SARPONG vs. ANTWI [1971]DLCA2161

Date	1971-07-19
Suit No.
Citation No.	[1971]DLCA2161

SIRIBOE J.S.C

SOWAH JA

ARCHER J.A.

DUA-SAKYI FOR THE APPELLANT.

S .K. AMOFA FOR THE RESPONDENT.

[1971]DLCA2161
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													<main id="main" class="content" style="min-height: 60rem" >SARPONG <o:p></o:p>vs. <o:p></o:p>ANTWI <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1971] 2 GLR 378<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:
19 JULY 1971.<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;
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DUA-SAKYI FOR THE APPELLANT.<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;
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SIRIBOE J.S.C., SOWAH AND ARCHER JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SIRIBOE J.S.C.<o:p></o:p>Siriboe
J.S.C. delivered the judgment of the court. The plaintiff-respondent (hereafter
referred to for short as “the respondent”) claiming to be the head of the
Nyanor family of Asokore in the New Juaben Traditional Area, sued on behalf of
himself and the family to recover from the defendant-appellant (hereafter
referred to as “the appellant”), certain properties said to belong to the
Nyanor family stool, the occupant of which the appellant had been for a period
of some 31 years. The ground for this claim and the other relief sought, that
is, damages for unlawful detention, was that the appellant was declared
destooled on the 5 March 1967, by the respondent and some members of the family
after the appellant had refused to appear before them, to answer charges they
had preferred and served on him for his destoolment. In spite of his destoolment,
the appellant, as contended by the respondent, had refused to hand over the
properties even though a successor had been installed in his place.<o:p></o:p><o:p>&nbsp;</o:p>The
properties in question were listed as follows: one black stool, three stools
known in Akan as asipim, one umbrella also known in Akan as mpompon kyiriye,
six white stools called assese-gya, one double-barrelled gun, one
single-barrelled gun and eighteen cocoa farms. Not only did he dispute
ownership of the properties some of which he claimed were procured by him
personally, but the respondent’s capacity as head of family, and his right and
that of all those who allegedly joined in the purported destoolment exercise,
were also challenged on the grounds that they, not being the kingmakers, had no
customary power to enstool or destool an occupant of the Nyanor stool. Thus,
the issues raised between the parties for determination were, whether or not
the destoolment of the appellant had been validly carried out in accordance
with custom, and whether or not the properties claimed were wholly owned by the
Nyanor stool. On those two main issues, the learned circuit judge (his honour
judge Coussey, as he then was) found for the respondent, and awarded him
N¢120.00 damages for unlawful detention with costs of N¢100.00. From that
judgment, the appellant appealed to this court on a number of grounds filed on
his behalf, one of which being that: “the whole trial is a nullity for want of
jurisdiction.” It was certainly not one of the points dealt with before the trial
court, but that, however, did not prevent the appellant from relying on it
here, as it is well settled with no known authority to the contrary, that the
question of jurisdiction can be raised or taken at any stage of the proceedings
even before the appellate court.<o:p></o:p><o:p>&nbsp;</o:p>After
hearing briefly Mr. Dua-Sakyi for the appellant on that ground which was the
first and only one argued by him, we decided to call upon Mr. Amofa to justify
the forum chosen by the respondent. In his argument, learned counsel contended
that the trial court had jurisdiction to hear the case, because the issues
raised did not concern a claim for recovery of stool properties of the type of
chief contemplated by the Chieftaincy Act, 1961 (Act 81), s. 1. That although
the occupant of the Nyanor stool is a chief, he is not subservient to any stool
in the New Juaben Traditional Area. The present claim, counsel further
submitted, relates to the properties of a family stool as distinct from a town
stool, and was consequently triable by the circuit court. In support of the
distinction sought to be drawn, both the learned circuit judge and respondent’s
counsel based themselves on the case of Ghambra v. Ewea (1891) Sar.F.L.R. 63.<o:p></o:p><o:p>&nbsp;</o:p>It
appears that they sought to draw that distinction without taking into account
changes in legislation that have taken place between the year 1891 and the
present time. In this regard, it is necessary to examine some of the provisions
governing stools, the enstoolment and destoolment of the occupants, and claims
made for recovery of properties attached thereto.<o:p></o:p><o:p>&nbsp;</o:p>