Owusu & Ors. v. Agyei & Ors. [1980] GLR 1.

OWUSU AND OTHERS v. AGYEI AND OTHERS [1980] GLR 1.

JUDGMENT OF KORSAH J.

STATUTORY REF.

Ref.: Administration of Lands Act, S. 18

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Fifty kilometres or more north-east of Kumasi, on the fringes of the Afram plains in Ashanti, lies the township of Kumawu —the principality of the Kumawu Traditional Area. Over 300 years ago a large portion of the Afram plains, an inhospitable area, abounding in wildlife and infested with tsetse-flies was, agreed the parties herein, acquired through conquest by the Kumawu stool in the Atara Finam Wars. No one could have suspected then the value that would, in the future, be set on this seemingly intractable area of virgin forest.

It appears that in 1909 and 1911, the Colonial Government of the then Gold Coast was minded to acquire portions of the Afram plains, inclusive of the Digya-Kogyae areas, for a game and forest reserve, and entered into agreements with the stools of Kumawu and Kwahu which virtually forbade the subjects of the two stools from hunting in the area affected, and purported to place the same under the control and management of the government. It seems that the government did nothing to pursue its rights under these agreements, and on 29 May 1959, the Kumawu stool again entered into another agreement with one Opanin Forson Bandoh-Mensah (now deceased) entrusting, for a consideration, all Kumawu stool lands, including the Digya-Kogyae lands, to his caretakership and empowering him to represent the stool in a land dispute between Kumawu, Kwahu and Agogo.

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By a legislative instrument, Wildlife Reserves Regulations, 1971 (L.I. 710), made pursuant to section 11 of the Wild Animals Preservation Act, 1961 (Act 43), the Government of Ghana formally acquired the Digya and Kogyae areas of the Afram plains for the purposes of creating a national park at the former and a strict forest reserve at the latter. As is usually the case, L.I. 710 invited any person claiming a right or having any interest in the subject-matter of the acquisition, to submit in writing to the Chief Lands Officer, particulars of his claim, the amount of compensation claimed and the basis for the calculation of the compensation. As is not uncommon in such matters, rival claims were made for the payment of compensation in respect of the Digya-Kogyae acquisition. One such claim, of which there is now little material evidence, appears to have been made on 22 March 1974 (exhibit D) by Mr. Mmieh as solicitor on the instructions of Barima Otuo Acheampong, for and on behalf of the Kumawu stool for the whole of the area so acquired; and three separate claims for specified portions of the acquired area were put in by Mr. Appiah-Menka on 14 October 1975 (exhibits El-3) as solicitor for and on behalf of: Nana Kwabena Agyei—Kyidomhene, Nana Adu Gyamfi—Siakwahene, Nana Adu Boateng—Gyaasehene, all of whom are sub-chiefs of the Kumawu Traditional Area, on the basis that they, each of them, hold a freehold interest in their respective parcels of land. The assertion that these sub-chiefs had freehold interest in portions of the land acquired was affirmed by each of them in affidavits attached to their solicitor’s letters of claim dated 14 October 1975.

There were also filed, claims by three sub-chiefs of Kwamang represented by Mr. H. W. Kofi-Sackey (solicitor) and three subchiefs of Agogo represented by Mr. K. A. Sarpong (solicitor) in respect of the Digya-Kogyae acquisition. In addition there were also, according to the Acting Chief Lands Officer, more than four other individual claimants in respect of this acquisition.

In their letters dated 21 and 26 November 1975, respectively, giving notice of their clients’ claims, both Mr. K. A. Sarpong and Mr. H. W. Kofi-Sackey informed the Chief Lands Officer in clear and unambiguous language that there was a stool boundary dispute pending before the Stool Lands Boundaries Settlement Commission between the Kumawu, Kwamang and Agogo stools in relation to the Digya-Kogyae lands and that until that dispute was resolved, no claim was to be settled by the Lands Department in respect of that acquisition. Strangely enough, the Acting Chief Lands Officer saw in these claims no conflict of interest. But a more discerning Principal Secretary of the Ministry of Lands and Mineral Resources, on 27 November 1975 (a day after Mr. H. W. Kofi-Sackey’s letter was written), wrote to the Chief Lands Officer, a letter, exhibit 2, with reference to the

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dispute mentioned in Mr. Kofi-Sackey’s letter and addressed himself thus in the final paragraph: “In view of this, you are to suspend payments to any of the claimants until the Stool Lands Boundaries Settlement Commissioner has settled the matter beyond all dispute.” On 15 December 1975, Mr. Kofi-Sackey again wrote to the Chief Lands Officer intimating that “as a result of the settlement agreed upon by the stools of Kumawu, Agogo and Kwamang, a copy of which is enclosed herein . . .” he was withdrawing the protest letter of 26 November 1975, and that payment of compensation arising out of the Digya National Park already processed should be paid accordingly. That agreement (exhibit J), to which none of the actual claimants for compensation (i.e. the three defendants herein) was a signatory, was signed by the occupants of the paramount stools of Kumawu, Kwamang and Agogo. And although the three defendants had deposed in their affidavits of interest that each of them was “the sole freehold owner of the land so described . . .” in his claim, and had not stated that they were claiming through or under or on behalf of any paramount stool, the Acting Chief Lands Officer delivering himself in evidence on the issue said: “the various claimants did not sign exhibit J. We considered that the conflict had been resolved because the claimants derived their title from the three stools.”

On this occasion, it seems that- the Principal Secretary of the Ministry of Lands and Mineral Resources was in agreement with the Acting Chief Lands Officer and on the same day that the covering letter to exhibit J was written, i.e. 15 December 1975, he signed a letter (exhibit K3) addressed to the Chief Lands Officer and copied to the Director, Budget Division, Ministry of Finance, authorising the payment of compensation arising from the acquisition for the acquisition for the claims that had already been processed.

A letter dated 15 December 1975, written by one Forson Bandoh-Mensah, who styled himself as “the accredited representative of the Kumawu stool” and was, until his demise a plaintiff in this action, was received by the Chief Lands Officer on 22 December 1975. This letter (exhibit L) protested the payment of compensation in respect of the Digya-Kogyae acquisition to any person other than the Kumawu stool.

Prior to the letter of the principal secretary requesting that no payment of compensation be made, it seems that the Lands Department had already processed the claims of the three defendants herein, and had in three letters all dated 25 November 1975, offered each of them through their solicitor, the exact amounts of compensation claimed by them respectively. No solicitor could have felt more gratified nor any client more satisfied in the circumstances, and the offers were gratefully accepted in letters of even date—25 November

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1975 (exhibits S1-3, T1-3 and Ul-3). By 27 November 1975, a letter authorising payment of a portion of the money (exhibit VI) had been despatched by the principal secretary to the Chief Lands Officer among others. These were some of the processed claims which the principal secretary halted in his letters exhibits K1-2 and sanctioned in exhibit K3.

Suffice it to say that vouchers were raised in the name of Mr. Appiah-Menka for the payment of the approved compensation (exhibits W1-4) and the cheque prepared pursuant to the first voucher (exhibit W1) was collected by Mr. Appiah-Menka personally from the Ministry of Finance, Budget Division, on 16 December 1975—one day after exhibit K3 from the principal secretary had sanctioned payment. On 19 January 1976, the remainder of the amounts claimed by the defendants herein and sanctioned by the ministry were paid pursuant to exhibits W2-4, and Mr. Ben Dwimoh appears to have signed for them on behalf of Mr. Appiah-Menka.

Thus, the claim filed on behalf of the paramount stool of Kumawu was not met, but the compensation claimed by each of the sub-chiefs mentioned above, that is, the sums of ¢600,600; ¢531,960 and ¢429,000, were paid to them respectively through their solicitor, without any regard to the conflicting claims made on behalf of the Kumawu stool. Perhaps, if the solicitor for the Kumawu stool had followed up his letter of 22 March 1974, by submitting a valuation report on his client’s claim, and had his documents been forwarded by the regional office in Kumasi to Accra, greater attention would have been paid to his cause. But this does not explain, either the absence from the files of the Central Lands Department, of correspondence on this issue by Mr. Mmieh on behalf of the Kumawu stool, or the contempt with which Mr. Forson Bandoh-Mensah’s letter of protest was treated.

Now, Mr. Kofi-Sackey’s letter announcing that the three paramount stools of Kumawu, Kwamang and Agogo had resolved their differences, was written on 15 December 1975. On that same day, 15 December 1975, the principal secretary, on the strength of representations contained in Mr. Kofi-Sackey’s letter, signed a letter authorising the payment of compensation in respect of these claims. On 16 December 1975, just one day after the principal secretary’s letter of authorisation, a cheque was issued pursuant to a voucher (exhibit W1) prepared upon an earlier approval by the Acting Chief Lands Officer, was collected by Mr. Appiah-Menka.

Such zealous attendance to duty is, to say the least. remarkable in our civil service and deserves nothing but the highest commendation, but in the face of the late Mr. Forson Bandoh-Mensah’s letter of protest it appears to me that these claims for compensation

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were met with unseemly haste. Let me explain myself. That letter of protest was date-stamped by the Lands Department on 22 December 1975.

Granted that the authorisation for payment had been received on 15 December 1975, and payment had duly been effected on the first voucher on 16 December 1975; granted even that prospects of the Yuletide and the genesis of the New Year becloud our perspective and engender in us an indolence and laxity matched only by our generosity, should not payments have been stopped on the subsequent vouchers (exhibits W2-4) pending further investigations? Payments on these subsequent vouchers were made in the middle of January 1976, when reason ought to have resumed its seat.

The promptness with which all these payments, including the first, were made, appeared even more remarkable when the Acting Chief Lands Officer informed this court that the public became sensible of their right to claim compensation in respect of this acquisition, through an advertisement inviting them to submit their claims, published, for the first time in a national paper, on 17 December 1976 (vide exhibit 3)—a whole year after the first payment had been made to the defendants herein. Why the haste? Why the preferential treatment?

Neither the Lands Department nor the Ministry of Lands and Mineral Resources is on trial, and I am not suggesting that the defendants offended any principle of law by filing their claims earlier than the invitation to submit claims, but I am saying that a court of justice cannot condone such inequities in the processing of claims for compensation payable in respect of the compulsory acquisition of land. No claim ought to be settled before a general notice to the public to submit their claims has been published and the time for submitting such claims has elapsed. To treat with any individual or stool before the publication of such notice, as was done in this case, offends commonsense, offends the law and must be frowned upon.

By the State Lands Act, 1962 (Act 125), the Head of State is empowered, whenever it appears to him to be in the public interest, to declare by executive instrument, any land specified in the instrument, to be land required in the public interest and on the publication of such instrument such land shall vest in the Head of State on behalf of the Republic of Ghana free from all incumbrances. Section 4 of the said Act reads:

“4. (1) Any person claiming a right or having an interest in any land subject to an instrument made under section 1 of this Act or whose right or interest in any such land is affected in any manner shall, within three months from the date of the publication

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of the instrument made under the said section 1, submit in writing to the Minister,

(a) particulars of his claim or interest in the land;
(b) the manner in which his claim or interest has been affected by the instrument;
(c) the extent of any damage done;
(d) the amount of compensation claimed and the basis for the calculation of the compensation,
and the Minister may, having regard to the market value or the replacement value of the land or the cost of disturbance or any other damage suffered thereby, pay compensation in respect of that land or make an offer of land of equivalent value.
(2) Where there is a dispute as to the right or interest claimed by reason of conflicting claims or interests, or any person is not satisfied with the compensation assessed by the Minister, the Minister may refer the matter to the Tribunal [set up for such disputes].” (The emphasis is mine.)
What amounts to publication of an instrument for the purposes of this Act is clearly set out in section 2 of the Act entitled “Publication of Instrument,” and it reads:

“2. A copy of the instrument, made under the preceding section shall,
(a) be served personally on any person having an interest in the land; or
(b) be left with any person in occupation of the land; and
(c) be affixed at a convenient place on the land; and
(d) be published on three consecutive occasions in a newspaper circulating in the district where the land is situate.” (The emphasis is mine.)

It seems to me that publication on three consecutive occasions in a local newspaper is, therefore, mandatory, and is essential to complete what is meant by publication under the statute; and I am also of the view that the authority to entertain and settle claims, which the statute confers on the minister, arises after the publication described in section 2 and the lapse of a period of three months thereafter. Were it not so, what would be the need for publication and why the necessity of a tribunal to determine matters relating to conflicting claims and amount of compensation? It is absurd to suppose that the statute gave authority to effect payment before an invitation to submit claims is made to the public. And the ule of construction against absurdity would not permit such an

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interpretation to be placed on the statute. Any moneys, therefore, paid under Act 125 before publication in a newspaper, as directed by section 2 thereof, are moneys paid contrary to the provisions of the Act; and all such payments are irregular.

I am not here concerned with public officers who irregularly dispense public funds. I only seek to illustrate the point that the payment of compensation to the defendants was made with unseemly haste. It is my belief that it was to banish the possibility of such clandestine dealings with state funds that publication under section 2 (d) of Act 125 was made mandatory.

