DIVISION: IN THE SUPREME COURT
DATE: 13TH MARCH, 1963
BEFORE: SARKODEE-ADOO, MILLS-ODOI AND AKUFO-ADDO JJ.S.C.
CASES REFERRED TO
(1) Quarm v. Yankah II (1930) 1 W.A.C.A. 80
(2) Hammond v. United Africa Co. Ltd. (1936) 3 W.A.C.A. 60
(3) Antu v. Buedu (1929) F.C. ‘26-’29, 474
(4) Mensah v. Toku (1887) Sar. F.L.R. 42
(5) Yamuah IV v. Sekyi (1936) 3 W.A.C.A. 57
(6) Serwah v. Kesse [1960] G.L.R. 227; Oll C.L.L. 208, S.C.
(7) Willmot v. Barber (1880) 15 Ch.D. 96; 49 L.J.Ch. 792; 43 L.T. 95
(8) Rafat v. Ellis (1954) 14 W.A.C.A. 430
NATURE OF PROCEEDINGS
APPEAL from a judgment of Adumua-Bossman J. delivered in the High Court, Accra, reversing the decision of the New Juaben Local Court and granting the plaintiffs a declaration that the properties in dispute were the self-acquired properties of one Kwesi Baah, deceased, and not those of Nsenifuor stool family.
COUNSEL
Dr. J.B. Danquah (with him Ohene-Ampofo) for the appellant.
- J. Hayfron-Benjamin, Snr., for the respondents.
JUDGMENT OF AKUFO-ADDO J.S.C.
The plaintiffs as “joint successors” of one Kwasi Baah, brought an action in the New Juaben Local Court against the defendant, the Nsenifuorhene of Koforidua, claiming a declaration that certain properties enumerated in the writ of summons were the self-acquired properties of the said Kwasi Baah and not of the Nsenifuor stool of New Juaben of which the defendant was the occupant, and that they, the plaintiffs, were entitled to the possession of these properties.
The brief background history to this litigation is as follows: The Nsenifuor stool family is a large family in New Juaben and owns a stool the occupant of which is one of the principal elders of the paramount stool of New Juaben. This family has its seat at Koforidua which is also the seat of the paramount stool, and has branches at Effiduasi and Gyegyeti. The Effiduasi branch calls itself the Agona family of Effiduasi and it is the branch to which the plaintiffs and the late Kwasi Baah aforesaid belong Kwasi Adei (the first plaintiff was a brother and the successor of the said Kwasi Baah, and Yaw Kobi (the second plaintiff) is the head of the Effiduasi branch. Kwasi Baah was by local standards a well-to-do person who acquired a good deal of property by his own exertions. About 25 years ago when the Nsenifuor stool fell vacant, the said Kwasi Baah was invited by the Nsenifuor family to accept the
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occupancy of the stool. He accepted the invitation, and he occupied the stool for about twenty years. He died in February 1957 and the first plaintiff Kwasi Adei was then elected to occupy the stool. He occupied the stool for about three weeks and resigned before the final ceremonies for his installation had been performed, because, in his own words, he “chose to retain or inherit the deceased’s private properties.” The first plaintiff was thereafter elected the successor of Kwasi Baah by Kwasi Baah’s immediate family (i.e. the Effiduasi branch). Another member of the Nsenifuor family, Kwabena Gyang, was placed on the stool, but was destooled after about two-and-a-half years, and defendant was enstooled in his place.
Meanwhile, the properties of Kwasi Baah had passed through Kwabena Gyang to the defendant who claimed to be entitled to them on the ground that these properties, for reasons that will be discussed later, had become stool properties. The plaintiffs, on the other hand, claimed that since the properties were the self-acquired properties of Kwasi Baah, they devolved on the death intestate of Kwasi Baah upon his immediate family and not upon the wider family or the ancestral family, that is the Nsenifuor stool family.
The defendant claims that the properties of Kwasi Baah became stool properties on his death because, as he put it in the trial court, “the stool of our family would take the occupant’s self-acquired or private property at the death of the occupant. This has been the practice for long,” and again, “It is our custom on the stool that a person’s property emerged [meaning is merged] into stool property at his death. This is a custom in New Juaben in all stool families.” The defendant further contended that when the Omanhene of New Juaben was not favourably disposed to accepting Kwasi Baah as Nsenifuorhene, the plaintiff, in order to persuade the Omanhene to so accept his brother, publicly declared that his brother’s accession to the stool would benefit the stool as he (Kwasi Baah) was bringing all his properties to the stool.
This alleged declaration was construed by the defendant and his witnesses to amount to a public acknowledgment by the first plaintiff of the custom of New Juaben as contended by the defendant or to a virtual gift to the stool of Kwasi Baah’s properties made by the plaintiff on behalf of Kwasi Baah.
The defendant also contended that the plaintiff was estopped by conduct from claiming these properties because he had acquiesced in the properties being handed over to Kwabena Gyang as stool properties upon the installation of the said Kwabena Gyang and had, by several other acts of his, acknowledged the fact that the properties were, or had become, stool properties.
