Division: IN THE HIGH COURT (LANDS DIVISION), ACCRA
Date: 20TH APRIL, 1959.
Before: OLLENNU J.
JUDGMENT OF OLLENNU J.
This is an appeal from a judgment of the Kwahu Local Court “A” given on the 12th August, 1958,
declaring certain 10 farms to be property of the plaintiff s family stool, the Siao Stool of
Twenedurase.
The following facts are not in dispute:-
(i) the plaintiff is the present occupant of the Siao Stool;
(ii) the land on which the farms in dispute are situate, Kyikyiwah land, and the villages thereon, belonged to the said Siao, and are now property of the plaintiff s stool;
(iii) the parents of the defendant (Kumah), Gyenyereh and Nyamewah, were not blood relations of the said Siao. They came from the former Northern Territories (now Northern Ghana), but they stood in a certain relationship to the said Siao, which was such that the defendant, their son, is now obsorbed into the Siao family, and is one of the elders of the family, and recognizes the plaintiff as his head of family;
(iv) the defendant, as a principal member of the said family, has twice been made lead of Besease village, and family’s principal village on the said Kyikyiwah land. The defendant’s present appointment as head of that village was made by the plaintiff.
[p.198] of [1959] GLR 196
The plaintiff s case is that the parents of the defendant were slaves of the late Siao, and that they, together with other slaves of the said Siao, worked on and extended farms which Siao had made on his land (the said Kyikyiwah land) prior to acquiring those slaves; and that whatever farms the slaves made they made for their masters, and never had their separate individual farms. The plaintiff claimed the 10 farms as some of the farms made in this way.
The defendant put up three or four different stories:
(1) his parent were strangers from the Northern Territories who lodged with the said Siao. They were not slaves of Siao. The farms in dispute were made by his father Gyenyereh on land given to him by Siao.
(2) his father, who had lodged with Siao, went back to the Northern Territories and brought more people, who joined him in lodging with Siao. His said father, and each of those strangers, made farms on the land with Siao’s permission. Those other Northern Territories men predeceased his father, and his father thereupon inherited the farms made by those people. Some of the 10 farms in dispute are farms which his said father so succeeded to, and which he (1st defendant has now inherited;
(3) his father accompanied the late Siao to war against the Ewes. During that war his father captured some men, whom he gave to Siao on their return from the war. Siao then put him and those captives to work on the said Kyikyiwah land, and to build the villages thereon. Some of the farms now in dispute were made by those captives. The remainder of the farms were made by his father;
(4) the majority of those farms were farms which he and his brothers had made by cultivating the forest. Some of the farms were gifts made to him by one of the strangers who lodged with Siao.
Counsel for the defendant-appellant strongly criticised the judgment of the Native Court on what the Native Court stated to be the case for the defence. The passage in the judgment dealing with that issue is as follows:-
“Subsequently, the defendant put his claim into the Stool cocoa farms on the land. He alleged that the cocoa farms are for his father because, he was among the workmen of late Siao who planted the cocoa in ancient days at his (Siao’s) interest.”
[p.199] of [1959] GLR 196
Counsel submitted that this passage shows that the Native Court misconceived the defendant’s case, and therefore proceeded upon wrong premises, which resulted in a miscarriage of justice.
In fairness to the Native Court, I must say that the defendant did give the impression set out in that passage of their judgment. Here are a few of the things which he said in his evidence, both in-chief and in cross-examination:-
“My father then stayed at Kyikyiwah with the other two men and his wife (Nyamewah) at the interest of late Siao of Twendurase. They established farming by tilling the forest by the village and planted yams. Later he left for (Northern Territories) and brought additional men and they assisted the farming at the interest of late Nana Siao. All the people who came in were about 26 at the village. They lived there at
the interest of late Siao…….My father was conveying some of the farm crops to late Nana Siao often
time. Later, cocoa industry was introduced. My father retilled the farmstead and planted cocoa plants.
Later Nana Siao often times visited my father and others in the village as his strangers on his land…….
The said Ko-Mirebu was son to late Nana Siao. Late Gyenyereh was son to late Nana Siao. I am grandson in your family house. Yes, late Nana Siao had acquired his land at Kyikyiwah when late Gyenyereh came to lodge him. The village had been already established before late Gyenyereh came
from Northern Territories ……..Yes, my late father took all the estate of his followers from Northern
Territories who lodged late Nana Siao in the village Kyikyiwah including their farmsteads.”
It is true that the passage quoted from the judgment of the Native Court is not a full statement of the entire defence put up by the defendant. But having regard to the confused nature of the defence, I would not say that the Native Court erred in dwelling on that part of the defendant’s case.
If the defendant’s case is correct that some of the farms in dispute were made by some strangers of Nana Siao, other than his father, and that strangers together with his father worked on the land in the interest of Nana Siao, the proper inference is that his father and those other strangers worked for Nana Siao as his servant. In any event, if those other strangers died without any one to succeed to or inherit their estate, the farms they had made on the land would become the property of their licensor, Nana Siao, and not the defendant’s father, for he was in the same category as themsleves.
