Nana Kwaku Amoah II & Ors V. Nana Sir Ofori Atta & Ors (1933)

LawGlobal Hub Judgment Report – West African Court of Appeal

Concessions Ordinance—Enquiry into the validity of several concessions—Opposition from paramount chief claiming a one-third share of the rents—Condition inserted providing for the endorsation of the Paramount Chief’s claim if and when established at law—Claim eventually established—Jurisdiction of Court to insert condition—Power of Court to order endorsation.

Facts

The representatives of the Asamangkese and Akwatia Stools, both of which are subordinate to the Paramount Stool of Akyem Abuakwa, granted a number of diamond mining concessions to the Consolidated African Selection Trust Limited. When the latter applied to the Concessions Court at Accra for the issue of Certificate of Validity in respect of these concessions the Omanhene of Akyem Abuakwa appeared to oppose the validation of each concession on the grounds (1) that the assent of the Paramount Stool of Akyem Abuakwa was necessary to any alienation of their lands by the Subordinate Stools of Asamangkese and Akwatia, and (2) that the Paramount Stool was entitled to a one-third share of the rents payable under each concession.

The Concessions Court, with a view to avoiding delay and at the instance of the Omanhene and the Selection Trust, decreed the issue of a Certificate of Validity in respect of each concession subject to the insertion therein of the following condition :-

Nothing contained in this Certificate of Validity shall affect the rights or title of the Omanhene of Akyem Abuakwa on behalf of the Stool of Akyem Abuakwa in respect of which he claims :—Firstly, that the assent of the said Omanhene was necessary for the valid alienation of the land comprised in the said concession which assent was duly obtained by the said claimants but the necessity thereof disputed by the said grantors ; and secondly, that the said Omanhene is entitled to one-third part of all rents and profits reserved by and payable under the said concession which claim is disputed

by the grantors. In the event of any of the said claims, or any other rights Nana of the said Omanhene over or in respect of the land comprised in the said Kwaku

concession being hereafter finally declared in an action at law this Certificate Amoah II

of Validity shall be endorsed accordingly, and any rents and royalties to which & ors. the said Omanhene may be entitled shall be paid accordingly.”v.

Although the representatives of the Asamangkese and Akwatia Stools opposed Nana Sir

the insertion of this condition in all the Certificates of Validity which were issued, Ofori Atta

they did not appeal against its insertion in any single case.& ors.

The Omanhene commenced an action to establish the claims set out in the

Deane, C.J.

above ” condition.” but it was eventually discontinued by consent and the

questions at issue therein along with several other questions at issue between his Stool and the Asamangkese and Akwatia Stools were referred to arbitration in the year 1929. After a lengthy arbitration the arbitrator (Hall, J.) awarded and adjudged (inter alia) that although the Paramount Stool of Akyem Abuakwa is not, according to custom, necessary for the valid alienation of lands held by the Asamangkese and Akwatia yet the Paramount Stool is, by the custom of Akyem Abuakwa entitled to receive one equal third share of all rents and profits of lands alienated by those stools or either of them.

The representatives of the Asamangkese and Akwatia Stools moved the Divisional to set aside the award, and had judgment given against them. From that judgment they appealed without success to the West African Court of Appeal and then to the Privy Council. The award being thus upheld the Omanhene had it made an order of the Supreme Court and then moved the Concessions Court ex parte for an order that each Certificate of Validity should be endorsed with a statement that his claim to a one-third share of the rent payable thereunder had been established. In doing so he relied on the condition set out above which had been inserted in each Certificate of Validity.

The Concessions Court made an order as prayed, and refused a motion by the representatives of the Asamangkese and Akwatia Stools to set it aside. The latter appealed from such refusal on the grounds (1) that the Concessions Court had no jurisdiction to insert the condition in any Certificate of Validity, and (2) that the Concessions Ordinance contained no provision under which such an order could be made.

Held

(1) the question of the Concessions Court’s jurisdiction to insert the above stated condition in the Certificates of Validity was res judscata and could not be considered in these proceedings.

Held (2) the Concessions Court had power to make the order for endorsation under the Rules of the Supreme Court which apply to proceedings under the Concessions Ordinance.

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The appeal was therefore dismissed with costs.

Eliza Morris V. John Monrovia (1930)

LawGlobal Hub Judgment Report – West African Court of Appeal

Contract—Persons living in concubinage Money contributed by both towards erection of house—Death of one of the persons—Claim by other for money she contributed disallowed.

The Plaintiff and one Weatu lived in concubinage, and during the course of this relationship they expended money in building a house, the plaintiff’s contribution being £94. On the death of Weatu she sued the defendant, his administrator, and got judgment in her favour for this amount.

On appeal the decision of the Court below was reversed on the ground that the circumstances rebuted the presumption that plaintiff’s contribution was money paid for the use of Weatu, and that the true conclusion from the evidence was that the £94 was a gift.

C. F. H. Benjamin for the Defendant-Appellant. F. A. Williams for the Plaintiff-Respondent. The following judgments were delivered :—

SAWREY-COOKSON, J.

This was a claim against the Administrator of the Estate of one John Weatu (deceased) to recover a debt alleged to be due by the deceased, and the only question the learned trial Judge found himself called upon to decide was whether or not the plaintiff had contributed, money for the erection of a certain building by the deceased, and if so whether a claim for any such sum could be maintained against the Administrator

All that need here be stated as to the material facts of the case is that the deceased John Weatu and the plaintiff-respondent had lived in concubinage for many years in Sekondi, and there is nothing to show that their relationship during that period was not of a perfectly cordial character. Both were from Liberia and of the Kroo tribe.

The learned Judge (Mr. Justice Howes) found that the plaintiff had contributed a sum of £94 towards the erection of that building and gave judgment in her favour for such sum to be paid by the Administrator out of deceased’s estate, and from that judgment this appeal is now brought.

The learned Judge held that whether the deceased, and plaintiff were actually. married or not did not affect the issue, because it was not disputed that the plaintiff had lived with John Weatu as his wife ; but he found that the case presented some difficulty owing to the fact that the principal person concerned, viz., John Weatu, died intestate ; and it is precisely that same difficulty which has led us to disagree with the conclusion reached by the learned Judge. In other words, it is because the claim is against the estate of a dead man that the question arises whether she could have maintained the claim during his life time.

The difficulty is not in deciding whether the second of the three monis grounds of appeal fails or not, viz. that the judgment was against Mo^vnr^. ovia the weight of evidence, for it is dear there was ample evidence

upon which the learned Judge was entitled to base his finding Sawreythat the Plaintiff had _contributed towards the cost of the building Cookson, J. and consequently this Courf will not disturb that finding of fact.

It is only when we have to consider (as just stated) whether or not, in view of the relationship existing between the parties during these many years the woman could have recovered the sum she had contributed during John Weatu’s life time, that we are of opinion that the judgment is wrong, and for the following reasons :—

Mr. Hayfron Benjamin whose first and third grounds of appeal are that the judgment was erroneous in law and that the Plaintiff-Respondent should have been nonsuited as no case was made out for the Defendant-Appellant to answer, did not take the exact point which in our opinion must decide this appeal ; but he did refer us to the case of In Re Whitaker L.J. (1882) Ch. Div. at page 737 (et seq) where we find the following passage which is appropriate to the facts and circumstances of the case before us :”Another well established rule is that a person making a claim against the estate of a dead man cannot sustain that claim by his or her own deposition,” and the learned Vice-Chancellor went on to point out that, in the case before him, up to the time of the husband’s death nothing had taken place between the parties, and there had been no claim by the wife to recover certain sums which she alleged after his death that she had lent him. That is exactly the position of affairs as they are now before us—not a word said during the time they lived together as man and wife and no other indication whatsoever to rebut the presumption arising out of the relationship which existed between the parties, viz, that the money was contributed by the woman as a gift. Where, as in the case before us, there is evidence that the parties, living together as husband and wife decide to contribute towards the building of a house in which they are to continue to live together in that relationship, what is more natural, unless there is clear evidence to the contrary, than that their contributions should be deemed to be for their mutual benefit without any contemplation by either of claiming a return by the other party of such contribution ?

