NYAN vs. EBBI [1965]DLHC1836

Date	1965-03-08
Suit No.
Citation No.	[1965]DLHC1836

DJABANOR J.

J. K. POLLEY (WITH HIM AMUA SAKYI) FOR THE PLAINTIFF.

T. AMIHERE MENSAH FOR THE DEFENDANT.

[1965]DLHC1836
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													<main id="main" class="content" style="min-height: 60rem" >NYAN <o:p></o:p>vs.<o:p></o:p>&nbsp;EBBI <o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p>[1965] GLR 133<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
8 MARCH 1965.<o:p></o:p>

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

J. K. POLLEY (WITH HIM AMUA SAKYI) FOR THE
PLAINTIFF.<o:p></o:p>

T. AMIHERE MENSAH 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 windowtext 1.5pt;
padding:0in 0in 0in 0in">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF DJABANOR J.<o:p></o:p>In this
case the plaintiff, for himself and as representing the stool of Adjaza, claims
from the defendant the sum of £G500 damages for trespass to six stool farms,
and perpetual injunction restraining the defendant, his agents, etc. from
interfering with the possession and control of the said farms. It is conceded
that the defendant was elected and installed as successor to the late chief of
Adjaza. But he has not been recognised by the minister as a chief. It appears
that on his installation these stool properties devolved upon him. The
plaintiff avers that the unrecognised chief (the defendant) has since been
destooled, and in spite of that he continues to enjoy the proceeds of the
farms. The defendant on his part admits that he has not yet been recognised by
the minister, but contends that he still is the chief and denies that he has
been destooled. He therefore contends that he is entitled to the farms. The
defendant was installed in 1962.<o:p></o:p><o:p>&nbsp;</o:p>In a very
forceful submission counsel for the defendant contended that the court’s
jurisdiction over this case is ousted by virtue of section 39 of the Courts
Act, 1960,1 because clearly this is a civil cause or matter, instituted for the
recovery of stool property. That section provides:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“39. (1)
Notwithstanding anything to the contrary contained in this or any other
enactment, the High and Circuit Courts shall not have jurisdiction to entertain
either as of first instance or on appeal any civil cause or matter instituted
for— <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(a) The
trial of any question relating to the election, installation, deposition or
abdication of any Chief whatsoever; <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(b) the
recovery or delivery of stool or skin property in connection with any such
election, installation, deposition or abdication.”<o:p></o:p>Counsel
in his submission referred to the plaintiff’s statement of claim, the
defendant’s statement of defence and the issues as filed, and contended that
the real issue is the recovery of the stool farms. The defendant’s claim is
that he is still chief, that he has not been destooled, and so he is entitled
to the property. The court must therefore of necessity decide whether or not
the defendant has been destooled.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff ‘s counsel countered this submission with an equally forceful
argument. He made the point that the claim was for trespass and an injunction
and not for a declaration of title because it is conceded that the farms are
for the stool. The plaintiff’s point is that the defendant should be restrained
from going to the farm because he is not a chief as defined by the Chieftaincy
Act, 1961,2 which states that a person is a chief only after he has been
recognised as such by the minister. The defendant has not been so recognised
since 1962. He is therefore an individual.<o:p></o:p><o:p>&nbsp;</o:p>I have
not been referred to any decided case on this point and I have been unable to
find any. But I have benefitted to a certain measure by a study of the case of
Ahenkora v. Ofe3 and also The Resident, Ibadan Province v. Lagunju.4 Guided by
these cases and from my own interpretation it seems to me that what I am to
decide is whether or not this action was instituted for the determination of
any of the matters prohibited by section 39 of the Courts Act, 1960. Is this
action instituted for the determination of any matter relating to or affecting
the election of a chief, or the installation of a chief, or the deposition
(destoolment) of a chief? Or for the recovery or delivery up of stool property
in connection with his election, installation, or destoolment? Let me start by
stating that in my view an action for an injunction to restrain a person from
exercising rights over landed property tantamounts to an action for the
delivery up or recovery of that property, because in connection with land it is
the usufruc</main>