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KWAMIN FOSU
V.
J. G. TURKSON
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
19TH DAY OF DECEMBER, 1936
LEX (1936) – III WACA PP. 127 – 140
OTHER CITATION(S)
2PLR/1936/32 (WACA)
(1936) III WACA PP. 127 – 140
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
WEBBER, C.J., SIERRA LEONE
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BETWEEN
KWAMIN FOSU — Plaintiff-Respondent
AND
J. G. TURKSON — Defendant-Appellant
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REPRESENTATION
W. E. G. Sekyi — for the Appellant
W.W. Brew — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CUSTOMARY LAW:- Claim concerning a Stool – Form of writ in native Tribunal – Questions of relief claimed and issues involved – Multiplicity of proceedings — Writ issued 21st January, 1931 – Continual proceedings exercise of until December, 1936 – On 10th April, 1934, District Commissioner’s Court held Councillors were deliberating on a constitutional matter which concerned the position in the State of the Abease Stool — Overruled by Divisional Court on appeal – Many subsequent proceedings – How treated
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PRACTICE AND PROCEDURE ISSUE(S)
COURT — JUDGMENT:- Need for Court to do substantial justice between parties, wherever possible — Legal effect
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:–
1. Judgment of District Commissioner’s Court dated 10th April, 1994, dismissing the appeal from the State Council was correct. That judgment restored and all subsequent judgments set aside.
2. Court should try to do substantial justice between parties, wherever possible.
3. The State Council regarded this as a claim about the improper detention of a stool, and the claim is certainly susceptible of that interpretation. Further the question of improper detention or not raises the constitutional question of the position in the State of the Abease Stool.
4. The matter originally came before the State Council by virtue of an irregular order of transfer, but that fact does not, deprive the council of jurisdiction to deal with it. The State Council was properly seised of the matter and that the judgment given by it on the 30th April, 1992, was within its competence.
5. The District Commissioner, was right when he decided that, since the councillors were deliberating on a constitutional matter which concerned the position in the State of the Abease Stool, section 35 of the Native Administration Ordinance had divested his Court of jurisdiction to hear the appeal. Thus, all subsequent proceedings based on that judgment are a nullity for lack of jurisdiction.
6. The District Commissioner’s Court decision dated the 10th April, 1984, dismissing with costs the appeal from the State Council should be restored, and all subsequent judgments set aside.
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MAIN JUDGMENT
The following judgment was delivered: per KINGDON, C.J., NIGERIA.
In this case the plaintiff-respondent on the 21st January, 1931, sued out a writ in the native Tribunal of Fanti Yankumasi, Paramount Chief of Assin Attandaso State, against the defendant in these terms:
“The plaintiff sues defendant to show cause by defendant why defendant should falsely go to plaintiff at Amoabeng with Omanhene’s (Tsibu Darku IX) name to take away from plaintiff the Stool of Abease given to plaintiff for safe-keeping by the Paramount Chief of Assin Attandaso in respect of which plaintiff swore the oath of Kwesida ne’ Oseman on defendant for which defendant failed to respond.”
On the 24th January, 1931, that Tribunal “in view of the importance of the case” transferred it under the provisions of section 91 (2) of the Native Administration Ordinance (Cap. 111) to the State Council of Assin Attandaso for hearing and determination.
Meantime on the 23rd January, 1931, the defendant had applied to the Court of the Provincial Commissioner, Cape Coast, for an order transferring the case to the District Commissioner’s Court, Cape Coast; this application was refused on the 24th April, 1931. This defendant then on the 5th May applied to the State Council for leave to appeal to the Provincial Commissioner’s Court against the native Tribunal’s order of transfer to the State Council. Leave was refused on the 12th May, 1931. Thereupon the defendant appealed to the Provincial Commissioner’s Court against the native Tribunal’s order of transfer. This was refused on the 28th July, 1991.
