CforttpU IHam ^rljnnl ICibtatg 
 
Cornell University Library 
 KG 1449.2.F.L.R. 
 
 Fantl law report of decided cases on Fan 
 
 3 1924 024 981 411 i.»*. 
 
 
 DATE 
 
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 S&H^ 
 
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FANTI LAW EEPOET 
 
 OF 
 
 DECIDED CASES 
 
 ON 
 
 FANTI CUSTOMARY LAWS. 
 
 SECOND SELECTION. 
 
 JOHN MENSAH SAEBAH, 
 
 OF LINCOLN'S IHir, BAKnlSIES-AI-LAW. 
 
 LONDON: 
 
 WILLIAM CLOWES AND SONS, LIMITED, 
 
 7, FLEET STREET, 
 
 1904. 
 
PRIKTED BT 
 
 TTILUAM CLOWES AND SONS, LIMITED, 
 
 LONDON AND BECCLES. 
 
TO 
 
 HIS HONOUR 
 
 ME. JUSTICE FRANCIS SMITH, 
 
 Since 1887 Seniok Puisne Judge 
 
 AND 
 
 Acting Chief Justice of the Supkeme Coukt of 
 THE Gold Coast Colont, 
 
 THIS SECOND COLLECTION 
 OF DECIDED CASES 
 
 IS MOST 
 
 RESPECTFULLY DEDICATED. 
 
PREFACE. 
 
 The cases reported in this volume have been selected 
 from the Eecords of the Appeal and Divisional Courts at 
 Accra, Axim, Cape Coast Castle, and Elmina. Except 
 four cases which were included in "Fanti Customary 
 Laws," the cases herein appearing have not been pre- 
 viously reported. The Judges of the Supreme Court 
 have given me every access to the Eecords, and I have 
 been enabled to report some decisions on the practice 
 of the Court, as well as on the Concessions Ordinance. 
 For the comparatively large number of appeal decisions 
 reported, my thanks are due to my friend, A. Boi Quartey 
 Papafio, Esq., LL.B., of Lincoln's Inn, now practising at 
 
 Accra. 
 
 J. M. S. 
 
 nth December, 1903, 
 
 Mensakoff Chambeks, 
 Cape Coast Castle. 
 
LIST OF CASES. 
 
 
 PAGE 
 
 
 PAGE 
 
 Abessibro v. Ama . . 
 
 .. 78 
 
 Hei'schell v. Munday 
 
 .. 40 
 
 Ackah V. Arinta 
 
 .. 79 
 
 Impatasie Concession 
 
 134, 141 
 
 Aidoasi v. Abadoo . . 
 
 .. 91 
 
 Inkrabeah v. Acquakoah . . 50 
 
 Aidoasi v. Abban 
 
 , 90 
 
 Inkroma v. Obil 
 
 1 
 
 Aiyima v. Adjua 
 
 .. ' 57 
 
 Insilhea u. Simons . 
 
 .. 104 
 
 Amanpou v. Yew 
 
 .. 70 
 
 Jonfia V. Inkatsia 
 
 .. 71 
 
 Amissa ■;;. Anawooma - 
 
 .. 74 
 
 Koom I'. Owea 
 
 .. 13 
 
 Amoa V. Obil 
 
 .. 39 
 
 Longdon V. Sagoe . 
 
 .. 97 
 
 Amocoo V. Duker 
 
 34,35 
 
 Lyall «. Dougan 
 
 .. 56 
 
 Amu V. Kwaw 
 
 .. 129 
 
 Mensa v. Krakue 
 
 .. 86 
 
 Annotay v. Aginfram 
 
 14 
 
 Mensah v. Attopi 
 
 2 
 
 Apenquab's Case 
 
 4 
 
 
 .. 109 
 
 ~ y. ufjuilcl 
 
 Asumanba v. Obbu . . 
 Awortchie v. Aidgun 
 Awua V. Kwow 
 
 .. 32 
 
 .. 56 
 .. 117 
 
 ■I TpliiVin 
 
 .. 48 
 
 .. 42 
 
 9 
 
 
 Midley v. Ameriiie . 
 
 Ayafie v. Banyea 
 
 .. 38 
 
 Mooquah v. Ayensu . 
 
 .. 40 
 
 Ayab v. Boabin 
 
 7 
 
 Ofoli V. Anderson 
 
 .. 19 
 
 Basel V. Bruce 
 
 .. 99 
 
 Pagay v. Toku 
 
 .. 89 
 
 Bimpon v. Abokie . . 
 
 .. 161 
 
 Pepe Concession 
 
 .. 121 
 
 Bokitsi Concession . . 
 
 148, 159 
 
 Power, deceased 
 
 .. 73 
 
 Boogyaye v. Djwainee 
 
 .. 143 
 
 Quacoom v. Ansa 
 
 1 
 
 Boun V. Steele 
 
 .. 77 
 
 Quansah v. Keredeh . 
 
 .. 75 
 
 Cheatham v. Bannermaa 
 
 .. 23 
 
 Regina v. Amakie . 
 
 .. 89 
 
 Christian v. Christian 
 
 .. 69 
 
 TT A TmTimn 
 
 .. 95 
 
 " ' — u, £\uiaiii\^Lia . 
 
 Concessions, Bokitsi . . 
 , Impatasie 
 
 148, 159 
 .. 134 
 
 
 .. 12 
 10 
 
 V. Kineeboa . 
 
 , Pepe .. 
 
 .. 121 
 
 — V. Mensah . 
 
 11 
 
 Efoo V. Simpa 
 
 .. 133 
 
 V. Thompson 
 
 .. 52 
 
 Eiloart v. Holmes 
 
 08, 169 
 
 Ehule V. Roberts 
 
 .. 41 
 
 Esabra v. Takiwa 
 
 .. 28 
 
 Russell V. MeffuU . 
 
 .. 119 
 
 Bsabua Kuow v. Awua 
 
 98,99 
 
 Sam V. Drowa 
 
 .. 76 
 
 Fletcher v. Bordoh . . 
 
 .. 28 
 
 Sey V. Amissah 
 
 .. 41 
 
 Gaisiwa v. Akraba . . 
 
 .. 94 
 
 Swanzy v. Bordoh 
 
 .. 85 
 
 Ghambra v. Ewea, . . 
 
 63, 64 
 
 Toku V. Ama 
 
 .. 58 
 
 Hagan, deceased 
 
 .. 92 
 
 Wood V. Aisawa 
 
 .. 51 
 
 Halliday v. Alapatira 
 
 .. 20 
 
 Yamike v. Adako 
 
 2 
 
FANTI LAW EEPOET 
 
 SECOND SELECTION. 
 
 INKEOMA V. KUACOE OBIL. 
 
 January 20, 1845. 
 
 Rape — Fine. 
 
 Accused was found guilty of committing rape on a small 
 girl. Ordered to pay a fine of eight dollars as satisfaction, 
 and to be imprisoned for one month; also to pay one 
 dollar costs. 
 
 QUACOOM V. ANSA AND TAWEIA. 
 January 29, 1845. 
 
 Liability of Children for Debt of Mother — Long-standing Claim — Reduc- 
 tion — Settlement. 
 
 Claim was 3 ozs. 6 ackies, being amount of debt con- 
 tracted by the mother of defendants a long time ago. The 
 defendants did not deny indebtedness of the mother. On 
 account of the age of the debtj it was ordered to be reduced, 
 and on the payment of this the defendants to be absolved 
 from any further claim which the plaintiff might have 
 against them. 
 
FANTI LAW REPORT. 
 
 MENSAH V. QUAMINA ATTOPI. 
 
 February 3, 1845. 
 
 Before J. Clouston, Acting Judicial Assessor. 
 
 Member of Famihj— Liability— Slander of Family— Breach of Public 
 
 Peace — Fine. 
 
 Plaintiff complained that there had been found, in the 
 defendant's house, a few days ago, one of his sheep, and 
 that he afterwards had the gong sent round the town to 
 say that the plaintiff's family had been proved to be liars, 
 etc., thereby tending to create a disturbance in the town, 
 and disturbing the public peace. 
 
 Judgment. 
 
 Defendant to pay one dollar for his family's abuses of 
 the plaintiff's, together with one dollar for costs. And 
 both parties to be bound over to keep the peace towards 
 each other for a space of six months in a penalty of one 
 ounce gold dust. 
 
 YAMIKB V. ADAKO. 
 February 11, 1853. 
 
 Land-grant — Long Possession — Oift to Son by Slave Woman — Succession 
 I bjj eldest Nephew. 
 
 Plaintiff states that he was left a piece of ground by his 
 uncle Amanie, and he intended to bury the uncle on his own 
 ground. But the defendant preventing him, said he must 
 first obtain his sanction. Plaintiff refused, and denying the 
 right of the defendant to prevent him, he buried his uncle 
 on the said land. The defendant thereupon summoned the 
 plaintiff before King Amissah, who, after hearing the case, 
 gave judgment in favour of the plaintiff. This decision 
 
FANTI LAW REPORT. 3 
 
 was recalled by the king, who after hearing two fresh 
 witnesses of the defendant, gave against the plaintiff, who 
 thereupon brought the present case before the Court of the 
 Judicial Assessor. 
 
 At the hearing, Quabina Asari states that, during the 
 lifetime of plaintiff's uncle, the property was the uncle's, 
 and his possession was never disputed. The plaintiff is 
 the uncle's heir and eldest nephew, and is the undoubted 
 owner. Defendant has no right whatever to the property ; 
 he does not know whether he is a relative of Amanie, the 
 uncle. 
 
 Defendant states the head of his family was called 
 Kwamina Etchie ; he owned the town of Morree and ground 
 about it. A man named Asumanadu (of plaintiff's family) 
 brought a slave woman from Asaibu and resided with the 
 head chief. The Mouree people having quarrelled, Etchie 
 gave Asumanadu a piece of ground, and told him he might 
 build a house on it. He did so, and lived in it till he 
 died. Etchie died before Asumanadu. When Asumanadu 
 was about to die, he gave the property to Amanie, who was 
 his son by a slave woman. Amanie lived on the property 
 all his lifetime ; he was a very old man when he died. 
 
 By the Judicial Assessor : The property appearing to 
 have been given to Asumanadu about one hundred years 
 ago by Etchie, and having remained in his family for two 
 generations without any claim having been made by defen- 
 dant's family for its return, and the plaintiff being the 
 eldest nephew and lawful heir thereto ; it is decreed that 
 the plaintiff shall remain possessor of the property which 
 formerly belonged to his uncle Amanie. 
 
4 FANTI LAW REPORT. 
 
 APENQUAH'S CASE. 
 
 February 7, 1861. 
 
 Before Governor E. B. Andeews, in Council, Cape Coast 
 
 Castle. 
 
 Allegiance — Transfer unlawful — Suh-ruler — Stool-holder — Penalty. 
 
 It has been decided long since that Apenqiiuh was not a 
 private slave to any person, but that he was a subject of the 
 stool of Assin Chibboo, and at this day is consequently a 
 subject of Amba Danquah, Eegent of Southern Assin, and, 
 according to strict law, he.cannot rid himself of the allegiance 
 to the stool. 
 
 The Court has taken into its serious consideration the 
 importance of this case. There are grave questions involved, 
 the most important, and that which in this peculiar country 
 might be practised with the most serious consequences to the 
 well-being and the tranquillity of the protectorate, is a pro- 
 ceeding similar to that which the Court is now called upon to 
 decide as to its legality, it being whether a man occupying a 
 considerable position, as does Apenquah, can suddenly march 
 off with a number of his prince's lawful subjects and deliver 
 himself and them to a rival chief. 
 
 The Court is of opinion that Apenguah does not possess 
 the right to leave his Sovereign Amba Danquah, with all his 
 people, and place himself under Inkee, and that he has not 
 been able to show any grounds on which he could complain 
 of bad treatment towards him by his Sovereign ; the Court is, 
 however, in this instance, disposed not to deal with this act 
 as one of a treasonable nature, though, for the future, it will 
 be held so. 
 
 The Court now requires that Apenquah shall adopt one 
 of the following courses — 
 
 1. Voluntarily to return to his allegiance under Amba 
 Danquah, with his followers. 
 
 2. As it is contrary to the spirit of the English law that 
 
FANTI LAW REPORT. 5 
 
 a man should be forced against his will to leave a place 
 that he has selected as his domicile, and acting in obedience 
 to the forbearing tone of that law, the Court is not disposed 
 to compel Apenquah to remove from the land, but he must 
 live there alone, and not as a captain under Inkee ; or, if 
 married, with one wife, and the children by that wife. And 
 if his followers do not return to Amba Danquah, that he 
 compensates her for the loss of their services, such com- 
 pensation to be decided by three chiefs, one appointed by 
 the Governor, one by Amba Danquah, and one by Inkee, the 
 Governor having the power to assess the amount if he 
 considers it unfair. That until the people return or the 
 compensation is paid, Apenquah is to be a prisoner in 
 the fort. 
 
 3. That Inkee deposits 50 ozs., to be forfeited to Amba 
 Danquah should the people after returning leave her again. 
 For the future, it is to be distinctly laid down that a 
 headman, captain, or chief, shall not be suffered to transfer 
 his allegiance with his followers to the chief or prince of 
 another country. 
 
 Neither shall he be allowed to domicile in another 
 country as a captain with his followers, though he may 
 not have renounced his allegiance to his former prince. 
 
 To act thus shall be held to be treason, the punishment 
 being the loss of all property and degradation of rank 
 within the protectorate, such headman, captain, or chief, 
 to be given up with his followers, it being held a high 
 crime, the prince harbouring them to be deposed from his 
 stool. But where a headman, captain, or chief, is of full 
 age, and wishes to domicile in another country, and is a 
 free man, he shall be permitted to do so, taking with him 
 his one wife, and children by that wife ; at the same time 
 he shall not transfer his allegiance to the prince of his 
 adopted country as a captain, but retire to live under that 
 prince as a private man, leaving all his possessions, which 
 become forfeited to the Sovereign whose country he has 
 quitted. 
 
6 FANTI LAW REPORT. 
 
 Apenquah requested the Governor to allow him until the 
 following morning to give his answers as to his people 
 returning. The Governor at once complied with the request. 
 
 Febi-uary 8, 1861. 
 
 The Court met at 11 a.m., and Apenquah informed the 
 Governor that his followers did not wish to return. 
 
 Three chiefs were then appointed to assess the com- 
 pensation for the loss of service of Apenquah's followers. 
 
 The chiefs could not agree on the amount to he paid, 
 and the Governor, taking into consideration that 30 out of 
 the 100 people were the immediate family of Apenquah,. 
 considered 30 ozs. (£108 sterling) was sufficient compensa- 
 tion, with the small houses which had been left in Amba's 
 country, and that Apenquah remain a prisoner in the fort 
 until the money he paid. 
 
 The proceedings then terminated. 
 
 (Signed) Edward B. Andrews, 
 
 Governor. 
 
 February 8, 1861. 
 
 It seems that Amba Danquah and her chiefs and 
 captains were not quite satisfied with this decision, and 
 they accordingly addressed a memorial to the Governor, 
 praying that his Excellency would be pleased to reconsider 
 his decision, as it would, in their estimation, if carried out, 
 lead to bloodshed and confusion in their country; more- 
 over, that Assin people would not suffer the Queen Eegent 
 to assent to it, and that they, the chiefs and captains, 
 could no longer serve her under those circumstances. They 
 asserted that it was unusual for a man having held so 
 important a position as Apenquah to be permitted to trans- 
 fer his allegiance from his lawful Sovereign to a rival 
 power, taking with him a large number of people. They 
 declared that a pecuniary compensation did not, in such 
 a case, make up for the loss of honour and dignity suffered. 
 
 The Governor's decision was not disturbed. 
 
FANTI LAW REPORT, 7 
 
 KOFI AYAH V. KWEKU BOABIN AND OTHEES. 
 
 April 8, 1871. 
 
 Before Chalmers, Judicial Assessor. 
 
 Stoolholder — Installation — Deposition — Grounds for same. 
 
 Plaintiff's writ was — "for maliciously attempting to 
 deprive plaintiff of the right and use of his ancestors' 
 stool he occupies; and to show cause why you should 
 not be ordered by this Court to cease from making such 
 unlawful attempt." 
 
 Plaintiff states : I had ancestors living at Manpon in 
 the Winneba district, who had a stool, which they suc- 
 ceeded in succession. It got to my turn. Chief Mayan 
 came there and sent for me. He had a table brought into 
 the public place, and writing materials. The names of the 
 slaves were all mentioned. Then Chief Mayan directed the 
 big drums to be beaten, and it was done. On that I was 
 taken into a room, where I saw a stool — that of my pre- 
 decessor. I was placed on it. Nothing was said to me. 
 I objected, and said I did not wish to occupy it, but 
 had been asked to come to Manpon, and had done so. 
 They said to me, the stool belongs to you, take it. So 
 they had me to occupy the stool, and I did occupy it. 
 According to custom, I was shut up in a room for a week. 
 Then on the ninth day I was taken out and carried round. 
 Then two young women were given me to be my wives ; 
 also a little boy as my servant. Chief Mayan directed 
 that I should buy a puncheon of rum, and provide 2 ozs. 
 of gold, a sheep, and four kegs of gunpowder ; which I did. 
 The whole people of the town drank the rum, shared the 
 gold, and killed the sheep. After this. Chief Mayan came 
 to Cape Coast Castle. I could not get the people to attend 
 me ; they were very disobedient. . . . Lately, the people 
 made palaver with me. I came to Cape Coast Castle. 
 They had me before Chief Mayan and said I had called 
 
8 FANTI LAW EEPORT. 
 
 them slaves, and that I had said if Chief Mayan knew the 
 stool was his, he would have taken it. There was palaver, 
 and Chief Mayan decided that I was wrong in calling the 
 people slaves, and that he was offended about the statement 
 made on himself. On that, the people said they would not 
 permit me to occupy the stool. I have made expenses 
 and incurred debt in consequence of occupying the stool. 
 When principal chiefs came, I had to entertain and 
 accompany them at my expense. I do not know whether 
 it is competent to the people of a stool to depose the 
 occupant. Chief Mayan and another placed me on the 
 stool. Chief Mayan's authority consisted in his being of 
 the same tribe as myself, namely, Twidan, the Tiger tribe, 
 and I look on him as my grandfather. Chief Eobertson 
 expresses the opinion on the customary law that — " where 
 a person elected to a stool is deposed by those who put 
 him on it, not on grounds of misconduct, but for mere 
 dislike, he has claim against them for expenses he may 
 have incurred in respect of the stool." 
 
 Judgment. 
 
 It does not appear that Ayah has been deposed by any 
 competent authority. It is ordered that the people of the 
 stool to which he was appointed do pay due respect and 
 obedience to him as the occupant thereof by their own 
 election ; with liberty to them, on showing cause, to a-pply 
 for the removal of the said Kofi Ayah in a lawful and 
 customary form. 
 
FANTI LAW REPORT. 9 
 
 J. H. MIDLEY V. QUAMIN AMEEKIE AND ASSUABA. 
 March 23, 1872. 
 Before Chalmers, Judicial Assessor. ' 
 
 Surety — Production of Principal Debtor — Liability. 
 
 Judgment. 
 
 It is clear that the defendants undertook to produce 
 Kokobin, the principal debtor, whenever called by the 
 plaintiff so to do, in order that he might recover his debt 
 from her. It appears that they were unable to do this, at 
 the expiry of the three months allowed them, and conse- 
 quently the alternative obligation then became of force 
 against them of paying the debt, for otherwise the security 
 they entered into was nothing but a meaningless form. 
 I think therefore that, laying aside even their undertaking 
 to pay the debt, as to which there is some doubt, although 
 strongly insisted on, on the side of the plaintiff, the de- 
 fendants have become liable. They must remember that 
 they have gained the object they had in view, in the 
 liberation of Mensah, and such being the case, it would be 
 unjust that they should refuse to perform their reciprocal 
 obligation. 
 
 [Note. — This judgment not having been satisfied, plaintiff 
 2Iidley brought an action against Mensah, about the year 1895, 
 before Mr. Justice Redwar, when he recovered judgment by 
 consent.] 
 
10 PANTI LAW REPORT. 
 
 EEGINA V. KUOW KINEEBOA. 
 
 Dunguah Camp, January 10, 1874. 
 
 Coram: Adoo, King of Mankessim; Ackinie, King of 
 Arkoonfie ; Tando, King of Gomoah ; Idan, King of 
 Quaman; Essando, Kingoflnkoosookoom ; Assiman, 
 Chief of Ekotsie (Arkoonfie) ; Awool, Chief of Nanatin 
 (Arkoonfie) ; Ampinie, chief of E ddoomafu (Arkoonfie) ; 
 Bentil Kooma, Chief of Amanful ; Sul, Chief of Bracoe 
 (Gomoah) ; Q. Acquaful, Chief of Appam (Gomoah) ; 
 Eppoe, Chief of Whooah (Gomoah) ; Q. Seckerow, 
 Chief of Assin (Gomoah); Q. Akanfoodie, Chief 
 of Assin (Gomoah) ; Ampia, Chief of Gomoahmain ; 
 Quow Esseah, Chief of Obill; Jos. Graham, Chief 
 of Saltpond (Inkusukum) ; Q. Amawoonah", Chief 
 of Quarman ; Q. Agil Krofie, Chief of Oyeldo ; Josiah 
 Myles Abadoo, interpreter. 
 
 Mabshall, Judicial Assessor. 
 
 Q., When you and your people are at war, and engaged 
 with an enemy, is it considered a serious offence if a man 
 deserts, and also, if a man persuades others to desert? 
 And what is the law in such a case ? 
 
 Ans., through Jos. Graham : If a man is convicted of 
 these two offences, the punishment is either of fine or 
 flogging. 
 
 King Adoo : In former days, when the kings had power 
 to behead people, in a serious offence like this the party 
 would be subjected to be beheaded ; but now that the 
 English Government have put a stop to this, the punish- 
 ment is mitigated to fine and flogging. In former times 
 death was the punishment for running away. 
 
 Kiu)w Kineeboa, native of Quarconah, in the district of 
 Aikbmfie, was then charged for that, on the evening of 
 January 2, he advised and persuaded men in the service 
 
FANTI LAW REPORT. 11 
 
 of the present expedition to desert, and for that, in 
 consequence of his doing so, and through his instru- 
 mentality, 23 men did desert. 
 
 Plea, not guilty ; verdict, guilty. 
 
 On this verdict the Judge (Jas. Marshall) retired to 
 consult with Col. Pesting, and returned to ask the chiefs 
 how the power of punishing warriors, who deserted, with 
 death had been taken away by the English Government. 
 
 King Adoo : We have not an instance on record like 
 this, but as the Government has put a stop to our behead- 
 ing people, we infer that this is included. The prohibition 
 was issued in Sir Charles Macarthy's time, and since then 
 no sentence of death has been carried out by us. 
 
 King Idan: The offence is not desertion, but per- 
 suading others to desert ; and all we have to say to the 
 prisoner not being sentenced to death is that, since Sir 
 Charles Macarthy's time, sentences of death have not been 
 passed by us. 
 
 EEGINA V. CUDJOE MENSAH. 
 
 Dunguah Camp, January 16, 1874. 
 
 Coram: James Marshall, CM. and A., and Tando, 
 Ghartie, Solomon, Idan, Ackinie, Essando, Kings. 
 
 Gvdjoe Mensali, of Mampon (Gomoab), was then charged 
 with desertion, persuading and causing 27 other men also 
 to desert. 
 
 Plea, not guilty ; verdict, guilty. 
 
 Sentence. January 19, 1874. 
 
 Cudjoe Mensah, you have been found guilty of the 
 crime of desertion from the service of the British Army 
 when fighting against the enemies of your own country. 
 When that army was fighting for you and your family, for 
 your croom and your country, you ran away rather than 
 carry food for the soldiers. What makes it worse, you were 
 
12 FANTI LAW REPOET. 
 
 engaged as a headman over others, all of whom also deserted. 
 The punishment for running away from before the enemy is 
 the same in your own native laws as in those of the army 
 in which you had the honour to hold a useful and responsible 
 position. That punishment is death. The sentence of the 
 Court, therefore, is that you be put to death at such time, 
 place, and in such manner as his Excellency the Governor 
 shall direct, and that, in the meantime, you be imprisoned 
 in the military prison of this camp until his Excellency's 
 pleasure is made known. 
 
 EEGINA V. KUACOE ESSEL. 
 
 Criminal Assizes. 
 
 April 24, 1877. 
 
 Fetish practices — Possession of Noxious Medicines. 
 
 Accused was charged with being found in possession of 
 fetish and other noxious medicines with intent thereby 
 to poison, endanger, and injure the people of Cape Coast 
 Castle. 
 
 Plea, not guilty. Verdict, guilty. The Court fined 
 prisoner twenty shillings, or fourteen days' imprisonment 
 with hard labour, and ordered the said fetish and medicines 
 to be publicly burnt, the prisoner being warned not to repeat 
 his fetish practices under heavy punishment. According to 
 Chief Eobertson — "in the time of Governor George Maclean, 
 a person found to be in possession of these (i.e. Adadi, 
 Kakun, which is the upas tree, etc.) poisonous medicines, 
 was sentenced to a long term of imprisonment, and publicly 
 flogged round the town once a week. From 1841 to 1847 
 persons discontinued keeping bad medicines and fetishes. 
 From 1851 they commenced again to collect them at Cape 
 Coast; and in the time of Governor Bannerman, when 
 certain persons were charged with an attempt to destroy 
 the lives of Mr. Blankson and other Christians by means 
 
FANTI LAW REPORT. 13 
 
 of poisonous medicines by burying them. at the gate of the 
 person whom the medicines are intended to affect, which 
 cause a swelling of the feet, bring on other diseases, which 
 end in death. 
 
 " In other instances the poison is given privately to the 
 servant of the person to introduce into his master's food, 
 the servant being bribed so to do. In the case I refer to, 
 the accused was brought before the Court ; the charge was 
 heard by the Governor, the chiefs of Cape Coast Castle, 
 with kings and chiefs of other places. Mr. Cruickshank 
 was the Judicial Assessor. Accused was found guilty, and 
 sentenced to be imprisoned and flogged." 
 
 KUACOE KOOM v. OWEA AND KUDJOE TAINEE. 
 
 July 21, 1878. 
 
 Before Marshall, J. 
 
 Jurisdiction of Native Courts— Object of Supreme Court. 
 
 Plaintiff, of Mampon, in Denkera, claims property from 
 defendants. It is at Sooberesoo, three days from Mampon. 
 It is called Sisa-Ansah. I had four houses on it, broken 
 by the Asantis. The land belonged to my predecessors. I 
 succeeded them. 
 
 Judgment. 
 
 This is a case which ought, in the first place, to have 
 been taken before the King of Mampon for his decision. 
 The Supreme Court is not intended to supersede the 
 authority of the kings and chiefs. As this has not been 
 done, I shall uphold the opinion of the King given in the 
 evidence of. his messenger, and give judgment that the 
 land in dispute belongs to the plaintiff, and the defendants 
 are not to interfere with it, and defendant Tainee is to bear 
 the costs of this action. 
 
14 PANTI LAW REPORT. 
 
 FULL COUET. 
 
 ANNOTAY AND AFFOOTU v. AGINFEAM. 
 
 March 31, 1881. 
 
 Before James Marshall, C.J., and W. J. Smith, J. 
 
 Practice — 8.C.O., 1876, Order xliii. — Review to he ly same Judge 
 giving Decision, and ly none else — Appeal. 
 
 Judgment. 
 
 In this appeal the appellants seek to have the entire 
 proceedings in the cause Aginfram v. Annotay and Affootu, 
 heard by Mr. Justice Macleod as Acting Chief Justice, and 
 decided by him on September 4, 1880, set aside as illegal 
 and void. 
 
 The appellant Affootu is King of Pram-Pram, and 
 Annotay is one of his principal chiefs. The respondent is 
 a chief of the adjoining tribe of Lartey. 
 
 In the latter part of 1879 there existed a dispute 
 between the Pram-Prams and Larteys as to the right to 
 certain boundary land, which very nearly ended in a fight 
 between the two tribes, and led to all the parties in the 
 present appeal being prosecuted by the Queen's Advocate, 
 Mr. Woodcock, for riot. 
 
 They were tried on the charge of riot on January 26, 27, 
 and 28, and eventually pleaded guilty, when Affootu and 
 Annotay were fined, and Aginfram bound over to keep the 
 peace, as the Queen's Advocate interceded strongly in his 
 favour. 
 
 The civil action was commenced in March, 1880, and 
 was adjourned to April 10, and again to May 12, entirely 
 to suit the convenience of Mr. Woodcock, the plaintiffs' 
 counsel. 
 
 On May 12 the case came on for hearing, when it was 
 
FANTI LAW EEPORT. 15 
 
 mutually agreed that Mr. Jones, assistant surveyor, should 
 be requested to examine and report on the matter in dispute. 
 Mr. Woodcock voluntarily undertook to obtain the necessary 
 leave from the Governor for Mr. Jones to do this, and each 
 party was told to have persons in readiness to go with him, 
 and give him all necessary information. 
 
