BADU AND OTHERS vs. AMOABIMAA AND ANOTHER [1961]DLSC675

Date	1961-07-26
Suit No.
Citation No.	[1961]DLSC675

LORD DENNING JSC

LORD MORRIS OF BORTH-Y-GEST JSC

THE RT. HON. Mr. L. M. D. DE SILVA JSC

[1961]DLSC675
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&nbsp;[JUDICIAL COMMITTEE OF THE PRIVY COUNCIL]

<a name="_gjdgxs"></a>[1961] 1 GLR 506

DATE: 26TH JULY, 1961.

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COUNSEL:&nbsp;&nbsp;

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LORD DENNING , LORD MORRIS OF
BORTH-Y-GEST AND THE RT. HON. Mr. L. M. D. DE SILVA

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&nbsp;

He delivered the judgment of the Board. The
plaintiffs-respondents, who are the Queen-Mother of a section of a family (the
Ampiakoko section of the Yego family of Nyakrom) and a linguist instituted this
action on behalf of the members of the said section against certain persons in
the Agona Native Court “B” for a declaration that three parcels of land known
as the Buafi, Otsinkorang and Busumpa lands had been founded or acquired by
Ampiakoko, their ancestor. They also asked for possession of these lands. The
appellants consist of some of the original defendants, persons substituted in
place of original defendants, who had died and certain persons who were added
as defendants on their application that this should be done.

The Agona Native Court “B” entered judgment in favour of the
respondents. On appeal this judgment was set aside and the action dismissed by
the Land Court. On a further appeal the West African Court of Appeal reversed
the judgment of the Land Court and restored the judgment of the native court.
The appeal now under consideration is from the judgment of the West African
Court of Appeal.

It is common ground that several generations ago the ancestors of
the parties migrated as four or five distinct families (all of the Yego clan)
from different parts of Ashanti to Nyakrom which is within twenty-five miles of
the sea coast. At Nyakrom they united to form one composite group. As a result
of the union every member of each of the four or five houses had the right to
farm freely on all the lands of the composite group so long as he did not
trespass on land already cultivated by others.

The question debated before the native court is stated thus in the
judgment of that court:

This appears to have been the substantial question raised in the
native court. It was essentially a question of fact to be determined on
evidence. It was, as already stated, answered in the plaintiffs’ favour by the
trial court which held that the lands had been founded by Ampiakoko “for his
descendants” before the union with other families to form a composite group.
Their Lordships agree with the Court of Appeal that there is no reason to
disturb this view. This does not conclude the matter.

In 1949 disputes arose within the Yego family of Apaa quarters and
one consequence of these disputes was that an action was instituted in the
Agona Native Court “B” by one Kofi Donkor a member of the Ampia koko house
against one Kwesi Eduamoah a member of the Eduamoah house. In the course of the
hearing a settlement was reached by which the houses agreed to sever the family
ties which bound them into a composite group. There were representatives of
other houses there. They were consulted and agreed. There was a special
ceremony to mark the severance. The president of the court asked each side to
provide a live sheep and a bottle of rum. The sheep were slaughtered and the
cutting of the tie ceremony was accomplished. An order of the native court was
drawn up on the 13th May, 1949, in these words:

“In view of the agreement arrived at by both parties as to
separation of family ties, it is needless calling upon any other witnesses in
this case nor asking the defendant to make his defence. It is hereby ordered
and directed, by consent of both parties, that the family ties hitherto
existing between Kofi Donkor as representing the members of Ampiakoko section
at Yego family (Apaa section) of Nyakrom and all his descendants of the one
part, and Kwesi Eduamoah and with him Henry Saah, Kwami Badu and Kerami
Otsinkorang as representing the other four houses of Yego family (Apaa section)
at Nyakrom and all their decendants of the other parts, Be separated and the
same are hereby separated, each party not having any further family dealing
with the other. The question of the Yego family (Apaa section) stool of Nyakrom
and all the properties attached to the said family shall be later settled
amicably between the parties by Nana Kobina Botchey, Adontehene of Agona State,
who shall see to the division of such properties and to the ownership of the
stool.”

In the present case the native court expressed the view that under
the consent order there had been a severance of family ties, and that on
severance the ancestral property of the Ampiakoko section reverted to it for
the sole use and occupation of its members. It did not say in express language
that</main>