The case came on for hearing before the State Council on the 28th November, 1991, and after adjournments was heard on the 29th and 30th April, 1992. The State Council gave the following judgment:
“This is an action brought before the Paramount Chief’s Tribunal of Fanti Yankumasie on the 21st day of January, 1931, but owing to the magnitude of the case it was transferred to the State Council Tribunal of Assin Attandasu under section 91 (2) of the Native Administration Ordinance. The defendant, J. G. Turkson, subsequently applied for transfer of the case to the Honourable Commissioner Central Province’s Court, but the application was refused and the case was re-transferred to the State Council Tribunal under section 91 (1) of the Native Administration Ordinance of 1927. The case was accordingly heard on the 29th and 30th day of April, 1982, by this Council.
“In this action the plaintiff, Kwamin Fosu, sworn the oath of Kwesida ne’ Siman on the defendant Turkson establishing the truth that the Stool of Abease was given to him (the plaintiff) for safe-keeping by the Paramount Chief of Assin Attandasu and not the defendant, J. G. Turkson, and that the said defendant took delivery of the stool from the plaintiff in the Omanhene’s name. The defendant failed to respond to the oath, and eventually a civil action was instituted by the plaintiff against the defendant.
“Touching the summary incidence involving the fate of the stool in dispute, was that, Gyachie, the former caretaker of the stool, having misappropriated the stool lands, was subsequently arraigned by the defendant Turkson before the Paramount Executive Arbitration (Oman), found guilty and accordingly deprived from the trust of that stool. The paramount executive body, that is, Sodofu, Ankobiafu and Opagyafu, together with the regent functioning in the capacity of Para mount Chief of Assin Attandasu, entrusted the Gyasihene of the State (plaintiff was then acting as regent of Assin Attandasu State) with the stool in dispute, and taken same to his village Amoabeng for safe-keeping.
“According to the defendant’s own evidence, it evidently exonerates both the Omanhene and his Oman as having no knowledge nor hands in his action so schemed to take away from the personal possession of plaintiff the Stool of Abease in dispute.
“Whereas, safe in time of warfare engagement by the State with any neighbouring enemy or inter-tribal contest, when removal and conveyance of stool and paraphernalia into another distant place for safe-keeping was practicable, the attitude taken by defendant Turkson in the act is barely open to higher punishable code according to the constitutional principles of the State in particular, and also serves no less an act of capital offence against good conscience and weight of native customary laws applied in the country.
“Recounting from the principles embodying the Native Administration Ordinance of 1927 in operation, the act perpetrated by the defendant in going to plaintiff at Amoabeng in the name of the Omanhene, took the stool from him, and conveyed same for safe-keeping still without a hint to the Omanhene nor his Oman, serves an index of his personal intentions to undermine and usurp the authority as well as an attempt to withdraw or transfer the natural allegiance of Abease Stool from the paramountcy of Assin Attandasu State, and this was openly verified in evidence of defendant. The falsely schemed evidence given by three of the defendant’s own witnesses was sufficient exposition of the whole business being treacherously designed by defendant. According to the evidence of the Honourable Nana Tsibu Darku IX, who was subpoenaed by the defendant, the oath was actually sworn by the plaintiff and that the defendant failed to respond. It also shows that the relative existence of the Stool of Abease was specially created by the Big Stool of Assin Attandasu State for the defendant’s grant-parents, dating back from the days of Atta Payin and others, purposely to dignify the natural status of their family house, in common recognition of their services and loyalty shown to the State.
“That the ranking line of the said Abease Stool is in dispute, as constitutionally made was subservient to the ‘Kyidon wing under the State Gyasi section.
“The question of the remains of Etsi tribes having any scope of independence now in claim or grounds to attempt seceding from and within the radius of the Paramount Stool of Assin Attandasu State have no considerable bearing nor legitimate account to be advanced.
“The ultimate issue of the unanimous opinion of the members of the State Council therefore give judgment in favour of the plaintiff with costs to be taxed.
“The State Council order that the defendant should appear before the next sitting of the State Council on the 10th day of May, 1932 (next Wednesday), with the stool in dispute to enable making necessary amicable adjustment and conditionally to sign bond to keep peace and allegiance in compliance with the Native Administration Ordinance.”