[p.200] of [1959] GLR 196
The most serious compliant against the judgment of the Native Court is in respect of the following findings made by them:
“Historically, it is found on the record, on the merit of the evidence that late Gyenyereh and Nyamewah were slaves to late Nana Siao in the Ancient days during the slaves trade. In the Ancient Trade Custom, the slaves were not having properties but their masters. Moreover when the slaves were set free and some left away in the country, their Masters’ landed properties were not taken away with them. In view of the slave trade custom, this Court finds that the disputed property is not for Gyenyereh but is for late Siao of Twenedurase whose estates have been succeeded by the Plaintiff.”
Counsel for the appellant (Kumah) submitted that having found that the latter’s father Gyenyereh and his mother Nyamewah were slaves of Siao, the Native Court based their decision on slavery, and did not consider it necessary to determine the real question of fact, viz, whether or not the farms were made by Siao, or were made by Gyenyereh. Counsel submitted further that it should be inferred from their application of custom regarding the property of a slave that the Native Court must have found that all the farms were made by Gyenyereh.
In my opinion the Native Court erred in basing their judgment upon slavery. Custom relative to succession based upon slavery is an illegal custom, and should not be applied in deciding a case. By misdirecting themselves and applying an illegal custom the Native Court failed to determine the real issue in dispute.
That Gyenyereh and his wife Nyamewah during their lifetime did stand in some servile relationship to Nana Siao and his successors, seems clear on the record. A most important witness for the defendants puts the situation as low as follows:- “Yes, I know late Gyenyereh. Yes, I know late Nyamewah. I know they were servants to late Atuobi but I don’t know that they were servants to late Nana Siao.” (Nana Atuobi was the immediate successor to Nana Siao.) From the whole of the evidence, I think the Native Court were not wrong in their findings that Gyenyereh and Nyamewah were slave to late Nana Siao. Perhaps they might have used a more respectable term, e.g “servants,” instead of “slaves.”
I agree with learned Counsel for the appellant that the Native Court’s finding that Gyenyereh and Nyamewah were slaves, and that the Court’s holding that by reason of custom relative to succession to a slave the properties are now property of Siao family, would
[p.201] of [1959] GLR 196
seem to indicate that the Native Court found as a fact that the farms were cultivated by Gyenyereh. But I do not agree that that finding of fact of itself determines the case. It is still left to be found whether if Gyenyereh cultivated each of those farms, he cultivated them for his master Siao, in other words “in the interest of Siao,” or cultivated them for himself.
Moreover, statements made by the parties to the Native Court at the inspection of the farms contained admissions by the defendant that some of the farms were not made by Gyenyereh, but by other servants to Siao. By customary law (as stated above) the defendant would not be entitled to those farms. The strangers who made them having died intestate, without successor of heir, the farms would belong to the owner of the land-the Siao family – with whose license those strangers made the farms.
Since Gyenyereh was a “servant” of Siao or of his successor, Atuobi, and since the farms were made on Siao’s land, round about a village Siao had built before obtaining the services of Gyenyereh, very strong evidence is required to show that Gyenyereh made all those farms in his own right, and not as a servant of Siao.
There is strong evidence of eye-witnesses that Gyenyereh worked as a servant of Siao. The defendant himself at one time said that his father made the farms “in the interest of Siao,” and at another time said that his father made them for himself. The relationship between defendant’s late father and the late Nana Siao was so strong that, as the defendant said, when Nana Siao at one time drove Gyenyereh away Gyenyereh refused to go, and in consequence of that incident Gyenyereh was nick-named “Diemahum.” This argues so special a relationship that would require very strong evidence to convince a Court that Gyenyereh never made a farm for his master.
In my opinion, the presumption in such circumstances is that Gyenyereh worked on the master’s farm for and in the interest of his master. The onus is therefore upon the defendant to rebut that presumption, or to prove that Gyenyereh made some farms for himself, and to indentify those farms. This he failed to do.
Much stress was laid on Exhibit “G” an agreement whereby the defendant purported to have given 9 farms to the plaintiff on certain conditions, and also Exhibit “E” which shows that the plaintiff acted upon the authority given him in Exhibit “G.” It was submitted that those exhibits amount to an admission by the plaintiff against his interest, and that the plaintiff is thereby estopped from denying the defendant’s title to the land. In my opinion the relationship which existed between the defendant and the family
[p.202] of [1959] GLR 196
of which he is now an important member, is such that it would be unjust to attach weight to those documents, to the prejudice of the family, in spite of all the evidence on the record.
DECISION
The grounds upon which the Native Court based their judgment are untenable. But upon the whole evidence. I am satisfied that substantial justice was done by the Native Court in entering judgment in favour of the plaintiff. I must say, finally, that the second order made by the Native Court is obiter, but in the special circumstances of this case I will not interfere with it. The appeal is dismissed with costs fixed at £18 12/-, including 10 guineas Counsel’s costs.
