J. R. Quansah V. Nana Brompon Yankum II & Ors (1949)
LawGlobal Hub Judgment Report – West African Court of Appeal
Gold Coast Courts Ordinance, section 74—Applicability of native law and custom.
The facts are fully set out in the judgment. Appeal from the Supreme Court of the Gold Coast. Williams for Appellant (defendant below).
Blay and Mara for Respondents (plaintiffs below).
The following judgment was delivered:
Blaehall, P. This is an appeal against the decision of the Land Court, Sekondi, declaring that the first respondent is entitled to possession of the Ahinfie and Court House at New Takoradi.
When the headquarters of the Takoradi Stool were transferred from Old to New Takoradi in consequence of the construction of the Harbour works, the then Chief (Yaw Nketsia II) found himself without an official residence, so it was suggested by Kofi Ndam, the head of the Stool family, that an Ahinfie and Court House should be built for the Ohene’s use. This was agreed to and in due course carried out, the cost being defrayed partly from Stool rents– and partly from a contribution from the subjects of the Stool. When the building was completed the Ahinfie was formally opened by the Omanhene and thereafter Yaw Nketsia II went into residence and enjoyed the use of both the Ahinfie and Court House until his death.
A dispute about succession to the Stool then arose, the heads of the rival factions being one Kwami and the appellant. The matter was referred to the State Council who decided in favour of Kwami’s candidate—the first respondent; and he was duly elected as Ohene under the Stool name of Nana Brompon Yankum H.
Under native customary law when a Chief dies his successor takes up residence in the Ahinfie as of right. There is a distinction in this regard between an Ahinfie and a family house, for while the latter devolves upon the next head of the family (who inherits by succession) the Ahinfie becomes the official residence of the new Chief upon his election.
The appellant challenged the validity of the first respondent’s status as Ohene, and the respondent in the Court below tendered in evidence in this connection copies of two letters from the District Commissioner, Sekondi, one addressed to the Omanhene of Ahanta and the other to the appellant and certain other persons who had appealed to the District Commissioner against the decision of the State Council. Objection was taken to the admission of these letters as being secondary evidence, and the learned Judge, in my. view, should not have admitted them. Apart, however, from the letters there was ample evidence to support the finding that Brompon Yankum II is the rightful occupant of the Stool.
As such he is entitled to the possession both of the Ahinfie and the Court House. But instead of bowing with a good grace to the decision of the State Council, the appellant has continued to oppose his lawful Chief and to obstruct him in the performance of his functions by denying him the use of his official residence and Court House. The answer of Kojo Essiam, one of the appellant’s witnesses, ” there is no Chief of Takoradi at present. I know nothing of Nana Brompon Yankum II ” is significant in this regard for it clearly evinces an intention on the part of the appelIgnt and his faction to defy constituted authority.
In former times if such an impasse arose it would doubtless be resolved by force, but such a solution is not open to the respondents in these days. Unless then the respondents are entitled to take legal proceedings it is obvious that the appellant can flout with impunity the authority of the Ohene so long as the majority of the councillors of the Stool adhere to his opponents, as is the case at present.
Mr. Williams in the Court below submitted that as the action had been brought without the consent of the elders and councillors of the Takoradi Stool it was not maintainable. The Judge rejected this submission and in his judgment stated ” I was unable to entertain this submission on the ground that to do so would obviously put out of Court every litigant in a case like this who bad a dispute with the elders and councillors of the Stool, since the latter obviously would not agree to such an action being brought “.
The question this Court has to decide then is whether the learned Judge was entitled so to reject appellant’s submission. I think he was. Under section 74 of the Courts Ordinance native law and custom is applicable where the parties are natives, but this is subject to the qualification that such law or custom is not repugnant to natural justice, equity and good conscience nor incompatible either directly or by necessary implication with any Ordinance.
Now to require the consent of the councillors in the circumstances of the present case would be to make them virtually Judges in their own cause, for by withholding their consent they could prevent the Ohene from contesting the legality of the course of action which the appellant Quansah is pursuing with their support. Moreover, it is an offence under Ordinance 21 of 1944 to undermine the power of a Native Authority, and it seems to me that to exclude the Ohene from the Ahinfie and deny him the use of his Court House is an effective way of doing this. In my view it would be contrary to public policy to apply native law and custom in a way which would facilitate this recalcitrancy. Even,• therefore, if native customary law were as stated by the appellant, I considei that to apply it in the present case, would be contrary to the principle laid down in section 74 of the Courts Ordinance and, in my view, the Court below was justified in rejecting the appellant’s submission for the reason given by the learned trial Judge. It is unnecessary therefore to decide whether native customary law requires the consent of elders or councillors where the dispute is one between the Ohene and themselves. It would seem that the Busua Native Court takes the view that it does not, for it gave judgment against the present appellant in a suit brought against him in respect of the rents received by him from tenants of the Ahinfie, although the action was brought without the consent of the elders of the family. This decision seems eminently reasonable and bears out Brandford Griffith, C. J.’s, dictum that native custom is the application of common sense.
In my opinion this appeal should be dismissed.