AHENKORA II AND ANOTHER vs. KUMAH AND OTHERS [1963]DLHC1906

Date	1963-02-08
Suit No.
Citation No.	[1963]DLHC1906

APALOO J

OSEI (WITH HIM MENSAH) FOR THE PLAINTIFFS

OWUSU YAW FOR OWUSU FOR THE DEFENDANTS

[1963]DLHC1906
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AHENKORA II AND ANOTHER

[HIGH COURT, KUMASI]

[1963] 1 GLR 77

DATE: 8TH FEBRUARY, 1963.

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COUNSEL:&nbsp;&nbsp;

OSEI
(WITH HIM MENSAH) FOR THE PLAINTIFFS.

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APALOO J.

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&nbsp;

In this action the first plaintiff who is the present occupant of
the Asuboa stool, claims from the defendants various sums of money which he
alleges to be due to his stool as customary cocoa tribute. The second plaintiff
is the local council with jurisdiction over Asuboa and claims that it has been
delegated power by the Administrator of Stool Lands acting under the Ashanti
Stool Lands Act, 1958,1 to collect revenue on Asuboa stool lands and that it
was entitled to join this action to protect its interest. Its status has been
challenged but I shall deal with that aspect of the matter at a later stage.

Before I deal with the extensive and somewhat difficult points of
law which have been argued in this case, it is necessary to resolve the
disputed facts first. All the defendants have been sued as the elders of the
stool of Muramura. The seventh defendant is in fact the present Odikro of that
village. There is not a great deal of description of Muramura but it seems to
be in origin a small farming settlement. In course of time, it seems to have
grown into a fair sized village. Although there are said to be some strangers
living there, the evidence shows that by far the greater majority of its
citizens are Juabens whose ancestors settled there very late in the last
century for the purpose of farming. The original settlement was said to have
been made during the Asafu Adjaye war which was estimated to be in 1892. The
land on which the village was founded belongs to the Asuboa stool. Although it
was averred in paragraph 1 of the statement of defence that the land belonged
to the Juaben stool, that was not pressed at the trial. The evidence of the
defendants themselves proceeded on the footing that the land does not belong to
the Juaben stool of which they are admittedly subjects.

It is common ground that the original agreement which the stool of
Asuboa made with the defendants’ predecessors was that each person was to pay
by way of tribute one load of cocoa per season. Both the plaintiff and the
defendants agreed that that agreement was subsequently varied. What became the
varied agreement has been the subject of fierce controversy.

It is necessary at this stage to state that the first, second and
fifth defendants admit liability to the plaintiffs and no sort of issue was
joined between these defendants and the plaintiff stool. The other defendants
dispute liability and the long bitter battle which was waged in this case,
raged between them and the plaintiff stool. I shall for convenience refer to
them as the contesting defendants.

The plaintiff said the one load cocoa per person tribute was
varied in 1928, when all the Juaben citizens of Muramura agreed to pay a
collective tribute of £80 per annum. He said this sum was increased in 1948 to
£100. The plaintiff says all the defendants were present in the offices of the
Kumasi State Council when this agreement was confirmed and approved in 1951 by
Mr. John Darkwa who was the financial secretary of the Kumasi State Council.
The version of the contesting defendants is that during the reign of Asuboahene
by name Kwame Adu, he suggested to their ancestors that as they had been on the
land for a long time he would no longer regard them as strangers. They were in
future to be of the same status as his subjects and were to pay no further
tribute. Instead, say the contesting defendants, their ancestors were to
contribute like all other subjects of the Asuboa stool to the payment of stool
debts if and as they arise. They say their ancestors agreed to this and had on
the faith of it, paid various sums to the Asuboa stool to defray its debts.
They deny being present in the offices of Mr. Darkwa in about 1951, and say
they have at no time entered into any agreement to pay tribute of £100 per
annum to the plaintiff stool.

These two versions are wholly irreconcileable. I must determine
where the truth lies, bearing in mind that there is no burden on the contesting
defendants to prove what the plaintiff alleges. The plaintiff’s evidence that
at some time the elders of Muramura agreed to pay collective tribute of £80 is
supported by the written agreement which the plaintiff tendered in evidence
(exhibit A) and which was not objected to by counsel for the contesting
defendants. This exhibit shows that the Chief of Muramura agreed to pay £80 bulk
tribute. This agreement was entered into before the Omanhene of Bompata, by
name Yaw Kwabia, on the 4th July, 1928. The first defendant who struck me as a
perfectly honest and truthful witness and who at one time occupied the Muramura
stool, also said that when he came on the stool his subjects were paying a bulk
tribute of £80 per annum. Again, Nana Yaw Sarpong, the ex-Juabenhene, who
showed every sign of being an honest witness confirmed that at one time his
subjects at Muramura were paying a bulk tribute of £80 per annum. Indeed, it
was he who raised it to £100 to avoid possible prolonged litigation between his
subjects and the Asuboa stool. Nana Yaw Sarpong said to avoid the Asuboa stool
carrying out its threat of entering into separate agreement with individual
farmers, he suggested to the Asuboa stool tha</main>