At the traditional council meeting held on 23 December 1975 (vide exhibit AS2A at p. 111) the co-defendant informed the council that arrangements for the payment of compensation for the acquisition of the Kumawu sector of the Digya area as a national park by the government had been concluded, and invited: Nifahene, Sanaahene, Akwamuhene, Ankobeahene, Akyeamehene and Osiakwanhene to accompany him to Kumasi to verify the truth of the matter. It is curious that the Kyidomhene (the first defendant) and the Gyaasehene (the third defendant) who had filed claims for compensation and who were both present at the meeting, were not honoured with similar invitations. This record makes it evident that the payment of compensation was made known to the council and suggests that the claim for it was made for and on behalf of the oman. But then it must be remembered that the co-defendant’s predecessor in title, Nana Otuo Acheampong, had in his lifetime, informed the council that the government would pay some compensation to the stool for the acquisition of its lands. I use the word “suggest” advisedly because subsequent events seem to strip this suggestion bare.

After the verification of the payment of the compensation, the co-defendant, on one festive occasion on or around 26 December 1975, requested his elders, among whom was one Okyeame Boama Kwabi (the defendants’ first witness), to proceed to the second defendant’s saw-mill at Bodomase, a village some five kilometres from Kumawu, where the second defendant was awaiting with news for them. Thither did the first and third defendants proceed in a vehicle driven by Okyeame Boama Kwabi (the defendants’ first witness).

On their arrival at the saw-mill, they saw other elders of the Kumawu stool waiting under a tree in the yard; and the second defendant, who was standing outside his office, informed them that he would call them into his office, one at a time, to hear what he had to tell each of them. Each party was dealt with alone out of sight and hearing of the others.

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The first and third defendants and Okyeame Boama Kwabi (the defendants’ first witness), all say that when each of them entered the office in their turns, the second defendant and with him Nanaanom Kodua Ababio and Osei Ababio—Krontihene and Kronkohene respectively of Kumawu—were the only persons present in the office. This is denied by the second defendant and Nana Osei Kodua III, Krontihene, who say that the Sanaahene, and not the Kronkohene, was the third person present in the office. Again the first and third defendants and Okyeame Boama Kwabi (the defendants’ first witness) are insistent that they were each requested to swear an oath of secrecy not to divulge the source of their good fortune when certain payments were made to them at the office of Nanaanom Kodua Ababio, Osei Ababio and the second defendant; the first defendant receiving ¢4,000, the third defendant receiving ¢4,000 and Okyeame Boama Kwabi receiving ¢1,000. The second defendant and the Sanaahene on the other hand deny that an oath of secrecy was exacted from any of these persons and aver that the payments to the elders were made by the Sanaahene in accordance with a list furnished him by the co-defendant.

By Ashanti custom, the Sanaahene is the treasurer to the stool; and it is to him that all tributes due to the stool are paid, and it is by him that payments out of the stool treasury are effected. Thus if the payer at Bodomase was indeed the Sanaahene and no oath of secrecy was exacted from the elders at the time that each of them received payment, the second defendant and co-defendant desire it to be implied that the payments to the elders were in accord with custom and cannot be impeached. But Ashanti custom also demands that if anything falls to be shared by the elders to a stool, whether it be meat, drink or money, the distribution should take place at the palace and not at some hide-out in a neighbouring village. It is also significant that the co-defendant directed his elders to go and see, not the Sanaahene, but the second defendant at his saw-mill at Bodomase, whereas the Sanaahene had a house in Kumawu and no one was directed to see him there.

These shades in the evidence concerning what transpired at Bodomase, relevant though they may be in considering the issue of’ fraud, pale into insignificance in relation to the main issue as to whether or not the defendants were entitled to the compensation paid for the acquisition by the government in respect of the Digya-Kogyae lands. For if they were entitled to the compensation paid, then such moneys being private property, it does not matter where or how they deal with them, but if they were not so entitled, then the manner in which they dispose of such moneys may shed light on whether their claims were based on a genuine belief that they were

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entitled to make them. Clearly, when moneys are distributed by the persons designated by custom to do so, at the proper place and openly, the impression created is that the moneys are not tainted with fraud or illegality, but if such moneys are paid out in some unusual place and furtively, one may infer that the moneys are so tainted, and that those dealing with the moneys know of it.

I myself favour the account given by Okyeame Boama Kwabi (the defendants’ first witness) who, from his evidence, appears to me to be a bold, blunt and plain-speaking man, not given to guile or blessed with finesse. But then let the man speak for himself:

“When I was returning to Kumawu, I was so annoyed that I returned to Kumawu alone without the persons I conveyed to Bodomase. I was annoyed because when I was asked not to mention the payment of the money to my wife with whom I was living, I suspected the money was not acquired honestly. I decided that if I gave the money back to the persons who had given me the money, there would be no evidence of the treachery to the state of those persons concerned, and so I took the money away with the object of using it as proof of what had transpired. Having deposited the money in my house, I went back to the persons who had paid it to me to inform them that I suspected them of defrauding the oman and that I would reveal everything. When I went back to Bodomase to give them this information, the Kronkohene was outside the building and so I asked him to tell the second defendant and Krontihene that I suspected them of fraud with regard to the money they were sharing in the office and that they were defrauding the oman, and that if everyone kept silent, I alone would make the facts known to the oman. After delivering this message, I waited for about ten minutes outside the saw-mill to find out whether someone would come to say anything to me, but as no one came out, I drove my vehicle back to Kumawu. When I came to Kumawu I spread rumours about these payments at Bodomase in the town. I decided to spread these rumours about these payments because I realised the moneys belonged to the oman and that it was being wrongly used. I wanted the whole bulk of the money to be used for the benefit of the oman.”

Reports of Okyeame Boama Kwabi’s (the defendants’ first witness) activities reached the co-defendant who, on or around 1 January 1976, invited Okyeame Boama Kwabi and his uncle, by name Kwadwo Fordjour, to see him at 1 p.m. on that day. At that meeting, the co-defendant is alleged to have counselled Okyeame Boama Kwabi to desist from spreading rumours about the payments

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made to them at Bodomase, with a promise that if he did, greater benefits would accrue to him (Okyeame Boama Kwabi) on the payment of further sums by the government. Although Okyeame Boama Kwabi agreed not to spread news of the Bodomase payments further, yet in consonance with his threat to inform people in Kumawu about those payments, he discussed his interview at the palace with Opanin Yaw Mensah (the third plaintiff), who is his paternal uncle. After that discussion, Okyeame Boama Kwabi went home, collected the ¢1,000, which had been paid to him at Bodomase and went to make a report of the matter to the police. He says:

“I met one Inspector Kumi and a sergeant, and I reported that certain moneys had been given to us at Bodomase, and since Bodomase was not the usual place where customary moneys are apportioned and I did not know the source of the payment, I wanted the source of the moneys investigated. I told the inspector to book the moneys and to give me a document witnessing the payment to him, but he retorted that it was no business of mine and that I should go away. He took the money. I was not given any receipt. I left the police station as ordered by the inspector.”

As a result of this complaint laid by Okyeame Boama Kwabi, he was, at a council meeting held on or about 15 January 1976 (vide exhibit AS2C), blamed for inciting some of the citizens of Kumawu against members of the council, and reporting to the police that he suspected the money paid to him at Bodomase to be stolen money. The council was unanimous in its view that Okyeame Boama Kwabi “had broken the oath of fealty” and was therefore in “customary trouble.” To this accusation Okyeame Boama Kwabi retorted that he was not in any customary trouble, removed his sandals and informed the council that he could not co-operate with it in the administration of the oman, because in his opinion what they were doing was not conducive to the good of the oman—they were defrauding the oman. In exhibit AS2E appears this terse statement: “As a result of his unruly behaviour at the meeting the Kumawuhene warned that if he did not take care he and his family would be severely punished.” Shortly after this meeting, Okyeame Boama Kwabi and other citizens of Kumawu became the subject of several arrests and suffered periods of detention, sometimes at police stations and at other times at one or the other military barracks. There is no evidence realting to who was, or were, instrumental in causing these arrests.

At this same meeting on 15 January 1976, the co-defendant informed the council that the compensation paid by the government

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in respect of the Digya lands was ¢400,000. But the evidence discloses that by 16 December 1976, the total amount paid by the government to Mr. Appiah-Menka in respect of these claims was ¢750,000 (vide exhibit Wl). What happened to the sum of ¢350,000 out of that amount? The co-defendant then declared that at an informal meeting of members of the council, it was decided that ¢200,000 out of the ¢400,000 be set aside for the maintenance of the Kumawuhene’s stool and the development of the area; the remaining amount of ¢200,000 was to be apportioned in two equal parts: the co-defendant taking ¢100,000 and his sub-chiefs sharing the other ¢100,000.

It appears that the harassment of the citizenry by the police, instead of causing a polarization of forces, tended, as it often does, in the uniformity of its unjustness, to balkanise them. And so it happened that a group styling itself the youth of Kumawu, some of whom were nonetheless septuagenarians, wrote a letter to the traditional council on 9 February 1976 and then despatched a delegation comprising: Yaw Mensah (the third plaintiff), Yaw Amponsah (the fifth plaintiff), Robert Nketia (the sixth plaintiff), Frimpong (the seventh plaintiff), Kwame Kodua, Yaw Boye, Kojo Broni, Aboagye Kumi and Mr. Koduah (solicitor) with another letter to the traditional council on 12 February 1976. The complaint of this delegation was that the compensation paid by the government for the acquisition of the Digya-Kogyae lands belonged to the state of Kumawu and should be paid into the state treasury and they wanted information regarding the council’s handling of the compensation thus far paid for the acquisition. The council dismissed them with a promise to give them an answer to their quest in due course. After waiting for a period unspecified for the council’s reply, the Kumawu Youth Association decided to petition the government for redress. What fate befell this petition was not known, but the editor of the Palava Tribune Mr. Chris Asher, gained access to the petition and published in his paper 31 March-6 April edition, a story captioned “CHIEF ACCUSED OF ¢1.5 MILLION SWINDLE?” With this publication, the co-defendant felt obliged to make a public refutation of the allegations contained in the story and to give some explanation with regard to the claims made by his sub-chiefs for compensation and the disbursement of the moneys paid by the government. With this end in view, the co-defendant called a press conference, but was persuaded by Mr. Chris Asher, who after his publication above-mentioned did not consider Kumawu a healthy place for him, to make Kumasi the venue for the press conference. In accord with that request, the press conference was held at the house of the second defendant in Kumasi, on 14 April 1976 and the written statement

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handed out by the co-defendants at that press conference, was published in the Palava Tribune of 21-27 April (exhibit 1); so were the answers the co-defendant gave to questions asked him by those present. All three defendants were present at the press conference, and except for the press release which was read in English, the whole of the proceedings at the press conference were conducted in the Twi language.

In the statement handed out to members of the press, the co-defendant asserted that out of the sum of ¢1.5 million paid by the government, a sum of ¢400,000, earmarked by the traditional council for development in the area, was paid into the council’s account; and the remaining amount, after the three claimants had received their shares was utilised in the manner following:

(a) to pay the solicitor’s fees;
(b) to pay the valuer and surveyor’s fees; and
(c) the remainder was shared in accordance with custom in proportion to all the members of the Kumawu Traditional Council.

In exhibit 1, the co-defendant is alleged to have explained that by custom the Kumawu stool is the sole owner of all lands, and that every individual or sub-stool in possession of land in the area is by custom obliged to pay a percentage of any compensation accruing from the land to the Kumawu stool, the omanhene and the other sub-chiefs. He is alleged to have explained further that any such compensation accruing from lands was divided into three parts of which one-third went to the Kumawu stool, one-third to the omanhene for his personal use and the remaining one-third shared among the elders of the stool.

If custom is an unwritten law established by long usage and the consent of our ancestors, then it is a matter of some astonishment that custom in Kumawu could provide canons of distribution for compensation paid by the government for land compulsorily acquired when the payment of such compensation is a thing of recent history, and this was the very first time that such compensation had been paid for land acquired by the government in the Kumawu area. In truth, in the minutes of the traditional council meeting held on 30 December 1975 (exhibit AS2B) we find Mr. Joseph Bandoh regretting: “that the particular chief whose land was affected in any legal transaction was not paid any special amount out of the compensation paid to the traditional council”; and the co-defendant explaining that “since the manner in which stool land money is shared out is governed by an Ordinance, it would be necessary for the traditional council to pass the necessary resolution as the first

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step towards the amendment of the Ordinance as it applies to the Kumawu Traditional Area.”

However, at a traditional council meeting held on 4 March 1976 (exhibit AS2D) the co-defendant laid down the canons of distribution for compensation paid in respect of stool land thus:

“ . . . henceforth it is the name of the chief or caretaker of any portion of land in respect of which compensation is to be paid which shall be used in the publication of any document on that land. Also when the money for compensation is ready that chief or caretaker shall first deduct his seven and a half per cent before giving the rest to the traditional council for distribution in the following manner: one-third to the Kumawuhene’s stool; one-third to the Kumawuhene; one-third to be divided among the other members of the traditional council, including the chief concerned.”

