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BUKURUWA STOOL v. KUMAWU STOOL


  • New
  • 1962-05-14
  • HIGH COURT
  • 1 GLR 353- 357
  • Print

OLLENNU, J.


Summary

Customary law?-Stool property?-Persons entitled to sue and be sued in respect of stool property?-Supreme [High] Court (Civil Procedure) Rules, 1954, Order 16, r.8 (b).

Headnotes

Nana Kwame Baadu II, chief of Bukuruwa, representing the Bukuruwa stool sued Nana Otuo Achampong I representing the Kumawu stool, for declaration of title to a piece of land in Kwahu. The defendant pleaded, inter alia, that the plaintiff is estopped per rem judicatam by virtue of a judgment of the Land Court, Kumasi, dated the 23rd February, 1959, in the case Nana Otuo Achampong I, Kumawuhene, for and on behalf of the Kumawu stool v. Nana Yaa Sakaa, Bukuruwahema for and on behalf of Bukuruwa stool, and two others. The said suit was for a declaration of title to the same piece of land as in the present suit. It was shown however that at the time the 1959 suit was instituted the Bukuruwa stool was vacant; that although the queen-mother was served with all the process in that suit she was destooled before the suit could be heard; the suit was in the circumstances undefended; and that a new Bukuruwa chief was not enstooled until the 7th September, 1959.

Judgement

RULING on a submission of estoppel per rem judicatam.

In this case the plaintiff, the Ohene of Bukuruwa, as representing the stool of Bukuruwa claims against the defendant, the Ohene of Kumawu, as representing the stool of Kumawu, a declaration of title to two pieces of land situate in Kwahu, and an order for injunction. The defendant also, on behalf of his stool, counterclaims against the plaintiff?'s stool declaration of title to and an order for injunction in respect of the same parcels of land, described as one piece of land.

The defendant's stool pleaded, among other things, that the dispute between the two stools is res judicata by reason of a judgment delivered on the 23rd February, 1959, by the Land Court of the then Ashanti Judicial Division of the Supreme Court of Ghana, Kumasi, in a suit entitled Nana Otuo Achampong I, Kumawuhene, for and on behalf of the Kumawu Stool v. Nana Yaa Sakaa, Bukuruwahema, for and on behalf of Bukuruwa Stool and two others.1 This issue as to whether the dispute is res judicata has been tried as a preliminary issue.

There is no question that the subject-matter of this suit is identical with the subject-matter of the suit pleaded; nor is it in dispute that the issues in the two suits are the same, or that the Kumawu stool, the plaintiff in the former suit is the defendant in the present suit. It is not in dispute either that the former suit purported to have been taken against the Bukuruwa stool. The only issue is whether the judgment obtained by the Kumawu stool in that suit is binding upon the Bukuruwa stool. It has been proved that the writ of summons, pleadings and motion papers in that other suit were duly served upon Nana Yaa Sakaa.

Now the Bukuruwa stool was vacant from 1953 to 1959; the plaintiff, the present Bukuruwahene was enstooled on the 7th September, 1959. Sometime in 1955, the Gyasehene of Bukuruwa, P.W. 1, jointly with the Krontihene and Nana Yaa Sakaa, then queenmother, executed a deed of mortgage on the lands in dispute in favour of one Kwabena Foli to secure a loan which the said Kwabena Foli gave to the Bukuruwa stool.

It was submitted by counsel for the Kumawu stool that Nana Yaa Sakaa, as a traditional elder of the Bukuruwa stool could be appointed to represent the stool, and that the fact that she joined two other traditional elders, the Gyasehene and the Krontihene, to execute a mortgage on behalf of the stool proves that she had such authority to represent the stool. In support of that submission counsel cited Amah v. Kaifio,2 Ofuman Stool v. Nchiraa and Branam Stools,3 and Ofori Atta II and Ors. v. Boateng.4

