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YAW AKYIREFIE OF ESIAM
V.
THE PARAMOUNT STOOL OF BREMAN-ESIAM, NANA KWA BOM III
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
10TH DAY OF DECEMBER, 1951
2PLR/1951/17 (WACA)
OTHER CITATION(S)
2PLR/1951/17 (WACA)
(1951) XIII WACA PP. 331 – 333
LEX (1951) – XIII WACA 331 – 333
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.
KORSAH, J.
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BETWEEN:
YAW AKYIREFIE OF ESIAM – Defendant-Appellant-Respondent-Appellant
AND
THE PARAMOUNT STOOL OF BREMAN-ESIAM, NANA KWA BOM III – Plaintiff-Respondent-Appellant-Respondent
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ORIGINATING COURT(S)
Appeal from the Land Court, Central Judicial Division, W.A.C.A. CIV. APP.121/49
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REPRESENTATION
F. Awoonor-Williams — for the Appellant
S. F. Hayfron-Benjamin — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Stool family land pledged to a member of the family – Subsequent redemption from successor of the pledge by another member of family – Claim by redeemer that he was the owner of the property – How treated
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:– Power of Appeal Court to amend title to the suit – Jurisdiction of native court challenged on grounds that President and his linguist were members of plaintiff’s paramount stool.
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CASE SUMMARY
The appellant was the defendant.
The plaintiffs instituted their action under the title of the paramount Stool of Breman-Esiam per Nana Kwa Bom III, calling upon the defendant to establish his claim to a personal interest in the land in dispute.
The evidence in the native Court established that the occupant of the paramount Stool of Breman-Esiam is elected from the Nsona Stool family. The claim was, in effect, a claim by and on behalf of the Nsona Stool family and not on behalf of the paramount Stool of Breman-Esiam.
One Kwesi Nyarku, at the time when he was the senior member of the Nsona Stool family, pledged the land to one Kobina Essenyi, also a member of the same family, who later became the paramount chief of Breman-Esiam. Essenyi was succeeded by his nephew Amangu, from whom the defendant, a member of the same family, redeemed the land. The appellant alleged that he had redeemed the land for himself and thereafter asserted ownership. Appellant’s counsel also argued that the Native Court “B” had no jurisdiction to hear the case because the President was a sub-chief of the plaintiff, and the linguist who sat on the panel was an officer of the plaintiff’s paramount Stool.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
1. The members of the family having not been made distinctly to understand that the appellant was redeeming on his own behalf, the land remained the property of the family Stool and, in order to avoid multiplicity of suits and to settle finally the matter in controversy, the title of the suit should be amended.
2. The members of the panel of the Native Court, although connected with the paramount Stool, had no personal interest in the land of the Stool family, on whose behalf the suit was really instituted. Accordingly they were not debarred from sitting on the Native Court.
Cases referred to:
(1) Frome, United Breweries Co. v. Ball, Justices, 1926, A.C. 586.
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MAIN JUDGMENT
The following judgement was delivered:
COUSSEY, J.
The Court has heard a full argument by Counsel for the appellant on the grounds of appeal but it has been necessary to call upon the respondent upon one point only, namely, the description in which the plaintiff sues.
The action, which originated in Native Court “B” of Ayan-na-Breman Confederacy, Saltpond District, is a claim against the defendant to establish his position in the paramount Stool family of Breman-Esiam which entitles him to collect tribute or drink in respect of Kokowura land, which is claimed to be land of the Stool family and further that a document, made in favour of the defendant by one Kwesi Appiah by virtue of which the defendant has been collecting tribute, should be delivered up by the defendant or be impounded by the Court.
The evidence establishes that the Nsona Stool family is the family from which the occupant of the paramount Stool of Breman-Esiam is elected and that the family is composed of three sections, each with its abusuapenin or head. The land of the family is Stool family land and, according to well-known principles of native customary law, it may be farmed upon and used by members of the family so far as they do not interfere with the occupation of other members under the direction of the senior head of the three sections.
