v

      BAFOUR KOFI DOKYI, EMMANUEL MOSES  ASARE      AND    ODIKRO

                                                               KWABENA AGYEI                                            Defendants-Appellants.

pg 78

Appeal Court, 29th May, 1941.Appeal from judgment of the Provincial Commissioners Court exercising Appellate Jurisdiction.

 

Family property sold under writ of Fi. Fa. for private debt ­ Appeal from judgment of Provincial Commissioner's Court upholding judgment of the Tribunal of the Parmnount Chief of Akyem Abuakwa that property sold incorrectly for private debt-Appeal before West African Court of Appeal on ground., that where family property involved Head of family only entitled to t.ake action-Plaintiff, an interested party and member of the family, though not necessarily Head of family had been empowered verbally by family to sue.

Held: Plaintiff could properly bring action and appeal dismissed.

There is no need to set out the facts.

Case cited:-

Alfa MahmU{lu v.  Zenllah (2 W.A.C.A. 175).

        Ofei Awere (AkuffoAddo with him) for Defendants-Appellants.

J. B. Danquah for Plaintiff-Respondent.

The following joint judgment was delivered:-

KINUDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST .\ND GRAHAM PAUL, C.J., SIERRA LEONE.

This is an appeal from the judgment of the Provincial Commis­sioner's Court, Eastern Province, which upheld the judgment of the Tribunal of the Paramount Chief of Akyem Abuakwa. The claim of the plaintiff-respondent was for-

(1) a declaration that certain lands with the houses, etc. thereon were the properties of the Ekuona Family of Kukurantumi and that the said properties were not liable to be sold for the private and individual debts of Jacob Reynolds Danso;

(2) for recovery of possession of the said lands;

(3) for accounts to be taken of all moneys realised by the defendants from the said lands during the period of their wrongful possession and occupation

and (4) for payment to the plaintiff of whatever amount should be found due upon such accounts.  pg 79

The Tribunal, in the course of what the Court below rightly described as a " well-reasoned judgment. ", found certain material facts which may be shortly set out:-

" The debt for which the property was sold was not a debt incurred "by or on behalf of the family. The people with whom the debt was " contracted were not even known to the Ekuona Family. So the debt " was Danso's personal affair, pure and simple."

Having found these facts the Native Tribunal, in its judgment, proceeded as follows:-

"Consequently we hold that, according to the native customary "law, the properties in question were not liable to be sold for the " purpose for which it was done."

The Tribunal then went on to consider the suggestion made for the defence that the plaintiff had acquiesced in the sales in question and that the plaintiff had allowed time to lapse. The conclusions of the Tribunal on these points were that they disbelieved and rejected the evidence brought by the defendants as to acquiescence holding that there had been" consistent efforts on the part of the plaintiff to recover the properties."

The Tribunal further expressed themselves as " satisfied that " the fact that -:.he properties sold were not self-acquired properties " of ..... the debtor Danso was so well known at Kukurantumi •• that the step taken by the first defendant could not but be an .' act of one in more advantageous circumstances taking advantage " of the weak, which our sense of justice and fairness will not " tolerate."

Upon these findings the ,Tribunal declared ., that the " properties claimed are the properties of the Ekuona Family and " were not liable to be sold for debt due by Danso personally." Their judgment concludes with the words" The plaintiff for her­•• self and on behalf of her family do recover the said properties " for and on behalf of herself and the said Ekuona Family with­" out any further liability on the part of the defendants."

That judgment was upheld on appeal by the Provincial Commissioner's Court and the appellants have appealed to this Court - from the judgment of the Provincial Commissioner's Court.

The grounds of appeal before this Court do not attack a single one of the findings of fact by the Tribunal. Nor do they attack the finding in law of the Tribunal that" according to the " Native Customary Law the properties in question were not liable " to be sold for the purpose for which it was done." This Court must therefore accept the findings of fact and law of the Tribunal in considering the appeal.

The appellants' case before this Court, shortly ))Ut, is that the plaintiff is not the Head of the Family and that where, as admittedly here, family property has been wrongly sold under a pg 80 Writ of Fi. Fa. issued in ,execution of a judgment against an individual member of the family for his own personal debt and the purchasers have entered into possession and occupation of the family.property no member of the family except the Head of the Family may take action in Court against the purchasers claiming a declaration that the property is family property and not liable to be sold for the debt in question and for recovery of possession for and on behalf of the family.

It has been recognised by the Courts of the Gold Coast that, as a general rule, only the Head of a Family can sue as representative of the family for the recovery of family land. This Court recognised the existence of such a general rule in its judgment in the case of Alfa Mahmudu v. Zenuah (2 W.A.C.A. at page 175).

In the present case, however, Yaw Mante, Linguist to the Adontenhene . of Akyem Abuakwa, in reply to the question put to him by the second defendant" In case any property belonging to the family is lost, is the plaintiff the proper person to claim it for the family?" said "Plaintiff has the right to dispute for it." Also OpaninKwasi Asaku, a former occupant of the Ekoona Stool, whose evidence was taken on commission, deposed that" each member of our family has a legitimate right to dispute for the properties in dispute."

The Tribunal after stating that it was satisfied that the plaintiff, an elderly woman of the family, had a direct material interest in the properties belonging to that line of the family, held that according to native custom plaintiff could properly bring the action. Although the Tribunal did not base its judgment on it, the Tribunal had before it the plantiff's uncontradicted state­ment that she was verbally empowered by the occupant of the Ekoona Stool to represent the family and bring this action.

Major Gosling, Acting Deputy Commissioner, Eastern Province, in the course of his judgment on appeal, said that he accepted the custom as laid down in the judgment of the Tribunal that the plaintiff had the right to sue and went on to say " It "seems to me that no one is better qualified to define Akini "Abuakwa native custom than the Omanhene and his Councillors.' ,

We agree with that observation.

We are satisfied that we are not justified in holding that the Tribunal was wrong, on the evidence before it, in holding as it did "that Akosua Korang can, according to the native custom, properly bring the action now before us."

Other grounds of appeal in this case related to alleged irregularities of procedure but we can find no substance in any of these grounds.

The appeal is dismissed with cost8 which we asse88 at £21 198 0d.