 Up to nearly the end of June nothing had been done by 
 Mr. Woodcock, and he left his clients and went to Lagos 
 without any communication with the Court as to the course 
 to be pursued with regard to the case, and without taking 
 any steps to obtain the leave of the Governor for Mr. Jones 
 to go to survey the land, which he had undertaken to do. 
 Kepeated applications were made by his clients for some- 
 thing to be done, and the Chief Justice, being about to leave 
 for England, considered it his bounden duty not to leave 
 this case undecided, as it had been kept hanging on since 
 March to suit Mr. Woodcock's convenience, causing great 
 expense to the parties, and keeping up ill feeling between 
 them. 
 
 Accordingly, as the Governor was then absent, the Chief 
 Justice took upon himself the responsibility of asking Mr. 
 Jones to proceed to the disputed boundary, and on June 28 
 he made the following order : — 
 
 "By consent of both parties I appoint Mr. Jones, 
 assistant surveyor of works, to proceed to the land in 
 dispute between these parties, and to obtain such evidence 
 as he can as to what is the proper boundary between the 
 lands of Lartey and Pram-Pram. 
 
 " Mr. Jones is also to view the land, and to form his 
 own opinion, and to report to the Court. 
 
 "Mr. Jones's costs and expenses will be costs in the 
 cause." 
 
 Mr. Jones proceeded to the land, and acted according 
 to the order, making a written report and a plan of the 
 ground. 
 
 On July 6 this report and plan were made part of the 
 proceedings, and as Mr. Woodcock had not in any way 
 
16 FANTI LAW EEPOET. 
 
 communicated with the Court about the case previous to 
 his leaving for Lagos, judgment was given. 
 
 The judgment was in favour of the defendants, the 
 present appellants, with costs, which were duly taxed and 
 allowed. 
 
 On August 17 a notice was filed by Mr. Woodcock that 
 the Court would be moved, not on a certain day, but on 
 the 19th, "or so soon thereafter as Counsel can be heard," 
 that the judgment delivered on July 6 should be "set 
 aside, and the case heard and determined on its merits." 
 
 This notice was served on Mr. Bannerman, the counsel 
 for the defendants, on the 19th, and on August 27 it was 
 heard ex parte, and an af&davit of Aginfram's read, of which 
 no copy was served on Mr. Bannerman. 
 
 This notice contains very grave charges brought by Mr. 
 Woodcock against Mr. Jones, the Government surveyor, in 
 distinct contradiction of the opinion given of his services 
 by the Chief Justice, but neither he nor the present appel- 
 lants were heard, and an ex parte order was made by the 
 Acting Chief Justice, dated August 27, " that the judgment 
 pronounced in this case on July 6 in favour of the defendants 
 be set aside, and the cause be reheard." 
 
 On August 31 the cause was reopened, and evidence 
 taken, although Mr. Jones, who had been appointed, with 
 the consent of both parties, to obtain evidence upon what 
 is the proper boundary between Pram-Pram and Lartey, 
 was absent at Elmina, and had no opportunity given him 
 of answering the imsupported charges made against him 
 by Mr. Woodcock. Nor, so far as appears by the record, 
 was Mr. Jones's report, which had been made part of the 
 proceedings by the Chief Justice, read. 
 
 On September 4 the Acting Chief Justice, Mr. Macleod, 
 "reversed" the judgment of the Chief Justice, which he 
 had already " set aside" by the order of August 27, and 
 gave judgment against the defendants, with £5 damages, 
 and costs, which amounted to £138 10s., to which another 
 item of £8 6s. was afterwards added. 
 
FANTI LAW REPORT. 17 
 
 In consequence of this second judgment, the King of 
 Pram-Pram and his people have heen driven out forcibly 
 from land which was declared to be theirs by a judgment 
 of the Divisional Court which has never been appealed 
 against, and have not only lost the costs allowed them by 
 the Court, but have been compelled by writ of fieri facias 
 and the seizure of their property to pay £144 16s. as costs. 
 
 Mr. Bannerman asked for leave to appeal, but the con- 
 ditions laid down were such that his clients found it 
 impossible to comply with them and had to submit. 
 
 Without any doubt or hesitation on our part we decide 
 that no Judge or Commissioner of Court can set aside a 
 judgment of another Judge or Commissioner by any order 
 of Court, still less by an order made on an ex parte 
 application. 
 
 Moreover, in this case the order was made on a motion 
 £x parte, and the case set down for rehearing before the 
 lapse of the seven days within which by Eule 12, Order 
 xxviii., Supreme Court Ordinance, the party affected by it 
 may apply to the Court to vary or discharge it. Although 
 we are of opinion that Mr. Bannerman waived this point 
 we think it right to allude to it. 
 
 We are equally of opinion that a Judge or Commissioner 
 of Court cannot rehear cases heard by other Judges or 
 Commissioners, and reverse their decisions, which is the 
 function of the Court of Appeal solely. 
 
 When a judgment has once been delivered, there are 
 -two ways and two only pointed out by the Supreme Court 
 ■Ordinance in which that judgment can be varied or reversed. 
 First, under Order xliii. a Judge or Commissioner may 
 under certain circumstances review any judgment or de- 
 cision given by him, but not by another, and this application 
 must be made not later than fourteen days after such 
 judgment. The other mode is that pointed out in Order 
 liii., namely, by appeal. Neither of these two methods 
 having been adopted in this case, the Acting Chief Justice 
 iad no jurisdiction to rehear the case in the way he did, 
 
 c 
 
18 FANTI LAW EEPOllT. 
 
 and therefore the order made by him on August 27, by 
 •which he set aside the judgment pronounced on July 6, is 
 illegal and therefore null and void, and the judgment 
 delivered by him on September 4, and by which he reversed 
 the judgment of the Chief Justice, is also illegal and there- 
 fore null and void. 
 
 If the plaintiff in the first action considered he was un- 
 justly or wrongfully treated, his remedy was by appeal tO' 
 the Full Court. 
 
 The entire proceedings in the second action are set 
 aside, and the original judgment remains, with the costs 
 allowed against the plaintiff. 
 
 But although this is the judgment of the Court we are 
 unable to ignore the great difficulties which have arisen 
 through Mr. Bannerman joining in these illegal proceedings 
 instead of protesting against them and withdrawing his 
 clients from them. Had he done so it is scarcely possible 
 that his clients could have been treated as they have been. 
 There is also the danger of disaffection and riot if the Full 
 Court enforces its judgment after all that has taken place. 
 
 Whilst therefore we are of opinion that the appellants 
 are entitled to the costs allowed them by the original' 
 judgment, as well as to the land declared to be theirs, we 
 think it desirable not to enforce the restitution of the land 
 to the rightful owners until the circumstances are brought, 
 under the notice of His Excellency the Governor, who has 
 direct authority over the chiefs of the country, and may be 
 able to settle the boundary dispute more easily, than the- 
 Court can, after the high-handed and illegal proceedings,, 
 which have taken place under its authority. 
 
FANTI LAW EEPORT. 19 
 
 FULL COURT. 
 
 QUAMIN OFOLI, KING OF AQUAPIM v. THEOPHILUS 
 ANDEESON. 
 
 April 1, 1881. 
 
 Before James Marshall, C.J., and W. J. Smith, J. 
 
 King's Jurisdiction — Taking Oath — Enforcing Judgment of Local Court. 
 
 Judgment. 
 
 This is an appeal by the defendant against the judgment 
 of Acting Chief Justice Macleod, delivered December 4, 
 1880, awarding the plaintiff £54 4s. damages and ordering 
 him to pay 250 dollars in addition. 
 
 The action was brought to recover damages for an 
 alleged assault, and there was also a claim by way of con- 
 sequential damages for a sum of 250 dollars lost by plaintiff, 
 as he alleged, in the course of the assault. 
 
 The defendant is the King of Aquapim, in whose Court 
 the plaintiff had had a case on appeal, and which had been 
 decided against him. According to his case, as proved in 
 the Court below, whilst on his way to Accra to appeal from 
 the king's decision he was seized, dragged back to Akropong 
 by the king's order, and assaulted by the king himself. 
 It appeared to the Appeal Court, that the action of the king 
 required further explanation, and therefore additional 
 evidence was allowed to be called. 
 
 From this it appeared, that the plaintiff having taken 
 the king's oath, was liable to pay a certain sum, when the 
 decision of the King's Court was given against him. He 
 stated his intention of appealing to the Court at Accra, and 
 therefore he was not forced to pay. Two months elapsed 
 and he had not started for Accra, and on the king sending 
 a messenger to him, he sent back word to say he was sick. 
 On the same day the king heard of his being on the way to 
 
20 PANTI LAW EEPORT. 
 
 Accra, and he sent messengers to bring him. He was 
 brought, and remained at Akropong for two days, on each 
 of which, he appeared before the Court of the king and 
 chiefs. During this time, he made no complaint of having 
 been assaulted or robbed. The king remitted the sum the 
 plaintiff was liable to pay him, on the plaintiffs father 
 interceding for him. It was not until he had left Akropong 
 that he made any demand for money lost, and the king at 
 once refused to recognize any claim upon him. 
 
 This occurred on August 31, and no action in the 
 Supreme Court to recover the money and damages was 
 brought until November 19. 
 
 We are of opinion, that the king in all that was done by 
 him was acting within his authority as a native king, and 
 having taken all the facts of this case into careful con- 
 sideration, we see no reason for holding that any assault 
 by the defendant has been proved for which he (the king) 
 can be made liable in damages. 
 
 As regards the loss of the money, it is sufficient to say, 
 that even if the king could be legally made liable for it, 
 that the loss appears to us not to be satisfactorily proved. 
 
 The judgment is therefore reversed with costs in both 
 actions. 
 
 FULL COUET. 
 
 HALLIDAY, DAVIS TEUSTEE v. ALAPATIEA. 
 
 Lagos, April 20, 1881. 
 
 Before J. Makshall, C.J., Hectoe Macleod, J., 
 W. J. Smith, J. 
 
 On a point of law an appeal can lie at any reasonable 
 time after final judgment, in spite of S.C.O., 1876, Order 
 Iviii., rules 9, 10 & 11. 
 
 Mr. G. Williams applied for leave to appeal in the 
 case of Halliday Trustte, etc. v. Alapatira, on the grounds 
 
FANTI LAW EEPORT. 21 
 
 pointed out and terms laid down in the judgment delivered 
 by the Chief Justice in dismissing the appeal. 
 
 Leave granted, Mr. Justice Macleod dissenting. 
 
 Mr. Justice Macleod's opinion : — In this case judgment 
 was given against the defendant in the Divisional Court 
 of the Eastern Province on July 9, 1880, and now on 
 April 20, 1881, the defendant comes to this Appeal 
 Court and craves leave to appeal against the judgment of 
 July 9, 1880. 
 
 In the consideration of this application it is important 
 to construe sections 9, 10 & 11 on page 82 of the Supreme 
 Court Ordinance. Section 11 says, " after six months 
 from the date of a decision on the merits, application for 
 leave to appeal shall not be entertained by the Appeal 
 Court." 
 
 The question at once suggests itself. Was this judg- 
 ment of July 9, 1880, a decision on the merits ? The 
 answer seems to me very clear. Proof as to certain im- 
 portant facts was led in the case. The Court below then 
 considered that evidence, and in the judgment applied the 
 law to the facts which it found proved. If this is not a 
 decision on the merits, it rather appears to me that there 
 never can be such a thing as a decision on the merits, and 
 if so, the time within which an appeal may be granted is 
 practically unlimited. 
 
 Either the Court below or the Court of Appeal may at 
 any time grant leave to appeal in every imaginable case, 
 if this be not a decision on the merits. That appears to 
 me rather startling, and I admit I am hardly prepared to 
 give my sanction to such a construction. It was evidently 
 the intention of the legislature that the time for appeal 
 should be very strictly limited, and sections 9, 10, & 11 
 have, to my mind, done so very effectually. The title to 
 property in the Eastern Province is not very stable, or 
 secure at the best, and if we interfere with the security 
 which the lapse of the time laid down in these sections has 
 heretofore created in the minds of holders of property, we 
 
22 FANTI LAW REPORT. 
 
 do a serious injury to the community at large. In this 
 particular case parties were not agreed upon the facts of 
 the case, and accordingly proof was led and a decision was 
 then given on the whole merits of the case. When this 
 matter was alluded to by counsel at the last sitting 
 of the Pull Court, I fancied that they were misled by 
 having in their minds an appeal on the merits. I can 
 very well imagine an appeal which is not an appeal on the 
 merits, but imagination fails me when I try to picture the 
 probable aspect of that hitherto unwitnessed phenomenon 
 — a final decision in a suit which is not a decision on the 
 merits. 
 
 I am very clear that my judgment in this case was a 
 decision on the merits. 
 
 I may take this opportunity to express my opinion, 
 that on a true construction of sections 9, 10, & 11, there 
 is a contrast drawn between an interlocutory decision and 
 a decision on the merits, and that all decisions which are 
 not interlocutory were by the legislature intended to be, 
 and have been made, decisions on the merits. 
 
 Nothing can to my mind be more disastrous to the 
 prosperity of this community and the security of property 
 than for us to hold on this case that we have power 
 now to grant this applicant leave to appeal, because it will 
 shatter a confidence which has hitherto been unskaken. 
 
 I am aware that my two colleagues differ from me in 
 this matter, and therefore my opinion will have no 
 practical effect. Still I think it right that it should be 
 recorded. 
 
 I am very clearly of opinion that we have no power to 
 grant this applicant leave to appeal. 
 
FANTI LAW EEPORT. 23 
 
 FULL COUET. 
 
 SARAH CHEETHA:\I v. EGBERT BANNEEMAN. 
 
 December 27, 188L 
 
 Before James Marshall, C.J., and Bailey, J. 
 
 Slander— Vulgar abuse — Thief— Prove of Special Damage— Bill of 
 Costs — Improper charges — District Commissioners ignorant of Law 
 — S.G. 0., 187G, Order viii., rule 8. 
 
 Appeal from decision of District Commissioner, Accra. 
 
 Mr. J. Bannerman for respondent addressed the Court, 
 on the grounds of appeal lodged by appellant, and argued 
 on the case, after the grounds of appeal had been read out 
 by the Kegistrar. 
 
 The appeal is allowed and the judgment of the Court 
 reversed and the bill of costs disallowed. The costs of 
 appellant allowed. 
 
 The judgments of the Court were not written but were 
 delivered at the hearing. The following notes were made 
 afterwards by the judges — 
 
 Judgment of Mr. Justice Bailey : — 
 
 This appeal is brought by Mrs. Cheetham, the defendant 
 in the Court below, against a decision of the District Com- 
 missioner awarding £10 damages in an action brought 
 against her by the respondent for slander. The judgment 
 was for the amount above-mentioned, and costs which were 
 subsequently taxed at £11 lis. lOd. 
 
 The grounds of the appeal are — 
 
 1. That inasmuch as a criminal prosecution had been 
 commenced by the appellant against the respondent which 
 had not been adjudicated upon at the time when the civil 
 action was tried the judgment in the civil action was 
 invalided. 
 
 2. That the damages were excessive. 
 
 3. That the granting costs was illegal. 
 
 4. That such costs were exorbitant and unwarrantable. 
 
24 FANTI LAW EEPOBT. 
 
 As already intimated to Mr. Bamierman in the course 
 of his argument, I am of opinion, that the first ground 
 utterly fails. 
 
 It is quite true, that when a plaintiff in a civil action 
 has a criminal remedy for the same offence, he cannot 
 prosecute his civil action, until a criminal prosecution has 
 been instituted, and sentence obtained against the defen- 
 dant, but this is not the case here. 
 
 On the merits however I am of opinion, that the 
 appeal must be allowed (or rather the Court of Appeal 
 being now seised or in possession of the whole case) that 
 judgment must be entered for the appellant. 
 
 At the trial the plaintiff proved that the defendant in 
 the presence of several persons called him a " thief; " but 
 he did not prove, nor did he attempt to prove, what I hold 
 it was necessary that he should prove, viz. either that this 
 term was applied to him in his profession or business ; or, 
 that he had suffered special damage therefrom. But says 
 his solicitor, " It was not necessary to do either of these 
 things, because the defendant accused the plaintiff of an 
 indictable offence." I fail altogether to see that she did so. 
 To call a man in the heat of discussion a thief, without 
 more, is no accusation of the commission of an indictable 
 offence, unless the defendant goes on to specify, at the 
 same time, some particular act of theft which the plaintiff 
 has committed. 
 
 Nothing in the plaintiff's evidence, nor in the evidence 
 of his witnesses, shows that the defendant did this. On 
 the contrary, they only speak to the fact that the word 
 "thief" was uttered by the defendant of and to the 
 plaintiff, in the presence of several persons. But the 
 respondent's advocate referred the Court to the evidence of 
 the defendant on her cross-examination, in which she 
 stated, that she did call plaintiff a thief and stated that 
 she could prove certain acts of theft which she then, that 
 is, at the trial, went on to specify. But apart from the 
 fact, that at the close of the plaintiff's case, the District 
 
FANTI LAW EEPORT. 25 
 
 Commissioner should in my opinion have at once given 
 judgment for the defendant, and not permitted her to go 
 into the witness-box at all, it is perfectly clear to my mind, 
 that the fact that at the time of the trial the defendant 
 specified certain acts of alleged theft on the part of the 
 plaintiff cannot in any way alter or add to the value or 
 force of the words used at the time of the alleged slander. 
 And that though had she specified certain acts of theft at 
 the time when she called the plaintiff " a thief " an action 
 would undoubtedly have laid, the specification of those 
 acts on a subsequent occasion, cannot be taken in con- 
 junction with words not actionable in themselves, uttered 
 on a previous occasion, and for uttering which the action 
 was brought ; and the reason is obvious, for in an action 
 for slander, damages are awarded to the plaintiff in respect 
 of the injury or indignity which he has suffered by reason 
 of the words, which are the subject-matter of the action. 
 If on a subsequent occasion other words are uttered, 
 which are not protected (as are words uttered in the 
 witness-box) a further action can be brought, but the 
 torts or injuries are entirely distinct and so likewise must 
 be the remedies. 
 
 Having said thus much, it is hardly necessary for me 
 to say anything upon the other grounds upon which this 
 appeal is based, further than, that I am of opinion, that 
 the action of the District Commissioner in allowing costs 
 of the plaintiff's solicitor, without entering his reasons for 
 so doing on the minutes, was clearly in contravention of 
 Order viii., Kule 8, of the 1st Schedule of the Rules of Civil 
 and Criminal Procedure, and would have been of itself a 
 sufficient ground of appeal. 
 
 There remains only the fourth ground of appeal upon 
 which, Mr. Bannerman, in the exercise, as I think, of a 
 very wise discretion, declined to say anything. I how- 
 ever feel bound to say a word or two upon the subject. 
 The very first item in this strange document which I hold 
 in my hands, and which is headed in this suit " Bill of 
 
26 FANTI LAW KEPORT. 
 
 costs for the plaintiff," but bears the name of no solicitor, 
 is a sum of two guineas for instructions to sue ; the second, 
 " Drawing instructions for writ of summons." 
 
 Now, both these items are for services (valuable services, 
 <loubtless) rendered to the plaintiff before the action was 
 commenced, and could therefore in no way be costs, with 
 which an unsuccessful litigant could be saddled. The next 
 items upon which I feel called upon to offer some remarks 
 are two items entitled respectively — 
 
 " Instructions for brief £2 2s. 
 
 " Drawing same and fair copy ... £1 Is." 
 
 Now, a Mr. Eichards, I understand, appeared for the 
 plaintiff", and is a solicitor receiving instructions direct 
 from his client, and has therefore no right either to receive 
 or charge for instructions for a brief, which had, or at any 
 rate ought to have had, no existence. The same observa- 
 tions apply to drawing and making a copy of this precious 
 " brief," which I should much like to have had an oppor- 
 tunity of seeing. 
 
 With regard to the charge made of four guineas for two 
 attendances in Court, all I can say is, that were it neces- 
 sary for the Court to review the taxation of this bill, I 
 should have no hesitation in reducing the amount by half 
 that sum. 
 
 The charge of drawing the bill of costs, viz. 10s. Qcl., 
 is excessive, whilst the fee of 6s. 8cl. for attending the taxa- 
 tion is one which would be disallowed, as, unless required 
 to do so, solicitors in this Court are not, I am informed, 
 permitted to attend taxation. 
 
 I need not go further into this matter, however, but 
 will only say that I hope a revised scale of fees similar 
 to that which obtains in the County Courts in England will 
 shortly be published. 
 
 My opinion is that the judgment of the Court below 
 should be reversed and judgment entered for the 
 appellant. 
 
FANTI LAW REPORT. 27 
 
 Judgment of the Chief Justice : — 
 
 It is unnecessary for me to say much, as I agree with 
 all that has been said by my brother Bailey, and my 
 present state of health does not allow of much exertion on 
 my part. 
 
 I am exceedingly glad to have had an opportunity of 
 obtaining the assistance of Mr. Justice Bailey in this case, 
 and I am sure it will assist me much in my endeavour to 
 promote legality in the Commissioners' Courts. I hope 
 also that this case will be a warning to solicitors against 
 taking advantage of the ignorance of law in District Com- 
 missioners as well as in illiterate suitors. 
 
 This is the second appeal which has come before me 
 this year, in which the same solicitor has endeavoured to 
 prove his case for the plaintiff by the evidence of the defen- 
 dant, when he had proved no case of his own. 
 
 In this suit of Bannerman v. Cheetham, I know from 
 the District Commissioner's own statement of the case, 
 that he considered he had the law quite clear, and that it 
 was unnecessary for the plaintiff to prove any special 
 damage, as the defendant had accused him of an indictable 
 offence in calling him a thief. 
 
 An indictable offence is an offence on which a man can 
 be indicted. If a man were placed before me at the bar, 
 and by the indictment was charged with being a thief, all 
 I could do would be to say to the jury, " Gentlemen, this 
 man is charged with being a thief, which is no charge on 
 which he can be tried," and the case would be dismissed. 
 
 If he were charged with having stolen certain property, 
 of course he could be indicted ; and to charge a person with 
 having stolen property is certainly a slander, for which no 
 special damage can be proved. 
 
 In this case the words were " you are a thief," words 
 of abuse uttered in anger and excitement which are not 
 actionable unless consequent damage can be proved. 
 
 No damage whatever was proved in this case, and the 
 appeal on that account must be allowed. 
 
-iO FANTI LAW KEPOBT. 
 
 With regard to the costs allowed, they are clearly illegal 
 by Eule 8, Order viii., 1st Schedule of the Supreme Court 
 Ordinance, as no reasons for their being allowed are 
 stated on the minutes, nor can I imagine what reasons 
 for allowing them could have been stated. 
 
 With regard to the exorbitant items of the bills of costs 
 allowed, I need add no more to what has been said by my 
 brother Bailey, than that I heartily agree with him. 
 
 The judgment of the Lower Court is reversed, with 
 costs in the action and in the appeal. 
 
 FLETCHER v. BOEDOH. 
 
 October 20, 1882. 
 
 Before Lesingham Bailey, C.J. 
 
 Libel — Letter written from the Dictation in Fanii of an unlettered Man. 
 
 The alleged libel in the letter was — " I see jou that 
 you are a regular thief indeed that you can sell four casks 
 of rum, and then say all of the money was in debt." 
 Defendant declared that Peter Brown wrote the letter at 
 my dictation. I cannot write. I did not tell him to call a 
 thief, but that she would be acting thievishly if she did not 
 pay what she owed me. 
 
 Judgment. 
 Nonsuit. 
 
 ESABEA V. TAKIWA AND MAETIN. 
 
 September 24, 1883. 
 
 Before Heotoe Macleod, J. 
 
 Ejectment — Acts of Ownership — Long Possession — Observance of 
 Annual Custom — Hight to Treasure- Trove — Bight to Appeal where Land 
 is less than £50 in value. ' 
 
 Judgment. 
 
 The plaintiff seeks in this action to recover a portion 
 of land called Tigafool, near the village of Amanfool, which 
 
FANTI LAW REPORT. 29 
 
 land, he says, has descended to him from his ancestors. 
 A previous action, between the same parties on the same 
 cause, came on for hearing before Mr. Justice Jones, and 
 as will be seen from my previous notes in this case, it is 
 the merest accident which has entitled the plaintiff to 
 indulge in the luxury of this second action. I have done 
 everything in my power, to prevent any doubt, as to the 
 identity of the land in dispute, as spoken to by the parties 
 and their witnesses, and with that object in view, before 
 any evidence had been taken, I went round the boundaries 
 (so far as that was practicable) along with the parties and 
 their witnesses. After that had been done, the first day's 
 evidence was taken on part of the land in dispute. I am 
 therefore certain, that the various witnesses have been 
 speaking of the same land, and its boundaries may be 
 described in the following way. A person, who desired to 
 walk along these boundaries, might start from a point in 
 the new street opposite Crawford's house near the village, 
 and with his back to the village, proceed along the path, 
 until he came to the junction of that path with the 
 Coomasie Eoad, when he would turn to the right and 
 follow the Coomasie Eoad, until he came to the boundary 
 of Mr. Sam's land, from which boundary (Sam's) he would 
 proceed along, until he arrived at the ridge of the hill, at the 
 head of which Amanfool lies, when he would walk along the 
 ridge of that hill until he came in a line with the position of 
 tamarind trees on the slope of the hill, one of which still 
 stands and the other of which is said to have been cut 
 down by Mr. Martin. He would then proceed along that 
 line, until he reached the tamarind tree which still stands, 
 when he would proceed in a straight line that runs along 
 the pathway which lies between Mrs. Martins family house 
 and the house of one Effua Mansah, and then along a 
 similar pathway which lies between the house of a woman 
 Amissah and Akroma's house, he would then again find 
 himself in the new street, and if he then return along the 
 new street to the point from which he started, he would 
 
30 FANTI LAW EEPOET. 
 
 have completely traversed the boundaries of the land in 
 dispute. In the absence of a plan, I am unable to devise 
 a shorter description. In proceeding to consider the rights 
 of the parties to this land, it is important in the first place 
 to observe that the defendant is in actual possession. 
 Further the evidence for the defence establishes these im- 
 portant facts : — 
 
 (a.) That the defendant has been in j)ossession for the 
 
 last twenty-six years ; 
 (b.) That during that time, she has exercised over the 
 land many important and public acts of ownershij). 
 (c.) That before the defendant, this land was in pos- 
 session of Abah Kessi and Quacoe Quentor, who 
 were respectively the mother and uncle of the 
 defendant ; 
 (d.) That before those two, this land was in possession 
 
 of their uncle Krasi. 
 I have no hesitation in calling that a strong and 
 substantial ease for the defendant. 
 
 Now, what is the nature of the case, which plaintiff 
 presents, and upon the strength of which, he asks me to 
 oust the defendant ? 
 
 First. — He says, that his brother Cofiie Atta worked 
 upon parts of this land, and in support of that statement, 
 he called several witnesses who contradicted him and 
 each other so alarmingly, that I began to have serious 
 doubts whether such a man as Coffie Atta had ever been 
 on the land at all. However, these doubts were removed 
 by the evidence of Mr. Martin, one of the principal 
 witnesses for the defence, who told me : — 
 
 1. That he had seen Coffie Atta, plaintiff's brother, 
 work upon this land ; and 
 
 2. That he had heard Quacoe Quentor, defendant's 
 uncle, give him leave to do so'; that therefore completely 
 disposes of the first part of the plaintiff's case ; and only 
 one other remains. 
 
 Secondly. — Plaintiff says, that his ancestors built a 
 
FANTI LAW EEPOET. 81 
 
 house upon the land in dispute, and buried their dead 
 there. Well, the foundations of an old house have been 
 found there, and human bones have been dug thence ; but, 
 for the sake of argument, let me admit the legal value of 
 the house and the bones as evidence of title; How does the 
 plaintiff propose to prove that that was the house of his 
 ancestors and these their bones ? Plaintiff has his answer 
 ready. My ancestors made custom for the dead upon the 
 very spot, where these bones have been found. I would 
 have been inclined to attach very considerable weight to 
 that answer, had the evidence in support o: it been 
 reasonably consistent. Unfortunately for the plaintiff, the 
 evidence which he led on this point is far from satisfactory. 
 Apparently, there is now no one living, who presided at 
 such a custom, and those who came forward to say that 
 they had seen the ceremonies or assisted at them, contra- 
 dicted each other on the most important particulars ; while 
 the witnesses for the defence denied the existence of any 
 such custom, on any part of this land by the plaintiff's 
 ancestors. The plaintiff's case then had two proofs. The 
 first has been cut away by Mr. Martin, and the second is 
 so shadowy that I cannot grasp it. 
 
 In the consideration of this case, I have been assisted 
 by Chief Robertson and Chief Coffie Yamey, but no point 
 of native law has arisen upon the proof with reference to 
 which I have required their assistance, though as a matter 
 of courtesy I asked them to favour me with their opinion 
 upon the facts of the case. Chief Coffie Yamey gave a 
 response worthy of the Delphic oracle ; and Chief Eobert- 
 son was, I think, somewhat led astray by the mysteries 
 attached to the bones, the grease-pot, the nuggets, and the 
 beads, for he gave it as his opinion, that the plaintiff had 
 prevailed. 
 