Amah v. Kaifio restated the well-known principle of customary law that in the absence of a substantive head of a family, the oldest member of the family, or failing him, any other elder of the family who has been authorised by the family to take care of the family property [p.355] or in other respects to act as the head of the family would be presumed to have the family's authority to litigate the family's title to property. In that case it was proved that the family to which the plaintiff Amah belonged had been without a substantive head for a long time, that upon appointment by the family Amah had, during all that time, been administering the family property, letting portions of it to tenants and collecting rents. Alleging that the defendant Kaifio was a tenant and that she had failed to pay rents, Amah sued her for recovery of arrears of rent and possession of rooms she occupied on the family premises. It was held that in these peculiar circumstances he must be presumed to have been authorised by the family to litigate the family's title to the property.

Ofuman Stool v. Nchiraa and Branam Stools was a case between three stools. The case started in a native court. The occupant of the Ofuman stool instituted an action against the Nchiraa stool and the Branam stool, and the occupant of each of those stools was served with the writ of summons. At the trial of the suit, each of the three stools was represented by a person, not a traditional elder, appointed by the occupant of the stool under a power of attorney. It was held by the West African Court of Appeal, that for the purposes of litigation, only persons belonging to a limited class of traditional elders of the stool including a linguist, who are natural representatives of a stool, may be appointed by the stool to represent the stool in litigation, and that the class of such office holders of the stool will not be extended save where particular local custom permitting such extension is proved. It was therefore held that since the attorneys so appointed by the three stools were not members of that permitted class, and as no local custom was proved to vary the rule, they were not competent to represent the stools.

The case of Ofori Atta II and Ors. v. Boateng laid down a similar principle. The plaintiffs in that case, the Omanhene of Akim Abuakwa, and the Ohene of Asafo Akyem, occupants of stools, instituted an action against an ex-occupant of the stool of the second plaintiff; they each caused their linguist to represent them at the trial. It was held that the linguists came within the class of traditional elders who can be appointed by the council of the stool to represent the stool in a litigation.

The ratio decidendi in those two cases Ofuman Stool v. Nchiraa and Branam Stools, and Ofori Atta II and Ors. v. Boateng is, that where the occupant of the stool has sued on behalf of the stool or has been sued on behalf of the stool and served with the writ of summons, the stool, i.e. the council of the stool in any such case can appoint an elder to represent the stool at the trial of the suit, but the person they so appoint must be a traditional elder belonging to the limited class of traditional representatives.

The principle of law as to who may sue and be sued on behalf of a family is set out clearly in Kwan v. Nyieni and Anor.5 and applies mutatis mutandis to a stool. The general principle is that only the occupant of the stool or the head of the family can sue or be sued in respect of stool or family property. When a stool is vacant the regent or a person appointed by the council of the stool may sue or be sued. Other exceptions are set out in Kwan v. Nyieni and Anor. To give effect to that principle of [p.356] the customary law, Order 16, rule 8 (b) of the Supreme [High] Court (Civil Procedure) Rules, 1954, provides that:

"(b) The head of a family in accordance with custom, and the occupant of a Stool (or where the Stool is vacant, the Regent or Caretaker of such Stool) may sue and be sued on behalf of or as representing such Family or Stool. "

It follows that where a stool is vacant, a plaintiff who sues a person as representing that stool takes upon himself the onus of proving that the person he sues as representing the stool is the regent or the caretaker of the stool, otherwise any judgment he obtains against that defendant cannot bind the stool. This is particularly so if the party sued fails to appear and to bring elders of the stool to prove that he is such regent or caretaker of the stool. Generally stated, the principle is that where a person is sued in a representative capacity, and he either failed to appear, or appears and denies that he has authority to represent the family, the stool or the body on behalf of whom he is sued, the plaintiff cannot succeed against the family or stool or body unless he proves satisfactorily that the defendant is the duly authorised representative of the stool, the family or that body of persons: see Keelson v. Mensah.6