The trial local court magistrate gave judgment for the defendant on the ground that the plaintiffs had acquiesced in the properties being treated as stool properties since the death of Kwasi Baah and were therefore estopped by conduct from making their claim. The plaintiffs appealed from
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this judgment to the High Court, Accra, where Adumua-Bossman J. (as he then was), reversed the decision of the local court magistrate and entered judgment for the plaintiffs granting them the reliefs sought by their writ of summons, namely, a declaration that the properties of Kwasi Baah enumerated in the writ of summons were the properties of the immediate family of Kwasi Baah (i.e. the Agona family of Effiduasi), and not those of the Nsenifuor stool family (i.e. wider or ancestral family), and an order for possession. It is from that judgment that the defendant has appealed to this court.
Apart from the issue of the alleged acquiescence on the part of the plaintiffs a more important point fell to be considered by Adumua-Bossman J. in the High Court, namely, the law relating to the self-acquired or private property of an occupant of a stool.
Before dealing with the points raised in this appeal, I would like to make some general observations on the law which I hope will not only be pertinent to the present case but also help in clarifying the law on the subject.
A stool according to the law of this country as contained in judicial decisions on the subject, is a corporation sole. As Deane C.J. said in Quarm v. Yankah II1:
“. . . the conception of the Stool that is and has always been accepted in the Courts of this Colony [meaning Ghana as it then was] is that it is an entity which never dies, a corporation sole like the Crown, and that while the occupants of the Stool may come and go the stool goes on for ever.”
Deane C.J. goes on in the same judgment to say that the occupant of a stool is “not. . . the successor of the previous holder but only as the person for the time being representing something that has never changed.”2 See also Hammond v. United Africa Company Limited.3 In other words an occupant of a stool is not the successor of the previous occupant in the sense of his being his legal personal representative, and he is not by reason merely of his occupancy of the stool in succession to the previous occupant entitled to the private possessions of the previous occupant unless in addition to being the successor-in-office he is also elected by the family as the personal successor of the previous occupant.
It follows that a stool has a legal personality quite distinct from the individual (including the stool occupant) and the various branch families that make up the wider or the ancestral family that is the stool family. It follows further that the individuals and the branch families are in law capable of holding properties in their own right that are not in any way affected by the incidents attached to properties of the stool family, and in this respect a stool family is in no different position from an ordinary (or a non-stool) family.
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Sarbah, in the second edition of his Fanti Customary Laws at page 99 says; “A person may make valid testamentary disposition of self-acquired property as distinct from stool property,” and I may add “or family property.”
That the customary laws of Ghana uphold the sanctity of self-acquired properties owned by individual members of a family or by the branch-families of a wider or an ancestral family is not now open to doubt, if it ever was.
Individuals whether as ordinary members or as heads of families, where they own properties of their own, have always striven to maintain the identity of their self-acquired properties distinct from family properties, and when a dispute has arisen in the courts between a member or the head of a family on the one hand and the family on the other as to whether a particular property is or is not the self-acquired property of the party4 claiming, the courts, in adjudicating on the issue, have always done so on the basis of proof by evidence adduced by the party alleging that the property is self-acquired or family-owned.
But more simply, it is a matter of evidence at every stage in the history of a given property, whether that property is self-acquired or family-owned. In this respect, I am not aware of any principle of customary law which lays down different principles for the purpose of determining the true nature of any given property where the claimant to property as being self-acquired is an ordinary member, and where he is the head of a family, nor is there any principle which in this respect distinguished between the head of a family and a stool occupant whose position vis-a-vis property owned by him is analogous to that of the head of a family.
Unfortunately, early judicial enunciations of the principle of customary law relating to this subject have sought to place a stool occupant in a different category from that of the head or an ordinary member of a family, and such enunciations, probably in the interest of brevity, have been couched in such language as to create in the passage of time a certain degree of complexity and confusion wholly unwarranted by a proper understanding of basic principles.
The first judicial declaration of the customary law on the subject is contained in the judgment of Gardiner Smith J. in the case of Antu v. Buedu.4 In that judgment the learned judge said: “It is a basic principle of native law, as I understand it, both in the Colony and in Ashanti, that, unless a Chief’s private property is earmarked when he ascends the stool, it becomes mixed up with the stool property, and cannot be claimed by him on his deposition.”
This famous dictum appears to declare a principle of substantive customary law which lays down a condition precedent to the continued maintenance of a stool occupant’s ownership of his self-acquired or private property to the apparent exclusion of all other considerations. “Earmarking” here
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amounts to a declaration by a newly installed chief in the presence of witnesses (usually elders of the stool) that certain identified and identifiable properties are his private or self-acquired properties. Such public declarations in the days when there were no effective means (like documents of title or other paper-writings) of perpetuating the testimony of existing facts were the only means, or perhaps the most effective means, known to customary law for securing the necessary evidence at some future time for the proof of the facts so declared. Viewed in the light of this principle, the dictum of Gardiner Smith J. amounts to no more than a declaration of a rule of evidence as known to customary law, and not a rule of substantive customary law.
The courts in later cases have, however, felt disinclined by the compelling circumstances of those cases to apply Gardiner Smith J.’s declaration in all its grandeur. But the courts in doing so have unfortunately acknowledged this declaration as a statement of a principle of substantive law and have described their decisions as “exceptions” to the general law. Some of these so-called “exceptions” have been founded on what the courts have described as local variations of the general customary law.