 Judgment for the defendant with taxed costs; and I 
 order the bones, grease-pot, and beads, to be again com- 
 mitted to the earth whence they have been dug. I am a 
 little at a loss what to do with the nuggets. They ought 
 
32 FANTI LAW REPOET. 
 
 also to be recommitted to the earth, but that would not be 
 safe. In England, they would, I think, in such a case 
 belong to the Crown, though there such a case could 
 hardly arise. In the meantime I think Crawford had 
 better keep them. In case claimants appear an intima- 
 tion will be made to the Crown, in case it should see fit to 
 present a claim. 
 
 After the judgment had been delivered plaintiff asked 
 for leave to appeal, but this application was refused in this 
 respect that plaintiff stated in his evidence that the land 
 claimed was only worth d620. 
 
 ASUMANBA v. OBBU. 
 
 September 29, 1883. 
 
 Before Hectoe, Macleod, J. 
 
 Chiefs Court — Jurisdiction — Effect of Judgment of Native Tribunal — 
 i?es judicata — Practice. 
 
 Judgment. 
 
 All the lands claimed in this action by Asumanba, 
 except Brogua Ekir, were the subject of a palaver before 
 the King of Abakrampa between the same parties, who are 
 now in this action. This palaver was held for the king 
 by Nakuwa, and Prince Sam was the chief adviser, and 
 Prince Sam has told us, that in that palaver, Obbu claimed 
 the lands round the ruined village of Motoo, being Poprodo, 
 Motoo Ekron, and others whose names he does not 
 remember. The king, by Nakuwa, heard parties, and 
 decided that these lands belonged to Obbu, and ordered 
 his captain Nakuwa to put Obbu in possession. 
 
 On evidence I am satisfied that Asumanba voluntarily 
 submitted the decision of the case to the king. Then 
 followed the obstruction by Asumanba and the fetish oath. 
 Unfortunately Nakuwa is ill and cannot be obtained for this 
 
FANTI LAW KEPORT. 33 
 
 case. Obbu himself mentions as the lands which the king 
 through Nakuwa declared to be his: (a) the lands of Motoo, 
 (h) Poprodo, (c) Ekron. 
 
 This Court met the parties on the land now claimed 
 upon the 27th inst., and Asumanba pointed out the six 
 different lands which she now claims. This was done in 
 the presence of the parties, so that there can he no doubt, 
 that the witnesses speak of the same lands, though they 
 may not agree upon the names of them. Unfortunately, it 
 is impossible to guide my successor in any way, by attempt- 
 ing any description of these lands. 
 
 The plaintiff claims six lands, whose names are given 
 in the summons, and she pointed out what she meant by 
 each of them. I am satisfied that, with the consent of 
 Asumanba, the King of Abakrampa heard a palaver, by 
 Nakuwa, between the present parties, and declared five of 
 these lands to be the property of Obbu, and with respect to 
 the sixth, Brogua, Obbu is not in possession and does not 
 claim it. 
 
 Mr. Maxwell claims this as res judicata, and I think I 
 am bound by a decision of Mr. Justice Quaylb Jones, so to 
 regard it. That previous decision was given on February 
 21, 1883, in causa Kobina Aigin v. Ekua Etchie, and the 
 ground of decision was, that the question in dispute had 
 been submitted to the elders of the place, and by them 
 decided in favour of the defendants. 
 
 Therefore, I give judgment for the defendant as regards 
 the whole six lands claimed, as they have been pointed out 
 by the plaintiff. The defendant to have fifteen shillings and 
 sixpence for costs ; being half a guinea for witness Prince 
 Sam, and five shillings for defendant himself. 
 
34 FANTI LAW EEPORT. 
 
 AMOCOO V. DUKEE. 
 
 October 18, 1883. 
 
 Before Heotoe Macleod, J, 
 
 Chief's Co iirt — Jurisdiction — Decision — Practice — Res judicata. 
 
 From the evidence it appears that plaintiff and defen- 
 dant were subjects of the King of Anamabu and reside there. 
 
 Judgment. 
 
 In this action the plaintiff has given his own evidence, 
 and is now anxious to call witnesses to prove his titles to 
 the land claimed. I think however that plaintiff's own 
 evidence furnishes material, whereupon I can give judg- 
 ment between the parties. The same claim which the 
 plaintiff now makes in this case he has already made 
 before the King of Anamabu. Plaintiff went voluntarily 
 before the king to have this dispute between himself and 
 the defendant settled. The king heard both parties and 
 gave judgment in favour of the defendant, i 
 
 I am bound by the decisions of this Divisional Court, 
 and I find from the previous decisions that under the 
 circumstances of this case, I cannot in harmony with such 
 previous decisions alter the judgment given by the King of 
 Anamabu, ahd it would therefore be waste of time to take 
 evidence as to right of title. The cases to which I more 
 particularly refer are : — 
 
 •(1) Kohina Aigin v. Ekua Etchie, in which Mr. Justice 
 QuAYLE Jones gave judgment on February 21, 1883, in the 
 following words : — "As it appears from the evidence of this 
 witness, that the question in dispute was submitted to 
 the elders of Amissa-anu, and by them decided in favour 
 of the present defendant, the case is res judicata, and 
 judgment is entered for the defendant." There is no 
 mistaking what that judgment means. 
 
 (2) Asumanha v. Ohhu, in which, on September 29, 1883, 
 
PANTI LAW REPORT. 35 
 
 I gave judgment for the defendant, relying solely upon 
 the decision in the previous case, which I have cited. 
 There are probably many other cases and obiter dicta to 
 the same effect unknown to me. In this action accordingly, 
 I give judgment for the defendant subject to the opinion 
 of the Pull Court of Appeal. The question which I shall 
 submit to the Full Court is this : — Does a decision given ly 
 a native king or chief between parties who voluntarily appear 
 before him to have a matter in dispute between them settled, 
 preclude the Courts of this colony from the consideration and 
 determination of the issues of fact and law involved therein. 
 
 FULL COUET EEPOET. 
 
 AMOCOO V. DUKEE. 
 Before Lesingham Bailey, C.J., and Heotob Macleod, J. 
 
 This was a case in which judgment had been given on 
 October 18, 1883, by Mr, Justice Macleod for the defendant, 
 subject to the decision of the Full Court on the following 
 case stated by him : — 
 
 " Does a decision given by a native king or chief 
 between parties who voluntarily appear before him to 
 have a matter in dispute between them settled, preclude 
 ■the Courts of the colony from the consideration and deter- 
 mination of the issues of fact and law involved therein." 
 
 Mr. Justice Macleod delivered a written judgment as 
 follows : — 
 
 On October 18, 1883, I gave judgment, following 
 previous decisions, for the defendant subject to the point 
 reserved. 
 
 It seems to have been the practice of the Court below, 
 immediately it hears that a native king or chief has decided 
 Si case to sustain his decision without considering whether 
 
36 PANTI LAW EEPOBT. 
 
 it 18 good or bad. And I think it is time to put a stop 
 to the practice. Accordingly, while I felt bound by the 
 previous decisions I thotight it right to bring the matter 
 before the Full Court. 
 
 When a complaint or claim is made to a native king 
 or chief that king or chief summons before him the person 
 against -whom the complaint is made ; and if I know any- 
 thing of native law and custom that person is bound to 
 appear before him. I do not say that he is legally bound 
 to appear, but I do say that he feels bound to appear lest 
 misfortune should come upon him. 
 
 While the colony remains in this condition I think it 
 is the duty of our Courts to examine into the merits of a 
 native judgment when it is challenged. 
 
 Great respect ought to be paid to such judgments, for 
 they are generally given by men who have large knowledge 
 of the places and persons concerned. The question as put 
 by the Court below makes it difficult for me to know what 
 judgment ought to be given. For in the true sense of the 
 word I am afraid no defendant " voluntarily" appears before 
 a native king of chief in the sense that he agrees to abide 
 by the decision of such king or chief in all events. Such 
 decisions have been compared to the awards of arbitrators, 
 but to my mind that is a most misleading comparison. 
 When matters in dispute are referred to an arbitrator by the- 
 parties, these matters are in terms referred to the award 
 order and final determination of the arbitrators chosen. 
 
 But what resemblance is there between that and the 
 decision of a native chief or king ? I venture to say none. 
 
 Take the case of a defendant before a native chief. He 
 does not go there of his own accord ; he is summoned there.. 
 Nevertheless he may go willingly and may abide by the 
 decision of the chief, if it is in his favour. But if it goes 
 against him, why should we presume that he has agreed to 
 abide by it in all events ? 
 
 In this particular case, Amocoo said that if the decision 
 had been given in his favour he would have been satisfied.. 
 
PANTI LAW REPORT. 37 
 
 Of course he would ; just as a defendant summoned to my 
 Court would be satisfied if I gave judgment in his favour ; 
 yet if I give it against him he has his right of appeal. 
 
 Although persons go voluntarily before a king or chief, 
 I am satisfied that, in the vast majority of cases, if inquiry 
 were made, they would tell us that though they did so 
 they [felt and knew they had the white man behind to 
 whom they could go if dissatisfied. 
 
 I think therefore that in all cases where a party does 
 not admit that he agreed to abide by what the king or 
 chief might decide, whether for him or against him, the 
 judgment of such king or chief ought to be inquired into. 
 
 Accordingly, as the whole case may be considered to 
 be before us, I think the judgment of the Court below 
 ought to be set aside and the case resumed at the point of 
 the evidence where I left off. 
 
 The Chief Justice dissented from the above opinion. It 
 appeared to him that the Pull' Court could only base their 
 opinion on the case as stated, and to that case, or rather 
 by the question therein contained, he felt bound to answer 
 in the afBrmative. As, however, Mr. Justice Macleod had 
 expressed his doubt whether the plaintiff in the Court below 
 had voluntarily submitted to the arbitration of the native 
 Court before which he went, and by which the case was 
 heard and judgment given against him, he thought that 
 the action should be remitted to the Court below to satisfy 
 itself upon that point. 
 
 Ordered that the action be remitted to the Court 
 below to take such further evidence as it • shall deem 
 necessary to satisfy itself that the appellant voluntarily 
 appeared and submitted to the arbitration of the native 
 Court by which the case was heard. 
 
 If the Court below shall be of opinion that the appel- 
 lant did not so appear and submit a new trial granted. 
 If, on the other hand, the Court below shall be of opinion 
 that the appellant did voluntarily appear and submit the 
 udgment of the Court below to stand. 
 
.164 
 
 38 FANTI LAW EEPORT. 
 
 EKUA AYAFIE v. KWAMINA BANYEA. 
 
 Si December 18, 1884. 
 
 Before Lesingham Bailey, C.J. 
 
 Where matters in difference between two parties are 
 investigated at a meeting, and in accordance with custom- 
 ary law and general usage a decision is given, it is binding 
 on the parties, and the Supreme Court will enforce such 
 decision. 
 
 Judgment. 
 
 The issue raised by the plaintiff on the recommendation 
 of his counsel is whether there was an arbitration, and 
 if so, the arbitrators declared an award or not, and if so, 
 judgment on such award. Upon the last point, there can 
 be no question, for both Andoh and Flange were among 
 the arbitrators, and they are both positive that an award 
 was published, and that the award was in favour of the 
 plaintiff. 
 
 Upon the first question, I am also satisfied that the 
 defendant did consent to his cause being referred to arbi- 
 trators. The defendant in his evidence did not deny this. 
 It is, however, right to say, that he does not seem from 
 my notes to have been asked the question. But if he had 
 not consented to the arbitration, why should he have 
 attended the meeting ? He had not been summoned, nor 
 does he pretend that he had in any way been compelled to 
 attend. The persons composing the Court of Arbitration 
 were not indeed chiefs who could in any way be looked on 
 as a native tribunal, for Plange, a trader, was one of its 
 members. Then there is the fact that defendant sub- 
 mitted very minute accounts of his dealings with the 
 plaintiff. I do not think he would have done this had he 
 not submitted to the arbitration. Of course, after the 
 arbitration was concluded, defendant objected to the award, 
 
FANTI LAW EEPOET. 39 
 
 because it was against him. The plaintiff, no doubt, 
 would have objected had the award been but this way. 
 
 The award was that the defendant should pay plaintiff 
 £58 5s. 6d., and plaintiff should pay the defendant 
 £4: 4s, 3d. This is equivalent to an award that the defen- 
 dant should pay the plaintiff £54 Is. M., and for that 
 sum, together with costs, the plaintiff should have judgment. 
 
 The question as to whether the defendant did or did 
 not object after the conclusion of the proceedings to the 
 payment of a fee to the arbitrators does not to my mind 
 affect the issue, which is whether there was a submission 
 and a publication of award. 
 
 AMOA V. OBIL. 
 
 March 24, 1885. 
 
 Before Hector Macleod, J. 
 
 Sheriff's Sale — S.0.0. — Certificate of Purchase. 
 
 Judgment. 
 
 The plaintiff in this action claims the recovery of 
 Odumabina, of which the defendant admits the possession. 
 On the evidence, I am satisfied, that nearly six years ago, 
 the present plaintiff's ancestor purchased the land, when 
 sold by the Court ; and that at the sale, the present defen- 
 dant was present and raised no objection. Since then, 
 until five months ago, the plaintiff and his predecessor 
 have enjoyed the use of their land, when through the 
 threats of the defendant they were compelled to leave. 
 There must therefore be judgment for the plaintiff with 
 two and a half guineas costs. 
 
40 FANTI LAW EEPOET. 
 
 MOOQUAH V. AYENSU. 
 
 September 10, 1885. 
 
 Before Hectoe Macleod, J. 
 
 Stale Demand — Debt — Statute of Limitations. - 
 
 Plaintiff claimed £36 9s., being monies advanced about 
 thirty-eight years ago. The defendant pleaded : I do not 
 owe one single farthing to the plaintiff. 
 
 Judgment. 
 
 The debts for which the plaintiff claims are so aged, 
 and so very many years have elapsed since without any 
 demand, that though the defendant has not pleaded the 
 Statute of Limitations, I am quite clear that his denial on 
 all points justifies me in giving for him without costs. 
 
 HEESCHELL v. MUNDAY. 
 
 September 21, 1885. 
 
 Before Hector Macleod, J. 
 
 Fractice — Interim Attachment of Property — S.C.O., 1876, Order xv., 
 Schedule 2. 
 
 Bemier applied under Order xv.. Schedule 2, Supreme 
 Court Ordinance, 1876, for an order entitling the agent of 
 the plaintiffs to enter and take charge of all goods in the 
 defendant's store at Saltpond, and also of the two surf 
 boats. 
 
 By the Court : Eule 3, Order xv., provides for the deten- 
 tion and inspection of property, the subject of a suit. 
 This is a suit in which a balance of account is claimed, and 
 the property sought to be inspected and detained cannot be 
 said to be the subject of this suit. I therefore refuse this 
 application. 
 
FANTI LAW llEPOET. 41 
 
 JACOB W. SEY V. J. B. AMISSAH : SUSANNA ARTHUR 
 (CLAIMANT). 
 
 October 30, 1885. 
 
 Before Hectoe Macleod, J. 
 
 Practice — Interpleader — Inspection of Title-deeds of Claimant hy 
 Judgment Creditor. 
 
 By the Court : This interpleader is set down for the 
 6th of next month. To-day the plaintiff Sey appeared and 
 moved that the claimant be ordered to lodge in Court for 
 the plaintiff's inspection her title to the land claimed by 
 her, and also bill of lading and invoices for rum and palm 
 press claimed by her. 
 
 Order absolute for production on oath of these papers 
 within three days from service of the order on Mr. Benner, 
 her counsel, inclusive of the day of such service. 
 
 RHULE V. ROBERTS. 
 
 November 2, 1885. 
 
 Before Hectoe Macleod, J. 
 
 Practice — Arrest of absconding Defendant — S.C.O., 1876, Order xii., 
 Schedule 2 — -Discretion of Judge. 
 
 Plaintiff moves for warrant to arrest defendant. 
 
 By the Court : The power to arrest an absconding 
 defendant is only given in suits for £10 and upwards. 
 As a general rule, I dare say, parties are entitled to 
 their own estimate of their claim. But in this instance, 
 the plaintiff clearly shows that for the maintenance 
 of this child, she has been paid up till four months ago. 
 It is not necessary for me now to determine whether she 
 has any ground of action at all, but it is quite clear that 
 
42 FANTI LAW EEPORT. 
 
 during those four months there cannot have accumulated 
 a claim of anything like £10 ; and as for the future, 
 decree could not be given for a lump sum. I therefore 
 consider I have no power to issue a warrant, and I refuse 
 this application. 
 
 MENS AH V. TOKU. 
 
 September 27, 1887. 
 Before Feancis Smith, J. 
 
 Stool-holder — Stool Property — Private Property — Merger into Stool 
 Property — Election of Stool-holder — Bemoval — Preferring of Charges 
 of Misconduct — Defence. 
 
 Evidence : 1. Is there any distinction recognized between 
 the private property and the stool property of a chief ? 
 
 There is a distinction between the stool property and 
 private property of a chief, when the stool property is 
 distinguished from the private property; for instance, 
 where before one gets to a stool, he is popularly known to 
 be well to do, he will on his succession to the stool show 
 his own property to whomsoever may be present at his 
 installation, thereby distinguishing in case of dispute his 
 own property from the stool property. 
 
 2. Where the stool property is shown at the time of 
 placing a chief on a stool, and the chief is found to have 
 property subsequently different from that which he received 
 as stool property, is that property his private property ? 
 
 Answer: Such property would not wholly belong to 
 such chief, a 'moiety would go to the stool and the other 
 moiety to himself. 
 
 3. In such a case should not proof be given that this 
 after-acquired property was obtained by means of the stool 
 property ? 
 
 Answer : It must be proved that the after-acquired 
 
FANTI LAW EEPOKT. 43 
 
 property was obtained through the stool property to entitle 
 half to go to the stool. 
 
 4. Does the fact that a chief elected to a stool receives 
 stool property render him incapable of acquiring property 
 of his own ? 
 
 Answer : It does not render him incapable of acquiring 
 his own property. 
 
 5. Has a chief when elected to a stool to pay the debts 
 of his predecessor, and if so, is he expected to pay it with 
 his private property or the stool property ? 
 
 Answer : If there be stool property he pays the debt 
 with such property, if not with his own property. 
 
 6. If a chief, whilst on the stool, receives property of 
 any of his subjects who dies, does that render all the 
 property he may have stool property ? 
 
 Answer : The property of the subjects dying would form 
 portions of the stool property, but would not render his 
 property stool property. 
 
 7. When a chief is deposed, is an account taken of him 
 between the stool property and his private property, and 
 is he allowed, after giving up the stool property, to take 
 his private property away ? 
 
 Answer : Yes ; there is an account taken between the 
 chief's private property and the stool property, and he is 
 allowed to take his private property away. 
 
 8. By whom is a chief deposed ? 
 
 Answer : If such person was placed on the stool by the 
 members of his family, same people who placed him on the 
 stool have the right to depose him. 
 
 9. Are the subjects of the chief consulted on his depo- 
 sition ? 
 
 Answer : The deposing of a chief must originate with 
 the family, but must be done with the consent of his 
 subjects. 
 
 10. Can a chief be deposed in his absence, and without 
 any opportunity being given him to explain any alleged 
 misconduct against him ? 
 
44 FANTI LAW EBPORT. 
 
 Answer : Chiefs Ackon and Accondoh say, the deposing 
 of a chief cannot be done behind his back. It must be 
 done in his presence, and reasons assigned for doing so. 
 If after the matter is discussed, and it is declared to 
 depose him, the chief goes away, and he can be so deposed 
 in his absence. 
 
 Chief Sackey says, " The matter should be talked over 
 first with the chief before he is deposed, but he (Sackey) 
 knows of instances in which the King of Anamabu and the 
 King of Assin were deposed in their absence and without 
 being heard. 
 
 11. Is there no difference between deposing of a king 
 and deposing a chief ? 
 
 Answer : There is a difference. 
 
 12. Where lies the difference ? 
 
 Answer : A chief's succession is family succession ; so 
 if the family discover any matter, they have to talk it over 
 with the chief before he is deposed, but this is not so with 
 a king, 
 
 13. Are the wearing apparel and jewellery of a deposed 
 chief taken from him as stool property ? 
 
 Answer : The apparel and trinkets, not being connected 
 with the stool, should be taken by the deposed chief. 
 
 14. Is the law as to the deposing of a chief in his 
 presence and after the matter is talked over applicable to 
 the Assins, Denkeras and Akims ? 
 
 Answer : So long as they remain in the Protectorate 
 the laws they are under in Kumassi are modified. 
 
 15. This law is therefore applicable so long as they are 
 in the Protectorate ? 
 
 Answer : Yes ; because in the application of the law 
 the Courts of the Settlement are the courts to which they 
 must resort. The same law that applies here is universal 
 throughout the Protectorate. 
 
 On April 20, 1888, further evidence of the Customary 
 Law on this matter was taken. 
 
 Quamin Assandoh : I am the King of Inkusukum. 
 
PANTI LAW EEPOET. 45 
 
 There is no difference in the mode of electing a king or a 
 chief. In the case of a king the whole of the townspeople 
 assemble, except the one to be elected, and he is elected. 
 There are two kinds of chiefs — the famUy chief and the 
 town chief. The former is elected by the family, and the 
 latter by the townspeople. "When you are to be elected to 
 the stool, neither the stool property nor private property 
 is shown ; so that both cannot be distinguished when you 
 are on the stool. If the stool has no property when you 
 are on it, and afterwards there is property, it becomes stool 
 property. When a man on the stool is about to be deposed, 
 the family meets in the first instance and consult ; then he 
 is charged so that he can defend himself, and it is decided 
 according to his defence, whether he is to be deposed or 
 not. It is not the law, that a man is deposed in his absence, 
 and his property taken without his being called upon for 
 his defence. As one man cannot elect another to the stool, 
 but aU who are entitled to elect him, so also as to his de- 
 position, all that are entitled to depose him must be present. 
 
 When a person who has property is elected to the stool 
 is deposed, his property would be taken away, as there had 
 been no discovery of his property. A chief whilst on the 
 stool cannot have private property, all the private property 
 is mixed up and becomes stool property. When a chief is 
 deposed, no account is taken between his property and the 
 stool property. 
 
 Amfoo Otoo: I am the King of Abra. I have been 
 asked by Toku to come and give the native law on the 
 dispute between himself and Mensab. I do not know what 
 Toku wants me to give his opinion about. After the 
 demise of a king in the Abra country, the whole towns- 
 people retire to council, and ask the family from which 
 kings are elected, to give up one to be made king, and 
 when the family gives one to be king, the person who is 
 thus appointed and to be elected is not informed of it. 
 And in the event of its being necessary to depose the king, 
 he is called before a meeting to answer the charges preferred 
 
46 FANTI LAW REPORT. 
 
 against him, and if he is found guilty of those charges, his 
 deposition will be announced and accordingly he will be 
 deposed. 
 
 The only difference between the course adopted in the 
 election of a king and that of a chief is, that the latter is 
 elected by the family and not the townspeople ; but should 
 it become necessary to depose him, the chief will be called 
 upon in the same way as the king, to answer any charges 
 against him, and if he is found guilty, his deposition will 
 be announced. It is not the law to depose a king or a 
 chief in his absence, without an opportunity being given to 
 him, of meeting any charges preferred against him, for 
 which he is to be deposed. 
 
 The case of Tchibu happened in my predecessor's time, 
 but what I say is, though the election of a king or chief 
 takes place without his knowledge, his deposition cannot 
 take place before he has answered the charges against him. 
 When he is to be deposed after he has defended himself, 
 his house and premises are sealed. Of this act no notice 
 is given to him. When a man is deposed, all his property 
 becomes stool property. 
 
 The townspeople of a town of which a chief is, must 
 have a voice in his deposition. If he is a family chief as 
 well, both his family and the townspeople will have a voice 
 in his deposition. He will be called to explain himself, 
 but the decision will not be given in his presence. Kobina 
 Amoa I understand was charged before his people. 
 
 Amonoo IV. : I am the King of Anamabu. If a king 
 does wrong and he is to be deposed, the people of the town 
 hold a public meeting, then his conduct is brought out 
 before he is deposed. With a chief it is the same. The 
 king or chief is given an opportunity of defending himself. 
 If a chief is selected by a townspeople, the townspeople 
 would have to assemble, and lay his conduct before the 
 public, before his deposition, but with regard to private 
 chiefs that is a matter for the family. If he be a private 
 chief, and afterwards becomes the chief of a town, his 
 
PANTI LAW REPORT. 47 
 
 conduct must be brought before the public before deposition, 
 he must be brought to answer the charge, and after the 
 deposition, he is not allowed to return to his house. Chief 
 Kankan of Posu is not a private chief. The head chief 
 of the King of Mankessim could not be a private chief. 
 The head chief of the King of Assin would not be a private 
 chief. I do not know whether Tokit, is a chief. Mensah 
 sits on the family stool of Toku, and Toku would succeed 
 him. Mensah is not a private chief. He has got a name 
 in the town. A private chief must first be charged before 
 his deposition. All his faults must be brought out, and if 
 found correct, he is deposed. Chiefs are not wont to be 
 deposed in their absence. If he is out of the town, they 
 must wait till he returns, but the intention to do so is kept 
 secret. 
 
 First, you must prefer charges against the chief intended 
 to be deposed, and if he is found guilty he is to be deposed. 
 When Amoa, King of Abra, was deposed, charges were 
 preferred against him, and he was called upon to answer 
 them. I heard it. I heard that Tchibu Dankwa's son was 
 deposed, but I do not know whether he was present or not. 
 
 Tchibu was predecessor of the present King of Assin. 
 The whole town must have met before he could have been 
 deposed. If you are a rich man and you are elected and 
 then afterwards deposed, you are to leave everything, which 
 becomes stool property. 
 
 Judgment. 
 
 May 3, 1888. — . . . The three kings (Anamabu, Abra, 
 and Inkusukum) with Chiefs Kwofi Sackey, Quah Ackoon, 
 and Kwofi Akondoh have given their opinion, that by 
 native law Mensah could not be deposed in his absence, 
 and that he must be called upon to answer the charges for 
 which he is to be deposed, before he can be deposed. I find 
 that the opinion of these six preponderates over the opinion 
 of the linguist of the King of Mankessim and Kudwo 
 
48 FANTI LAW EEPORT. 
 
 Essell, and is not repugnant to natural justice, equity, and 
 good conscience. I find that Mensali was at Cape Coast 
 when he was alleged to have heen deposed ; I find that the 
 deposition took place in his absence, and without his being 
 called upon to answer the charges for which he has been 
 alleged to have been deposed; I find that by native law, 
 Mensah has not been deposed, and that he is still the Chief 
 of Inkran. I give judgment, therefore, for Mensah, to 
 recover the eleven stools taken and detained by Tohu, and 
 I allow him his costs, etc., etc. 
 
 FULL COUET. 
 
 MENSAH V. TCHIBU. 
 October 22, 24, 1887. 
 
 Before Hector Macleod, C.J., Smalman Smith, and 
 Francis Smith, J J. 
 
 Suretyship — Ruler in his own District not a Surety — Non-liability. 
 
 This is an appeal from a judgment of the Divisional 
 Court at Cape Coast dated May 2, 1887, in favour of the 
 plaintiff. 
 
 Mr. Williams with Mr. Eminsang for defendant (ap- 
 pellant). 
 
 Mr. Eenner for respondent (plaintiff). 
 
 Claim was for £334 4s. &d. due to plaintiff from defen- 
 dant as surety for Yow Affraidua. 
 
 Mr. Williams argued that judgment was given on the 
 ground that the king had agreed to place a restriction on 
 Yow Affraidua and had failed to do so. 
 
 Mr. Williams contended that the defendant only received 
 witness money and not surety money, and that he had not 
 received and could not receive any benefit by becoming 
 surety. 
 
FANTI LAW REPORT. 49 
 
 Mr. Williams continued his argument, and stated that 
 the following were his grounds of appeal : — 
 
 (1) That the Court below misdirected itself upon a point 
 of law, namely, as to whether a king can become a surety ; 
 
 (2) That the judgment was against the weight of 
 evidence ; 
 
 (3) That on the facts as found the restrictions imposed 
 upon Affraidua have not been removed. 
 
 As to whether a king can be a surety Mr. Williams 
 quoted the case Brown v. Coffee Affaidee, decided by Judge 
 Hackett in 1864. 
 
 Question by the Court to Mr. Remier : Could Tchibu 
 by the law of his own country be made to pay the loan 
 given by Mensali to AfEraidua in respect of anything that 
 Tchibu did or allowed to be done on the occasion of the 
 loan being given, or at any subsequent time ? A. — No. 
 
 Mr. Williams not called on to reply. 
 
 Judgment. 
 
 October 24, 1887. — In this action the defendant appeals 
 against a judgment of the Divisional Court of the Western 
 Province, by which he was found liable as surety for a 
 debt due by Affraidua to the plaintiff. 
 