On the 10th May, 1992, the defendant applied to the State Council for leave to appeal against that judgment to the Provincial Commissioner’s Court. On the 25th May, 1932, the State Council granted conditional leave and a stay of execution. On the 20th June, 1992, the defendant applied to the Provincial Commissioner’s Court for leave to appeal, and on the 27th June, 1932, the Provincial Commissioner’s Court granted leave and a stay of execution. On the 30th June, 1932, the defendant obtained from the Provincial Commissioner’s Court final leave to appeal to that Court. That appeal was discontinued and on the 15th September, 1992, was struck out. On the 24th September, 1932, the State Council heard an application by defendant for conditional leave to appeal to the District Commissioner’s Court, Cape Coast, and refused it as being out of time under section 76 of Chapter 111.
On the 13th October, 1932, the defendant applied to the District Commissioner’s Court for conditional leave to appeal to it, and this was refused on the 28th October, 1932, as being out of time. On the 7th November, 1932, the defendant filed an application for conditional leave to appeal against that refusal. This was granted on the 10th November, 1932, and final leave was granted on the 1st December, 1932. That appeal came before Yates, J., sitting in the Divisional Court at Cape Coast on the 11th February, 1933, and he ordered that the case be brought before the District Commissioner’s Court so that the rights of the parties may be inquired into and justice done. He further ordered that the original application for leave to appeal be amended by striking out the words “Provincial Commissioner’s Court” wherever they occur and substituting therefor the words “District Commissioner’s Court.” Against this order the plaintiff appealed to the West African Court of Appeal, but his appeal was dismissed by this Court on the 13th May, 1933, not on the merits, but because it was out of time. The appeal from the State Council then came before the District Commissioner’s Court, Mr. Norton Jones, on the 26th June, 1993, and after adjournments and hearing argument for the defendant he delivered the following judgment:
“I have carefully studied the evidence which was taken before the Tribunal and am convinced that the character of this case is such that by virtue of section 35 of the N.A.O. this Court cannot entertain the appeal in respect thereof. Mr. Milne for appellant has not shaken this conviction. In my view this is a dispute between the representatives of two native authorities as to the proper custody of a stool during the period when the stool is without an occupant and as such is triable by the State Council or the Paramount Chief’s Tribunal under section 34 of the N.A.O. If the defendant desires to appeal from the decision of the State Council, he should, in my view, make his appeal to the Governor. I therefore dismiss this appeal with costs to be taxed.”
On the 18th August, 1938, the defendant applied to the District Commissioner’s Court for conditional leave to appeal against that judgment, and this was granted on the 19th August, 1933. Final leave was granted on the 13th September, 1999. The appeal came before Michelin, J., sitting in the Divisional Court at Cape Coast win on the 12th December, 1933, when he made the following consent order:
“By consent of counsel on each side and it appearing from the record of appeal that counsel for the appellant had not concluded his arguments in support of his grounds of appeal from the judgment of the State Council before the District Commissioner delivered his judgment of the 12th August, 1933, in favour of the plaintiff-respondent it is hereby ordered that the appeal be remitted to Court below for rehearing when the Court below will have the opportunity of hearing all the arguments submitted in support of the grounds of appeal and the question of jurisdiction can be fully considered by the Court after hearing the arguments adduced on each side. The costs in the Court below and in the State Council and also in this Court to abide the result of the rehearing.
“Should the defendant-appellant be successful in the re-hearing, the costs in the Court assessed at the sum of £18 15s. and should the plaintiff-respondent be successful assessed by consent at the sum of £7 12s. 6d.
“The Court below to carry out.”
The defendant filed the following grounds of appeal on the 18th January, 1934:
“1. That the writ of summons discloses no cause of action.
“2. That the cause of action, if any, being one of deceit or fraudulent misrepresentation, the plaintiff to succeed must prove damage. That no damage was proved in the action.
“3. That the State Council (Court below) wrongly rejected relevant admissible evidence having regard to the issues raised in the suit.
