NSIAH vs. DONKOR AND OTHERS [1962]DLHC1603

Date	1962-01-31
Suit No.
Citation No.	[1962]DLHC1603

DJABANOR J.

W. K. ACKUN FOR THE DEFENDANTS-APPELLANTS.

D. S. EFFAH FOR THE PLAINTIFF-RESPONDENT.

[1962]DLHC1603
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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:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">NSIAH <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:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">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:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">DONKOR AND OTHERS <o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p><a name="_gjdgxs"></a>[1962] 1 GLR 36<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 31ST JANUARY, 1962.<o:p></o:p>

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

W.
K. ACKUN FOR THE DEFENDANTS-APPELLANTS.<o:p></o:p>

D.
S. EFFAH FOR THE PLAINTIFF-RESPONDENT.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 6.0pt 0in">

DJABANOR J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
DJABANOR J.<o:p></o:p>This is an appeal from the decision of Kumasi West Local Court at
Akropong. The facts have been stated by the local court magistrate in his
judgment 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">“One Yaw Hemeng a stool grandson was requested by the stool family
to occupy the stool till such time as a male member of the stool family comes
of age. Hemeng occupied the stool and on his death his brother Kwaku Donkor,
the first defendant, succeeded him. Kwaku Donkor was on the stool for about 20
years when he abdicated because he was blind. At the time, Niamoah’s family had
had a male member who was old enough to occupy the stool and this is the
plaintiff. The first defendant therefore handed over the stool to the plaintiff
in the presence of the Asokwahene, the first witness to plaintiff who is the
overlord of the Bomso Stool. During Hemeng’s occupancy of the stool, he
cultivated two cocoa farms, one on Apagya stool land and another on Nwabi stool
land. He also cultivated a number of farms on Bomso stool land, but those farms
were destroyed when the Nwabi Water Works was being constructed. A compensation
was given to Hemeng in respect of those farms destroyed. The first defendant
inherited the farms left by Hemeng and when he abdicated he also handed over
the stool and the farms to the plaintiff. The plaintiff offered an Aseda of £G2
7s. and one bottle gin in respect of the stool and the farms given him. At the
request of the first defendant, however, the plaintiff agreed that he should
possess one of the farms and use the proceeds to procure medicine to cure himself.
The plaintiff took possession of the other farm. Some time last year the third
defendant, who is the nephew of first defendant protested against the plaintiff
possessing this one farm, his reason being that the said farm was the
self-acquired property of Hemeng and not a stool farm. Also that the plaintiff
had clandestinely taken first defendant before the Asokwahene where he
abdicated and had handed over Hemeng’s farms to plaintiff without the knowledge
and consent of first defendant’s family. The plaintiff apologised to third
defendant for not keeping him informed of first defendant’s abdication. The
third defendant then warned plaintiff not to set foot in the farm any more,
saying he had taken possession thereof. The plaintiff therefore took this action”.<o:p></o:p><o:p>&nbsp;</o:p>It seems to me quite clear that the farm in dispute was
transferred to the plaintiff by the first defendant before witnesses. What is
in issue is whether the farms were transferred to the plaintiff because they
were stool property which had been handed over or whether the first defendant
gave them to the plaintiff as a gift. To answer this question it is necessary
to determine whether on the death of Hemeng the farms were stool farms or his
family property. If they were stool farms then the transfer by the first
defendant was proper and valid; if they became the family property of Hemeng
then the first defendant alone could not make a valid transfer of them to the
plaintiff without the knowledge and concurrence of his family.<o:p></o:p><o:p>&nbsp;</o:p>The respondent’s counsel submitted that on the principle of Nana
Ayirebi Acquah III v. Nana Tawia Ababio1(1) the property acquired by a chief
whilst on the stool belongs to the stool and unless he earmarked the private
property when he ascended the stool it became mixed with the stool property and
cannot be claimed by him on his deposition. He contended that in this case
there is evidence that Nana Hemeng made these farms during his reign and so not
having marked them apart, they became stool property. Afua Mansah, the
plaintiff’s second witness gave evidence as to the custom upon which the local
court based its judgment.<o:p></o:p><o:p>&nbsp;</o:p>The defendants-appellants however urged strongly that the farms
were the self-acquired property of Hemeng, and that they acquired the character
of family property upon the death of Hemeng, and so the gift was invalid having
been made without the knowledge of the family.<o:p></o:p>The latest authority on this custom is found in the case of Serwah
v. Kesse2(2); van Lare J.S.C. said:<o:p></o:p>