Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ on line 101 ABABIO v. TUTU | GhanaLegal - Resources for the legal brains


  • appeal
  • 1962-06-25
  • 1 GLR 489-495
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Practice and procedure?-Parties?-Stool occupant served with writ of summons and entered formal appearance?-Whether action ceases to be before court showed stool occupant cease to hold office?-Application of Supreme [High] Court (Civil Procedure) Rules, 1954, Order 16, r. 36.Corporations?-Stool as a corporation sole?-Abdication or death of stool occupant whilst action before court?-Duty of elders of the stool.Practice and procedure?-Application for adjournment for substitution of defendant?-Application refused following objection by plaintiff?-Whether on appeal plaintiff?-appellant can rely on ensuing irregularity.Evidence?-Gazette Notice?-Prima facie proof of fact notified?-Rebuttal?-Supreme [High] Court (Civil Procedure) Rules, 1954, Order 37, r. 55.


In this appeal from a judgment of the High court, Kumasi, disallowing the plaintiff?- appellants claim for damages for trespass to land, it was argued that, (1) the judgment was against the weight of evidence, and (2) the learned trial judge had erred in giving judgment for the defendant as there was no defendant before the court. Counsel for the plaintiff-appellant relied on the following extract from the record of proceedings:"On Wednesday, 11th January, 1961, before Apaloo, J.Part - Heard ?- Resumed from 1- 11-60 p. 99.Amoaten for plaintiff.Lutterodt for defendant.Lutterodt: I understand Chief of Assachere has abdicated and no one occupying stool. I ask for short adjournment to make a substitution.Amoaten: I must point out this case started long ago. It is most unfortunate. I am for plaintiff and suggest some witnesses be taken.Court: This writ was issued since 1937 and has had a most unfortunate career. It was part-heard from 1-11-60 and fixed for two days. I am not prepared to give opportunity for the hearing of this suit to be prolonged further, especially in view of the fact that if I accede to this application now, this suit may not be heard this year. The application for adjournment is refused and I rule that hearing should proceed."Hearing of the appeal was adjourned to enable counsel for the defendant respondent, Nana Osei Tutu, to produce evidence as to his client's alleged abdication. At the resumed hearing, leave was granted for Nana Osei Tutu to go into the witness-box, where he testified that, despite a Gazette Notice to the contrary, he had never abdicated but had continued in office, and was served, in his capacity as Assacherehene, with the plaintiff-appellant's notice of this appeal.


APPEAL from a judgment of Apalloo, J. delivered in the High Court, Kumasi, on the 20th January, 1961, unreported, in an action for damages for trespass to land.


Adumua-Bossman, J.S.C. delivered the judgment of the court. This appeal is against a judgment dated the 20th January, 1961, of the High Court, Kumasi constituted by Apaloo, J., whereby he disallowed the plaintiff-appellant's claim for damages for trespass in an area of land alleged to be Ahuren stool land, and gave judgment in favour of the defendant ?-respondent.

The parties are adjoining landowners, and the action raised for determination, firstly, the issue as to which of two conflicting boundary lines shown by each of them respectively (as indicated in plan prepared for the trial of the action and marked exhibit A) and claimed to be the common boundary demarcated sometime in 1901 by a body of customary arbitrators between their respective contiguous stool lands, is the true and correct boundary which the said arbitrators decided on, and established or settled between them. The action also raised the consequential issue as to the ownership of the intermediate area of land between the said two boundary lines claimed respectively by the parties.

The learned trial judge after hearing all the evidence and sifting the same carefully, proceeded to express reliance on certain crucial portions thereof put forward on behalf of the defendant-respondent, and after further expressing some cogent and weighty reasons, concluded by accepting the boundary claimed by the defendant-respondent in preference to that claimed by the plaintiff-appellant. In respect of that [p.491] decision, after a careful study of the evidence adduced on behalf of each party, we have formed the opinion that the learned judge's preference for the boundary claimed by the defendant-respondent is amply justified by the evidence on record, and by the learned judge's impressive evaluation of the whole evidence in the case and his convincing reasoning and deductions there from.

In this appeal, effort has been made by learned counsel for the plaintiff-appellant to impugn the learned trial judge's decision on the ground that it is against the weight of the evidence. Counsel's arguments in this connection, however, have been quite unconvincing, and, as already indicated, we find the learned judge's decision amply warranted.