“4. That the stool being the property of the defendant and his family, the plaintiff-respondent cannot succeed if even his contention is correct.
“5. That the action was collusive.
“6. That the judgment of the Court below is contrary to native law and custom.
“7. That the judgment should have been given for the defendant appellant.
“8. That judgment is against the weight of evidence.
“9. That the plaintiff’s action is not brought in a representative capacity, nor is the defendant sued in a representative capacity to enable the plaintiff to contend that this was a constitutional or political matter.”
The appeal was heard by the same District Commissioner, Mr. Norton Jones, on the 6th April, 1934, and on the 10th April, 1994, he delivered the following judgment:
“This is an appeal from a decision of the State Council of the Assin Attandaso State. It has been before this Court on a previous occasion and has been sent back by the Divisional Court to this Court for rehearing. The appeal presents many difficulties by reason of the fact that the nature and character of the case is not clearly disclosed in the writ of summons and the judgment of the State Council is directed to matters which cannot be found in the evidence. Counsel for the respondent has taken a preliminary objection to the hearing of the appeal by this Court on the grounds that the matters which formed the subject of inquiry before the State Council are of a political or constitutional character and are, in consequence of section 35 of the Native Administration Ordinance, outside the jurisdiction of this Court. The appellant on the other hand argues that irrespective of the extraneous matter appearing in the judgment the writ of summons discloses an ordinary action in tort of deceit and fraudulent misrepresentation and that this Court is bound by the writ.
“Now every statement of claim must state specifically the relief which the plaintiff claims either simply or in the alternative cf. Odgers on Pleading and Practice, 8th edition, page 212. There is however no claim for relief in the writ. The action was originally commenced in the Paramount Chief’s Tribunal but was transferred to the State Council as the case was considered to be one of great importance. Surely the case was thought to be of importance not because of any damage which might have been caused by an alleged fraudulent misrepresentation, but because it raised an issue as to the proper custody of a stool. After all, the plaintiff has himself suffered no harm by the removal of the stool, as if the stool is a State stool it properly belongs to the Omanhene and if it is a family stool it is the concern of the Abrutu family of which the plaintiff is not a member. The evidence of both the plaintiff and the defendant appears to me to be directed towards a declaration of the true character of the stool. The plaintiff asserts that it is within the power of the Omanhene to place a person on the Stool of Abease, whilst the defendant retorts that the Abease Stool was not created by the Big Stool i.e. the Paramount Stool and in consequence is presumably not subject to the orders of the Paramount Chief in matters relating to the appointment of a candidate thereto.
“The judgment of the State Council, whilst making pronouncements of matters which were not brought out in the evidence, clearly shows what was in the minds of the councillors. The appellant alleges that they misconceived the nature of this action. There might possibly be grounds for saying that from the writ of summons when viewed by itself an action of deceit might be inferred, but a study of the writ in conjunction with a general survey of the evidence and the judgment leads me to think that the Councillors were deliberating on a constitutional matter which concerned the position in the State of the Abease Stool. Having reached this conclusion, I am of the opinion that the objection taken by the respondent proves fatal to the hearing of appeal by this Court of a case of this character as section 35 of the Native Administration Ordinance has divested this Court of Jurisdiction in matters of a political and constitutional nature. I must therefore dismiss this appeal with costs assessed at £11 19s. 6d.”
On the 11th April, 1934, the defendant applied to the District Commissioner’s Court for conditional leave to appeal against that judgment and this was granted on the 17th April, 1984. Final leave to appeal was granted on the 18th May, 1934. The defendant filed the following grounds of appeal:
“1. That the writ of summons discloses no cause of action.
“2. That the District Commissioner misunderstood the section under which he decided the appeal as defendant-appellant (Turkson) was not an Odikro at the hearing of the case – vide Appeal Record and therefore section 36 does not embrace defendant-appellant.
“3. That the plaintiff’s action is not brought in a representative capacity, nor is the defendant sued in a representative capacity to entitle the plaintiff to contend that this was a constitutional or political matter.
