Kwamin Fosu V. Turkson (1936)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim concerning a Stool—Form of writ in native Tribunal—Questions of relief claimed and issues involved—Multiplicity of proceedings—Writ issued 21st January, 1981—Continual proceedings until December, 1986—On 10th April, 1934, District Commissioner’s Court held Councillors were deliberating on a constitutional matter which concerned the position in the State of the Abease Stool—Overruled by Divisional Court on appealMany subsequent proceedings.

Held : Judgment of District Commissioner’s Court dated 10th April, 1934, dismissing the appeal from the State Council was correct. That judgment restored and all subsequent judgments set aside.

The facts of the case are fully set out in the judgment. W. E. G. Sekyi for the Appellant.

W. W. Brew for the Respondent.

The following judgment was delivered :-

KINGDON, C.J., NIGERIA.

In this case the plaintiff-respondent on the 21st January, 1981, sued out a writ in the native Tribunal of Fanti Yankumasi, Paramount Chief of Assin Attandaso State, against the defendant in these terms :-

” The plaintiff sues defendant to show cause by defendant why defendant should falsely go to plaintiff at Amoabeng with Omanhene’s (Tsibu Darku IX) name to take away from plaintiff the Stool of Abease given to plaintiff for safe-keeping by the Paramount Chief of Assin Attandaso in respect of which plaintiff swore the oath of Kwesida ne’ Oseman on defendant for which defendant failed to respond.”

On the 24th January, 1931, that Tribunal ” in view of the importance of the case ” transferred it under the provisions of section 91 (2) of the Native Administration Ordinance (Cap. 111) to the State Council of Assin Attandaso for hearing and determination.

Meantime on the 23rd January, 1931, the defendant had applied to the Court of the Provincial Commissioner, Cape Coast, for an order transferring the case to the District Commissioner’s Court, Cape Coast ; this application was refused on the 24th April, 1981. This defendant then on the 5th May applied to the State Council for leave to appeal to the Provincial Commissioner’s Court against the native Tribunal’s order of transfer to the State Council. Leave

was refused on the 12th May, 1931. Thereupon the defendant appealed to the Provincial Commissioner’s Court against the native Tribunal’s order of transfer. This was refused on the 28th July, 1981.

The case came on for hearing before the State Council on the 28th November, 1981, and after adjournments was heard on the 29th and 80th April, 1932. The State Council gave the following judgment :–

” This is an action brought before the Paramount Chief’s Tribunal of Fanti Yankumasie on the 21st day of January, 1931, but owing to the magnitude of the case it was transferred to the State Council Tribunal of Assin Attandasu under section 91 (2) of the Native Administration Ordinance. The defendant, J. G. Turkson, subsequently applied for transfer of the case to the Honourable Commissioner Central Province’s Court, but the application was refused and the case was re-transferred to the State Council Tribunal under section 91 (1) of the Native Administration Ordinance of 1927. The case was accordingly heard on the 29th and 30th day of April, 1932, by this Council.

” In this action the plaintiff, Kwamin Fosu, sworn the oath of Kwesida ne’ Siman on the defendant Turkson establishing the truth that the Stool of Abease was given to him (the plaintiff) for safe-keeping by the Paramount Chief of Assin Attandasu and not the defendant, J. G. Turkson, and that the said defendant took delivery of the stool from the plaintiff in the Omanhene’s name. The defendant failed to respond to the oath, and eventually a civil action was instituted by the plaintiff against the defendant.

” Touching the summary incidence involving the fate of the stool in dispute, was that, Gyachie, the former caretaker of the stool, having misappropriated the stool lands, was subsequently arraigned by the defendant Turkson before the Paramount Executive Arbitration (Oman), found guilty and accordingly deprived from the trust of that stool. The paramount executive body, that is, Sodofu, Ankobiafu and Opagyafu, together with the regent functioning in the capacity of Paramount Chief of Assin Attandasu, entrusted the Gyasihene of the State (plaintiff was then acting as regent of Assin Attandasu State) with the stool in dispute, and taken same to his village Amoabeng for safe-keeping.

” According to the defendant’s own evidence, it evidently exonerates both the Omanhene and his Oman as having no knowledge nor hands in his action so schemed to take away from the personal possession of plaintiff the Stool .of Abease in dispute.

” Whereas, safe in time of warfare engagement by the State with any neighbouring enemy or inter-tribal contest,

when removal and conveyance of stool and paraphernalia into another distant place for safe-keeping was practicable, the attitude taken by defendant Turkson in the act is barely open to higher punishable code according to the constitutional principles of the State in particular, and also serves no less an act of capital offence against good conscience and weight of native customary laws applied in the country.

” Recounting from the principles embodying the Native Administration Ordinance of 1927 in operation, the act perpetrated by the defendant in going to plaintiff at Amoabeng in the name of the Omanhene, took the stool from him, and conveyed same for safe-keeping still without a hint to the Omanhene nor his Oman, serves an index of his personal intentions to undermine and usurp the authority as well as an attempt to withdraw or transfer the natural allegiance of Abease Stool from the paramountcy of Assin Attandasu State, and this was openly verified in evidence of defendant. The falsely schemed evidence given by three of the defendant’s own witnesses was sufficient exposition of the whole business being treacherously designed by defendant. According to the evidence of the Honourable Nana Tsibu Darku IX, who was subpoenaed by the defendant, the oath was actually sworn by the plaintiff and that the defendant failed to respond. It also shows that the relative existence of the Stool of Abease was specially created by the Big Stool of Assin Attandasu State for the defendant’s grant-parents, dating back from the days of AttaPayin and others, purposely to dignify the natural status of their family house, in common recognition of their services and loyalty shown to the State.

” That the ranking line of the said Abease Stool is in dispute, as constitutionally made was subservient to the Kyidon ‘ wing under the State Gyasi section.

” The question of the ` remains ‘ of Etsi tribes having any scope of independence now in claim or grounds to attempt seceding from and within the radius of the Paramount Stool of Assin Attandasu State have no considerable bearing nor legitimate account to be advanced.

” The ultimate issue of the unanimous opinion of the members of the State Council therefore give judgment in favour of the plaintiff with costs to be taxed.

” The State Council order that the defendant should appear before the next sitting of the State Council on the 10th day of May, 1932 (next Wednesday), with the stool in dispute to enable making necessary amicable adjustment and conditionally to sign bond to keep peace and allegiance in compliance with the Native Administration Ordinance.”