Counsel however urged and pressed another ground of challenge against the judgment and insisted that the learned judge erred in deciding the case in favour of the defendant-respondent, alleging that there was no defendant before the trial court. He referred to page 50 of the record where the following appears:

"On Wednesday, 11th January, 1961, before Apaloo, J.

Part - Heard ?- Resumed from 1st November, 1960 p. 99.

Amoaten for plaintiff.

Lutterodt for defendant.

Lutterodt:?- I understand Chief of Assachere has abdicated and no one occupying stool. I ask for short adjournment to make a substitution.

Amoaten:?- I must point out this case started long ago. It is most unfortunate. I am for plaintiff and suggest some witnesses be taken.

Court:?- This writ was issued since 1937 and has had a most unfortunate career. It was part-heard from 1st November, 1960 and fixed for two days. I am not prepared to give opportunity for the hearing of this suit to be prolonged further, especially in view of the fact that if I accede to this application now, this suit may not be heard this year. The application for adjournment is refused and I rule that hearing should proceed."

Before proceeding to deal with the contention, it should first be pointed out that counsel?'s statement that there was no defendant before the court is not, strictly speaking, accurate. The legal position when the occupant of a stool is sued was clearly explained in the case of Quarm v. Yankah II,1 by Deane, C.J. as follows:

"the conception of the Stool that is and has always been accepted in the Courts of this Colony is that it is an entity which never dies, a corporation sole like the Crown, and that while the occupants of the Stool may come and go, the Stool goes on for ever. When, therefore, the respondent is stool since he is the sued as representing the present occupant, he is not sued as the successor of the previous holder, but only as the person for the time being representing something that has never changed; he is, in fact, the agent through whom the Stool acts at present, while the former chief was the agent through whom it formerly acted."

From the foregoing explanations it follows that when the duly recognised occupant of the stool for the time being is sued as representing the stool and he is served with the writ of summons and enters formal appearance or causes the same to be done for him so that, or whereby, the stool comes to be properly and legally before the court, if thereafter he (the stool occupant should cease to hold his office, the position which arises is that the recognised representative of the stool ceases to be before the court, but not that the legal entity, which is the stool, also ceases to be before the court. It then becomes the responsibility of the elders of the [p.492] stool to take steps to appoint another representative and get him substituted for the representative who has ceased to be before the court as the Rules of Court provide for the trial of an action to proceed in the absence of a party in certain eventualities.

As to the trial of an action proceeding in the absence of the party, the provisions material and relevant to our instant case are those of Order 16, rule 36 that: ?"If, when a trial is called on, the plaintiff appears and the defendant does not appear, then the plaintiff may prove his claim, so far as the burden of proof lies upon him.?" It seem clear, therefore, that the plaintiff-appellant was perfectly entitled to insist on the case proceeding as, from the court notes (reproduced supra) it appears that he did, and in those circumstances it seem difficult to see how, having insisted on exercising and having been permitted to exercise his undoubted right of prosecuting his claim in the absence of the defendant or any representative of the said defendant, assuming that in fact and in truth the defendant and/or his duly recognised representative were absent, he can now be permitted to complain against a situation which he himself requested the court to disregard. In the case of Nana Gyarku III v. Joseph Brew Another 2 determined in the Privy Council, in which appeal proceedings took place in the absence of a stool occupant because he was in fact not alive but dead at the date of the said proceedings and no one had been substituted for him, and it was contended that the proceedings were null and void, Lord Keith delivering the judgment of the Board, observed as follows:

?"The appellant?'s attack was centered largely on the order made ex parte on the 27th July, 1945. It was said that this was a nullity because the plaintiff was dead . . . Their Lordships would observe that at no stage of the proceedings before the native appeal court was any point made that the plaintiff had died . . . The deceased plaintiff, it would appear, sued not as an individual, but as head of a family claiming interest in the land in question.?"

That was a case in which the successor of the representative of a stool in whose absence proceedings took place complained and the complaint was held to be groundless. A fortiori in this case where the complaint comes from the representative of the stool who is the plaintiff and was present throughout the proceedings or trial and was under no disadvantage whatsoever at anytime, it seems to us that even if the allegations in the complaint were true, the complaint nevertheless should be dismissed as of no merit or substance. As pointed out by Lyndhurst L.C. in St. Victor v. Devereux3 ?"it is a fixed rule of this Court and Courts of Common Law that where an irregularity has been committed and where the opposite party knows of the irregularity, he should come in the first instance to avail himself of it, and not allow the other party to proceed to incur expense. It is not reasonable afterwards to allow the party to complain of that irregularity of which, if he had availed himself in the first instance, all that expense would have been rendered unnecessary.?"