“4. That the cause of action, if any, being one of deceit or fraudulent misrepresentation, the plaintiff-respondent to succeed must prove damage, that no damage was proved in the suit.
“5. That the State Council (Court below) wrongly rejected relevant admissible evidence having regard to the issues raised in the suit.
“6. That the stool being the property of the defendant-appellant and his family, the plaintiff-respondent cannot succeed if even his contention is correct.
“7. That the action was collusive.
“8. That the judgment of the Court below is contrary to native law and custom.
“9. That judgment should have been given for the defendant-appellant.
“10. That judgment is against the weight of evidence.
“11. That the Abease Stool (Etsi) is a private family stool and is not recognised as a State or Nkyidom Stool, vide N.A.O. of 1827, schedule 2.
“12. That the stool having been given to plaintiff for safe-keeping by defendant and the same having been received back on demand the question of the proper custody does not come in.”
The appeal came before Strother-Stewart, J., sitting in the Divisional Court at Cape Coast and on the 31st October, 1934, he gave the following judgment:-
“I do not think this case should be treated as one which touches the political or constitutional relations subsisting between chiefs under section 35 of the Native Administration Ordinance.
“The respondent in his writ complains that appellant by falsely using the name of Omanhene Nana Tsibu Darku IX succeeded in obtaining from him the possession of a certain stool. A lot of extraneous matter has been introduced into the case from beginning to end. According to the evidence adduced before the State Council who tried the case, the Omanhene, whose name was used, denies that he gave any authority to appellant to use his name to obtain possession of the stool, and appellant and his witnesses, on the other hand, deny that they did so use the name of the Omanhene. This, it seems to me, is the issue raised in this action and it does not in my opinion raise questions of a political or constitutional nature. I think, therefore, the District Commissioner who dismissed the appeal from the State Council should re-hear the appeal, and deal with it on its merits.”
On the appeal coming again before the same District Commissioner, Mr. Norton Jones, on the 20th March, 1985, he made the following order:
“This case has twice been before me and I have held the same view. I consider it will not be fair on the parties if I were to try this case again. I suggested to the Counsel on both sides and they agreed with me that an application should be made to His Lordship the Judge to appoint another District Commissioner to hear the appeal.
“I therefore adjourn this case sine die until I hear from His Lordship the Judge. But on the case coming before him again on the 29th June, 1985, he recorded:
“At the request of both Counsel I will hear this case de novo, but I must point out that in accordance with the direction of the Divisional Court it will be necessary for this case to be heard on the restricted issue of fraud.”
He began the re-hearing on the 3rd July, 1935, and after a hearing which lasted five days he gave the following judgment on the 17th July, 1935:
“This is an appeal from the State Council of Assin Attan daso. That the whole case has had a long and chequered career can be judged by the fact that it has been before this Court on two previous occasions, when it was held that the subject matter being of a political or constitutional character the Court had no jurisdiction to entertain the appeal. However, directions have been received from the Divisional Court, Cape Coast, that the appeal should be heard on the restricted issue of fraud. This Court has followed these directions accordingly and, at the request of Counsel for both parties, has thought it to be desirable to re-hear the case in whole. .
“The case originated in the Tribunal of the Paramount Chief and was later transferred to the State Council. The writ of summons reads as follows:
“Plaintiff sues defendant to show cause by defendant why defendant should falsely go to plaintiff at Amoaben with Omanbene’s (Tsibu Darku IX). name to take away from plaintiff the Stool of Abease given to plaintiff for safe-keeping by the Paramount Chief of Assin Attandaso in respect of which plaintiff swore the oath of Kwesida ne’ Oseman on defendant for which defendant failed to respond.”
“The following facts are in my view clearly proved:
“(a) The appellant Turkson is the principal elder of the Beretuo family of Abease.
“(b) The Beretuo family has a stool to which lands are Kingdon, attached.
“(c) The stool which is called the Beretuo Stool is also the Nkyidom Stool in the Assin Attandaso State.
(d) The stool was created by a Paramount Chief of the Assin Attandaso State for the Beretuo family, and it is the duty of the Beretuo family to recommend to the Paramount Chief a candidate to the Beretuo Stool for his approval.