In the case before us there is certainly no evidence of any express agreement or promise to repay the Plaintiff’s contribution, and we think the circumstances negative any such implied agreement or promise.

Mr. Williams has argued that the evidence of the witness Blankson makes it clear that John Weatu kept accounts of all moneys contributed towards the building, and that being so the woman’s contributions cannot be regarded as a gift. As I understood Mr. Williams, his argument was that there would have

been no necessity for the keeping of any account of such moneys unless the intention had been to refute the possible suggestion of the contribution being made as a gift. But it does not appear from that evidence that Blankson kept an account of anything more than what deceased may have contributed : and moreover, because the same witness Blankson is quite clear that the woman contributed nothing whatsoever towards the building (except what the deceased gave her for that purpose), it would follow that no account was kept of the joint expenditure.

Mr. Williams also argued that whatever the English law on the subject may be there is no presumption among natives that where a woman is living with a man the money in such a case as the present would be a gift and that the presumption is rather to the contrary, but he has offered us no authority for that proposition.

There can, however, be no doubt that were Fanti Customary Law applicable in this case what is known as ” Sarwie ” would apply, and equally so would any contribution then be irrecoverable. The parties, however, being Kroos, Fanti native custom cannot apply to them.

There mere fact that Kroos come to this Colony from Liberia and live here for a considerable time and even build houses does not mean a change of domicile so as to render them liable to be bound by custom other than those of their own tribe ; and as to what those customs may be there is no evidence before us.

Nothing, therefore, that Sarbah has to say in his learned work on Fanti Customary Laws applies in this ‘instance and consequently, since the English law on the subject is applicable, and it must therefore be held out that there was no implied promise or agreement to refund the Plaintiff’s contributions, she has/failed to make out her case and there should have been judgment for, the Defendant. The judgment of the Court below must therefore be set aside and the following entered in lieu thereof ” There Will be judgment for the Defendant,” but in view of the fact that the point which decides this case was not taken in the Court below, there will be no order as to costs either in this Court or in the Court below.

DEANE, C.J. THE GOLD COAST COLONY. _

This is an appeal from a decision of Howes, J., in favour of the Plaintiff-Respondent. The Plaintiff had brought an action against the Defendant to recover from the Defendant possession of all that piece or parcel of leasehold land together with the building thereon situate at Krootown Dutch Sekondi measuring 81 ft. x 31.9 bounded on the North by an open space, on the South by Main Street, on the West by Jugba Joe’s plot, and on the East by an open space, the property of the Plaintiff : In the alternative the Plaintiff claimed from the Defendant as Administrator of the estate of John Weatu (deceased) the sum of £105 12s. 8d. monies spent by the Plaintiff on the erection of the said building. The learned trial Judge having heard the case decided that the Plaintiff’s

claim to possession of the house in question was not sustainable, and from that finding there has been no appeal : he also held, however, that the Plaintiff bad_contrileuted^– the sum of £94 towards the erection of the house by the demased and gave judgment for her for that sum, and from-that finding the Defendant has appealed.

The conclusion arrived at by the learned Judge on the evidence that the Plaintiff had contributed 194 towards the erection of the building has been vigorously attacked on the ground that it is against the weight of evidence, and I am free to confess that the evidence in support of the finding does not strike me as very convincing. I am not prepared, however, to hold that there is no evidence to support the finding of= the learned Judge or that he arrived at a wrong conclusion on the evidence. After all he heard the witnesses and was in a much better position than this Court to decide what weight should be attached to their testimony, and this Court will not readily disturb his finding on a pure question of fact such as this.The matter, however, is not concluded by this finding. The question then’ arises as to the legal effect. The general rule of law is that monies expended by one man for the use of another are presumed to have been so expended at the request of that other, and the law implies &promise by that other to repay the monies so expended unless the cirtumstances: are such as to = rebut the presumption against the implied promise to repay : unless in fact the evidence is such as to establish that the advance was not by way of loan but a gift. Now the evidence in this case shows that plaintiff had lived for many years with the deceased as his paramour, and that it was at her suggestion that this house was built (vide her evidence p. 20) ” I told Weatu it would be good to build a house for ourselves. He did not agree at first but later did “). Neither then or at any time subsequently did she suggest repayment of any sums she might advance or had advanced towards building it, and nowhere in her evidence has she attempted to set up that the deceased ever discussed the question of = repayment with her or promised to repay her any monies so advanced. The conclusion I am forced to is that when this money was advanced by Plaintiff neither she nor the deceased ever contemplated that repayment would be demanded or enforced—the Plaintiff in fact pooled her resources with those of the deceased to build a house in which they could live together : the lease of the land was with her full knowledge and acquiescence taken in the name of the deceased ; and all these circumstances point unequivocally to the money being a gift and not a loan to the deceased. The only circumstance in fact spoken to during the whole course of the evidence which can be referred to as indicating a loan rather than a gift is the keeping of separate accounts by the deceased and the plaintiff showing what each had expended on the house. Not only, however, is this circumstance equivocal inasmuch as the inference

hat the monies advanced by Plaintiff to build was a loan is not a

Monrovianecessary inference therefrom, but the evidence in support of it

is the uncorroborated testimony of the Plaintiff and as such cannot

Deane, C.J. be noticed by the Court. The well-established rule of law is that a person making a claim against the estate of a dead man cannot sustain that claim by his or her own deposition .; and unless there be some corroboration of it something to satisfy the Court that the assertion is literally true, the Court can take no notice of it.

In my opinion therefore all the circumstances in this case rebut the presumption of law in favour of Plaintiff and tend to show that the money was not advanced at the request of the deceased but was a voluntary gift by Plaintiff towards the deceased’s expenses in building a house.

It will be noticed that I do not base my finding that this was a gift on the single circumstance of the close relations between Plaintiff and deceased, but on all the circumstances taken together of which that is only one. By Fanti Customary Law any advance made by a man or woman to his or her paramour while the relation exists is irrecoverable. Such a custom would not of course be binding in this case, the parties being Kroos and not Fantis, and I only refer to it as showing the manner on which a transaction of this sort presents itself to a section of the African peoples. There is no evidence given showing that the Kroo tribes have any custom which places advances of this nature in a different light to that in which they would be regarded under the law of Englind, and no reason therefore is forthcoming why the ordinary inferences of English law should be displaced.

In my opinion therefore the decision of the learned trial Judge that the £94 expended by Plaintiff was recoverable was incorrect, and the judgment of the Court below in favour of the Plaintiff should be set aside and judgment entered for Defendant.

Inasmuch as the consideration of the Court below was entirely directed to the question whether or not the monies had been expended and the question whether, even if expended, they were recoverable was not touched upon, I think there should be no order as to costs in this Court or the Court below.

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MICHELIN, I concur.

Rose Anna Miller V. Kwad Jo Kwayisi (1930)

LawGlobal Hub Judgment Report – West African Court of Appeal

Equil_v—Acquiescence–Estoppel–Native Custom not applied—Certificate of Purchase—-Title not indefeasible.

On the 14th December, 1925, the defendant purchased certain land at a Court sale and was granted a certificate of purchase with respect thereto. The plaintiff claimed portion of this land and instituted a suit in support thereof. The Court below held that the evidence in favour of plaintiff’s claim was of the slightest and gave judgment for the defendant.

