HIGH COURT, KUMASI
DATE: 31ST JANUARY, 1962
BEFORE: DJABANOR, J.
CASES REFERRED TO
(1) Nana Ayirebi Acquah III v. Nana Tawia Ababio (1948) 12 W.A.C.A. 343
(2) Serwah v. Kesse [1960] G.L.R. 227, S.C.
NATURE OF PROCEEDINGS
APPEAL from a judgment of the Kumasi West Local Court, Akropong, in a suit for declaration that farms left by former occupant of stool are stool property.
COUNSEL
W. K. Ackun for the defendants-appellants.
D. S. Effah for the plaintiff-respondent.
JUDGMENT OF DJABANOR J.
This is an appeal from the decision of Kumasi West Local Court at Akropong. The facts have been stated by the local court magistrate in his judgment as follows: “One Yaw Hemeng a stool grandson was requested by the stool family to occupy the stool till such time as a male member of the stool family comes of age. Hemeng occupied the stool and on his death his brother Kwaku Donkor, the first defendant, succeeded him. Kwaku Donkor was on the stool for about 20 years when he abdicated because he was blind. At the time, Niamoah’s family had had a male member who was old enough to occupy the stool and this is the plaintiff. The first defendant therefore handed
over the stool to the plaintiff in the presence of the Asokwahene, the first witness to plaintiff who is the overlord of the Bomso Stool.
During Hemeng’s occupancy of the stool, he cultivated two cocoa farms, one on Apagya stool land and another on Nwabi stool land. He also cultivated a number of farms on Bomso stool land, but those farms were destroyed when the Nwabi Water Works was being constructed. A compensation was given to Hemeng in respect of those farms destroyed. The first defendant inherited the farms left by Hemeng and when he abdicated he also handed over the stool and
[p.38] of [1962] 1 GLR 36
the farms to the plaintiff. The plaintiff offered an Aseda of £G2 7s. and one bottle gin in respect of the stool and the farms given him. At the request of the first defendant, however, the plaintiff agreed that he should possess one of the farms and use the proceeds to procure medicine to cure himself. The plaintiff took possession of the other farm.
Some time last year the third defendant, who is the nephew of first defendant protested against the plaintiff possessing this one farm, his reason being that the said farm was the self-acquired property of Hemeng and not a stool farm. Also that the plaintiff had clandestinely taken first defendant before the Asokwahene where he abdicated and had handed over Hemeng’s farms to plaintiff without the knowledge and consent of first defendant’s family. The plaintiff apologised to third defendant for not keeping him informed of first defendant’s abdication. The third defendant then warned plaintiff not to set foot in the farm any more, saying he had taken possession thereof. The plaintiff therefore took this action”.
It seems to me quite clear that the farm in dispute was transferred to the plaintiff by the first defendant before witnesses. What is in issue is whether the farms were transferred to the plaintiff because they were stool property which had been handed over or whether the first defendant gave them to the plaintiff as a gift. To answer this question it is necessary to determine whether on the death of Hemeng the farms were stool farms or his family property. If they were stool farms then the transfer by the first defendant was proper and valid; if they became the family property of Hemeng then the first defendant alone could not make a valid transfer of them to the plaintiff without the knowledge and concurrence of his family.
The respondent’s counsel submitted that on the principle of Nana Ayirebi Acquah III v. Nana Tawia Ababio1(1) the property acquired by a chief whilst on the stool belongs to the stool and unless he earmarked the private property when he ascended the stool it became mixed with the stool property and cannot be claimed by him on his deposition. He contended that in this case there is evidence that Nana Hemeng made these farms during his reign and so not having marked them apart, they became stool property. Afua Mansah, the plaintiff’s second witness gave evidence as to the custom upon which the local court based its judgment.
The defendants-appellants however urged strongly that the farms were the self-acquired property of Hemeng, and that they acquired the character of family property upon the death of Hemeng, and so the gift was invalid having been made without the knowledge of the family.
The latest authority on this custom is found in the case of Serwah v. Kesse2(2); van Lare J.S.C. said: “I now come to consider the last of the grounds of appeal argued which is as follows:— ‘That the plaintiff gave no evidence that she had declared the lands in dispute as her private family property at the time of her enstoolment as Queenmother of New Juaben and the learned trial judge was therefore wrong in holding that the said lands were the private family property of the plaintiff.’
Learned counsel relies on the law laid down in Antu v. Buedu (F.C. 1926—29, 474), which is that unless a chief’s private property is earmarked when he ascends to the stool, it becomes mixed up with the stool property and cannot be claimed by him on deposition. He further submits that the principle of law so enunciated has no exception and there can be no instance when it cannot apply. He has argued that in the absence of evidence that the respondent earmarked her said
[p.39] of [1962] 1 GLR 36
family property, that is to say, the disputed farms when she became Queenmother of New Juaben, by customary law her said property became merged and the said property must be deemed to have become a property attached to the stool of the Queenmother of New Juaben.