Except in the special case of forfeiture for breach of conditions of limited ownership, I know of no principle of customary law which operates to terminate the ownership of property save by the voluntary act of the owner of property, and there is no principle of customary law which in this respect distinguishes property owned by a stool occupant from that owned by the head of a family or by any other member of a family. When therefore a stool occupant like any other person lays claim to property as being his self-acquired property the criterion for adjudication must be, “is there proof that the property is the self-acquired property of the claimant?” and not, “was the property claimed earmarked upon the claimant’s accession to the stool? “ Where any question of earmarking falls for consideration, it can only be considered as some evidence, not the only evidence, supporting the claim. Were the principle of customary law otherwise there would be no end to injustice. Take a simple example of a man who before
his accession to a stool has acquired properties in respect of which he holds valid documents of title, and not only does he not earmark his properties on his enstoolment, but also throughout his occupancy of the stool he has kept his ownership of the properties a complete secret from everybody. Suppose such a person were to be destooled, or to make a will in respect of his properties, and upon his destoolment or death the stool family gets to know of the existence of these properties and lays claim to them as stool properties on the ground, following the Antu v. Buedu declaration, that he did not earmark the properties on his accession and they have therefore become “mixed up with stool properties,” one can hardly imagine any court in this country declaring such properties stool properties in the face of proof provided by the documents of title. And yet if the Antu v. Buedu dictum is to be regarded as a declaration of
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substantive customary law such properties must be adjudged stool properties. This then is the reduction ad absurdum of the rule in Antu v. Buedu regarded as a rule of substantive law.
A consideration of some of the more important cases that have been decided in the courts since Antu v. Buedu will show that although these later decisions which have by-passed Antu v. Buedu have been described as “exceptions” and all forms of judicial device have provided foundations for those “exceptions,” they (i.e. the decisions) in fact have proceeded on the basis of proof upon evidence other than earmarking, and only lip-service has been paid to Antu v. Buedu which appears to have been honoured more in the breach than in the observance.
The first of these cases is Yamuah v. Sekyi,6 but before considering this case I would like to refer to a passage in the judgment of the Full Court to which Antu v. Buedu went on appeal. Michelin J. in affirming the judgment of Gardiner Smith J., said7:
‘I entirely agree with the learned Judge in his enunciation of the principle of native law, both in this Colony and in Ashanti, that unless a Chief’s private property is earmarked when he ascends the stool, it becomes mixed up with the stool property and cannot be claimed by him on deposition.’
This view of the native law, is supported by the authority of the following cases: Mensah v. Toku, Sarbah, F.L.R., at page 42; Yaw Ewua v. Kobina Wusu, Div. Court, 26th August, 1925, on appeal from C.C.A.; and Tsinkuran v. Ohene Ansah, to which I have previously referred.”
Of the cases referred to by Michelin J. in the above-quoted passage, perhaps the most important is Mensah v. Toku8 if only because it contains the earliest recorded view expressed by a native of Ghana who was apparently called as an “expert” to state his views on the distinction between the private property of a chief and stool property. The passage often quoted as expressing the customary law on the subject is in the following statement of the “expert” made to the court9:
“There is a distinction between the stool property and private property of a chief, when the stool property is distinguished from the private property; for instance, where before one gets to a stool, he is popularly known to be well to do, he will on his succession to the stool show his own property to whomsoever may be present at his installation, thereby distinguishing in case of dispute his own property from the stool property.”
It will be observed that according to this statement the main purpose in a newly installed chief “showing his own properties to whomsoever may be present” is to enable him “in case of dispute” to distinguish his property from stool property. In other words the showing or earmarking of the properties merely serves to provide evidence of ownership. It is therefore
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difficult to accept the Antu v. Buedu declaration based as it claims to be on Mensah v. Toku (in Michelin J.’s judgment) as amounting to a declaration of substantive law.
In the case of Yamuah v. Sekyi, Yamuah IV, Chief of Arkran and successor in title of Yamuah Ansa (alias Duker), sought a declaration that certain properties in the possession of Sekyi, the administrator of Yamuah Ansa’s estate, were stool properties. Yamuah Ansa, before he occupied the stool was a well-known trader possessed of considerable properties and means. The evidence shows that upon his enstoolment there was no earmarking of his properties beyond announcing that “he was possessed of means,” and while on the stool he continued to trade in his private capacity. He made a will by which he disposed of his private properties. Chief Yamuah IV contended that on the principle of Antu v. Buedu Yamuah Ansa’s private properties had become mixed up with stool properties during his occupancy of the stool, and he could not therefore make any valid testamentary disposition of them. The West African Court of Appeal10 affirmed the judgment of the Divisional Court by which Yamuah IV’s claim was dismissed, and the judgment of that court is remarkable, not only for its boldness in refusing to apply the principle of Antu v. Buedu in all its rigidity, but equally also for its complete lack of boldness in failing to assign to that principle its true nature and meaning.
