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KOFI BAIDOO AND ANOTHER
V.
KWEKU AKWEKU
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
1ST DAY OF MARCH, 1944
2PLR/1944/73 (WACA)
OTHER CITATION(S)
2PLR/1944/73 (WACA)
(1944) X WACA PP. 108 – 113
LEX (1944) – X WACA PP. 108 – 113
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
GRAHAM PAUL, C.J., SIERRA LEONE
DOORLY, AG. C.J.
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BETWEEN:
1. KOFI BAIDOO AS CARETAKER OF THE JOMO STOOL OF JOMO DIVISION IN SHAMA STATE
2. KWEI DODOO OF ABOASI IN JOMO DIVISION – Plaintiffs-Appellants
AND
KWEKU AKWEKU OF ABUASI, JOMO DIVISION – Defendant-Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
AGRICULTURE AND FOOD LAW:- Fishing rights on water body – Claim for ejectment therefrom – Admissibility of documentary evidence thereto – How treated
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REPRESENTATION
F. Awoonor Williams with E. O. Asafu-Adjaye — for Plaintiffs-Appellants
D. E. Gwira with J. Sarkodee-Adoo — for Defendant-Respondent
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CASE SUMMARY
In 1917 an agreement was made between certain parties on behalf of the Jomo Stool and the people of the fishing villages of Aboadzie and Aboasi. As time passed, the Aboasi community collected tolls from stranger fishermen.
In 1939, on account of the death of most of the signatories to the first agreement, a new agreement was made, the signatory on behalf of Aboasi being the second Plaintiff. This agreement followed the terms of the first agreement and, in addition, recognised the right to levy tolls. But the Defendant and not the second Plaintiff collected the tolls, and in consequence the first Plaintiff as caretaker of the Stool and the second Plaintiff as the Aboasi signatory to the 1939 agreement instituted this action to restrain the Defendant from continuing to collect the fishing tolls, and to eject him.
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
1. The defendant and not the second plaintiff is the headman of the Aboasi fishing community, therefore the 1939 agreement is invalid, and the 1917 agreement remains binding as between the Stool (represented by the first plaintiff) and the defendant as successor to the original Aboasi signatory.
2. The 1917 agreement, though not specifically therein stated, was plainly intended to bind the respective parties not as individuals but as between overlord and community; and
3. From this agreement the right to levy tolls may tacitly be assumed as resembling a sub-letting of part of a fishing right.
4. The case is not a land case, but a monetary claim.
Appeal dismissed.
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MAIN JUDGMENT
The judgment of the Court was delivered by the President.
The Plaintiffs sued the Defendant in the Court of the Provincial Commissioner, Western Province, their claim reading:
“The plaintiffs seek to eject the defendant from Abuasi village and land attached to the Jomo Stool of which the plaintiff Kofi Baidoo is caretaker and the plaintiff Kwesi Dodoo under an agreement dated 21st April, 1939 is a tenant.
“The defendant has without the plaintiff’s authority or permission been collecting fishing tolls from stranger fishermen residing and fishing at Abuasi and threatens and intends to continue collecting fishing tolls unless restrained by an injunction.
The plaintiffs also claim a perpetual injunction restraining the defendant, his servants, and agents from collecting tolls from stranger fishermen residing and fishing at Abuasi. Abuasi village is bounded on the North by Abuasi and Jomo lands; on the South by the sea; on the East by Jomo lands and Shama town, and on the West by Jomo lands and Abuadzie village.”
The main bone of contention in this case was the collection of fishing tolls from stranger fishermen by the Defendant. The Provincial Commissioner’s Court held:-
(a) That the plaintiffs have failed to show cause why the defendant, Kweku Akweku, should be ejected from Aboasi and land attached to the Jomo Stool;
(b) That the defendant acted in good faith and under what he considered legitimate and recognised rights and powers when he collected tolls from the stranger fishing community of Aboasi.
(c) and that no evidence has been adduced to entitle me to grant a perpetual injunction, as craved, restraining the defendant, his servants and agents, from collecting tolls from stranger fishermen residing and fishing at Aboasi.”
and gave judgment for Defendant with costs.