On appeal, it was held that there was overwhelming evidence of use and occupation by the plaintiff and her predecessors for upwards of 80 years, that defendant’s predecessors had acquiesced in this use and occupation, and that it would be contrary to equity to allow the application of native custom as to ownership of land. It was iurther held, in Recce-dance with previous^–-docisions, that a certificate of purchase granted by the Court tines not oz itself confer an indeieasiole

. c. , Otis/ for the plaintiff-appellant.

,t. M. A kiwumi for the defendant-respondent. The following judgments were delivered :—

MICHELIN, J.

This is an appeal by the plaintiff from the judgment dated, the 17th June, 1929, of Sir Philip Crampton Smyly, late Chie. -Justice of this Colony, in favour of the defendant with costs.

On the appeal coming on for hearing before this Court, it was brought to our notice that since the date of the grant of final leave to appeal₎.- the-plaintiff-appellant had died, and upon the application of counsel for the appellant and with the consent of counsel for the respondent, the Court made an order substituting one Emmanuel Christopher Cojo France a nephew of the deceased and the sole executor named in the last will and testament of the deceased, in the place of the plaintiff-appellant for the purpose of cat^–vying on the said appeal.

In the action in the Court below, the plaintiff by her writ of summons dated the 15th January, 1927, claimed as against the defendant :-

1. a declaration of her title to all that piece or parcel of land, with the farms, produce and crops thereon situate at Akropong in the Akwapim District with boundaries and dimensions as set out in the said writ of summons ; and
2. An injunction restraining the defendant, his agents, servnts, workmen and the members of his family from entering on the said land and interfering pr otherwise dealing with it,

When the action came on fox hearing before the learned Chief Justice the question of jurisdiction was raised, but he deCided to retain it fof reasons which are set out at page 18 of the record of appeal, and this right of retention has not been disputed at the hearing of the appeal before us. , • –

According to the case for the plaintiff in the Court below, it appears that she based her title to the land in dispute upon a grant made many years previously by one Kojo Bediako, a native of Akroponi in the Akwapim District to the Basel Mission Society who in turn gave this land to her father, the late Joseph Miller, in the year 1849. He remained in undisturbed possession of such land until the time of his death in the year 1689 when his widow and children, including the plaintiff, occupied it until the year 1874. FroM tliaT^—date, the plaintiff had remained in undisturbed possession of the said land.

According to the case for the defendant, he based his title to the said land upon a certificate of purchase dated the 14th December, 1925, issued to him by the Court under the provisions of Order 45, Rule 34 in the suit of The. Commonwealth Trust Ltd. v. Frederick William Quasi Akuffo.

Under this certificate of purchase, the right title and interest of the judgment debtor in certain stool lands situate at Akropong which included the land now claimed by the plaintiff had been purchased by him. He further contended that the plaintiff was not entitled to the declaration sought as her father and his colleagues had only been permitted to use the land which still remained stool property until it was purchased by the defendant.

The learned Chief Justice after reviewing, at some length, the evidence adduced before him, arrived at the following findings of fact which appear at page 97 of the record.

1. There is no evidence of any gift or sale of stool lands to any missionaries other than those of the Basel Mission.
2. There is no evidence of the Basel Mission having ever parted with any of the lands given or sold to them.
3. The evidence of use and occupation by the plaintiff of these lands is of the slightest.
4. There is strong evidence of the use of these lands as stool lands without objection by the plaintiff or her representatives.

Three grounds of appeal were originally filed, but in arguing the appeal before us, Mr. Quist on behalf of the appellant restricted his submissions to the following grounds :-

“Because the said judgment was against the weight of evidence.” .

He submitted that the findings of fact upon which the judgment was based, were not supported by the evidence in the Court below and that the plaintiff and her predecessors in title having for

upwards of 80 years been in undisturbed possession of the land in Miller dispute, the plaintiff was entitled to the declaration sought in thCKwayisi writ of summons. In support of his contention, Ixeireferred the ,Court to the following cases :—Michelin, J.

The Bokitsi Concession, Renner’s Reports 239, and Lokko

v. Konklofi, Renner’s Reports 450.

Mr. Akiwumi on the other hand submitted that the judgment of the learned Chief Justice being based entirely upon findings of fact should not be disturbed by this Court.

Before considering the submissions of counsel, it will be as well for me to repeat here what has already been laid down on as many previous occasions, namely that the mere fact of obtaining a certificate of purchase from the Court under the provision

Order 45. Rule 34. does not of .1^.self confer upon the Purchaser an indefeasible title to the lagd gold;

•

All that he purchases is the right title and interest- -of_ the

judgment debtor in the sato. land ; such right. Title and interest

• is always therefore capable of being challenged by ail action being brought as in the present case (See Quasie v. Ansafu, Sarbah F.C.L. 266 and Quarcoe v. Coker Divisional Court, Accra, 27-8-24).

I shall now consider the findings of fact of the learned Chief Justice.

As to (1) It was never at any time suggested throughout the evidence in the Court below that there had been a gift or sale of stool lands to any missionaries other than those of the Basel Mission. This is clear from the evidence of the Rev. Peter Hall and also from the evidence of Mr. KOranteng a foriner Omanhene of Akwapim.

In the course of Mr. Koranteng’s evidence he stated as follows

When I got on the stool, I was informed by my elders that the Basel Mission bought certain pieces of land from the stool of Akropong, when the Mission wanted land to settle upon and that it was the Missionaries who gave portions of this land to the Miller family, whom they brought from the West Indies.”

it is difficult therefore to gather how the learned Chief Justice arrived at his conclusion on this point.

As to (2) Mr. Koranteng’s evidence, as to the tradition .handed down to him, as well as the evidence of the Rev. Peter Hall on this point is against this finding of fact, but apart from such evidence, the Basel Mission not being a party to the present action, this finding of fact would not be material to the issue before the Court.

As to (3) and (4) in my opinion there was overwhelming evidence of use and occupation by the plaintiff and her predecessors in title of the lane claimed, and the evidence as to use and occupation on bchalf.of. tIaLgatil was of the slightest and only in very recent years.

Mr. Koranteng in the course of his evidence stated as ‘follows :—

Q. Do you know the-land in dispute in this case ?

A. Yes.

Q. As far as you know is it the stool property of the Omanhene of Akwapim ?

A. No it is not the stool property of the Oinanhene of Akwapim. Q. Whom have you known to be the owner of this land ?

A. The Miller family, that is the plaintiff, his brother and sister. Q. When did you get to know this ?

A. When 1 was living with them in Accra between 1907 and 1914. I ryas their tenant and I knew they had a house in Akropong on the land in dispute. I knew they were staying in Akropong before, but now they have removed to Accra, that is what they told me in Akropong.

personally knew the house there.

When 1 became Omanhene, I applied to Ophelia Bruce, a niece of, the _

plaintiff for a piece of this land for a bungalow and garden.

She agreed and I paid £20 on account for the land. I was asked to

see the caretaker at Akropong, Yao Kwatchey.

He showed me the land. 1 wrote to Rose Miller, the plaintiff to obtain her consent before I drew up a conveyance.

She refused to give her consent and I asked forof my money.”

This is strong evidence not only of use and occupation on the part of the plaintiff but also of acquiesCence on the part of the stool of Akwapim, Mr. Koranteng having been a former Omanhene of such stool. •

In the case of the Bokitsi Concession, Renner’s Reports page 243, the Full Court in the course of their judgment stated as follows :—

” Assuming, however, that they had proved at some former period it had been so attached but that the Iamfuris had without any definite permission being granted to them occupied it without paying tribute and under such circumstances as would cause them to believe themselves to be_._tbsL owners of the land and to incur pecuniary responsibilities in consequence of that belief, we think it right to state that in our opinion it would be contrary to the principles of equity to allow the native law to apply in its entirety, such law being as we understand it, that the original owner of land who has not specifically divested himself of his ownership can after any length of time and under any circumstances obtain recovery of his land from persons setting up an adverse title whatever may be the detriment caused to such person by the fact that the original owner chose to sleep on his rights.