The West African Court of Appeal in its judgment, after referring to Antu v. Buedu on which Chief Yamuah IV relied, stated thus11:
“Now, Sarbah, second edition, page 60, says: ‘Property is designated self-acquired or private where it is acquired by a person through his own personal exertions or by superior skill in business or intellectual pursuits’, and the same authority, on page 99, says: ‘A person may make valid testamentary disposition of self-acquired property as distinct from stool property.’
In this particular case it is not disputed that the deceased, on his accession to the Stool, was possessed of money which, as a money-lender, was his stock-in-trade, which he used in his separate business, and which business he carried on successfully until his death, unhelped in any way by members of the Stool.
Evidence of the custom of the Arkran peoples, to whom these parties belong, was given by their Paramount Chief Akini III, Omanhene of Ekumfi, and I attach the greatest importance to his evidence. He says: ‘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.’ Moreover, the deceased, when put on the Stool, announced that he was possessed of means and this, coupled with the fact that he remained at Saltpond during his enstoolment carrying on his own business with his stock-in-trade, clearly indicates that the property, the subject-matter of this action, was self-acquired property. Now a stool holder who has kept his self-acquired property distinct from the stool property, to
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the knowledge of the senior and immediate members of the Stool, can make a valid testamentary disposition of such self-acquired property to a member of the family-vide Sarbah’s Fanti Customary Laws, page 99-and so is an exception to the rule laid down in Kofi Antu v. Ohene Kweku Buedu quoted above.”
It is to be observed that the West African Court of Appeal relied on two factors in pronouncing this case “an exception to the rule laid down in Antu v. Buedu,” namely, first, evidence that according to the custom of the Arkran people a stool occupant could dispose of his private property as he liked, and, secondly, that the deceased Yamuah Ansa was a well-known trader of means who, to the knowledge of the elders of the stool, continued to trade while on the stool. With respect, there is nothing about these two factors that can be held to render the Yamuah v. Sekyi case an exception to the general law enunciated in Antu v. Buedu. That an owner of property is free to dispose of his property in any way he likes is not peculiar to the custom of the Arkran people. It is a principle of law applicable to the whole of Ghana, and, as already stated, I know of no law in Ghana which places an occupant of a stool in a different category from any other Ghanaian in this respect. And in any case the rule of Antu v. Buedu neither says nor implies that an occupant of a stool in Ghana is not entitled to the free use of his private
property; it merely says that if the stool occupant fails to earmark his private property on accession he in effect loses it to the stool. The other factor, namely, that Yamuah Ansa was known to be a trader and to be possessed of considerable means, and that he continued to trade as a chief with his own money, merely provided the beneficiaries under his will, as they would have provided the deceased chief, with unassailable evidence, which might not otherwise have been obtainable, of his unencumbered ownership of the properties affected. A critical reading of the judgments both of the Divisional Court and of the West African Court of Appeal reveals that the judgments proceeded entirely on the basis (although obscured by the abstruseness of the reasoning underlying them) that certain circumstances relating to the life of the deceased chief vis-a-vis the properties in question provided evidence, unrelated to earmarking and accepted by the courts, of his exclusive ownership of those properties.
The case of Yamuah v. Sekyi has become the locus classicus on the principle of the so-called exceptions to the general rule in Antu v. Buedu, and was followed in that spirit by Ollennu J. (as he then was) in the case of Serwah v. Kesse12 and by this court in its judgment affirming Ollennu J.13 This was a case in which Nana Juaben Serwah, after her destoolment as queenmother of New Juaben, claimed that certain cocoa farms were the self-acquired properties of her three ancestresses (her mother and two aunts) two of whom became queenmothers, and that, as the successor of those ancestresses, she was entitled to the possession and enjoyment of
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these farms, as against the claim of Nana Akyea Kesse, the reigning queenmother, that the farms were the properties of the stool family, i.e. the wider or ancestral family of which the immediate family of Nana Juaben Serwah was a branch.
Ollennu J. in giving judgment for Nana Juaben Serwah, made a number of important findings of fact on the evidence, namely, inter alia, that the farms were the self-acquired properties of Nana Juaben Serwah’s ancestresses and were made by them before the institution of the office of the queenmother; that when the eldest of Nana Juaben Serwah’s ancestresses (Ama Serwah) was made queenmother upon the creation of that office there were no properties attached to the office; that the farms in question were enjoyed by Nana Juaben Serwah’s ancestresses as their private properties; and that since their deaths Nana Juaben Serwah had to the knowledge of all concerned managed these farms as the properties of her immediate family. Although these findings of fact were, in my view, enough in law to support the judgment in favour of Nana Juaben Serwah, Ollennu J. felt obliged in disposing of an argument based on Antu v. Buedu to follow the precedent set by Yamuah IV v. Sekyi and to state the following further reasons for his judgment.14
“Next, it was submitted by counsel for the defendant that by customary law, if upon enstoolment a chief failed to declare his self-acquired property those properties would become merged in the property of the stool and upon his death, abdication or deposition, would devolve upon his successor in office.
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: Yamuah IV v. Sekyi (1936) 3 W.A.C.A. 57.
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 stool property, and that any property he acquires whilst on the stool was acquired with funds of
the stool and are therefore stool property.”
