Akosua Koran & Ors V. Bafour Kofi Dokyi & Ors (1941)
LawGlobal Hub Judgment Report – West African Court of Appeal
Family property sold unitler writ of Fi. Fa. for private- debt—Appeal from judgment of Provincial Commissioner’s Court upholding judgment of the Tribunal of the Paramount Chief of Akyem Abuakwa that property sold incorrectly for private debt—Appeal before West African Court of Appeal on grounds that where family property involved Head of family only entitled to take action—Plaintiff, an interested party will member of the family, though not necessarily Head of family had been empowered verbally by family to sue.
Held : Plaintiff could properly bring action and appeal dionisset
There is no need to set out the facts.
Alfa Mahmutlu v. Zenuah (2 W.A.C.AT 170.
Of ei Aw ere (A ku ffo Addo with him) for Defendants-Appellants.
I. B. Danquah for Plaintiff-Respondent.
The following joint judgment wee delivered :—
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.
This is an appeal from the judgment of the Provincial Commiesioner’s Court, Eastern Province, which upheld the judgment of the Tribunal of the Paramount Chief of Akyem Abuakwa. The claim of the plaintiff-respondent was for—
- a declaration that certain lands with the houses, etc. thereon were the properties of the Ekuona Family of Hukurautumi and that the said properties were not liable to be sold for the private and individual debts of Jacob Reynolds Danso;
- for recovery of possession of the said lands;
- for accounts to be taken of all moneys realised by the defendants from the said lands during the period of their wrongful possession and occupation
and (4) for payment to the plaintiff of whatever amount- should be found due upon such accounts.
The Tribunal, in the course of what the Court below rightly Akosus described as a ” well-reasoned judgment “, found certain material Kirmln,e,. facts which may be shortly-set out :– Bt our Kofi
” The debt for which the property was sold was not a debt incurred Mobil & cat-
” by or on behalf of the family. The people wits whom the debt Was
” contracted were not even known to the Ekuona Family. 8o the debt patricide
” was Danso’s personal affair, pure and maple.”and
Having found these facts the Native Tribunal, in its judgment, C.n. proceeded as follows :—
” Consequently we hold that, according to the native customary ” law, the properties is question were not liable to be saki for the ” purpose for which it was done.”
The. Tribunal then went on to consider the suggestion made ler the defence that the plaintiff had acquiesced in the sales in question and that the plaintiff had allowed time to lapse. The conclusions of the Tribunal on these points were that they disbelieved, and rejected the evidence brought by the defendants as to acquiescence holding that there had been ” consistent efforts on the part of the plaintiff to recover the properties.”
The Tribunal further expressed themselves as ” satisfied that ” the fact that the prop_erties sold were not self-acquired properties ” of . . . . . the debtor Danso was so well known at Kukurantumi ” that the step taken by the first defendant could not but be an ” act of one in more advantageous circumstances taking advantage ” of the weak, which our sense of justice and fairness will not ” tolerate.”
Upon these findings the Tribunal declared ” that the ” properties claimed are the properties of the Ekuona Family and ” were not liable to be sold for debt due by Danso personally.” Their judgment concludes with the words ” The plaintiff for her” self and on behalf of her family do recover the said properties
for and on behalf of herself and the said Ekuona Family with” out any further liability on the part of the defendants.”
That judgment was upheld on appeal by the Provincial Commissioner’s Court and the appellants have appealed to this Court from the judgment of the Provincial Commissioner’s Court.
The grounds of appeal before this Court do not attack a single one of the findings of fact by the Tribunal. Nor do they attack the finding in law of the Tribunal that ” according to the ” Native Customary Law the properties in question were not liable ” to be sold for the purpose for which it was done.” This Court must therefore accept the findings of fact and law of the Tribunal in considering the appeal.
The appellants’ ease before this Court, shortly put, is that the plaintiff is not the • Head of the Family and that where, as admittedly here, family property has been wrongly sold under a
Writ ofFa. issued in execution of a judgment against an
individual member of the family for his own personal debt and the purchasers have entered into possession and occupation of the family .property no member of the family except the Head of the Family may take action in Court against the- purchasers claiming a declaration that the property is, family property and not liable to be sold for the debt in question and for recovery of possession for and on behalf of the family.
it has been recognised by the Courts of the Gold Coast that, as a general rule, only the Head of a Family can sue as representative of the family for the recovery of family land. This Court recognised the existence of such a general rule in its judgment in the case of Alfa MaJmudu v. Zenuah_12 W.A.C.A. at page 175).
In the present case, however, Yaw ?Amite, Linguist to the Adontenhene of Akyem Abuakwa, in reply to the question put to him by the second defendant ” In case any property –belonging to the family is lost, is the plaintiff ‘the proper person to claim it for the family? ” said ” Plaintiff has the right to dispute for it.” Also Opanin Kwasi Asaku, a former occupant of the Ekoona Stool, whose evidence was taken on commission, deposed that ” each member of our family has a legitimate right to dispute for the properties in dispute.”
The Tribunal after stating that it was satisfied that the plaintiff, an elderly woman of the family, had a direct material interest in the properties belonging to that line of the family, held that according to native custom plaintiff could properly bring the action. Although the Tribunal did not base its judgment on it, the Tribunal had before it the plantiff’s uncontradicted statement that she was verbally empowered by the occupant of the Ekoona Stool to represent the family and bring this action.
Major Gosling, Acting Deputy Commissioner, Eastern Province, in the course of his judgment on appeal, said that he accepted the custom as laid down in the judgment of the Tribunal that the plaintiff had the right to sue and went on to say ” It ” seems to me that no one is better qualified to define_ Akint
Abuakwa native custom than the Omanhene and hiS Councillors.”
We agree with that observation.
We are satisfied that we are not justified in holding that the Tribunal was wrong, on the evidence before it, in holding as it did ” that Akosua Korang can, according to the native custom, properly bring the action now before us.”
Other grounds of appeal in this case related to alleged irregularities of procedure but we can find no substance in any of these grounds.
The appeal is dismissed with costs which we assess at X21 19s Od.