Division: IN THE COURT OF APPEAL
Date: 2ND FEBRUARY, 1959.
Before: VAN LARE AG. C.J., GRANVILLE SHARP J.A. AND OLLENNU J.
JUDGMENT OF VAN LARE AG CJ.
The facts in this appeal are not in dispute. Briefly stated they are as follows. The respondent inherited his uncle’s cocoa farm, adjoining which was virgin forest land, the subject-matter of this suit. The appellant was a caretaker employed by the respondent in respect of his said farm. It appears that during his caretakership the appellant, himself a subject of Nkawie Stool, approached the Stool (as owners of the disputed land) for a grant to him. The Stool accordingly made a grant to him and sent an agent to demarcate the extent of such grant. In the result, seven acres of forest land adjoining the respondent’s farm, of which he was a caretaker, were granted to the appellant, and he cultivated them.
The respondent instituted this action against the appellant, claiming the said land. The matter for decision was purely a question of native customary law, that is to say, whether the Nkawie Stool could make a valid grant of forest land adjoining the farm of a subject to another subject of the Stool.
The only evidence as to the relevant custom was that led by the appellant, and consisted of the evidence given by Nana Kofi Marfo, Nkawiepaninhene, the occupant of the Nkawie Stool, who testified that any forest land of his Stool could be allocated to any of his subjects to cultivate provided it was not a farmstead nor fallow land.
The native trial-Court, despite this evidence as to custom, expressed the opinion that “it is against the practice of native custom that plaintiff s immediate or continuous forest adjoining his farm be cut for defendant,” and therefore gave judgement for the plaintiff -respondent.
[p.53] of [1959] GLR 50
On appeal to the Asantehene’s “A2” Court, a contrary opinion as to the custom was expressed, whereby they held that the Court below misdirected itself on the native custom. It is plain, therefore, that in their opinion any forest land on Nkawie Stool land, whether or not adjoining and existing farm, could be allocated to any subject farmer, provided it was not a secondary forest or fallow. They therefore (rightly in our view) reversed the decision of the native trial – Court.
The Land Court, Kumasi, on appeal reversed this decision of the Asantehene’s “A2” Court on the grounds that (a) the native trial-Court had the advantage of an inspection of the locus in quo (as to which we find no supporting evidence), and (b) evidence before the native trial-Court supported the respondent’s case. We are also unable to find any evidence in support of the respondent’s case which, as we have said, turned wholly upon the question of native customary law. It therefore turns out that the learned Judge of the Land Court, Kumasi, reversed the reasoned decision of the Asantehene’s “A2” Court without any reasons whatsoever.
Native customary law is peculiarly within the knowledge of the native courts, and the opinion of a superior native court on native custom must be preferred to the opinion of an inferior native court, unless it is either contrary to a decision of the Supreme Court or the Privy Council on the point, or is “repugnant to natural justice, equity and good conscience” (section 87, Cap. 4). Nothing of the foregoing applies to the present case, and the learned judge should therefore have refrained from disturbing a decision of the superior native court upon a question of native customary law.
In the circumstances we feel that the decision appealed from must not be permitted to stand, and we therefore allow the appeal. The judgement of the Land Court, including the order as to costs, is set aside. The judgement of the Asantehene’s “A2” Court is restored.
The appellant will have his costs in this Court, fixed at £40 1s, 3d. and his costs in the Land Court, Kumasi, assessed at £21.
DECISION
Court below to carry out.