In the present case, I am of opinion that the facts are even

stronger than in the foregoing case.

It is clear from the evidence before the Court that the plaintiff and her predecessors in title for a period of upwards of eighty years were in undisturbed possession of the land in dispute, without at any time during that period paying any rent or tribute to the stool of Akwapim, and the plaintiff and her predecessors in title to the’ knowledge of the said stool exercised rights of ownership over the said land and the stool by their own conduct and acquiescence are now estopped, therefore, from disputing the

plaintiff’s title to the said land. The defendant could not by his purchase acquire any better title than the judgment debtor himself had in the said land.

With all respect to the views of the learned Chief Justice, -I am compelled to hold that the findings of fact upon which his judgment was based were not supported by the evidence before him and that the doctrine of long possession and acquiescence (in equity), as laid down by the decisions of this Court, was evidently not considered by him during the course of his judgment.

Without in any way deciding on the appellant’s rights as against any other party not claiming through the stool of Akwapirn I consider that she was entitled to a declaration of title as against the respondent.

The judgment of the court below must therefore be set aside and judgment entered In favour of the appellant for the declaration and also for the injunction sought, with costs to be taxed.

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The appellant will also have the costs of this appeal ^–asiessed at the surn of £63 17s.

The Court below to carry out.

DEANE, C.J. THE GOLD COAST COLONY. I concur.

HOWES, J. I concur.

Nee Mensa Larkai V. Amorkor Alias Ashiety & Ors (1933)

LawGlobal Hub Judgment Report – West African Court of Appeal

Family stool—Headship of family—Family property—Succession-Long continued possession—Individual ownership–Ga customary law.

Facts

A dispute arose concerning a plot of land at Accra, and all the parties concerned and those through whom they claimed title were of Ga nationality.

In 1872 the then Gbese Manche gave the land in dispute to one J., and it became his own individual property.

In 1889 J. gave the land to his brother A., who thus became the individual owner of it. As such owner he could have disposed of it during his life time, but no evidence was adduced to show that he had done so. A. died intestate in or about 1905, and first his sister L. entered into possession of the land and then, on her death which occurred shortly afterwards his sister 0. entered into possession and remained in possession until her death in 1932. During that period of quite 26 years she appears to have built on the land, received all rents accruing from i t paid all rates, and generally to have behaved as the owner. By her will 0. purported to devise the land to her daughters, the first three^– defendants, who took possession thereof on her death. The plaintiff, alleging himself to be the head of the L. family—a family to which with A. and 0. had belonged, brought an action against the first three defendants claiming the land as the property of the L. family. (The fourth defendant—a mortgagee–was added during the hearing in the Court below and was not concerned in the appeal). At the trial the first three defendants sought to show that A. had given the land in dispute to their mother 0. during his life time. The Court below arrived at the following conclusions :—

1. That as the plaintiff was admittedly sitting on the L. family Stool he must be the proper person to bring this action on their behalf, though no family meeting had been held to appoint a family head.
2. That all the facts of the case were consistent with A. having given the land in dispute to 0.
3. That even if A. had not given the land in dispute to 0. her undisputed occupation thereof for a period of 25 years had ripened into full ownership.

On these findings the Court below gave judgment for the defendants.

Held

On appeal, that succession to a family stool, which descends through males, is quite different to succession to family property, which descends through females ; hence the plaintiff, being a son of A. could not have succeeded to the land in dispute and was not the proper person to bring the action. In this connection it was painted out, by Deane C. J., that the land in dispute could only be the property of A.’s family, not of the wider L. family.

Held, also, however, that 0. must have succeeded to the land in dispute as the then head of A.’s family and as trustee for all the members thereof in accordance

with Ga customary law, and that her long continued and undisturbed’on

was therefore quite consistent with her rights and duties as such hof A.’s

family : in those circumstances her possession could not ripen into ownership.

Thus, as neither the plaintiff nor any one of the first three defendants had been able to establish any title to the land in dispute, the judgment of the Court below was carried by non-suiting the plaintiff and the parties were left to pay their own costs of the appeal and the original hearing.

Deceased Kweku kodieh V. Nana Kwami Affram (1930)

LawGlobal Hub Judgment Report – West African Court of Appeal

Administration—Native Custom repugnant to justice—Equity and Good conscience—Slavery Abolition Act, 1883.

On the death of one Kweku Damptey, the plaintiff and defendant each claimed to be entitled to administer the estate. The plaintiff based his claim on relationship the defendant on the fact that deceased was an Ahinkwa who had been ” dashed to his stoul. The Circuit Court of Ashanti held that, according to native custom, the defendant was entitled to administer the estate, as deceased had been his Ahinkwa.

On appeal it was held that defendant’s claim was_really based on the fact that the rieceteri had heen ” dashed ” to his stool, that this atibLA ve custom constituted slaveryand was therefore repuoaut to justice, equity anu good conscience.

tie judgment of the Circuit Court was set aside and letters of administration were granted to the plaintiff

j. H. Coussey for the plaintiff-appellant.

K. Quartey-Papafio for the defendant-respondent. The following judgments were delivered :— HOWES, 3.

This is an appeal from the judgment of the Acting Circuit Judge, Ashanti, by which it was held that the Defendant-Respondent, the Omanhene of Kumawu was entitled to a grant of Letters of Administration of the estate of Kweku Damptey.

The Plaintiff-Appellant is the nephew of the deceased, and therefore, in the ordinary way, by Native Custom, would be the person entitled to inherit.

By English law, too, the Plaintiff-Appellant or some nearer .relative of the Deceased, would be the person to whom, in the ordinary course, Letters of Administration would be granted.

The learned Acting Judge has based his decision -upon his finding that ” the deceased was an Ahinkwa to the Kumawu stool—that is a stool servant, whose office was in the old days that of an executioner, and who now-a-days does little more than attend the Chief on state occasions and carry before him the emblem of a sword,” and for this reason, held that by Native Custom, the Omanhene was entitled to administer the deceased’s estate. He did not adjudicate upon the question whether the deceased was ” dashed to the Kumawu stool ” as the Defendant alleged.

This question appears to me to be of considerable importance, as it is really the basis of the Defendant’s claim to the grant of Letters of Administration.

After the death of Damptey, a question arose as to the deceased’s belongings, the Yaw Trieh, brother of the deceased, sent a massage to the Defendant-Respondent saying that he (Yaw Trieh) would take the whole of the deceased’s estate. The Defendant-Respondent in his evidence stated ” When I received this message I sent my linguist _Koff Hemang to Trieh to swear the Great Oath that the deceased’s estate was mine, as he was my Ahinkwa and had been dashed me.”

Kwesi Nuama, linguist to Prempeh, gave evidence as to the custom in Ashanti in regard to the property of an Allinkwa, as follows :—

” When an ahinkwa of a chief dies all his belongings athould be..bight before the chief, who may select anything he likes and give the zest to the family. I have known cases where a chiefs subject has s behaved badly and has been banished and given to another chief. in such cases the latter has the sole control of such person and has absolute title to his property. and in olden days could kill him if he pleased. If such person-served as an ahinkwa, on his death^– all his property would be taken by the chief . . The present Plaintiff would be the deceased’s heir, if it were not for the fact that the deceased had been dashed to the Omanhene.”

In view of this evidence, it is clear that the Defendant’s claim to administer the property of the deceased was based on the fact, that not only was the deceased one of his ordinary Ahinkwa, but, according to the Defendant, an Ahinkwa who had been ” dashed ” to him.

The grant of Letters of Administration is a procedure under English law ; and there is nothing corresponding to it in Native Customary Law, under which, he who inherits the property would be the person to administer or distribute the property of a deceased person. It is therefore necessary to consider what principles should guide the Court in deciding to whom Letters of Administration should be granted.