 It is unnecessary for us to determine whether, as the 
 case stood when decided in the Court below, the judgment 
 was good. 
 
 Upon argument before us an entirely new point was 
 raised. It has to-day, for the first time, been contended, 
 that by native law and custom a king cannot be made 
 liable as a surety. 
 
 Mr. Renner, for the respondent Mensali, has admitted, 
 that Tchibu could not in his own country, by reason of 
 anything done or allowed to be done by him at the time of 
 the giving of this loan, or by reason of anything subse- 
 quently done by him, be made in his own country to pay 
 the loan which was given to Affraidua. 
 
50 PANTI LAW REPORT. 
 
 That makes it conclusive to our minds that Tcliihw 
 never at any time became liable as surety for judgment of 
 the loan given by Mensah to Affraidua. 
 
 As this appeal has been rendered necessary, by Tchihu's 
 own neglect, to raise in the Court below the point on which 
 he has succeeded, we shall give him no costs. Although 
 in the Court below he was not represented by counsel, he 
 might have raised the point. 
 
 It must be distinctly understood, that this Court does 
 not lay it down, that a native king is under any civil dis- 
 ability to become a surety. All we say is that the custom 
 for a king never to become a surety throws light upon the 
 whole transaction, and makes it evident that Tehibu did 
 not as a matter of fact become a surety. 
 
 The judgment of this Court is, that the appeal is allowed 
 without costs. Judgment of the Court below reversed and 
 defendant will have the costs of the original action. De- 
 cision to be enforced by Court below. 
 
 INKRABEAH v. AEABA ACQUAKOAH. 
 
 October 28, 1887. 
 
 Before Hector Macleod, C.J. 
 
 Souse — Bight of Child to reside in Father's House. 
 
 Claim for the recovery of a house in Cape Coast. 
 
 By the Court : The evidence of the plaintiff shows 
 that he is not entitled to eject the defendant from the 
 house in question. It was the house of Assan whose 
 nephew the plaintiff is. Defendant is Assan's daughter. 
 As nephew the plaintiff succeeds to Assan's property, but 
 that does not by native law entitle him to turn out his 
 uncle's daughter from that uncle's house. 
 
 Defendant says that when plaintiff comes from his 
 house in the bush to visit Cape Coast she is willing to 
 receive him in the house with such attention and comfort 
 
FANTI LAW REPORT. 51 
 
 as he has a right to expect, and that is really all the 
 plaintiff is entitled to. Further, she says she is willing to 
 pay £10 to get rid of his interest, and I am inclined 
 to think that is a fair sum. If when the defendant is 
 willing to offer £10, plaintiff is willing to accept it, good 
 and well. If defendant does not offer it or plaintiff is not 
 willing to accept it, he has all he has, a right to a welcome 
 to the house on his visit to Cape Coast. 
 Judgment for defendant without costs. 
 
 FRANCIS E. WOOD v. ADJUA AISAWA AND OTHERS. 
 
 December 5, 1887- 
 
 Before Francis Smith, J. 
 
 Tenure — Owner of Land can remove Souse and other Buildings of 
 Occupier on the Termination of Tenancy. 
 
 Plaintiff's claim was for the ejectment of the defendants 
 from land, 66 ft. by 26 ft., called Wowoba, his property 
 on which the houses of the defendants stood. 
 
 On January 9, 1888, judgment was delivered by the 
 Court : I have already intimated, before the adjournment 
 to obtain the opinion of the chiefs took place, that I was 
 satisfied upon the evidence that the land in question 
 belongs to the plaintiff. 
 
 By the opinion of the chiefs the plaintiff is also entitled 
 to have removed the houses of the defendants situate on 
 this land. If, however, the defendants will acknowledge 
 the plaintiff's title to the land, the plaintiff will permit 
 them to continue in the occupation of their houses. If 
 not, I give them a month, within which they will remove 
 the'materials of their buildings off the land. Failing so to 
 do, the plaintiff will be entitled to have the materials 
 removed. Each party will pay its own costs. 
 
 I gave the same judgment in the case of Wood v. 
 Eohiaba. 
 
52 FANTI LAW REPORT. 
 
 EEGINA V. THOMPSON. 
 
 September 7, 1895. 
 
 Before Hayes Eedwak, J. 
 
 Criminal Procedure and Practice — Averment of Charges — Amendment — 
 Qvashing Information — Trial by Assessors with Judge. 
 
 The Court draws the attention of the Crown Prosecutor 
 to the wording of the information, as being so defective as 
 to render it necessary to consider whether it should not be 
 quashed. The Court deals with each count in the informa- 
 tion separately. 
 
 The Crown Prosecutor is heard. 
 
 By the Court : This information contains two counts, 
 each charging a distinct felony. 
 
 Were it not for sect. 28 of the Criminal Procedure 
 Ordinance, 1876, the Crown Prosecutor might, according to 
 the English practice, be put to elect upon which of the two 
 felonies charged he would proceed. That section of our 
 ordinance, however, provides, " if in one set of facts so 
 connected as to form the same transaction more offences 
 than one are committed by the same person, he may be 
 charged with and tried for every such offence at the same 
 time." This provision, it seems to me, cures the defect of 
 the joinder of these two charges in the information before me. 
 
 But even so, and as regards the first count charging 
 " stealing," this information is faulty ; as the first count 
 does not make it clear whether an ordinary charge of steal- 
 ing is preferred, or one of stealing monies of which prisoner 
 had the custody or possession, or to which he had access 
 by means of his employment within sect. 269, sub-sect. 1, 
 of the Criminal Code, under which, according to a portion 
 of the count, it would seem that the Crown must be pro- 
 ceeding. The information is not appropriately worded, 
 with reference to the charge disclosed by the caption on 
 the depositions, upon which the prisoner was committed 
 
FANTI LAW EEPORT. 53 
 
 for trial, certain words in which (relating to the prisoner's 
 custody of the money) indicate that it was intended that 
 the proceedings should in part, at least, be taken under 
 sect. 269, sub-sect. 1 of the Code. These words are, how- 
 ever, omitted from the information filed against the prisoner 
 at suit of the Crown. Moreover, the property in the monies 
 alleged to have been stolen is not laid as provided for in 
 sect. 30 of the Criminal Procedure Ordinance, 1876, where 
 a partnership is concerned. The wording of this informa- 
 tion also is not accurate as regards the " money," according 
 to the established practice of criminal draftsmen on this 
 point, which practice also is sanctioned by sect. 30 of 
 Criminal Procedure Ordinance, 1876. 
 
 Up to this point, however, I should have felt disposed 
 to exercise the wide powers of amendment given to the 
 Court by sect. 96 ; but the second count, charging falsifi- 
 cation of account, contains, in my opinion, too grave a 
 substantial defect to admit of the exercise of this power of 
 amendment, as, in my opinion, the exercise of this power 
 would distinctly prejudice the prisoner in his defence, 
 within the meaning of sect. 96. The prisoner in all 
 criminal trials has a constitutional right to be apprised 
 with distinctness and particularity of every fact and circum- 
 stance which is a necessary ingredient in the offence with 
 which he stands charged. It is laid down in Archibold that 
 " all the facts and circumstances must be stated with such 
 certainty and precision that the defendant may be enabled 
 to determine the species of offence they constitute," etc. 
 
 As regards the Crown Prosecutor's argument that the 
 Criminal Code regulates criminal procedure, the Code is 
 silent as to procedure, and the only guides we have in our 
 local law are the Criminal Procedure Ordinances of 1876 
 and 1893. As regards the provision of sect. 2 of Criminal 
 Procedure Amendment Ordinance, 1893, the offences charged 
 in this information are not described in the words of the 
 Code, therefore they are not "sufficiently charged;" and 
 in any case this provision does not do away with the 
 
54 FANTI LAW EEPORT. 
 
 general and constitutional principle that . prisoners are 
 entitled to be apprised with distinctness and particularity 
 of every fact and circumstance which is a necessary in- 
 gredient in the offences charged against them, so that 
 they may not be prejudiced or surprised in their defence. 
 
 As regards the argument that the Court is not bound 
 by any judicial decision in England on criminal law or 
 procedure, he puts the proposition too widely. All that 
 sect. 7, sub-sect. 3 of the Criminal Code says, is, that the 
 Court shall not be bound by a decision as to the definition 
 of any offence; it does not say that as regards procedure, 
 and the principles which should govern the drafting of all 
 criminal pleadings, such as informations, our Court should 
 be cut off from the accumulated learning and experience of 
 English judges, especially upon a question as to what are 
 the rights of a prisoner according to general constitutional 
 principles. 
 
 The Crown Prosecutor's other arguments are hardly of 
 such a nature as to require to be dealt with. 
 
 The second count in the information before this Court 
 does not satisfy the requirements either of the Code or of 
 the law generally. It is too general and uncertain, and 
 does not specify the particulars of the alleged several falsi- 
 fications of account, so as to enable the prisoner to prepare 
 his defence. No specific falsifications or omissions to account 
 are stated in it. There is no such averment as is familiar 
 to criminal draftsmen, such as that the "prisoner did on 
 such and such a date omit to make a true and correct entry of 
 the sum of so and so." Sect. 94 of the Criminal Procedure 
 Ordinance, No. 5, of 1876, does not do away with the neces- 
 sity for certainty and precision of statement in the charging 
 of such an offence as falsification of account, any more than 
 sect. 14 of 14 & 15 Vict. c. 100, of which it is almost an 
 exact transcript ; and notwithstanding which, the English 
 Criminal Courts have required the utmost particularity in 
 the statement of offences of this character, so that the 
 prisoner may not be prejudiced or taken by surprise in his 
 
FANTI LAW REPORT. 55 
 
 defence. Besides, the averments of specific falsifications of 
 account are matters "necessary to be proved" at the trial 
 in order to obtain a conviction, so that sect. 94, in terms, 
 does not apply to this omission in the information before me. 
 
 The prisoner being undefended, and the omission in 
 this information (so far as regards the second count) being 
 of a nature to amount to a substantial defect, the sudden 
 amendment of which at the trial would, in my opinion, be 
 calculated to prejudice the prisoner in his defence, within 
 sect. 96 of Criminal Procedure Ordinance, this charge must 
 be quashed. 
 
 The English judges have held that such a defect vitiates 
 the indictment, and that the defect cannot even be cured 
 by verdict, but is demurrable in law, and can be made the 
 subject of a motion to arrest judgment upon a verdict of 
 guilty (" Archibold on the Form of an Indictment "). If it 
 be so, such a defect is, a fortiori, a ground for quashing this 
 information as regards the second count. And then the 
 question arises whether an information can be quashed in 
 part and amended in part. As to this, it was decided in 
 Eegina v. Withers, 4 C. C. C. 17, that an indictment 
 cannot be quashed in part, and I prefer to be guided by 
 this decision. 
 
 Under the circumstances, the information must be 
 quashed, as being for a defect of substance, and demurrable 
 in law. 
 
 The effect of this 'quashing is, however, similar to that 
 of a nolle prosequi entered by or on behalf of the Attorney- 
 General, so that the discharge of the prisoner shall not 
 operate as a bar to any subsequent proceedings against 
 him on the same facts ; in short, the quashing of this 
 information does not operate as an, acquittal, the charge 
 having never been tried. 
 
 The prisoner is discharged upon the quashing of the 
 information filed against him by the Crown, the objection 
 to such information having been taken before the Assessors 
 were sworn. 
 
56 FANTI LAW KEPOET. 
 
 LYALL V. DOUGAN : YANBA (CLAIMANT). 
 
 January 14, 1890. 
 
 Before Smith, J. 
 
 Building Tenure — Ownership of Erections — Attachment — Sheriff. 
 
 Judgment. 
 
 I find the house and outhouses to belong to the judg- 
 ment debtor, and the sheriff will proceed to the sale of 
 these. I find the land whereon these are erected to belong 
 to Know Yah, and it cannot therefore be sold by the 
 sheriff. I award costs against claimant, which I assess at 
 £8 8s. 6d 
 
 AWOETCHIE V. AIDGUN. 
 
 January 16, 1890. 
 
 Before Smith, J. 
 
 Building Tenure — Father's Souse — Bebuilding iy Son — Permission 
 necessary. 
 
 This was an action for the recovery of house and land 
 at Mourre, near Cape Coast Castle. The plea was — House 
 is mine, not the land. 
 
 It was proved at the hearing that the defendant 
 completely rebuilt the house of his father, which had 
 fallen into ruins, the owner of the land raising no objec- 
 tion; but that, on account of a row afterwards between 
 the parties, the plaintiff ordered the defendant to clear 
 out, he refused ; hence this action. 
 
 After the defendant had given his evidence, the learned 
 judge stopped the case. 
 
FANTI LAW EEPOET. 57 
 
 Judgment. 
 
 By the defendant's own showing there must be judg- 
 ment for the plaintiff. Allowing that his father was 
 permitted to build, and did build the house, he has acknow- 
 ledged that the house went to ruins, and by native law the 
 land reverted to the owner. He undertook to build on the 
 land without the permission of the owner, and he must 
 take the consequences of his own act. Judgment for the 
 plaintiff, with costs. 
 
 AEABA AIYIMA v. ADJUA. 
 
 January 20, 1890. 
 
 Before Smith, J. 
 
 Dwelling-house — Air and Light Obstruction, 
 
 By the writ, plaintiff's claim was : "for the defendant to 
 show cause why she should not be compelled by the Court 
 to cease from building a wall behind plaintiff's house and 
 obstructing the plaintiff from open air." The writ also 
 sought for an injunction. 
 
 The Court inspected the premises and found that the 
 wall, which had already been built, in no way obstructed 
 air or light from the plaintiff's premises. Parties duly 
 attended Court to hear the decision of the Court. 
 
 Judgment. 
 
 The defendant is only exercising a right on her own 
 premises, which in no way interferes with the plaintiff's 
 right to have air and light in her own house. In other 
 words, the wall does not prevent air and light from getting 
 into plaintiff's premises. Judgment will be for the defen- 
 dant, but each party will pay its own costs. 
 
58 PANTI LAW BEPOBT. 
 
 KUDWO TOKU V. KOFI AMA. 
 
 March— July 28, 1890. 
 
 Before Hutchinson, C.J. 
 
 Stool-holder — Succession — People of the Stool — Kwamanfu — Bight of 
 Veto — Seceding Branch of Family — Election ly Members of Family. 
 
 By his writ, the plaintiff claimed to establish his title 
 and right of succession to the stool of Achin Mensa, 
 deceased, late of Inkran in Assin, and to recover possession 
 of all the lands, houses, and other properties belonging to 
 the said stool and Inkran. 
 
 The defendant pleaded that the plaintiff had extinguished 
 his claim to the succession ; also possession. 
 
 Kobina Bonda, a witness, gave evidence that when 
 Mensa was put on the family stool, plaintiff Toku was 
 placed behind him, so that on Mensa's death Toku succeeds 
 to the stool and stool property. Said he : Akamani and 
 Akasa are the principal persons who select the ones to be 
 made a chief, and the selection must take place from the 
 family, and the one who is selected is the one who was 
 behind the chief last on the stool. Since the death of 
 Mensa some one has been selected and placed on the stool. 
 That person is Toku. The man who is to succeed Toku 
 sits behind. So in case of Toku's death he is placed on the 
 stool. The arrangement can never be altered. 
 
 Kweku Appia, giving his evidence on March 3, stated : 
 I am the linguist of King Tchibu. I knew the late Achin 
 Mensa. He was one of the chiefs of King Tchibu. I know 
 Toku. He was behind Mensa, and, since the death of 
 Mensa, he has become a chief. The stool on which Toku 
 now sits is that on which Mensa sat. The rest of the stool 
 is at Inkran, but the stool itself is with Toku. 
 
 July 26, 1890. — Affakwa, in answer to the Court, says : 
 I know the customs as to election of chiefs. The domestics 
 (Kwamanfu) elect. The families sit down and the 
 
FANTI LAW EEPOET. 59 
 
 Ivwamanfu go and consult, and then come and tell the 
 families whom they have elected. The families have no 
 power. The domestics are the persons who serve the stool. 
 At the election in Jukwa the domestics elected Kwakifrem, 
 hut the families wished to have Kaye, but Kwakifrem 
 succeeded. The Kwamanfu put him on the stool. (Jukwa 
 is capital of Denkera.) This was a case of king's stool. 
 It is more than twenty years ago. This is the custom 
 everywhere ; that the Kwamanfu elect to the stool. Kudjoe 
 Imbra was recently put on the stool by the Kwamanfu. 
 "Eoyal blood cannot serve royal blood." Therefore the 
 families have no voice in the matter. The stool of 
 Assokkori is under Tchibu. The Kwamanfu placed the 
 new chief on the stool. And then they show him to the 
 king. If the king does not like him, and will have nothing 
 to do with him, that makes no difference, the man is a 
 chief all the same. The Government ordered that 
 Kwakifrem should be installed. 
 
 Brokuma : Affakwa's statement of the native custom is 
 correct — it is only the Kwamanfu under one who elect to 
 the stool. This was so, I have heard, before I was made 
 head. The Kwamanfu are slaves — the slaves of all 
 families in the town belonging to the stool. If Toku had 
 stayed, his slaves would have belonged to the Kwamanfu. 
 
 July 28, 1890.— The Court called Chiefs Andoh, Elimina, 
 Kudjoe Imbra, Kwa Akon, and Sackey of Cape Coast, and 
 J. E. Eminsang as referees on the Customary Law, in 
 exercise of power conferred by sect. 92, S.C.O., 1876. 
 
 1. When a chief dies, have the Kwamanfu or Fie-nympa 
 alone the right to elect and instal a new chief, without the 
 consent of the families ? Or have the families of the chief's 
 blood the right without the Kwamanfu ? Or must both of 
 them agree ? 
 
 2. The stool being under a king, is the consent of the 
 king necessary before a new chief is installed ? And if the 
 king refuses his consent, what is the consequence ? 
 
 3. One man is the chief on the stool and another " sits 
 
60 PANTI LAW EEPORT, 
 
 behind him " and will be his successor. They quarrel and 
 have two or three law-suits in this Court, and at last the 
 man who sits behind the chief, leaves him, and goes with 
 several of the families to another town under another chief, 
 and remains there four or five years, until the death of the 
 chief with whom he had quarrelled. Upon the death of 
 the latter, is he entitled to be elected and installed in his 
 place ? Or may those who have voices in the election pass 
 him over without his consent and elect another member of 
 the family ? And have the families who went away with 
 him any right to vote in the election ? 
 
 The assessors withdrew with their linguists and con- 
 sulted. Upon their return, they gave the following opinions, 
 in which they all agreed : — 
 
 1. The families of the chief's blood have alone the right 
 to elect ; and the consent of the Kwamanfu is not 
 necessary. 
 
 2. The consent of the king is not necessary. He cannot 
 oppose one who is elected by the family. 
 
 3. The family have the right to pass over the one who 
 has quarrelled with the chief. Having left the family and 
 gone elsewhere, he has no right to the stool, nor is his 
 consent required. Nor is he eligible ; and the families who 
 went away with him have no voice in the election. 
 
 In answer to the following questions put to them by the 
 Court : — 
 
 If the family is divided, is the person chosen by the 
 majority entitled to the stool ? 
 
 No. Those nearest in blood to the late chief have the 
 right to elect. 
 
 The dying chief can appoint whom he wish to succeed 
 him, and the families are obliged to elect the successor so 
 appointed. This is called " Samansiw," the oath of a dying 
 man. If the chief, even when not dying or expecting to 
 die, nominated a successor, the families must elect the 
 successor. 
 
PANTI LAW REPORT. 61 
 
 Judgment. 
 
 On the first point upon whicli I asked the opinion, the 
 assessors are clear that there is no foundation for the 
 theory, which the defendant and all of his witnesses tried 
 to impose upon me, that the domestics alone have the 
 right to elect and instal the new chief. The assessors 
 declare that the domestics have no voice in the matter. 
 
 On the second part the assessors agree with the evidence 
 of the defendant's witnesses, that the king's consent is not ' 
 necessary for the validity of the election and installation of 
 the new chief. On these two points I am bound to assume 
 the correctness of the opinions given by the assessors. 
 
 Their answer to the third question was perhaps not an 
 " affirmation of any native law or custom," but, neverthe- 
 less, I must attach considerable weight to their unanimous 
 opinion on that question, and I am not disinclined to agree 
 with it. 
 
 I decide that ToTcu and those families who went away 
 with him were not entitled, even if they were more in 
 number than those who were with Ama (which is not 
 proved), to elect the new chief; and, further, they were not 
 entitled to take any part in the election; at all events, 
 unless with the consent of those who had remained under 
 the old chief Mensa. Toku can only succeed in this action 
 by showing that he has been properly elected and installed 
 as chief. This he has failed to do, and therefore his action 
 must be dismissed. 
 
 With regard to costs, a successful defendant is generally 
 entitled to his cost of defending himself. In this case, 
 however, he has produced before me evidence which I 
 strongly suspect both he and his witnesses knew to be 
 false. If they believe the evidence which they put before 
 me as to the mode of election of a chief, they are disgrace- 
 fully ignorant of the native customs. And on the question 
 as to the ownership of Inkran, I do not think that the 
 defendant, and those of his witnesses, who said that Affilfa, 
 
62 FANTI LAW EEPORT. 
 
 and not Abbessebro, was the giver of it, and gave it to 
 Mensa, and not to Akkon, really believed what they said. 
 
 I am not sufficiently certain to feel justified in inflicting 
 the penalties of perjury, but I have such a strong suspicion 
 of it that I give defendant no costs. 
 
 [The opinion expressed by the assessors is founded, not 
 only on the questions put to them by the Court, but also on 
 their knowledge of the old dispute in the case of Mensa 
 V. Toku; and, in addition, on certain facts of common 
 notoriety, namely, that Mensa had made a will in the 
 English form, whereby Ama was appointed his successor, 
 probate of which will had been granted by the Court to the 
 said Ama. Moreover, Ama did not claim to be the headman 
 of the whole family, or to be a sub-ruler of King Tchibu, a 
 position which, according to the testimony of the witness 
 Appia, Tolcu then held. The stool in Avia's custody was 
 practically that of a junior branch of the family, and as 
 such, the right of Mensa's blood relatives to select a 
 successor was not subject to the veto of the people of the 
 stool, really but not ostensibly, claimed by ToMi. 
 
 The statement of the customary law by the witness 
 Affakwa is substantially correct. Ainfoo v. Yardonuah, 
 1 F.L.E., 198 was not cited. Doubtless, if the Court had 
 sought information of the procedure relating to the different 
 kinds of stools, the assessors would have been more careful 
 in their replies. Having regard to the real state of things, 
 the first answer is only correct as the law relating to a 
 junior family stool, the holder of which exercises no control 
 or political jurisdiction over persons called people of the 
 stool. The second answer is correct, and the third is not 
 a pious opinion, but correct enunciation of the Customary 
 Law. 
 
 More than one judge and magistrate of the Supreme 
 Court might with great advantage to the cause of justice 
 emulate the caution of the learned Chief Justice, which 
 restrained him from summarily inflicting the penalties of 
 perjury by fining Ama and his witnesses as for a contempt 
 
FANTI LAW REPORT. 63 
 
 of Court. The power so to do is a dangerous one, and in 
 a country where the evidence is given in faulty or imperfect 
 English, or through the medium of an indifferent inter- 
 preter, one should hesitate a long while before inflicting 
 such a punishment.] 
 
 KUDJOE GHAMBRA v. KWAMIN EWEA. 
 
 April 30, 1891. 
 
 Before Cleavee, Acting Judge. 
 
 Village Council — Deposition of Chief or Village Headman — Return of 
 
 Stool. 
 
 Judgment. 
 
 This case comes up for judgment. Both counsel present. 
 By the Court : The evidence has satisfied me that there 
 exists a distinct stool which appertains to the headship of 
 the village of Yamsu, and that that stool is now in the 
 possession of defendant. The evidence of the first two 
 witnesses for the defence appeared to throw some doubt 
 upon the first point ; but the manner in which these 
 witnesses gave their evidence did not impress me favourably, 
 and I do not believe all their evidence on this part of this 
 case. 
 
 I am also satisfied that defendant has been deposed 
 from, and Braku has been elected to, the headship of 
 Yamsu in a manner which accords strictly with the native 
 custom in that part of the country, namely, by the villagers 
 and their reference to the paramount king. I think that 
 the Bisassi people had no voice in the election of a head 
 of Yamsu. Defendant's counsel quotes Ama v. Tohu, and 
 if I understood counsel for the plaintiff aright, he {sic) 
 objected that the stool in dispute, as in that case, was a 
 family property stool, the succession to which might be 
 
64 FANTI LAW EEPOET. 
 
 governed by different rules. Whichever it may have been, 
 I am of opinion that Braku was elected in the manner in 
 which the assessors and the Court in that case decided that 
 a head of a village should be elected. That does not 
 appear, however, to have been a case of deposition. 
 
 The last question is the locus standi of the plaintiff. He 
 sues in a representative capacity for and on behalf of the 
 people of Yamsu. Chief Kofi Sackey has stated that in 
 the case of deposition, it is the business of the people of 
 the village to get the stool for the new head. 
 
 The plaintiff has sworn that he represents the village 
 council, and he is borne out in this statement by Akempon, 
 the linguist. I attach no importance to his relationship to 
 the former occupant of the Yamsu stool. 
 
 The order of the Court is that the defendant deliver up to 
 plaintiff, for the people of Yamsu, the stool which belongs 
 to the headship of Yamsu, and that he pay the costs of 
 this action. 
 
 Mr. Sarbah for the plaintiff. 
 
 Mr. Eiloart for the defendant. 
 
 FULL COUET. 
 
 KUDJOE GHAMBEA v. KWAMIN EWEA. 
 
 Wednesday, September 7, 1892. 
 
 Before J. T. Hutchinson, Chief .Justice, and H. W. H. 
 Ebdwae, Acting Judge. 
 
 Appeal from a judgment of Mr. Justice Cleaver, given 
 on April 30, 1891, in favour of the plaintiff. 
 Mr. Eenner for defendant, the appellant. 
 Mr. Sarbah for the plaintiff, the respondent. 
 Mr. Renner says he will contend — 
 
FANTI LAW REPORT. 65 
 
 (1) That plaintiff, not being a member of the chief's 
 family, could not recover the stool. 
 
 (2) That that which ought to have been done has not 
 been done, in that the chief (the defendant) has not been 
 deposed. 
 
 (3) That the stool is not divisible, in that the chieftain- 
 ship of Yamsu cannot be separated from that of Bisassi. 
 
 He refers to the evidence of Amonoo in Mensa v. Toku, 
 on March 20, 1888, and of Otu in the same case, on March 
 21, 1888, as showing that a chief of a town is first a private 
 chief, and that his family must join in the deposition (the 
 family and the council or "townspeople" must join). 
 
 Contends that there is no evidence that the council ever 
 made any charge against the defendant ; 
 
 That the king's consent to the deposition is not necessary; 
 
 That all who are entitled to join in the election are 
 entitled to have a voice in the deposition ; 
 
 That Braku, who has been elected to the stool of Yamsu, 
 is not a member of the family to which the stool belongs ; 
 
 That the evidence shows that the Bisassi stool is para- 
 mount, and Yamsu stool is subordinate ; 
 
 That even if the stool of Yamsu and Bisassi are separable 
 the consent of all the family {i.e. of majority of the family) 
 must be obtained. 
 
 The two main points are — 
 
 (1) That the stools are not divisible ; 
 
 (2) That, if they are divisible, the defendant has not 
 been properly deposed, because the family was not consulted. 
 
 Mr. Sarbah, for the respondent : That is a town stool, 
 not a family stool ; and though the family elect to a family 
 stool, the townspeople elect to a town stool. 
 
 The fact that, as defendant says, tivo stools were taken 
 to defendant by the Yamsu people, shows that the stool was 
 not a family stool ; 
 
 The fact of one stool (the Yamsu) being kept at Yamsu, 
 and another (the Bisassi) at B., shows that the stools were 
 distinct ; 
 
 F 
 
6G PANTI LAW EEPOET. 
 
 The fact tliat the people of Yamsu went to defendant, 
 and (as he says) told him that they would not serve him 
 any longer, is sufficient evidence of his deposition. 
 
 Mr. Renner in reply. 
 
 Judgment reserved. 
 
 Friday, September 9, 1892. 
 
 In this case, in which judgment was reserved on the 7th 
 inst. (p. 3), judgment was given to-day as follows : — 
 
 The Chief Justice : 
 
 This action was brought by the plaintiff for himself, 
 and also on behalf of the inhabitants of Yamsu, for delivery 
 to him, for himself and the people of Yamsu, of the stool 
 of his father Bimfo. Bimfo was chief both of Yamsu and 
 of Bisassi ; and on his death the defendant was elected 
 and duly installed as chief of both those towns ; but the 
 plaintiff alleges that in consequence of his misgovernment, 
 the defendant has been deposed from the chieftainship of 
 Yamsu. The evidence is far from satisfactory ; both sides 
 have, in my opinion, been guilty of trying to mislead the 
 Court by false evidence ; but I think it is best to decide 
 the case on the materials that we have instead of sending 
 it back for further evidence. The first contention on the 
 part of the defendant was that this stool is not a separate 
 stool belonging to the Yamsu chieftainship, but that the 
 chieftainship of Yamsu and Bisassi is one and indivisible. 
 The evidence, however, satisfies me that there were separate 
 stools for Yamsu and Bisassi, and that it was possible for 
 the defendant to be deposed from the one, though he still 
 retained the other. 
 