The dictum of Ollennu J. was approved by van Lare J.S.C. in the judgment of the Supreme Court read by him. He said, “In my view the following statements of the law which I quote from the judgment appealed from relating to the position appears to me to be wholly correct.”15 The reference is to the passages quoted above from Ollennu J.’s judgment.
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It is very pertinent to note that in the view of Ollennu J. (a view affirmed by this court) the failure on the part of a stool occupant to declare or earmark his private properties does no more than raise a presumption that any such properties unknown to the stool elders are stool properties. But it is only a presumption of fact which, like all other presumptions of fact, is susceptible to rebuttal by evidence to the contrary, and when such evidence is available and accepted the failure to earmark is of no consequence whatsoever.
I find support in this statement of the law by Ollennu J. for the view that the rule in Antu v. Buedu is a rule of evidence and not of substantive law. Ollennu J. however appears to have obscured this very salutary interpretation of the rule in Antu v. Buedu by feeling himself obliged to follow the precedent (which I have demonstrated, I hope, to be founded on wrong premises) in Yamuah IV v. Sekyi in treating this case as an exception to the general rule of customary law enunciated in Antu v. Buedu which he says applies only to “ancestral stools which have accumulated properties” or to “stools to which definite properties were attached upon their creation.” Undoubtedly, Ollennu J. was constrained to this view by the words “mixed up with the stool property” appearing in the statement of the rule in Antu v. Buedu, the inference being that there must logically be a pre-existing stool property with which the property of the stool occupant could become mixed up. But if the issue whether a given property is or is not the private property of a stool occupant is determinable upon proof of an averment in the ordinary way by evidence (whether such evidence be one sanctioned by customary law or by the rules of court), what does it matter whether the stool concerned has or has not property already attached to it, except that it may be said that proof by a stool occupant making a claim to property is in the nature of things bound to be much easier where the stool has no property attached to it than otherwise.
I have discussed these two most important cases relating to the private property of a stool occupant, not with the object of questioning the conclusions arrived at by the judgments therein, but only with the object of bringing out in bolder relief the basic principles upon which, in my view, those conclusions proceeded but which do not become apparent because the courts concerned felt themselves obliged to confine their reasoning strictly within the framework of the interpretation they had placed on the Antu v. Buedu rule as being a rule of substantive law.
In the present case the plaintiffs had no need to adduce evidence to prove that the properties concerned were the self-acquired properties of the deceased Baah. This fact was admitted by the defendant whose case was based essentially on three grounds which as already stated were briefly as follows: first, that the self-acquired properties of an occupant of the Nsenifuor stool became stool properties upon his death by reason of his occupancy of the stool; secondly, that the deceased Baah made in effect a gift of his properties to the stool upon his accession; and thirdly, that the plaintiffs were estopped by conduct amounting to acquiescence
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from claiming the properties for their immediate family; and the defendant stated the details of the plaintiffs’ conduct upon which he relied, but more about this later.
The local court magistrate had no difficulty in disposing of the first ground in the following words:
“The court is of the opinion that, the only just or right conclusion which can be arrived at is that the self-acquired properties are for the inheritor and the after-acquired properties are for the stool. But it may be that, in certain localities different presumption apply in the case of self-acquired properties of a deceased chief merging into stool properties. On this doctrine this court thinks it right to state that it would be contrary to the principles of equity and good conscience to allow this native customary law in its entirety. It is plain that according to the contemplation of the native customary law as embodied in numerous decisions in courts as well as indicated by the strong evidence of the plaintiff, there is no such law as I understand it, that the self-acquired property had on one’s own exertions shall become a stool property at the death of the stool holder-and not the after acquired ones.”
Omitting reference to “after acquired properties” and to “different presumptions” in “certain localities” this finding of the local court magistrate in addition to being fully justified by the evidence is a fair statement of the position at customary law which is of general application to Ghana as a whole, and it is substantially in conformity with the view which I have endeavoured in this judgment to express, namely, that it has never been a principle of the customary laws of Ghana that the self-acquired properties (whether acquired before or after his accession to the stool) of a stool occupant become merged into stool properties by the mere reason either of the owner of such properties occupying a stool or of the absence of a pre-enstoolment declaration or earmarking of such properties.
Although the local court magistrate made no specific finding on the second ground it is clear from the evidence that no such gift was made, and that this ground was put forward by the defendant in an ungainly attempt at a reargued action, no doubt in view of the patent untenability of his first ground, and counsel for the appellant in the High Court did not appear to have relied very much on this allegation.