Against that judgment the Plaintiffs now appeal to this Court. The case centres in two agreements Exhibits A and B respectively in the case. The first is dated 5th March, 1917 and the second is dated the 21st April, 1939. The first agreement Exhibit A is made “by and between Odikro Kwao Kum of Jomo, with the consent of the members of his family (hereinafter called the party of the first part) Headman Kwao Mensah of Aboadzi, for and on behalf of and with the concurrence and consent of the principal members of the fishing community of Aboadzi (hereinafter called the party’ of the second part) Headman Kondua of Aboasi, for and on behalf of and with the concurrence and consent of the principal members of the fishing community of Aboasi (hereinafter called the party of the third part) and Omanhene Kwao Fraiku of Chama with the concurrence of his Councillors and Elders, hereinafter referred to as the party of the fourth part.”
By the agreement the “party of the first part” grants to the “parties of the second and third parts” rights to reside and build and fish, a rent of £40 per annum being reserved. Paragraph 6 reads, “That the term of this agreement is indefinite.”
It was duly signed by the proper persons, one of whom signing on behalf of the fishing community of Aboasi was Kondua. No mention was made in it of a right to collect fishing tolls from stranger fishermen, but it is common ground that Kondua did in fact collect such tolls from stranger fishermen. By 1939 Kondua and most of the other signatories to Exhibit A had died, and the Stool- of Jomo thought it desirable to have a new agreement, consequently Exhibit B was signed on the 21st April, 1939. It is signed by Chief Ekra Kobina, by Kofi Baidoo, the present first Plaintiff and by the other proper persons on behalf of the Stool of the first part; by “Kwesi Baidoo, Headman” (the present second plaintiff) and others, Councillors, all of Aboasi and by a Headman and Councillors of Aboadzie “as representing the fishing communities of Aboasi and Aboadzie respectively”, of the second part. It was expressed to be for the term of 50 years, renewable by agreement; it renewed the respective rights under the first agreement Exhibit A, which it was intended to supersede, and added and included the following two new clauses:-
“5. That the parties of the second part shall have the exclusive rights to collect customary tolls from foreign fishermen who may from time to time come to reside at Aboasi and Aboadzie for the purpose of fishing and it is hereby expressly agreed that the parties of the second part shall pay to the parties of the first part the sum of £30 (Thirty pounds) annually out of the tolls so collected provided that the said sum of £30 (Thirty pounds) shall be payable irrespective of whatever amount is collected by the parties of the second part in any year.
“6. That the rents and tolls so collected yearly should be shared as follows:
‘Two-thirds to go to the Chief of Jomo and his elders, linguists and family, and one-third to go to the State of Shama.”
The Acting Deputy Provincial Commissioner, who constituted the Provincial Commissioner’s Court at the trial, found as a fact that Kweku Eku, the Defendant, and not Kwesi Dodoo, the 2nd Plaintiff, is the headman of the fishing community of Aboasi, and held that consequently the 1939 agreement signed by Kwesi Dodoo, as Headman and as representing the fishing community of Aboasi is invalid.
We may say at once that we entirely concur with this finding of fact by the Acting Deputy Provincial Commissioner and with his consequential finding as to the invalidity of Exhibit B. The evidence to support the finding of fact is the strongest possible.
Kodjoe Botwiman II, Tufuhene of Shama State, testified as follows:
“I know Aboasi: it is on land attached to Jomo Stool, Shama State. I know Kondua at one time headman of Aboasi. When he died, there was a dispute as-to his successor. One Dodoo was introduced to the State Council as a headman, and there was a protest from the Aboasi people. The District Commissioner asked me to arbitrate and my ”award” was that Akweku should be recognised. We all came to the District Commissioner together with my Councillors, Elders, the Chief of Jomo, and both disputants, Akweku was introduced as the headman. He has never refused to pay the ground rent to the Jomo Stool.”