I am unable to agree. The exception to the general rule has been laid down by a later decision of Yamuah VI v. Seki (3 W.A.C.A at p. 58) when the African Court of Appeal accepted and attracted great importance to the evidence that: ‘the private property of a man put on the Stool as Ohene does not go to the Stool and he can dispose of it as he likes, and that if he is trading whilst on the Stool he can do what he likes with what he makes by his trading if he is trading with his own money.’
In my view the following statement of the law which I quote from the judgment appealed from relating to the position appears to me to be wholly correct: ‘There are many exceptions to that rule one of them is that where the stool holder has to the knowledge of the elders of the stool, kept his self-acquired property distinct or where whilst he is on the stool he engages in his private business to the knowledge of the elders, from which he earns an independent income, his failure to make pre-enstoolment declaration of his self-acquired property will not make his self-acquired property stool property.’
‘The general rule of customary law referred to by counsel applies either to ancestral stools which have accumulated properties over the generations or to stools to which definite properties were attached upon their creation. The occupant of such stool is expected to use part of the proceeds of such stool property for his upkeep and to apply part in acquiring more properties for the stool. Therefore if an occupant of a stool has a private source of income which is not known to the elders of the stool it is presumed that he maintains himself from the stool property he met, and that any property he acquires whilst on the stool was acquired with funds of the stool and are therefore stool property.’
In the present case the stool of the Queenmother of New Juaben is found to be of recent creation and not an ancestral one and as the stool had no property which could possibly be mixed up with any self-acquired property of its occupant there was no necessity for the respondent or for the deceased member of the respondent’s family who occupied the said stool to declare her or their private property prior to or upon installation, as no presumption could arise that such private property became mixed up with stool property by operation of customary law.
In the result I am of the opinion that the learned judge came to a correct conclusion on the facts and on the law involved and I would therefore dismiss the appeal.”
It seems to me that the defendants could bring Hemeng’s affairs into line with these exceptions. There is evidence that when Hemeng was given the stool it had nothing—no cocoa farms—only rubber. He made the two farms and others on Bomso stool land. The others are not being claimed as stool property. There is also evidence that Hemeng had some money of his own when he ascended the stool. Since the local court magistrate made no specific findings of fact on this all-important issue this court has the right to do so. The plaintiff and his witnesses stated that Hemeng gave all his property to the stool. If a stool elder corroborated this evidence I would have considered it weighty. But none did.
When the first defendant abdicated in favour of the plaintiff the Asokwahene asked him about these properties. He recalls the transaction as follows: “The plaintiff then told us that he had no property to assist him as a chief. First defendant said he and his late brother Yaw Hemeng cultivated two cocoa farms and that when he Yaw Hemeng died he the first defendant took his farm and so he was prepared to hand over Hemeng’s farm to plaintiff. That year first defendant permitted the plaintiff to collect the cocoa.”
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This seems to me to be eloquent testimony of the fact the plaintiff was not demanding the stool farms, because there were none, but asking for assistance which the first defendant felt was his moral duty to grant.
I am satisfied from the judgment that the local court magistrate was under the impression that a moral duty was tantamount to, and as binding as, a customary obligation. I say so with reference to the following three paragraphs of his judgment. “The defendants admitted that both Hemeng and first defendant are not members of Bomso stool family but caretakers. They were selected to occupy the stool in view of the fact that no male member of the stool family was old enough to occupy it. They enjoyed the privileges attached to the Bomso stool all these years, approximately 40 years. The only thing Hemeng and first defendant could have done in return for the honour done them was that the farms they cultivated should revert to the stool.
Both Hemeng and Kwaku Donkor (first defendant) were not royals of the stool. They occupied the stool in order to improve it. Now, what improvements did they bring to the stool besides cultivating these farms?
As occupant of the stool, Hemeng had the privilege of Enjoying the £G500 compensation which the water works authorities paid and it is only fair that first defendant should hand over the farms which he inherited from Hemeng to the plaintiff, his successor.”
I think that the local court magistrate missed the point at issue there. In my view the two farms could not acquire the character of stool property. That being so on the death of Hemeng they became family property of Hemeng to which the first defendant succeeded. He, therefore, by all the authorities, could not validly gift any of them away without the knowledge and consent of the principal members of his family. The grant to the plaintiff before the Asokwahene is therefore bad by custom and is invalid as a gift. It can therefore be revoked and defendants are right in so doing.
In the result I must allow the appeal, set aside the judgment appealed from together with any order as to costs, and I give judgment for the defendants with costs assessed at 35 guineas.
DECISION
Appeal allowed.
