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KWAKU BONSI AND OTHERS
V.
NANA ANTWI ADJENA II
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST (GHANA)
23RD DAY OF NOVEMBER, 1940
2PLR/1940/78 (WACA)
OTHER CITATION(S)
2PLR/1940/78 (WACA)
(1940) VI WACA P. 241
LEX (1940) – VI WACA P. 241
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
GRAHAM PAUL, C.J., SIERRA LEONE
BANNERMAN, J.
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BETWEEN:
KWAKU BONSI, JASEHENE OF ASOKORE AND KWAD JO OUNYO, Ex- ABADIAKYIREHENE OF ASOKORE — Plaintiffs-Appellants
AND
NANA ANTWI ADJENA II, BENKUMHENE OF NEW JUABEN ON BEHALF OF THE STOOL OF NEW JUABEN — Defendant-Respondent
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REPRESENTATION
K. A. BOSSMAN — for Appellants
A. W. KOJO Thompson — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CUSTOMARY LAW AND PROCEDURE:- Proof of — Native Law and Custom alleged by Plaintiffs-Appellants without having been previously set out in pleading — Legal effect
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PRACTICE AND PROCEDURE ISSUE(S)
ACTION:- Commencement writ and opening statement which discloses no cause of action — Attitude of court thereto — Proper order for court to make
PLEADINGS:- Matter founded on customary law — Failure to specifically plead and prove the customary law alleged — Legal effect
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
Where a party intends to set up and rely on Native Law and Custom it must be specifically alleged and pleaded. In this case the writ has disclosed no cause of action.
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MAIN JUDGMENT
The following joint judgment was delivered:
KINGDON, C.J., NIGERIA; GRAHAM PAUL, C.J., SIERRA LEONE; AND BANNERMAN, J. GOLD COAST
In this case the learned Chief Justice in the Divisional Court held that the writ disclosed no cause of action and non-suited the plaintiff on the pleadings without hearing evidence. The plaintiff now appeals to this Court contending that he ought at least to have been allowed to lead evidence to prove the Native Law and Custom upon which he desired to rely.
But neither in his writ nor in Counsel’s opening did he allege any Native Law and Custom, and we cannot too strongly emphasise that where a party intends to set up and rely upon a Native Law and Custom it must be specifically alleged and pleaded. In this case if the rather vague Native Law and Custom suggested to us were set down in black and white it is clear that it would be so palpably absurd as not to merit serious consideration.
We concur with the view of the learned Chief Justice that the writ disclosed no cause of action.
The appeal is dismissed with costs assessed at £17 13s.
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