Accra 11th March, 1940.

                                   COR. KINGDON AND PETRIDES, C.JJ.·AND STROTHER­STEWART, J. .

                                       GYASEHENE SANAHENE KWAME SANTENG    PER                                                          ODEHYEE YAW OHEMENG .                                      Plaintiff-Respondent.

                             v.

                                              KWASI DARKWA AND KWADJO  A YIMADU                                                

                                                                                                                                                  Defendants-Appellants

 

 

Action by Successor of a deceased-Deceased son of a slave girl-Preservation of slave's rights after abolition of slavery-Owner­ship of a house built on ruins of a family house-Appeal allowed in respect of such house-in other respects Appeal dismissed.

Held: (1) Custom that the child of a slave woman is considered for purposes of succession and otherwise to be a member of the father's family upheld.

(2) The mere using of a family site on which to build a house does not brand the house with the stamp of family property if built by independent effort and without family building materials .

      .      The facts are fully set out in the judgment.

Ofei A were for Appellants.

A. M. Akiwunmi (with him Dr. J. B. Danquah) for Respondent.

The following judgment, with which the other members of the Court were in agreement, was delivered :-

STROTHER-STEWART, ].. GOLD COAST.

This is an appeal from a judgment of Cooper, Ag. J. The plaintiff-respondent claimed, as successor to one Kwaku Adae, in accordance with the native customary law of Akyem Abuakwa, eighteen farms and two houses from the defendants-appellants who on the other hand claimed them, as self-acquired property of the said Kwaku Adae passing under the Will of the said Kwaku Adae, dated the 14th day of December, 1934, Probate of which was granted to the defendants-appellants on the 26th day of January, 1935, and of which Will the defendants-appellants are the Executors and Trustees.

The mother of the said Kwaku Adae was a slave girl from the Northern Territories, who had been bought some 70 or 80 years ago by one Gyasihene Nana Ayimadu, who was the head of the Asonna Mabaduam family, and to whom the said slave girl bore several children, of whom the late Kwaku Adae was the last survivor. I think these facts are sufficient to enable the points of substance in this appeal to be understood.

It was argued on behalf of defendants-appellants that plaintiff­respondent was not the proper person to bring the action, that if it could be brought at all, it could only be brought by the head of plaintiff's family. In support of this Rule 1 of Order 3 of Schedule 3 of the Courts Ordinance (Cap. 4) was quoted. I do not agree with this contention because it is well established that a successor can sue. J. A. Asiedu v. Kwabena Ofori (not reported) suit 97/1932; Chief A mega Henodji II v. Seshine SaUah (Divisional Court 1931-37 p. 158); Nee Mensah Larkai v. Amorkor (1 W.A.C.A. p. 323).

According to the learned author of Akan Laws and Customs and the Akim Abuakwa constitution, on page 184, " the inheritor enters automatically into possession of all the property owned by the deceased." Sarbah in Fanti Customary Laws in the 1897 Edition on page 83 says" The owner of self acquired property can in his lifetime deal with it as he pleases, and where he intends to give the whole or a portion of it to his child by a free-born wife, Adihiwa, or to any person not a member of his family, he does so before his death. As soon as h~ dies, his successor is entitled to all the property he died possessed of, as heritable, and ancestral estate, subject to the usual rules of inheritance."

He has many duties to perform. He has to pay the debts of the person to whom he succeeds, and to collect all assets. He wOl1ld also be responsible for holding such of the property of the person to whom he succeeds as family property, if such was its nature.

The learned acting trial Judge found that plaintiff was a member of the said Asonna Mabaduam family, and was the properly appointed successor to the said Kwaku Adae according to the law and custom of Akyem Abuakwa, and that as such successor he could sue in his own name as an individual. I am not disposed to quarrel with any of these findings. I may mention that it is clear that the action of plaintiff-respondent was with the full knowledge and approval of the present head of the Asonna Mabaduam Family, Yao Ohemeng, who gave evidence for plaintiff­respondent.

The-second point of substance argued by defendants-appellants was that the said Kwaku Adae, being the son of a slave, could not be a member of the said Asonna Mabaduam family, as his mother, being a stranger, could not transmit the blood of that family. If he was not a member of the Asonna Mabaduam family, he could not hold family property as such, nor pass on such property to his successor on his death. It was also argued that to recognise the rights of the Asonna Mabaduam family, in any property he died possessed of, would be to recognise a custom associated with slavery, which had long been abolished in this Colony.

With respect to this I would point out that although slavery was abolished as from December 17th 1874, by Ordinances 1 and 2 of that year, it was expressly provided that "nothing shall be construed to diminish or derogate from the rights and obligations, not being repugnant to the law of England, arising out of the family and tribal relations customarily used and observed in the Protected Territories." In Eccuah Bimba v. Effuah Mansah, reported on pages 116 to 121 of Sarbah's "Fanti Cust'lmary Laws" already referred to, Hayes Redwar, Acting Judge, says, with reference to such proviso, " The true construction of that section is, in my opinion, that slavery, being repugnant to the law of England, is abolished by that enactment, but that any privileges or rights which the slave may have had before the passing of the Ordinances are saved, provided those privileges or rights are not in themselves repugnant to English law."

The advantages to the son of a slave of being able to acquire the status attached to a family are manifold. He has a Head of his family to look after his interests. He has the right to live on, and cultivate the family land; his debts, if he cannot pay them, will be paid for him when he dies, and he will be properly buried.

The learned acting trial Judge said in his judgment" I find it proved that the custom is that the child of a slave woman is considered for purposes of succession and otherwise to be a member of the father's family, and this custom is a good and valid custom, benevolent in its intention and one which should be recognised by the Court,"

There was evidence on which the learned trial Judge could so find, and I do not see how this Court can disturb his finding, even if it wished to do so.

It was admitted by the plaintiff-respondent that four of the farms the subject of this action were self-acquired by the said K waku Adae. The learned acting Judge gave defendants-appellants judgment for such farms, and also for one of the two houses, namely, the one described as " an upstairs house." He found with reference to the other fourteen farms that there was no sufficient evidence to show that they were self-acquired and to rebut the presumption that they were family property. I agree with him. It is amazing how little evidence was adduced to show how and when such farms were acquired by the said Kwaku Adae, if indeed, they were so acquired. I am therefore of opinion that the appeal fails in respect of these fourteen farms.

The question of the remaining house, namely the one described as "a store" is more difficult. The learned trial Judge gave plaintiff-respondent a declaration that he was entitled to this house, the ratio deciaendi being " the house described as a store seems to have been built on the site of the ruins of a family house, and is therefore family property."

I cannot agree with this reasoning. No custom was proved that when a house is built on the site of the ruins of a family house it becomes family property, and I know of no such custom. The general rule is that which the learned Trial Judge applied in this case of the other house, "namely that if a house is built by the unaided efforts of the deceased and without using any family building materials, it is regarded as his self-acquired property and will pass under his Will. In the case of the store, if it had been proved that a single brick from the ruins of the former family house had been used by the deceased in building the store, the store would be family property; but this was not proved. There was nothing before the Court to show the material of which the original house was built; if it was only a mud house it is unlikely that there. would be anything left of it. I can find no authority for the proposition that the mere using of the site brands tl1e house with the stamp of family property; although, of course, the site on which the house is built remains family land.