Is this the origin of the custom that the co-defendant gave expression to at his press conference? If that is so then the custom arose after the compensation had been distributed at Bodomase.

The report on the press conference in exhibit 1 also alleged that the co-defendant said that out of the first payment of ¢750,000 made by the government to the defendants, legal fees covering a period of five years’ service and valuer’s charges paid amounted to ¢250,000. In addition, surveyor’s fees amounted to ¢93,000; ¢200,000 were paid into stool coffers and a sum of ¢107,000 distributed among the sub-chiefs.

On 18 May 1976, a report of professional misconduct was lodged with the General Legal Council against Mr. Appiah-Menka by Messrs. Asumadu-Sakyi and Koduah, as solicitors for and on behalf of the Kumawu Youth Association—an association to which they professed to belong. They complained about the fees charged by Mr. Appiah-Menka for the services rendered to the claimants, i.e. the defendants, as a solicitor. The General Legal Council, on receiving the report invited Mr. Appiah-Menka to make his comments on the complaint lodged against him. To the reply that Mr. Appiah-Menka sent to these charges, were attached two statements: The first of these was made jointly by the three defendants (exhibit A), and the second by the co-defendant (exhibit B). The relevant paragraphs of exhibit A are as follows:

“(1) That our sub-stools own portions of the Afram plains which have been taken over by the Digya game reserve.
(2) That we consulted Mr. Appiah-Menka to claim compensation for us on an agreed fee of ¢35,000 for each claim.

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(3) That his fee of ¢35,000 severally or ¢105,000 jointly included the statutory fee of ¢16,000 which Mr. Appiah-Menka told us had been paid to him.
(4) That as custom demands, since we are all sub-stools of the Kumawu stool, the customary portions of our claims were also given to the Kumawu stool.”

The statement was signed by the second defendant and thumb-printed by the first and third defendants.

The co-defendant’s statement (exhibit B) substantially corroborated what had been stated by the three defendants in their statement (exhibit A), but it was a little more detailed. The relevant paragraphs are as follows:

“(4) That these Afram plains are a conquered territory and virtually all the wing chiefs of the Kumawu Traditional Council have specific areas there attached to their stools who always give portions of any proceeds therefrom to the Kumawu stool.
(5) That when it became necessary that these chiefs should claim compensation for such government acquisitions, I, in the company or other wing chiefs namely: (a) Nana Adu Gyamfi—Osiakwanhene, (b) Nana Adu Boateng—Gyaasehene, (c) Nana Kwabena Agyei—Kyidomhene approached our solicitor, Mr. Appiah-Menka, to make the necessary claims for these chiefs but with the understanding of the prevailing custom, i.e. a portion of every claim was to go to the Kumawu paramountcy.
(6) That even though we suggested that Mr. Appiah-Menka should work on a 25 per cent fee basis, he refused our suggestion. Instead he negotiated and we agreed on a flat fee of ¢35,000 for each claim.
(7) That as the claim involved some surveying and valuation it became necessary that the claimants should consult a person competent in this field and accordingly all the claimants consulted Messrs. Ben Dwimoh & Co., chartered surveyors.
(17) (1) Mr. Appiah-Menka has not made any claims for the Kumawu stool or the Kumawu Traditional Council as a unit in respect of the Digya game reserve to warrant any accusations against him.
(2) Mr. Appiah-Menka in respect of these Digya game reserve claims acted for three of my sub-chiefs who have paid him the agreed fees and also what is due to the Kumawu stool.

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(5) That in my press conference on 14 April 1976, I never stated that (a) Mr. A. Appiah-Menka was paid ¢250,000 out of the initial instalment of ¢750,000; (b) and a further sum undisclosed by the complainants out of the second instalment as alleged by the so called complainants.”

Let me say here and now, that whether or not Mr. Appiah-Menka misconducted himself by charging the fees he is alleged to have charged has no relevance to the present proceedings. Mr. Appiah-Menka is not a party to this suit. I have not heard him, and I cannot pronounce on that issue. As I understand, the proper forum—the disciplinary committee of the General Legal Council—is seised of that matter. However, the fees admitted by the defendants and the co-defendant to have been paid to their solicitor and surveyor are relevant to this action as shall hereafter be made clear.

At any rate, this is the sequence of events culminating in the issue of the writs which initiated these proceedings on 12 July 1976. By those writs of summons, the plaintiffs who sue for themselves and on behalf of the oman of Kumawu claim:

“(1) From each of the defendants the various sums specified in each writ, i.e. against Nana Kwabena Agyei, the first defendant—¢600,000; against Nana Adu Gyamfi, the second defendant—¢51,960 and against Nana Adu Boateng, the third defendant—¢429,000 being money had and received by each of the defendants and being money due or belonging to the Kumawu stool or oman which amount is part of compensation paid by the Government of Ghana and or the Lands Department in respect of Kumawu stool lands at Digya-Kogyae which the government has acquired for use as a national park and game reserve, and
(2) An interim order on the defendants to deposit the said amount claimed from each of them into court pending the hearing and determination of this suit.”

Except for the various amounts claimed, the three writs were identically worded, and the statements of claim accompanying the writs were not dissimilar in any material particular. With the plaintiffs being the same in each of the three actions, the causes of action arising out of the same transaction and with each defendant entering an identical defence, an order for consolidation was, by consent of counsel, made on 15 October 1976.

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The plaintiffs averred in their statement of claim that the Kumawu stool was the undisputed freehold or absolute owner of the Digya-Kogyae lands compulsorily acquired by the government and that the said lands were virgin forest. The defendants, they said, had fraudulently and illegally claimed and received compensation in the sums claimed against each of them all amounting to ¢1,561,560 —although they were not entitled to the sums they received or any part thereof. They further alleged in the said statement of claim that the defendants’ representations as freehold and absolute owners, upon which the said compensation was paid to each of them, were fraudulent, dishonest, illegal and unlawful. The particulars of fraud alleged are:

“(a) Altering or causing Mr. Appiah-Menka to alter the claim that had been made in the name of the Kumawu stool by Mr. Mmieh into the names of the defendants as freehold or absolute owners and thereby receiving compensation in the several sums claimed against each of them, whereas they knew or ought to have known that only the Kumawu stool was entitled to any or all of the compensation claimed.
(b) Representing to the paying authority, i.e. the Lands Department or the Chief Lands Officer, that they were the absolute or freehold owners of the lands for which they claimed compensation whereas they knew or ought to have known that the said lands belonged to the Kumawu stool or oman exclusively and that under Ashanti land law (they) the defendants could never be the absolute or freehold owners of any land in Ashanti.”

By reason of the said fraud or misrepresentation or both, said the plaintiffs, the defendants succeeded in taking for themselves the said sums claimed against each of them.

The plaintiffs then proceeded to outline the capacity in which they bring their action in the concluding paragraphs of their statement of claim. They averred that the declaration by Barima Asumadu-Sakyi II, Kumawuhene, at his press conference on 14 April 1976, that he and his elders had benefited from the moneys claimed and received by the defendants—the Kumawuhene received ¢100,000 and his elders shared ¢107,000 between them disclosed that the Kumawuhene and his elders had so compromised themselves that they refused, failed or neglected to take any legal action to retrieve these moneys which should have gone to the oman or stool. Thus, unless the plaintiffs, as citizens of Kumawu, and, as such, beneficiaries of whatever benefit accrues to the oman, initiated proceedings

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to recover the sums of money herein claimed for and on behalf of the oman, the same would be lost to the oman or stool forever.

Later in the course of the proceedings, the defendants amended their defences drastically and took stands which grouped the first and third defendants together and left the second defendant standing alone. But to the several interim applications that came before this court prior to the filing of the amended statements of defence, the defendants deposed in affidavits, either in support of, or in opposition to them, to substantially the same facts as were contained in their statement to the General Legal Council. They said that:

“(a) They were the freehold or absolute owners of the lands for which they claimed compensation.
(b) They had their farms on the said lands.
(c) They briefed a solicitor and a surveyor to process their claims for them.
(d) They received the several amounts claimed against them.
(e) They had each paid a customary share of the moneys received by them to the stool of Kumawu.
(f) They were entitled to keep whatever was left in their hands, and
(g) They had paid their solicitor and surveyor their respective fees; ¢150,000 to the surveyor or valuer or both and ¢105,000 to the solicitor.”

Pursuant to an order of this court made on 3 February 1977, granting leave to the first and third defendants to amend the defences filed on their behalf, the first and third defendants filed a joint statement of defence on 9 February 1977. On the same day that leave was granted the first and third defendants to amend the defences filed on their behalf, they also obtained leave of the court to issue and serve a third party notice on Barima Asumadu-Sakyi II, not in his capacity as the Omanhene of Kumawu, but in his private capacity. Obviously, if the plaintiffs are suing for and on behalf of the oman, then the third party cannot be joined in his capacity as the representative of the oman. But if he is joined in his private capacity, nothing precludes him from challenging the right of the plaintiffs to sue for and on behalf of the oman of which he is the spirit and official representative.

The first and third defendants alleged that they were illiterates and that although their names were used as claimants for compensation they had no knowledge that their names were being used for that purpose; that Barima Asumadu-Sakyi II, and not the first and third defendants, received the compensation paid and, therefore, the liability of Barima Asumadu-Sakyi II to indemnify them for any

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judgment obtained against them by the plaintiffs should be determined at the hearing of this action.

Barima Asumadu-Sakyi II did not deny receiving the compensation claimed in the names of the first and third defendants, but he took exception to his being joined as a third party in his private capacity. He contended at the third party directions stage that whatever he did in relation to this matter was done in his official capacity. But it seemed to me that whether he acted in a private or official capacity in this matter was an issue the determination of which would require evidence. When it becomes necessary to ascertain the capacity in which a person who enjoys dual capacity acted, it seems to me that the manner in which the person conducted himself in the transaction under consideration would be necessary evidence for the determination of the capacity in which he acted.

Again, if a person who enjoys dual capacity could have executed the transaction under consideration in either capacity, then the determination of the capacity in which he acted would have to be based on evidence. The capacity in which a person is sought to be joined, should, therefore, prove no obstacle to the making of an order for the joinder of a third party. Accordingly the court acceded to the request by the first and third defendants and joined Barima Asumadu-Sakyi II, in his private capacity as a third party to this action and made the following order:

“It is hereby ordered that the issue of liability as between the third party and the first and third defendants be determined after the trial of the action between the plaintiffs and the defendants. It is further ordered that the third party should be at liberty to appear at the trial of the said action and to oppose the claim of the plaintiffs as far as he may be affected thereby and for that purpose he should be at liberty to file any pleadings he desires and put in oral or documentary evidence and cross-examine all or any witnesses in the suit.”

Precedent for such an order is to be found in Eden v. Weardale Iron and Coal Co. (1887) 35 Ch. D. 287, C.A. The order itself is said to be so wide as to make the third party, for all practical purposes, a defendant in the action. However, the Court of Appeal, lacking the timerity of this court, on 23 May 1977, transformed Barima Asumadu-Sakyi II, the third party into a co-defendant. By that date, pleadings between the third party and the defendants had been closed and the evidence of the first witness for the plaintiff had been concluded.

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On 7 June 1977, when hearing of evidence resumed, Mr. Kom, learned counsel for the co-defendant, contended that his client had not been served with the amended writ of summons and statement of claim since the order for joinder made by the Court of Appeal as provided by Order 16, rr. 11 and 13 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A). The relevant part of Order 16, r. 11 reads:

“. . . Every party whose name is so added as defendant shall be served with a writ of summons or notice in manner hereinafter mentioned, or in such manner as may be prescribed by any special order, and the proceedings as against such party shall be deemed to have begun only on the service of such writ or notice.”

And Order 16, r. 13 is as follows:

“13. Where a defendant is added or substituted, the writ of summons shall be amended accordingly and the plaintiff shall, unless otherwise ordered by the Court or a Judge, file a copy of the writ as amended, and serve the new defendant with such amended writ or notice in lieu of service thereof in the same manner as original defendants are served, and the proceedings shall be continued as if the new defendant had originally been made a defendant.”

These two rules, in my view, apply in the case of a person who was not originally a party to the suit but leave is granted to add or substitute him as a party. The third party was already a party to the suit; he had already been served with the writ and all pleadings in the suit and he had replied to every allegation made against him in the pleadings filed on his behalf. His conversion from third party to a co-defendant—if indeed there was such a conversion or he was merely made a co-defendant as well as a third party—did not affect any pleading filed and served on him. What is more, the breadth of the order which was made when Barima Asumadu-Sakyi II was joined as a third party, gave the third party every legal right that a co-defendant possessed, and be was in no way prejudiced by the change in nomenclature.

