Effuah Amissah V. Effuah Krabah (1935)

LawGlobal Hub Judgment Report – West African Court of Appeal

[Delivered by LORD MAUGHAM.1

The claim of the appellant in this case for herself and as representing the members of the family of Awooah Alookoo was in effect for a declaration that the members of the family of Awooah Alookoo are the owners of a number of specified lands and villages and of the lands and town of Dutch Seccondee; a town in the Western province of the Gold Coast colony, and for an account of all monies and profits received by the defendants on account of, or out of, the said lands, villages and town from the 1st January, 1918, and also for an order upon the defendants to deliver up a stool described in the statement of claim as ” the native state stool ” and certain paraphernalia in the possession or custody of the defendants. The defendants (thirty-two in number) included the—defendant Segu .Winwah II, the Ohene or chief of Dutch Seccondee, who was admittedly in actual possession of the state or town stool of Dutch Seccondee together with the paraphernalia thereof and in possession in a certain limited sense of the lands of Dutch Seccondee district, claimed by the defendants to be attached to the state stool. The other defendants Were Odikroes or headmen under the stool of Dutch

Seccondee or elders and councillors of that stool. Such _of Privy defendants as are Odikroes were respectively in immediate Council. possession of the named villages claimed by the plaintiffs all of 3_ird Mar., which villages are in Butch:. Seccondee district. The plaintiffs

named in the writ claimed to be acting for themselves and also _Eff_mth an behalf of the merely-ors of the family of Awooah Alookoo who Amissah is said to have founded Dutch Seccondee more than 200 yearsv.
ago. There were three other persons who joined in the action Effuah with Effnah Amisaah,= but-these- persona are now dead and Mat Krabah. Amissah was the only surviving appellant before their Lord- ships. Dutch Seccondee (or Sekondi) is now a town of some Lora importance situate in Ashanta, a sea coast state of the Gold ‘””giu””‘ Coast. The natives are Fantis and speak a dialect of the Fanti language. The land law in the Colony is based upon native

customs, and as pointed out in a judgment of this Board delivered by Sir Arthur Chanuell in the case of Kobina Angu v. Cutijoe Attah (Unreported : P.C. Appeal No. 78 of 1915), the material customs must be proved iu the first instance by calling witnesses acquainted with them until the particular customs have, by frequent proof in the Courts, become so notorious that the Courts take judicial notice of them. Their Lordships have not been informed of any customary law so established; and they may observe that it would be very convenient if the Courts in West Africa in suitable cases would rule as to the native customs of which they think it proper to take judicial notice specifying, of course, the tribes (or, aistriets) concerned and taking steps to see that these rulings are reported in_ a readily accessible form In the present case, however, it is common ground that it is part of the Fanti customary law that lands may be attached to the stool of an Ohene, or to the stool of a family; and no. doubt (as appears from other cases) there may be privately owned lauds. Further, a Fanti family consists, subject to immaterial exceptions, of persons lineally descended through females from a common ancestress. A stool is not only a chattel, but it also connotes an institution with a religious significanec. Certain paraphernalia or regalia, e.g., messenger sticks, state umbrellas and state drums go with the state stool and play an important part in a number of native ceremonies. The occupant of a stool is not regarded as the owner of the lamb attached to it, but as being in some sense a ^–trustee for the clan, tribe or family subject to the stool. He may be destooled, and if he is destooled, the lands and regalia will remain with the stool. The Ohene as occupant of a state stool and an Odikro as occupant of a subordinate stool have certain judicial and administrative powers. Some monies or profits accrue to the occupant of a stool, but in the present case their nature was left undefined. They seem to arise mainly in connection with sales or leases of stool lands, which take place in the case of a state or town stool with the consent of the Ohene, the elders and the councillors. The

evidence as to the consents necessary in the case of a family stool was left in some uncertainty. If the state stool incurs a debt all the subsidiary stools are bound to contribute their share in payment. If it is the debt of a family stool, only the family is liable. The distinction, if any, between a state stool and a town stool was not dealt with in the evidence. At the trial native witnesses for the defendants described the stool in question as ” the big stool,” or the “-town st’ool.” Nothing turner in this case on the name. So much was proved or admitted or was common ground in the present case. One other admitted fact ie of importance, namely, that the Ohene of. Dutch Seccondee district must be a member of the Abrahiam Abradsie family.

The trial took place before Dalton J. at a Divisional Court held at Seccondee as long ago as the year 1923. The learned Judge dismissed the action on two grounds, first, that the plaintiffs were estoppel by a judgment of Gough J. in 1909, which operated as res judicata, and secondly, that on the evidence they had failed to prove their case. There was an appeal to the Supreme Court of the Gold Coast Colony, Eastern Province; and at the Full Court held at Accra on the 6th June, 1929 the appeal was dismissed on the ground of rea judicator. Final leave to appeal to His Majesty in Council was granted on the 20th June, 1931, but owing it is said to delays on the part of the appellant the appeal was not heard before their Lordships till the month of January, 1936. Without attempting to apportion the blame for these extraordinary delays, their Lordships must express their regret that the action was not long ago and finally disposed of.

