Accra, 16th December, 1936.

                                   Cor. KINGDON, PETRIDES and WEBBER, C.JJ.

                                                   UNITED AFRICA COMPANY LTD .                                  Appellants.

                                                                                         v.

          KWADJO APAW AND OTHERS-AGONA  STOOL PER KWADJO APAW      Claimant-Respondent.

Appeal Court. 16Dec., 1936. Appeal from Judgment of the Supreme Court.

 

Interpleader-Lease to Ashanti chief-Ashanti native law and cus­tom-Lease held by chief as individual--Stool not bound unless elders or linguist join in lease-Illiterate executing agreement­ Onus of proof that illiterate understood agreement-English law applies where document in English and in English form.

Held: Lease taken by chief as individual. Appeal allowed.

The facts are sufficiently set out in the judgment.

Mr. E. O. Asafu-Adjaye for Appellants.

Mr. H. A. Hayfron-Benjamin for Claimant.

The following joint judgment was delivered :-

KINGDON, C.]., NIGERIA, PETRIDES, C.J., GOLD COAST, WEBBER, C.J., SIERRA LEONE.

The claimant-respondent claimed that a certain piece of land with the buildings thereon should be "declared and adjudged to be the property of the Agona Stool per Kwadjo Apaw." The trial Judge held that the property in question was stool property. The land in question had been seized in execution of a judgment debt and costs recovered against Kwadjo Apaw.

The land was the subject-matter of a written agreement dated the 25th November, 1927, made between the then Chief Commis­sioner of Ashanti on behalf of the Government of Ashanti of the one part and" Chief Kojo Apaw, Omanhene of Agona" (thereinafter called the lessee) of the other part. Paragraph 1 of that agreement reads as follows :-

.• 1. That in consideration of the rent hereinafter reserved and of the covenants and conditions hereinafter contained and on the part of the lessee, his executors, administrators and assigns (hereinafter collectively referred to as the lessee or lessees) to be observed and performed the Government doth hereby demise unto the lessee ALL THAT piece of land situate at Kumasi in Ashanti described in the schedule hereto .

.• TO HOLD the same unto the lessee or lessees for the term of fifty years from the first day of January 1928 at the yearly rental of £100 payable in advance by equal yearly payments on the first day of January in every year one such payment being made on the execution of these presents."

By paragraph 2 of that agreement the lessee covenanted with the Government, inter alia, " to demolish the existing building on the said piece of land within six months to begin a new building thereon within twelve months and to complete the. same within  eighteen months from the date of the execution of these presents in accordance with plans first submitted to and approved by the  Kumasi Public Health Board. Not to make or cause to be made any  material alteration in the said building nor build any other building  or buildings on the said piece of land without first obtaining the  consent in writing of the Kumasi Public Health Board."                                                                                   

At the end of that agreement it is stated that " the Indenture  of Lease No. 1087, dated 21st October, 1926, and made between John Maxwell, Esq., C.M.G., C.C.A., of the one part, and Kojo Apaw of the other part is hereby cancelled."

The learned trial Judge in his judgment states :-

" This lease was in effect a renewal of a former leas.e granted in 1912 to Boakyi, elder brother and predecessor on the stool of Apaw. Under that former lease, the property appears from evidence to have been regarded and dealt with as stool property. Endorsements on the former lease indicate that it was from time to time transferred to Omanhene on succession. This present existing lease has been dealt with by deed Exhibit' B ' whereby interest in the property has been assigned to one Thome and another for a term of years-this with the consent of the Elders and of the Chief Commissioner Ashanti.