Mr. Kom’s other reason for asking for the service of a fresh writ and statement of claim on the co-defendant, after the order made by the Court of Appeal, was that the particulars of fraud against his client had been omitted from the pleadings. Surely, this is to the advantage of the co-defendant; for as I understand the rule, a party who pleads fraud and omits to furnish the particulars of fraud in his pleadings, is precluded from leading evidence on the allegation

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of fraud: see Order 19, r. 6. Mr. Kom’s application for an order that the plaintiffs do comply with Order 16, rr. 11 and 13 was, therefore, dismissed.

In the amended statement of defence filed by the first and third defendants, they alleged that the co-defendant informed his elders at a meeting called by him, that compensation for the Digya-Kogyae lands which were acquired by the government during the reign of his predecessor, Nana Otuo Acheampong, was about to be paid and that he would take them to the office of his solicitor to execute the relevant documents on the acquisition. They, the first and third defendants, admitted that the lands for which compensation was paid belonged exclusively to the Kumawu stool and that neither they nor their sub-stools owned any land in the Afram plains. They said they never claimed nor instructed a solicitor to claim any compensation in their names in respect of the Digya-Kogyae acquisition and they were not even aware that the compensation for the said acquisition was being claimed in their names. They alleged that the co-defendant and the second defendant took advantage of their illiteracy and invited them together with other chiefs to the office of Mr. Appiah-Menka, where they were requested to thumb-print documents, which they did, in the belief that they had been chosen as stool nominees to thumb-print the said documents for and on behalf of the Kumawu stool, in order that the compensation would be paid the Kumawu stool.

They said they did not know the amount of compensation claimed in their names nor were they cognisant of what was actually paid, but they were later informed by the third party co-defendant that the compensation money had been paid to him (the co-defendant) and the second defendant; and except for the sums of ¢4,000 and ¢3,950 paid out to the first and third defendants respectively at Bodomase, they know nothing more about the sums claimed from them by the plaintiffs.

They denied the fraud of which they were accused by the plaintiffs and claimed that they were themselves victims of the fraud perpetrated by the co-defendant and the second defendant. They alleged that the co-defendant in putting their names forward as owners of parts of the Digya-Kogyae lands, when he knew that representation to be false perpetrated a fraud on the oman; and in putting their names forward as such owners without their knowledge or consent, the co-defendant perpetrated fraud against them, the first and third defendants. They averred that they had paid the whole of the sums which actually came into their hands into court and, therefore, claim indemnity from the co-defendant for any judgment and costs

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that may be entered and awarded against them, the first and third defendants, in favour of the plaintiffs.

The only serious issue which the first and third defendants joined with the plaintiffs in their amended defence was the legal right of the plaintiffs to initiate these proceedings against them.

The second defendant, whom the first and third defendants had charged, in their amended statement of defence, with being privy to the co-defendant’s alleged fraud, had perforce to reply to that charge, and accordingly filed an amended defence with leave of the court, which leave, in my view, was not necessary.

In that amended statement of defence filed on 21 February 1977, the second defendant, who in his evidence admitted to being literate, said that he was made Twapomhene by Nana Otuo Acheampong and, as such, an unspecified area in the Afram plains was placed under his caretakership. Some time after the co-defendant’s ascent to the Kumawu stool, he elevated the second defendant to the status of a divisional chief, conferred on him the title of Osiakwanhene and made him the caretaker of all Kumawu lands in the Afram plains. As such caretaker, he was entitled to seven and a half per cent of all revenue, income and proceeds accruing from Kumawu lands in the Afram plains, and he was accountable only to the co-defendant.

Although he, the second defendant, was the sole caretaker of all Kumawu lands in the Afram plains, pursuant to a direction given by the co-defendant at a council meeting that the said lands be apportioned to the various chiefs and elders of the stool to facilitate easy processing of the claim for compensation, all the chiefs and elders of the Kumawu stool, at the request and on the instructions of the co-defendant, called at the office of Mr. Appiah-Menka, whom the co-defendant, had apparently instructed to act in the matter, and executed the claim forms in respect of the specified areas apportioned to each for the purposes of claiming compensation.

On 23 December 1975, the defence continues, the co-defendant announced at a council meeting that part of the compensation claimed had been paid and so he requested some of his elders to accompany him to Mr. Appiah-Menka’s office to collect the money. The money paid was in relation to the claims lodged in the names of the three defendants. He alleged that at the solicitor’s office, the co-defendant instructed Mr. Appiah-Menka to issue a cheque in his, the second- defendant’s, name for the sum of ¢ 107,000 to be paid to all the chiefs and elders of the stool as their own share of the said compensation. On the written authorization of the elders, said he, he cashed the cheque and made payment, as directed by the co-defendant, to some of the chiefs and elders of the stool at his

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saw-mill at Bodomase. He himself received only ¢4,000 out of that amount and does not know what happened to the rest of the money.

About two months after the pay-out at Bodomase, the statement of defence continues, the co-defendant told the second defendant and others that a further instalment had been paid, but did not disclose the amount and that it was only when the writ of summons was served on him, the second defendant, that he discovered that the amount of ¢531,960 had been claimed in his name. He took the writ which was served on him to the co-defendant.

The statement of defence filed on behalf of the second defendant then proceeds to deny:

“(a) that he had instructed any solicitor, surveyor or other professional adviser to process any claim for compensation in his name;
(b) that he ever received the sum of ¢531,960;
(c) that he ever instructed any solicitor to put in any defence for him, excepting Messrs. Mensah-Bonsu and Totoe, when he was served with the writ of summons initiating these proceedings, nor did he give instructions to any solicitor on any affidavit apparently filed on his behalf, except the one he deposed to in support of his application for the release of the first and third defendants when they were committed for contempt of this court;
(d) that he acted illegally, fraudulently, dishonestly or otherwise as alleged.”

The defence contains this rather disturbing statement: “in accordance with the customary oath of allegiance, loyalty and obedience which he, the second defendant, swore to the Kumawuhene when he, the second defendant, was duly installed as a chief he acted on the instructions of the Kumawuhene as his overlord . . . “ I say that this statement is disturbing because when the second defendant came to testify, he chose to swear an oath to the Kumawuhene instead of swearing, like the Christian he admitted he is, on the Bible or the Cross, to tell the truth. His counsel offered the explanation that chiefs are expected at all times to swear by the oath of the paramount stool which they serve, and yet the second defendant’s very first witness, Nana Osei Kodua III, who as the Krontihene of Kumawu, occupies a place in the hierarchy of chiefs higher than that of the second defendant, elected to be sworn on the Bible when he came to testify. Moreover, in his testimony before this court, the second defendant admitted that he made false statements and deposed to affidavits containing false statements, knowing them not only to be false but also the use to which they would be put, because of this very

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oath to his overlord, the co-defendant. The question is: what value can one place on the testimony of this defendant? The question, fortunately, resolves itself as will appear hereafter when I turn to the evidence given by the second defendant.

The common features about the defence filed by the three defendants are that they all admit that the plaintiffs are citizens of Kumawu and go on to say that the co-defendant was the person who engaged the solicitor and the surveyor or other professional person to process the claims, and he was also the person to whom the compensation, the subject-matter of these consolidated actions, was paid. All the defences also deny that the plaintiffs have a legal right to initiate these proceedings. The main difference in the defences is that; whereas the first and third defendants say that they were not aware that their names were being used to claim any compensation, the second defendant admits that he knew that his name was being used to claim compensation for the acquisition of land of which he was not the owner.

To these defences claiming indemnity from the third party, the third party co-defendant filed a defence on 19 April 1977, in which he admitted:

(a) that the plaintiffs are all citizens of Kumawu;
(b) that the lands, the subject-matter of the acquisition for the Digya game reserve are part of Kumawu stool lands for which compensation is payable to the stool; and
(c) that the various amounts claimed against the three defendants have been paid.

The defence then goes on to say that the three defendants were appointed, not by him, the co-defendant, but by the Kumawu Traditional Council, to prosecute the claim for compensation for and on behalf of the Kumawu stool; and that even though the three defendants prosecuted the claims in their capacities as the land owners, the compensation received was paid to the stool. The co-defendant then denied ever dealing with the first and third defendants in his private or personal capacity, and then went on to deny that he was accountable to the plaintiffs. Finally, the co-defendant averred that since neither he nor the Kumawu Traditional Council authorised the plaintiffs to initiate these proceedings for and on behalf of the Kumawu stool or oman, the plaintiffs have no locus standi. Furthermore, since the compensation was brought to him as the present occupant of the Kumawu stool, this action is misconceived. Then follows the general traverse.

Turning first to the case of the first and third defendants, the paramount issue for consideration is whether they were privy to

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the decision to claim compensation in their names for the Digya Kogyae acquisition. These two defendants, though asserting the negative that they were oblivious of any decision to use their names in any claims for compensation, were obliged to satisfy the court that throughout the protracted events that led to the initiation of these proceedings they had no idea that compensation had been claimed in their names up to the time they were served with the writs herein.

Although there were discussions at traditional council meetings relating to the compensation moneys, the subject-matter of the action, the contention by the co-defendant that these two defendants were appointed by the traditional council at a meeting attended by the first and third defendants, was not supported by the evidence, oral or documentary, adduced in court. Indeed, the testimony of the secretary to the council at the material time is, in my view, conclusive on the point. Called as the second witness for the co-defendant all the minutes of the Kumawu Traditional Council which counsel considered relevant to this action (exhibits AS2 (a)-(g)) were tendered in evidence through him. These exhibits were tendered apparently in proof of the co-defendant’s contention that the first and third defendants were appointed by the traditional council at a meeting attended by the said two defendants. The said two defendants were indeed present at all those meetings, and there were, in fact, discussions relating to the acquisition, the payment of compensation and the future distribution of compensation. But as admitted by the co-defendant’s second witness, nowhere in any of the minutes tendered in evidence is there any mention of the appointment by the traditional council or the co-defendant, of the first and third defendants as claimants for and on behalf of the Kumawu stool; there was no discussion regarding the person in whose names the claims were made; there was no mention of Mr. Ben Dwimoh being employed as surveyor by or on behalf of any of the said two defendants; there was no mention of Mr. Appiah-Menka being engaged by or for anyone; there was no discussion of the first and third defendants being freehold owners of any land; and there was no discussion that to facilitate ease of payment the claims for compensation were to be lodged in the names of the three defendants.

A perusal of exhibits AS2 (a)-(g) discloses that minutes of the council were very full and covered matters of importance as well as trivialities. An important matter such as the appointment of persons to claim compensation for and on behalf of the stool would not have escaped the record. The omission of this important item from all the minutes of the traditional council suggests that no such appointment was ever made; and if it was ever made, as the second

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defendant contends, then it was made privately between the co-defendant and the second defendant alone. The secretary to the traditional council said:

“It was at the meeting of 19 August 1976 that I heard, as a recorder of the minutes for the first time, that it was in the names of the three defendants that the compensation in respect of Digya lands had been collected.”

Exhibit AS2 (g) dated 19 August 1976 was a meeting of the council called by the co-defendant after the three defendants had deposited the writs served on them with him. The purpose of that meeting was to discuss the actions commenced against the three chiefs.

The letters of claim (exhibits El-3) written by Mr. Appiah-Menka to the Chief Lands Officer, were supported by affidavits deposed to by the first and third defendants. In those affidavits they claim to be owners of the land and there is a jurat at the foot saying that the affidavits deposed to were read over and interpreted to them in the Twi language. If indeed this was done, then the first and third defendants knew from the beginning that claims for compensation were lodged in their names. But they are insistent that the affidavits were neither read nor interpreted to them, and I am inclined to believe them.

In the first place, if one looks at exhibit E2, one finds that it is supported by an affidavit signed by the second defendant Nana Adu Gyamfi, who is literate and has held high office as the vice-president of the Co-operative Movement in Ghana and is now the chairman of the board of directors of his own company. The oath for this affidavit was administered by the same commissioner for oaths and there is also a jurat signed by the commissioner for oaths to the effect that the second defendant signed the affidavit after the same had been read over and interpreted to him in the Twi language by the said commissioner. This I do not believe. And if I do not believe that the commissioner read and interpreted exhibit E2 to the second defendant as stated in the jurat, why should I believe that the first and third defendants were treated otherwise?

Again, exhibits Sl, T1 and Ul have affidavits of the three defendants S3, T3 and U3 attached to the letters of acceptance written by Mr. Appiah-Menka to the offer made by the Chief Lands Officer. Again the second defendant’s affidavit, like those of the first and third defendants, carries a jurat that the affidavit was interpreted to him in the Twi language before he executed it by signing his name. The commissioner for oaths was the same in this as in the case of exhibits El-3. In the other affidavits deposed to by the second defendant since the issue of the writ, there is no jurat that the said affidavits

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were read and interpreted to him in the Twi language. Again I am of the view that exhibits S3, T3 and U3 were not read and interpreted to the defendants before their thumb-printing or signing the same. I am compelled to conclude that, on the available evidence, the first and third defendants appear not to have had prior knowledge that claims for compensation had been lodged in their names until the co-defendant’s press conference, which was conducted in Twi and at which the said defendants were present. The evidence, however, is not conclusive and I am not prepared to hold that the co-defendant perpetrated fraud on the first and third defendants.