At the trial before the learned Judge the plaintiffs’ case was that there were two separate and distinct stools, the stool of Awooah Alookoo and the stool of Dutch Seccondee, and they alleged that the family of Awooah Alookoo was a branch of a larger family called the Abrahiam Abradzie family. The lands they claimed—practically all the lands in the Dutch Seccondee district which had not become private property—were they asserted attached to the stool of Awooah Alookoo and not to the state or town stool of Dutch Seccondee, of which the defendant, Segu Winwah II, was the occupant. They also contended that this person was not the lawful Ohene, as he was not a blood member of the Abrahiam Abradzie family but the descendant of a domestic of that. house.The two questions of pedigree occasioned no difficulty. The learned Judge held that the alleged two families were one and the same, both being descended from Awooah Alookoo, the founder of the family, and that there was no evidence that the Abradzie family was a wider group than the family of • Awooah Alookoo. He also held it to be clearly proved that Segu Winwah II and his predecessor on the stool, Anneesie II, were blood descendants of

the Abrams Abradsie family. Evidence as to the election and Privy installation^– of Sega. Wilma* II as Ohene of Dutch Seccondee Council. was given -ty the production of a statement dated^. the =1.2th ³rd ^Mar January, 1922, under Section 1 of the Chief Ordinance, MK ^1936.

signed by the =Secretary for Native Affairs.

Effuah

There remained the question whether the lands^– in question Aminsah were attached to the town or state stool of that place or to . thev.
family stool, if any, of AWooah Alookoo. The first defence was Effuah that the appellant and other plaintils  were estopped from alleging Krabah• that the lands were attached to the family stool by a judgment of

Goughdated the 18th October, 1909, and were estopped by lAird,
proceedings before District Commissioner White in 1905, from ” _'”¹¹“‘” disputing^– the title of the Ohene to the stool of Dutch Seccondee

and the lands attached to it. Dalton J. acceded to the view that the judgment of (lough J. effected an estoppel. On the appeal to the Pull :Court the same view prevailed. The appellant has contended before their Lordships that there was in the circumstances no re* judicata. This therefore ie the first point to be considered.

The decision of Gough J. which was dated the 18th October, 1909, was given in three actions which by consent were heard. together. In the first action the plaintiffs, three persons liweku Enoo, Robins, Tsia Effaah and T. E. Dobson claiming to be members of the Abrahiam Abradzie family, sought on behalf of that family against the defendants, who included Anneal n the Ohene then occupying the state stool of Dutch Seccondee and

certain headmen, a declaration that they were entitled to a o

rne-
third shat of the rents and profits of the lands of the .stool and

they claimed an account. The two other actions were brought against the defendant Kama alone in respect of two small pieces of land which were also claimed to be lands attached to the Abrahiam Ahradzie stool. The plaintiffs contended that the lands attached or supposed to be attached to the stool of Dutch Seccondee were the property of the Abrahiam Abradsie family and that by the native law the said family were entitled to one third of the revennes arising_ from the leasing or sale of the stool lands and accordingly that they were entitled to call upon the Ohene and his counsellors for an account- of the said revenues. They alleged that they: as plaintiffs were members of the Abrahiam Abradsie family and were authorised by the family to bring the actions. The defendants on the other hand contended, as the respondents have contended on the present appeal, that the lands attached to the stool of Dutch Seccondee were not the property .of the Abrahiam Abradsie family and that the stool of Dutch Seccondee was a town stool, not a family stool. They further contended that the plaintiffs did not represent the Abrahiam. Abradsie family and. were not authorised by the family to bring the actions. It should be added that

there were no pleadings in the actions and theme’:have

Cc’uncil-taken the issues which were nvolvetl from the:fit of
3rd Mar., Gough J. It will be noted that the questionerinvelved, though

1936.not identical, were in some respects similar to -the^– queotionA

 Effnahinvolved in the action now the sul)ject of appeal. The tUve

A_mi_smhactions were dismissed. The lands in question were held to be

v.attached to the town stool of Dutch Seccondee. The alleged

Effuahnative custom was not proved. The land occupied by Kama

Krabah.was held to be attached to the ‘town stool. On the other hand

apart from the lands held by Kuma there was, no finding as to

Lordwhat lands were attached to the town stool and what lands to

M^angham. the family stool. The claim purported to be made on behalf of the Abrahiam. Abradsie family and not on behalf of the Awooah Alookoo family, but as above stated this is a distinction without a difference. One of the original plaintiffs in the. present proceedings liobina Tsia Eftsh was also a plaintiff in the proceedings before Gough J. It is, however, unnecessary_ to consider the effect which the judgment in the original action would have had either as a judgment in rem or as a judgment inter partes if it had been properly brought on behalf of the Abrahiam A.bradzie family, because that question was clearly put in issue, and Gough J. in his judgment stated that he was not satisfied that the claims asserted in the name of the three plaintiffs were genuinely pressed by the Abrahiam Abradsie family collectively, or that the family had authorised the three plaintiffs to bring the actions. This point seems to have escaped the notice of Dalton J. and of the Full Court. In these circumstances it seems to their Lordships that it is impossible to hold as a matter of res judicator that the present members of the Awooah Alookoo or Abrahiam Abradzie family are estopped from asserting the claim which they have now made. Their Lordships do not doubt that an action by or on behalf of a family may result in a res ludicata (see Lingandowda v. Basangowda L.R. 54 Ind. App. 122): but such an action, if it is to bind absent or future members of the family, must be so constituted according to the local rules of procedure or by a representation. order or in some other way that all such •members can be regarded as represented before the Court.

On appeal to the Full Court the learned Judges agreed with the trial Judge on the question of estoppel and on that ground dismissed the appeal. They stated however that although this decision made it unnecessary to go into the evidence it was not to be supposed that they did not agree with the findings of the Court below on the facts.

It therefore becomes the duty of their Lordships to consider whether the further decision of Dalton J. On the questions of fact which he carefully considered and dealt with is correct.