The local court magistrate found in favour of the defendant on the third ground, that is the ground alleging estoppel by conduct. One would have thought that this ground was the only one that merited consideration in the High Court, and indeed in this court it was the main point in the argument of Dr. Danquah, learned counsel for the appellant. As it turned out in the court below, however, counsel for the defendant (as he was there), in endeavouring to uphold the judgment of the local court, sought to do so in reliance upon the rule in Antu v. Buedu, and Adumua-Bossman J. in disposing of the argument based on Antu v. Buedu, declared in the final stage of his judgment: “From all the available evidence this case is unaffected by that rule” (i.e. the rule in Antu v. Buedu). If the learned judge had based this final finding of his, with which I am in complete agreement, on the principle that earmarking in the Antu v. Buedu rule
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merely provided one kind of evidence by which ownership of property could be proved by a stool occupant, and that in the present case there was evidence of another kind acceptable upon any sound principle of justice to establish not only Baah’s ownership of the properties concerned but also the entitlement of Baah’s immediate family to these properties upon Baah’s death intestate, there would be nothing in the learned judge’s judgment open to criticism. There, however, are passages in the judgment which appear to suggest that the learned judge was basing this final finding on the proposition I have suggested, but he went very much beyond that, and sought somehow to bring this case within the so-called exceptions to the general rule in Antu v. Buedu and also to introduce into an understanding of the law the novel concept of a notional earmarking. In so doing the learned judge delivered himself of a number of dicta which far from enhancing a clear understanding of the law merely serve to introduce into it additional and needless complexities.
A few passages from the learned judge’ s judgment may help to illustrate my point: “In the second place, if the rule in Antu v. Buedu were to be held applicable in the locality of the parties, i.e. New Juaben, there was evidence which was not discredited which went to establish that the deceased Baah
did what seemed to amount to a sufficient earmarking of his private properties, and thereafter kept them distinct and separate from the properties declared as stool properties to him. The evidence is that he refused nomination for appointment and enstoolment and was induced to accept only upon certain properties being declared to him as the properties of the stool which he was to hold and use for the stool, specially in carrying on a litigation concerning family land which his predecessor was carrying on when he died.”
The learned judge then went on to set out the evidence by a number of witnesses on the point. He then continued:
“Here then was not a case where the evidence available tended to establish that at the time of the enstoolment of the former occupant of the stool, there was in effect no discussion and differentiation whatsoever as to what, as between the nominated chief’s private property and any stool property which there might be, was to be regarded as stool property; or that the nominated chief’s attitude and conduct left the family in any doubt as to what was to be regarded as the property attached to or belonging to the stool. On the contrary the evidence tended rather to establish the position that the nominated chief refused appointment to the stool until the elders of the family earmarked or declared for him other property distinct and separate from his own which he was to use to manage the affairs of the family including, in particular, the conduct or continuation of the litigation in which his predecessor Kofi Frempong had been engaged up to the time of his death. The evidence further established the much more significant and decisive fact that it was, in point of fact, proceeds of the properties so earmarked or declared to him as stool properties-but not of his private properties-which he was using for stool family purposes till he died; and it seems that any of the farms or house in dispute was ever used as stool property during Kwasi Baah’s occupancy of the stool cannot be over-rated. In the old case of Mensah v. Toku in 1887, the customary practice of
[p.298] of 1 GLR 285
earmarking (as it was called in Antu v. Buedu referred to supra) or distinguishing (as Francis Smith J. called it) the private property of a would-be or newly installed chief from stool property, was explained as follows, ‘There is a distinction between the stool property and private property of a chief when the stool property is distinguished from the private property. For instance, where before one gets [on] to a stool, he is popularly known to be well to do, he will on his succession [accession] to the stool show his own property to whomsoever may be present at his installation, thereby “distinguishing” in case of dispute his own property from the stool.’ In the above explanation the words show his own property to whomsoever may be present’ can obviously not mean a physical indication or showing, in so far as physical objects and landed properties may not be at all at the scene of the meeting between the chief and his people, but must equally obviously mean giving notice or making a public declaration of private properties separate from any stool properties which there may be. In Yamuah v. Sekyi 3 W.A.C.A. 57 the appeal court appears to have accepted as a sufficient act of ‘distinguishing’ or ‘earmarking’ the act of a public announcement by the chief, Yates J. who delivered the judgment of the court, saying, ‘Moreover the deceased when put on the stool announced that he was possessed of means.’ It seems to me therefore, in the light of these authorities explaining the substance of the customary practice, impossible to hold that where shortly before enstoolment there is discussion and express agreement between the elders of the stool and the would-be stool occupant, as to the properties, separate and distinct from the private properties, which are to be regarded and understood and attached and belonging to the stool, that there had been no ‘distinguishing’ or vice versa, particularly when the agreement is followed by the stool occupant keeping his private properties apart and separate from his use of the properties declared as stool properties to him, as in this case. It seems to me therefore that even if the Antu v. Buedu rule were to be held applicable in New Juaben, the peculiar circumstances of this case evince compliance with the rule.
In the third place and finally, it is worthy of observation that in Yamuah v. Sekyi, the appeal court appears to have accepted the position that there may be a local variation of the general proposition enunciated in Antu v. Buedu, if there be positive evidence establishing such local variation. So in the course of his judgment in that case Yates J. observed. ‘Evidence of the custom of the Arkran peoples to whom these parties belong was given by their paramount chief . . . and I attach the greatest importance to his evidence. He says: 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.’
