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:
Administration-Native Custom
repugnant to Justice-Equity and
Good conscience-Slavery Abolition
Act, 1883.
On the death of one Kweku Damptey.
the plaintiff and defendant each
claimed to be entitled to
administer the estate. The
plaintiff based his claim on
relationship the defendant on the
fact that deceased was an Ahinkwa
who had been" dashed .. to his
stool. The Circuit Court of
Ashanti held that, according to
native custom, the defendant was
entitled to administer the estate,
as deceased had been his Ahinkwa.
On appeal it was held that
defendant's claim was really based
on the fact that the deceased had
been" dashed" to his stool, that
this native custom constituted
slavery and was therefore
repugnant to justice, equity and
good conscience.
The judgment of the Circuit Court
was set aside and letters of
administration
were granted to the plaintiff
]. H. Coussey for the
plaintiff-appellant.
K. Quartey-Papafio
for the defendant-respondent. The
following judgments were delivered
:-
HOWES, J.
This is an appeal from the
judgment of the Acting Circuit
Judge, Ashanti, by which it was
held that the Defendant
Respondent, the Omanhene of
Kumawu was entitled to a grant of
Letters of Administration of the
estate of Kweku Damptey.
The Plaintiff-Appellant is the
nephew of the deceased, and
therefore, in the ordinary way, by
Native Custom, would be the person
entitled to inherit.
By English law, too, the
Plaintiff-Appellant or some nearer
relative of the Deceased, would be
the person to whom, in the
ordinary course, Letters of
Administration would be granted.
The learned Acting Judge has based
his decision upon his finding
that" the deceased was an Ahinkwa
to the Kumawu stoolthat is a
stool servant, whose office was in
the old days that of an
executioner, and who now-a-days
does little more than attend the
Chief on state occasions and carry
before him the emblem of a sword,"
and for this reason, held that by
Native Custom, the Omanhene was
entitled to administer the
deceased's estate. He did not
adjudicate upon the question
whether the deceased was " dashed
to the Kumawu stool" as the
Defendant alleged.
This question appears to me to be
of considerable importance, as it
is really the basis of the
Defendant's claim to the grant of
Letters of Administration.
Kweku Kodieh v. Kwami Affram.
After the death of Damptey, a
question arose as to the
deceased's belongings, the Yaw
Trieh, brother of the deceased,
sent a message to the
Defendant-Respondent saying that
he (Yaw Trieh) would take the
whole of the deceased's estate.
The Defendant-Respondent in his
evidence stated "When I received
this message I sent my linguist
Rofi Hemang to Trieh to swear the
Great Oath that the deceased's
estate was mine, as he was my
Ahinkwa and had been dashed me."
Kwesi Nuama, linguist to Prempeh,
gave evidence as to the custom in
Ashanti in regard to the property
of an Ahinkwa, as follows :-
•• When an ahinkwa of a chief dies
all his belongings should be
brought before the chief, who may
select anything he likes and give
the rest to the family. I have
known cases where a chief's
subject has behaved badly and has
been banished and given to another
chief. In such cases the latter
has the sole control of such
person and has absolute title to
his property, and in olden days
could kill him if he pleased. If
such person served as an ahinkwa,
on his death' all his property
would be taken by the chief ...
The present Plaintiff would be the
deceased's heir, if it were not
for the fact that the deceased had
been dashed to the Omanhene."
In view of this evidence, it is
clear that the Defendant's claim
to administer the property of the
deceased was based on the fact,
that not only was the deceased one
of his ordinary Ahinkwa, but,
according to the Defendant, an
Ahinkwa who had been " dashed" to
him.
The grant of Letters of
Administration is a procedure
under English law; and there is
nothing corresponding to it in
Native Customary Law, under which,
he who inherits the property would
be the person to administer or
distribute the property of a
deceased person. It is therefore
necessary to consider what
principles should guide the Court
in deciding to whom Letters of
Administration should be granted.
The evidence of Kwesi Nuama shows
that by Ashanti custom an Ahinkwa
who has been" dashed" to a Chief,
becomes to all intents and
purposes a slave of that Chief.
Not only is the Chief entitled to
the sole control of his person and
property during the life of the
Ahinkwa, but, on the death of the
latter, all his property will pass
to the Chief. Such a condition of
affairs is, in my opinion, nothing
more or less than slavery.
Section 19 of the Supreme Court
Ordinance, which, by section 7 of
the Ashanti Administration
Ordinance, is in force in Ashanti,
provides
inter alia
:-
"
Nothing shall deprive the Supreme
Court of the right to observe and
to enforce the observance of, or
shall deprive any person of the
benefit of, any native customary
law not being repugnant to
justice, equity or good
conscience."
By Section 12 of the Slavery
Abolition Act, 1883, slavery was
abolished and declared unlawful
throughout the British Colonies
Plantations and possessions
abroad. After the coming into
force of the Ashanti Order in
Council, 1901, Ashanti became a
part of His Majesty's dominions,
and therefore, slavery became
unlawful in Ashanti.
The Defendant's claim, being based
upon a native custom which I
consider amounts to slavery, is in
my opinion repugnant to justice.
equity and good conscience, and
cannot be recognised by this
Court.
The Plaintiff-Appellant was
therefore, in my opinion, the
proper person to whom Letters of
Administration should have been
granted. The judgment of the Court
below must therefore be set aside,
and judgment be entered in favour
of the Plaintiff Appellant
for the grant of Letters of
Administration as claimed, with
costs to be taxed.
The appeal is allowed with costs
assessed at £25 3s. The Court
below to carry out.
DEANE, C.J. THE GOLD COAST COLONY.
I
concur.
MICHELIN, J.
I
concur.
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