HOME  JUDGEMENT OF THE COURT OF APPEAL

JUDGMENT

ESSILFIE-BONDZIE, J. A:

On the 3rd March, 1997 the Plaintiff/Respondent (who will hereinafter be referred to as the plaintiff) sued the Defendant/Appellants (hereinafter referred to as the defendants) in the High Court Nkawkaw for reliefs quoted hereunder.

(a) A declaration of right title and ownership to all that piece or parcel of land known as PLOT NO. 86 with building thereon known as Nkawkaw Ahenfie and recovery of possession of same.

(b) Damages for trespass thereon.

(c) Exhumation of the body of Nana Bonsu Nyame (deceased) Ex-Odikro of Nkawkaw.

(d) An order of injunction restraining the defendants, their fellows and followers from going onto the land or interfering therewith for the purpose of performing any customary functions and/or rites thereon or therein.

In the statement of claim which accompanied the writ of summons the plaintiff described the land in dispute in paragraph 3 thereof as follows.

“(3) The disputed land, situate at sector 1B Block ‘D’ in Nkawkaw bounded on the North by Plot No. 87, on the South by a road and on West by a road, and with a building or buildings thereon is/are on Obomeng Stool Land and is now registered in the Land Registry as 262/1997 and RE. 170/97” (The emphasis is mine)

The plaintiff further alleged that the building was put up by his predecessor Nana Yaw Mensah (deceased) who died in 1948.  He said that Nana Yaw Mensah his predecessor put up the said building in the 1920's when Nkawkaw was a very small village, of the statement of claim the plaintiff pleaded that "The defendants were the erstwhile elders of

Nana Bonsu Nyame (deceased) and Ex-Odikro or headman of Nkawkaw and reside at various places in Nkawkaw, also pleaded that sometime in December, 1996, Odikro Bonsu Nyame died and his elders informed him of the fact but before he could arrange the necessary customary matters the defendants had against all custom buried him in the disputed land hence his claim for the exhumation of the body from the disputed land. The plaintiff has also averred that his stool required the disputed property urgently for customary purposes but the defendants who were squatters, and trespassers thereon have refused or neglected to vacate the land despite notice of demand.

On the 15th March, 1997 the defendants filed a motion to dismiss and strike out the Action, after they had entered a conditional appearance, for want or lack of jurisdiction. Their claim can be found in paragraph 6 of their affidavit in support filed on the 25th March, 1997. It reads:

“That we have been adviced by our counsel and do verily believe the same to be true that the action against us in form and in substance, is a cause or matter affecting chieftaincy over which this honourable Court has no jurisdiction whatsoever.”

On the 9th May 1997 the learned trial judge heard arguments from counsel for both parties and dismissed the defendants motion. In the concluding part of the Ruling the trial judge stated.

“The defendants/applicants have not shown or brought or failed enough material to satisfy the court that the property in dispute is in the course or process relating to the nomination, election, appointment or installation of Chief or the destoolment of any chief as pertains under section 66 of the Chieftaincy Act. (Act.370) of 1971.”

The defendants have challenged the Ruling of the High Court on one ground namely:

"The Honourable trial judge erred in law in holding that the matter before him was not a cause or matter affecting Chieftaincy."

An examination of the proceedings at the High Court and the arguments in the written submissions of both counsel for the plaintiff and the defendants reveals that the appeal is premised upon two issues namely:

(1) Whether the plaintiff’s action brought or instituted in his capacity as the Obomenghene on behalf of the stool of Obomeng amount to a “cause or matter affecting chieftaincy.”

(2) Whether or not the plaintiff’s claim of title to and recovery of possession of stool property makes the action a cause or matter affecting chieftaincy."

It is now settled that inspite of the provisions of Article 140(1) of the Fourth Republic Constitution 1992 which confers wide jurisdiction on the High Court, its powers have been circumscribed in the cases of:

(1) The Republic vrs: High Court Denu, Ex-parte, Togbe Lugo Avadali 14 (Supreme Court Civil Motion No.15/93 delivered on 14 December, 1993) and (2) The Republic vrs: High Court, Koforidua Ex-parte: Nana Amankwa Bonsu Nyame and another (Civil Motion No. 15/94) delivered by the Supreme Court on the 20th December, 1994 by a majority who held that the High Court did not have jurisdiction in any "cause or matter affecting Chieftaincy.”