Section 18 (1) of the Interpretation Act, 1960, seems to give recognition to this position that in considering customary law, regard must be had to how it may or may not be applicable in a particular locality, when the section provided that, Customary law, as comprised in the laws of Ghana, consists of Rules of law which by custom, are applicable to particular communities in Ghana.’ In our particular case, the evidence establishing such local variation of the general proposition in Antu v. Buedu (supra) has already been referred to earlier in this judgment, when we referred to the evidence as to the relevant custom obtaining in New Juaben which was given by the plaintiff’s fifth and sixth and the defendant’s second and third witnesses. It seems only necessary therefore at this juncture to call attention to the plainly decisive evidence of the prevailing custom in New Juaben given by
[p.299] of 1 GLR 285
the defendant’s own second witness as follows, ‘It is not custom in New Juaben that a person’s self-acquired property on his enstoolment becomes a stool property; it remained his private property. If plaintiff had not made his promise on oath these properties would not have become stool properties.’ It is difficult to understand how counsel for the defendant ignores this strongly emphatic and conclusive piece of evidence confirmatory of evidence of plaintiff’s witnesses – conclusive because it was by no less a person than the former Omanhene of New Juaben testifying on behalf of the defendant – and proceeds to argue that this case is governed by the Antu v. Buedu rule. From all the available evidence this case is unaffected by that rule.”
It will be observed that the learned judge describes the circumstances connected with the discussion that took place in the Omanhene’s house concerning Baah’s election to the stool and in relation to his properties as amounting to a “sufficient earmarking,” and he claims to derive inspiration for this view from Yamuah v. Sekyi by explaining that the announcement said to have been made upon the chief’s accession to the stool that he, the chief was possessed of means, was accepted by the West African Court of Appeal as amounting to a “sufficient” distinguishing or earmarking. With respect to the learned judge, I do not think in Yamuah v. Sekyi the Court of Appeal proceeded on any such premises. On the contrary, the very conclusion that that case was an exception to the Antu v. Buedu rule does mean, whatever else it may mean, that a resort to the principle of earmarking was inappropriate for its determination. I have already endeavoured to explain that Yamuah v. Sekyi proceeded on the basis that there was evidence of the circumstances in the life of the deceased chief in relation to the properties involved in that case which established not only the chief’s ownership of them, but also that at no time had the properties become stool properties. There was nothing said about earmarking (because there was none) or any notional equivalent of it. Earmarking to be of any practical effect must necessarily involve a detailed specification of the properties sought to be earmarked, otherwise how is it possible to distinguish such properties from stool properties in the case of a dispute as stated in the passage quoted from Mensah v. Toku? Customary law in Ghana is not so undiscriminating or so lacking in precise definition as to accept a general statement that a person is a person of means and is possessed of properties (where no properties are named) as amounting to a declaration concerning specific properties capable of being distinguished from other properties. The view I have here expressed of earmarking seems to me to accord not only with the basic ideas on which the principle of earmarking is founded, but also with the dictionary meaning of the word “earmark,” which according to the Shorter Oxford Dictionary is, “A mark in the ear of a sheep or other animal, serving as a sign of ownership. Or (2) A stamp, mark of ownership, identifying mark.” The plain fact is that earmarking whether actual or notional was in the particular circumstances of Yamuah v. Sekyi, as it was in the case of Nana Juaben Serwah v. Akyea Kesse, and as it is with even greater force in the present case, wholly irrelevant to the determination of the issue involved.
[p.300] of 1 GLR 285
I have also endeavoured to show that the basis on which Yamuah v. Sekyi was adjudged to be an exception to the general rule in Antu v. Buedu is wholly untenable. That basis was an alleged variation in
Arkran of the general custom. As with the people of Arkran, so with the people of New Juaben, and so indeed with all the peoples of Ghana, the customary law is that every person (be he head of family an ordinary member of a family or a stool occupant) is entitled to the full enjoyment of his own property and is free to do what he likes with it, and the property of a citizen of Ghana does not become stool property merely because he occupies a stool. To hold, therefore, as Adumua-Bossman J. held, that this case was an exception to the general rule in Antu v. Buedu on the ground of a local variation in New Juaben of the general custom is to fall into the same error, as I have tried to demonstrate, as the West African Court of Appeal in Yamuah v. Sekyi, and, in another respect, as Ollennu J. in Serwah v. Kesse, a case which does not appear to have been cited to Adumua-Bossman J.
On the issue of estoppel by conduct, Dr. Danquah, in my view, said nothing in his submissions to convince me of the correctness of the local court magistrate’s finding in favour of his client which reads as follows:
“I am clear that, in a case of this kind, where the defendant and his predecessors have admittedly been in possession of these cocoa farms for long and throughout the several cocoa harvesting seasons or periods, and plaintiff has never specifically divested himself of his succession right of ownership, and not taking any steps to assert a claim at the right moment, nor interferred with the plucking of the cocoa beans, but rather peaceably took defendant round and showed or pointed out these farms and boundaries to defendant-he has been guilty of such delay or acquiescence as to amount to laches within the doctrine that delay defeats equities notwithstanding the delatory habits of our natives in this country. To all the circumstances of this case, this equitable doctrine should apply.”
Dr. Danquah contended that the evidence amply supported the finding that the plaintiffs were estopped by conduct amounting to acquiescence.