It appears from the writ of summons, the pleadings, and the motion papers and the judgment of the former suit, that the Kumawu stool never even alleged that Nana Yaa Sakaa was a regent or caretaker of the Bukuruwa stool, and of course, they made no effort to prove that she was such regent or caretaker, or that not being a regent, or caretaker, she had been specially authorised to defend the suit on behalf of the Bukuruwa stool. The mere fact that an elder of a stool belongs to the class of traditional elders who could be appointed to represent the stool does not mean that such an elder has a general authority to sue or be sued on behalf of the stool, and it does not justify a plaintiff to choose that elder and sue him for and on behalf of the stool. It is the stool who should elect, appoint and authorise a particular elder of the class of natural representatives to represent the stool when the stool wants to sue or when the stool is properly sued and served with a writ of summons. It is not for an outsider who wishes to litigate with the stool to decide who should represent the stool.

Here it should be pointed out that the submission of counsel that by causing Nana Yaa Sakaa to execute a deed of mortgage jointly with the Gyasehene and the Krontihene on behalf of the stool, the stool should be deemed to have constituted Nana Yaa Sakaa a representative with authority to litigate the stool's title to the land mortgaged, has not much force in it. If the stool thought it wise that as many as three traditional office holders should represent them to execute the mortgage, can it be said that by their act in insisting upon as many as three persons to represent them in that transaction, they intended that any one of these three should be competent separately to bind the stool? I do not think so. If the Kumawu stool had sued all the three elders together who executed the mortgage on behalf of the Bukuruwa stool, there could have been some force in that argument, but not otherwise.

To hold that when a stool or headship of a family is vacant, a person who claims title to property adverse to that of a stool or family could sue just any elder of the stool or family as representative of the stool or family, and that a judgment he obtains in default of appearance of the [p.357] particular representative of his election would bind the stool or the family is to lay down a most dangerous principle which will jeopardise the interest of all stools and families in property. It would mean that in such a case if the representative of the plaintiff's choice fails to appear either in collusion with the plaintiff, or because he knows he has been wrongly sued, the stool or family would lose their valuable property. A judgment obtained in that way is of no force and effect whatsoever; it is not binding on the person so sued individually because he was not sued in his personal and individual capacity, and it is not binding on the stool or family either because the person served with the writ has no authority, to represent the stool or family.

The defendant has failed to prove that Nana Yaa Sakaa was regent or caretaker of the Bukuruwa stool on the 23rd February, 1959, the date on which the judgment pleaded was delivered or at any other time; he has also failed to prove that Nana Yaa Sakaa ever had authority to litigate the Bukuruwa stool's title to the land in dispute or any land. On the contrary, there is positive evidence that by the custom of Bukuruwa, only one of two traditional office holders can be appointed regent or caretaker of the Bukuruwa stool when the stool is vacant, and those persons are the Gyasehene or the Krontihene, and further that during the interregnum of 1953 to 1959, the Gyasehene P.W.1 was the duly authorised person who acted for the stool. There is the further uncontradicted evidence that in any event Nana Yaa Sakaa was not Bukuruwahema on the 23rd February, 1959, the date when the judgment relied upon by the defence was delivered.

For the reasons given above I hold that the judgment delivered by the Land Court, Kumasi on the 23rd February, 1959, is of no force and effect as against the Bukuruwa stool, and is not binding on the said stool. I rule that the suit is not res judicata. I order that the trial should proceed on the merits. Costs to be costs in the cause.

Decision

<P>Submission overruled.</P>

Plaintiff / Appellant

Twum-Barima

Defendant / Respondent

Joe Reindorf (with him Asumadu Sakyi)

Referals

(1) Amah v. Kaifio [1959] G.L.R. 23

(2) Ofuman Stool v. Nchiraa and Branam Stools (1957) 2 W.A.L.R. 229, W.A.C.A.

(3) Ofori Atta II & Ors. v. Boateng (1957) 3 W.A.L.R. 38

(4) Kwan v. Nyieni & Anor. [1959] G.L.R. 67, C.A.

(5) Keelson v. Mensah (1957) 2 W.A.L.R. 271

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