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CHIEF AKWA II
V.
KWAMETSE AMEGAVLUI AND YORMEWU AMETORWOSHIE
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
25TH DAY OF NOVEMBER, 1942
2PLR/1942/13 (WACA)
OTHER CITATION(S)
2PLR/1942/13 (WACA)
(1942) VIII WACA PP. 176 – 180
LEX (1942) – WACA PP. 176 – 180
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
1. CHIEF AKWA II PER HIMSELF AS HEAD AND ON BEHALF OF THE GENUA FAMILY OF ALAKPLE — Plaintiff-Appellant-Appellant
2. KWADJOE APENUVOR — Co-Plaintiff-Appellant-Appellant
AND
KWAMETSE AMEGAVLUI AND YORMEWU AMETORWOSHIE — Defendants-Respondents-Respondents
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REPRESENTATION
C. S. Acolatse — for Appellants
J. H. Coussey — for 1st Respondent
No appearance by or for 2nd Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Family property seized and sold under a writ of Fi Fa – Purchaser of – Claim by Head of one branch of Family in the Native Tribunal for the cancellation of the sales and damages – Where property adjudged to be property of two families each to appoint head to administer same – How properly treated
REAL ESTATE AND PROPERTY LAW:- Distinction between sale of property in land from sale of the right, title and interest of a party in that property – Legal effect
CASE SUMMARY
ORIGINATING FACT
Certain property which belonged to one Genoa, who died- many years ago, was seized and sold under a writ of Fi Fa. The first defendant was the purchaser. The plaintiff claiming in the Native Tribunal as Head of the Genoa family sought for the cancellation of the sales and damages. Property adjudged by former action to be property of two families each of which was to appoint a Head to administer the property conjointly.
Genua Family in defiance of this decision refused to appoint a Head Native Tribunal held that plaintiff could not now come forward and sue as Head of Genua Family.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held: Judgment of Paramount Tribunal upheld but varied by deleting therefrom the words “the sale is hereby confirmed.”
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
1. Tribunal was right in holding that Chief Akwa II could not claim the property as Head of the Genua Family. The existing judgment produced by the plaintiff in order to support his claim appears to negative it coupled with the fact that plaintiff’s branch of the Family had flouted the Tribunal’s order to appoint a head to act jointly with a head appointed by the other branch of the family as head and of the family property, it is conclusive that the plaintiff was not the lawful Head of the Genua Family and was not the successor to the property and therefore not entitled to claim the property.
2. The Tribunal was therefore right in dismissing the plaintiff’s claim on the ground that the plaintiff had no locus standi to maintain the action.
3. The Tribunal was wrong in stating ”The sale is hereby confirmed.” Having once dismissed the plaintiff’s action on the ground that he could not maintain it the Tribunal was not justified in confirming a sale which might affect the rights of persons not before the Tribunal.
4. All that the Tribunal purported to sell and the first defendant to buy was the right, title and interest of Awumee Quist and Awukutse Quist in creek Avovlortoe. The sale of the right, title and interest of X in property is not the sale of that property, and any statement or suggestion that it is, whether made in ignorance or through the use of loose language, is wrong and to be avoided.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.
Plaintiff suing on behalf of himself and the Genua Family of Alakple claimed in an action tried by the Paramount Tribunal of the Anlo State-
(a) a declaration of title of ownership to a fishing creek and Morli known and called Lakor, property of plaintiffs’ great grandfather Genua;
(b) jointly and severally the sum of £50 as damages for wrongful sales and purchase of the said Genua Family property;
(c) cancellation of the said sales.
The second defendant, at whose instance certain property had been seized and sold under writ of Fi. Fa. intimated at the hearing that he did not want to fight the action. He subsequently took no further part in the proceedings before the Tribunal or on appeal.
The first defendant, the purchaser, on the other hand stated that he was prepared to fight the case to the last.
It is common ground that Lakor Creek was included in property that belonged to Genua who has been dead for many years. There seems to have been a good deal of litigation concerning the property formerly owned by Genua. In Detse Dorkui & Ors. v. Awelashie Dogbui & Ors., tried by the same Tribunal, the plaintiff, Detse Dorkui, claimed to be declared lawful head of the Genua Family and successor to certain properties of the late Genua.
The defendants in that case pleaded that the property in question belonged to Genua who gave them in his life-time to his sister Mashigadi, through whom they claimed. The Tribunal found that both sides were descendants of Genua and that his property had been administered from time immemorial by caretakers or Heads of the properties chosen from the plaintiffs’ or defendants’ side — that in the past both parties came together and fought away all trespassers — and it would be unfair to deprive either party of a right or privilege which they had enjoyed jointly for several generations over the properties of Genua and it would be equally unfair to declare the plaintiff singly as the lawful head and successor of the properties. The Tribunal ordered the two parties to appoint their own separate Heads and that no one Head should do any work or give any order in connection with the properties in dispute without the previous knowledge and consent of the other Head, because the property was common property ”to both families.” They ordered that a report of the appointment so ordered be made to the Tribunal.
The Tribunal in its judgment in the present action stated that Detse Dorku refused to elect a Head but Awelashie Dogbui re-elected their old Head Awukutse Quist. Whilst the case of Detse Dorkui v. Awelashie Dogbui was in progress the second defendant lent money to Awukutse Quist and Awukutse Quist (“Head of Awelashie Dogbui Family and his son”) for the purpose of the action. The loan not having been repaid the second defendant obtained judgment against the Quists and attached certain property alleged to belong to them. A public auction was held and a Certificate of Purchase given to the first defendant in the following terms:-
“In the Paramount Tribunal of the Anlo State Eastern Province.