The evidence of Kwesi Nuama shows that by Ashanti custom an Ahinkwa who has been ” dashed ” to a Chief, becomes to all intents and purposes a slave of that Chief. Not only is the Chief entitled to the sole control of his person and property during the life of the Ahinkwa, but, on the death of the latter, all his property will pass to the Chief. Such a condition of affairs is, in my opinion, nothing more or less than slavery.

Section 19 of the Supreme Court Ordinance, which, by section 7 of the Ashanti Administration Ordinance, is in force in Ashanti, provides inter alia :-

” Nothing shall deprive the Supreme Court of the right to observe and to enforce the observance of, or shall ^–deprive any person of the benefit of, any native customary law not being repugnant to justice, equity or good conscience.”By Section 12 of the Slavery Abolition Act, 1883, slavery was abolished and declared unlawful throughout the British Colonies Plantations and possessions abroad. After the coming into force

of the Ashanti Order in Council, 1901, Ashanti became a part of His Majesty’s dominions, and therefore, slavery became unlawful in Ashanti.

The Defendant’s claim, being based upon a native custom

Howes, J which I consider amounts to slavery, is in my opinion repugnant to justice, equity and good conscience, and cannot be recognised by this Court.

The Plaintiff-Appellant was therefore, in my . opinion, the proper person to whom Letters of Administration should have been granted. The judgment of the Court below must therefore be set aside, and judgment be entered in favour of the Plaintiff-Appellant for the grant of Letters of Administration as claimed, with costs to be taxed.

---

The appeal is allowed with costs assessed at i25 3s. The Court below to carry out.

DEANE, C. J. THE GOLD COAST COLONY. I concur.

MICHELIN, J.
I concur.

Doku Kugblawe Of Awunaga V. Agobodjo Agboada Of Awunaga (1931)

LawGlobal Hub Judgment Report – West African Court of Appeal

Land—Native Administration Ordinance—Judgment of Native Tribunal.

Suits relating to land in which all the parties are natives having been excluded by legislation from the jurisdiction of the Supreme Court, a Native Tribunal is, when deciding such a suit, exercising an exclusive jurisdiction, and no action to set aside its judgment can be entertained by a Divisional Court.

P. A. Renner for the Plaintiff-Appellant.

J. Henley Coussey for the Defendant-Respondent. The following judgments were delivered :—

MICHELIN, J.

This is an appeal by the Plaintiff-Appellant from a judgment of Gardiner-Smith, J., dated the 30th April; 1931 in which he gave judgment for the Defendant-Respondent with costs to be taxed.

In the action brought before the Divisional Court, the Plaintiff-Appellant claimed that a judgment pronounced against him by the body described as the Native Tribunal of Anlo on or about the 12th October, 1928, should be set aside on the grounds :—

1. That that body had no jurisdiction.
2. That the proceedings before that body were irregular and contrary to public policy.
3. That the nature of the suit on the ground of interest and magnitude was in excess of the jurisdiction of the Paramount Chief and otherwise that the proceedings were contrary to natural justice and good conscience and customary law.

That judgment of the 12th October, 1928, arose out of an action before the Native Tribunal of Anlo, presided over by Fia Togbi II, in which the Defendant-Respondent claimed from the Plaintiff-Appellant the sum of £5 ‘as damages for trespass on land situate in Awunaga. Judgment was delivered by the Native Tribunal in favour of the Defendant-Respondent on the 12th October 1928, for £1 and costs. An appeal from this judgment was taken by the Plaintiff-Appellant to the Provincial Commissioner, but was apparently struck out, and the action the subject of the present appeal was instituted in the Divsional Court on the 23rd March, 1931.

Eight grounds of appeal were originally filed, but Mr. Renner in arguing the appeal before us, confined his submissions entirely to the first ground, which reads as follows :-

“Because the Court declined jurisdiction not considering what purported to be and constituted the Tribunal which gave the judgment sought to be set aside.”

In arguing this ground, he submitted that the whole of the proceedings before the Native Tribunal constituted a farce resulting in a wrong done to the Plaintiff-Appellant. At the hearing before the Native Tribunal the Judges were also witnesses, and the Tribunal was improperly constituted, which was against natural justice. He submitted, therefore, that the Plaintiff-Appellant was justified in coming to the Divisional Court to have the judgment of the Native Tribunal declared to be a nullity. In support of this contention he referred the Court to the judgment of Beatty, J. delivered on the 21st June, 1923, in the case of Nagai Kassa v. Awah II, in which in an action brought in the Divisional Court to set aside a judgment of the Provincial Commissioner of the Eastern Province in a land case, on the ground of want of jurisdiction, the learned Judge held that the Provincial Commissioner had no jurisdiction in the matter and that so far as the Supreme Court was concerned, his judgment would be treated as a nullity, but that he was not prepared to set it aside.

Mr. Renner submitted, therefore, that the learned trial Judge in the present case was wrong in holding that the Plaintiff-Appellant had made out no cause of action, and in giving judgment for the Defendant-Respondent.

In the case of The Attorney-General v. Hotham, 24 R.R. 21, it was held that when a limited Tribunal takes upon itse f to exercise a jurisdiction which does not belOng to it, its decision amounts to nothing and does not create any necessity for an appeal.

In the case of Padstow Total Loss and Collision Assurance Association, in re Bryant 20 Ch.D. 137, it was held, however, that if a Superior Court, acting in assumed exercise of a jurisdiction belonging to it, makes an order which under the particular circumstances of the case is beyond that jurisdiction, the order must, until it be discharged, be treated as a subsisting order and can only be discharged on appeal.

In the case of Kojo Pon v. Alta Fua, F.C. 1926-29 522, the difference between these two classes of cases were considered by the Full Court, when it was held that an action does not lie to set aside the judgment of a Court of co-ordinate jurisdiction, except on the ground of fraud.

It appears to me, therefore, that the first question to be considered in the present case is whether the Native Tribunal, which delivered the judgment sought to be declared a nullity and set aside, was or was not a Court of limited jurisdiction.

In the case of Asante v. Tchinbuah, F.C. 1926-29 406, where the plaintiff sought to set aside the judgment of a Provincial Commissioner sitting under the Native Jurisdiction Ordinance, on appeal from a Native Tribunal in a land case, for want of jurisdiction, it was held by the Full Court on appeal that a Divisional Court could not in its original jurisdiction set aside and formally

declare a nullity a judgment given on appeal by a Provincial Commissioner sitting in a Court especially created by Ordinance for a special class of cases which was obviously not a Court of inferior jurisdiction to a Divisional Court.

The judgment of the Full Court in that case appears to me to overrule the judgment of Beatty, J. in Nagai Kassa v. Await II to which I have previously referred.

In an application for the issue of a writ of Prohibition to restrain the Native Tribunal of the Omanhene of Akwamu from enforcing a judgment of that Tribunal in a land case of Tutu v. Doe, on the ground of want of jurisdiction in the Native Tribunal, which came on for hearing before me in the Divisional Court on the 22nd September, 1931, and was refused, during the course of my judgment I stated as follows :—

” Here as stated by their Lordships in the Privy Council Judgment in Ntah v. Bennieh (17-11-30) ‘ the Colonial Legislature has conferred upon the Native Tribunals an exclusive original jurisdiction in matters relating to the ownership of land,’ and has deprived the Supreme Court of original jurisdiction except in cases transferred to the Court under the provisions of section 71 of the Native Administration Ordinance.

” The Legislature has also provided the right of appeal from such judgments, to the Court of the Provincial Commissioner and subt-equently to the West African Court of Appeal, and has further provided for a transfer of the hearing to some other appropriate Tribunal or Court whenever the question of jurisdiction is raised upon an application being made prior to the hearing of an action. . . .

