Disposition by Will of personally acquired property by occupant of stool  -Kofi Antu v. Ohene Kweku Buedu (F.C. 1926-9, p. 474) cited and distinguished-Proof that testator had no intention of making his private property stool property-Valid testamentary disposition of such property permitted by native customary law.

Held: Appeal dismissed.

The facts are sufficiently set out in the judgment.

P. Awoonor Renner (with him C. F. Hayfron-Benjamin) for Appellant.

D. Myles Abadoo for Respondent.

The following judgment was delivered:­ YATES, J.

This is an appeal from the judgment of Strother-Stewart, J., dated 25th March, 1935, whereby he gave judgment for defendant with costs.

The plaintiff, by this writ dated 14th November, 1932, claims " as successor of Ohene Yamua Ansah, alias Joseph Duker Biney, late of Arkra and Saltpond, deceased, and Head of the Royal Stool of Nsona Family in Arkra, the surrender and delivery to the plaintiff herein of the personal property mentioned in the inventory filed by the defendant as administrator of the estate of Joseph Duker Biney alias Yamua Ansah, Ohene of Arkra, on the 10th day of June, 1931, as per Exhibit marked ,r B ' hereto attached. In the alternative the plaintiff claims £9,600."

The deceased resided at Saltpond and was a partner in the mercantile firm of " Ampah-Korsah," and carried on business as a produce buyer and money-lender. He was enstooled in October 1911 and remained on the Stool until his death at Saltpond on 27th April, 1931. After his enstoolment the deceased continued to live in Salt pond with the acquiescence of his elders and continued to carry on his separate business, making voyages to England in respect of it, and by his personal exertions and skill in business amassed a considerable fortune-unassisted in any way by his elders or officers of the Stool-and the learned Judge has found as a fact that the deceased only agreed to become Ohene of Arkra on the condition that he was allowed to reside at Saltpond and carry on his separate business there, and that he could appoint a deputy to reside at Arkra and carry on the routine business of the Stool. The learned Judge has further found as a fact that the deceased never used any stool or family property in his private business, but on the other hand used his moneys to help his people by paying off their debts, rebuilding .the Ahinfie, increasing the paraphernalia of the Stool, and by giving them loans in time of difficulty.

On the 20th December, 1930, the deceased made a Will, of which the appellant was appointed sole executor and of which Will the appellant was persuaded by certain members of the Stool, obviously with the intention of seeing what they could make out of it, to renounce probate, and he accordingly did so.

When appellant renounced probate, the respondent was granted Letters of Administration with Will annexed, and the said Will does not purport to deal with Stool property or lands, but only with the self-acquired property of the deceased, which he devised to his wives and children and other members of his immediate family. At the time the appellant contended that by native cus­tomary law, unless an Ohene on enstoolment makes a declaration of his private property, the whole of his property, whether acquired before or after his enstoolment, becomes stool property on his death­ and this is the only point of substance in the appeal.

In support of this contention the case of Kofi Antu v. Ohene Kweku Buedu, F.C. 1926-9, p. 474, has been quoted-and in that case it was held that unless a Chief's private property is "ear­marked" when he ascends the Stool, all his property becomes Stool property when he is enstooled, abdicates, or dies.

Now, Sarbah, second edition, page 60, says: "Property is designated self-acquired or private where it is acquired by a person through his own personal exertions or by superior skill in business. or intellectual pursuits," and the same authority, on page 99, says: " A person may make valid testamentary disposition of self-acquired property as distinct from stool property."

In this particular case it is not disputed that the deceased, on his accession to the Stool, was possessed of money which, as a money­lender, was his stock-in-trade, which he used in his separate business, and which business he carried on successfully until his death, un­helped in any way by members of the Stool.

Evidence of the custom of the Arkran peoples, to whom these parties belong, was given by their Paramount Chief, Akini III, Omanhene of Ekumfi, and I attach the greatest importance to his evidence. He says: "The private property of a man put on the Stool as Ohene does not go to the Stool and he can dispose of it as he likes, and that if he is trading whilst on the Stool he can do what he likes with what he makes by his trading if he is trading with his. own money." Moreover, the deceased, when put on the Stool, announced that he was possessed of means and this, coupled with the fact that he remained at Saltpond during his enstoolment carry­ing on his own business with his stock-in-trade, clearly indicates that the property, the subject-matter of this action, was self-acquired property. Now a stool holder who has kept his self-acquired property distinct from the stool property, to the knowledge of the senior and immediate members of the Stool, can make a valid testamentary disposition of such self-acquired property to a member of the family -vide Sarbah's Panti Customary Laws, page 99-and so is an excep­tion to the rule laid down in Kofi Antu v. Ohene Kweku Buedu quoted above.