ADJUBI vs. MENSAH [1973]DLCA2247

Date	1973-07-31
Suit No.
Citation No.	[1973]DLCA2247

AZU CRABBE C.J

LASSEY JA

ARCHER J.A.

W. A. N. ADUMUA-BOSSMAN FOR THE APPELLANT.

NO APPEARANCE FOR OR BY THE RESPONDENT.

[1973]DLCA2247
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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">ADJUBI <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">MENSAH <o:p></o:p>[COURT OF APPEAL,
ACCRA]<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;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1974] 1 GLR 93<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:
31 JULY 1973.<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">

W. A. N.
ADUMUA-BOSSMAN FOR THE APPELLANT.<o:p></o:p>

NO
APPEARANCE FOR OR BY THE RESPONDENT.<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">

AZU CRABBE C.J., LASSEY AND ARCHER
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF LASSEY J.A.<o:p></o:p>This
appeal concerns the application of a general rule of customary law. The
relevant rule of the customary law is that unless a chief’s private property is
earmarked when he ascends to the stool, it becomes mixed up with the stool
property and cannot be recovered after death or on deposition. The principle of
customary law was laid down long ago in the case of Antu v. Buedu (1929) F.C.
‘26-’29, 474 and is now subject to the qualification deducible from the recent
decisions of the courts which is to the effect that if it can be proved by
evidence that the new ascendant to the stool has by words or conduct indicated
that he regards the property as privately owned, then the question of the
ownership and right to possession of the particular property remains in the
family of the stool occupant at death. In truth, the issue posed here is
simply: what principle of customary law ought to govern the devolution of the
properties in dispute?<o:p></o:p><o:p>&nbsp;</o:p>The
appeal was from the decision of a circuit court in Kumasi in an action in which
the plaintiff as customary successor claimed recovery of certain family
properties from the defendant. In reply, the defendant maintained that he was
entitled to enjoy the use or occupation of the properties by virtue of his
being the present successor to the linguist stool in the family to which the
said properties were attached after the death of the original owner.<o:p></o:p><o:p>&nbsp;</o:p>The
history of the dispute, as given in evidence, is as follows: The plaintiff and
the defendant are both hereditary members in the same family. The plaintiff is
the personal successor appointed in the family to succeed to a deceased
ancestor, while the defendant is the person selected to succeed to the public
office of linguist which was founded in the family by a common ancestor, one
Opanin Kwaku Osei, deceased. The dispute is over the right of ownership and
possession of certain properties comprising a double-barrelled gun and a house
which it was admitted were self-acquired by Opanin Kwaku Osei, who also later
became the first linguist of the oman stool in the Effiduase traditional area.<o:p></o:p><o:p>&nbsp;</o:p>Traditionally,
the Effiduase area of Ashanti had never possessed a linguist stool, but in
recent times, during the reign of one Chief Kwame Mensah of Nkwamkwam, one such
post was created, and the common ancestor, Opanin Kwaku Osei, became the first
linguist to occupy it. Although he hailed from the neighbouring village of
Nkwamkwam, yet the chief of the town invited him to be linguist and he agreed.
This event marked the creation of the linguist line in the family of the
parties, and was also the beginning of the institution of the office of
linguist in the traditional set-up in the area.<o:p></o:p><o:p>&nbsp;</o:p>Before he
agreed to become linguist, Opanin Kwaku Osei was known in private life to have
possessed considerable property and wealth all of which he acquired by dint of
his own efforts or labour. That being the character of his properties,
including the properties in dispute, it follows that upon his death intestate
the properties should devolve according to the custom of his matrilineal
descent upon the hereditary members of his family who would automatically be
vested with their ownership and the right to possession.<o:p></o:p><o:p>&nbsp;</o:p>