Claim in
Native Tribunal for damages
owing to refusal to share in
moneys realised from stool land
disallowed-On appeal to Court of
Provincial Commissioner findings
of fact set aside and appeal
allowed.
Held: Such
findings should not have been
set aside, and appeal allowed;
in any case the judgment of the
Provincial Commissioner was
unsatisfactory in that he
neither assessed damages nor
referred case back to the trial
Court for such assessment.
There is no
need to set out the facts.
Dr. J. B. Danquah for
Appellants.
K.
A. Bossman for Respondent.
The following
joint judgment was delivered ~ .
.,--
KINGDON, C.J.,
NIGERIA, PETRIDES, C.J., GOLD
COAST AND WEBB, C.J., SIERRA
LEONE.
Plaintiff
sued the defendants before the
Tribunal of Akyem Abuakwa
claiming by her writ as
follows:-
" The
plaintiff for herself and on
behalf of her family " Claims
£25 damages from defendants for
refusing to give to " the
plaintiff shares in all monies
realised from Asuom Stool "lands
after the Ohene of Asuom had
deducted. his share " thereof."
The tribunal
gave a considered judgment,
covering seven pages of
typescript, dismissing 'the
claim with costs.
Plaintiff
appealed to the Court of the
Provincial Commissioner of the
Eastern Province, and that Court
after stating its reasons
concluded its judgment by
stating: -" The appeal must
therefore succeed with costs to
be taxed."
That judgment
is unsatisfactory because
although the Court of the
Provincial Commissioner allowed
the plaintiff's appeal it
neither awarded her damages nor
referred the case back to the
tribunal to assess damages.
There are other
objections to this judgment. The
Provincial Commissioner after
stating that the tribunal in its
judgment had stated " The
plaintiff has totally failed to
adduce any evidence to show
that her family are entitled
to a share as heirs to the Asuom
Stool" went on
" The plaintiff
did not claim this and a
constitutional "issue has been
entertained which never appeared
in the " claim.
" This Court
would be prepared to overlook this
from the " point of view that the
evidence concerning the existence
of " the Abakoma Stool was a
material fact to support the
claims, " and it would have been
all right if the tribunal had not
" mentioned it in its first
judgment but it would be wrong "
to let this judgment stand because
quite apart from the " question of
sharing moneys due to the stool it
precludes the " plaintiff from any
claim in a constitutional issue
that may " arise and which this
Court is not. interested in."
It. is clear
from the evidence of Emmanuel Kye,
the plaintiff's first witness, and
other evidence that the plaintiff
did allege that her family (as
well as the defendants) were stool
heirs of Asuom , If the plaintiffs
had established that fact and that
they had ever shared with the
members of the Asuom Stool family
any stool revenue, they would have
gone a long way to establish their
claim to a share of the monies
realised from Asuom Stool lands.
That being so it was the duty of
the tribunal to consider whether
the plaintiff had shown that she
and her family were entitled to a
share as heirs to the Asuom Stool
even if it did have the effect, as
to which we express no opinion, of
precluding the plaintiff from any
claim on a constitutional issue
that may arise as the Court of the
Commissioner of the Eastern
Province considered it did.
Counsel for
plaintiff did not dispute that it
was alleged as part of his case
that the defendants' family were
stool heirs of Asuom but contended
that the tribunal never considered
the main issue that the
plaintiff's family were joint
owners of the land with defendants
and therefore entitled to share
the rents. In our opinion
there is no substance in this
point. Plaintiff's claim was for a
share of Asuom Stool lands revenue
and the tribunal found that there
was no evidence to support that
claim. We find it impossible to
hold that the tribunal was wrong
in so finding having regard to
their other findings of fact with
which we see no reason to
disagree.
The appeal is
accordingly allowed. The judgment
of the Provincial Commissioner's
Court, including the order as to
costs, is set aside, and the
judgment of the Native Tribunal
restored. The appellants are
awarded costs in this Court
assessed at £19 6s. 0d. and in the
Provincial Commissioner's Court to
be taxed. |