Certificate of Purchase of Creek.
Between-
Yomewu Ametorwosi of Anloga, Plaintiff
and
Awumee Quist and Awukutse Quist of Adjato, Defendants.
This is to certify, that Kwamitse Amegavlui has been declared the purchaser of the right, title and interest of Awumee Quist and Awukutse Quist in Creek Avovlortoe hereinafter mentioned that is to say: All that creek known and called Avovlortoe in creek Nyakpatai which said creek was sold in execution of decree in the above suit by order of this Tribunal dated the 18th March, 1940..
Dated at Awunaga the 19th day of June, 1940.
(Sgd.) Seri II,
Awoame Fia of Anlo.”
It is on account of this sale that the plaintiff claims the relief set forth in his claim. The Tribunal dismissed the plaintiff’s claim with costs. In the course of its judgment the Tribunal said the questions now before the Tribunal were (a) whether Chief Akwa II can now come forward before this Tribunal as Head of Genua Family to claim this property? (b) Whether Chief Akwa II failing to take an Interpleader action at the time this property was seized, can now succeed in a fresh action when the property was sold since June, 1940.
The Tribunal having answered the first question in the negative did not answer the second. The Tribunal held that Chief Akwa II could not claim the property as Head of the Genus Family. They based their decision on their own judgment in the case of Detse Dorkui & ors v. Atagbui referred to previously.
In our opinion the Tribunal was right in holding that Chief Akwa II could not claim the property as Head of the Genua Family. It is true that the first defendant was not a party to Detse Dorkui & ors. v. Awelashie Dogbui but this judgment was produced by the plaintiff in order to support his claim. So far from supporting his claim it appears to negative it. When it is coupled with the fact that plaintiff’s branch of the Family of Genua had flouted the Tribunal’s order to appoint a head to act jointly with a head appointed by the other branch of the family as head and of the family property, it is conclusive that the plaintiff was not the lawful Head of the Genua Family and was not the successor to the property and therefore not entitled to claim the property.
While we are of opinion that the Tribunal was right-in dismissing the plaintiff’s claim on the ground that the plaintiff had no locus standi to maintain the action we are satisfied that the Tribunal was wrong in stating ”The sale is hereby confirmed.” Having once dismissed the plaintiff’s action on the ground that he could not maintain it the Tribunal was not justified in confirming a sale which might affect the rights of persons not before the Tribunal.
This is especially the case since considerable misapprehension seems to exist in regard to these sales by order of the Court under a writ of Fi. Fa. It is clear from the judgment of the Acting Deputy Provincial Commissioner that he also misunderstands the position. He says in his judgment “The Lakor creek was sold by the Tribunal to the first defendant Kwamitse Amegavlui at an auction sale and again first defendant appears to have purchased the creek in a lawful manner.” Both these statements are incorrect. All that the Tribunal purported to sell and the first defendant to buy was the right, title and interest of Awumee Quist and Awukutse Quist in creek Avovlortoe.” It cannot be too frequently or too emphatically stated that the sale of the right, title and interest of X in property is not the sale of that property, and any statement or suggestion that it is, whether made in ignorance or through the use of loose language, is wrong and to be avoided.
Here it is at least doubtful whether even what the Tribunal purported to sell could be sold; in fact counsel for the first respondent intimated that he could not support the present form of the certificate of purchase. He suggested that the correct certificate should read:-
“This is to certify that Kwametse Amegavlui has been declared the purchaser of the right, title and interest of Awumee Quist and Awukutse Quist in Creek Avovlortoe, namely their working rights in their working places in the said Avovlortoe Creek which were sold in execution of decree in the above suit by Order of the Tribunal dated 18th March, 1940.”
It will be observed that this suggestion confines the certificate to the two men’s special rights in the particular areas of their working places, it is carefully worded so as not to include any interest which the two men may have in the creek outside their own particular working places. But even so counsel for the appellants was unable to agree that a certificate to such an effect would be a proper one. Whilst admitting that the rights of individuals to the use of particular working places could be pledged, in which case, according to his view, the family could redeem the rights by paying off the pledgee, he contended that such rights could not be permanently alienated without the consent of the family, and that the fact that sale was by order of the Court made no difference since a Court had no power to abrogate the rights of the family by ordering the sale of something which by native law and custom could not be sold. He argued that for these reasons the sale was bad and should be cancelled altogether.
The argument obviously raises questions of great importance and difficulty, the answers to which may vary in different localities and will depend upon evidence of native custom or the knowledge of a native tribunal of the local native custom. We obviously cannot decide these questions on this appeal. First, because, we have’ neither the necessary knowledge of custom nor the requisite evidence, and secondly because, having upheld the decision that the plaintiff was not the right person to sue, any opinion expressed by us would be mere obiter dictum. We also wish to make it clear that, since the Tribunal held that the plaintiff was not the right person to sue and since we are ordering that the Tribunal’s judgment be varied by deleting the words “The sale is hereby confirmed ”, that judgment will not estop the proper person to sue from seeking to impugn the sale.
We dismiss the appeal and uphold the judgment of the Provincial Commissioner but not for the reasons given by him. We uphold the judgment of the Tribunal in favour of the first defendant but order that that judgment be varied by deleting the words “The sale is hereby confirmed.”
As to costs we award the first respondent his costs in this Court which we assess at £29 6s 0d. The orders as to costs made by the Court below and the Tribunal will stand.
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