COURT OF APPEAL, ACCRA
Date: 31 JULY 1973
LASSEY JA
CASES REFERRED TO
(1) Antu v. Buedu (1929) F.C. ‘26-’29, 474.
(2) Serwah v. Kesse [1960] G.L.R. 227, S.C.
(3) Yamuah IV v. Sekyi (1936) 3 W.A.C.A. 57.
(4) Acquah III v. Ababio (1948) 12 W.A.C.A. 343.
NATURE OF PROCEEDINGS
APPEAL against the judgment of the circuit court that self-acquired properties by a common ancestor of the parties and a founder and first occupant of a family linguist stool became family stool property upon his death intestate. The facts are sufficiently stated in the judgment of Lassey J.A.
COUNSEL
W. A. N. Adumua-Bossman for the appellant.
No appearance for or by the respondent.
[p.95] of [1974] 1 GLR 93
JUDGMENT OF LASSEY JA
This appeal concerns the application of a general rule of customary law. The relevant rule of the customary law 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 recovered after death or on deposition. The principle of customary law was laid down long ago in the case of Antu v. Buedu (1929) F.C. ‘26-’29, 474 and is now subject to the qualification deducible from the recent decisions of the courts which is to the effect that if it can be proved by evidence that the new ascendant to the stool has by words or conduct indicated that he regards the property as privately owned, then the question of the ownership and right to possession of the particular property remains in the family of the stool occupant at death. In truth, the issue posed here is simply: what principle of customary law ought to govern the devolution of the properties in dispute?
The appeal was from the decision of a circuit court in Kumasi in an action in which the plaintiff as customary successor claimed recovery of certain family properties from the defendant. In reply, the defendant maintained that he was entitled to enjoy the use or occupation of the properties by virtue of his being the present successor to the linguist stool in the family to which the said properties were attached after the death of the original owner.
The history of the dispute, as given in evidence, is as follows: The plaintiff and the defendant are both hereditary members in the same family. The plaintiff is the personal successor appointed in the family to succeed to a deceased ancestor, while the defendant is the person selected to succeed to the public office of linguist which was founded in the family by a common ancestor, one Opanin Kwaku Osei, deceased. The dispute is over the right of ownership and possession of certain properties comprising a double-barrelled gun and a house which it was admitted were self-acquired by Opanin Kwaku Osei, who also later became the first linguist of the oman stool in the Effiduase traditional area.
Traditionally, the Effiduase area of Ashanti had never possessed a linguist stool, but in recent times, during the reign of one Chief Kwame Mensah of Nkwamkwam, one such post was created, and the common ancestor, Opanin Kwaku Osei, became the first linguist to occupy it. Although he hailed from the neighbouring village of Nkwamkwam, yet the chief of the town invited him to be linguist and he agreed. This event marked the creation of the linguist line in the family of the parties, and was also the beginning of the institution of the office of linguist in the traditional set-up in the area.
Before he agreed to become linguist, Opanin Kwaku Osei was known in private life to have possessed considerable property and wealth all of which he acquired by dint of his own efforts or labour. That being the character of his properties, including the properties in dispute, it follows that upon his death intestate the properties should devolve according to the custom of his matrilineal descent upon the hereditary members of his family who would automatically be vested with their ownership and the right to possession.
[p.96] of [1974] 1 GLR 93
It so happened that Opanin Kwaku Osei did not die as an ordinary member of the family. He died while a linguist to the oman stool. He died without having taken steps to earmark his identifiable self-acquired properties. In such a situation, strict customary law requires that the properties he possessed should become forfeited to the linguist stool or office and not devolve upon the hereditable members of his family.
The question is: as between the plaintiff and the defendant, who has the better right to take possession of the properties concerned? The plaintiff advances her claim of ownership to the properties on the ground that upon the death of their owner, the late Opanin Kwaku Osei, by force of customary law the said properties became family property, and so in her capacity as the present successor in the family, she is entitled to their enjoyment and occupation. The line of defence of the defendant is that upon the death of Opanin Kwaku Osei, the said properties enured for the benefit of the linguist stool which he founded because he died possessed of the properties while still a linguist stool occupant. The defendant, therefore, contends that as the present linguist he has the right to use the properties.
In this conflict, efforts by family members to resolve the deadlock between the two contestants proved to be of no avail, and the result of it is that the plaintiff was obliged to institute two separate actions against the defendant, claiming recovery of the properties. The two actions were consolidated and tried together. Judgment went against the plaintiff. She appealed on the ground that the conclusion of the judge is against the weight of the evidence. At the hearing, counsel for the plaintiff told the court that the object of bringing the appeal is to set aside the judgment of the court below so as to enable the plaintiff to recover possession of the double-barrelled gun only from the defendant.