The case for the second defendant did not prove as complex as it had threatened to be. The stance he took, that as Osiakwanhene, which position he was elevated to in or around 1973, that he was the caretaker of all Kumawu lands in the Afram plains was at once both pathetic and ludicrous.

The government acquisition of Digya-Kogyae area was published on 20 September 1971. The second defendant was first made a chief in October 1971, when the lands no longer belonged to the Kumawu stool to enable it appoint him a caretaker of the lands; and his elevation to Osiakwanhene came much later.

The whole of the second defendant’s evidence was characterised by half-truths and downright lies. Of him one may confidently say that the truth is foreign to him. He was, however, compelled under a spell of inspired cross-examination by Mr. Asumadu-Sakyi, learned counsel for the plaintiffs, to make some damaging admissions. He said:

“Nobody has any farms on the lands compulsorily acquired by the government and for which compensation was paid ... The statement in exhibit E2 that my large tract of freehold farming land has been acquired by the government is not correct. Yesterday I told the court that it was when I later went to Appiah-Menka’s office that I was told that the amount claimed in my name was ¢531,960. I see in paragraph 5 of exhibit E2 the sum of ¢531,960 and I did say in the said paragraph of exhibit E2 that I was claiming as from 13 October 1975, ¢531,960 as compensation from the government in respect of my freehold farm lands compulsorily acquired.”

This was the evidence of a man who had testified earlier that he had no idea of the amount claimed or paid in his name before the service of the writ. He continues:

“In paragraph (6) of exhibit E2, I said that I am the sole freehold owner of the land so described above and within the Digya game reserve and that I am the only person lawfully entitled to

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the compensation in respect of the area so described and valued. I admit that paragraph (6) of exhibit E2 is false. At the time I deposed to exhibit E2 I knew the averment therein made were false, but I can explain them.”

A little later in his testimony he said:

“I do not know that on 25 November 1975 Fred Owusu, the Chief Lands Officer, the plaintiffs’ fifth witness, wrote to my lawyer Mr. Appiah-Menka in respect of my claim. I was not shown the letter exhibit U1. I do not know that on the same day 25 November 1975, Mr. Appiah-Menka replied to the Chief Lands Officer’s letter accepting the very amount stated in exhibit E2. He did not show the letter to me. To the letter of acceptance exhibit U2 Mr. Appiah-Menka exhibited an affidavit from me—exhibit U3. I never instructed my solicitor to write what is to be found in exhibit U2. I agree that the contents of exhibit U3 are the same as those of exhibit E2. I deny that I instructed Mr. Appiah-Menka. It was the co-defendant who instructed him to prepare the affidavits for me. I have in my hand exhibits E2 and U3. They both bear my signature. I heard that you, Mr. Asumadu-Sakyi, as a result of press comment on the acquisition reported Mr. Appiah-Menka to the General Legal Council. I and the other defendants made statements which we signed and forwarded to the General Legal Council—exhibit A. I have in my hand exhibit A. The signature on it is mine. In paragraph 2 of exhibit A is the statement that we the undersigned employed Appiah-Menka to process our claims for compensation for a fee of ¢35,000 each, but 1 have an explanation to give.

In paragraph (4) of exhibit A appears the statement that Mr. Appiah-Menka had accomplished the task for which we engaged him satisfactorily and he had been paid his fees, but I can explain the reason for this statement.

I deny that I engaged Appiah-Menka to process any claim... In exhibit A paragraph (5) we did say that we had paid Mr. Appiah-Menka his fees, but I have an explanation to give.

Exhibit A was a statement made by us to the General Legal Council for the purposes of an inquiry being conducted by the General Legal Council ...

Yesterday, I told the court that Mr. Appiah-Menka was solicitor to the co-defendant.

In exhibit A, we stated to the General Legal Council that we engaged Mr. Appiah-Menka, paid him his fees and we were satisfied with his services, but 1 have an explanation to give.

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The true story is that the co-defendant engaged Mr. Appiah-Menka.

The explanation I have for sending false information to the General Legal Council in exhibit A was that the co-defendant requested me to sign the document as it was.

The explanation I have for appending my name to all the falsehoods contained in the affidavits shown to me this morning is that I signed them on the instructions of the co-defendant who engaged his own solicitors to prepare the said papers.

The sole explanation I have to give for all the falsehoods in the documents shown to me this morning is that I signed them all on the instructions of the co-defendant.

I did not sign the documents shown me of my own free will and accord. I did so on the instructions of the co-defendant.

I admit that the sum of ¢531,960 was paid to me on the strength of exhibits El, i.e. the letter of claim from the solicitors on my behalf, E2—my affidavit in support of exhibit El, U2—letter of acceptance of offer written by Appiah-Menka, and U3—my affidavit in support of the letter of acceptance, but these were done on the instructions of the co-defendant. I have already told the court that at the time of signing exhibits E2 and U3, I knew the contents to be false and that I had an explanation to give.”

It must be pointed out that although the statement by the three defendants to the General Legal Council, exhibit A, was thumb-printed by the first and third defendants, there was no statement to the effect that it had been explained and interpreted to them in the Twi language and its evidential value as against them is set at naught.

I have quoted at length from the cross-examination of the second defendant because it brings into focus the nature of the plaintiffs’ action against him and the strength of his own defence to that action. Here is a man who admits that he knowingly made false statements in affidavits intending them to be used to claim moneys to which he was not entitled; that the affidavits were so used, and the moneys were paid in his name as a result of the misrepresentations therein contained. It certainly would be unjust to allow such a man to keep moneys so obtained as against the person legally entitled to them. It is of no consequence that he acted as an agent in the matter; if the misrepresentation is fraudulent, an action may be sustained against the principal or the agent, or against both. It may be that this principle, together with other considerations, is what influenced the Court of Appeal in joining the third party as a co-defendant to the suit.

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The co-defendant declined to avail himself of the opportunity to mount the witness-box and refute the heinous allegations made against him by the three defendants. Instead, he chose to rely on the testimony of witnesses who could not shift the burden cast upon him, the co-defendant; for surely, no one but the co-defendant could attest to whether he did or did not request the second defendant to append his signature to documents which both the co-defendant and the second defendant were well aware, contained representations of a false nature, and on the strength of which representations moneys were paid in the name of the second defendant. The co-defendant, however, admits in his pleadings that the moneys paid in the names of the three defendants have all been paid to him.

The plaintiffs’ action for money had and received seeks a restitutionary remedy from this court against the defendants and co-defendant. The development of the law of restitution in English law has been checkered, due principally to the rigidity of the old forms of action and the necessity to invent fictions to circumvent that rigidity. To enable a party wronged to obtain redress, the fiction employed was to allege a contract or a promise where none existed between the parties. It was not even a tacit though genuine promise implied from the facts, but an entirely fictitious promise; a so-called contract implied in law.

In the celebrated case of Moses v. Macferlan (1760) 2 Burr. 1005, counsel argued that no action would lie because assumpsit lay only on an express or implied contract, and on the facts of the case, it was impossible to presume any contract to refund the money claimed by the plaintiff. Lord Mansfield gave this answer at p. 1008:

“If the defendant be under an obligation, from the ties of natural justice, to refund; the law implies a debt, and gives this action, founded in the equity of the plaintiff’s case, as it were upon a contract (‘quasi ex contractu,’ as the Roman Law expresses it).”

After the abolition of the forms of action by the Common Law Procedure Act, 1852, lawyers who sought to classify actions into contract or tort, seized upon the contract implied by law in such actions and declared them to be appendages of contract law. As Goff and Jones put it at p. 9 in their book The Law of Restitution published in 1966: “The ‘implied contract’ ceased to be simply an undesirable means to a desirable end. It became the ‘basis of the law of quasi-contract’.” Yet no logical answer can be given to the question: When is a contract to be implied? It is difficult to understand, for example, how someone who had been paid money under

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a mistake, still less a thief who has stolen money, could be held to have impliedly contracted to repay it.

The promise or obligation to pay was obviously imposed by law and any genuine promise was plainly contrary to the facts, especially, as in the instant case, where the defendants were actually tortfeasors.

Thus in United Australia Ltd. v. Barclays Bank Ltd. [1941] A.C. 1 at pp. 27-29, H.L., Lord Atkin, when referring to such a case, said:

“ . . . if a man so wronged was to recover the money in the hands of the wrongdoer, and it was obviously just that he should be able to do so, it was necessary to create a fictitious contract: for there was no action possible other than debt or assumps it on the one side and action for damages for tort on the other ... The law, in order to do justice, imputed to the wrongdoer a promise which alone as forms of action then existed could give the injured person a reasonable remedy ... These fantastic resemblances of contracts invented in order to meet requirements of the law as to forms of action which have now disappeared should not in these days be allowed to affect actual rights.”

Further evidence of the movement in English law from the implied contract theory to a law of restitution is to be gleaned from a statement by Lord Wright in his judgment in Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd. [1943] A.C. 32 at p. 61, H.L. He said:

“It is clear that any civilized system of law is bound to provide remedies for cases of . . . unjust enrichment or unjust benefit, that is to prevent a man from retaining the money of or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution.”

The action for money had and received, therefore, lies to enforce a right of property and not any implied promise. It lay wherever money was taken from the true owner; and as Denning J. said in Nelson v. Larholt [1948] 1 K.B. 339 at p. 342:

“A man’s money is property which is protected by law. It may exist in various forms, such as coins, treasury notes, cash at bank, or cheques, or bills of exchange of which he is ‘the holder’ but, whatever its form, it is protected according to one uniform principle. If it is taken from the rightful owner, or, indeed, from the beneficial owner, without his authority, he can recover

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the amount from any person into whose hands it can be traced, unless and until it reaches one who receives it in good faith and for value and without notice of the want of authority.”

The common law was not alone in devising a remedy for unjust enrichment. Equity likewise, through the principle of the constructive trust and the mechanism of tracing, developed some principles aimed at forcing a man to disgorge property in his possession which rightly belongs to the plaintiff. As Cardozo J. put it in Beatty v. Guggenhein Exploration Co. 255 N.Y. 380 at p. 386 (1919):

“A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.”

All these principles have been recognized and accepted in the leading Ghanaian case of Harlley v. Ejura Farms (Ghana) Ltd. [1977] 2 G.L.R. 179 in which Azu Crabbe C.J. at pp. 198-199, C.A. (full bench) said of this type of action: “The question really [is] ... whether the factual situation between the parties made it unjust or unconscionable for the respondents [defendants] to keep the money.” I am therefore, obliged to consider whether in the circumstances of this case the factual situation between the parties makes it unjust or unconscionable for the defendants and the co-defendant to keep the moneys in their hands.

I have already expressed the opinion that the evidence is not conclusive that the third party co-defendant perpetrated fraud on the defendants. However, the evidence appears to me to be conclusive that, he procured the three defendants to make claims based on representations false in every material particular and, as a result of which representations, the compensation, the subject-matter of these actions, were paid. From the evidence and on his own pleadings, the co-defendant knew and was privy to the false claims made in the names of the defendants. He thus perpetrated fraud on the stool or oman of Kumawu. It matters not whether the first and third defendants were aware that their names were being used as claimants for compensation. The clear and unrebutted evidence from all the three defendants is that the co-defendant engaged counsel and instructed him on these claims for compensation. The co-defendant knew that the land was Kumawu stool land, yet he represented or allowed it to be represented as the private property of the three defendants herein.

The factual situation between the parties as I see it is this: the third party co-defendant is the Paramount Chief of Kumawu, but

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he is not being sued in his capacity as a chief; the land which attracted the compensation, the subject-matter of this action is stool land; stool land, in Ghana, belongs to the community serving the stool, never to an individual; the chief who occupies the stool is in charge of the lands as trustee thereof for the people in whom the absolute ownership is vested. The defendants, as also the plaintiffs, are all subjects of the Kumawu stool and as such, beneficiaries of the trust properties held by the co-defendant as trustee.

The moneys which the plaintiffs claim in this action are moneys accruing from the trust property of which the co-defendant is the trustee for both the plaintiffs and the defendants, but which the defendants have through the deceit or fraud or both of the co-defendant, wrongly taken and passed on to the co-defendant, who is keeping the funds as his own private funds. These moneys were paid to the defendants by the Chief Lands Officer under a mistake of fact; that the defendants were owners of the lands for which compensation was paid. The defendants, say the plaintiffs, by wrongly claiming and receiving the compensation moneys, became in law constructive trustees for the rest of the oman, and were bound to pay them into the trust fund. If these compensation moneys are paid to anyone else, except into the trust fund, the beneficiaries are entitled to trace them into those hands. Thus the plaintiffs now trace these trust moneys into the hands of the co-defendant.