His testimony is supported by documentary evidence, viz.: two letters Exhibits G and F respectively. Exhibit G is a letter dated the 14th December, 1940, from him to the District Commissioner, Sekondi, and is in the following terms:
“Headman of Abuasi Village–Introduction of
‘Of their own free will and accord the two contending parties at Abuasi have, according to a message received from their representatives this afternoon, agreed to a merger by which Mr. Dodoo alias Sumarnu and his elders have become absorbed by Mr. Akua Eku’s existing Council there. Accordingly I have invited Chief Ekrah of Jomo to accompany me on Monday the 16th instant to Sekondi where it is my intention, after both parties have satisfied you that the present understanding arrived at by them will ensure peace at Abuasi, to formally introduce Mr. Alrua Eku to you as Headman of the fishing community there.”
and Exhibit F is a letter from the District Commissioner to Kwesi Dodoo dated the 23rd December, 1940 in the following terms:-
Aboasi Fishing Tolls–collection of:
“I have the honour to acknowledge receipt of your letter dated 21st December, 1940, and to inform you that the Judgment specifically points out that you are not entitled to collect tolls.
“2. Since the judgment, the fishing community have elected Aku Eku to be Headman, an election of which you personally informed me you were in favour. He has been presented to me by the Tufuhene as Headman and he, in my opinion, is the correct collector of tolls.”
The judgment of the Acting Deputy Provincial Commissioner continues:-
“As to whether the agreement of 1917 is still binding and valid is another matter: I would point out, however, that it was made ‘on behalf of the fishing community of Aboasi’, and I am of the opinion that the death of Kondua, did not, of itself, alter the rights so conferred upon this community, one of which is ‘the right to reside and build upon’ land specified in the Schedule to the agreement. I have no evidence before me that the community, or defendant, has gone outside this area.
“The main bone of contention is the collection of tolls by the defendant. As I have said before, the agreement of 197 makes no mention of tolls, but there is ample evidence to prove that the late Kondua, as headman did collect tolls and that the Jomo Stool acquiesced in this collection. Kweku Akweku, considering (in my opinion, rightly) that he was headman of Aboasi after Kondua’s death, continued this collection in good faith, despite the agreement of 1939, which he has always contested.”
Appellants’ Counsel upon this appeal urged very strongly that since the 1917 agreement (Exhibit A) did not purport to be made on behalf of the parties, their heirs and successors, it was binding only upon the actual parties to it at the time of its signature and no one but those parties could enforce it, so that when they were all dead it ceased to exist. We are unable to agree with this view, we think that the plain intention of Exhibit A, sufficiently expressed therein, is that it should bind the respective parties, viz.: the Stools of Shama (Chama) and Jomo and the fishing communities of Aboadzie and Aboasi until cancelled by mutual consent regardless of the natural changes in the personnel whether of the Stool occupants or of the fishing communities, and that the Headman of each fishing community succeeds to the rights of his predecessor, on behalf of the community, under the agreement.
Certainly all the members of the fishing community in 1917, and not merely the actual signatories, are entitled to the benefits of the grant, and it has not been shown that all those members are dead or no longer members of the community. The natural way for them to enforce their rights under the agreement is through their headman for the time being.
We hold therefore that the 1917 agreement Exhibit A is still in force and binding as between the first Plaintiff and the Defendant.
Another point strongly urged on behalf of the Appellants was that even if Exhibit A were still in force, it gives no right to collect fishing tolls and consequently no such right is possessed by the Defendant. As to this, it is, of course, not sufficient, in order to establish his right and so to resist an injunction restraining him, for the Defendant to show (as the Acting Deputy Provincial Commissioner found) that he acted in good faith and under what he considered legitimate and recognised rights and powers when he collected tolls from stranger fishermen. He must show that those rights and powers were in fact legitimate and recognised.
