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BADU AND OTHERS v. AMOABIMAA AND ANOTHER


  • appeal
  • 1961-07-26
  • PRIVY COUNCIL
  • 1 GLR 506-511
  • Print

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


Summary

Customary Law?-Effect of severance of ties from composite family group?-Whether ancestral family property reverts as of course to individual branch of composite family.Estoppel?-Whether action barred by another action concerning the same lands where there was no order adverse to present plaintiffs and judgment affected only stool lands.

Headnotes

Several generations ago, four or five distinct families of the Yego clan migrated from different parts of Ashanti to Nyakrom where they united to form one composite group known as the Yego family of Apaa quarters of Nyakrom. The four or five families became houses within the composite group and every member of each family 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.In 1949 disputes arose within the Yego family which resulted in an action in the native court. In the course of the hearing a settlement was reached by which the Ampiakoko and Eduamoah houses agreed, with the consent of the [p.507] other houses, to sever the ties which bound them to the composite group. There was a special ceremony to mark the severance, which was embodied in the consent of the native court drawn up on the May, 13th 1949. This order contained the following paragraph:"The question of the Yego family (Apaa section) stool of Nyakrom and all the properties attached thereto or belonging 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."Thereafter the parties took the order twice before a magistrate, but the consent order was in no way disturbed.The plaintiff-respondents, the Queen-Mother and linguist of the Ampiakoko section of the Yego family, brought this action for a declaration that three parcels of land had been founded or acquired by Ampiakoko their ancestor. They also asked for possession of these lands. In the native court it was held the lands had been founded by Ampiakoko for his descendants before the formation of the composite groups and this finding of fact was adopted by the Court of Appeal and the Privy Council. The issues before the Privy Council, therefore were: (i) the effect of the severance order upon the ancestral land of the Ampiakoko section; and (ii) whether the present proceedings were barred as a result of an action against one Kofi Donkor, ?"ex-head of the Yego family Apaa quarters" personally, by the heads of houses, including the Ampiakoko section. In that action the court gave judgment for the plaintiffs and ordered Donkor to deliver up the stool with its paraphernalia and lands. The lands claimed by the plaintiffs-respondents in this section were among those included in that order.

Judgement

Appeal (No.22 of 1957) from the judgment of the West African Court of Appeal (Coussey P. Korsah and Ames JJ. A.) delivered on the 3rd April, 1956 (unreported) which reversed the decision of the Land court and restored the judgement of the Agona Nature Court "B" given for the plaintiffs in an action for declaration that certain properties had been founded or acquired by the plaintiffs?' ancestors and for an order for possession. The facts are set out in the judgment of the Privy Council.

JUDGMENT OF MR. L. M. D DE SILVA

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:

"Now the question at issues is this: Were the lands in dispute i.e. Buafi, Otsinkorang and Busumpa founded by Ampiakoko, the plaintiffs' ancestor or by Buasi, Otsinkorang, Abuenyi, the defendants' ancestors and Ampiakoko?"

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[p.509] 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 the latter was a consequence of the former but their Lordships have no doubt that that view was implicit in what it said. The Land Court found itself unable to accept the view of the native court. With regard to this the West African Court of Appeal said:

?"The learned judge [of the Land Court] expressed a view as a general proposition that lands of a family stool cannot revert to one branch of a family. The native court, however, in the particular circumstances of the present case, held that on severance each house assumed title, to the exclusion of the other houses, of the lands acquired by its founder. That is a finding on the native custom applicable to the case.?"

It went on to say that the Land Court could not properly on the material before it have taken the contrary view. Their Lordships agree. There was no material upon which it could be said that the view of the native court upon this point of customary law was wrong.

It was urged for the appellant that in the absence of a term in the agreement (of the 13th May) to the effect that the ancestral properties were to revert to each house no such consequences followed. Their Lordships being of opinion as already stated, that under the relevant law applicable to the parties in the circumstances of this case the reversion of the ancestral properties followed as a matter of course they do not think any such term was necessary.

[p.510]

It was also urged that the amicable settlement referred to in the second paragraph of the order had not taken place and that in consequence the whole of the order was ineffective in law. Their Lordships do not agree. On severance the ancestral lands at once reverted to the houses to which they originally belonged. That did not depend on any "amicable settlement". The only need for an amicable settlement was as to any property of the Yego stool, which was not the ancestral property of any one of the houses, but was the property of the stool which it itself had acquired whilst it was a composite stool. No one house was entitled to that stool property and a division had to be made.