 Then has he been in fact deposed ? Those who had the 
 right to depose him were, in my opinion, judging from the 
 evidence, the council of Yamsu. We have not heard who 
 are the men who compose that council. But it is proved 
 
PANTI LAW EEPOET. 67 
 
 that all the inhabitants of the town, after making certain 
 complaints to Ewea about his conduct as their chief, in- 
 formed him that they would no longer be ruled by him, 
 and that they then elected Braku to be their chief in his 
 place. " All the inhabitants " must include the members 
 of the council, and in my opinion we are justified in con- 
 cluding from this evidence that things were done in order, 
 and that the deposition of Ewea and the election of Braku 
 were carried out in due form. 
 
 Ewea, after being deposed from the chieftainship of 
 Yamsu, had no longer a right to retain the stool. Accord- 
 ing to the only evidence that we have on this point, that 
 of Chief Kofi Sackey, it is the business of " the townspeople " 
 in such a case as this to get the stool from the deposed 
 chief. It is evident that the plaintiff has the support of 
 all the Yamsu people in making this claim, and he claims 
 on their behalf. I think, therefore, that the action is 
 properly constituted. 
 
 The judgment of the Court below must be af&rmed, and 
 the appeal dismissed, and the appellant must pay the costs 
 of it. 
 
 Hayes Eedwak, Acting Puisne Judge : 
 
 I concur. The only doubt that occurred to me during 
 the argument in this case, was whether there was a regular 
 deposal of the defendant ; but upon a careful consideration 
 of the evidence (which, although somewhat unsatisfactory 
 on some points, appears to be clear on all material points), 
 I am of opinion that the only just conclusion which can be 
 arrived at is that the deposal was rightly made in the case 
 of this stool, which I am satisfied upon the evidence was a 
 "town stool." The cases cited relate to family property 
 stools, and are therefore no authorities in the case of a 
 "town stool," which appears to be one of a different 
 description and subject to different rules as to succession 
 and deposal. 
 
68 PANTI LAW REPORT. 
 
 EILOAET V. HOLMES.* 
 
 May 6, 1891. 
 
 Before Cleatee, Acting Judge. 
 
 Action against District Commissioner — Malicious Conviction for Con- 
 tempt — Practice — Demurrei — S. C. Ordinance, 1876, Order xx. of 
 Schedule 2— 1\ & 12 Vict. c. 4, sect. 1. 
 
 The plaintiff, an Englishman, Barrister of the Temple, 
 claimed £50 damages for that defendant as and being 
 a District Commissioner did at Cape Coast Castle on the 
 3rd day of March, 1891, in the exercise of his jurisdic- 
 tion as such District Commissioner falsely, maliciously, 
 and without reasonable and probable cause convict the 
 plaintiff for contempt of Court. 
 
 Plaintiff in person. 
 
 Mr. Hayes Redivar, Acting Queen's Advocate, for 
 defendant. 
 
 Motion by Redivar for dismissal of the suit under 
 Order xx. of Schedule 2, S.C.O., 1876. 
 
 Bedwar proposes to read affidavit. Mr. Eiloart objects 
 to its admission as it introduces evidence of fact. 
 
 By the Court : After reading affidavit I rule that it 
 may be admitted as it is not evidence of matter of facts 
 in issue in this case, but of matters of record to support 
 defendant's arguments in law. 
 
 After reading Lhe affidavit Mr. Redwar argues and 
 quotes from Broom's " Common Law," p. 757, Brittain 
 V. Kinnaird, 1 B. & B., followed Coleridge, C. J., in Usill v. 
 Hales, 3 Com. P. D. 324. Also Dosivell v. Impey, 1 B. & 
 C. 169, in re Pater, 33 L. J., M. C. 142. 
 
 Plaintiff replies, quotes " Addison on Torts," p. 667 ; 
 Pease v. Chaytor, 3 B. & S. Further argues if Jervis' Act, 
 11 & 12 Vict. c. 44, is applicable, the case of Brittain v. 
 Kinnaird cannot be applied to explain it in this Colony, 
 there being no remedy by appeal from the conviction. 
 " See page 1G9. 
 
FANTI LAW EEPORT. 69 
 
 Bedwar replies and argues that mandamus will lie to 
 compel appeal, and that the Divisional Court cannot divert 
 from settled law and put a different interpretation on sect. 
 1 of 11 & 12 Vict. c. 4. 
 
 By the Court : The question before the Court depends 
 upon the interpretation of sect. 1 of 11 & 12 Vict. c. 4. 
 I hold that that section must be governed by the cases 
 cited by Mr. Redwar, and that on the conviction in 
 question being still in force, the plaintiff cannot be entitled 
 to any decree against the defendant. 
 
 I dismiss the suit with costs for the defendant. I 
 think that the law on this subject is so clear, that this 
 action should never have been brought ; and that it was 
 necessary that counsel should appear for the defence upon 
 the point of law raised, and I therefore order that the 
 defendant recover costs of counsel. 
 
 CHRISTIAN V. CHRISTIAN. 
 
 March 7, 1892. 
 
 Before Francis Smith, J. 
 
 Practice — Bule nisi — Order of the Court. 
 
 Mr. Renner for Henrietta Christian. 
 
 Mr. Roberts for Sophia Christian. 
 
 In the matter of a rule nisi between Sophia Christian 
 and Henrietta M. Christian — motion by Mr. Renner on 
 behalf of Henrietta M. Christian that an order of the 
 Court, dated October 19, 1891, making the rule nisi 
 between Sophia Christian and Henrietta M. Christian be 
 discharged or revoked. 
 
 By the Court : An application to discharge an order 
 cannot be made by motion. The party seeking to dis- 
 charge such an order must obtain a rule nisi calling upon 
 the other side to show cause. Application refused. 
 
70 FANTI LAW REPORT. 
 
 KWESI AMANPOU v. KOBINA YEW. 
 
 May 27, 1892. 
 
 Before Fkancis Smith, J. 
 
 Chief's Court — Judgment by a Native Tribunal not to he disturbed but 
 confirmed by Supreme Court when given in Accordance with the 
 Customary Law. 
 
 This is an appeal by Kohina Yew, Chief of Easikuma, 
 from the judgment of the District Commissioner's Court, 
 Saltpond, whereby he was ordered by the Court to return 
 to the defendant £14, part of a sum awarded to him by 
 a native Court for adultery committed by the plaintiff with 
 his wife. 
 
 Plaintiff in person. 
 
 Defendant represented by Kofi Bey, his linguist. 
 
 Parties heard. 
 
 By the Court : Let the case be remitted to the Court 
 below to be reopened and evidence taken as to the amount 
 of damages which should be awarded against the plaintiff 
 for the adultery proved against him, such evidence being 
 what according to native law would be considered a fair 
 and reasonable compensation for adultery committed with 
 the chief's wife, and if upon such evidence being taken it 
 is found that the sum of £23 9s., which the Native Court 
 awarded as such compensation to the chief is reasonable, 
 judgment shall be entered by the Court below for the 
 defendant with costs to be assessed by the Court below, 
 and if the sum be less than £23 9s., then the difference 
 between the sum so found and the £23 9s. shall be ordered 
 to be refunded to the plaintiff, but in such a case with 
 costs. 
 
PANTI LAW REPORT. 71 
 
 FULL COUET KEPOET. 
 
 KWEKU JONFIA i-. KOBINA INKATSIA. 
 
 September 8, 1892. 
 
 Before Hutchinson, O.J., and Hayes Eedwae, A.J. 
 
 Stool Property — Tenancy — Adverse Possession — Nonpayment of Tribute 
 — Letter from unlettered Chief — Hearsay Evidence — ■Non-corroboration. 
 
 Mr. Benner with Roberts for appellant. 
 Mr. Eminsang for respondent. 
 
 Judgment. 
 
 Hutchinson, C.J. : This action was brought to recover 
 possession of Kudwo Krom, Ansa Kweku Krom, and Daku 
 Krom, near Sekondi ; and Mr. Justice Smith dismissed it 
 with costs. Inkatsia has been in possession of the three 
 kroms since 1873, and probably since long before that 
 date. Jonfia, therefore, if he is to succeed must make out 
 a strong case. His case at the trial was that his pre- 
 decessors in title were owners of this property, and gave 
 permission to InJcatsia or his predecessors to occupy it ; 
 and that LiJcatsia for some time paid a money rent for it 
 to Jonfia' s predecessors ; and that moreover, in 1886, 
 Inkatsia wrote a letter to Jonfia and others, " the families 
 at Dixcove," admitting their right to Ansa Kweku Krom, 
 and offering to give it up to them ; and that the title to 
 the other two kroms is the same as that of Ansa Kweku 
 Krom. 
 
 The evidence as to the occupation of the kroms by 
 Inkatsia having been by permission of Jonfiu's ancestors is 
 entirely hearsay ; it consists of statements by Jonfia and 
 Gante, that they had long ago heard persons who are now 
 dead say, that this permission was given. This is a kind of 
 evidence which is admitted in this country in eases of this 
 
72 FANTI LAW EEPOET. 
 
 class ; but it is to be received with great caution, and must 
 be corroborated. In the present case, it is most contra- 
 dictory, and is without corroboration, and is quite unworthy 
 of credit. Then the evidence as to the alleged payments 
 of rents is, in my opinion, false. Mr. Justice Smith dis- 
 believed it ; and the counsel for the appellants made no 
 attempt to persuade us that the learned judge was wrong 
 in doing so. And I have no doubt that the reason why he 
 made no such attempt was because he knew that this 
 evidence was false. 
 
 Upon this appeal counsel for the appellant has placed 
 his chief reliance on the letter of 1886. This letter 
 was produced by Agiman, a chief of Dixcove ; it purports 
 to be signed by Inhatsia and to be addressed to Jonfia and 
 others, whom it speaks of as "the families of Dixcove; " 
 and in it Inkatsia is represented as saying that he knows 
 well that Ansakue (which is assumed by both sides to mean 
 Ansa Kweku) Krom belongs to the families of Dixcove ; 
 and that they may come and take it, but that he will not 
 allow Annesi (who was then the head of " the families of 
 Dixcove ") to live on it. The body of this letter is appar- 
 ently written by the same hand as the signature. It is 
 admitted that Inkatsia did about that time send to Agiman 
 a letter about Ansa Kweku Krom. Inkatsia's counsel 
 contends that this is not the letter which was sent but is a 
 forgery. I see nothing however to throw any doubt upon 
 it, and I think this is the letter that Inkatsia sent. It 
 is written in English, and purports to be signed by Inkatsia. 
 But it is proved that it was written by some clerk at his 
 request ; and it is extremely probable that Inkatsia cannot 
 read or write or understand English. There is no evidence 
 as to who was the writer, nor is there sufficient to satisfy 
 me that the letter expresses accurately what Inkatsia 
 meant to say. But even if we take it in the strongest 
 possible way against the defendant, it is not nearly enough 
 to prove Jonfia's title to Ansa Kweku Krom. 
 
 The judgment of the Court below was right. The 
 
FANTI LAW REPORT. 73 
 
 appeal is dismissed, and the appellant must pay the costs 
 of it. 
 
 Hayes Eedwar, A.J. : After the very clear judgment 
 delivered by the Chief Justic^ there is but little necessity 
 for me to make any further\;emarks on this case. I 
 strongly concur with His Honours^ to the necessity in 
 cases of this kind, where one of the~^arties has been in 
 possession of land for a long period of time, to enforce the 
 settled principle of English law, and require the plaintiff 
 to succeed only on the strength of his own title. 
 
 Now, in this case, the evidence as to the payment of 
 rent or tribute by the defendant or his ancestors has com- 
 pletely failed, while the letter acknowledging the title of 
 plaintiff has not been proved, in my opinion, to be 
 authentic. It is remarkable also that in the case of this 
 letter purporting to be written by a chief, or at least signed 
 by him, there has been no evidence adduced by plaintiff to 
 show that the chief knew how to read or write, nor was 
 any other writer of it called in the Court below. That 
 being so, all the evidence adduced by plaintiff fails, and his 
 case must fail also. 
 
 In re CHAELES POWEE, Deceased. 
 
 September 15, 1892. 
 
 Before Hayes Eedwar, J. 
 
 Practice — Letters of Administration — Poverty of Applicant — Qrand- 
 mother of Deceased. 
 
 Application for letters of administration. The applicant 
 is heard and states her name is Ahosua Taiwia, widow and 
 grandmother of the deceased. She applies for Free Letters 
 of Administration, and the dispensing with Court fees on 
 the ground of poverty. AfSdavit read. 
 
74 FANTI LAW REPORT. 
 
 Court refers to Order ii., Eule 6, Schedule 2 of Supreme 
 Court Ordinance, 1876. 
 
 By the Court : Upon hearino; the applicant, AJwsua 
 Taiwia, and upon reading the affidavit filed in support of 
 this application, which satisfies me that she is in poverty, 
 I order that the payment of all fees of Court necessary for 
 the purposes of this application for Letters of Administra- 
 tion be dispensed with. And let the usual notices citing 
 the next of kin he posted at Cape Coast Castle and Elmina 
 for fourteen days. 
 
 AMISSA r. ANAWOOMA. 
 
 December 2, 1892. 
 
 Before Hayes Eedwar, J. 
 
 Statute of Frauds not Applicable — Contract hy Natives. 
 
 Special case stated by the District Commissioner, Salt- 
 pond, upon the following question of law, viz. : — 
 
 Whether upon the facts stated and having regard to 
 the fact that the parties are natives and illiterate the pro- 
 visions of the Statute of Frauds, Sect. 17, and Lord Tenter- 
 den's Act, Sect. 7, should be strictly enforced. No contract 
 in writing or other conditions of the statute being fulfilled. 
 
 Plaintiff appears in person. 
 
 Defendant does not appear. 
 
 Plaintiff is heard. 
 
 By the Court : This special case stated for the opinion 
 of this Court pursuant to Order xli.. Schedule 2 of S.C.O., 
 1876, by the District Commissioner of Saltpond, coming on 
 Thursday to be heard and argued, in the presence of the 
 Ijlaintifi" in person, the defendant not appearing, although 
 notified that he was at liberty to attend at the argument 
 and be heard if he so desired. Upon hearing the plaintiff 
 and reading such special case, this Court is of opinion that 
 
FANTI LAW REPORT. 75 
 
 having regard to the fact that both parties hereto are 
 natives and illiterate, and that the matter is already 
 settled by judicial authority, the provisions of Statute 29, 
 Charles II. c. 3 Sect. 17, and Statute 9, George IV. c. 
 14 Sect. 7, should not be strictly enforced. The case is 
 remitted to District Commissioner's Court to deal ■with 
 accordingly. 
 
 QUANSAH V. KEEEDEH. 
 
 December 30, 1892. 
 
 Before Hayes Eedwae, J. 
 
 Ohiefs Jurisdiction — Attendance of Parties — Enforcing Judgment — 
 Amocoo V. Duher. 
 
 ■fj[ Appeal from a judgment of District Commissioner, Salt- 
 
 1 
 
 /. pond, 
 
 J^^ Cause of action — Assault and false imprisonment, the 
 
 \~5plaintiff claiming £25 damages. 
 
 /^ Mr. Eoberts for appellant, 
 
 -^^ Eespondent (plaintiff) in person. 
 
 ■J^ By the Court : Apart from the question of the suing of 
 
 ^,.^ a judicial officer, this case is governed by the decision of 
 the Full Court in the case of Amocoo v, Duker, in -which it 
 was recognized as settled principle that when a king or 
 chief summons before him a person, that person is bound 
 to appear, and can according to the practice of the Native 
 Courts be compelled to appear, and another case before 
 the Full Court, viz, Oppon v, Ackinie, having decided that 
 a chief has power to imprison on failure to furnish security 
 for costs, which decision seems to involve the same principle, 
 I hold that upon the merits, the defendant had power to 
 do that which she did, as regent and successor to the Kin^ 
 of Dominasi, Moreover, it appears that the prison at 
 Dominasi is registered under the ordinance as to native 
 
76 FANTI LAW EEPORT, 
 
 prisons. It would appear, also, that the decision in the 
 English case of Colder v. Halkett, cited in " Addison on 
 Torts," is in point, and affords protection to a judicial func- 
 tionary when he has no means of knowing (except through 
 the parties) that the cause of action arose without the sphere 
 or scope of his jurisdiction. It also appears in the evidence 
 that the respondent had on previous occasions appeared 
 and submitted to the jurisdiction of the appellant's Court. 
 The judgment of the Court below will therefore be reversed. 
 No costs for counsel or otherwise are allowed, as the respon- 
 dent is an illiterate native. 
 
 KWAMIN SAM v. AMBA DEOWA. 
 
 February 27, 1893. 
 
 Before Francis Smith, J. 
 
 Chiefs Tribunal — Judgment — Enforcible ly the Supreme Court when 
 sued in proper Form. 
 
 Mr. Kofi Asaam for the plaintiff. 
 
 Mr. Sarbah for the defendant. 
 
 Plaintiff claims £50 damages for unlawfully felling 
 twenty-three palm-trees and appropriating the same for 
 her benefit, on his land at Akwasi Kwa. 
 
 Plea : Not guilty. 
 
 Mr. Asaam opens, and informs the Court that the 
 amount claimed had been awarded to the plaintiff by the 
 judgment of a Native Court, both parties submitting them- 
 selves to the judgment of the Native Court. The defendant 
 has paid the costs awarded, but refuses to pay the damages. 
 
 Mr. Sarbah contends that the case should be dismissed 
 on counsel's opening, as the plaintiff is now trying to 
 enforce the judgment of the Native Court by this Court. 
 
 Curia advisare vult. 
 
 By the Court : I must nonsuit the plaintiff. The action 
 
FANTI LAW REPORT. 11 
 
 is brought for trespass, but it is in realitj' an action to 
 enforce the judgment of a Native Court. In such a case the 
 plaintiff must bring his action in the proper form. 
 Costs allowed to defendant. 
 
 AKOSUA BOUN v. AMBA STEELE. 
 
 February 28, 1893. 
 
 Before Feancis Smith, J. 
 
 Builciing Tenure — Right in the Land — Bight to the House thereon — 
 Husband contributing to build or repair Wife^s Family House. 
 
 Mr. Kofi Asaam for the plaintiff. 
 
 Mr. Sarbah for the defendant. 
 
 Eecovery of a house known as John Adams's house, 
 situate at Impurkaim. 
 
 Plea : Possession and freehold. 
 
 Mr. Asaam opened the plaintiff's case. 
 
 By the Court : The Court here intimated to Mr. Asaam 
 that unless he was in a position to prove the purchase of 
 both land and house by Adams, it would be waste of time 
 to proceed with the case ; for the reasons that, assuming 
 Adams bought the land, this would give him no right to 
 the house, as it was built on the land by the permission of 
 the owner, or if he contributed towards the expense of 
 building, he did so as part of the family by marriage, and 
 the plaintiff could therefore have no right to turn the 
 members of the family out of the house. Counsel elected 
 to be nonsuited. 
 
78 FANTI LAW REPORT. 
 
 KWESI ABESSIBRO AND ANOTHER v. KOFI 
 AMA. 
 
 March 21, 1893. 
 
 Before Hayes Eedwar, J. 
 
 Tenure — Originally unusual to transfer Ownership by Gift or Sale — 
 Usufruct of Land — Condition of Holding — Knowledge of Chief of 
 District essential, even when not Owner of Land. 
 
 Eenner, with Sarhah, for the plaintiff. 
 
 Boberts for the defendant. 
 
 By the Court : In this case the plaintiffs claim to 
 recover possession of the lands Bonumsu, Impanga, and 
 Inkran. As regards these lands, I am satisfied upon the 
 evidence that they constitute one tract of country held 
 under one title, and the duty of the Court is lightened by 
 the circumstance that the defendant's counsel has admitted, 
 in summing up the evidence for the defence, that there is 
 no defence as to Bonumsu and Impanga, so that the only 
 matter to be decided is the right to the possession of 
 Inkran. The evidence adduced on both sides is very con- 
 flicting, and that given by Abessibro at the hearing of this 
 cause is not satisfactory on the question of the circum- 
 stances and date of the permission, which he alleges he 
 gave, first to Ampon Kwesi, and then to Kudwo Mensah, 
 as Kwesi's successor. 
 
 But this defect is cured upon reference to the record of 
 the case of Toku v. Mensah ; from which it appears that 
 the evidence of Kudwo Mensah (adduced in this case) is 
 clear as to the terms upon which this permission was 
 given. Moreover, Abessibro's evidence in that case to a 
 certain extent explains what he has said in this case. It 
 is plain that, according to the contemplation of ancient 
 native customary law (as embodied in numerous decisions 
 in this Court, as well as indicated by the evidence adduced 
 in this case), there is no such thing in the interior as an 
 
FANTI LAW REPORT. 79 
 
 absolute transfer of land as between natives, whether by 
 sale or gift, and the only thing that passes is the usufruct, 
 or licence to use the land in certain ways, as disclosed by 
 the agreement between the parties. 
 
 In this case the evidence clearly shows that the para- 
 mount chief must be a witness to the dealing with land in his 
 territory, and that the conditions imposed on this licensee or 
 tenant was that he should serve Tcliihu, which condition he 
 has broken. I am of opinion, however, that the plaintiff 
 Tchibu has no right of ownership in the land, and therefore 
 should not have been joined as a party. I accordingly 
 strike his name out as plaintiff ; but as no costs have 
 been occasioned by his joinder as plaintiff, no mischief 
 has been done, and no terms can therefore be imposed for 
 making this order. 
 
 The judgment will be for plaintiff Abessibro alone, for 
 the recovery of those lands named in the writ of summons, 
 and for the costs of the action, to be taxed. 
 
 ELMINA ASSIZES. 
 
 SOLOMON ACKAH v. AEINTA. 
 
 June 7, 1893. 
 
 Before Fbancis Smith, Acting Chief Justice. 
 
 Marriage Ordinance, 188i — Criminal Conversation — Remedy for Adultery. 
 
 Mr. Renner for plaintiff. 
 Defendant in person. 
 
 Judgment. 
 
 The plaintiff claims £50 damages for seduction of one 
 Sarah Ackah, his wife, at Insimbu, in the district of Bayin, 
 
80 FANTI LAW REPORT. 
 
 and to this action the defendant has admitted that he had 
 connection with the plaintiff's wife, the evidence disclosing 
 that a child was born of this connection. The right to 
 recover damages in such cases is settled by native law ; 
 but, under the circumstances of this case, the question 
 arises as to whether the plaintiff can claim the benefit of 
 the native law in this respect, the action at common law 
 for criminal conversation having been abolished by the 
 Matrimonial Causes Act, 1857, in force in the Colony. 
 The question arises from the plaintiff having first married 
 according to native law, and then subsequently going 
 through the ceremony of marriage with the same person 
 in the Wesleyan Chapel at Bayin, by a minister of the 
 Wesleyan denomination, and, as the evidence points out, 
 according to the rites in use by that religious body ; both 
 events taking place prior to the passing of the Marriage 
 Ordinance, 1884. I should have thought that going through 
 the ceremony of marriage at the Wesleyan Chapel altered 
 the status of the parties, and conferred rights and privileges 
 entirely different from, and at variance with, those under 
 native law, from the provision of sect. 38 of the Ordinance, 
 which declares every marriage celebrated in the Colony 
 before the commencement of the Ordinance by a minister 
 of any religious denomination according to the rites in use 
 by such body to be valid and legal, and I should not have 
 considered that there was any doubt as to this being the 
 correct view, but for a decision, referreid to in the argument, 
 of the Divisional Court, Accra, on similar facts, in the 
 case of re Ammettefe, deceased ; that Court holding that 
 such subsequent marriage was not such as was meant by 
 sect. 38, and amounted to nothing more than " a blessing 
 giving the solemn recognition of a Christian community to 
 the native marriage." The reasons which appear to me to 
 be assigned for the judgment are : (1) By sect. 19 of the 
 Supreme Court Ordinance the " Court has to observe and 
 enforce between natives, all native laws and customs 
 which are not repugnant to natural justice and so forth," 
 
FANTI LAW EEPOUT, 81 
 
 and " particularly in matters and causes relating to mar- 
 riage." Therefore, persons who are married according to 
 the native law are lawfully married, and such "persons 
 already lawfully married could not he married over again." 
 (2) The last clause of sect. 41 is intended to secure that 
 before a native contract a marriage under " the Ordinance 
 he shall have explained to him what the effect will be on 
 the devolution of his property. But with regard to cases 
 before the Ordinance passed no such explanation of course 
 could have been given ; " and (3). It is " provided by that 
 section" — viz. sect. 38 — that "nothing herein contained 
 shall legalize any marriage — either party to which had at 
 the time of its celebration a lawful wife or husband 
 living, omitting the important words ' other than the 
 person with whom such marriage is had,' which occur 
 in the other sections," viz. in sect. 12 (d), sect. 35, and 
 sect. 42, ss. 7. Having every respect for the judgment 
 of the Divisional Court, I feel somewhat diffident in differ- 
 ing from the opinion of the learned judge ; and differing as 
 I do, I think it but right to give my reason for so disagreeing. 
 As to the first point, the question to my mind is not whether 
 a person married according to native law and therefore 
 lawfully married cannot be married over again, but what 
 has the Legislature declared on the subject. For the 
 Legislature can legislate that a square peg shall be con- 
 sidered and taken to be a round peg. Now the Legislature 
 has provided in clear and unmistakable terms that a person 
 married according to native law can be again married 
 according to English law, and that, with regard to marriages 
 celebrated previously to the passing of the Ordinance by a 
 minister of any religious body according to the rites in use 
 by such body, such marriages shall have the same effect to 
 all intents and purposes — for they are deemed to be equally 
 valid and lawful — as marriages contracted subsequently to 
 the passing of the Ordinance. It follows, therefore, to de- 
 prive persons who were married according to native law, 
 and then according to English law prior to the passing of 
 
 G 
 
82 FANTI LAW EEPOET. 
 
 the Ordinance of the benefit of the provisions of that Ordi- 
 nance, plain and unambiguous language to that effect must 
 be employed by the Legislature, and I can gather nothing 
 from the scope of the Ordinance which is both prospective 
 and retrospective in its operation, or from the exception 
 above referred to in sect. 38, ■with which I shall hereafter 
 deal, to warrant me in coming to such conclusion. 
 