Adumua-Bossman J.’s exhaustive analysis of the evidence demonstrates very clearly that that finding is not supported by the evidence. What is more Adumua-Bossman J. went further in the consideration of this issue to assume the truth of the facts alleged to constitute the conduct on the part of the plaintiffs which it was contended operated to estop them, and to subject those facts to the test provided by the case of Willmot v. Barber16 The result of Adumua-Bossman J.’s examination of the facts in the light of the test aforesaid was his finding that the alleged conduct of the plaintiffs
“falls very far short of satisfying the conditions and/or test necessary for invoking and/or applying the equitable doctrine of acquiescence laid down not only by the English case of Willmot v. Barber but the local cases to which we have already made reference.”
[p.301] of 1 GLR 285
Dr. Danquah in attacking this finding submitted that the first plaintiff by his conduct induced in the Nsenifuor family the belief that the properties were stool properties. The particular conduct to which he referred was the allegation that in the discussion in the Omanhene’s house the first plaintiff made on behalf of Baah, and with the latter’s tacit approval, a gift of Baah’s properties to the stool. The fact relied on by the defendant in putting forward the allegation of a gift was that when the Omanhene was reluctant in accepting the election to the stool of Kwasi Baah, the first plaintiff, in order to persuade the Omanhene to accept his brother, said that his brother Kwasi Baah was ascending the stool with all his properties. Dr. Danquah did not contend that there was a gift in law, but he argued that the statement attributed to the first plaintiff somehow confirmed the Nsenifuor family in their belief, erroneous though it might be, that the properties of a person occupying the Nsenifuor family stool became stool properties on his death. Counsel went on in his submissions to find support for this contention in the fact that for two-and-a-half years after the death of Kwasi Baah, the first plaintiff, acquiesced in these properties being treated as stool properties.
The short answer to this argument is that the Nsenifuor family, a family whose head is one of the principal elders of the New Juaben Paramount Stool, ought at least to know the customary law relating to the private property of a stool occupant, and if they were prepared to allow themselves to be inveigled into the belief that their rights under the law were different from what the law actually conferred on them, in my view, they can have no cause for complaint if they are rudely awakened to the stark realities of the law. Further, the contention that the first plaintiff acquiesced for two-and-a-half years in the properties being treated as stool properties is not borne out by the evidence, for the evidence shows that during that period he was at various times protesting vigorously his rights, but somehow in the initial stages of his struggle he did not get the full support of his branch of the family. He was therefore obliged in military parlance to retreat and to re-form, and when the opportunity presented itself favourable to go on the attack again. Adumua-Bossman J. in describing this stage of the first plaintiff’s fight for his rights said:
“Apparently it was after this rejection of this claim by the wider family at a time when he does not appear to have been formally appointed successor nor openly supported by the immediate family group at Effiduase to claim the properties, that he appears to have decided to be philosophical enough not to press his claim for the time being but to join or rather co-operate with the other elders of the family in electing and enstooling chief Djan, but with the intention no doubt to await a favourable opportunity for raising again and pressing his claim at a more favourable or opportune time.”
Dr. Danquah has seized upon the expression “appears to have decided to be philosophical enough not to press his claim” as supporting his contention that the first plaintiff, in representing to the Nsenifuor family during this period of “philosophic” calm that the properties were stool properties, was perpetrating a fraud on the Nsenifuor family and that the
[p.302] of 1 GLR 285
expression just quoted was a euphemism of Adumua-Bossman J.’s for the plaintiff’s dishonesty. This may be a good exercise in logical argumentation, but nowhere in the judgment did Adumua-Bossman, J. find that the first plaintiff had been dishonest, nor was Dr. Danquah able in this court to establish any fraudulent conduct on the part of the first plaintiff.
Dr. Danquah relied on the case of Rafat v. Ellis,17 in which the plaintiff was held to be estopped by conduct from making a claim for possession of land with a building thereon constructed by the defendant while the plaintiff kept discreetly silent. The ratio decidendi in that case was that the plaintiff by his silence had encouraged the defendant to spend money in constructing a building on the land in the belief that the land was his, and he (the plaintiff) could not be permitted to take advantage of what amounted to fraudulent conduct on his part. In this case Dr. Danquah has not been able to show that whatever the conduct of the first plaintiff, the Nsenifuor family was led by that conduct to spend money or to prejudice their position in any way in the belief that the properties were stool properties. The ground of appeal relating to this issue fails. In conclusion I am satisfied that there was ample evidence not amounting to earmarking to support Adumua-Bossman J.’s finding that the properties were not stool properties and that the immediate family of Kwasi Baah, i.e. the plaintiffs, were entitled to the possession and enjoyment of the properties involved in the action. Such evidence being that Kwasi Baah’s ownership of these properties was well known to the Nsenifuor family, that he made no gift of the properties to that family and that during his occupancy of the stool and to the knowledge of the stool family he kept these properties separate and distinct from the stool properties which were handed over to him on his accession.
For the above reasons I would dismiss the appeal with costs to the plaintiffs.
JUDGMENT OF SARKODEE-ADOO J.S.C.
I agree.
JUDGMENT OF MILLS-ODOI J.S.C. I also agree.
DECISION
Appeal dismissed with costs.
- D.