There are two enactments in Ghana which deal with the acquisition of land by the government. The first is the Administration of Lands Act, 1962 (Act 123), s. 7 of which empowers the President (now Head of State) to acquire stool land in the public interest. Section 7 reads:

“7. (1) Where it appears to the President that it is in the public interest so to do he may, by executive instrument, declare any Stool land to be vested in him in trust and accordingly it shall be lawful for the President, on the publication of the instrument, to execute any deed or do any act as a trustee in respect of the land specified in the instrument.
(2) Any moneys accruing as a result of any deed executed or act done by the President under subsection (1) shall be paid into the appropriate account for the purposes of this Act.” (The emphasis is mine.)

It is evident that acquisition under section 7 of Act 123 is in respect of land already known to be stool land, and the compensation payable therefor is transferred direct to the stool lands account without any claim for compensation having to be filed by the stool affected. Since the owner of the land is known, all that is necessary

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is to negotiate for the payment of a fair and equitable amount as compensation for the acquisition.

The second enactment dealing with the acquisition of land is the State Lands Act, 1962 (Act 125), s. 1 (1) of which provides:

“1. (1) Whenever it appears to the President in the public interest so to do, he may, by executive instrument, declare any land specified in the instrument, other than land subject to the Administration of Lands Act, 1962 (Act 123), to be land required in the public interest; and accordingly on the making of the instrument it shall be lawful for any person, acting in that behalf and subject to a month’s notice in writing to enter the land so declared for any purpose incidental to the declaration so made.”(The emphasis is mine.)

Sections 2 and 4 of Act 125 dealing with the publication of the instrument of acquisition and claims for compensation respectively, have already been discussed, but the omission of such sections from Act 123, brings to the fore the essential difference between compulsory acquisition of land known to be stool land and the compulsory acquisition of lands other than stool land.

If, after the publication of the instrument of acquisition, i.e. the Wildlife Reserves Regulations, 1971 (L.I. 710), the land had been known to be stool land, the acquisition would have been conducted under Act 123 without the necessity for publication of the instrument as required by Act 125, and the compensation moneys would have been paid direct into the stool lands account. Because the land was not known to be stool land, the acquisition was conducted under Act 125. And by the co-defendant employing the devise of putting forward the three defendants as claimants, instead of the stool, he confounded the Lands Department further into thinking that the land, the subject-matter of the acquisition, was private property and the acquisition was treated as one falling under Act 125; hence the publication of the instrument in compliance with section 2 and the invitation to put in claims in accordance with section 4 of Act 125. One is forced to conclude that because of the deceit practised by the second defendant and the co-defendant, the acquisition of the lands, from which the compensation accrued, was carried out under Act 125 and not Act 123. No provision under Act 123 is, therefore, applicable to this acquisition.

If the co-defendant had claimed the compensation for these lands as stool lands in his official capacity, the compensation payable would, in compliance with section 18 of the Administration of Lands Act, 1962 (Act 123), which recites that: “All sums collected by or transferred to the Minister under this Act shall, subject to the

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provisions of this Act, be paid into a Stool Lands Account,” have been paid directly into such an account.

On the evidence and by his own admission in his statement of defence, the co-defendant permitted the compensation moneys to be claimed and paid in the names of the three defendants through the making of false statements in the documents supporting their claims. The co-defendant knew of and was privy to the false claims made in the names of the defendants. And by virtue of these false claims the compensation paid found its way into the hands of the co-defendant and was never paid into the proper trust account. If the co-defendant had claimed the compensation paid in his capacity as a chief and, as such, a trustee for the subjects of the stool, those moneys would have been paid directly into the stool lands account under section 18 of Act 123. It was because he did not claim the compensation moneys in his capacity as a chief, that the moneys were paid in the names of the three defendants and then handed over to him by Mr. Appiah-Menka.

All the decided cases disclose that a chief or head of family could retain his own property separate from stool property, and may conduct his own business without mixing his personal emoluments with those of the stool: see United Africa Co., Ltd. v. Apaw (1936) 3 W.A.C.A. 114. If a chief could carry on his own private affairs or business apart from his occupancy of the stool, then it stands to reason that should he commit a breach of contract or tort in respect of his private business, a subject would be entitled to sue him in his private capacity.

As I have stated previously, when a person enjoys a dual capacity it is the manner in which he conducts himself that will assist in the determination of the capacity in which he acted. If the co-defendant had claimed the compensation from the government as the occupant of the stool, then I would have been compelled to conclude that he acted in his capacity as a chief. Since he did not claim as such chief, and there is no evidence that the total amount claimed has been deposited in the stool lands account as stipulated under section 18 of Act 123, I can only conclude that in all the transactions regarding the compensation paid, he acted in his private capacity. This may be another of the reasons why the first and third defendants joined him as a third party, not in his official capacity as a chief, but in his private and personal capacity. This leads me to the issue of non-accountability of chiefs raised by Mr. Kom, even though the co-defendant is not being sued as a chief.

A principle of customary law is said to be that neither the occupant of the stool nor the head of family can be sued for an account either of stool or family funds. To sue the occupant of the stool for

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account, the subject is obliged to have him destooled first. The reason given is that, if it were not so, it would be possible for some subjects of the stool, who are opposed to the occupant of the stool, to maintain many suits against him for the purpose of ridiculing him or bringing his administration into disrepute, and thereby making it practically impossible for him to perform his duties: see Abude v. Onano (1946) 12 W.A.C.A. 102. Although I am bound by this authority, in my view, it is inapplicable to a case where the occupant of the stool has been sued in his private capacity, as in the instant case.

In this action, the co-defendant conspired with at least the second defendant to make representations that, the land for which the compensation moneys were paid, were other than stool land. Having represented that the land is not stool land and by that representation gained a benefit, he cannot, when he is sued, raise the plea that the action concerns an account of stool lands. As I understand the law, equity will not allow a statute to be invoked as a cloak for fraud: see Rochefoucauld v. Boustead [1897] 1 Ch. 196, C.A. In that case Lindley L.J. expressed himself thus at p. 206: “it is a fraud on the part of a person to whom land is conveyed as a trustee, and who knows it was so conveyed, to deny the trust and claim the land himself.” If statute law cannot be invoked as a cloak for fraud, how can a mere principle of customary law prevent a court of equity from giving relief in a case of a plain, clear and deliberate fraud? This action is not brought against the co-defendant as the occupant of the stool, but even if it were so brought, I would have been compelled to hold that, because of the manifestations of the fraud referred to, the action would lie against him.

It must be pointed out that in Abude v. Onano (supra), certain elders of the La stool sued the La Mantse for:
(a) an injunction restraining the occupant of the La stool and others from making withdrawals from stool funds, and
(b) an account of all moneys that had come into possession of the defendants or any of them for the La stool.

The nature of the claim discloses that in that suit the moneys over which an account was sought, had been paid into the La stool account or they were received for the La stool. In the instant case, the moneys sued for are not in the stool lands account and as they were obtained in fraud of the stool, they could not have been claimed for and on behalf of the stool of Kumawu.

The accounting sought from the co-defendant is, therefore, of moneys which though for the stool of Kumawu, have been received by the co-defendant in his private capacity and not in his official capacity for and on behalf of the stool of Kumawu. Had he wished

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to receive them in his official capacity, he would have claimed compensation for them in his official capacity under Act 123 and the compensation paid would have been transferred direct to the stool lands account. By the ruse of having the claim filed in the names of the three defendants the compensation was paid to him personally.

It may appear that by the pronouncement of the co-defendant at traditional council meetings that compensation was to be paid by the government for the acquisition of Kumawu lands, the co-defendant did intend to claim the compensation for the stool. But we are not here concerned with appearances. The question is: What did he actually do?

Under the customary law, the occupant of the Kumawu stool was not permitted to receive and keep moneys belonging to the stool. Traditionally, the Sanaahene acted as the treasurer of the stool and was responsible for all stool moneys. Now, under the Chieftaincy Act, 1971 (Act 370), and the financial instructions (exhibit Z2) issued pursuant to section 60 thereof, the traditional council, and not the occupant of the stool, has the exclusive right to collect and keep moneys belonging to the stool. For this purpose, the financial instructions provide for the appointment of bonded officers to handle moneys accruing to the stool or traditional council. Had the co-defendant directed Mr. Appiah-Menka to pay the compensation moneys, though wrongly claimed, to one of such bonded officers, I would have inclined to the belief that he was acting in the interest of his people. But the co-defendant received payment of the compensation moneys himself from Mr. Appiah-Menka and did not disclose the full amount received by him to the traditional council until reports appeared in the papers about a ¢1.5 million swindle. Of the said ¢1.5 million, only ¢400,000 is said to have been paid into the traditional council account. In any case with the admission by all the parties that the land for which compensation was paid was Kumawu stool land, the proper account into which the moneys should have been paid, is the stool lands account. It is evident that the co-defendant had no intention of claiming these moneys for and on behalf of the Kumawu stool and did not claim them for the stool. This conclusion is supported by the statement made by the co-defendant at the press conference held at the second defendant’s residence in Kumasi (exhibit 1). Even at that late date, the co-defendant proclaimed to the whole world that the lands, the acquisition of which compensation was paid, were the properties of the three defendants and not the Kumawu stool. How can one, in the face of such blatant falsehood, declare that he claimed the

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compensation for and on behalf of the Kumawu stool in his capacity as a chief?

In my view, in cases such as the instant case, where it is patent that the occupant of a stool has contravened every principle of custom or rule of statute law to defraud his subjects, he ought not to be allowed to take advantage of his own criminal misconduct and insulate himself from legal process, by praying in aid such customary principles as the unaccountability of chiefs or some section of statute law. To destool a chief before commencing civil proceedings against him does not appear to me to be an expeditious method of recouping moneys obtained by fraud. The very moneys sought to be reclaimed, will be used to resist any attempt to dislodge him from the stool. Furthermore, where all the elders of the stool have compromised themselves by participating in the enjoyment of the proceeds of that fraud, any hope that the destoolment charges would succeed should be considered a pipe-dream.

It seems to me that Mr. Kom, learned counsel for the co-defendant, is right when he argues that the question of the capacity in which the plaintiffs instituted these proceedings has never been properly argued. As far as I am aware, any determination before trial, of a point of law raised on the pleadings, without such point of law being set down for trial, offends Order 25, r. 2 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 25, r. 2 provides:

“2. Any party shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by the Judge who tries the cause at or after the trial, provided that by consent of the parties, or by order of the Court or a Judge on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.”

There does not appear to be on file any application by either party to have this issue of capacity set down for determination before trial; nor is there a consequential order setting it down for determination. I can only conclude that the issue has not been determined and that any observation made thereon were premature.

A common feature of the defences filed on behalf of the defendants as well as the co-defendant, as I mentioned earlier, is that they all challenge the capacity of the plaintiffs to initiate these proceedings. Mr. Kom submitted with the support of respectable authorities that where a plaintiff’s right to sue in a representative capacity has been challenged, he cannot succeed unless he proves that he has that capacity or is entitled to sue in that capacity: see Sokpui II v. Agbozo III (1951) 13 W.A.C.A. 241; Chapman v. Ocloo and Kporhanu (1957)

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3 W.A.L.R. 84; Sarpong v. Yentumi [1959] G.L.R. 250 at p. 252; Hagan v. Kotey [1961] G.L.R. (Pt. II) 594; Quartey v. Quartey [1963] 1 G.L.R. 58, S.C.; Yartey and Oko v. Construction and Furniture (W.A.) Ltd. [1962] 1 G.L.R. 86, S.C.; Akrong v. Bulley [1965] G.L.R. 469, S.C. and Asare v. Dzeny [1976] 1 G.L.R. 473, C.A. (full bench).

In none of these cases quoted by Mr. Kom, were the facts complicated by any issue of fraud, but they do support the submission made by Mr. Kom. The plaintiffs, to succeed in this action must prove either that they have the authority to sue as the representatives of the oman of Kumawu, or that, having regard to the circumstances of the case they are entitled to institute these proceedings.

In Kwan v. Nyieni [1959] G.L.R. 67 at p. 72, C.A. the Court of Appeal constituted by van Lare Ag.C.J., Granville Sharp J.A. and Ollennu J. addressed themselves to this issue of a member of the family initiating proceedings without authority, after considering the cases of Mahmudu v. Zenuah (1934) 2 W.A.C.A. 172 and Koran v. Dokyi (1941) 7 W.A.C.A. 78, and held at pp. 72-73:

“The conclusions we have come to, upon careful consideration of the judgments in the two cases to which we have referred, and other judicial decisions on the native custom in this regard, are as follows:

(1) as a general rule the head of a family, as representative of the family, is the proper person to institute suits for the recovery of family land;
(2) to this general rule there are exceptions in certain special circumstances, such as:
(i) where the family property is in danger of being lost to the family, and it is shown that the head (either out of personal interest, or otherwise) will not make a move to save or preserve it; or
(ii) where, owing to a division in the family, the head and some of the principal members will not take any step; or
(iii) where the head and the principal members are deliberately disposing of the family property in their personal interest, to the detriment of the family as a whole.

