exhibit 3 as giving Offuman absolute title to part of Techiman land whereas paragraph 8 could only have referred to occupation under Techiman Stool.
With regard to ground 1(a), it is sufficient to say that the learned trial Judge dealt exhaustively with the traditional history and the boundaries fixed by Mr. T. E. Fell in 1912 and came to the conclusion that the boundary decision did not vest Offuman land in the Techiman Stool. The learned trial Judge said
“the mere fact that certain lands are within the administrative boundaries of a certain division could not raise the presumption that they belonged to the Stool of the Paramount Chief of that division; they might belong to another Stool within the division, to another Stool outside the division or to a private individual. I see nothing in these decisions which even remotely indicates that Offuman lands belong to Techiman.”
We entirely agree with these views.
As to ground 1(b) it should be explained that the Offumans served the Asantehene through the Dadiasuabahene from the time they settled on the land until Prempeh was sent into exile, then they were placed by the British Government under the Techimanhene until the Ashanti Confederacy was restored in 1935 when they reverted to the service of the Asantehene through the Dadiasuabahene. It was during the period that they were serving Techimanhene, viz., 1912, that the Divisional Boundaries between Techiman and Nkoranza were fixed by Mr. T. E. Fell and later given legally binding effect under the Boundary, Land, Tribute and Fishery Disputes (Executive Decision and Validation) Ordinance (Chapter 120). The Offuman land naturally fell within the boundaries of the Techiman Division, but we agree with the contention of respondent’s counsel that this did not have the effect of passing the ownership in Offuman land to the Techimanhene and consequently does not operate as res judicata in favour of the appellant.
Ground 1(c) relates to the time when the Offumans settled on Offuman land. Since that time the Offumans have served the Asantehene through the Dadiasuabahene for many years. The Techimans have been conquered and reconquered by the Asantehene and the Offumans only served the Techiman Stool for the short period already mentioned.
Ground 1(d) questions the right of the Committee of Privileges to transfer land from one chief to the other. At the committee meeting the Techimanhene was present and the whole question as to the ownership of the Offuman lands was gone into and a decision was reached by the committee. Against that decision it was open to the Techimanhene to appeal to the Governor but he has not done so. But quite apart from the decision of this committee there was overwhelming evidence before the learned trial Judge to show that Offuman lands do not belong to Techman Stool.
In our view there is no substance in ground 1(f). Apart from the fact that the learned trial Judge in the Court below went thoroughly into the traditional history of Techiman and Offuman, we are of opinion that there was evidence before him to sustain his judgment.
With regard to ground 3, the findings of the learned trial and Judge were based on strong evidence adduced by the respondent, and we are satisfied that the weight of evidence was on the side of the respondent.
With regard to ground 4 it has already been pointed out that the boundaries are described in the guarantee and the parties themselves know the extent of the boundaries. Furthermore the claimant’s affidavit in support of his writ contains the boundaries of the land seised.
As regards ground 5 the learned trial Judge has held that the fact that Offuman land was within the boundaries of Techiman land does not mean that Offuman land belongs to Techiman Stool. We agree.
As to ground 6 in our opinion the learned Judge placed the correct interpretation on paragraphs 6, 7 and 8 of Exhibit 3.
All the grounds of appeal fail and the appeal is dismissed with costs assessed at £49 0s 6d.
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