BUKURUWA STOOL vs. KUMAWU STOOL [1962]DLHC1401

Date	1962-05-14
Suit No.
Citation No.	[1962]DLHC1401

OLLENNU J.

TWUM-BARIMA FOR THE PLAINTIFF.

JOE REINDORF (WITH HIM ASUMADU SAKYI) FOR THE DEFENDANT.

[1962]DLHC1401
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">BUKURUWA STOOL<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">&nbsp;vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">KUMAWU STOOL <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1962] 1 GLR 353<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 14TH MAY, 1962.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

TWUM-BARIMA
FOR THE PLAINTIFF.<o:p></o:p>

JOE
REINDORF (WITH HIM ASUMADU SAKYI) FOR THE DEFENDANT.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
OLLENNU J.<o:p></o:p>In this case the plaintiff, the Ohene of Bukuruwa, as representing
the stool of Bukuruwa claims against the defendant, the Ohene of Kumawu, as
representing the stool of Kumawu, a declaration of title to two pieces of land
situate in Kwahu, and an order for injunction. The defendant also, on behalf of
his stool, counterclaims against the plaintiff’s stool declaration of title to
and an order for injunction in respect of the same parcels of land, described
as one piece of land.<o:p></o:p><o:p>&nbsp;</o:p>The defendant’s stool pleaded, among other things, that the
dispute between the two stools is res judicata by reason of a judgment
delivered on the 23rd February, 1959, by the Land Court of the then Ashanti
Judicial Division of the Supreme Court of Ghana, Kumasi, in a suit entitled
Nana Otuo Achampong I, Kumawuhene, for and on behalf of the Kumawu Stool v.
Nana Yaa Sakaa, Bukuruwahema, for and on behalf of Bukuruwa Stool and two
others.1(1) This issue as to whether the dispute is res judicata has been tried
as a preliminary issue.<o:p></o:p><o:p>&nbsp;</o:p>There is no question that the subject-matter of this suit is
identical with the subject-matter of the suit pleaded; nor is it in dispute
that the issues in the two suits are the same, or that the Kumawu stool, the
plaintiff in the former suit is the defendant in the present suit. It is not in
dispute either that the former suit purported to have been taken against the
Bukuruwa stool. The only issue is whether the judgment obtained by the Kumawu
stool in that suit is binding upon the Bukuruwa stool. It has been proved that
the writ of summons, pleadings and motion papers in that other suit were duly
served upon Nana Yaa Sakaa.<o:p></o:p>Now the Bukuruwa stool was vacant from 1953 to 1959; the
plaintiff, the present Bukuruwahene was enstooled on the 7th September, 1959.
Sometime in 1955, the Gyasehene of Bukuruwa, P.W. 1, jointly with the
Krontihene and Nana Yaa Sakaa, then queenmother, executed a deed of mortgage on
the lands in dispute in favour of one Kwabena Foli to secure a loan which the
said Kwabena Foli gave to the Bukuruwa stool.<o:p></o:p><o:p>&nbsp;</o:p>It was submitted by counsel for the Kumawu stool that Nana Yaa
Sakaa, as a traditional elder of the Bukuruwa stool could be appointed to
represent the stool, and that the fact that she joined two other traditional
elders, the Gyasehene and the Krontihene, to execute a mortgage on behalf of
the stool proves that she had such authority to represent the stool. In support
of that submission counsel cited Amah v. Kaifio,2(2) Ofuman Stool v. Nchiraa
and Branam Stools,3(3) and Ofori Atta II and Ors. v. Boateng.4(4) Amah v.
Kaifio restated the well-known principle of customary law that in the absence
of a substantive head of a family, the oldest member of the family, or failing
him, any other elder of the family who has been authorised by the family to
take care of the family property or in other respects to act as the head of the
family would be presumed to have the family’s authority to litigate the
family’s title to property. In that case it was proved that the family to which
the plaintiff Amah belonged had been without a substantive head for a long
time, that upon appointment by the family Amah had, during all that time, been
administering the family property, letting portions of it to tenants and
collecting rents. Alleging that the defendant Kaifio was a tenant and that she
had failed to pay rents, Amah sued her for recovery of arrears of rent and
possession of rooms she occupied on the family premises. It was held that in
these peculiar circumstances he must be presumed to have been authorised by the
family to litigate the family’s title to the property.<o:p></o:p><o:p>&nbsp;</o:p>Ofuman Stool v. Nchiraa and Branam Stools was a case between three
stools. The case started in a native court. T</main>