The conclusion of the learned judge involves consideration of questions of fact and law. Learned counsel for the plaintiff presented and persuasively developed two points in his submissions to the court. The first point made by counsel concerns the weight of the evidence in the case. He submitted that, on a proper appreciation of the evidence, the correct conclusion was for the learned judge in the circuit court to have found in favour of the plaintiff. He contended that there was no good ground shown on the evidence adduced which provides justification for the court to conclude that “the defendant, the present linguist in the family, having been appointed to the said office after the death of Kofi Boadi, the last linguist . . . the gun and house automatically devolved on the defendant.” Counsel further pointed out that the evidence showed that throughout his assumption of office as linguist, the late Opanin Kwaku Osei, the common ancestor of the parties, dealt with his self-acquired properties as if they were privately owned and regarded them as such.
In my view, the learned circuit judge might have thought that the defendant was legally entitled to keep the properties in question because the evidence showed that after the death of their original owner, some of the properties admitted to have been self-acquired by him were made
[p.97] of [1974] 1 GLR 93
available for free use by members of his family, including the successive holders of the office of linguist in the family. There was evidence that after the death of the common ancestor and founder of the linguist stool in the family, his various successors-in-office were also appointed as personal successors in the same family. Thus after the death of Opanin Kwaku Osei, he was succeeded by Kweku Maase, both as personal successor and also as the next linguist. Similarly, after Maase’s death, Kofi Boadi succeeded and had the double role. The evidence was that he was chosen as the personal successor by the family, and later was appointed by the chief of the town as linguist. All these individual persons had the free use of the double-barrelled gun and resided in the house in question without protest by the family. It seemed there might well have been objections by the family if the individual members had attempted to use the properties in question or deal with them in a manner which was inconsistent with the family’s ownership. But as the evidence led now shows, it seems it is the present linguist who now asserts a right adverse to that claimed on behalf of the family by the plaintiff, hence the present litigation.
That being the factual position, I cannot conceive of any rule of law which operates so as to terminate the family’s ownership or entitlement to the properties and convert them into a sort of public ownership of the linguist stool, save by the voluntary act or consent of the family itself. In my opinion, it appears the defendant is enabled to advance this claim of ownership and possession to the properties by reason of the fortuitous circumstances that their original owner happened at the same time to be the founder of the linguist stool and used them while a linguist.
As already indicated, the conclusion of the learned circuit judge also involves a consideration of the application of the principle of customary law as enunciated in Antu v. Buedu (1929) F.C. ’26-’29, 474. Although it does not seem that any of the cases decided by the courts since Antu v. Buedu (supra) were cited before the learned judge or brought to his notice, yet the reasoning behind the conclusion indicates that the judge might have been influenced to some extent by the decision in which the applicability of the rule had been canvassed and given sufficient judicial determination.
The question now is: under what legal right has the defendant declined to surrender the properties in dispute to the plaintiff who demanded their restitution by right of her being the present successor appointed by the family of the deceased? It seems to me that the defendant argues that he is entitled to hold on to the properties by operation of the rule of customary law as sanctioned by the decision in Antu v. Buedu above. His reason seems to be that as the original owner of the properties concerned died possessed of them while still a linguist and failed to declare their nature or identity prior to his enstoolment, the said properties after his death became attached to the office which he founded. In this way, the rule of customary law operates to divest the ownership of the self-acquired properties of Opanin Kwaku Osei who failed to make a pre-enstoolment
[p.98] of [1974] 1 GLR 93
declaration of his properties prior to his death. In so far as the final conclusion in the case seems to have been influenced to some extent by the rigid application of this rule as enunciated in early times, it is therefore, necessary to consider the correctness of the basis of the decision appealed from, and the circumstances of the application of the principle of customary law in so far as it was relevant.
In arguing his second point, namely, the application of the content of customary law to the facts as found, counsel for the plaintiff submitted that the well-known principle of customary law as enunciated in the case of Antu v. Buedu (supra) reflected the point of view of the native law on the subject in the early times, and that modern thinking on the subject as seen in recent decisions of the courts tends to place the emphasis more on the weight of evidence in a particular case than the automatic adherence to the strict sanction of customary law which operates to deprive the family of a stool occupant of the properties he died possessed of merely by reason of his failure to declare them on his ascension. Learned counsel relied on the decision in Serwah v. Kesse [1960] G.L.R. 227, S.C. in support of his contention, and urged that as the linguist stool in the present appeal is of a recent creation and not an ancestral one, it has no visible property which could be inter-mixed with the self-acquired properties of its first occupant, and, therefore, there would be no necessity for a declaration of such private properties prior to or upon installation. Mr. Willie Bossman further submitted that the learned judge came to a wrong conclusion both on the evidence and on the application of the relevant principle of customary law because of a fundamental misapprehension of the significance of the principle as enunciated in the case of Antu v. Buedu (supra).