This is a clear indication that it is stool property. Antu v. Buadu, F,C. 1929 at p. 477 .. "

After quoting from the head-note to the case of Kwamin v. Kobina Kufuor, P.C. 1874-1928, p. 28, the learned trial Judge goes on to say :-

" Apaw then,' in taking this renewal of the lease in the same terms as his predecessor, may well have supposed that he took it on behalf of the stool as his predecessor had held to the best of his knowledge and belief,"

It is quite clear that the stool base their claim to the land on the agreement of the 25th August, 1931. Now the stool were not parties to that agreement. Nowhere does Kwadjo Apaw aver in his evidence that when he appended his mark to the agreement he thought he was s:ontracting on behalf of the stool. We are quite satisfied that he could not truthfully have made such a statement, for he must have been perfectly well aware that by native law and custom he could not bind. the stool by such an agreement unless the elders, or at all events the linguist, had been a party thereto. It has been contended that Kwadjo Apaw, being a stool-holder, was not entitled to hold land according to the native law and custom of Ashanti. There is no evidence that such is the native law and custom of Ashanti and we see no reason to believe that such is the case. Apaw has himself admitted in evidence that in Ashanti a stool occupant can retain" personal property" : by this he obviously meant individual property and not "personally" as opposed to " realty" for the term " personal property" would not be used in any other sense by an interpreter in this country. Furthermore, in the unreported case of Geboah v. Chief Yaw Dabanka, defendant, and Chief Yaw Dabanka, claimant, Bannerman, J., who has un­rivalled knowledge of the laws and customs of this country, held, on the evidence in that case, that an Ashanti chief could hold land

Apaw is a native of Ashanti and as it would appear that at all events when he signed the agreement he could not understand English and was illiterate, it is clear that there is no presumption that he has appreciated the meaning and effect of the agreement.

This is one of the matters which has to be proved by the appel­lants. (See the concluding paragraph of the judgment of the Privy Council in Atta Kwamin v. Kobina KufztOr.) In that judgment it is also stated :-

" The respondent's case is not that a contract binding upon him should be set aside on the ground of fraud or misrepresentation, but that no contract was ever made which could bind him or his predecessor. So far as this rests on want of authority in the person professing to bind him, the law is perfectly clear. But in so far as it rests on mistake or ignorance it is by no means to be governed, as the learned Judge seems to assume, by the same considerations as a purely English contract. The principle of law is the same in both cases, but the presumptions of fact are widely different if a contract is subscribed, without negligence, in the honest belief that it is a document of a totally different nature, it is not binding upon the subscriber, not by reason of fraud or misrepresentation but because the mind of signer did not accompany his signature. If he is excusably mistaken as to its actual contents he never intended to sign and in law he never did sign the paper to which his name or mark is appended."

Now in this case having regard to the fact that Apaw must have known that he alone could not bind the stool and that he has never alleged that he personally contracted in error or by ignorance, we are unable to come to the conclusion that Kwadjo Apaw was ex­cusably mistaken as to the actual contents of the agreement. We are driven to the conclusion that when Kwadjo Apaw affixed his mark he knew that he was binding himself and not the stool.

That being so we have to inquire whether the agreement in question is one that must be governed by English law.

In the case of Fawcett v. Odamtten (1929), P.C .. 26-29, 339, the Full Court held that a conveyance written in English in the usual form must be construed in accordance with English law; and in the case of Quarshie v. Plange (1927), F.e. 26-29, 246, the same Court decided that where parties adopted the English method of sale they are bound by the principles of English law.

In our opinion the agreement of 25th November, 1927, must be construed by the law of England.

Subsequent to this agreement an indenture dated 1st May, 1928, in English form was entered between Kwadj6 Apaw Omanhene of Agona, his heirs, executors, administrators and assigns and two Syrians. By this indenture Omanhene Apaw, his heirs, executors, administrators and assigns, with the consent of his elders, gave the two Syrians the contract for erecting the new Agona Stool House on the land in dispute. This indenture gave these two Syrians the right to occupy parts of the building to be erected, and in paragraph 4 it was provided that the said" Omanhene Kwadjo Apaw, his heirs, executors, administrators and assigns" were to occupy the second storey and that the yard was to be occupied by Omanhene Kwadjo Apaw. This agreement appears to have been witnessed by all the elders.