” Although the Native Tribunal in exercising a considerable amount of its jurisdiction is an inferior Court, subject to being restrained by writs of prohibition issuing from the Supreme Court, I am unable to hold that when exercising the special jurisdiction conferred upon it by the Legislature in hearing land cases, it is such an inferior Court. In my opinion, apart from judgments in such cases being liable to be set aside on appeal for want of jurisdiction, a Divisional Court would have no jurisdiction to hold that such a judgment amounted in law to a nullity.”

The same principle applies to the present case. Although the various points raised by Mr. Renner undoubtedly constituted grievances which might have formed the subject of an appeal from the judgment of the Native Tribunal to the Provincial Commissioner, yet such grievances could not be considered by the Judge of a Divisional Court in an original action brought before him to set aside such judgment. The appeal must therefore be dismissed with costs assessed at £25 3s.

I have had the advantage of readirg the judgment of Michelin, j. and agree with the conclusion that this appeal should be dismissed_ I should like, however, to add a few words as to the reasons why it seems to me that that course should be taken.

The first thing to be noticed in this case is that Plaintiff-Appellant, having appeared before the Tribunal and submitted himself to its jurisdiction without question, had judgment given against him. From that judgment the law gave him the right to appeal.

That right he lost because he let the time for appeal go past. Then he conceived the idea of circumventing the law which provided that, unless he exercised the right to appeal within a certain time. he should lose that right, by bringing this action in which he asked the Divisional Court to set aside the judgment of the Tribunal.

Had he succeeded it is clear that he would have obtained by his action the very thing which the law had decreed that owing to his negligence he should lose. That being the case it is equally clear that even if the Court had jurisdiction to give effect to his claim it should not do so.

The next thing is that the Divisional Court had no jurisdiction to entertain this claim. The judgment of the Tribunal was given in a case between natives involving questions as to the title and occupation and possession of land, and such cases have been expressly excluded by legislation from the jurisdiction of the Supreme Court, except in circumstances which have no application here and therefore need not be particularised, and have been reserved to be decided by Native Tribunals. It stands to reason, I think, that before a Court can be asked to set aside Ulf judgment of another it must itself have jurisdiction in the matter which it is asked to adjudicate about. Mr. Renner argues that this appeal is not concerned with the question of the rights of the parties to the land, but has to do only with the irregular manner in which the Tribunal was constituted and conducted its business, but it is certain that if he had succeeded in his claim the rights of the parties to the land would have been very much affected, and in my opinion in asking the Divisional Court to set aside the judgment of the Tribunal he was in effect asking it to exercise jurisdiction in a matter when it had none.

We know that the Supreme Court exercises a general control over subordinate Courts in the Colony, but it always does so in matters over which it itself has jurisdiction.

Further, a Divisional Court may set aside the judgment of another Divisional Court when such judgment has been obtained by fraud. To ask a Divisional Court, however, to set aside the judgment of a Tribunal in a matter which has expressly been taken away from the Divisional Courts cognisance by Statute, is very much as if it were asked to set the judgment of a foreign

Court with which it has nothing to do. The analogy of course is not complete, since there are relations between a Divisional Court and a Tribunal which do not exist between the Supreme Court and a foreign Court, but the point is that when once its jurisdiction in any matter has been taken away from it and conferred upon another body, a Divisional Court cannot interfere with that body so far as that matter is concerned, but must confine its operations in relations to that body strictly within the limits laid down by the Statute. No Legislative authority has, in fact, been conferred upon a Divisional Court to set aside the judgment of a Tribunal in a matter such as this, and accordingly the judgment of the Court below ought in my opinion to be confirmed.

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The appeal must be dismissed with costs.

SAWREY-COOKSON, J. I concur.

Kojo Etsia V. Kwa Amissah & Anor (1930)

LawGlobal Hub Judgment Report – West African Court of Appeal

Practice—Native Administration Ordinance—Power of Provincial Commissioner to transfer to Divisional Court.

Under section 71 of the Native Administration Ordinance (Cap. 111) a Provincial Commissioner had transferred a case to a Divisional Court. The Court held that under the circumstances the transfer was unreasonable and refused to hear the case.

On appeal, it was held that once a Provincial Commissioner has exercised his discretion by transferring a case, it is not open to the Divisional Court to consider the reasonableness of his action.

The following judgment was delivered in the Court below :-

YATES, J.

In this case, which has been transferred by the Provincial Commissioner of the Central Province to this Court by virtue of section 71 of the Native Administration Ordinance No. 18- of 1927. Mr. Benjamin on behalf of the Plaintiff moved that the Order made by the Provincial Commissioner be sent back to him for review under section 7 of the District Commissioners’ Ordinance. I am satisfied that the District Commissioners’ Ordinance does not apply. There is however another aspect of the case to be considered and that is, has the Divisional Court any jurisdiction in this matter as it stands ? Section 71 of the Native Administration Ordinance gives power to the Provincial Commissioner to transfer any civil cause or matter or question commenced before a Native Tribunal to the Divisional Court under certain circumstances which are set out in sub-section ” C ” of the same section.

The meaning of section 71 is, in my view, that if there is no available Tribunal, or if the case is one which cannot be tried by the Police Magistrate or District Commissioner, then the Provincial Commissioner may confer jurisdiction upon the Divisional Court to hear and determine the matter, and I rule that it is a condition precedent to the Order being made that it be shewn, that there is no Court or Tribunal which can properly enquire into, try or determine the matter, and that unless the Order of Transfer shows this by its terms, no jurisdiction is conferred upon the Divisional Court. In this particular case, moreover, the Affidavit of the Defendant Nyika clearly shews that the matter could be tried by the Provincial Council. That being so the matter should have been transferred to it under section 71A.

I therefore further rule, by virtue of the proviso to section 72, that the Order of Transfer made in this case has not been made in accordance with the provisions of section 71 of the Native

Administration Ordinance, and that this Court has therefore no

v_a

jurisdiction to try this case.—–

AmissahJ. B. Hyde and K. 4.-Korsah for the Defendant-Appellant.

& ano.

C. F. H. Benjamin for the Plaintiff-Respondent.

Deane, C. J.

The following judgment of the Court was delivered by the President Deane, C.J., and concurred in by Michelin and Sawrey- Cookson, J. J. :—

DEANE, C.J. THE GOLD COAST COLONY.

This is a case transferred by the Provincial Commissioner to the Divisional Court for hearing under section 71 of the Native Administration Ordinance. The learned Judge when the case came before him ruled that the Provincial Commissioner could not refer a matter to the Divisional Court unless there was no Native Tribunal which had jurisdiction to hear the matter. I cannot agree with him. Section 71 (c) it seems to me gives a very large power to the Provincial Commissioner to transfer any case from a Native Trinunal to a Divisional Court. When there is a competent Native Tribunal he has the power to transfer and that power is exercised daily and indeed is not questioned. If therefore we were to accede to this contention it would mean that we would curtail the power of the Provincial Commissioner to transfer merely because there might possibly be another Native Tribunal which might have jurisdiction over the case, and thus make the Provincial Commissioner’s action a subject of enquiry as to its reasonableness on every occasion. In my opinion the Provincial Commissioner having transferred the case under section 71 of the Native Administration Ordinance the Divisional Court was bound to enquire into it under section 72 of the same Ordinance and the reasonableness of the order of transfer before the Court was not open to question.

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Appeal allowed with cost’s £16 16s. and case remitted to the lower Court to be heard and determined.

Kofi Antu V. Ohene Kweku Buadu (1933)

LawGlobal Hub Judgment Report – West African Court of Appeal

Suit before a Native Tribunal—Motion before the Provincial Commissioner’s Court to transfer the Suit to another Native Tribunal under section 71 of the Native Administration Ordinance –Order made transferring the suit to the Divisional Court—Review of that Order and substitution therefor of an Order transferring the suit to another Native Tribunal—Power to move such an Order on review.

