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ODIKRO DANSO ABIAM II
V.
OHENE BOAKYI TROMU II
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
1ST DAY OF MARCH, 1944
2PLR/1944/64 (WACA)
OTHER CITATION(S)
2PLR/1944/64 (WACA)
(1944) X WACA PP. 114 – 118
LEX (1944) – X WACA PP. 114 – 118
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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:
ODIKRO DANSO ABIAM II ON BEHALF OF HIMSELF AND THE SUBJECTS OF THE TAKYIMANTIA STOOL – Plaintiffs-Appellants-Appellants-Appellants
AND
OHENE BOAKYI TROMU II – Defendant-Respondent-Respondent-Respondent
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REPRESENTATION
K. A. Bossman — for Appellant
E. O. Asafu-Adjaye — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
NA
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PRACTICE AND PROCEDURE ISSUE(S)
ACTION:- Tribute – injunction – Amendment of writ – Committee of Privileges
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CASE SUMMARY
The Appellants claimed a declaration that they are not liable to pay tribute to the Respondent and an injunction to restrain the collection of such tribute. As the claim lay in the Court of first instance and in the Courts below a question of constitutional issue appeared; the writ was therefore amended to confine the issue to the matter of liability to tribute.
Originally the Appellant people were subordinate to the Etipinhene, and so “strangers” to the Respondent; but in 1896 by action of the Government they were placed under the Respondent and so ceased to be “strangers” liable to pay tribute as evidenced in the 1919agreement. But at a later date a Committee of Privileges restored the original situation and the appellant people reverted to their status of subordination to the Etipinhene.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
1. Sufficient reasons prevailed to allow the amendment of the writ before the Court of Appeal.
2. the later decision by the Committee of Privileges removing the appellant people from their position under the Respondent caused the former to revert to the status held prior to 1896 and thus become “strangers” liable to pay tribute.
Appeal dismissed.
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MAIN JUDGMENT
The judgment of the Court was delivered by Graham Paul, C.J. (Sierra Leone):
This suit was started in the Asantehene’s Court B, Kumasi, the Appellant being the Plaintiff and the Respondent the Defendant. The claim in the Writ of Summons was as follows:-
“The plaintiff claims that he and all the subjects of Tekyimantia stool are not entitled to pay any tribute to the defendant on behalf of his stool and therefore calls on the defendant to show cause why he demanding him and his subject that from henceforth every inhabitant of Tekyimantia stool subjects should pay a tribute of £2 7s. each whereas there are agreements to the knowledge of the defendant and made between the ancestors of both the plaintiff and the defendant by Messrs. Philbrick & Fell and confirmed by F. C. Fuller, Chief Commissioner, Ashanti, dated 15, 10, 14, 17th April, 1917, respectively and L. H. Wheatley, Ag. Commissioner, W.P.A. on the 11th February, 1919, purporting that no tribute was to be collected from any residents of Tekyimantia.
“2. The plaintiff further asks the Court in the meantime to restrain the defendant, his servants and/or agents from proceedings to collect any such tribute from plaintiff or any subjects of Tekyimantia stool till final hearing of the case to a close.”
The trial Court gave judgment in favour of the Respondent and from that judgment the Appellant appealed to the Asantehene’s “A” Court which, after hearing further evidence from the Appellant and the statement of the Respondent that he did not “desire to say anything besides what has been recorded by the Court below”, found that there was no substance in the Appellant’s appeal and dismissed it. The Appellant further appealed to the Chief Commissioner’s Court which after hearing further evidence dismissed the Appellant’s appeal. From that judgment the Appellant has appealed to this Court.
In this Court Respondent’s Counsel raised the question of the trial Court’s jurisdiction to entertain the claim as stated in the Writ, his point being that the claim raised on the face of it a constitutional issue which the trial Court had no jurisdiction to entertain. On this point being raised Appellant’s Counsel applied to amend the claim so as to seek only the following:
A declaration that Plaintiff and all his subjects are not liable to pay any tribute to Defendant on behalf of his Stool in respect of their occupation of that portion of Nkwanta land known as Takyimantia land.”
An application to amend the Writ of Summons at such a late stage would not of course be granted by this Court without very good reasons but in this case we think that there are such good reasons, namely:-
(1) that if the objection to the jurisdiction had been taken in the trial Court there would then have been an opportunity for the Appellant to apply to make this amendment.
(2) that, as always, we look not merely to the form of the Writ of Summons in Native Court proceedings but rather to the substance of the issues actually raised and tried in the suit, and that in the present case the issues raised and tried were those raised by the amendment now proposed.
We have therefore decided to allow the amendment sought; the Writ of Summons is amended accordingly, and that disposes of the objection to the jurisdiction of the trial Court, the issue being solely a question of whether or not tribute is payable in respect of the occupation of land, no constitutional question being raised.
Before dealing with the merits of the appeal on the judgments of the three lower Courts it will be as well to state shortly the main historical facts of the case about which there is no serious controversy. Prior to the British occupation the Takyimantia people were subject to the Etipinhene and through him subject to the Asantehene. Under the rearrangements made under the auspices of the British Government in 1896 the Takyimantia people were taken away from their allegiance to Etipinhene and placed under the Nkwantahene. Later, on the re-establishment of the Ashanti Confederacy, the Takyimantia people were taken from the Nkwantahene and put back again under the Etipinhene.