“(e) There are two sections of the Beretuo family: the Beretuo section and the Sekyire section. From either of these sections a member may be chosen to sit on the Beretuo Stool.
“(f) Kofi Gyekyi was the last occupant of the Beretuo Stool. He was a member of the Sekyire section of the Beretuo family.
“(g) Upon the abdication of Kofi Gyekyi the then Adonten hene (Kweku Amoaten) ordered that the Beretuo Stool should be handed over to the Gyasehene for safe-keeping. The then Adontenhene gave these instructions, there being at that time no Paramount Chief sitting on the Paramount Stool. This demand was in accordance with native custom as the Beretuo Stool, being also the Nkyidom Stool, had formerly been kept with the Gyasi Stool at Amoaben, the village of the Gyasehene.
“(h) In accordance with the instructions of the then Adontenhene the Beretuo Stool was conveyed from Abease to Amoaben by Kweku Tsinkuran, a stool carrier to the Paramount Chief, and was handed over to the then Gyasehene, Kwamin Fosu, who is the plaintiff-respondent herein.
“(i) About four months afterwards – in the interval a Paramount Chief (Tsibu Darku IX) has been elected and installed at Fanti Yankumase-Turkson (the appellant) went to Amoaben and, in the name of the new Paramount Chief, Tsibu Darku IX, demanded from Kwamin Fosu (the respondent) the delivery of the Beretuo Stool.
“(j) Kwamin Fosu delivered to Turkson the Beretuo Stool by reason of the message which Turkson stated that he had brought from the Paramount Chief.
“(k) The Paramount Chief had not in truth and in fact given authority to Turkson to make use of his (the Paramount Chief’s) name, nor had he in truth and in fact instructed Turkson to go to Amoaben in order to take delivery of the Beretuo Stool from Kwamin Fosu. Turkson well knew that no such authority had been given to him and well knew that he would be able, only by a false representation that he had come in the name and with the authority of the Paramount Chief, to obtain possession of the Beretuo Stool. Kwamin Fosu acting upon the false representation made to him by Turkson in the manner in which Turk son had intended him so that, delivered the Beretuo Stool to Turkson.
“(m) As a result of the wicked fraud practised by Turkson on Kwamin Fosu, the latter has suffered financial damage – he states that he has spent £78 in the attempt to recover the Beretuo Stool – and much anguish of mind.’ The loss of the Beretuo Stool has also driven him to abdicate from his office of Gyasehene.
“It will be seen from perusal of Exhibits ‘A’, ‘D’ and ‘E2’ that the record of proceedings before the Tribunal in the case The Stool of the Beretuo Family per J. G. Turkson & Others of Abease v. Chief Kofi Gyekyi of Ābease appears to have been forged in material particulars to the prejudice of the defendant therein and to the advantage of Turkson, the plaintiff therein. The material particulars concern the Beretuo Stool. It is noted that in Exhibit ‘C’ a Tribunal clerk has been punished for the alleged forgery. Notwithstanding this conviction the Court will forward the documents to the police authorities.
“The Court has been unfavourably impressed by the demeanour of the appellant and his witnesses. It was notice able that in certain particulars the evidence of all the witnesses was glibly delivered, but that in other matters which should have been within their knowledge there were hesitancy and circumspection.
“To summarise:- The Court finds that the appellant Turkson wilfully made to the respondent Kwamin Fosu a statement which he (the appellant) knew to be false and with the intent that the respondent should act upon it; that the respondent did act in reliance upon the said false statement in the manner contemplated by the appellant and that the respondent did thereby suffer damage. The Court assess the damage at £100. The judgment of the State Council is varied, and judgment is entered for the plaintiff-respondent for £100 with costs to be taxed.”