 As to the second point of the provision of the last clause 
 of sect. 41, viz. "Before the Eegistrar of Marriages 
 issues his certificate in the case of an intended marriage, 
 either party to which is a person subject to native law or 
 custom, he shall explain to both parties the effect of these 
 provisions as to the succession of property as effected by 
 marriage," is a valid reason against holding that the 
 Legislature intended to validate marriages of persons by 
 ministers of any religious denomination according to the 
 rites in use by such body, the same person having been 
 previously married according to native law, both events 
 taking place prior to the commencement of the Ordinance, 
 because in such a case the explanation referred to above 
 could not be given, then such a reason must avail against 
 the validating of marriages celebrated prior to the passing 
 of the Ordinance by any minister as aforesaid, though the 
 parties to such marriages were never married according to 
 native law. And to hold this we must give the go by to, 
 instead of interpreting, the express words of the Legislature, 
 viz. " every marriage celebrated in the Colony before the 
 commencement of this Ordinance by any minister of any 
 religious denomination or body shall be and shall be deemed 
 to have been from the time of the celebration thereof a legal 
 and valid marriage." From the very words it is obvious 
 that the Legislature never intended that the provision of 
 the last clause of sect. 41 should effect the validity of 
 prior marriages. And if so, by what authority can we 
 discriminate, if the Legislature has not done so, between 
 prior marriages ; holding, on the one hand, that the Ordi- 
 nance applies to cases where parties have not, in the first 
 
FAKTI LAW REPORT. 83 
 
 instance, been married according to native law; and, on 
 the other hand, not to cases where they have been so 
 married. And is it not a fair test of the intention of a 
 Legislature which deals with past and future marriages to 
 regard the legislation on future marriages as throwing light 
 upon the construction to be put on its intention as to past 
 marriages? And this brings me to the consideration of 
 the third reason, the exception in sect. 38. That pro- 
 viso, as I have before quoted, reads thus : " Provided that 
 nothing herein contained shall legalize any marriage, either 
 party to which had at the time of its celebration a lawful 
 wife or husband living." Now, the Legislature does not- 
 say that the marriage of either party to the lawful wife or 
 husband living shall not be legalized ; but the marriage of 
 either party having a lawful wife or husband living, thereby 
 indicating a marriage by either party with a person other 
 than the lawful wife or husband. And in this view the 
 addition of the words " other than the person with whom 
 such marriage is had " is necessary. The intention of the 
 Legislature was not to legalize bigamy ; not that parties 
 married according to native law would be guilty of bigamy 
 if they again contracted a marriage by English law, for 
 from the nature of the case they could not commit this 
 offence ; whilst on the other hand the Legislature has 
 approved and sanctioned this double marriage. But 
 further, if any of the provisions in sect. 38 throws light 
 on the subject under consideration, it appears to me that 
 the last proviso does, that is, inferentially. That proviso 
 is this : " Not any marriage otherwise invalid that is not 
 coming under any of the previous provisos, but otherwise 
 invalid by what follows, viz. either party to which shall 
 before the commencement of this Ordinance, and in the 
 lifetime of the party thereto have intermarried with any 
 other person." This proviso, though differently expressed, 
 contains, in my opinion, the same restriction as in sect. 
 12 {d), viz. that either party once married, say by native 
 law, for a marriage by- a native law equally comes under 
 
84 FANTI LAW REPORT. 
 
 the proviso, could not have in the lifetime of the other party- 
 intermarried with any other person, hut inferentially he 
 could have married again by English law if the person with 
 whom he contracted the subsequent marriage was the 
 person whom he had married by native law. If this be not 
 the construction to be placed on this proviso and the infer- 
 ence to be drawn therefrom, then I fail to understand the 
 meaning of the words " any marriage either party to which 
 shall in the lifetime of the party thereto have intermarried 
 with any other person." But the words are not ambiguous, 
 and I have no doubt that I understand their meaning. On 
 the whole I am unable to find out, either from the proviso 
 in sect. 38 or from inferences to be drawn therefrom, or 
 from any other part of the Ordinance, any expression to 
 control and restrict the wide operation of the commence- 
 ment of sect. 38 to cases where the parties were not 
 previously married according to native law. For these 
 reasons I feel boimd to differ from the judgment of the 
 Divisional Court, Accra ; and I hold that sects. 38 and 
 41 apply to marriages between natives celebrated before 
 the passing of the Ordinance by any minister of any 
 religious body according to the rites in use by each body, 
 though the same parties may have previously been married 
 according to native law. I find that the plaintiff was legally 
 and lawfully married by a Wesleyan minister according to 
 the rites in use by the Wesleyan body, and therefore his 
 obligations, rights, and privileges must be regulated by 
 English law; for sect. 16 of the Supreme Court Ordi- 
 nance provides that the jurisdiction conferred upon the 
 Court in matrimonial causes shall be exercised in con- 
 formity with the law for the time being in force in England, 
 The plaintiff could have, by petition supported by affidavit, 
 without ever asking for the dissolution of the marriage or 
 for a judicial separation, successfully claimed damages from 
 the defendant for the wrong done. But he cannot succeed 
 on the action he has instituted. The plaintiff will there- 
 fore be nonsuited, but without costs. 
 
FANTI LA.W EEPORT. 85 
 
 FULL COUET EEPORT. 
 
 F. AND A. SWANZY v. JAMES BOEDOH. 
 
 August 26, 1893. 
 
 Before Fkancis Smith, A.C..T., and Hayes Eedwae, J. 
 
 Practice — Consent Judgment — Mortgage — Accounts — Set-off rejected at 
 
 Hearing. 
 
 Mr. Sarbah for appellants ; Mr. Roberts for respondent. 
 
 This is an appeal from the judgment of Mr. Justice 
 Eedwae given on October 24 in favour of the defendant 
 (the respondent). 
 
 Mr. Roberts tabes a preliminary objection, that is, that 
 judgment was entered by consent, and no appeal would lie 
 therefrom. 
 
 The Court pointed out that counsel for the appellants 
 had applied for leave to adduce further evidence as to 
 repairs made by the plaintiffs ; and also as to other 
 expenses incurred in respect of the premises ; and that 
 application had been refused, though the appellants were 
 charged as mortgagees in possession under a counter-claim 
 for occupation rent ; and therefore the judgment could not 
 be said to be by consent. 
 
 Objection overruled. 
 
 After the intimation by the Court that the appellants 
 were entitled, when charged as mortgagees in possession 
 to all necessary expenses for repairs which were not allowed 
 them, Mr. Roberts sat down. 
 
 Mr. Sarbah is not called upon. 
 
 Smith, A.C.J. : Let this case be remitted to the Court 
 below to be heard de novo, the Court below hearing it by 
 taking the accounts itself or referring the investigation of 
 the accounts to a referee. or referees as it shall think proper. 
 
 Judgment below reversed ; as the appellants have suc- 
 ceeded they are entitled to the costs of the appeal. 
 
86 FANTI LAW EEPORT. 
 
 Eedwar, J. : I concur. I think that I should not have 
 refused to admit evidence in reply to the counter-claim on 
 the point of repairs, but I had in my mind at the time of 
 my refusal in the Divisional Court the impression that, the 
 application was in effect one for amendment of the plaintiff's 
 ■writ. 
 
 KWESI MENS A v. KKAKUE AND STOOVIE. 
 
 August 17, 1894. 
 
 Before Hayes Eedwar, J. 
 
 Family Property — Family Stool — Bight to sue — Consent of Members of 
 Family — Right of Children to reside in, Father's House. 
 
 Judgment. 
 
 In this case the plaintiff's writ states his claim to be as 
 " successor and administrator of Eccra Kweku," and that 
 he claims ^50 damages for trespass by defendants upon the 
 premises of plaintiff, being that messuage, dwelling-house 
 and premises situate at the main street, Elmina, the 
 property of the family of Eccra Kweku, deceased, which 
 plaintiff is the head, and an injunction, etc. Because of the 
 slipshod English on the writ it became necessary to amend 
 the claim by adding some words to give intelligibility to the 
 latter portion of the writ. So that it runs now as follows : 
 " of which family plaintiff is the head." "Why, however, 
 when the claim was trespass on a freehold dwelling-house, 
 it should have been thought necessary to express in the 
 writ that the plaintiff was suing as administrator, is not by 
 any means clear. However, as the writ stated that he was 
 also suing as successor to Eccra Kweku, its meaning was 
 discoverable, and it is of course only as successor that the 
 plaintiff could maintain such an action. Much evidence 
 has been given as to pedigree, etc., in this case, and expert 
 evidence was also called upon the question of native law 
 
FANTI LAW REPORT. 87 
 
 involved as to the succession of plaintiff. After, however, 
 giving the most careful consideration to the somewhat 
 lengthy evidence adduced, I am compelled to find that 
 plaintiff was never placed on the stool of Eccra Kweku 
 according to the formalities prescribed by native law, and 
 that it is doubtful, even whether Eccra Kweku was 
 properly placed on the stool of Akwah. It has, however, 
 been urged that a defect in the installation of plaintiff or 
 his predecessor should not vitiate the title of plaintiff, as 
 installation merely gives publicity to what the native law 
 of succession has already done, and that plaintiff's right to 
 succeed according to native custom is clear, and therefore 
 his right to sue in trespass as Eccra Kweku's successor is 
 established, as he is the proper person to protect the 
 family property. As against this, however, it is urged 
 that even assuming that a defect in installation does not 
 vitiate the plaintiff's succession (and the expert evidence 
 supports this view to a considerable extent), the plaintiff 
 has not been shown to have obtained the consent of 
 Akwah's and Eccra Kweku's family to take these proceed- 
 ings, and the evidence of Chief Kweku Andoh (an unbiassed 
 witness) is relied on as showing that this consent of the 
 family should be obtained before action, inasmuch as, by 
 native custom, each member is liable to contribute to bear 
 the costs of the suit ostensibly undertaken for the defence 
 of the family property. This seems to be a most just 
 custom, but as against this it has been argued that such a 
 view has never been taken by the Court, and that if this 
 be law, the result would be that the most essential legal 
 proceedings for the protection of the family interests 
 might be prevented by the obstinacy of one dissentient 
 member. Inasmuch as doubt is thrown upon this con- 
 tention of the defendants, I hesitate to give the sanction 
 of this Court to this theory, by holding that such 
 consent is essential; although I incline greatly to take 
 this view. I now address myself to a consideration of the 
 question as to whether a trespass has been committed by 
 
88 FANTI LAW REPOET. 
 
 defendants, Now the defendants have pleaded not pos- 
 sessed, liberum tenementum, and not guilty. 
 
 As to the first two pleas, I find that they are not 
 sustained. All that the defendant Krakio has, according 
 to the native custom as proved in evidence, is a right to 
 occupy his father's house during his good behaviour, being 
 liable to be turned out for misconduct. I find that he is 
 the freeborn son of Eccra Kweku, and that this right of 
 occupation during good behaviour is his by native custom. 
 Then arises the question whether there has been such 
 misconduct as to justify plaintiff, as representative of the 
 family, in regarding defendant as a trespasser. Now the 
 plaintiff gave defendant permission to occupy a room in 
 the house in dispute, and defendant has so occupied since 
 1890, and in December, 1893, he has without any dissent 
 on plaintiff's part, or that of the family, used his right of 
 occupation by opening shops downstairs. No objection is 
 taken to this, and nothing in the expert evidence appears 
 to limit the user of the father's house by his child. In 
 March, 1894, a notice to quit or pay occupation rent is 
 suddenly served on defendant, no misconduct being referred 
 to in the notice, and the tenancy of defendant being clear 
 except misconduct is alleged. The very form of the notice 
 indicates that the native custom was not thought of, as no 
 reference is made to misconduct. Then besides this I find 
 that the same members of the family who have occupied 
 the house continue in such occupation, and there is no 
 evidence of any exclusion of the family from their rights. 
 No act is proved inconsistent with their rights at the time 
 this action was brought. I find therefore that the plea of 
 not guilty is sustained, and the complexion of the case and 
 general demeanour of plaintiff' and his witnesses incline me 
 to the view that this suit is a trumped up attorney's suit. 
 The judgment will be for the defendant, and with costs to 
 be taxed. 
 
FANTI LAW EEPORT. 89 
 
 PAGAY V. TOKU. 
 
 November 28, 1894. 
 
 Before Pbancis Smith, J. 
 
 Written Instruments — Unlettered Persons — Evidence. 
 
 Claims £35 from the defendant as surety for one Kofi. 
 
 Judgment. 
 
 In cases of this character, where an illiterate man is 
 sought to be charged on a written instrument with interest 
 at an exorbitant rate as a surety, the evidence must be 
 clear and without the shadow of a doubt that the instru- 
 ment was explained to the surety, and he fully comprehended 
 its meaning and undertook the responsibility. The 
 defendant has denied that he undertook to become surety 
 for the payment of any sum, by way of interest, of £10 
 every two months on failure of the payment of £20 
 borrowed, and interest of £10 thereon, etc. 
 
 EEGINA V. AMAKIE AND OTHERS. 
 
 July 11, 1895. 
 
 Before Hates Eedwae, J. 
 
 Riot Case — Adjournment of Trial — Habeas Corpus Ad. 
 
 The prosecution applied for an adjournment of the 
 hearing during the Assizes. 
 
 By the Court: In these cases the Crown Prosecutor, 
 and Mr. Alade for prisoners, apply for adjournment to the 
 22nd instant. The Court holds that even although 
 prisoners' counsel supports this application, the adjourn- 
 ment cannot be granted in the case of Reg. v. AmaJcie and 
 
90 FANTI LAW EEPORT. 
 
 Others, and Beg. v. Otoo and Others, as the prisoners were 
 arraigned at the June Assizes, 1895, and their trials were 
 adjourned to these Assizes. This adjournment -would, in 
 my opinion, be contrary to spirit and letter of the Habeas 
 Corpus Act, as owing to the lengthy nature of the cases 
 they would certainly go over to August Assizes, and their 
 application cannot therefore be entertained. 
 
 KUOW AIDOASI V. KWEKU ABBAN. 
 
 May 27, 1896. 
 
 Before Feancis Smith, J. 
 
 Stool Debt — Mortgaging Stool Property — Domestics' Liability to pay Stool 
 Debt — Mortgagee's Bight — Trespass — Damages. 
 
 Trespass on land at Aigirfa, pawned. 
 
 By the Court : When Kwekuenu and Otuakwa defended 
 the action brought by Kurentsir to recover the stool of 
 Braffu Tuakwa, they were acting in the interest of the 
 stool property and for the good of the domestics. The 
 expenses incurred by them became a stool debt, and for 
 the payment of it the stool property was liable. The 
 lands were not the individual property of the domestics, 
 but simply they were allowed to use them; for so doing 
 they were responsible to contribute towards the stool debt. 
 This the defendant and others who sided with Kurentsir 
 refused to do, and yet continue to occupy the stool 
 property. There was, therefore, no alternative left for 
 Kwekuenu and Otuakwa to pay off the stool debt except 
 by raising money on the stool property. The defendant, 
 knowing that the land in dispute was mortgaged for 
 this purpose, should not have destroyed the palm-trees 
 thereon without the plaintiff's permission. He has been 
 guilty of the trespass, and I give judgment for the plaintiff, 
 assessing the damages at £5, and costs. 
 
FANTI LAW KEPOET. 91 
 
 KUOW AIDOASI V. KWAMINA ABADOO. 
 
 May 28, 1893. 
 
 Before Francis Smith, J. 
 
 Stool Debt — Mortgaging Stool Land — Domestics — Eight of Mortgagee to 
 sue for Trespass — Damages. 
 
 Plaintiff claims damages, £30, for trespass in cutting 
 down fourteen palm-trees on his land Anyenboo, pawned 
 to him by Kwekuenu and Otuakwa. 
 
 The facts in this case are substantially the same as in 
 the last preceding case. The defendant admits that he is one 
 of the domestics of Braffu Tuakwa ; that he was summoned 
 to the meeting to contribute towards the expenses, and 
 that he refused to do so. He acknowledges cutting down 
 twelve palm-trees, but he denies it was before he knew 
 the land had been pawned. 
 
 By the Court : I am satisfied upon the evidence that 
 the defendant weU knew that this land had been pawned. 
 His last witness confirmed the evidence of Arhin and Sam. 
 His manner in the witness-box convinced me that he 
 well knew, and his action was in defiance of what had 
 been done. In the last case I stated that by the action 
 of the domestics who sided with Kurenstir in refusing to 
 contribute their expenses towards the stool debt, Kwekuenu 
 and Otuakwa had no other alternative than to raise money 
 by pledging the stool property. There will be judgment for 
 the plaintiff ; damages assessed at £8 and costs. 
 
92 FANTI LAW REPORT. 
 
 IN THE MATTEE OF JAMES HAGAN, Deceased. 
 Caveatrix, Mercy Hagan. 
 
 July 29 and 30, 1896. 
 Before Hayes Eedwab, J. 
 
 Letters of Administration — Grant to Widow — Nephew of Deceased — 
 Marriage Ordinance, 1884, sect. 41 — Compromise between Widow 
 and Nepheio of Deceased. 
 
 Mr. SarbaJi for caveatrix, Mr. Roberts for applicant. 
 
 Caveat against grant of letters of administration to 
 Kicesi Kuiitoo. 
 
 Caveatrix, Mercy Hagan, widow of deceased. 
 
 Caveat entered July 23, 1896. 
 
 Caveatrix warned by applicant, Kiuesi Kuntoo, on July 
 24, 1896. 
 
 By the Court : The question to be decided on a caveat 
 of this nature is not as to how the property should be 
 administered and distributed among the beneficiaries, but 
 is simply a question on the probate side of the Court as 
 to whom the grant of letters of administration should 
 be made. Now, according to sect. 41 of the Marriage 
 Ordinance, 1884 (No. 14), the personal property, and also 
 the real property of an intestate, of which the intestate had 
 a power of testamentary disposition (that is to say, per- 
 sonalty and any realty which the intestate acquired as 
 individual property), is distributable according to the Eng- 
 lish statute of distributions as to the personal estate of the 
 intestate ; notwithstanding and unaffected by native custom, 
 provided the intestate was married according to the rites in 
 use in any Christian denomination. The Marriage Ordi- 
 nance, however, provides, in the same section, that real 
 property, the succession to which cannot by native custom 
 be affected by any testamentary disposition {i.e. family 
 property in land or houses), shall descend according to 
 the native law of succession. The result is that, any person 
 
FAKTI LAW EEPORT. 93 
 
 obtaining a grant of administration to the estate of an in- 
 testate when the intestate was validly married by Christian 
 rites can only deal with personalty, and any individual 
 property in land, but not family property, which devolves 
 on the heir by native custom. The administration in such 
 a case takes, therefore, only personalty and individual 
 property in land and houses, and must administer the 
 same for the benefit of the next of kin according to English 
 law. Now, I have only to consider on this caveat whether 
 the widow of this intestate has a better right to the grant 
 than the applicant. As to this, I hold that, as regards 
 personalty and individual property (the only classes of 
 property affected by a grant), in making a grant of ad- 
 ministration, the Court must be guided by English law, 
 and this caveatrix, being the widow of the intestate (to 
 whom she was married by the rites in use by the "Wesleyan 
 Society of Protestant Dissenters), stands on the same foot- 
 ing as the widow of an intestate in England. Now, by 
 English law the widow is preferred to the children, and 
 the nephew stands last in the order of preferences as 
 regards grants. Then arises the question. Can the widow 
 be precluded from obtaining a grant by accepting a sum of 
 money as the award of arbitrators ? Clearly not, as she 
 would have to deal with the property covered by the grant, 
 not only for hfi*-flrWn benefit, but also for the benefit of the 
 next of kin. r Her own beneficial interest is not the only 
 thing to be cofiSidered, but the question is, should she not 
 be preferred to the nephew, who, according to the English 
 Statute of Distribution, could.Jiave np^interest, since the 
 widow would be entitled ^ one-third^^iid the children to 
 the remaining'wo-third^ \The iniant, James Hagan, who 
 is only eightennr"yeariof Ige, cannot, in my opinion, by 
 signing the document annexed as an exhibit to the appli- 
 cant's affidavit filed to-day, be deemed to have precluded 
 himself in any way, or precluded his mother, from apply- 
 ing for a grant. The caveat, therefore, is sustained, and 
 the caveatrix, Mercy Hagan, is entitled to apply for a grant 
 
94 PANTI LAW EEPOET. 
 
 to herself. Should anybody claiming to be beneficially 
 interested in the estate deem himself to be aggrieved by 
 the mode in which any person obtaining the grant is deal- 
 ing with the estate, such person's remedy is by administra- 
 tion summons on the equity side of this Court against the 
 persons who obtained the grant. 
 
 ABBA GAISIWA v. KWA AKRABA. 
 
 September 1, 1896. 
 
 Before Hayes Eedwab, J. 
 
 Family Property — Sale — Family Liability — Voidable—Notice to Members 
 of Family of Proposed Sale Necessary. 
 
 Plaintiff claims to recover from the defendant possession 
 of land situate at Amissa Akyre, Cape Coast, wrongfully 
 sold to defendant by one Effua Mansah. 
 
 Plea : I bought the land from one Effua Mansah and 
 her family. 
 
 Plea in effect : " Purchaser for Value without notice." 
 
 By the Court : In this case the decision must be given 
 according to native law. It is to be regretted that Effaa 
 Mansah and her family can do nothing in the way of such 
 an amicable settlement as would make matters easy for 
 this defendant. Under the circumstances I must give 
 judgment for the plaintiff for the recovery of the possession 
 of this land. I am satisfied of the existence of the native 
 custom of the head of a family being entitled to sell family 
 land without the concurrence of the members of the family, 
 when the head of the family has asked the members to 
 contribute to the expenses of litigation in defence of the 
 family land and they have refused to contribute. But 
 although the evidence shows that the family have been 
 asked to contribute, and have not contributed to the ex- 
 penses incurred by Effua Mansah, the head of the family 
 
FANTI LAW EEPORT. 95 
 
 (according to the opinions of three of the referees), the 
 family should have been notified of the intention to sell 
 the property before selling. This has not been done. 
 Judgment must therefore be entered for the plaintiff, and 
 the costs of the action to be taxed. 
 
 RE GIN A V. KOBINA AMANQUA. 
 
 November 11, 1896. 
 
 Before Hayes Eedwae, J. 
 
 Practice — Slave Dealing — Criminal Code — Information — Joinder of 
 Offences — Duplicity — Quashing Information — -Trial hy Assessors. 
 
 Cummings opens, and is about to adduce evidence when 
 the Court calls attention to the form of the Information 
 and its misspelt words. Mills then raises an objection that 
 the Information is bad for duplicity as charging several 
 offences in one count. He urges that this is a defect of 
 substance, and may be objected to even after the assessors 
 are sworn, and applies for the quashing of the Information, 
 as an amendment would prejudice the defence. 
 
 The Court comments on the defective form of the Infor- 
 mation, etc., and calls on the Crown Prosecutor for argument 
 upon the question whether an amendment may be granted 
 where the offences are charged in the alternative as in this 
 Information. Cummings states that he prefers to leave 
 the matter in the hands of the Court. The only arguments 
 he advances are that the offences in this Information are 
 charged in the words of the Criminal Code, and, therefore, 
 the offences should be deemed to be sufficiently charged 
 "within the meaning of the Criminal Prosecution Amend- 
 ment Ordinance, 1893, sect. 2," and, further, that the Court 
 should not be guided by any English decisions in construing 
 the Criminal Code. The word " or " used in the Information 
 between each of the offences charged, occurs also in the 
 
9G FANTI LAW BEPOET. 
 
 Criminal Code, and therefore it is right to charge that the 
 accused did buy, sell, transfer, or hold as a security for 
 a debt. 
 
 By the Court : In this Information the accused is 
 charged that he did buy, sell, transfer, or hold as a security 
 for a debt, a certain boy called Yaw. This charge is, 
 therefore, in the alternative, and is all contained in one 
 count, and the question is, whether the Court can amend 
 the Information without prejudicing the prisoner in his 
 defence, or should quash the Information as for a defect of 
 substance. I do not agree that the Code is the only thing 
 to be looked at as regards procedure and drafting. Of 
 course, offences should be deemed sufficiently charged, if 
 charged in the words of the ordinances creating the offences, 
 but to merely copy in a blind way the words of the 
 ordinance is a different matter from seeing that a charge 
 is properly made in the words of the ordinance under 
 which the proceeding is taken. It is almost difficult for a 
 person to plead to an Information which charges in one 
 count so many offences in the alternative, and it seems as 
 if the proceeding is a speculative one, undertaken in the 
 hope that the evidence to be adduced will support one or 
 other of the offences sought to be charged. It is, indeed, 
 difficult to say what is charged, when so many offences are 
 separated by the disjunctive "or." This is embarrassing. 
 It is laid down clearly in " Saunders on Indictments " (p. 12), 
 that the state of the offence charged . . . distinct count. 
 
 " Archibald on Criminal Pleadings " supplements this 
 view. The proper course would have been to charge the 
 several acts in several counts, taking care that the counts 
 are not repugnant to each other. I am of opinion that I 
 have no alternative but to quash this Information for a 
 defect of substance such as would be demurrable in law, 
 and that this may be done at this stage, as this is more 
 ■than a formal defect, and that even so, the assessors are 
 not quite on the same footing as jurors in that respect. 
 The Information, therefore, is quashed, it not being possible 
 
FANTI LAW EEPORT. 97 
 
 in my opinion, to amend without prejudicing the prisoner 
 in his defence. 
 
 The prisoner is then discharged on the quashing of the 
 Information, as for a defect of substance, and the assessors 
 are also discharged. 
 
 LONGDON V. SAGOE. 
 
 February 24, 1898. 
 Before Francis Smith, J. 
 
 Statute of Limitations — English Law — Ahsence of Agreement to regulate 
 Contract ly English Law — 8.0.0., 1876, sect. 19. 
 
 This was a claim for balance for goods sold and 
 delivered to defendant in 1878 ; that is, about nineteen 
 years previous to this action. Both parties could read and 
 write. Plaintiff at the trial produced a book of account 
 containing entries made at the time of the transaction. It 
 does not appear from the magistrate's notes of evidence 
 that defendant did, at any time after the first six years 
 from the delivery of the goods, acknowledge his indebted- 
 ness, nor did his counsel plead the statute. Judgment 
 was given in favour of the plaintiff, and from this the 
 defendant appealed. 
 
 Mr. Fearon for appellant. Eespondent in person. 
 
 Mr. Fearon argued that the claim of the plaintiff was 
 barred by Statute of Limitations, contending further that 
 the case should be remitted to the Court below to be 
 reviewed, on the ground that appellant has since got 
 witnesses to disprove the plaintiff's claim. 
 
 By the Court : I do not find on the evidence that the 
 statute was pleaded, and as counsel was employed in the 
 Court below, it was his duty to have had on the Eecord 
 this plea. If English law is to prevail, the procedure also 
 must be observed. But even if the plea were on the Eecord, 
 I do not find upon the evidence relating to the transaction 
 that the parties agreed to be bound by English law, and it 
 
 H 
 
98 FANTI LAW EEPOKT. 
 
 appears that in the absence of this plea, that even counsel 
 was of that opinion. On the other point, there are no 
 facts to warrant me to remit the case to be reheard. 
 
 Appeal therefore dismissed, with costs assessed at 14s. Qd. 
 Judgment to be enforced by the Court below. 
 
 ESABUA KUOW v. KUDWO AWUA. 
 
 Axim, June 19, 20, 1898. 
 
 Before Eichaeds, J. 
 
 Trespass — Action hy Head of Family — Plea of Not Guilty. 
 
 This was an action by plaintiff, the head of his family, 
 against the defendant for trespassing on the plaintiff's 
 ancestral land, being part of Akrobatsi, situate near Axim. 
 The defendant pleaded not guilty. After the Court had 
 viewed the land in the presence of the parties and their 
 witnesses on June 19, 1898, the trial was continued on 
 the following day. The plaintiff alleged it was ancestral 
 property, and brought witnesses to prove his predecessors 
 in title had given permission to several persons to work on 
 such land. 
 
 The defendant's witnesses, on the other hand, alleged 
 the land was the property of his ancestors, and descended 
 to him with the family stool. That in consequence of 
 information received he went on the land, and finding on 
 it some pots under the plantains he had them thrown away, 
 and forthwith sounded the gong through the town. He 
 had ordered the said pots to be thrown away as the land 
 was his. Also that it was called Yan after his ancestor, 
 and buka a hill, namely Yanbuka, Yan's hill ; and further 
 that he had received rents in kind by way of a share in 
 the crops- 
 
 JUDGMENT. 
 
 The Court finds that the land in dispute is part of 
 Yanbuka, and is the property of the defendant. There 
 will therefore be judgment for the defendant with costs. 
 
FANTI LAW EEPOET. 99 
 
 FULL COUET, AXIM. 
 
 ESABUA KUOW v. KUDWO AWUA. 
 February 23, 1899. 
 
 Before Griffith, C. J., Feancis Smith and Eichaeds, JJ. 
 
 Appeal from judgment of Eichards, J., dated January 
 20, 1898. 
 
 Renner for appellant. 
 
 Sarbah with Hayford for respondent. 
 
 Renner opens and states the grounds of appeal : (1) 
 Judgment is indefinite and uncertain; (2) Wrongful 
 admission of evidence ; (3) Surprise ; (4) Verdict against 
 weight of evidence. 
 
 He reads evidence to show against weight of evidence,, 
 and argues that the judgment of the Court below goes into 
 title, whereas title was not really in dispute ; that plaintiff' 
 was taken by surprise when title was gone into. 
 
 The Full Court does not call upon the respondent. 
 
 Chief Justice gives the judgment of the Court, dis- 
 missing the appeal with costs assessed at £7 13s. 6d. 
 Court below to carry out the order of the Full Court. 
 
 BASEL MISSION FACTOEY v. ALFEED BEUCE. 
 
 Accra, August 9, 1899. 
 
 Before W. Beandfoed Geiffith, C.J. 
 
 ^aZe — JFormalities — Payment — Ownership — Subsequent Sale — Written 
 Instrument — Begistration Ordinance. 
 
 The plaintiffs claim £50 damages for trespass committed 
 by the defendant on the plaintiffs' land and premises 
 situated at Horse Eoad, Ussher Town, Accra. The said 
 property being lately the property in the occupation of 
 
100 PANTI LAW EEPORT. 
 
 one Jacob Vanderpuye. On the evidence (a) given at the 
 trial, judgment went against the lalaintiffs, who there- 
 upon appealed on seven grounds, inter alia, (1) That the 
 judgment is contrary to both the meaning and spirit of 
 sect. 19 of Supreme Court Ordinance, 1876 ; 
 
 (2) The results and consequences of native lawof contract 
 will not affect an innocent European third party to any 
 transactions between natives : in other words, native law 
 which is directly opposed to English law is not applicable 
 in causes and matters between Europeans and natives of 
 the Gold Coast Colony. It is incompatible, if not directly, 
 by necessary implication with an enactment of the Colonial 
 Legislature which came into operation after the commence- 
 ment of the Supreme Court Ordinance, 1876, viz. Sect. 
 17 of the Eegistration Ordinance, No. 1 of 1895 ; 
 
 (3) It is repugnant to natural justice, equity, and good 
 conscience. 
 