Facts

On the 7th October, 1929, the Provincial Commissioner of the Central Province made an Order under section 71 of the Native Administration Ordinance transferring a suit front a Native Tribunal to the Divisional Court. On the 11th of the same month the Commissioner of his own motion. gave notice of his intention to review his Order and on the 2nd of December. 1932, made another Order rescinding his first Order and transferring the suit to another Native Tribunal.

Held (inter alia)

On appeal that so long as the Divisional Court was not actually seised of the suit the Provincial Commissioner’s power of review under section 85 of the Native Administration Ordinance remained.

Kobina Foli V. Obeng Akese (1930)

LawGlobal Hub Judgment Report – West African Court of Appeal

Arbitration—Reference by Court—R.S.C., 2nd Schedule, Order 52—Motion to set aside award—Principles on which Court proceeds—Scope of reference.

The ground that an award is ” mistaken in law or not justified by the evidence,” is not a ground which can be urged as a reason or setting it aside.

The Court referred to an Arbitrator the question whether cerf^;r1 land was the property of A or a The Arbitrator awarded part of the 14,4- W A, and part to 33.

The Court held that, in SO awarding, the Arbitrator had not departed from the terms of the order of reference.

J. E. Casely Hayford, W. G. E. Sekyi and A. Cesely Hayford for the plaintiff-appellant, J. H. Coussey and Dr. J. B. Danquah for the defendant-respondent.

The following judgments were delivered :— DEANE, C.J. THE GOLD COAST COLONY.

This is a motion to set aside the award of an arbitrator. It appears that the plaintiff sued the defendant for trespass before the Circuit Judge of Ashanti and obtained a judgment dated 9th May, 1923. Against this judgment the defendant appealed. On the matter coming before the Full Court on the application and with the consent of the parties it was decided that the dispute between the parties should be referred to an arbitrator for settlement and an order dated 18th March, 1929 and another order supplementary thereto dated 3rd December, 1929, were made by the Full Court for carrying into effect the decision of the Court.

By the Orders which may be found set out on pages 2 and 3 of the award the judgment of the Circuit Judge was set aside, a survey of the land was provided for, the boundaries claimed by each party marked on the plan prepared in accordance with instructions given by the parties and Mr. Justice Hall a Judge of the Supreme Court was appointed as arbitrator to decide finally the matters in difference between fthe_.,.parties, viz. :—whether the semi-circular tract of land edged red having as its base the river Prah edged green on the plan No. C 18 signed by Mr. F. Mindham, officer in charge, Cadastral Branch dated 15th August, 1929, is the property of the aforesaid Kobina Foli, Omanhene of Adansi or of Obeng Akese, Ohene of Okyereflo.

The arbitrator sat in Accra and heard evidence adduced on behalf of the parties to the dispute on the 3rd, 4th, 5th, 6th, 9th,

10th; 11^–tir,^–1^–2th, 13th, 14th, 16th and 17th December, 1929 and on 2nd January, 1930 visited the diSputed area with Counsel returning to Accra after a tour of inspection on 10th January, 1930

On 31st January, 1930 he published his award in which he alloted all the land to the West of a surVeyor’s purple line drawn by his directions on the plan to the Omanhene and all the land to the East of the purple line to the ()Ilene.

This award the Omanhene has moved to set aside. The grounds off which he relied were set forth in his notice dated 10th February, 1930. His Counsel, however, when he appeared to support the motion after obtaining leave to argue additional grounds • under Rule 15 Order 52 of the Rules of the Supreme Court, took two objections which really went to the jurisdiction of the Court to make the order to which he had himself been a consenting party :—they were (a) that the judgment of the Circuit Judge of Ashanti having been set aside the Full Court had itself done all that it could do by law and had no jurisdiction to make the order referring the matters to arbitration ; (b) that the order was bad inasmuch as it appointed as arbitrator a Judge of the Court who himself might have to sit to decide whether the award is to be set aside or not. As, however, counsel for the appellant at once abandoned (a) on the wide powers conferred on the Court by Rule 26 Order 53 Schedule 2 of Cap. 158 being brought to his notice, while

on his junior admitted that he could not maintain that the order was bad merely because a Judge of the Supreme Court had been appointed as arbitrator, these contentions need not detain us and we can pass on to the grounds for setting aside the award set out in his notice of 10th lebruary, 1930.

Before doing so, however, it will be as well to “eo-nsider first the principles by which the Court should be guided in setting aside the award of an arbitrator whose decision it has been agreed shall be final. These may be summed up in the statement that in submissions to arbitration the general rule is that as the parties choose their own artiitrator to be the iudge in the disootes between them, they cannot when the award is g,,od ou its face, objcct to his decision, either upon the law or the facts.

In Fuller v. Fenwick (1846) 16 L.J. C.Y. 79 where it was sought to set aside an award Maule, J., stated : ” If this case had gone on, in the usual course the law would have been determined by a Judge and the facts by a jury. The parties have thought fit to withdraw the case from this form of trial and have thought that an arbitrator was more proper to decide matters of fact than a jury and could more conveniently dispose of matters of law than a Judge on account of the expense of contesting before a Court an intricate point of law. The Courts therefore treat a reference as an agreement by the parties to leave matters of law and fact to the arbitrator and to consider his award rinal unless there is something upon the face of it which is i:iconsisIent—ln Montgomery Jones

& Co. and Liebenthal, In re (1898) 78 L.T. 406 C.A. Smith L. J. i said : I for my part have alway !understood the general rule to bei tl that parties took their arbitrators for better or for worse both as to „”, decisions of fact and decisions of law. That is clearly the law

Now in this case there had been a long standing dispute as to the ownership of this piece of land, judgment had been given so long ago as 1923 in Ashanti but had not reached the Full Court for review until 1928 ; there it had been seen that the matters could not be decided finally on the materials before the Court and therefore on the application of the parties, the Court had agreed instead of sending the matters back before a Tribunal before which litigants have not the right to appear by counsel to render skilled assistance in the unravelling of the intricacies of these cases and which therefore must inevitably be handicapped in every way from giving a reasonable decision  ^–within a reasonable time to spare one of its own judges who commanded the confidence of both sides to act as an arbitrator to give a final decision on a matter in which it was of the utmost importance that a speedy and proper settlement should be arrived at.

The rule of law therefore which prohibits the Court from interfering unless there is some error apparent on the face of the award will be seen to be of great importance in this case and this Court will not interfere to set it aside unless such error is clearly apparent.

If now we turn to the reasons given for setting the award aside it will be at once apparent that with the exception of reasons 1, 2, 3, 10, 14 and 15 which are concerned with the question whether or not what the arbitrator did was within the scope of his reference all the other reasons challenge the decision of the arbitrator on the ground that it was ” mistaken in law or not justified by the evidence.” It is quite clear therefore that if the principles of law which I have stated above are sound, they are prima facie not good reasons for setting aside the award. And if we examine them a little more in detail, it will be found that there is nothing to take them out of the general rule. If we look at the award it will be seen that the arbitrator in arriving at his decision laid down the principles of law by which he had been guided in assessing the value of traditional evidence as laid down by Lord Buckmaster in Privy Council Appeal No. 16 of 1926, and in accordance therewith emphasized the value of ” actual facts ” either as supporting or negativing the tradition, stressing that in cases such as the present actual occupation and possession were the supreme tests on which decisions should be based whenever possible. He then proceeded to apply these tests to all the evidence before him, traditional and otherwise, with due regard to the nature and duration of the occupation sliewni testing that evidence further wherever possible by a personal inspection of the area in question and having formed his conclusions on all the evidence before him gave his decision.