In any such special circumstances, the Court will entertain an action by any member of the family, either upon proof that he has been authorized by other members of the family to sue, or upon proof of necessity, provided that the Court is satisfied

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that the action is instituted in order to preserve the family character of the property.”

The plaintiffs in the instant action, claim the compensation moneys, not for themselves alone, but for the whole of the Kumawu state. As I understand it, what they seek from this court is an order or orders to the effect that the moneys belong to the Oman of Kumawu and that they should be recovered from the defendants and the co-defendant, who have misappropriated them, and lodged in the proper account—the stool lands account—for the benefit of the oman of Kumawu. They thus wish to preserve the character of these moneys as moneys belonging to the oman of Kumawu.

On the evidence, some citizens of Kumawu approached the traditional council in quest of information regarding these moneys ostensibly paid to the three defendants as their private property, but they were rebuffed by the traditional council. They next petitioned the Head of State who, under section 7 of the Stool Lands Administration Act, 1962 (Act 123), holds all such moneys in trust for the oman. From him too they received no assistance. They were thus compelled to seek the assistance of the court to preserve these moneys for the oman of Kumawu. Apart from the court, there was nowhere or anyone else they could approach for assistance; and since without such assistance these moneys would be lost to the oman forever, it became necessary to institute this action.

It is to be noted that the Court of Appeal in Kwan v. Nyieni (supra) in considering the exceptions to the general rule made it clear that the examples they were giving were not exhaustive, but the ratio decidendi seems to be that when it becomes necessary to institute action to preserve the family character of property, any member of the family may institute such proceedings in a representative capacity if the head of family and his elders, out of personal interest or for any other reason, will not make a move to preserve it. Necessity in this context may be equated with lawful justification and excuse in usurping the right of the head of family and his elders to initiate proceedings to protect family property. Obviously, no one can be given an exhaustive list of all the instances in which a member of the family may be compelled by necessity to bring a representative action to save family property; for whether it be necessary or not for a member of a family to commence such proceedings will turn on the facts of each case. But one thing is certain: it is for the plaintiff to satisfy the court that the necessity has arisen. In this case, I am satisfied that it was necessary for the plaintiffs to commence this action in the representative character they assumed.

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I do not favour the view taken by Mr. Kom that this principle expressed in Kwan v. Nyieni (supra) applies only when a member of the family proceeds against a non-member of the family, but not to cases where a member of the family proceeds against some members or member of the same family who have seized family property and are claiming it as their own to the detriment of the rest of the family. Kwan v. Nyieni (supra) happened to be a case in which the property sought to be recovered was in the hands of a non-family member. If, as I have observed, the purpose of these exceptions is to preserve the family character of the property, then whether the property is being lost to a member of the family or to a non-member of the family, the right to preserve the family character of the property in an action by a member who is not the head, is the same in both cases. The right given by law is to safeguard from obliteration the family character of property. And although in Kwan v. Nyieni (supra) the subject-matter of the dispute was land, the principles therein enunciated cover property in all its forms-not only land, as Mr. Kom suggests. If the restrictions which Mr. Kom advocates should be placed on Kwan v. Nyieni (supra) were permitted, its mitigating influence on the general principle of customary law, will be stultified, and greater scope will accrue to persons, who are in charge of family or stool properties, to defraud the beneficiaries.

Counsel for the co-defendant also exhibited some scepticism over the plaintiffs’ assertion that “they sue for themselves and also for and on behalf of the Oman of Kumawu.” He did not believe that there was a recognisable legal entity styled oman. Yet the said term “oman” was the subject of interpretation by the Supreme Court in the case of Banahene v. Hima [1963] 1 G.L.R. 323, S.C.

In that case, the plaintiffs brought an action for and on behalf of certain farmers and contended that they represented the “Oman” of Kwamang and their claim succeeded in the High Court. On appeal, the Supreme Court held that an action for and on behalf of the “Oman” of Kwamang must not be for the benefit of the farmers alone but must be on behalf of and for the benefit of the “oman” as a whole. The Supreme Court in effect recognised that entity called “oman.” The term “oman” is used to denote a state comprised of people under one paramountcy.

I am of the view that, the right conferred in Kwan v. Nyieni (supra) on a member of family to institute a representative action on behalf of the family to protect the family character of property, when it became necessary so to do, because of the recalcitrance of the head and elders to initiate such proceedings due to some personal benefit that has accrued to them, established the right of a member

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or members of the family to commence representative actions in such circumstances without the authority of the head and elders.

The combined effect of these two cases is that under customary law, the plaintiffs, having regard to the circumstances of this case, could maintain a representative action for themselves and on behalf of the oman against the defendants.

Apart from customary law, Order 16, r. 9 of L.N. 140A provides that:

“9. Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the Court or a Judge to defend in such cause or matter, on behalf or for the benefit of all persons so interested.”

Commenting on this rule in Ghana Muslims Representatives Council v. Salifu [1975] 2 G.L.R. 246 at pp. 257-258, C.A. Azu Crabbe C.J. stated:

“This form of procedure is known as representative ‘action,’ and the difference between this form of proceeding and one brought under Order 16, r. 1 is explained in a passage in the judgment of Fletcher Moulton L.J. in Markt & Co., Ltd. v. Knight S.S. Co., Ltd. [1910] 2 K.B. 1021 at p. 1039, C.A. that:

‘Nothing could be more striking than the contrast between the language of this rule [dealing with representative actions under Order 16, r. 9] and that of Order XVI. r. 1. The reason is obvious. In cases under r. 1 all the parties have the status and responsibilities of ordinary litigants, and the plaintiffs are such by their own consent. In representative actions it is wholly different. The plaintiff is the self-elected representative of the others. He has not to obtain their consent. It is true that consequently they are not liable for costs, but they will be bound by the estoppel created by the decision. The differences from the point of view of the defendant are equally striking. Those in whose behalf the action (so far as it is a representative action) is brought are not responsible for the costs, and are not subject to the ordinary liabilities of litigants in respect of discovery, & c.’
It is plain that the members of an unincorporated body can bring proceedings either under Order 16, r. 1 or under Order 16, r. 9 of L.N. 140A and in my view the learned judge, with

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respect, fell into error when he held that the Ghana Muslims Representative Council ‘can sue only by its trustees’.”

Thus, Order 16, r. 9 of L.N. 140A under which the plaintiffs in this action proceeded, exempts them from the necessity of obtaining the authority of the rest of the “oman” before initiating these proceedings in a representative capacity.

By far the most powerful submission by Mr. Kom and which deserves careful consideration is that, the amount the subject-matter of the plaintiffs’ claim is: “part of the compensation paid by the Government of Ghana or Lands Department or both in respect of Kumawu stool lands at Digya-Kogyae which the government has acquired for use as a national park and game reserve.” He then contends that when land is bought and a purchase price paid or where land is acquired and compensation paid, the purchase price or compensation represents capital calculated on a total loss basis. This capital sum paid, says he, is “revenue” as defined by section 17 (2) of the Administration of Lands Act, 1962 (Act 123). Now section 17 (2) of Act 123 provides:

“(2) Revenue for the purposes of this Act includes all rents, dues, fees, royalties, revenues, levies, tributes and other payments, whether in the nature of income or capital, from or in connection with lands subject to this Act.”

And section 17 (1) also provides:

“(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.”(The emphasis is mine.)
Mr. Kom therefore, concludes that any action to recover the compensation paid, can be instituted only by the Minister or Commissioner for Lands and Mineral Resources, or someone to whom he has delegated this right to recover such revenue. There being no evidence on record that the minister or commissioner has delegated this right to recover revenue to the plaintiffs herein, Mr. Kom submits that the plaintiffs have no locus standi.

Section 17 of the Administration of Lands Act, 1962 (Act 123), has been the subject of judicial interpretation and Mr. Kom cites four such authorities in support of his submission that the plaintiffs have no locus standi. The first of such authorities is Omanhene of

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Sefwi-Wiawso v. Donkor [1965] G.L.R. 462 wherein an action was commenced in the name of the stool-occupant to recover annual tribute from the defendant. At p. 465 of the judgment, Koranteng Addow J. (as he then was) delivered himself thus:

“The Administration of Lands Act, 1962, placed the management of all stool lands in the hands of the Minister responsible for Lands. The minister was therefore responsible for collecting all revenue accruing from such lands in the nature of rents, dues, fees, royalties, revenue, levies, tributes and other payments, whether in the nature of income or capital from or in connection with land, subject to section 17 (1) of the Act. Section 17 (1) provides that all rights to receive and all remedies to recover that revenue shall rest in the minister, and subject to the exercise of any power of delegation conferred by the Act, no other person shall have the power to give a good discharge for any liability in respect of the revenue or to exercise any such right or remedy. Section 17 (1) of the Act couched in such mandatory terms makes it abundantly clear that it is only the minister or his nominee who can bring an action like this to enforce the payment of revenue. It thus leaves no room even for an ‘interested party’ to enforce directly the payment of any revenue. He may do so indirectly perharps by resorting to a prerogative writ directed against the minister. This action instituted by the traditional council is therefore illegal as offending against the Administration of Lands Act, 1962, and should have been dismissed on that ground alone. The council had no locus standi.”

In Badu v. Ababio [1967] G.L.R. 1 wherein the plaintiff as the occupant of the paramount stool of Dormaa was claiming customary rents in respect of lands attached to his stool, Sampson Baidoo J. following the decision in Omanhene of Sefwi-Wiawso v. Donkor (supra) concluded at p. 5 of his judgment:

“It is clear from section 17 that a chief as such has no locus standi to sue for rents from stool lands and I agree with the decision of Koranteng-Addow J. in Omanhene of Sefwi-Wiawso v. Donkor [1965] G.L.R. 462 that an action by a chief as such for payment of rents from stool land offends section 17 of Act 123 which in effect prohibits such an action. Such an action could therefore be dismissed on that score alone.”

In Asani II v. Atta Panyin; Atta Panyin v. Essumang (Consolidated) [1971] 1 G.L.R. 166 where a counterclaim was lodged for “account for all moneys received by the plaintiff from strangers on the land.” Charles Owusu J., after holding that the said land was stool land by virtue of section 8 (1) of Act 123, concluded at p. 172 of

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the judgment that: “the counterclaim offends against section 17 (1) of Act 123,” and dismissed the counterclaim for accounts.

Notwithstanding these decisions and the high reputation of the judges by whom they were pronounced, it is my view that they do not take into consideration the purpose of Act 123 and the conditions precedent to its operation. It is to be observed that they all deal with rents or customary tribute from land ascertained to be stool land, and these decisions are not to be taken as establishing an all embracing principle encompassing compensation in its range. What is more, none of those cases was complicated by the issue of fraud or the other issues which have reared their heads in the instant action. Act 123 itself, seems to have been fashioned on an utopian idea of having all land in Ghana parcelled out in such a way that the boundaries of each stool would be precisely known, hence the establishment of the Stool Lands Boundaries Settlement Commission. When the boundaries of each stool are known, then the minister responsible would be enabled to administer stool lands in compliance with the provisions of Act 123, with special reference to section 17 (1).

Suppose, for instance, that two stools both lay claim to the same tract of land with stranger farmers settled thereon and consequently to the rents or tributes due from those farmers; since both stools claim the tract of land to be stool land, only the minister by virtue of section 17 (1) of Act 123 can claim the revenue derived therefrom. Suppose further that stool A is able to persuade the minister to institute proceedings to claim the rent or tribute from the strangers on the land; if the strangers join stool B which then counterclaims for part of rents paid to stool A, is the Minister responsible for Lands supposed to maintain the action as plaintiff and counterclaim as defendant, because both stools are claiming what section 17 (2) of Act 123 defines as revenue?

The whole purpose of Act 123, it seems to me, was to prevent the perpetration of fraud by occupants of stools and their elders on their subjects; that was why the right to collect, and give a good discharge for revenue, was vested in the minister; that was why a stool lands accounts was established under section 18 of the Act; and that was why it was made a misdemeanour under section 27 for any person to enter into any transaction which contravenes any provision of Act 123.

If Act 123, without the proper demarcation of stool boundaries, is to be interpreted in accordance with the views advanced by Mr. Kom, then the Chief Lands Officer and all the persons in the Budget Secretariat of the Ministry of Finance, who were involved in the transaction by which the compensation moneys were paid to the defendants, could be proceeded against under section 27 of the Act.

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So also would Mr. Appiah-Menka and Mr. Dwimoh fall foul of the said section 27.

What, if three stools lay conflicting claims to some tract of land which has been compulsorily acquired, can the minister represent all three stools in the conflicting claims for compensation? If he should take the side of one stool, would he not be proceeding against himself in the other two? It may even be argued, applying Mr. Kom’s interpretation of the said section, that in the Asani II v. Atta Panyin (supra), once the learned judge concluded that the land in dispute was stool land, he should have dismissed not only the counterclaim, but the plaintiffs’ claim as well, because the claim for declaration of title imported a right to the collection of future revenue, and the action was not initiated by the minister.