The plaintiff’s case is that upon his installation as Omanhene or paramount chief of Breman-Esiam the elders of the three sections of the Nsona Stool family placed the Kokowura land of the said family under his control. The defendant is a grandson of Kwesi Nyarku, who at one time was the senior of the three section elders and, in his life time, Kwesi Nyarku apparently pledged the Kokowura land, which is a portion of the larger area of Nsona Stool family land to Kobina Essenyi, himself a member of the family, for the sum of £6. Later Essenyi became paramount chief under the title of Nana Kwa Born II. Nana Kwa Born II, after he had abdicated the Stool, was succeeded by his nephew Amangu, who claimed possession of the land by virtue of the pledge. In course of time Yaw Donkor, the uncle of the defendant-appellant, advised the defendant-appellant that he should redeem from Amangu, as successor of Essenyi, the Kokowura land. This the defendant accomplished, but he redeemed the land pledged for himself and to evidence the claim he now asserts to ownership of the land. He obtained from Kwesi Appiah, the brother of Amangu who was farming on Kokowura land, a memorandum which acknowledged the right of the defendant-appellant to yearly tribute from Kwesi Appiah.
The Native Court “B” had no difficulty on the facts in finding that the plaintiff had established that the land was Stool family land and not the individual property of the defendant as he claimed it to be. It is clear that no other judgment could have been given on the facts for the defendant entirely failed to establish a title in himself by virtue of his redemption of the pledge or by his alternative contention that the land had been privately acquired by his predecessor Nyarku or any other predecessor, and that it was not Stool family land.
On appeal, the appellate Native Court without expressing as to whether the defendant’s claim to the land by virtue of his having redeemed the pledge could be upheld or not, decided that the land was not attached to the paramount Stool of Breman, but that it was Nsona family land. That, however, was far from upholding the title of the defendant, but the appellate Native Court, without further clarifying its judgment, set aside the judgment of the trial Native Court. The plaintiff appealed to the Land Court and Quist, J., in a full judgment, expressed the view of the Court as follows:-
“It has been contended on behalf of the defendant-appellant that the pledge of the land by Nyarku to Esseyni, and the subsequent redemption of it by the defendant-appellant placed him in the position of owner. Both Nyarku and Esseyni were members of the same section or branch, and the fact that one member of the branch pledging the land to another member who has equal interest in it, seems to indicate an improper motive, a motive to transfer the land from the Paramount Stool to the section by creating evidence to support such action; and the Native Court “B” seems to have viewed the incident in that light.”
If the words “Paramount Stool family” are substituted for “Paramount Stool” where it appears in the passage set out above, we are entirely in agreement with this finding. Sarbah’s Fante Customary Laws, at page 89, sets out the law as to redemption of a pledge in Akan native customary law as follows:-
.. But where any land, lost by an ancestor or any of his successors, has 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 purchase that it will not resume its former condition as the ancestral property.”‘
That statement of native customary law is in direct conflict with the case of the defendant-appellant. It completely disposes of this appeal, and the only matter we feel obliged to consider is whether there should be an amendment of the form in which the action has been brought, as the facts clearly show that the land is the property of the Nsona Stool family. In other words, it is established that the land in dispute is the land of the Stool family and not of the State of Breman-Esiam. The description in which the plaintiff sues requires clarification. In order, therefore, to avoid multiplicity of suits and to settle finally the matter in controversy the title of the suit must be amended by adding after the word “Stool” in the plaintiff’s description in the Writ the word ” family ” to make it clear that the action is brought by the Omanhene for the paramount Stool family of Esiam; that is to say, for the Nsona Stool family; and it is so ordered. With this amendment it is sufficient to say that the judgment of Quist, J ., reversing the judgment of the Native Appellate Court and restoring that of the trial Native Court is upheld and the appeal is therefore dismissed.
There is one other submission which we feel, in justice to the appellant’s Counsel, Mr. Awoonor-Williams, it is necessary to deal with, and that is the contention that the trial Native Court “B” had no jurisdiction to entertain the suit as the President of that Court is a sub-chief of the plaintiff, while the linguist who sat on the panel is an officer of the plaintiff’s paramount Stool. This point is raised for the first time on second appeal. With the amendment which has been made by this Court it is strictly disposed of, but it is as well to state that the members of the panel have no personal interest in the land of the Stool family, nor in the plaintiff suing as a member of that family. The issue was between the Nsona Stool family and the defendant, a member thereof who claimed that the land was his. Therefore, there was no question of the members of the Court which has jurisdiction over a confederacy of several States being subject to a bias that would disqualify them from being Judges in the suit so as to bring them within the decision in Frame United Breweries Co. v. Bath Justices (1).
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FOSTER-SUTTON, P.
I concur.
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KORSAH, J.
I concur.
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Appeal dismissed.
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