In my view, the question in this appeal seems not to be answerable merely by applying the rule of customary law in the form in which it was originally proposed. Before reaching his conclusion of the case in favour of the defendant, the judge made some findings of fact. He found that the double-barrelled gun in particular was self-acquired by the common ancestor of the parties for his private purposes, and that the same ancestor created the line of linguists in the family. He also found that the properties in dispute, that is, the double-barrelled gun and the house, had in the past automatically devolved upon the linguist stool and not the family. From these findings he concluded finally that as “the defendant is the present linguist in the family, having been appointed to the said office after the death of Kofi Boadi, the last linguist . . . the said gun and house automatically devolved on the defendant.” The way the judge reasoned implies that the defendant has a legal justification for refusing to deliver up the double-barrelled gun and vacate the house as they form part of the linguist stool property. Support for this view of the evidence and the legal position seems to me to have been derived from the failure of the original owner of the properties to make a public declaration that he intended to keep them as privately-owned.
[p.99] of [1974] 1 GLR 93
I think that in the absence of any evidence that the common ancestor of the parties intended to make a customary gift or did make an outright gift of these properties to the customary office he created in the family, it seems no principle of law can divest his family of the ownership of the properties after his death. The learned judge obviously was wrong in holding that the said properties “had consistently devolved on all other members of the family who had held the office of linguist.” From the fact that the particular properties were freely available for the purpose of the stool holders who were also members of the family it does not follow that they are the legal owners thereof, unless by force of customary law. It seemed the reason for the forebearance on the part of the family in not suing for the recovery of the properties in the past was because the former successive linguists, since the death of Opanin Kwaku Osei, made no adverse assertion of ownership or occupation of the properties as against the family. But the present defendant, by his conduct in refusing to acknowledge the exclusive ownership of the family in regard to the properties concerned, and also to deliver up possession of the double-barrelled gun in particular, might have provoked the present plaintiff to sue to assert the family’s ownership and lawful right of occupation in respect of the said properties.
The rigid application of the rule of customary law relating to a stool occupant’s self-acquired properties after death has been found to reveal disturbing features and worked great injustice in practical cases, and so the courts have felt the need to impose some qualification in its application in certain respects. Thus in a case in which it can be shown that the new chief has by word or conduct indicated that he intends to keep his privately-owned properties, effect is now given to the evidence as a matter of fact, instead of the court acting on a general principle of customary law that property belonging to a chief while on the stool belongs to the stool upon his death or deposition. As I have shown, it is plain from the evidence that throughout his tenure of office as linguist, the late Opanin Kwaku Osei dealt with the properties in dispute as his privately-owned properties even though the evidence showed that he used them at the same time while on the linguist stool. It seems that the view of the courts now as shown in some of the decided cases such as Yamuah IV v. Sekyi (1936) 3 W.A.C.A. 57, Acquah III v. Ababio (1948) 12 W.A.C.A. 343 and Serwah v. Kesse [1960] G.L.R. 227, S.C. is that henceforth the courts must seek to dismiss the stringent application of the rule, in favour of attaching much importance to the weight of the evidence, and make a finding of fact as to whether the intention is to keep the properties in the family or give them up to the traditional office or stool. By departing from the application of the content of the rule of customary law as rigidly applied before, the courts have introduced into the law relating to the status of a chief s privately-owned properties after death, a new guiding principle of the relevant customary law of fundamental and far-reaching importance which is bound to affect and influence the action or conduct of persons eligible to ascend traditional offices in relation to their private
[p.100] of [1974] 1 GLR 93
possession. In my view, from their recent decisions on the subject, it is clear the courts have evolved and laid down the other side of the general rule of the customary law in the sense that if in a particular case the weight of the evidence is that the stool occupant desires to keep his privately-owned properties distinct from the rest of the property of the stool he occupies, it is the duty of the court to give effect to that instead of automatically applying the view of native law as in early times.
The essence of these decisions is that the application of the rule in its original form or otherwise depends upon the facts in each case. In my judgment, the recent decisions on the topic I have referred to have the support of reasonableness in the application of the particular principle of customary law, and show authority and consistency, and I would add good-sense, in their qualification of the strict principle. As the criterion for adjudicating the ownership and possession of the properties in dispute in this appeal is the weight of the evidence and not the strict application of the relevant rule of the customary law, the ground for the decision of the learned judge of the court below seems to me to be untenable in law, therefore, it follows that the appeal must succeed and it is allowed. The judgment of the court below is set aside together with any order as to costs. The costs if paid must be refunded. The plaintiff is entitled as against the defendant to costs in the High Court assessed at 0100.00. She will have costs of this appeal fixed at 0164.65.
JUDGMENT OF AZU CRABBE C.J.
I agree that the appeal be allowed.
JUDGMENT OF ARCHER J.A.
I also agree.
DECISION
Appeal allowed with costs.
S.E.K.