Were it true, therefore, that the defendant-respondent, Nana Osei Tutu, had abdicated by the time the action came up for trial and that without any person having been substituted for him the trial proceeded [p.493] to a conclusion, it seems to us that it should not be open to the plaintiff appellant who objected to an adjournment for substitution and requested the trial to proceed and thereafter made no objection to the non-substitution of another representative of the defendant stool, but was content to let the trial proceed to a conclusion as though there had been no abdication, now to complain that there was an abdication and no substitution, and so the proceedings should be declared null and void.

It remains, however, to consider learned counsel's contention in the light of whether or not the defendant-respondent abdicated sometime before the commencement of the trial of the action. As to this question, when counsel drew our attention to the notes appearing at page 50 of the record (reproduced supra), as Mr. Lutterodt who represented the defendant-respondent at the trial was not appearing in the appeal, we enquired from Mr. Akufo-Addo, leading counsel for the defendant respondent, whether he would like to say anything about the statement concerning his client's alleged abdication appearing on record. Mr. Akufo-Addo thereupon stated that: "It is not correct that the defendant abdicated during the hearing, or at any material time up to judgment. As a matter of fact, the chief threatened to abdicate, but was prevented from doing so, and he is still the Chief of Assachere". Upon this statement by Mr. Akufo-Addo we ruled that: "It is essential to remove any doubt whether the defendant ceased to be chief of Assachere at the material time, consequently this appeal will be adjourned for counsel for the appellant to adduce proof, if any, in support of his contention". The further hearing of the appeal was therefore accordingly adjourned.

At the resumed hearing after a week's adjournment, counsel for the plaintiff-appellant produced Local Government Bulletin, No. 24 of the 16th June, 1961, at page 207 whereof appeared as item 20 the notification that: "Nana Osei Adu, Assekyerehene ?- abdicated 9-1-61". It is admitted that "Osei Adu" is another name of the defendant-respondent. In spite of the Gazette Notice however, counsel for the defendant-respondent maintained that it was an inaccurate notice and claimed to be permitted to adduce evidence to controvert it. We referred to Order 37, rule 55 of the Supreme [High] Court (Civil Procedure) Rules which provides that:

"All Proclamations . . . nominations, appointments, and other official communications of the Government, appearing in any such Gazette, may be proved by the production of such Gazette and shall be prima facie proof of any fact of a public nature which they were intended to notify"

and being satisfied that the Gazette Notice to which our attention was called by counsel for the plaintiff-appellant was only prima facie proof of the fact notified, gave leave to counsel for the defendant-respondent to lead such evidence as was available to him towards rebutting the fact stated in the Gazette Notice. We were fortified in our decision in this respect by the views expressed by the old Full Court in the case of Ewia v. Erziah 4 where it was held that:

"The production of the Gazette containing the notice of the confirmation and installation of Blay IV, as Omanhene of Eastern Appolonia, although prima facie evidence of such confirmation and installation of, by reason of the provisions of Ord. 6, r. 11, was not conclusive evidence to justify the Court in dismissing the Suit. In our opinion therefore the Suit should be remitted to the Court below for rehearing." [p.494]