In his inspection which was over a large area very sparsely inhabited by largely nomadic people where what are called villages are in many cases mere names consisting often of the ruins of a few mud huts, he naturally paid great attention to the occupation of outstanding physical features of the country such as the fetish hill and to evidence as to the occupation and possession of important and salient points and places, and to attack the award because the arbitrator had not visited some of the very numerous ” villages ” and to argue from that fact that he had not therefore sufficient evidence on which to base his award as to these does not seem to me reasonable. The evidence in which these villages are specifically named cannot be considered separately apart from all the other evidence about them which was before the arbitrator by reason of their relative position vis-a-vis the important points with regard to which possession had been proved to his satisfaction and therefore reasons 4 and 5 do not seem to me to be good reasons for setting aside the award. Then the complaints that the arbitrator misdirected himself on law and that the award is erroneous in disregarding ” the plaintiff’s occupation and possession with historical and traditional background ” and again in disregarding the construction of roads by the plaintiff and disregarding the evidence of witness Dapa have clearly no good foundation since it is clear from the very award that all these things were taken into account by die arbitrator, and I see nothing to make me believe that he did not understand the nature of the Privy Council judgment.

For these reasons I consider that to set aside the award on the reasons disclosed in grounds 4, 5, G, 7, 8, 9, 11, 12 and 13 would be to act contrary to the rule of law.

If now we turn to the other grounds given for setting aside the award, viz. :-1, 2, 3, 10, 14 and 15, it will be seen that they revolve themselves into three allegations of misconduct by the arbitrator : (a) that he acted in an arbitrary manner in fixing the boundary line ; (b) that he acted beyond the scope of his submission in that he gave part of the land in dispute to the plaintiff and part to the defendant instead of following the terms of the reference and alloting the land as a whole to one or the other; (c) that he delegated his duty to a surveyor and allowed him to draw a boundary line.

As to (c) it seems to me that it would be just as reasonable^–to say that the typist who typed a book at the author’s dictation was the real author of the book as to claim that the purple line drawn on the plan is the line of the surveyor and not of the arbitrator. The line was drawn by the surveyor who is a skilled draughtsman by the direction of the arbitrator in such a way as to express the arbitrator’s decision and the hand of the surveyor was really the hand of the arbitrator. There is nothing in -this objection.

As to (a) if one thing is certain in this matter on the face of the award, it is that the line drawn by the arbitrator as the boundary

between these two parties was not in any way based on the mere Kobina Foil whim of the arbitrator but was the result of laborious and careful o_be:_Akese consideration by him. In the award intelligible reasons are given

foi the decision at which he has arrived and I can see nothing to Deane^, • support the suggestion that the arbitrator was seeking to embody

in his award any ideas of his own unsupported by the evidence.

Now we come to (b) the objection that the arbitrator travelled beyond the scope of his reference in awarding part of the land to the plaintiff and part to the defendant.

The contention is that the words of the reference ” that the matters in difference between the parties herein namely whether the semi-circular tract of land edged red having as its base the river Prah edged green on the plan No. C18 signed by W. F. Mindham, officer in charge Cadastral Branch dated 15th August, 1929, is the property of aforesaid Kobina Foli, Omanhene of Adansi or Obeng Akese, Ohene of Okyereso, be referred to the final decision of the said arbitrator ” empower the arbitrator by his decision to deal only with the land as a whole. Now that these words could mean what the plaintiff alleges they mean there can be no doubt but equally, in my opinion, they can bear the meaning which has been put upon them by the arbitrator. The meaning which should be put upon them in this particular case ,therefore must depend upon the circumstances of the case. Supposing there were a case in which two parties A and B were contending about the ownership of Blackacre, A claiming to have bought it from C the owner, B contending that he had acquired it from D to whom C had sold it prior to his sale to A, and the question was referred to an arbitrator to say whether the land belonged to A or B, in such a case if the arbitrator attempted to divide the land between A and B he would clearly be acting outside the scope of his reference, but the circumstances of this case are clearly not of this nature. Here are two adjoining landowners disputing about the boundary between them, the Omanhene claiming that his boundary goes to the green line of the river Prah, the Ohene that his boundary extends to the red line shown on the plan : the land between the two boundaries is the disputed land, each side claims every foot of it, but neither side is claiming that if one part of that disputed land is found not to belong to it, the rest of it must be disposed of similarly on the contrary each foot of the land is contested separately as apart from the whole and the arbitrator from the nature of the case had to decide not only what the destination of the whole is, as in fact he has done in this case, but in order to decide the destination of the whole he had to decide the destination of the parts, insomuch as the evidence proved to the arbitz ator that the land belongs partly to one side and partly to the other. From the very beginning it must have been clear to both sides in fact, that there being a disputed boundary in the case, the arbitrator would have to fix the boundary between the parties.

Kamanda Bongay & Anor V. F. S. Macauley (1932)

LawGlobal Hub Judgment Report – West African Court of Appeal

Land in the Sierra Leone Protectorate—Long continued possession by non-native with consent of Tribal Authority—Claim that such possession had ripened into absolute ownership—Defiance of Paramount Chief’s authority—Forfeiture by non-native of all his interest in the land as a result of such definance.

In the year 1892 the defendant, who came from the Colony of Sierra Leone and was not a native of the Protectorate, was granted about 37 acres of land at Bo in the Sierra Leone Protectorate by the then Paramount Chief of the Bo Chiefdom for purposes of cultivation. Part of this land the defendant sub-let for building purposes contrary to the terms of his grant, and some disputes between him and the Paramount Chief for the time being arose in or about the year 1904 which were eventually settled by the then Governor. The terms of settlement were embodied in a letter dated the 11th of January 1905 and addressed by the Governor to the defendant, and so far as material to the issues raised in this case those terms read as follows :—” The land in question was granted to you by the Chief and representative men for the purpose of cultivation. It follows that the land will remain your property so long as you cultivate it in accordance with the conditions as to cultivation subject to which the land was granted.

” At the time of the grant you contracted a marriage in accordance *nth native law with the daughter of the Chief, and as a result the Chiefs will on your death recognise the right of the children by this marriage to succeed to the land. The native custom does not permit of your sub-letting the land and consequently you have no right to do so.” From the date of this letter the defendant remained in possession of the land, and apparently on good terms with the different Paramount Chiefs who succeeded one another at Bo, until the year 1926 though he continued to sub-let parts of the land to other non-natives for building purposes contrary to the terms of his grant.

In the year 1926 the plaintiff became Paramount Chief of the Big Ba Chiefdom. and disputes quickly arose between him and the defendant in relation to this Ind which finally culminated in the defendant putting forward a claim that Government had given him the land and that the Paramount Chief had no right to widen a country road which passed through it.

The plaintiff thereupon brought an action in the Sierra Leone Circuit Court claiming the land in question from the defendant and obtained judgment in his favour, but in March, 1930, the West African Court of Appeal ordervid a re-tr The case was accordingly re-tried before Tew C. J., who gave judgment in faVOIK of the plaintiff on the 5th of March, 1931, basing his decision on the ground tlutt the defendant had, by flouting the authority of the Paramount Chief, been guilty of conduct which rendered all his rights in the land liable to forfeiture. On appeal it was argued that the native custom proved before the trial Judge was a custom to drive away any non-native who flouted the authority of a Paramount Chief, and that as the defendant had not been driven away the custom had not been enforced and he remained in lawful possession of the land in question.

Held

That the plaintiff had adopted reasonable and sensible means of enforcing his claim, and that the Court below was right in finding that the defendant had, by native law and custom, forfeited his rights in the land. Per Macquarrie,,Aaing Chief Justice of Sierra Leone : (1) The promise in the Governor’s letter of the 11th of January, 1905, that the defendant’s children should( succeed him did not operate so as to render native law and custom inapplicable to his tenure of the land. (2) The Paramount Chief had an undoubted right to go on the land for the general good of the community, as a proved native custom and a one of the conditions of the defendant’s grant.