–
EFFUAH KWAKUWAH
V.
EFFUAH NAYENNA
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST (GHANA)
28TH DAY OF NOVEMBER, 1938
2PLR/1938/20 (WACA)
OTHER CITATION(S)
2PLR/1938/20 (WACA)
(1938) IV WACA PP. 165 – 167
LEX (1938) – IV WACA PP. 165 – 167
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST (GHANA)
WEBB, C.J., SIERRA LEONE
–
BETWEEN:
EFFUAH KWAKUWAH — Plaintiff-Appellant-Respondent
AND
EFFUAH NAYENNA — Defendant-Respondent-Appellant
–
ORIGINATING COURT(S)
APPEAL FROM PROVINCIAL COMMISSIONER EXERCISING APPELLATE JURISDICTION
REPRESENTATION
C. F. HAYFRON-BENJAMIN — for Appellant
K. A. KORSAH — for Respondent
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Claim to land and building thereon alleged to have been granted under Native Customary Law — Law governing such grant Findings of fact by the Native Tribunal set aside by the Court of the Provincial Commissioner — How treated
–
DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
There was no evidence that the Native Tribunal was wrong in holding that the gift relied on in this case was invalid according to native law and custom.
Findings of the Native Tribunal should not have been disturbed and appeal allowed.
–
–
MAIN JUDGMENT
The following joint judgment was delivered:
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND WEBB, C.J., SIERRA LEONE.
The plaintiff sued the defendant before the Native Tribunal of Yamoransa, Omanhene of Nkusukum State, claiming a piece of land and a building thereon.
From the judgment of the Native Tribunal it will be seen that the plaintiff’s case was that she rendered monetary and other assistance to her late husband Kwamin Assimaku, during the course of the erection of the building the subject matter of the action, while they were living together as husband and wife, and because of this Assimaku, in his lifetime, gave her a part of the building as a gift and the other part to his sister and his nieces.
The Native Tribunal gave judgment for the defendant with costs assessed at £5. In its judgment the Native Tribunal stated that:
“The Tribunal find that, although it might be that Arsimaku intended to make a gift of a portion of his building to plaintiff, his wife, the course adopted seems to have been improper; it is tantamount to private transaction or dealing; gifts of this kind must be made public, that is: relatives of both the donor and the donee and some outside persons must be present to act as witnesses, and the donee in accordance with custom acknowledges or accepts the gift by giving some present or presents in return as a thanksgiving. This is not so in this case and it cannot therefore be said that the gift is valid in accordance with Native Customary Law. The claim of the plaintiff fails, and the building left by Kobina Arsimaku on his death automatically goes to his family.
In view of the apparently good services rendered by plaintiff to her late husband Assimaku, the Tribunal recommend to the defendant that plaintiff, who is already in occupation of one of the rooms in her late husband Assimaku’s building, be allowed to continue in occupation for the time being until such time as she would again be married to another man when she should quit.”
On appeal the Court of the Provincial Commissioner, Central Province, reversed this decision. The material part of the judgment of that Court is as follows:
The Tribunal in its judgment sums up the evidence quite correctly, namely that the appellant assisted her husband during his lifetime to build a house and for services so rendered he presented her with a portion of it and the rest to his sister and nieces.
This statement is supported by evidence which is good and is not rebutted.
Respondent’s statement is simply a blunt denial of these facts but supports it with no evidence. The Tribunal thon goes on to say that this gift of a portion of the house to appellant was contrary to Native Custom and finds in favour of the mother i.e. the respondent in this case.
It is recognised Native Custom that a person can dispose of self-acquired property i.e. property which he has bought or constructed during his lifetime. It is contended by the respondent that even so his mother ought to have been told. There is unrebutted evidence in the record to show that she was told.
The Court finds that the Tribunal wrongly interpreted Native Custom in this respect and this Court therefore, in view of the fact that the evidence is strongly in favour of plaintiff-appellant and Native Customary Law is also in her favour, allows the appeal with costs to be taxed.”
The Privy Council in the course of its judgment in the case of Abakah Nthah v. Anguah Bennieh* said:
“By colonial legislation all suits relating to the ownership of land held under native tenure are placed within the exclusive original jurisdiction of native tribunals, unless satisfactory reason to the contrary is shown. It appears to their Lordships that decisions of the native tribunal on such matters which are peculiarly within their knowledge, arrived at after a fair hearing on relevant evidence, should not be disturbed without very clear proof that they are wrong, and their Lordships fail to find such proof in the present case.”
In Christian Yao Kisiedu and Others v. Djorbuah Dompreh and Otherst the Privy Council stated:
“No doubt an appeal in a case tried by Judge alone, is not governed by the same rules which apply to an appeal after a trial and verdict by a jury. It is a rehearing nevertheless before an Appellate Court can properly reverse a finding of fact by a trial Judge, who has seen and heard the witnesses, and can best judge not merely of their intention and desire to speak the truth, but of their accuracy in fact, it must come to an affirmative conclusion that the finding is wrong. There is a presumption in favour of its correctness which must be displaced.”
It will be seen from the passage of the judgment of the Native Tribunal quoted that that Tribunal held that the gift relied on was invalid, according to Native Law and Customs, because:
(a) it was not made with the necessary publicity; and
(b) the donees did not in accordance with custom acknowledge or accept the gift by giving some present or presents in return.
In the 1st Edition of Sarbah’s Fanti Customary Laws it is stated at pages 69 and 70:
“The acceptance of a gift should have as much publicity as possible having regard to the nature of the gift but the acceptance of a gift, consisting of immoveable property, must be invariably made public. Acceptance is made –
(i) By rendering thanks with a thank-offering or presents, alone or coupled with an utterance or expression of appropriating the gift; or
(ii) Corporeal acceptance, as by touching; or
(iii) Using or enjoying the gift; or
(iv) Exercising rights of ownership over the gift.
If the donee is in possession, either alone or jointly with the donor before the gift, the continuance of his possession is sufficient without any new delivery, provided the donee makes acceptance in the way set forth by (i) above.”
In our opinion there was no evidence that the Native Tribunal was wrong in holding that the gift relied on in this case was invalid according to native law and custom. We therefore come to the conclusion, having regard to the principles laid down by the Privy Council in their judgments cited above, that the finding of the Native Tribunal should not have been disturbed.
We accordingly allow the appeal. We set aside the judgment of the Court of the Provincial Commissioner, Central Province, and restore that of the Native Tribunal. The appellant is awarded costs in this Court assessed at £24. 168. 3d. and in the Provincial Commissioner’s Court to be taxed.