 For the Full Court the learned Chief Justice stated the 
 case thus: The plaintiffs claim £50 damages from defendant 
 for trespass on a certain land at Horse Eoad, Accra, which 
 they claim to have been sold to them by Jacob Vanderpuye. 
 It was admitted that the land in question was portion of a 
 larger plot of land attached to Fearon's house, and which 
 until lately belonged to the said Jacob Vanderpuye. 
 Plaintiffs claim the whole of this land on the ground that 
 Jacob Vanderpuye sold it to them, and they produced a 
 conveyance to that effect, and proved that the defendant's 
 agents had been on the land since the execution of this 
 conveyance. 
 
 Defendant claimed that prior to the sale to plaintiffs, 
 Jacob Vanderpuye sold him the portion of the land on 
 which his agents had entered. He claimed that this portion 
 had been sold to him for £175, of which he had paid £80, 
 and that he had tendered the residue, which had been 
 rejected. There had been no conveyance, but he called 
 evidence to show that the sale was a valid one by native 
 law. 
 
FANTI LAW REPORT. 101 
 
 The plaintiffs called evidence in reply to prove that the 
 land sold to defendant was not land at Pearon's house, 
 but another piece of land at Zongo, They did not call 
 any evidence in reply to the native law. 
 
 I distinctly disbelieved the evidence of Jacob Vanderpuye, 
 and parts of the evidence of E. E. Vanderpuye and of James 
 Ayitey. I believed generally the evidence of defendant and 
 his witnesses. I found that the land in question had been 
 validly sold to the defendant prior to its sale to the plaintiffs, 
 and I gave judgment for defendant with costs. 
 
 The Full Court of Appeal at Accra, after hearing 
 counsel, confirmed the judgment of the Divisional Court, 
 and dismissed the appeal with costs. 
 
 (a) The following evidence was given on August 8, 1902. 
 
 Philip Karl Randolph, sworn, states : — I liave a knowledge of the 
 customs of the people of Accra. I acquired that knowledge by seeing 
 what people generally do. I know about native custom of transferring land. 
 
 Q. How can land be transferred by natives ? 
 
 A. There are many ways — by gift, or pawn, or sale. 
 
 Q. How by sale ? 
 
 A. You offer to buy and the land is pointed to you and the extent 
 shown, then you strike a bargain and arrange for payment — right down 
 or by instalments. 
 
 Q. When does property pass when payment is made by instalment ? 
 
 A. Immediately after price is given, it is necessary to have people 
 there when the land is pointed out, and to fix the price. And when the 
 land is pointed out and price fixed to show that the land is sold, the 
 purchaser brings rum for the people who are there for them to witness, 
 that now he has bought the land. 
 
 Q. Suppose that people were not present at pointing out of land or no 
 rum, but there was an agreement made between two persons, and part of 
 the money paid ? 
 
 A. If the seller receives the part payment in good faith the sale is 
 effected. 
 
 Q. Has seller any power after that to sell land to another person ? 
 
 A. I don't think he has without your consent. 
 
 On cross-examination the witness continues : — I was formerly licensed 
 to practise as a solicitor in these Courts. 
 
 Q. Is there anything known as Epe performed in native law ? 
 
 A. You can bring him up by way of action for breach of contract. 
 
 Q. If A sells land to B for £100, and B pays £30 and is to pay the 
 rest, and A then sells the land to C for £120 and is paid ? 
 
102 FANTI LAW EEPORT. 
 
 ' A. That can't be done unless B agrees. The native law would say A 
 was a thief. When I sell land, if I get the money then I get a receipt and 
 it is sold. The pointing out of the land and payment is the sale, i.e. any- 
 thing received on account. 
 
 If the property is not my own, then all my family should be present ; 
 but if the property is my own, then the pointing out and the receipt of 
 the money is enough. 
 
 If I own a piece of land and want to sell it to you, I can do so myself, 
 if it is not enclosed land, then there must be people present, but not so, if 
 the land is known and enclosed. 
 
 Q. If you have a house and land in Accra can you go with another 
 person only and sell it to him without other people knowing of it ? Is 
 that sale good by native law? 
 
 A. I cannot say you can make a sale without anybody knowing 
 about it. 
 
 Q. When natives are selling land, do the}' contract that a deed should 
 be given ? 
 
 A. No ; it is only recently done. They prefer to adopt the English 
 way. People like to have their papers; out the town they don't have 
 papers. 
 
 People in Accra sell land by native law, but purchasers to guard them- 
 selves get a deed. 
 
 Q. Can a man sell land to another without any one being present? 
 
 A. Yes ; unless you mean to deprive somebody. 
 
 In some places in the bush you have to kill a goat when you buy land, 
 and the people who cut boundaries you pay them. 
 
 Q. Can a man by native law sell land without telling anybody ? 
 
 A. Yes; you can sell it. It is only the custom — you are not bound to 
 do thing — ^it is only what is right. You can sell land without wit- 
 nesses. 
 
 Q. Can you recollect an instance where a sale was made without any 
 one being present ? 
 
 A. The priest of Noy sold a piece of land without any one knowing of 
 it till we came to Court. Custom is whatever people elect to do. In 
 Noy's case there was no witness at all. This was the case of the Govern- 
 ment buying land from the Brazilians. The people who ought to have , 
 known didn't know, and he couldn't point out any witness. I was in 
 Court and heard about it. I can't give any case other than Noy's. 
 
 Q. If A wants to sell town land to B, are any formalities necessary? 
 
 A. As to arrangement for payment and point out land. 
 
 Q. When you are selling land which abuts another's land, is it necessary 
 to the validity of the sale to notify the adjoining owners? 
 
 A. Yes. 
 
 Q. And would this be necessary if the land is enclosed and the 
 boundaries defined ? 
 
 A. No ; because your property is bounded by an enclosure. 
 
FANTI LAW EEPORT.. 103 
 
 Q. When you are selling your own property which is enclosed, must 
 you get witnesses ? 
 
 A. It is not necessary. 
 
 Captain Kujo, a captain of Accra, on being sworn, states :— I am one 
 of King Tackle's councillors, I have assisted King Tackie in deciding land 
 cases, and I have myself decided land cases. 
 
 I have given evidence in this Court on the native law as to lands. 
 
 Q. By native custom how is land transferred by sale ? 
 
 A. Anybody who wants to buy comes, and you sell it to him. 
 
 Q. When does it become his^operty ? 
 
 A. When they bargain and payment is made. 
 
 Q. Is it necessary to pay all at once ? 
 
 A. If he has half he gives. 
 
 Q. And would that be a valid sale ? 
 
 A. As his money has passed into the other's hands he has bought it. 
 
 Q. Can the vendor then sell the same land to any other person ? 
 
 A. No. 
 
 Q. Can the vendor take back land from vendee without consent of 
 latter? 
 
 A. If he has not given the money he can take it back, but if he has 
 given the money he can't do so. 
 
 Q. Suppose only one-fourth of the money is given, can it be re-sold ? 
 
 A. No. 
 
 Q. If A sells land to B for £100, and B pays out £30 and leaves the rest 
 as a debt, can A re-sell land to C for £120, tendering back to B the £30 ? 
 
 A. If A bring it to B, the latter will summon A, because, it would 
 appear, A has stolen B's property. The first buyer would be deemed by 
 native law the owner even if he only give £1. 
 
 Q. A sells land to B for £100, who pays £30, and is to pay the rest 
 in six months, can A before six months are out return the £30 and take 
 back land ? 
 
 A. I have never seen that done, you cannot do that by native law. 
 
 Q. Explain then the expression if you dorUt eat anything you dont 
 pay for it, 
 
 A. That expression is used by the person who is going to buy, when 
 demand is made in a pressing way, then it is for him to use expression, 
 but not the seller. Then he says, I have not yet paid you, if you want 
 your property, well you better take it, and the expression is used. That 
 expression is only used by the purchaser. 
 
 Q. If A sells land to B for £100, who pays £30 down, and is to pay 
 the balance later, can B come back afterwards and give back land and 
 compel A to refund the £30 ? 
 
 A. If B had given the £30 to A, who gives time to paj', B would have 
 no right to say ho wouldn't then buy it. 
 
 Q. What formalities are necessary in sale of land in Accra, i.e. land 
 with house on it ? 
 
104 EANTI LAW EEPOET. 
 
 ^. If I have land and house, and you say you want to buy, I would 
 ask whieh part you want. 
 
 Q. Can you sell land and house without the knowledge of a. third 
 person ? 
 
 A. If it is my own house, and a person I like says he has no place, I 
 could give him without telling any one. 
 
 Q. Can you sell by native law without telling a third party ? 
 
 A. Yes, if it is my land ; if it is family land you must tell, but not if 
 it is my own land. 
 
 Q. Can one Accra man sell his land to another Accra man without the 
 knowledge of a third party by native law ? 
 
 A. Yes ; as it belonged to him. Several people sold like that. 
 
 Q. If the seller were to die, how would his heirs know of the sale ? 
 
 A. If the seller doesn't wish any one to know about it, then he has 
 defrauded. 
 
 Q. Can you bargain and deiine your boundaries without witnesses ? 
 
 A. That is not my business. It is not the buyer's fault, but of the 
 person who sells and doesn't tell his family. 
 
 Q. Is it not usual in sales io Accra for both parties to have witnesses? 
 
 A. The seller tells the vendee to go and call his people, and he, too, 
 wilKcall his. 
 
 INSILHEA AND OTHEES v. SIMONS AND OTHEES. 
 
 September 11, 1899. 
 
 Before Francis Smith, J. 
 
 Sd'e — Family Property — Consent of Members. 
 
 Judgment. 
 
 The plaintiff on behalf of herself and members of her 
 family seeks to recover £50 damages from the defendants 
 for an alleged trespass on land near Cape Coast. The 
 land, as the evidence discloses, is situate at Pedu, and as 
 against Simons and Kwesi Faidu, the trespass consists in 
 the cutting of two orange-trees, and one lime-tree by Kwesi 
 Paidu, an act which Samuel Simons, the father, adopted, 
 and as against the other defendants in going on the land 
 after the criminal proceedings for the same offence had 
 been dismissed by the District Commissioner. 
 
FANTI LAW EEPOET. 105 
 
 Both parties start from one common ground, that is, 
 that the land originally belonged to plaintiff's ancestor. 
 But the defendant Simons contends that he bought the 
 land from one Abbakan, the ancestor of the plaintiff as far 
 back as 1872, and that he and his people have been in 
 actual possession of the land till withia a short period. 
 
 The plaintiff denies the sale, and contends that the 
 defendant Simons is by his conduct estopped from disputing 
 her right to the property. 
 
 The following considerations therefore arise : — 
 
 1. Did Svnons buy the land from plaintiff's ancestor 
 Abbakan ? 
 
 2. Was it such a sale by native law as would bind the 
 plaintiff and her family ? and 
 
 3. Did the defendant Simons recognize title in plaintiff, 
 and was his conduct such as to debar him from disputing 
 the plaintiff's title ? 
 
 As to the first point, the evidence satisfies me that Mr. 
 Simons did buy the land from Abbakan. 
 
 It is true the document in support of such sale may 
 refer to any transaction, for it is merely a receipt for the 
 sum of £3 12s. in full payment ; but I have no reason to 
 disbelieve the evidence of the defendant Simons. 
 
 I find that the land was sold by Abbakan with the 
 knowledge of Akoom, another ancestor of plaintiff, to 
 Samuel Simons as far back as 1872, and that he and his 
 people have worked on the land. 
 
 It is a settled rule of native law that family property 
 cannot be sold except by the head of the family with the 
 concurrence of the elder members of the family, or if so 
 sold to the knowledge of any member of the family time 
 will operate as a bar to the recovery of the land. The 
 Appeal Court in Bayaidie v. Mensali decided, that the sale 
 is not in itself void, but is capable of being opened up at 
 the instance of the family, provided they acted timeously, 
 and upon the revision of the contract, the purchaser can 
 be fully restored to the position he stood before the sale. 
 
106 FANTI LAW EEPORT. 
 
 The principle here enunciated must depend for its 
 application on the circumstances of each case. The time 
 from which acquiescence in the sale by the members of the 
 family would be presumed, must be from the time of their 
 knowledge of the sale, to be ascertained by direct evidence 
 or facts from which such knowledge may be inferred, 
 because it is obvious that no one can acquiesce in a 
 transaction of which he is ignorant. 
 
 Notwithstanding that the land was 'improved by the 
 \iplanting of trees and building thereon by Mr. Simons, it 
 'would, however, appear to have nearly reverted to its 
 original condition, for the buildings have been allowed to 
 fall into ruins, no home is now made of the land, and it 
 has not been used for some time for cultivation by the 
 defendants. In this respect it somewhat differs from the 
 case of Bayaidie v. Mensah, in so far as one is able to 
 gather the facts from the short report. But that authority 
 is not inconsistent with the rule, which has been adopted 
 by this Court, that the sale must be made by the mem- 
 bers of the family then present where the sale takes place. 
 
 As to the purchase, Mr. Simons acknowledges that he 
 did not know Abbakan and Akoom had any relations, in 
 fact, he did not know whether they were related to each 
 other; they were strangers to him, and he made no in- 
 quiries respecting them. This is scarcely what a prudent 
 mail parting with his money would have done. But still, 
 is there any evidence to show that the other members of 
 the family knew of the sale prior to the case before Chief 
 Imbrah, or that Abbakan secretly sold the land ? I say, 
 prior to the case before Chief Imbrah, because I am con- 
 vinced that at that meeting the plaintiff and her family 
 knew for the first time of the sale of Abbakan, and I dis- 
 believe her evidence and that of her sister that at that 
 time Mr. Simons said he bought the land from strangers. 
 
 There is, however, no evidence that plaintiff's family, 
 besides Akoom, knew of the sale for many years after the 
 sale had taken place, and therefore Abbakan sold secretly ; 
 
FANTI LAW EEPOET. 107 
 
 at the same time as it is unlikely that the owner of land 
 would, for many years, not discover that his land is being 
 cultivated and built upon, the presumption would be in 
 favour of his knowledge and acquiescence. In this case, 
 however, such presumption in favour of the defendant 
 Simons cannot necessarily arise, for the evidence discloses 
 that the land was mortgaged to the Kwa Pra people by 
 Abbakan and others with the concurrence of the members 
 of the family, and they appear to have taken possession ; 
 for the defence admits that the Kwa Pra people were work- 
 ing on the land at the same time. Hence the members 
 of the plaintiff's family would not of necessity know that 
 the land was being worked and built upon by persons 
 other than the Kwa Pra people, so as to put them on 
 inquiry. I therefore entertain grave doubts whether or not 
 this sale is in accordance with native custom, or can be 
 supported by any decided cases of the Court. 
 
 In addition to this, the conduct of the parties is a 
 material element in determining the case, and in this con- 
 nection I am guided entirely by the defendant's own 
 admission. On the dispute arising, instead of relying upon 
 the title derived from Abbakan he negotiates with the 
 plaintiff to give her £11 as additional purchase-money, he 
 pays her this amount, and for four years this purchase 
 stands. Two explanations are given for this action. Mr. 
 Simons himself says that the plaintiff asked for the pro- 
 duction of the paper Abbakan had given him, and that if 
 he could not produce it, he was to pay her more, and she 
 would give him paper, and that not being able to produce 
 the paper he gave her the £11. The other is that Mr. 
 Simons could not get the conveyance on paper from the 
 plaintiff. 
 
 Either reason is insufficient in point of law to justify 
 Mr. Simons's conduct. There were witnesses to the docu- 
 ment, and they could establish the purchase independently 
 of the receipt, and more so as the receipt does not show 
 that the money was given for the purchase of any land. 
 
108 FANTI LAW EErOKT, 
 
 As to the other point, Mr. Simons could have compelled 
 the plaintiff to give the conveyance. 
 
 Instead of this he recognizes the plaintiffs claim, and 
 the giving back of the purchase-money at his request does 
 not show any less recognition of that claim. He may not 
 have in words said to the plaintiff go and take your land, 
 but as there is no evidence that in asking for the return of 
 the dSll he informed her that he disputed her title to the 
 land, the inference which the plaintiff could draw from his 
 action was that he nJTjbnger wanted the land. 
 
 Nor is this all. After he had so returned the £11, 
 believiug that the property then was his, certain trees on 
 the land were cut down by his son, trees said to have been 
 planted by himself Notwithstanding, the moment the 
 plaintiff complains, a person who, if the contention of the 
 defence is serious, had no interest in the land nor any- 
 thing thereon, Mr. Simons offers her compensation. For 
 what reason ? A man has a right to deal with his property 
 as he likes, and, in so doing with it, would he offer com- 
 pensation to a stranger ? Only one reason can be assigned, 
 and that is, Mr. Simons still recognized the title of the 
 plaintiff. This goes beyond the principle that he was 
 buying peace^ 
 
 All along the conduct of Mr. Simons has been that of a 
 person not quite sure of his bargain. 
 
 After the purchase from Abbakan, we find him, on the 
 Osudu people claiming the land, purchasing it for £3 from 
 them, money which, fortunately for him, he did not lose, 
 as the Osudu people were made to refund it. But his 
 conduct in this matter throws light on what would have 
 been his action in this case. He is essentially a peaceful 
 man, and I cannot help thinking that but for the inter- 
 ference of the younger members of the family the purchase 
 from the plaintiff would have been allowed to stand. 
 
 In my opinion the defendant, having recognized the 
 title of the plaintiff, and purchased from her, holding under 
 that purchase for four years, and even after the return of 
 
FAKTI LAW EEFOET. 109 
 
 the purchase-money regarding her as still having an 
 interest in the property, by the offer of compensation to 
 her when the trees -were cut down, is not in a position 
 now to contest her right on the bare purchase from 
 Abbakan, a purchase which I have already stated is 
 doubtful that it was made according to native law, a 
 doubt which makes against the defendant's interest. 
 
 The plaintiff being in possession, for she took pos- 
 session after she paid back the purchase-money, is in view 
 of the foregoing facts entitled to judgment, but under the 
 peculiar circumstances of this case I consider that justice 
 will be met by awarding nominal damages. I therefore 
 give judgment for the plaintiff, assessing the damages at 
 £1, and I allow her only costs out of pocket. In other 
 matters each party will pay its own costs. 
 
 KOFI MENSAH v. JONFIA AND KRAKUE. 
 KOFI EYAN (CLAIMANT). 
 
 September 11, 1899. 
 
 Before Fkancis Smith, J. 
 
 Stool Property — Liability to le Sold for Stool Debt — Decision of 
 Councillors by Majority of Votes. 
 
 Judgment was reserved in this case, and would have 
 been given some time ago but for the illness of counsel 
 and the wish of parties for counsel to be present and the 
 Criminal Assize intervening. 
 
 Parties having been duly notified to attend to hear it 
 have accordingly attended. 
 
 Judgment. 
 
 This is an interpleader in which Kofi Eyan claims as 
 his property Ahin Kofi Krom, Durbende Krom, Maya 
 Krom, Interful Kerten, and Bootoomagabo, seized under 
 a writ oifi.fa. issued in the above cause. 
 
110 FANTI LAW EEPOET. 
 
 The lands were seized by the direction of Jonfia, one 
 of the defendants, as lands belonging to the stool of Dutch 
 Sekundi, of which he claims to be the holder, and for the 
 satisfaction of the judgment debt which he contends was 
 a stool debt incurred by the consent of himself and his 
 councillors, or headmen, of whom he claimed is one. 
 
 The points which arise for decision are as follows : — 
 
 Is this a stool debt that is incurred in a manner 
 recognized by native law, for the settlement of which the 
 stool property is liable; and are these lands attached to 
 the stool of Dutch Sekimdi ? 
 
 In the consideration of the first point, the position 
 of Jonfia in relation to the stool of Dutch Sekundi is 
 necessarily involved. 
 
 Assuming that Jonfia was installed on the stool of 
 Dutch Sekundi, the following are the facts which led up to 
 the present case. 
 
 There had been, previous to 1856, and in fact since, 
 disputes with reference to lands between the Kings of 
 Dutch and British Sekundi, and the Dutch and English 
 Governments had to fix a boundary -line, the line being 
 from Eshien to Pentsin, the lands on one side of the 
 boundary falling to the stool of the King of Dutch Sekundi, 
 and the lands on the other side to the King of English 
 Sekundi. The last King of Dutch Sekundi was Annesi, 
 and it is said that he contemplated bringing an action 
 against the King of British Sekundi to recover three kroms 
 on Appochin land as attached to his stool, that is Ansah 
 Kwaku Krom, Kudjo Krom, and Daku Krom. 
 
 Be this as it may, on his death, Jonfia, who was carried 
 through the town and presented to Governor Griffith on 
 his visit to Sekundi as the successor to Annesi, and there- 
 fore the King of Dutch Sekundi, convened a meeting of 
 all his headmen and councillors, including the claimant, 
 a captain under the stool of Dutch Sekundi, and informed 
 them of his intention to institute proceedings to recover 
 the kroms aforesaid. It is obvious that these kroms, if 
 
FANTI LAW EEPORT. Ill 
 
 recovered, could not have been the personal property of 
 Jonfia, and that the meeting he summoned ■was of a public 
 character, dealing with lands alleged to be attached to the 
 stool. The evidence preponderates in favour that there 
 was a consensus of opinion that the action should be 
 brought. Eyan, however, says that himself and his party 
 were not willing, though the rest were. Admitting this 
 it would seem contrary to common sense and native law 
 to hold that a proceeding sanctioned by a majority of the 
 head chiefs should be rendered abortive by a head chief 
 and his few followers. 
 
 For some reason Eyan became hostile to Jonfia, seceded 
 from him and joined the British King Inkatia, giving 
 evidence for him when the action came to be heard. 
 
 The result of that action was that Inkatia succeeded 
 and Jonfia was mulct in costs. 
 
 To undertake the bringing of the action, and to pay 
 the costs, Jonfia was obliged to borrow money, and Mensah 
 became one of his creditors. After the case another 
 meeting was held of the headmen, who were informed of 
 the result of the action, and each paid his contribution 
 towards the expense. Eyan and his people, however, 
 refused to attend the meeting and to pay their contribu- 
 tion, and this refusal led to the seizing of the aforesaid 
 villages. 
 
 Now what was the position of Jonfia as regards the 
 stool of Dutch Sekundi ? On the death of Annesi, Agaman, 
 the King of Dixcove, was approached for the purpose of 
 nominating and sending a successor, and Jonfia was sent. 
 He was placed on the stool and carried through the town 
 of Sekundi, and presented to Governor Griffith as the 
 King of Dutch Sekundi, at the same time as Inkatia was 
 presented as the King of British Sekundi. Since then 
 Jonfia has been recognized by the executive as the King 
 of Dutch Sekundi. At the Prempeh War he was so recog- 
 nized when he supplied carriers for the expedition; and 
 lately with regard to the taking of land for the Sekundi 
 
112 FANTI LAW EEPOET. 
 
 Tacquah Eailway. Compensation was awarded to him 
 for land claimed by this same Eyan, but which turned 
 out to be attached to the stool of Dutch Sekundi. Doubt- 
 less the evidence points out that all the ceremonies 
 were not gone through in Jonfia's case. His aiitempt to 
 be taken round the town was frustrated by the misrepre- 
 sentations of Andoh and Katabra, subjects of the King 
 of British Sekundi and hostile to Jonfia. But admitting 
 all this, the position of Jonfia is no less than that occupied 
 by Katabra in relation to the stool of British Sekundi. 
 No one succeeded Inkatia, but Katabra took charge of the 
 stool, and as such caretaker he has been recognized in 
 the same way as Jonfia, as being the proper person to 
 receive compensation for lands belonging to the British 
 stool, and required for public purpose, and this is the 
 evidence he gives respecting the creation of a stool debt, 
 and the liability of the stool lands to be attached in 
 respect thereof — 
 
 " I am in charge of the stool property of Inkatia. 
 
 " I would defend actions against the stool property of 
 Inkatia. I would take actions affecting the stool property 
 of Inkatia. If in taking or defending any such action 
 I were to lose, the costs would be a stool debt, and I could 
 sell the stool lands, but I must first ask the chiefs." If 
 Katabra can do this, I fail to see on what principle Jonfia 
 cannot. But further, the chiefs of Dutch Sekundi have 
 recognized him as their head, including at one time Eyan, 
 by their meeting at Jonfia' s summons with regard to the 
 case against Inkatia, and the people from these very 
 kroms carried him through the town as their king when 
 they presented him to the Governor. I find that Jonfia 
 if not fully installed is the caretaker of the stool of the 
 King of Dutch Sekundi, having power to create a stool debt, 
 and that the costs of the action Jonfia v. Inkatia were 
 properly incurred by Jonfia, and became a stool debt for 
 the payment of which the stool property of the King of 
 Dutch Sekundi is liable. 
 
FANTI LAW EEPOET. 113 
 
 The question, therefore, which ramains to be deter- 
 mined is : 
 
 Is the property seized in execution in the above action 
 the stool property of the King of Dafcch Sekundi or the 
 private property of the claimant '? 
 
 To assist to determine this, it U necessary to go back 
 to the case of Jonfia v. InJcatia, when Eyan went over to 
 Inkatia and gave evidence for him. 
 
 At this time Eyan never laid claim to these six villages. 
 He confines himself to Maya Krom and Darbende Krom, 
 which he calls his villages, but whether as Captain of 
 Annesi, and taking charge of them, or his own personal 
 property, is not clearly stated. As to the others, his 
 evidence clearly shows that they are the stool property of 
 the Dutch King. He says, I know Kerten Krom, I know 
 Bootoomagabo, I know Inkrofal ; they are Dutch villages. 
 Annesi, he said, looked over these villages, and settled 
 matters there. As to Durbende Krom and Maya Krom 
 he states these are my villages ; but he adds, they are 
 Dutch villages on Annesi side, plainly showing that these 
 are the lands on one side of the boundary falling to the 
 stool of the Dutch King, and this view is strengthened and 
 supported by Katabra, Eyan's witness, who stated the 
 lands that Eyan is now claiming are on the Dutch side of 
 the boundary, and whatever lands fell on that side would 
 form the stool property of the Dutch King. 
 
 Now Eyan claims the lands as portion of his stool 
 property, and contends that he has been recognized the 
 owner by the payment to him of tribute. 
 
 In support of his case the first witness he calls is 
 Intama of Maya Krom. This witness is not in any way 
 connected with Eyan, but he pretends to know more of the 
 history of the stool property of the claimant, his informant 
 being his father, who is no member of Eyan's family. He 
 not only contradicts himself, but in turn is contradicted by 
 Eyan, and his evidence is wholly unreliable. He first tells 
 us that Durbende was Eyan's ancestor, and came from 
 
 I 
 
114 FANTI LAW EEPORT. 
 
 Dutch Sekundi, a statement denied by Eyan. Then he says 
 Durbende was a captain under Segu Yuwa, whereas, if 
 this Durbende at all existed he must have died years and 
 years before Segu Yuwa was born. This Durbende fought 
 one Yow Akon, an Ashanti chief, and got these lands. 
 This, however, he alters, and states that Ewuruku 
 originally had these lands, and he describes Ewuruku as 
 a captain under the Dutch King, and that Durbende was 
 under him, and that both fought the Ashanti chief, and 
 in recognition of Durbende's service, Ewuruku, not the 
 King, gave him these lands. Now Ewuruku was not a 
 man, but the first Queen of Dutch Sekundi. And, to crown 
 all, he concludes by telling us that these very kroms, which 
 were not in existence at the time, were bombarded by the 
 Ashanti chief. Eyan had to acknowledge that he lied, 
 even as to where Eyan was said to have been placed on 
 the stool he also lied. Passing on to the question of 
 tribute, he states that he paid each year 'for eleven years 
 £2 and 2000 corn. As to this. Yaw, Eyan's nephew, states, 
 "It is only once since my uncle, that is the claimant, has 
 been placed on the stool, that is during the alleged twenty 
 years, that any tribute was given to him, and that was by 
 Intama, consisting of five tins of oil and 1000 corn, and 
 that was only two months before this case was heard." 
 The support this witness gets from Eyan is the general 
 statement that from each inhabitant of the different lands 
 he gets a gallon of oil and 100 corn a year. This witness, 
 however, establishes two things in favour of Jonfia, that 
 Ewuruku was the original owner, and that these different 
 kroms contributed towards the payment of Annesi's debts, 
 the last King of Dutch Sekundi, after he returned from 
 Sierra Leone. The next witness is Kwow of Inkroful. 
 He states that he succeeded his ancestor, who was placed 
 in charge by Akrisi, one of the claimant's predecessors. 
 Then he alters this, and says he does not know how his 
 ancestors got on the land, and he never saw any pay 
 tribute to Eyan, though he alleges as against Yaw and 
 
FANTI LAW EEPOET. 1I5 
 
 Eyan's evidence that he paid £2 and 2000 corn every 
 year. Following hira comes Busumchi whose evidence is 
 equally untrustworthy. According to his evidence he 
 knows nothing of the other lands but Ahinkofl Krom, 
 ■where he was placed in charge by Eyan. This he after- 
 wards denies. .Likewise, he said he paid £3 and 2000 corn 
 every year, and afterwards denies this. He knows not his 
 own pedigree, and contradicts himself on the number of 
 times his mother is alleged to have paid tribute. He is 
 followed by Yaw, the nephew of claimant, but he knows 
 nothing of how Durbende got the lands. He never heard 
 of the war nor of the Ashanti chief, nor does he know his 
 pedigree, and as to tribute being paid, he ultimately con- 
 fessed that it was only paid once. Then comes the 
 claimant. After contradictory evidence as to how his 
 ancestor got these lands, he acknowledges that they were 
 a gift by Ewnruku to his ancestor Durbende for assisting 
 her to fight the Ashantis, though he was not informed 
 who the Ashanti chief was. His pedigree is of persons 
 who were captains under the Dutch stool, and in turn were 
 in charge of Durbende. If the claimant received tribute 
 from any working on Durbende he could only have done 
 so as the captain in charge under the stool of Dutch 
 Sekundi. He admits all these villages are Dutch villages, 
 and that if Jonfia had been properly appointed King he 
 would look over these villages and settle their disputes. 
 So that the real point of difference is that Jonfia has not 
 been installed, not that the lands are not the stool property 
 of the King of Dutch Sekundi, for Jonfia, if properly 
 installed, could not have executed these rights over the 
 lands unless they were attached to his stool, and this 
 probably may account for the action of the claimant 
 and Chief Andoh, his witness, in attempting to claim 
 other lands belonging to the stool of Dutch Sekundi. 
 Following the claimant comes this Andoh, who is so 
 biassed in favour of Eyan and so hostile to Jonfia, having 
 done his utmost by false representations to prevent the 
 
116 FANTI LAW REPORT. 
 
 proper installation of Jonfia that his evidence is entitled 
 to very little credit. Belonging to British Sekundi, he is 
 not in a position to know the property of the stool of the 
 King of Dutch Sekundi. After saying that Eyan's ancestors 
 had the lands, he had to acknowledge he did not know how 
 Eyan got the lands, whether the lands were Eyan's or 
 belong to the King of Dutch Sekundi, and with regard to 
 four of the lands claimed he does not know them. Hence 
 his evidence is merely hearsay. 
 
