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  • appeal
  • 1959-02-02
  • GLR 50-53
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Native custom?-Forest land adjacent to farm?-Custom of the Nkawie Stool?-Opinion of superior native court on native custom prevails over that of inferior.


Kwame Anane inherited his uncle?'s cocoa farm on Nkawie Stool land, and employed Kwame Mensah as caretaker. During his caretakership the latter (a subject of the Nkawie Stool) obtained from the Stool the grant to himself of seven acres of forest land adjoining the farm of which he was a caretaker. Anane sued Mensah in the Atwima Mponua Native Court for ploughing this forest land, which Anane referred to as ?"my forest.?" The evidence led by the plaintiff (Anane), and his cross-examination of the witnesses of defendant (Mensah), were directed to establish (1) that the forest land in question had always been regarded as annexed to the cocoa farm, and [p.51] that is deceased uncle had successfully expelled someone who had begun to weed it; (2) that defendant?'s claim that the Nkawiepaninhene had allotted the disputed forest to him was false, and had been denied by the Nkawiepaninhene when plaintiff asked him about it; and (3) that, in any event, custom did not permit the grant to a third party of forest land adjoining plaintiff?'s farm. The Linguist gave evidence that the Nkawiepaninhene had denied to the plaintiff that there had been a grant of the forest to defendant. The Nkawiepaninhene gave evidence that, on the contrary, his reply to plaintiff had been that he had given authority for the grant to defendant of any forest land, provided it was not fallow land or a farmstead. The Odikro concerned, who had actually ?"cut?" the land for the defendant, was asked, ?"I put it to you that custom does not allow you to cut a forest land in front of my cocoa farm to defendant to farm thereon.?" He replied, ?"I have every right to cut the forest land to defendant.?" No further evidence as to custom appeared on the record. The trial-Court said in its judgement, ?"It is very clear that plaintiff legally owns the cocoa farm adjoining the disputed forest. It is against the practice of native custom that plaintiff?'s immediate or continuous forest adjoining his farm be cut for defendant.?" The judgement went on to refer to ?"plaintiff?'s forest,?" found against defendant?'s claim that the Nkawiepaninhene had granted it to him, and gave judgement for the plaintiff. The unsuccessful defendant (Mensah) appealed to the Asantehene?'s ?"A2?" Native Appeal Court. That Court made no pronouncement of its own in express terms as to native customary law upon the point in dispute. Its judgement stated that the Nkawiepaninhene had ?"deposed that any forest in his Stool Land could be allocated to any farmer, but not a secondary forest or fallow.?" (What that witness had in fact deposed to was what was done by him, and he did not deal with the question of custom, or of what could lawfully be done. He had said, ?"When the ban on the Ashanti forest was lifted by Otumfuo the Asantehene, Kofi Anane was empowered by me to cut lands for my subjects from Nkawiepanin who wanted to farm at Akwaboraso . . . I allowed Anane to cut such forest to anyone seeking to farm a forest bordering any old cocoa farm. I, however, gave the provision that he should not cut a farmstead or a fallow land to any person).?" The Asantehene?'s ?"A2?" Court held that there was no evidence of any grant of the forest to plaintiff, though there was evidence of its grant to defendant. The plaintiff?'s interest was limited to the cocoa farm, and any further claim by him was wrong in law, and should not have been entertained by the trial-Court, which had therefore ?"misdirected itself on the points of native customary procedure.?" Without expressly saying so, therefore, the Asantehene?'s Court would appear to have given judgement on the basis that the custom as declared by the court below did not exist, and that the forest in question could be freely allocated. The now unsuccessful plaintiff (Anane) appealed to the Land Court, Kumasi (Sarkodee-Addo J.). The judgement in that court restored the judgement of the trial-Court, and said ?"The evidence before the native trial-Court supported the appellant?'s case, which was satisfactorily proved. The Asantehene?'s ?"A2?" Court reversed the finding for no just cause whatsoever. Its judgement is perverse, and not borne out by the evidence.?" The defendant appealed to the Court of Appeal (Civ. App. No. 47/58). [p.52].



The facts in this appeal are not in dispute. Briefly stated they are as follows. The respondent inherited his uncle?'s cocoa farm, adjoining which was virgin forest land, the subject-matter of this suit. The appellant was a caretaker employed by the respondent in respect of his said farm. It appears that during his caretakership the appellant, himself a subject of Nkawie Stool, approached the Stool (as owners of the disputed land) for a grant to him. The Stool accordingly made a grant to him, and sent an agent to demarcate the extent of such grant. In the result, seven acres of forest land adjoining the respondent?'s farm, of which he was a caretaker, were granted to the appellant, and he cultivated them.

The respondent instituted this action against the appellant, claiming the said land. The matter for decision was purely a question of native customary law, that is to say, whether the Nkawie Stool could make a valid grant of forest land adjoining the farm of a subject to another subject of the Stool.

The only evidence as to the relevant custom was that led by the appellant, and consisted of the evidence given by Nana Kofi Marfo, Nkawiepaninhene, the occupant of the Nkawie Stool, who testified that any forest land of his Stool could be allocated to any of his subjects to cultivate provided it was not a farmstead nor fallow land.

The native trial-Court, despite this evidence as to custom, expressed the opinion that ?"it is against the practice of native custom that plaintiff?'s immediate or continuous forest adjoining his farm be cut for defendant,?" and therefore gave judgement for the plaintiff -respondent. [p.53]

On appeal to the Asantehene?'s ?"A2?" Court, a contrary opinion as to the custom was expressed, whereby they held that the Court below misdirected itself on the native custom. It is plain, therefore, that in their opinion any forest land on Nkawie Stool land, whether or not adjoining and existing farm, could be allocated to any subject farmer, provided it was not a secondary forest or fallow. They therefore (rightly in our view) reversed the decision of the native trial - Court.

The Land Court, Kumasi, on appeal reversed this decision of the Asantehene?'s ?"A2?" Court on the grounds that (a) the native trial-Court had the advantage of an inspection of the locus in quo (as to which we find no supporting evidence), and (b) evidence before the native trial-Court supported the respondent?'s case. We are also unable to find any evidence in support of the respondent?'s case which, as we have said, turned wholly upon the question of native customary law. It therefore turns out that the learned Judge of the Land Court, Kumasi, reversed the reasoned decision of the Asantehene?'s ?"A2?" Court without any reasons whatsoever.

Native customary law is peculiarly within the knowledge of the native courts, and the opinion of a superior native court on native custom must be preferred to the opinion of an inferior native court, unless it is either contrary to a decision of the Supreme Court or the Privy Council on the point, or is ?"repugnant to natural justice, equity and good conscience?" (section 87, Cap. 4). Nothing of the foregoing applies to the present case, and the learned judge should therefore have refrained from disturbing a decision of the superior native court upon a question of native customary law.

In the circumstances we feel that the decision appealed from must not be permitted to stand, and we therefore allow the appeal. The judgement of the Land Court, including the order as to costs, is set aside. The judgement of the Asantehene?'s ?"A2?" Court is restored.

The appellant will have his costs in this Court, fixed at 40 1s, 3d. and his costs in the Land Court, Kumasi, assessed at 21.


<P>Court below to carry out.</P>

Plaintiff / Appellant


Defendant / Respondent



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