On the 22nd July, 1935, the defendant applied to the District Commissioner’s Court for conditional leave to appeal against this judgment and on the 26th July, 1985, this was granted. On the 27th August, 1935, final leave was granted. The defendant filed the following grounds of appeal:-
“1. Because the District Commissioner was biased: he had expressed his bias to the Judge and asked for an order directing some other District Commissioner to hear the case, and had been obliged to proceed in spite of this, by the refusal of the Judge to direct some other District Commissioner to hear it; further the District Commissioner permitted the respondent and his witnesses to give impertinent and evasive replies to questions in cross examination asked on behalf of the appellant; and the District Commissioner refused to record answers given by those witnesses before the close of the respondent’s case.
2. Because the appeal was not completely heard, and the District Commissioner acted in contravention of the Judge’s order made when remitting the case; evidence having been taken on the restricted issue of fraud, the appellant should then have been heard upon his grounds of appeal and the rest of the appeal heard in accordance with law.
“3. Because the District Commissioner’s findings of fact (including native law and tradition) were not supported by any evidence upon which he could legally base such findings, the only independent evidence having been given by witnesses for the appellants, and the evidence of the respondent and his witnesses being, besides being new evidence as to facts not previously deposed to on the record of appeal, partisan evidence not corroborated by any independent evidence.
“4. Because there was no evidence of native custom or tradition acceptable in law in support of the respondent’s case.
“5. Because the Court below could not award damages, the same not having been asked for in the writ of summons, which, up to the time of closing of the plaintiff’s case, had not been amended; and because the evidence of the respondent as to pecuniary loss was not only uncorroborated and without particulars, but was not part of the respondent’s evidence given before the State Council.
“6. Because the Court below was wrong in proceeding with the case the moment it came to the decision that Exhibit ‘C’ was a forgery: and that the alleged native Tribunal proceedings in respect of the alleged forgery were void, the Court below ought to have then directed that the papers be trans mitted to the proper quarter for a prosecution, and should have adjourned the bearing of the appeal pending the hearing and determination of the prosecution for forgery.
“7. Because the judgment was contrary to the weight of the evidence.
“8. Because the judgment was contrary to native law.
“9. Because the judgment was contrary to natural justice and good conscience.
“10. Because the judgment was otherwise erroneous.
The appeal came before Barton, J., sitting in the Divisional Court at Cape Coast, who after hearing three days’ argument gave the following judgment:
This is an appeal from a judgment of the District Commissioner in an appeal from the State Council of Assin Attandaso. As stated by the Commissioner in his judgment the whole case has had a long and chequered career, the writ having been issued as far back as the 21st January, 1931.
“The Commissioner was directed to re-hear the appeal by an order of this Court given by Strother-Stewart, J., dated the 31st October, 1934, the learned Judge holding that what the plaintiff complained of in his writ was that the defendant by falsely using the name of the Omanhene Nana Tsibu Darku IX succeeded in obtaining from him the possession of a certain stool and that the case should not be treated as one which touched the political or constitutional relations subsisting between chiefs.
“When the case came before the Commissioner upon the above order, the Commissioner, at the request of Counsel on both sides, decided to take evidence and hear the case de novo. The Commissioner has given a decision which is based on a number of findings of fact, and a perusal of the record shows that these findings have in every case been supported by evidence; I am not prepared to hold that the Commissioner was wrong in these findings. I therefore hold that the grounds of appeal which were argued as to these findings must fail. The Commissioner awarded the plaintiff £100 damages, but it appears from the writ of summons that no damages were claimed; the writ, as in my experience is often the case in claims brought before native Tribunals, is very badly worded, but it may be construed to be a complaint by the plaintiff that the defendant obtained from him the possession of a stool by wrongful means as stated above. The Commissioner, although finding that the plaintiff had proved his case, made no order in regard to the stool which he held had been wrongfully taken from the plaintiff. The judgment of the Commissioner will be varied as follows: The award of £100 to the plaintiff is set aside and replaced by an order to defendant to return the stool to the plaintiff within fourteen days from present date; the order of the Commissioner awarding the plaintiff his costs of the re-hearing to stand. It is further ordered that each party will bear his own costs of this appeal.
“Court below to carry out.”
