ENNIN vs. PRAH [1959]DLHC2011

Date	1959-01-31
Suit No.
Citation No.	[1959]DLHC2011

ADUMUA-BOSSMAN J.

C. F. HAYFRON-BENJAMIN FOR APPELLANT.

PUPLAMPU FOR RESPONDENT.

[1959]DLHC2011
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">ENNIN <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">PRAH<o:p></o:p>&nbsp;[HIGH COURT (LANDS DIVISION), CAPE COAST]<o:p></o:p>&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;[1959] GLR 44<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
31ST JANUARY, 1959.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

C. F.
HAYFRON-BENJAMIN FOR APPELLANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ADUMUA-BOSSMAN J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGEMENT OF ADUMUA-BOSSMAN J.<o:p></o:p>(His
lordship set out the history of the matter, and proceeded):—It is clear that
the trial-Court proceeded upon a complete misconception as to the identity of
the family to which the properties belonged, and which could deal with them.<o:p></o:p><o:p>&nbsp;</o:p>The late
Kofi Nkum’s properties could not devolve upon, and become vested in, the wider
Twidan family of which he was a member in his life time. They devolved upon,
and became vested in, his immediate family group. This consisted of all who
were descended matrilineally from the same womb as himself-his surviving
brothers (if any), his surviving sisters (if any), and the surviving children
of his sisters, dead or alive (see the dictum of Deane C. J. in Larkai v.
Amorkor &amp; ors. (1 W.A.C.A. 323 at 330); and that of Strother- Stewart J. in
Santeng per Ohimen v. Darkwa &amp; anor. (6 W.A.C.A. 52 at 53)). In the proper
and true conception of the native customary law of inheritance and/or
succession, it is Kofi Nkum’s family (consisting of the matrilineal descendants
of his mother, or, in the absence of any such, the matrilineal descendants of
his mother’s mother) who are entitled to the beneficial use and enjoyment of
the self-acquired properties left by him. It is they, therefore, who are
entitled to control the disposition of such properties, not the Head and
principal elders of the wider Twidan family of which all the parties are
members.<o:p></o:p><o:p>&nbsp;</o:p>Does the
evidence establish that the disposition of the properties to the defendant was
by the immediate family group? The answer is clearly in the affirmative. The
sale is admitted to be by their Head, the successor Kwaku Nkuma, in whom the
title was vested. In Santeng per Ohimen v. Darkwa Strother-Stewart J. refers to
Sarbah’s Fanti Customary Law (2nd Ed.) p. 83, as follows:—<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
owner of self-acquired property can in his life-time deal with it as he
pleases. . . As soon as he dies, his successor is entitled to all the property
he died possessed of . . . subject to the usual rules of inheritance.” The
learned Judge goes on to point out, “He has many duties to perform. He has to
pay the debts of the person to whom he succeeds, and to collect all assets. He
would also be responsible for holding such of the property of the person to
whom he succeeds as family property, if such was its nature.”<o:p></o:p><o:p>&nbsp;</o:p>I turn to
the question of the concurrence of members of the family in the sale. From the
evidence available, it appears sufficiently clear that the transactions had the
concurrence necessary or requisite according to native customary law. It
appears that the general sale and purchase of the properties were discussed and
agreed to at one time, though the actual transaction in respect of each piece
of land (involving inspection, demarcation, payment of price, and execution of
documents) was effected separately, and at different times.<o:p></o:p><o:p>&nbsp;</o:p>The
documents evidencing the three separate sales were put in as Exhibits ‘A’ &amp;
‘A1’ for the 1st sale in 1941, Exhibits ‘A2’ &amp; ‘A3’ for the 2nd sale in
1942, and Exhibits ‘A4’ &amp; ‘A5’ for the sale in 1944. On the face of them
these documents bear the signatures (by marks) of persons w</main>