REPUBLIC vs. KWADWO II [1991]DLCA2310

Date	1991-01-17
Suit No.
Citation No.	[1991]DLCA2310

AMPIAH JA

OFORI-BOATENG JA

ADJABENG JJ.A.

SAM BADDOO CHIEF STATE ATTORNEY FOR THE REPUBLIC.

HAYFRON-BENJAMIN FOR THE RESPONDENT.

[1991]DLCA2310
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC<o:p></o:p>vs.<o:p></o:p>KWADWO
II<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991]
GLR 1<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 17 JANUARY 1991<o:p></o:p>

</div>COUNSEL:<o:p></o:p>SAM
BADDOO, CHIEF STATE ATTORNEY, FOR THE REPUBLIC.<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">

HAYFRON-BENJAMIN
FOR THE RESPONDENT. <o:p></o:p>

AMPIAH,
OFORI-BOATENG AND ADJABENG JJ.A. <o:p></o:p>

</div>JUDGMENT
OF OFORI-BOATENG J.A.<o:p></o:p>This is
an appeal by the Republic (hereinafter called the appellant) against the
decision of the High Court, Kumasi, in favour of Nana Osei Kwadwo II
(hereinafter called the respondent).<o:p></o:p>The facts
of the case are as follows: The respondent, Nana Osei Kwadwo II, is the
Omanhene of Bekwai. Under him is a village called Fahiakobo. Fahiakobo is a
stool land and is controlled by an odikro or an agent of the respondent, for
ruling or controlling Fahiakobo.<o:p></o:p>It is the
practice in the area that the stranger farmers on the land, pay some money to
the respondent and the other “odikro.” But with special regard to Fahiakobo the
practice as alleged by the appellant is that, whenever any stranger farmer
wants land for cultivation he has to consult the Bekwaihene, i.e. the
respondent. The respondent will then refer him to the odikro of Fahiakobo, who
will demarcate the land to the interested person. Any money paid in
consideration of the transfer of the land is called “asikano,” and it goes to
the benefit of the Bekwaihene in his capacity as the Omanhene. After the
“asikano” has been paid the stranger farmer does not have any obligation to pay
any other moneys to the Bekwaihene.<o:p></o:p>The
respondent’s contention is that with regard to the lands of Fahiakobo, the
“asikano” does not mean only the money a stranger farmer pays when he first
acquires a part of the Fahiakobo stool lands. It includes all the revenues
which accrue from the lands, such as tributes from cocoa farms, rice farms,
etc. because of the peculiar history of the Fahiakobo lands. The history is
that many years ago a boundary dispute arose between the Dwebisohene and the
Twafohene, both being sub-chiefs under the Bekwaihene, the respondent. To avoid
a civil war the respondent asked the Ehurenhene to settle the dispute. Each
disputant showed his boundary, and when the boundaries were well demarcated, it
was noticed that there remained a piece of land not claimed by any of the
parties. This piece of land, now known as Fahiakobo was given to the respondent
to rule directly. Fahiakobo alone has all the revenues on its lands collected
and sent directly to the respondent as the Omanhene. This story appears to be
accepted by the appellant.<o:p></o:p>The
contention of the appellant is that the respondent is entitled only to the
money which a fresh stranger farmer may pay on acquiring his land. Every other
money payable by way of revenue should be paid to the Lands Commission. The
State had information that the respondent was collecting nearly every revenue
from Fahiakobo and keeping it for himself. He was warned against the practice.
He insisted that every Omanhene of Bekwai had done this so-called illegal
collection without getting into trouble. That even Fahiakobo was not on the
list of the stool lands from which the government collected stool lands
revenue, and he had a claim of right to continue to collect the revenue. He was
accordingly charged with stealing various sums of money from stranger farmers
by way of tribute. He was convicted by the Circuit Court, Kumasi. He was
acquitted on appeal by the High Court; and hence this appeal.<o:p></o:p>The
grounds of appeal by the State are essentially on points of law, as the facts
of the case are not in dispute. The Chief State Attorney indicated the
authority to whom is given the power of collecting and administering all stool
lands. He referred the court to section 17(1) of the Administration of Lands
Act, 1962 (Act 123) which 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">“17. (1)
All revenue from lands subject to this Act shall be collected by the Minister
and for that purpose all rights to receive and all remedies to recover that
revenue shall vest in him and, subject to the exercise of any power of
delegation conferred by this Act, no other person shall have power to give a
good discharge for any liability in respect of the revenue or to exercise any
such right or remedy.”<o:p></o:p>It was
argued further that the collection of the various revenues by the respondent
other than the “asikano” was tantamount to usurpation of the work of the
minister by a person who was not the agent of the minister, and failure to pay
the money collected to the minister was tantamount to wrongful collection and
stealing of the money thus collected. The Chief State Attorney submitted that
the learned High Court judge misdirected himself as to the meaning of section
17(1) of Act 123 and the meaning of dishonest appropriation under section 120
of the Criminal Code, 1960 (Act 29) and so came to the wrong conclusions.<o:p></o:p>