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.