We are of opinion that he did succeed in showing this. It is clear from the evidence that all parties to Exhibit A tacitly assumed that the rights granted to the fishing communities carried with them the right to levy tolls from stranger fishermen. The transaction resembles a sub-letting of the fishing rights. It was definitely proved that Kondua had been collecting these tolls for years in his capacity as headman of the Aboasi fishing community and his right to do so had never been questioned by the Jomo Stool; we are if opinion that the first Plaintiff cannot be heard to question that right now and that the Defendant as Kondua’s successor in the position of Headman of Aboasi-fishing community now possesses the right. The second Plaintiff has no standing to question the right.
Upon these findings the claim to eject the Defendant from the land on the ground that he has set up a claim to tolls adverse to the Stool falls to the ground. The only other point raised on behalf of the Appellants upon the appeal was the alleged wrongful admission of evidence, the documents attacked being Exhibits E, G and J and K. Exhibit E is a receipt dated the 14th August, 1941 given by the Defendant to the District Commissioner, Sekondi, for” the sum of £31 (Thirty-one pounds) being fishing tolls collected in respect of Aboasi Fishing Toll Dispute between Akweku and Okra Kobina-an amount collected from Kobina Penin and nine others, fishermen of Aboasi.”
It was produced by a clerk from the District Commissioner’s office. We are of opinion that the document was properly received in evidence as showing that at its date the Government recognised the Defendant as the proper person to whom fishing tolls should be paid. Even if it were inadmissible it is not of great importance, being· corroborative only, and its wrongful admission would be no sufficient ground for allowing the appeal. Exhibit G has already been quoted; when it was tendered, objection was taken to its admission on the ground that it was not a true account. The objection on that ground was very properly overruled. Had objection been taken on the ground that the proper foundation for its admission had not been laid, it would, no doubt, have been marked for identification only at that stage and later put to the witness Kodjoe Botwiman II who wrote it and, upon his swearing to it, would have been properly admitted. It is noteworthy that when Kodjoe Botwiman II did give evidence he was not cross- examined as to Exhibit G.
Exhibit J and K to the admission of which exception is taken are the writ and decision in the Court of the District Commissioner, Sekondi. Inthe case of Chief Kwesi Dodoo, Headman v. Kojo Amoanoo. The Plaintiff in that case was the present second. The writ was as follows:-
“The Plaintiff claims from the Defendant the sum of £4 5s. being tolls due from the Defendant to Plaintiff, for permission to live and fish at Aboasi.”
and the District Commissioner’s decision as follows:-
“The first point I am going to deal with in my judgment is the question of Dodoo’s right to be considered the Headman of Aboasi as on this whole case seems to swing. To be Headman of Aboasi Dodoo must be chosen by the community of Aboasi and confirmed or approved by the Omanhene of Shama (vide definition of Headman in Cap. 76). The Omanhene it appears from this cannot make a Headman; he can only approve or confirm the appointment of a Headman. The first essential in the making of a Headman is the selection by the community of the village. This Court is not at all satisfied from the evidence before it that Dodoo was ever so selected; so the Court cannot recognise him as Headman.
”Now the lease dated 21st April, 1939 under which Plaintiff is suing was signed by Plaintiff as representing the fishing community of Aboasi and deals with many matters in which the Aboasi people are vitally concerned. The Court not being satisfied that Plaintiff has any right to represent the fishing community of Aboasi as shown above is not prepared to accept that Plaintiff has power to collect tolls under this lease which was prepared by him as representing the people of Aboasi in a matter vitally affecting the Aboasi people.
“Judgment is therefore given for Defendant. Plaintiff to pay coats to be taxed.”
In this Court it has been urged that the case was a land case and so outside the jurisdiction of the District Commissioner sitting as a Magistrate and the proceedings were therefore a nullity. We do not agree with this view, the claim on the face of it, was a monetary one, pure and simple, and the case was decided on the question of the Plaintiff’s locus standi to bring the action. We are of opinion that the exhibits were rightly admitted so much for the grounds of appeal. We agree with the conclusion of the Court below that the Plaintiffs have failed to show cause for the ejectment of the Defendant or for the granting of the injunction prayed.
The appeal is accordingly dismissed with costs assessed at £37 15s. against the Plaintiffs jointly and severally.
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