Against that judgment the defendant now appeals to this Court on the following grounds:
“1. Because the Divisional Court had no jurisdiction to order the return of the stool referred to in its judgment.
“2. Because the learned Judge gave judgment for what was not claimed.
“3. Because the learned Judge was wrong in his view of the correctness of the findings of fact of the District Commissioner’s Court.
“4. Because the judgment was otherwise erroneous,”
and gives the following particulars of Ground 4:
1. A serious crime, namely forgery of a Tribunal record for the benefit of the appellant (here and before the District Commissioner), having been disclosed it was incumbent upon the Court to postpone the hearing of this appeal until that crime had been dealt with or a nolle prosequi entered.
2. Even on the restricted issue of fraud the plaintiff should have been non-suited. I have set out in detail the various steps in these proceedings since the issue of the writ nearly six years ago with a view to drawing attention to two matters. The first is the desirability of drastic amendment in a judicial system which makes possible such a multiplicity of proceedings and the second is the desirability of closer control by rule or otherwise of the form of writs in native Tribunals.
As to the second, Smyly, C.J., said in the case of Ohene Kwesi Abuagyi II v. Ohene Amua Gyebu (F.C. Judgments 1920-21):
“Personally, I do not lay any stress on the form in which an action is brought before the native Tribunal so long as the issue involved is clear.”
I wish to emphasise the words “so long as the issue involved is clear,” and I would couple “relief claimed with issue involved.” I have seen many claims in a native Tribunal, and in a large percentage it would puzzle the ordinary person to say what exactly is the issue involved or the relief claimed. In many cases it doesn’t matter very much because all the parties and the Tribunal seem to think the same and the case is heard and determined on that basis. But every now and again there comes a case, like the present, where widely different views as to the meaning of the claim are taken and endless litigation results. Clarity in the nature of a claim before a native Tribunal is particularly important because it is necessary not only to enable a proper decision in the case to be given, but also to determine what Tribunal had jurisdiction to hear the case and in which direction an appeal lies.
In the present case, although the vagueness of the claim has led different Courts to take different views as to its meaning, I am of opinion that this Court should try to do substantial justice between the parties, if that is possible. There is no doubt that the State Council regarded this as a claim about the improper detention of a stool, and the claim is certainly susceptible of that interpretation. Further the question of improper detention or not raises the constitutional question of the position in the State of the Abease Stool.
Now section 38 of Chapter 111 provides that –
“Whenever it shall appear that any stool property is being improperly detained … it shall be lawful for the State Council … to order such … native to deliver up the stool property so detained.”
It is true that this matter originally came before the State Council by virtue of an irregular order of transfer, but this fact does not, in my opinion, deprive the council of jurisdiction to deal with it under the very wide wording of that section. I hold therefore that the State Council was properly seised of the matter and that the judgment given by it on the 30th April, 1992, was within its competence.
I am also of opinion that the District Commissioner, Mr. Norton Jones, was right when he decided that, since the councillors were deliberating on a constitutional matter which concerned the position in the State of the Abease Stool, section 35 of the Native Administration Ordinance had divested his Court of jurisdiction to hear the appeal. It follows that I disagree with the judgment of Strother Stewart, J., dated the 31st October, 1934, and that, in my view, all subsequent proceedings based on that judgment are a nullity for lack of jurisdiction.
I am of opinion that the judgment of the District Commissioner’s Court dated the 10th April, 1984, dismissing with costs the appeal from the State Council should be restored, and all subsequent judgments set aside. I consider that the respondent should be awarded the costs of all proceedings subsequent to that judgment of the 10th April, 1994.
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PETRIDES, C.J., GOLD COAST.
I concur.
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WEBBER, C. J., SIERRA LEONE.
I concur.
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The following Order was made: It is ordered that the judgment of the District Commissioner’s Court dated the 10th April, 1934, dismissing with costs the appeal from the State Council be restored and all subsequent judgments are set aside. The respondent is awarded the costs of all proceedings subsequent to the 10th April, 1934. The costs in this Court are assessed at £36 14s.; the costs in the other Courts are to be taxed.
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