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KWESI KWAINOO OF ASSIN SIBINSU
V.
KOFI AMPONG AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
28TH DAY OF JANUARY, 1953
APPEAL NO. 59/52
2PLR/1953/35 (WACA)
OTHER CITATION(S)
2PLR/1953/35 (WACA)
(1953) XIV WACA PP. 250 – 251
LEX (1953) – XIV WACA 250 – 251
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
KORSAH, J.
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BETWEEN:
KWESI KWAINOO OF ASSIN SIBINSU – Appellant
AND
1. KOFI AMPONG (HEAD OF AFIANA STOOL FAMILY)
2. KWAMI BUATEN (LINGUIST OF ASEMPANAYE) OF SIBINSU AND ASAMPANAYE RESPECTIVELY – Respondents
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ORIGINATING COURT(S)
Appeal by the plaintiff against decision of the Supreme Court
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REPRESENTATION
E. Akufo Addo — for Appellant
C. F. Hayfron-Benjamin — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
FAMILY LAW – FAMILY PROPERTY:- Native Law and Custom – Fanti Customary Law – Family Land – Redemption and possession by member – Rights of family in redeemed land
REAL ESTATE AND PROPERTY LAW:- Interest of members of family in family land – Stool land redeemed from pledge by a member of a family followed by a long exclusive possession of that member of the family, acquiesced in by other members of the family – Whether cannot divest the family of their rights, interest and title to the land, nor convert it into private property of the person who redeemed it.
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CASE SUMMARY
Appellant sued the head of the family and the linguist claiming that he was entitled to collect fees accruing from certain land for his exclusive use. He alleged that the land had been redeemed by his grand uncle, from whom it descended to his uncle and on to himself; he also contended that he and his uncles had been in exclusive possession, and that this was evidence of acquiescence by the family that his uncle had acquired a private interest in the land adverse to the family. The Native Court decided that the defendants must fail so long as they have not refunded the amount paid by the grand uncle; the Supreme Court decided in the defendants’ favour and the plaintiff appealed.
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WEST AFRICAN COURT OF APPEAL
Held that:
1. In view of Fanti Customary Law the land when redeemed by the grand uncle was purchased for the family and possession by a member could not in any circumstances affect the rights of the family.
2. It is settled native law that property so redeemed, is deemed to resume its status as family property; consequently, long exclusive possession of a member of the family, whether acquiesced in by other members of the family or not, cannot divest the family of their rights, interest and title to the land, nor convert it into private property of the person who redeemed it.
Cases cited:-
(1) Bruce v. Adjah and Anor., 1925, D.Ct. 21-5, p. 192.
(2) Jones v. Ward, 1895, Sarbah Fanti Customary Law, 143.
(3) Hammond v. Randolph and Anor., 5 W.A.C.A. 42.
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MAIN JUDGMENT
The following judgment was delivered:
KORSAH, J.
Plaintiff sued defendants, “to show cause why defendants should prevent him from collecting tolls on Attaasi land”, and further “claimed £50 damages in default”. Plaintiff’s case is that the land in question originally belonged to his uncle Kwamin Freeman, after whose death Akessi, another uncle, succeeded, that during Akessi’s lifetime plaintiff assisted him to look after the land, and on Akessi’s death plaintiff succeeded; he further said:-
“In view of the fact that I form no boundary with defendants anywhere on Attaasi I thought I could not do anything other than to sue defendants to prove the authority they have to stop me from collection of fees accruing from the land. In conclusion I have to point out that the land has no connection with the Afiana Family Stool.”
Plaintiff, however, admitted under cross-examination, that the land originally belonged to the family, but according to him it was sold by one of the ancestors and later redeemed by his uncle Kwamin Freeman.
It is admitted that plaintiff and the defendants are members of the Afiana Stool Family, of which first defendant is now the head, and the second defendant the linguist, that plaintiff was the occupant of the said Afiana Family Stool, as Ninfaheme of Assin Attandasu State, but two yean after he was destooled he instituted this action against the head of the family and the linguist.
Plaintiff contends that by virtue of the fact that his grand uncle redeemed the property, it became the private or self-acquired property of his said grand uncle, and on his death it descended to Akessi and later to plaintiff not for the benefit of the members of the Afiana Stool Family but for the benefit of the immediate descendants of Kwamin Freeman only. This proposition is, in my opinion, contrary to native customary law as stated by Sarbah in Fanti Customary Law, p.77, which reads as follows:-
“Where any land, lost by an ancestor or any of his successors, bas been recovered by a member of the family out of his private resources, such land is considered to have been purchased for the family and is not self-acquired property, unless the members of the family were made distinctly to understand at the time of the purchase that it will not resume its former condition as ancestral property.”
This principle of Customary Law has been accepted by the Courts and applied in the following cases: Bruce v. Adjah and Anor. (1), Jones v. Ward (2), Hammond v. Randolph and Anor. (3).
This, in my opinion, is a sound principle of Customary Law obviously intended to protect family property from being converted into individual or private property by ambitious or avaricious members of the family. Had the Native Court applied this well-known principle of Native Customary Law, it would have dismissed plaintiff’s claim; but instead of dismissing the claim, the Native Court said the defendants should in equity have refunded the £4 which Kwamin Freeman paid to redeem the family property, and that the defendants must fail so long as they have not refunded it. In my opinion this is an attempt to introduce into the Customary Law conditions or qualifications which if accepted would defeat the object of the law.
Counsel for plaintiff further contended that as plaintiff’s predecessor Kwamin Freeman and his successors have been in exclusive possession of the land since it was redeemed many years ago, it is evidence of acquiescence by members of the family so as to entitle plaintiff to contend that his uncle had acquired a private interest in the land adverse to the rights, interest and title of the family. This proposition, however, is untenable, because it is settled native law that property so redeemed, is deemed to resume its status as family property; consequently, long exclusive possession of a member of the family, whether acquiesced in by other members of the family or not, cannot divest the family of their rights, interest and title to the land, nor convert it into private property of the person who redeemed it.
For these reasons, I agree with the decision of the learned Judge. This appeal should therefore be dismissed.
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FOSTER-SUTTON, P.
I concur.
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COUSSEY, J. A.
I concur.
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Appeal dismissed.
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