Upon leave being granted, Mr. Akufo-Addo put the defendant - respondent Osei Tutu in the witness-box, and he testified that he wrote a letter dated the 4th January, 1961 (admitted as exhibit S.C. 1) asking permission to abdicate and for the elders to arrange and take over the stool paraphernalia, but a day or two thereafter he and his elders were summoned to Kumasi by the Asantehene who put the matter of his proposed abdication to the elders. The latter, however, refused to permit him to abdicate and requested him to continue in office until the conclusion of this case then pending for trial in the High Court. As a result he did not abdicate but has continued in office up to date?-and was served, in his capacity as Assacherehene with the plaintiff-appellant's notice of this appeal. He was cross-examined, but in no way discredited in respect of the main assertions in his evidence. We thereupon indicated to counsel for the plaintiff-appellant that the burden of proof as to whether or not the defendant-respondent abdicated was upon him, and that in view of the defendant-respondent's positive assertion that he did not abdicate, unless the appellant had some other more conclusive and convincing evidence to prove that the defendant-respondent ceased to be the Assacherehene, the presumption was in the defendant-respondent's favour that he has at all material times remained Assacherehene. Counsel for the plaintiff-appellant, however, had no further evidence then available to adduce, and the arguments of counsel on the appeal closed. It falls therefore to determine what position is disclosed by the evidence placed before us as to the alleged abdication of the defendant-respondent. As to this we have no hesitation in holding that the evidence direct as well as circumstantial, convincingly establishes the position as stated by Mr. Akufo-Addo. In this connection it appears necessary to turn to the occurrences on the day when Mr. Lutterodt stated that he understood that his client had abdicated. It should be observed that counsel did not make a categorical and positive assertion that his client had abdicated, but only that he "understood" he had abdicated. However, after the judge had ruled that hearing should proceed, it is noteworthy that Mr. Lufterodt did not retire on the ground that his client having truly abdicated the said client ceased to be before the court and therefore he, (counsel) had no further part to play in the proceedings. On the contrary, he remained in the case and cross-examined all witnesses who thereafter testified on behalf of the plaintiff-appellant up to the close of the plaintiff's case. Thereafter he called and examined one Solomon Adarkwa, linguist of the Assachere stool who testified on behalf of the stool and four witnesses after him, and at the conclusion of the evidence addressed the court on behalf of the defendant whose name was then on record. Still more noteworthy and significant, in our view, is the fact that counsel for the plaintiff also, who was present throughout the trial, took no objection to the trial as being in any way defective or irregular because the defendant on record had abdicated and thereby ceased to be a defendant before the court. On the contrary, he undoubtedly accepted the defendant on record, Assacherehene Osei Tutu, as being before the court, and the proceedings as being in every respect perfectly regular from beginning to end.

Then just fifteen days after the judgment on the 20th January, 1961, i.e. on the 4th February, 1961, counsel on his behalf filed notice of appeal to initiate this appeal. It seems to us that the acceptance and/or acknowledgement of the defendant on record by the plaintiff and his counsel as being still the defacto occupant and representative of the Assachere stool became glaringly conspicuous. Indeed, at that stage, it appears to us that the acknowledgement of the defendant on record as being indisputably [p.495] and without a shadow of doubt the occupant and representative of the Assachere stool, was conclusively testified by two striking circumstances: firstly, that the plaintiff and his counsel did not make any application for any order of substitution whereby to introduce another person in place of the defendant on record for the purposes of the appeal proceedings; and secondly, that the notice of appeal expressly specified in the paragraph provided for "person directly affected by the appeal", that that person was Nana Osei Tutu, Assacherehene. In these circumstances we are satisfied that both parties and their counsel knew full well and accepted the position that counsel Mr. Lutterodt's statement to the effect that he understood the defendant had abdicated was no more than a mere report of a rumour by which he sought to secure an adjournment, as the learned judge appears to have regarded and treated it, and that, in fact and in truth, the defendant on record never abdicated but remained the occupant and representative of the Assachere stool at all material times up to date hereof. At any rate it seems inconceivable that if in truth and in fact the defendant had at the material time actually abdicated and his stool became vacant the situation would not be unknown to both parties, their followers and counsel, and that knowing it, no step would have been taken by one party or the other to obtain a formal order of substitution of the person or office-holder acting in place of the defendant. Another difficulty or question which arises if the statement of the position as stated by counsel for the appellant be accepted, is when did the abdication end and the defendant-respondent become restored to his stool to make him the proper person to be served, as in fact he was, with the notice of this appeal. Or, if the Gazette Notice be accurate, where is the Gazette Notice of the defendant-respondent's restoration to the stool whereby he became qualified to receive service of the notice of this appeal? The circumstantial evidence appears therefore, in our view, to be conclusive that the defendant-respondent did not abdicate.

The plaintiff-appellant?'s complaint against the proceedings of the trial court is therefore not established, and it follows that his appeal fails, and is hereby dismissed.


Appeal dismissed.

Plaintiff / Appellant

R.S. Blay with him N. Y. B. Adade

Defendant / Respondent

E. Akufo-Addo with him Prempeh


(1) Quarm v. Yankah II (1930) 1 W.A.C.A. 80

(2) Nana Gyarku III v. Joseph Brew, Privy Council, Appeal No. 5/53, November 20, 1956, unreported

(3) St. Victor v. Devereux (1845) 14 L.J. Ch. 244

(4) Ewia v. Erziah (1927) F.C. 2629, 280

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