Akosua Antwia V. Kofi Ahunu & Ors (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

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 225 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. Od. and in the Provincial Commissioner’s Court to be taxed.