These questions make it apparent that there can be no meaningful application of section 17 of Act 123 unless it is given a restricted interpretation. As I stated earlier, Act 123 imports an utopian idea meant to operate under conditions in which the boundaries of every stool are known. That is why for compulsory acquisition under Act 123, no provision is made for publication nor is any made for the stool to put in a claim. It is also revealing that there is no provision for conflicting claims. The land is already known to belong to stool A and so upon execution of the relevant documents the compensation moneys are transferred from government chest to the minister for deposit in the stool lands account on behalf of stool A. The boundaries of stool lands not having been demarcated as anticipated by Act 123, practically all acquisition of land by the government is concluded under Act 125, with the occupant of the stool putting in a claim for and on behalf of his stool in apparent contravention of section 17 of Act 123.

Fortunately, there are, at least, two possible answers to the legal conundrum set by Mr. Kom, and learned counsel for the plaintiffs provide one in their address. Counsel stated that section 17 (1) of Act 123, provides that: “All revenue from lands subject to this Act shall be collected by the Minister and for that purpose . . .” and submitted, quite rightly in my view, that the words “and for that purpose” circumscribe the extent and nature of the minister’s powers under the section. Put in another way, they are words limiting the scope of his powers in the collection of that revenue.

Now section 4 of the State Lands Act, 1962 (Act 125), which is an Act later in time and subsequent to Act 123, provides:

“4. (1) Any person claiming a right or having an interest in any land subject to an instrument made under section 1 of this Act or whose right or interest in any such land is affected in any

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manner shall, within three months from the date of the publication of the instrument made under the said section 1, submit in writing to the Minister,

(a) particulars of his claim or interest in the land;
(b) the manner in which his claim or interest has been affected by the instrument;
(c) the extent of any damage done;
(d) the amount of compensation claimed and the basis for the calculation of the compensation,
and the Minister may, having regard to the market value or the replacement value of the land or the cost of disturbance or any other damage suffered thereby, pay compensation in respect of that land or make an offer of land of equivalent value.
(2) Where there is a dispute as to the right or interest claimed by reason of conflicting claims or interests, or any person is not satisfied with the compensation assessed by the Minister, the
Minister may refer the matter to the Tribunal.” (The emphasis is mine.)

Under section 32 of the Interpretation Act, 1960 (C.A. 4):

“32. “Person’ includes a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons as well as an individual.”

Thus the term any person employed in section 4 of Act 125 includes a stool or oman, either of which is a corporation, and a stool or oman may claim compensation under section 4 of Act 125, if its land is compulsorily acquired. This provision therefore, appears to exclude compensation which, although a capital gain and therefore partakes of the nature of capital, from the definition of revenue contained in section 17 (2) of Act 123; for if compensation were revenue, Act 125, which is later in time than Act 123, would not have conferred on the stool or oman the right to claim it from the very minister who is to exercise the right to collect revenue on behalf of a stool to the exclusion of everybody else.

In all the cases cited by learned counsel for the co-defendant in support of the contention that the Minister or Commissioner for Lands, or a person delegated by him, is the only person who may initiate proceedings for the recovery of revenue due to a stool, the revenue claimed by the plaintiffs in each case was in the form of rents, dues and tolls, and not compensation for compulsory acquisition payable under section 4 of Act 125. There is thus no decided case which has declared compensation payable under section 4 of Act 125, to be revenue, as defined in section 17 (2) of Act 123. This

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view that compensation was excluded from the definition of revenue by legislation subsequent to Act 123, is supported by other legal reasoning.

Before the Promulgation of the State Lands Act, 1962 (Act 125), any land needed for public use was compulsorily acquired under the State Property and Contracts Act, 1960 (C.A. 6), which had repealed the Public Lands Ordinance, Cap. 134 (1951 Rev.). Under that Ordinance, the established legal practice or procedure was that the stool itself, through its occupant, claimed compensation for its lands compulsorily acquired: see Osu Mantse (Claimants); In re the Public Lands (Leasehold) Ordinance [1959] G.L.R. 163; Owusu v. The Manche of Labadi; Re Nkwantamang Land (1933) 1 W.A.C.A. 278; Re Claims by La Mantse: Re Acquisition of Land for Presbyterian Secondary School [1965] G.L.R. 50.

In the case of the Osu Mantse (Claimants) (supra), Ollennu J. (as he then was) put the legal position succinctly. He said at p. 167:

“In the case of compulsory acquisition of land, the place of a grant by the Stool is taken by the Court’s Certificate of Title following an expropriation of the Stool by operation of the relevant statute. But though in such a case the Stool does not grant the land, nevertheless it remains appropriate that the Stool should be the recipient of the compensation. And so it has been held that the proper person to receive compensation for land compulsorily acquired under the Public Lands Ordinance is the occupant of the Stool.”(The emphasis is mine.)

Though the learned judge did not add it, because it was not relevant to the case before him, the occupant of the stool received the compensation moneys as a trustee for the oman or his subjects. As such, the whole amount received had to be paid into the stool treasury and not into the private bank account of the occupant. This procedure by which the stool claimed compensation for land compulsorily acquired continued under the State Property and Contracts, Act, 1960 (C.A. 6).

The State Property and Contracts Act, 1960, was not repealed by Act 123. Therefore, the procedure whereby a stool itself lodged its clams for compensation for its lands compulsorily acquired was not abolished by Act 123. Indeed, Act 123 did not even provide any procedure for the lodging of claims for compensation for lands compulsorily acquired.

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The State Property and Contracts Act, 1960, was repealed by Act 125, s. 4 of which, as has already been stated, provided a new procedure for claiming compensation. And since under Act 125, the stool is not precluded from claiming compensation, the necessary inference is that compensation is not “revenue” as defined by section 17 (2) of Act 123. And as learned counsel for the co-defendant admits in his address that the compensation, the subject-matter of this action, was claimed and paid under Act 125, the sum claimed from the defendants is not “revenue” within the meaning ascribed to that word by section 17 (2) of Act 123.

Another solution to the problem posed by Mr. Kom can be .arrived at by approaching it from the point of view of implied repeal of enactments. The legislature is deemed in law to have been aware of section 17 of Act 123 when it was promulgating Act 125. If the legislature had intended that it was the Minister for Lands who must collect compensation under section 4 of Act 125 for stools whose lands were compulsorily acquired under Act 125 then the legislature should have qualified the word “person” used in section 4 of Act 125 by enacting that “any person other than a stool” whose interests or rights are affected by the Act may submit his claim, etc.

Thus, even if compensation, being a capital gain is considered to be of a capital nature and, therefore, caught by the definition of “revenue“ in section 17 (2) of Act 123, the enactment of section 4 of Act 125, which made compensation claimable by stools impliedly excluded compensation from revenue as defined by section 17 of Act 123. In Vauxhall Estates, Ltd. v. Liverpool Corporation [1932] 1 K.B. 733, it was held that provisions contained in a later Act (Housing Act, 1925 (15 Geo. 5, c. 14), s. 46), which related to compensation to land compulsorily acquired, repealed by implication, the provisions of an earlier Act (Acquisition of Land) (Assessment of Compensation) Act, 1919 (9 & 10 Geo. 5, c. 57), which attempted to invalidate subsequent legislation so far as it might be inconsistent. And in Ellen Street Estates, Ltd. v. Minister of Health [1934] 1 K.B. 590, C.A. Maugham L.J. said at p. 597:

“The Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal. If in a subsequent Act Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must

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be given to that intention just because it is the will of the Legislature.”

For the above reasons I hold that compensation under Act 125 is excluded from the definition of “revenue“ contained in section 17 (2) of Act 123.

Even if further inquiry had not disclosed that compensation under Act 125 was not “revenue” as directed by section 17 (2) of Act 125, I doubt whether the co-defendant would have benefited from such lack of inquiry. I cannot believe that equity will permit a man to keep moneys, which he had obtained by fraud, through the invocation of some statutory provision designed to prevent fraud. For example, both the Statute of Frauds, 1677 (29 Cah. 2, c. 3), and section 40 of the Law of Property Act, 1925, declared certain agreements to be unenforceable unless they are evidenced in writing. Yet as early as 1737, Lord Hardwicke in Hutchins v. Lee (1737) 1 Atk. 447 at p. 448 allowed evidence to be introduced of an oral agreement by the defendant to hold a leasehold estate, which had been absolutely conveyed to him, on trust for the plaintiff in certain events that had occurred. Thus a defendant, who pleads the absence of a written memorandum in an attempt to defeat a trust, will be deemed to hold the property as constructive trustee for the beneficiary or beneficiaries under that trust. And as James L.J. put it in Haigh v. Kaye (1872) L.R. 7 Ch. App. 469 at p. 474, “the Statute of Frauds was never intended to prevent the Court of Equity from giving relief in a case of a plain, clear and deliberate fraud.”

Act 123 which in my view was promulgated in anticipation of an orderly system of land tenure which we have never attained in Ghana, and from which we are fast receding, by making the minister the only person to collect “revenue,” was fashioned to prevent fraud. Fraud usually involves a criminal offence, and if there were in fact fraud, a provision in any statute which prohibits anyone from bringing it before a court of justice would, I should have thought, be clearly contrary to public policy; and the courts would lean against giving it that effect. The courts have, therefore, not allowed statutory provisions to be used as an engine of fraud.
Having come to the conclusion that the plaintiffs’ action is competent, and that they are entitled to a restitutionary remedy against the defendants, who became constructive trustees because they either negligently or knowingly permitted trust moneys to be claimed and paid in their names with notice of the trusts, I am bound to enter judgment in favour of the plaintiffs against the defendants.

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The co-defendant’s admission that he received the trust moneys from the defendants with knowledge of the trusts, makes him in pari delicto with the defendants; and since there is no evidence before this court that all the trust moneys have been paid into the proper trust account judgment must go against the co-defendant also.

The evidence shows that out of the amounts claimed in the names of the first and third defendants, they benefited by ¢4,000 each, which sum each of them has deposited in court. There will, therefore, be judgment for the plaintiffs for the sum of ¢4,000 against each of the first and third defendants.

As regards the second defendant, Nana Adu Gyamfi, the evidence is that he knowingly, and without any belief in the truth thereof, made false statements, on the strength of which compensation moneys were claimed and paid in his name. It does not matter whether he himself did or did not receive the trust property; the principle of law, as I understand it, is that a person who does not actually himself receive the trust property also incurs liability to the beneficiaries if he knowingly assists in a fraudulent design on the part of the trustee: see Barnes v. Addy (1874) 9 Ch. App. 244 at p. 251. The second defendant has paid the full amount of ¢531,960 which he fraudulently claimed in his name into court and I enter judgment in favour of the plaintiffs against the second defendant in the said sum of ¢531,960.

The co-defendant, on his own admission, received the remainder of the sum which the three defendants claimed as compensation from the government. I shall therefore enter judgment for the plaintiffs against the co-defendant for the sum of ¢1.029,592 and I hereby order the co-defendant to deposit the said judgment debt with the registrar of this court within ten days from the date of this judgment.

The question of costs has always vexed me, and my despondency is not alleviated when I am informed that costs are within the discretion of the court. To begin with, had the three defendants in their original defences admitted that the land for which compensation was paid, was not land to which they had absolute title, most of the pleadings and interlocutory matters could have been dispensed with; and but for their fraud, technical and otherwise, most of the evidence led would not have been necessary. The fraud of the defendants as well as that of the co-defendant had to be proved strictly by the plaintiffs, and as the second defendant and co-defendant strenuously resisted any evidence adduced by the plaintiffs, it took almost a year to hear evidence from the parties and their witnesses. The case has been time-consuming for all the parties and the costs for the winning party must be commensurate with the expense incurred in

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litigation. I am also persuaded by the exhibition of that public spiritedness on the part of the plaintiffs, which has saved their oman so much money, to award costs to underscore this court’s appreciation of the honesty and devotion to their community.

Against the first and third defendants, who were in the main ignorant of the fraud that was being perpetrated in their names, and whose change of heart proved to be the turning point in this case, I award costs of ¢500 each. Against the second defendant, who was one of the main architects of the fraud perpetrated on the oman, I award costs of ¢8,000. Against the co-defendant, who was the principal architect of and moving spirit in the fraud perpetrated on the oman, I award cost of ¢12,000.

As I have made findings of fraud against the second defendant, Nana Adu Gyamfi, and the co-defendant, Barima Asumadu-Sakyi II I feel it incumbent upon me to order that a copy of this judgment be served on the Attorney-General for his consideration and for him to take any action that he may deem fit; and I do so order.

I must commend counsel for their comportment, and the invaluable assistance which they gave to me in court during the trial of this action. The tenacity of purpose and industry of counsel for the plaintiffs; the tactical manoeuvres by counsel for the second defendant and the legal wiles of counsel for the co-defendant, made the trial of this case more enjoyable than it otherwise would have been.

Finally, I order that no part of the judgment debt paid into court is to be paid out to any person without an order of this court to that effect.

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