–
KWAMIN BADU
V.
KOFI DONKOH
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
25TH DAY OF MARCH, 1955
APPEAL NO. 7 OF 1954
2PLR/1955/25 (WACA)
OTHER CITATION(S)
2PLR/1955/25 (WACA)
(1955) XIV WACA PP. 111 – 115
LEX (1955) – XIV WACA 111 – 115
–
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
HEARNE, J.A.
–
BETWEEN:
KWAMIN BADU, HEAD OF YEGO FAMILY (APAA QUARTERS) OF NYAKROM AND ELEVEN OTHERS – Appellants
AND
KOFI DONKOH, EX-HEAD OF YKGO FAMILY (APAA QUARTERS) OF NYAKROM – Respondent
–
ORIGINATING COURT(S)
Appeal by plaintiffs from the Land Court sitting on appeal from the Native Court on point of jurisdiction.
–
REPRESENTATION
C. F. Hayfron-Benjamin, with Ollenu — for Appellants
K. K. Taylor — for the Respondent
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Matter relating to headship of stool, its paraphernalia and control of land owned by stool – Nature of suit – Whether one relating to land – Implication for jurisdiction of court
–
CASE SUMMARY
The plaintiffs (above appellants) as heads of three houses of a Family, out of the four sued the defendant claiming delivery up of Stool properties comprising certain specified lands and their plans and the Family Stool and its paraphernalia, and averring that he had been removed from the headship of the Family. The defendant’s line of defence was that the Stool had been founded by someone of his house, which had broken away from the other three houses and which owned the lands and the Stool.
The Judge of the Land Court, to which appeal was made, declined jurisdiction, and the question before the Court of Appeal was whether or not this was a suit relating to land; if not, the appeal lay to the Magistrate’s Court.
–
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal and remitting the case back to the Land Court) that:
The real matter in controversy was the ownership of the lands; the removal of the defendant was an ancillary matter averred to show the plaintiffs’ right to claim possession of the land and other property; and the allegation of a joint family was incidental to the jus tertii set up by the defendant.
–
–
MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J.A.
The question in this appeal is whether or not the suit in the Agona Native Court: “B” is a suit or matter relating to the ownership, possession of occupation of land.
The plaintiffs as Heads and members of three branches, meaning houses, of the Yego family claimed from the defendant as Ex-head of the Yego family (Apaa Quarters) of Nyakrom, delivery up of Stool properties comprising (a) eight lands mentioned by name, (b) all land plans and (c) the Family Stool and its paraphernalia which, according to native customary law, the defendant was not entitled to retain in his possession after his removal as head of the Yego family (Apaa Quarters) of Nyakrom. The writ of summons avers that the Yego family is composed of four houses.
It is not in dispute that this is a family Stool. The plaintiffs alleged that the lands are attached thereto.
The plaintiffs-appellants contend that this is a suit relating to land and that appeal lies from the judgment of the Native Court to the Land Court; while the defendant maintains that appeal lies to the magistrate’s Court as the issue before the Native Court was not as to the ownership of land but as to whether the Yego family is a joint family and whether the defendant had been removed from its headship.
At the outset of the hearing in the Native Court the defendant pointed out that two claims had been “mixed”, namely, one for Stool paraphernalia and one for lands, It is true the Native Court observed at the time, erroneously, that it was not a land case, but the defendant cross-examined the plaintiffs’ witnesses throughout and led evidence to establish that the family Stool was founded by Ampia Koko of the defendant’s house, that the Ampia Koko house had broken away from the other three houses of the Yego family taking the Stool and lands away with it, and that the title to all the lands in issue is now in the defendant’s Ampia Koko house as owner and not in the wider Yego family. At page 31 of the Record the defendant testifies that all the lands being claimed were acquired by Ampia Koko. Two plans of lands were put in evidence.
The Native Court held, incidentally, in decreeing delivery up of the lands and other properties claimed that the defendant had been removed from the Headship of the Yego family. The main issue of fact, however, substantially raised in the suit and decided, is the ownership of the lands. That was the real matter directly in controversy in the case. In my opinion the removal of the defendant was only ancillary to the main cause, and was necessarily averred and proved by the plaintiffs as a proposition to show their right to claim possession of the lands and other property. Equally, the allegation of a joint family was incidental to the jus tertii set up by the defendant although he was not sued as representing the Ampia Koko family.
The learned Judge of the Land Court therefore erred in declining jurisdiction and in remitting the appeal to the Magistrate’s Court.
I would, therefore, allow this appeal with costs at .60 18s. Od. and order that the appeal from the Native Court be heard and determined by the Land Court, Cape Coast.
–
FOSTER-SUTTON, P.
I concur.
–
HEARNE J. A.
I concur.
–
Appeal allowed; Case remitted to the Land Court.
–