It should be mentioned that both parties tool the order twice before a magistrate for reasons which do not appear in the record of the proceedings in this case. It is not of much importance that they do not. On the 13th August, 1949, Kwesi Eduamoah appealed to Mr. Wallis, who dismissed the appeal saying: "The parties need not comply with the order. Arbitration is essentially voluntary. There is therefore nothing to appeal against". On the 7th February, 1950, Kofi Donkor appealed to Mr. Ferguson, who said: "No order by a court which this court could direct should be enforced has been brought to my notice". Their Lordships are of opinion that these proceedings before the magistrates did not affect the validity of this separation or its consequences in native customary law. Each house was entitled to its ancestral property. But it did mean that the position of the stool property was unresolved.

It has been urged that the findings in a case (now under appeal) brought by one Kwami Badu and others against Kofi Donkor are a bar to the present proceedings. It is necessary to consider this argument.

Kofi Donkor was at one time the head of the Yego family. On the 22nd November, 1950, a general meeting was held of the Yego family and it was resolved that "Kofi Donkor be removed and he is this day removed from the position of head of the Yego family (Apaa quarters) of Nyakrom". Kwami Badu was appointed head of the family in his place. Kofi Donkor does not appear to have handed over the paraphernalia and other property of the stool to his successor. On the 11th June, 1951, Kwami Badu and other heads of houses brought an action in the Native Court "B" at Swedru asking for the delivery of the stool property against "Kofi Donkor (ex-head of Yego family Apaa quarters)". The action was not against him as representing the Ampiakoko section. On the 5th July, 1953, the court gave judgment for the plaintiffs and ordered Kofi Donkor to deliver up the stool with its paraphernalia and lands. That judgment only affected the stool lands.

The order in that case made by the native court is as follows:

"Judgment in this case is therefore entered for plaintiffs for the said stool with its paraphernalia and all the lands, with costs to be taxed.

Defendant is hereby ordered to deliver up possession and surrender all the properties mentioned hereunder to plaintiffs for the whole Apaa Yego family, Nyakrom including defendant's section or before the 19th day of July, 1952."

[p.511]

It will be observed that the Ampiakoko section of the Yego family (?"defendant?'s section?") was one of the parties in whose favour order was made against Kofi Donkor and there is no order adverse to the Ampiakoko section.

The subject-matter of the present proceedings, namely, the lands at Otsinkorang, Busumpa and Buafi are included in the order but in the circumstances mentioned this cannot prevent the Ampiakoko section from asserting that those lands are their ancestral lands. Moreover, Amba Amoabimaa, the Queen-Mother of the Ampiakoko had applied to be joined as a party to the case but her application was rejected. She is a plaintiff in the present proceedings and it is not disputed that she rigthly represents the Ampiakoko section. The action, as already stated, was against Kofi Donkor personally as ex-head of the Yego family as a whole. Their Lordships are of opinion that the Ampiakoko section are not prevented by those proceedings from asserting the present claim.

It has been held by the native court that ?"consequent upon the breaking of the family tie?" the heads of the appellants?' sections of the Yego family prevented the respondents ?"from having anything to do with their family lands of Kyekyegya?". This finding was confirmed by the Court of Appeal. Both courts took the view that the appellants by this action regarded their ancestral lands as their sole property and that the respondents were equally entitled to regard their ancestral property as solely theirs. Their Lordships agree. Some evidence was pointed out to their Lordships that the action taken by the appellants was for reasons other than those mentioned but this evidence has not been accepted.

A point which found favour with the Land Court was that it was not established that the appellants were in possession of the lands in question and that therefore no order for possession should be made against them. Their Lordships do not think it is well-founded. The appellants undoubtedly claimed the right to go on the lands and farm them. If they are there an order is necessary to get them out. If they are not there is does them no harm.

Decision

<P>For the reasons which they have given their Lordships will report to the President of Ghana that this appeal ought to be dismissed and that the appellants should be ordered to

Plaintiff / Appellant

Defendant / Respondent

Referals

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