In 1919 a written agreement was made between the Nkwanta Chief and Elders of the one part and the Takyimantia Elders of the other part. The text of that agreement, which was put in evidence, is as follows:
“We the undersigned the Chief and elders of Nkwanta and the Chief and Elders of Tekyimantia agreed to and hereby bind ourselves to accept and keep the following conditions with reference to the collection and division of tribute on snails, kola, cocoa, etc.:
1. Both parties shall send representatives who shall meet and combine to collect the tribute.
2. The tribute shall be divided into three parts one-third to be given to the Chief of Tekyimantia and two-thirds to the Chief of Nkwanta.
3. The tribute to be collected from strangers and not from bona fide residents on Tekyimantia land.”
On the return of the Asantehene some years ago a “Committee of Privileges” was set up by the Government to deal with constitutional questions which might arise in connection with the restoration of the Ashanti Confederacy. No Report of that Committee dealing with the matters now in dispute was formally put in evidence but it appears to have been available in the Asantehene’s A Court and to have been read in whole or in part to that Court. We have not seen that Report but in our opinion it is not of direct importance to the determination of the claim as now amended, as the Committee was not a judicial tribunal whose decision would constitute res judicata on matters of this kind coming before a judicial tribunal.
The Appellant in all the lower Courts expressly, and very definitely, based his case entirely on the agreement which we have quoted, and the agreement therefore calls for careful consideration. To understand that agreement, and to define its meaning and effect, it is essential to bear in mind the relationship between the parties at its date, and the most important point in that connection is that at the date of the agreement the Takyimantia people were under the Nkwantahene. This land in question was undoubtedly Nkwantahene’s land at the date of the agreement, so that at that date the Takyimantia people, in any questions or agreements about this land, were not “strangers”. It was by the action of the British Government in putting them under the Nkwantahene that they had ceased to be “strangers” in regard to Nkwanta land. It follows that, not being “strangers” they were by the terms of the 1919 agreement and at its date, exempted from payment of tribute in respect of their occupation of that portion of Nkwanta land known as Takyimantia land,
The decision of the Committee of Privileges does not itself bind the Appellant as a judgment of a judicial tribunal about rights to land. If that idea were present, as it appears to have been in the minds of the members of the first two Courts to deal with the case it was wrong. All the Committee of Privileges could decide was the constitutional relations between the parties and upon these relations the parties themselves by their agreement made exemption from tribute to depend. In other words it was the parties by their agreement who made the decision of the Government through the Committee of Privileges as binding for practical purposes as if it bad really been res judicata as to tribute.
It is clear that if and when they should become “strangers” they were, by the terms of the Agreement, on which their whole case in the lower Courts was expressly based, no longer exempted from the payment of tribute. As has been pointed out they had by the action of the Government in 1896 ceased to be “strangers” to the Nkwantas but had become” strangers” to the Etipinhene. When later again by the action of the Government through the “Committee of Privileges” they were taken from the Nkwantahene and put back under the Etipinhene, they became “strangers” to the Nkwantahene just as they ceased to be “strangers” to the Etipinhene. Just as in 1919, by the 1896 action of the Government, they were within the express exemption of the agreement so now by the later action of the Government through the “Committee of Privileges” they have been taken out of that exemption.
In this Court Counsel for the Appellant, realising no doubt that difficulty about depending on the agreement, sought to go behind the agreement and to found on occupation prior to 1896 i.e. while they were “strangers” to the Nkwantahene. Nothing of this kind was suggested in the Courts below. In fact it was only quite incidentally, in a casual sentence of the Respondent’s evidence, that this occupation prior to 1896 was even mentioned in the trial Court. We are inclined to think that there must have been some good reason why in the trial Court the Appellant in his evidence never even mentioned the occupation prior to 1896, much less founded upon it. Possibly a clue to that good reason is to be found in the judgment of the trial Court which expressed the opinion that it was the Asantehene who in the olden days acquired this Takyimantia land from the Nkwantahene and made the Takyimantia people occupy it to act as his hunters.” If the Appellant in the trial Court had raised the question of the prior occupation it would possibly have been for the Asantehene to say what the terms of that occupation were but the Appellant apparently thought it better to confine his case, as in fact he did, to the agreement, made direct between the Nkwantas and the Takyimantias, to which the Asantehene was not a party. If the new case sought to be made out for the Appellant for the first time in this Court had been put forward in the trial Court there would doubtless have been available ample evidence to show the circumstances and the terms of the Asantehene’s hunters’ occupation so prior to 1896. As it is, there is no such evidence, and the lack of such evidence is due to the fact that the Appellant elected to rely entirely on the 1919 agreement and to draw a veil over any previous Graham occupation of the land. At this late stage the Appellant cannot Paul, ask us to guess at what is behind the veil, and to draw conclusions in his favour from our guesses. For these reasons we do not think it would be right or proper for us to consider in this appeal a case which was never by the Appellant put, or even suggested, to any of the three lower Courts.
We are therefore of opinion that the Appellant is not entitled to the declaration sought in his amended claim and the appeal is accordingly dismissed with costs assessed at £36 12s. 6d.
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