The interpretation of article 140(1) of the Constitution is adopted and condified by Section 57 of the Court Act.1993 (Act.459).  Section 57 of the Courts Act.1993 provides:

“Subject to the provisions of the Constitution, the Court of Appeal, the High Court. Regional Tribunal, a Circuit and Community Tribunal shall not have jurisdiction to entertain either at first instance or on appeal any cause or matter affecting Chieftaincy.”

“Cases or matter affecting Chieftaincy" has been defined and interpreted under Section 66 of the Chieftaincy Act.1971, Act 370.  It reads: “66.  In this Act.—

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  . . . . . .

"Cause or matter affecting Chieftaincy" means any cause, matter, question or dispute relating to any of the following:—

(a) the nomination, election, appointment or installation of any person to be nominated, elected, appointed or installed as a Chief".

(b)  the destoolment and abdication of any Chief.

(c)  the right of any person to take part in the nomination, election, appointment or installation of any person as a Chief or in the destoolment of any chief.

(d)  the recovery or delivery of stool property in conjection with any such nomination, election, appointment, installation, destoolment or abdication.

(e) the Constitutional relations, under customary law between Chiefs".

The relevant subsection as far as this case is concerned is subsection (d) which provides that “Cause or matter affecting, Chieftaincy” includes or means

(f) the recovery or delivery of stool property in connection with any such nomination, election, appointment, installations, destoolment or abduction  (the emphasis is mine)

It is argued in the written submission of counsel for the defendants that since the plaintiff signed in his capacity as the Chief of Obomeng, in respect, of stool property and sued the defendant in their capacity as former elders of the late Odikro of Nkawkaw the action was "a cause or matter affecting chieftaincy" and that the High Court lacked jurisdiction to hear it.

It must be observed that a stool like a corporate body can own property and under customary law the occupant of the stool can sue to protect or preserve a stool property.

See (Second Edition) of OLLENNU's PRINCIPLES OF CUSTOMARY LAND LAW IN GHANA page 141, I hold that the plaintiff had capacity to institute the action herein.  Consequently where an occupant of a stool seeks to recover or seeks the delivery up of a stool property which said recovery or delivery is not in connection with any such nomination, election, appointment, installation destoolment or abducation the High Court has  jurisdiction to entertain the matter.

In this case it is clear from the record that the plaintiff’s claim endorsed on the Writ of Summons was for a declaration of title and ownership of a land or piece or pacel of land known as Plot No. 86 with building thereon. In his statement of claim the plaintiff provided his root of title and averred that the land is now registered in the land, Registry as 262/1997 and R.S.170/71.

In paragraph 11 of the statement of claim the plaintiff also pleaded that his stool required the disputed property urgently for customary purposes but the defendants who are mere squatters and the trespassers thereon have refused to vacate the land in dispute, despite notice of demand. It is evident therefore that the plaintiff had not sued the defendant in respect of their stool or any stool regalia. The plaintiff as an occupant of the Obomeng stool brought the action to preserve a house which he claimed belonged to his stool.

The defendants were described as erstwhile elders of Nana Bonsu Nyame (deceased) an ex-Odikro or headman of Nkawkaw.  It seems that although they did not dispute the fact that they were elders of the late Odikro of Nkawkaw they claimed to be Chiefs.  Now whether they are chiefs or not was not relevant to the determination of the matter before the Court.

Since they are holding onto a stool property, any chief who feels that his right of ownership of possession to the said property is being unlawfully interferred with can bring an action in the High Court to assert his right if he is so advised.  Consequently, it is my view that, since there was no question of nomination, election, appointment, installation or abdication in connection with which the Obomeng stool was seeking to recover its property from the defendants, the plaintiff not only had capacity to sue but also chose the right forum when he instituted the action in the High Court.

It is my judgment that the learned judge of the Court below was right when he held that the matter was not “a case or matter affecting chieftaincy” within the meaning of section 66 of the Chieftaincy Act. 1971.  For this reason we dismiss the appeal and order that the case be remitted to the High Court Nkawkaw to be tried on its merits.

A. ESSILFIE-BONDZIE

JUSTICE OF APPEAL

BENIN, J. A.:

I agree.

JUSTICE OF APPEAL

TWUMASI, J. A.:

I also agree.

P. K. TWUMASI

JUSTICE OF APPEAL.

COUNSEL

MR. NTIAMOAH FOR APPELLANTS.

MR. OBENG-MENU JNR. FOR THE RESPONDENTS.