[CONSOLIDATED ACTIONS]

KWESI ENIMIL AND ANOTHER

V.

KWESI TUAKYI AND ANOTHER

THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST

3RD DAY OF FEBRUARY, 1950

2PLR/1950/27 (WACA)

OTHER CITATION(S)

2PLR/1950/27 (WACA)

(1950) XIII WACA PP. 8 – 9

LEX (1950) – XIII WACA 8- 9

BEFORE THEIR LORDSHIPS:

BLACKALL, P.

LEWEY, J.A.

SMITH, J.

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BETWEEN:

KWESI ENIMIL FOR HIMSELF AND AS REPRESENTING THE PEOPLE OF BORTOGINA VILLAGE, AND CHIEF KOBINA ANGU, CHIEF OF MANSO – Defendants-Appellants

AND

KWESI TUAKYI AND KOFI ESSON, SUCCESSORS ACCORDING TO NATIVE CUSTOMARY LAW OF KOJO ATTAH (DECEASED) – Plaintiffs-Respondents

AND

KOJO MANKRADU AND CHIEF KOBINA ANGU, CHIEF OF MANSO – Defendants-Appellants

AND

KWESI TUAKYI AND KOFI ESSON, SUCCESSORS ACCORDING TO NATIVE CUSTOMARY LAW OF KOJO ATTAH (DECEASED) – Plaintiffs-Respondents

AND

BUSUMAFIE AND CHIEF KOBINA ANGU, CHIEF OF MANSO – Defendants-Appellants

AND

KWESI TUAKYI AND KOFI ESSON, SUCCESSORS ACCORDING TO NATIVE CUSTOMARY LAW OF KOJO ATTAH (DECEASED) – Plaintiffs-Respondents

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ORIGINATING COURT(S)

Appeal from the Land Court, Western Judicial Division, W.A.C.A. CIV.APP.56/49

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REPRESENTATION

F. Awoonor-Williams — for the Appellants

R. S. Blay — for the Respondents

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ISSUE(S) FROM THE CAUSE(S) OF ACTION

REAL ESTATE AND PROPERTY LAW:- Land held under customary law – Claim for forfeiture of rights by reason of denying overlordship – Application of English Law where parties are natives – Whether native or English law applies depends on the circumstances relating to the transaction

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CASE SUMMARY

The appellants were the defendants.

The parties in this action were all natives, and the issue depended upon whether the matters in dispute were governed by native law and custom, or by English law.

The land in dispute was undoubtedly originally held according to native tenure. The interest of the former owner of the land was seized and sold in execution and the purchaser mortgaged it. Later the mortgagee, exercising his power of sale, sold his interest in the land to the predecessors in title of the respondents.

The respondents were kept out of possession for a period of over twenty years and appellants’ Counsel argued that English law applied, and as the respondents had been out of possession for more than twenty years they were debarred by the Statute of Limitations. Counsel further argued that the respondents, having denied overlordship of the appellants by refusing to pay tribute, forfeited their interest in the land.

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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL

Held (dismissing the Appeal) that:

1.     What the respondents’ predecessor in title bought was the right, title and interest under native law of the original judgment debtor. Accordingly, English law did not apply.

2.     The only occasion on which tribute was refused was when the respondent contested the appellants’ claim. This was not a good ground for forfeiture, otherwise no person could risk contesting any claim of this nature and would be left entirely at the mercy of the overlord.

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MAIN JUDGMENT

The following judgment was delivered:

SMITH, J.

The ingenious arguments and numerous authorities quoted by Counsel for the appellants have failed to satisfy me that the judgment of the trial Court was wrong, although I do agree that there is one passage in that judgment which can be criticised.

The main point taken in this appeal by the appellants is that English law applies, and as there is evidence that the respondents have been out of possession for more than twenty years they are therefore debarred by the Statute of Limitation. That argument would be perfectly sound if the relationship between the parties was governed by English law.

The learned Judge in his judgment seems to have thought that the fact that both parties were natives would, in itself, give rise to the conclusion that Native law and not English law would govern their relationship. With respect to the learned Judge that is not correct. The question is whether the parties have bound themselves in terms of English law or Native law. For instance, if one native gives another a promissory note under English ‘law, it has been held that the English law governs their relationship. Similarly, as in the case of Nelson v. Renner, if a native gives another a mortgage under English law the relationship between the mortgagor and the mortgagee in regard to the mortgage is governed by English law.

But in this case the land was undoubtedly native tenure originally. The interest of the former owner of the land was seized and sold by the execution of the process of the Court. The right title and interest which the judgment debtor was entitled to under native law was bought by one Jobson, who later mortgaged it. The mortgagee later exercised the power of sale in the mortgage and sold to the predecessor of the present plaintiffs. What the plaintiffs’ predecessor bought was the right title and interest under native law of the original judgment debtor. That that is so is shown by the Privy Council case referred to by appellants’ Counsel in which the co-defendant claimed tribute under native law from the predecessor of the present plaintiffs. I am in no doubt at all that the plaintiffs’ tenure is governed by native law. It is quite clear that he has bought an interest in the property which carries with it the right of possession. Thirty years ago he brought an action for possession and in pursuance of it entered into part of the land. In his evidence in this case he said that the plaintiffs are in possession of part, while the defendants are in possession of other parts. The plaintiffs are entitled to possession of the whole.

As I indicated, the final conclusion of the judgment of the learned Judge is correct. One final point, the co-defendant claims that he is now entitled to possession of the land because the plaintiffs denied his overlordship. It seems to me that the co-defendant cannot have it both ways. By claiming tribute in the suit of 1912 he has inferentially rights in the land from which the liability to pay tribute arises. The only occasion upon which the plaintiffs denied co-defendant’s right to tribute was when he contested the co-defendant’s claim in the 1912 case. This alone cannot be a good ground for forfeiture, otherwise no person could ever risk contesting any claim of this nature and holders of land would be left entirely at the mercy of their overlords. I hold that there has been forfeiture and that the plaintiffs’ title is still unimpaired. I would dismiss this appeal with costs.

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BLACKALL, P.

I agree that this appeal should be dismissed.

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LEWEY, J.A.

I agree.

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Appeal dismissed.