 He attempts to mislead the Court as to the situation 
 of these kroms to the boundary-line, and he ultimately 
 had to admit that they belong to Dutch Sekundi, which 
 is another way of saying that they were attached to 
 the stool of the King of Dutch Sekundi; as to the pay- 
 ment of tribute, he prevaricates, swearing at one time 
 that he was present when tribute was paid to Eyan 
 by persons from Ahinkofi Krom and Kerten Krom, at 
 another time that he was not present but Eyan told him. 
 His evidence was chiefly directed to show that Jonfia was 
 a nobody. 
 
 The last witness is Katabra. He is equally unfriendly 
 to Jonfia. He belongs to British Sekundi, and his evidence 
 is also merely hearsay. He swears to these lands belonging 
 to Eyan, because he was told, when a boy, of these lands 
 belonging to Eyan's ancestors, and they left them to him, 
 and also that yearly tribute was paid by the people on the 
 lands to Eyan, though, living at Sekundi, he could not have 
 known of any payment made at Durbende, and more so 
 when he was at Wassaw, trading. 
 
 He assigns to Kwamina Annan the position Jonfia 
 holds in Dutch Sekundi, that is, that the Government 
 consulted Annan in matters connected with Dutch Sekundi, 
 an untrue statement, but made with the object of carrying 
 out the general purpose of showing that Jonfia had nothing 
 to do with Dutch Sekundi. Being one of those present 
 at the making out of the boundary, he knew the lauds that 
 fell to the stool of either King, and in this respect he 
 
FANTI LAW REPORT. 117 
 
 rather supports the contention of Jonfia by his admission 
 to which I have before referred. It will be observed that 
 no person from Kerten Krom or Bootoomagabo has been 
 called to prove the ownership of these two lands. 
 
 On the claimant's own evidence these lands originally 
 belonged to Ewuruku, and, taking into consideration the 
 evidence for the defence, I find that no such alleged 
 Ashanti war took place, no such gift of these lands was 
 made by Ewuruku to Durbende, and that these lands are 
 at present attached to the stool of the King of Dutch 
 Sekundi. 
 
 Under the circumstances the Sheriff will proceed with 
 the sale, realizing only the judgment and costs of Mensdh, 
 as also the costs of the execution. I wish it to be under- 
 stood that I in no way express any opinion on the contribu- 
 tion alloted by Jonfia to each of these towns. I merely 
 deal with MensaKs judgment. The costs of Mensah and 
 Jonfia on this interpleader summons will be paid by the 
 claimants. 
 
 As this has been taken as a test case the proceedings 
 with regard to the claim to Pigaye will be abandoned, as 
 the result must be the same. 
 
 There will be no costs, however, paid by the claimant 
 on the interpleader, but the Sheriff will proceed to realize 
 Mensah's judgment and costs as against Figaye. 
 
 KUDWO AWUA V. ESABUA KWOW, EGAPON 
 AND OTHERS. 
 
 Axim, October 27, 1899. 
 
 Before Nicoll, J. 
 
 Stool Land — Trespass — Action against Head of Family, his Servants, and 
 other Memhers of the Family — Claim of Ownership by Defendants — 
 Injunction. 
 
 Mr. Sarbah for the plaintiff. 
 Mr. Bibeiro for the defendants. 
 
118 FANTI LAW EEPOET. 
 
 The plaintiff by his ■writ claimed £500 damages for 
 trespass committed by the defendants on Yanbuka land, 
 and an injunction restraining them, the members of the 
 family, their servants, workmen, and agents from entering 
 the said land or from destroying or otherwise injuring 
 crops thereon, or from in any way interfering with the 
 use and enjoyment of the said land by the plaintiff, any 
 members of his family, and any of their servants. 
 
 The defence pleaded (1) Ownership of the said land in 
 the defendant Esahua Kwow ; and (2) Possession. 
 
 At the h&axiag Esahua Kwow admitted in cross-examina- 
 tion that at the view of the land by Mr. Justice Eichaeds 
 in Esahua Kwow v. Awua, he heard the plaintiff say that 
 Yanbuka land was his property ; on the portion he alleged 
 trespass, in that action, Awua said was his ; and at the time 
 he was giving evidence in that case, he knew that Awua 
 was claiming Yanbuka land as his property ; Esahua Kwow 
 and his witnesses nevertheless claimed the land as attached 
 to his family stool. 
 
 On November 2, 1899, the following judgment was 
 delivered : — 
 
 On the evidence I find, (1) That the land Yanbuka is 
 the property of the plaintiff Kudwo Aicua; (2) That the 
 land Akrobatsi is the property of the defendant Esahua 
 Kwoio ; (3) That the land Yanbuka and the land Akro- 
 batsi adjoin each other; (4) That the boundary between 
 these lands is a watercourse, which in dry weather is a 
 muddy place, and a bush path, leading therefrom to the 
 Axim and Dixcove main road at a point, a little beyond 
 the village of Akinim, on the Dixcove side; (5) That 
 on or about the year 1898, Esahua Kwow ordered the 
 other defendants to go on the said land of Yanbuka and 
 cut down the plantain-trees and other vegetables, which 
 had been planted by the plaintiff and the members of 
 his family ; (6) That acting under these instructions, 
 the defendants cut down a very large number of plantains 
 and other crops on Yanbuka, the property of Awua; 
 
FANTI LAW EErORT. 119 
 
 (7) In law, I find that the defendants trespassed on 
 Yanbuka land, and I assess the damages at £175; and 
 I grant an injunction restraining defendants, their servants, 
 agents, and others acting under them from going on the 
 lands of Yanbuka in tenor of the writ of summons, and 
 I grant costs to the plaintiff, to be taxed. 
 
 From this decision the defendants appealed, which 
 appeal, however, was dismissed by the Full Court at Axim 
 on March 26, 1900, with £30 costs for the respondent. 
 
 FEANK EUSSELL v. J. B. MEFPULL.. 
 INDUA (CLAIMANT). 
 
 October 24, 1900. 
 
 Before Stanley Morgan, J. 
 
 Family Property — House Additions and Alterations — Goods and Chattels- 
 — Not attachable generally — Remedy of Judgment Creditor. 
 
 Judgment. 
 
 This is an interpleader suit in which the claimant, on 
 behalf of herself and the other members of Kofi Eku's 
 family, claims a house and land situate at Anamaboe, and 
 certain personal property specified in the summons seized 
 in execution by the plaintiff and judgment creditor in the 
 suit Bussell v. Me full. 
 
 From the evidence it appears that the house and land 
 in question was formerly the self-acquired property of a 
 man called Kofi Eku, he having bought the land and built 
 the house upon it. That Kofi Eku died about three years 
 ago, that he had four sisters by the same mother, Eku, 
 Indua, Oforiwa, and Krede; and that Ekua the eldest 
 sister, who is dead, left two sons, viz. the judgment 
 debtor and an elder brother. 
 
 It is clear that by native law the real property of Eku 
 at his death became family property in the hands of his 
 successor, and so not liable to be taken in execution under 
 
120 EANTI LAW REPORT. 
 
 ordinary circumstances for the debt of sucli successor. 
 The evidence as to -who is Kofi Eku's successor was 
 conflicting; but it seems to me that by native law the 
 elder brother of the judgment debtor is the person entitled 
 to succeed. 
 
 In any case, however, even if the judgment debtor were 
 the successor, he would take the real property as family 
 property. It appears, however, that since the death of 
 Eku, certain alterations have been made to the house by 
 the judgment debtor at the request of the family, to the 
 expenses of which the family contributed. Now, if the 
 execution creditor could have proved that the cost of 
 the materials used in such alterations formed part of the 
 judgment debt, I should have had no hesitation in forcing 
 the family to pay, disallowing the claim. But the execution 
 creditor says, " I can't say that the money for these articles 
 (zinc and spouting) represents part of the deficiency for 
 which I sued Meffull" 
 
 Under all the circumstances, therefore, I must release 
 the house and land seized from attachment. 
 
 Now, as to the personal property. In the first place 
 the personal property of Eku would descend to the elder 
 brother of the judgment debtor, and the question I have 
 to decide is whether any of the personal property mentioned 
 in the summons is the actual self-acquired property of the 
 judgment debtor. 
 
 The execution creditor only offers direct evidence as to 
 the eight chairs, clock, two kerosine lamps, and a rug. If 
 he could have proved that the judgment debtor had bought 
 the actual articles seized, it would have been strong pre- 
 sumptive evidence in his favour ; but he states, " I can't 
 say when the chairs were bought. I have not seen the 
 chairs or other articles seized." 
 
 Indua, however, offered no evidence as to the clock, 
 hat, cooler, and brush and comb, and the judgment debtor 
 admitted that certain hats belonged to him, and that he 
 had bought the clock and lamp from BusselVs store. He 
 
TANTI LAW KEPOET. 121 
 
 stated, however, that they were bought for Eku. Under 
 all the circumstances I release from attachment the eight 
 chairs, round table, two sofas, one lamp, two pillows, one 
 rug, two blankets, and three bedsteads ; and disallow the 
 claim as to one lamp, the clock, the hat, the cooler, and 
 the brush and comb. Having regard to the fact that I 
 consider that, with a view of strengthening what were 
 deemed to be weak points in her case, evidence which was 
 untrue was given on behalf of the claimant, I deprive her 
 of the general costs of the suit, and order that each party 
 shall pay its own costs. 
 
 PEPE CONCESSION INQUIEY No. 30, CAPE COAST. 
 
 January 23, 1902. 
 
 Before Feancis Smith, J. 
 
 Practice — Concession Inquiry — Leave to oppose after Inquiry concluded — 
 Conditions — Onus of Proof — Service of Notice of Appeal — Special 
 Leave — Discretion of Full Court of Appeal. 
 
 On August 22, 1901, this inquiry was heard at Cape 
 Coast Castle by Mr. Justice Morgan, who imposed certain 
 conditions, and ordered fresh plans of the land to be made 
 and laid over. The order of the Court was complied with, 
 and on January 2, 1902, Mr. Justice Feancis Smith further 
 adjourned the inquiry so as to prepare and issue certificate 
 of validity for the said concession. This was duly engrossed, 
 and was awaiting His Honour's signature and the seal of 
 Court, when, on January 10, Mr. Osborne for the Tacquah 
 and Abosso Co., Ltd., moved ex parte for leave to oppose 
 the said certificate of validity being granted to the 
 claimants. 
 
 Thursday, January 23, 1902. 
 
 Motion ex parte by Mr. Osborne, for claimants the 
 Tacquah and Abosso Gold Mining Co., Ltd., to oppose grant 
 
122 FANTI LAW KEPORT. 
 
 of certificate of validity was made on the 10th insfc., when 
 it was ordered that copy of the motion and affidavit should 
 be served on the other side, and to-day fixed to hear it. 
 
 Mr. Martin for opposers. 
 
 Mr. Sarhah for claimants. 
 
 Mr. Sarhah submits leave to oppose is in the discretion 
 of the Court. 
 
 That in a case of a concession, an intending opposer 
 has to satisfy the Court that he has a concession, that the 
 terms imposed by law have been complied with; and in 
 support of his contention that this has not been done refers 
 to his affidavits in reply. 
 
 At this stage Mr. Martin asks for an adjournment. 
 
 Inquiry adjourned to to-morrow afternoon. 
 
 Wednesday, February 12, 1902. 
 
 Mr. Sarhah for claimants. 
 
 Mr. Martin, for opposers, the Tacquah and Ahosso Gold 
 Mining Co. 
 
 Inquiry was last before the Court on January 24, 1902. 
 
 Mr. Martin is called upon by the Court to open his case. 
 
 Mr. Martin contends that, by the order of the Court he 
 having to pay the cost consequent upon the opposition, the 
 claimants should begin their case de novo. 
 
 The Court intimated that it never had any such 
 intention in allowing the opposers to come in at that stage 
 to impose the condition on the claimants to begin their 
 case de novo, as such a proceeding would render the inquiry 
 interminable, for, if there are different opposers, the Court 
 would have to begin de novo in each case. The costs in- 
 tended to be paid by the opposers were costs to which the 
 claimants may be put to in calling, if necessary, witnesses 
 to rebut the case made out by the opposers. The Court, 
 therefore, refuses to have the case heard de novo. 
 
 Upon application of Mr. Martin in view of the ruling 
 
FANTI LAW EEPORT. 123 
 
 of the Court that he should begin the inq^uiry is adjourned 
 to to-morrow. 
 
 Thursday, February 20, 1902. 
 
 Motion by Mr. Martin on behalf of opposers for a 
 review of the order of the Court, made on the 12th inst., 
 refusing to compel the claimants to begin de novo. 
 
 Mr. Martin for opposers. 
 
 Mr. Sarbah for claimants. 
 
 Mr. Martin addresses the Court. 
 
 Mr. Sarbah is heard in reply. 
 
 By the Court : The point raised, and which the Court 
 decided was that the claimants should not be compelled to 
 begin de novo. That point has been abandoned. Mr. 
 Martin now seeks to be allowed to cross-examine the 
 claimants' witnesses. As it appears that the notice of 
 opposition originally filed though late was, however, before 
 the inquiry began, the Court is of opinion that the 
 opposers should have this opportunity, and therefore allows 
 the opposers to cross-examine the claimants' witnesses, who 
 the opponents are to bring down by subpcenas, and after 
 to proceed to prove their case. 
 
 Wednesday, April 16, 1902. 
 
 Mr. Sarbah for the claimants. 
 
 Mr. Thomson for the Tacquah and Abosso Co. 
 
 Mr. Boss for the Gold Coast Amalgamated Mines asks 
 for leave to oppose. 
 
 Also on behalf of the Abbontuakoon Wassaio Mines, 
 £td. 
 
 Also on behalf of Heiulrick Vroom and others. 
 
 By the Court : Leave to oppose granted. In each case 
 the opposer to enter into a bond with two sureties in the 
 sum of £300 on or before May 30 to answer such costs as 
 may be consequent on the opposition to the claimants, 
 
124 PAKTI LAW EEPORT. 
 
 irrespective of the result. Claimants not obliged to begin 
 de novo. 
 
 Mr. Thomson informs the Court that he will rest his 
 case on that made out by the claimants ; but, hearing that 
 Tawiah is in Court, calls and examines him. 
 
 Friday, June 20, 1902. 
 
 Mr. Sarbah for claimants. 
 
 Mr. Bannerman states that he has just been requested 
 by Mr. Davies to represent the Tacquah and Abosso Co., but 
 not having the papers, he is not prepared to go on. 
 
 Mr. Renner for the Gold Coast Amalgamated Mines, 
 opposers. Conditions were imposed April 16, 1902, prior 
 to granting leave to oppose. On May 30, 1902, time was 
 further extended for a week. Conditions not now com- 
 plied with. Mr. Renner asks for further extension of time, 
 on the ground that he did not understand that in each 
 case security in £300 was to be given. 
 
 Court refuses to extend the time and strikes out the 
 opposition. 
 
 Mr. Renner for the Abbontudkoon Wassaw Mines, Ltd., 
 opposers. 
 
 The evidence of Tawiah, taken on April 16, does not 
 support the opposers' contention, and they do not appear 
 to know the boundaries of the land they are claiming. 
 Under the circumstances, and in view of the opportunity 
 which has already been given to them to prove their right 
 to any portion of the Pepe Concession of which they have 
 not availed themselves, the Court decides against tjieir 
 alleged right to oppose with costs. 
 
 Inquiry adjourned to Monday. 
 
FANTI LAW REPORT. 125 
 
 Monday, June 23, 1902. 
 
 Mr. Renner for Hendrick Vroom, an intended opposer. 
 
 Motion ex parte for leave to oppose was made June 11, 
 1902, when motion put down for hearing to-day. 
 
 Mr. Renner is heard in support. 
 
 Mr. Sarbah opposes the leave. 
 
 By the Court: The Court had already granted leave 
 and fixed the condition, but from the affidavit of Mr. Vroom 
 he was unable through illness to comply with condition. 
 Time extended to Wednesday, in which the bond is to be 
 given. 
 
 Inquiry adjourned to Wednesday next. 
 
 June 25, 1902. 
 
 Mr. Renner, for proposed opposer, Mr. Vroom. On the 
 application of Mr. Renner on the 23rd inst., time extended 
 for entering bond, and to-day fixed as the day on which 
 the bond is to be given. 
 
 No bond has been given, and Mr. Renner cannot state- 
 why Mr. Vroom has not executed it. 
 
 By the Court : The condition not having been complied 
 with, leave to oppose refused. 
 
 Inqiiiry adjourned to to-morrow. 
 
 Thursday, June 26, 1902. 
 
 Mr. Sarbah for claimants. 
 
 Mr. Davies, for opposers Tacquah and Abosso Co. 
 
 Mr. Thomson at first represented the opposers, and), 
 liberty was reserved to him to cross-examine the witnesses- 
 for the claimants. This, however, he said would not do, but^ 
 would rest his case on the facts submitted by the claimants. 
 After addressing the Court on the evidence, the Court 
 pointed out that his contention that the claimants must 
 
12G FANTI LAW EEPORT. 
 
 succeed on the strength of their title did not alter the 
 position of the opposers to show their locus standi, and 
 that upon the claimants' evidence the Court was satisfied 
 that they were entitled to their certificate. Whereupon 
 Mr. Thomson called as his witness, Kwamina Tawiah. 
 The inquiry then stood adjourned, and from time to time 
 has been adjourned. 
 
 Mr. Davis informs the Court that he has no further 
 evidence to adduce. 
 
 By the Court : The opposers have failed to show their 
 right to oppose the issuing of the certificate. The evidence 
 of Tawiah, if anything, is against them, and they have in 
 no way shaken the evidence adduced on behalf of the 
 claimants. The Court finds against them with costs. 
 
 Inquiry adjourned sine die. 
 
 Thursday, July 3, 1902. 
 
 Mr. Sarhali for claimants. 
 
 Mr. Davis for the Tacquah and Abosso Gold Mining Co., 
 Ltd. 
 
 Motion by Mr. Davis for leave to appeal from the 
 decision of this Court given on the 26th inst. 
 
 Mr. Sarhali opposes application on the ground that the 
 opposers have not shown that they are entitled to an inch 
 of ground, and the appeal should not be allowed until it is 
 shown that the amount of £50 or more is involved. 
 
 By the Court : Having regard to the grounds of appeal 
 the matter is one affecting land, and I have not to consider 
 the question of evidence if parties say they are aggrieved 
 by my decision. The question as to whether the opposers 
 have made out any case will be decided by the Appeal 
 Court. As soon as the opposers shall have paid £15 into 
 Court for the transmission of the Eecords of Appeal, have 
 deposited £30 in Court to abide any costs the Appeal Court 
 may award, and have given notice to the other side, leave 
 will be given. 
 
FANTI LAW EEPORT. 127 
 
 Thursday, July 17, 1902. 
 
 Ex parte motion by Mr. Benner on behalf of Hendrick 
 Vroom for fresh leave to oppose. 
 
 Motion supported by affidavit of Hendrick Vroom. 
 Motion refused. 
 
 FULL COUET EEPOKT. 
 October 2, 1902. 
 
 Before Sir W. Beakdfoed Griffith, Knight, C. J., Francis 
 Smith, J., William Nicoll, J. 
 
 Appeal from judgment of Smith, J. (Cape Coast), dated 
 June 26, 1902, dismissing opposition of the Tacquah and 
 Abosso Co. 
 
 Davis for appellants, opposers. 
 
 Sarbah for respondents, claimants. 
 
 Sarbah raises preliminary objection that final leave 
 should not have been granted, as the conditions required 
 by law were not complied with. 
 
 The Court hears Davis contra. 
 
 It appears that the notice was served on an adult 
 inmate -at the address for service, but was not addressed to 
 the claimants. The Court pressed Mr. Sarbah to relinquish 
 his objection, but he replied that he was anxious for a 
 ruling" of the Court on the point. The notice not being 
 addressed to the claimants the Court holds that it was not 
 duly served on them, and that they did not have the 
 notice required by law. 
 
 The conditions required by law not having been com- 
 plied with, the Court is bound to order the appeal to be 
 struck out, but allows no costs. 
 
 Appeal struck out. 
 
128 FANTI LAW REPORT, 
 
 Saturday, October 4, 1902. 
 
 Davis moves ex parte for special leave to appeal from 
 judgment of Smith, J., at Cape Coast, dated June 26, 1902. 
 
 Affidavit of G. W. Davis, of March 10, 1902. 
 
 The Court goes into the grounds of the appeal and 
 ascertains that the reasons of appeal are that the appellant 
 contends that the claimants in the Court below did not 
 prove their claim sufficiently, but it is admitted that the 
 appellants did not prove that any land was theirs, merely 
 resting their right to have the concessioa invalidated on 
 the ground that the claimants had not proved their case. 
 
 The Court has also had an opportunity of reading over 
 the notes of proceedings in the Court below, and thinks it 
 useless to allow the appeal. 
 
 In these circumstances special leave to appeal refused. 
 
 Thursday, October 30, 1902. 
 Before Fkancis Smith, J. 
 
 Ex parte motion by Mr. Eenner for the Gold Coast 
 Amalgamated Mines for leave to oppose. 
 
 Mr. Sarbah appears for claimants, and objects to the 
 leave being granted. 
 
 By the Court : Having regard to the fact that leave was 
 granted on conditions months ago, and that the time for 
 complying with the conditions was extended, and notwith- 
 standing the conditions were not complied with, and in 
 consequence leave was refused. Leave is now also refused. 
 Let the certificate of validity issue. 
 
FANTI LAW EEPORT. 129 
 
 KWAKU AMU V. ANDO KWAW AND 
 KWAW FAEBILL. 
 
 March 7, 1902. 
 
 Before Feancis Smith, J. 
 
 Stool Property — Tenure — Evidence. 
 
 Judgment was reserved in this case, and parties having 
 been notified to attend, have accordingly done so. 
 
 Judgment. . 
 
 This action is one for trespass, alleged to have been 
 committed by the defendants and their people on land 
 claimed by the plaintiff and called Yeretiasi, and for it he 
 claims £100 damages. 
 
 The trespass is stated to be the removal of quartz from 
 the land. 
 
 The defendants have pleaded that they are not guilty, 
 and have further raised the issue of the title to the land. 
 
 This being the more important issue, for doubtless the 
 action was brought to test the title, I shall consider it 
 first. 
 
 With few exceptions there is no disagreement between 
 the parties. All agree as to the name of the land, the 
 parties having boundaries with them and the persons who 
 worked on the land, the difference being (1) the plaintiff 
 claims the land as founded by his ancestor, whilst the 
 defendant Farbill — for Ando Kwaiv does not claim the 
 land, and whatever he did he acted under Farhill's instruc- 
 tions — says it was a gift by the predecessor of King Wereku 
 to his ancestor, and (2) the circumstances under which the 
 persons who worked on the land came on it. 
 
 Dealing first with the evidence relating to the persons 
 having boundaries with the plaintiff, the defendant Farbill 
 admitted that the witnesses the plaintiff called are the 
 
130 FANTI LAW REPORT. 
 
 same he alleges who have boundaries with him. But 
 these witnesses, amongst them being the brother-in-law 
 of the defendant Ando Kwaw, who wanted him as a witness, 
 deny that they have any boundaries with him on Yere- 
 tiasi, whilst they admit they have with the plaintiff, 
 and they and their ancestors have always recognized the 
 plaintiff's ancestors and himself as the owners of Yeretiasi. 
 The only witness the defendant has called is Kudjo Obin, 
 who attempted to give evidence for both sides at one time, 
 saying he had boundary with plaintiff, at another time 
 with Farbill, and his evidence is therefore worthless. On 
 this point the plaintiff's evidence is uncontradicted. 
 
 Considering next the ownership of the land, it is clear 
 that neither plaintiff nor defendant has lived on the land. 
 The evidence of the plaintiff, his brother Kwesi Enti and 
 Japenin as to who was originally the owner of the land 
 is strengthened and supported by the evidence of the 
 persons whose lands adjoin Yeretiasi. On the other hand, 
 the statement by Farbill of the gift of the land rests on his 
 own unsupported evidence. He even does not know the 
 name of Weroku's ancestor who gave away the land, a 
 knowledge which is surprising he does not possess, seeing 
 that this is the basis of his title. However, in support of 
 this, Farbill tells us that his people lived on Yeretiasi, but 
 were driven away by the Ashantis during Macarthy's time, 
 and the ruins of their village are now visible. In this 
 statement, likewise, he is not corroborated. On the 
 contrary, his own witness Yebua, who is brought forward 
 as the grandson of Yebua, and whom all parties acknowledge 
 to have one time lived on the land, says that these ruins 
 were his grandfather's, as he it was who first built any 
 village on the land. The co-defendant, a relative of Farbill, 
 and who went to live on the land years after Yebua, gives 
 no evidence of FarUU's ancestors having lived on the land, 
 and the ruins on which he said he lived could have been 
 no other than Yebua's ruins. The whole question turns as 
 to how those who resided on the land came on it. Yebua 
 
FANTI LAW REPORT. 131 
 
 is the first. Farhill tells us that, returning after the 
 Ashantis had retired, his ancestors remained at Adamanso, 
 and Yebua with his party who were with them went on and 
 stayed at Yeretiasi. 
 
 Prom the plaintiff's own showing he was not horn at 
 the time his people returned and settled at Adamanso, and 
 his statement of Yebua and his party going on to Yeretiasi 
 could only have been hearsay. The co-defendant gives no 
 evidence of Yebua going on the land, no more does Yebua 
 of how his grandfather came on the land. On the other 
 hand, Kabina Agay states that he and his uncles came from 
 Jabin to Dominasi, and by the permission of Cobina ;Ban, 
 the ancestor of plaintiff, they went and lived on Yeretiasi 
 land, and Yebua met them there. He further states that 
 he was present at Dominasi at the time Yebua obtained 
 permission from Ban to go and reside on the land, and he 
 came with his wife Pomba. Another witness, Imjuri, the 
 chief of Ekrotuasi, states that Yebua came to his uncle to 
 give him a place to work gold, and that his uncle, who 
 had no land to give, sent him along with Dochi to Cobina 
 Ban, and that after this he saw Yebua on Yeretiasi. So 
 far, therefore, the evidence of the plaintiff preponderates 
 in favour of the view that Yebua came on the land by his 
 ancestor's permission. The other persons mentioned by 
 the defendant as having lived on the land are Amponba, 
 said to be Aframpony's flute-player, Kuraku, and the 
 co-defendant. Again Farhill is not corroborated with 
 regard to Amponba having lived at Yeretiasi. As to 
 Koraku' he alleges that he went with Amponba, who had 
 married Dampwa the mother of Egay, to Yeretiasi. At 
 the same time he acknowledges that Kiraku was the slave 
 of Egay's uncle, and from Egay we learn that Kiraku went 
 with them to Yeretiasi. It seems more probable that 
 Egay's story is the correct one. Furthermore, Kiraku 
 could have been brought to settle the question by Farhill, 
 but he did not. In addition to this, plaintiff's witnesses as 
 well as Egay give evidence of tolls paid by Kiraku to plaintiff. 
 
132- FANTI LAW KEPORT. 
 
 As to the defendant J.wc7o Kwaw,h.e denies the evidence 
 of the plaintiff's witnesses that he obtained permission of 
 the plaintiff's ancestor Amu Penin to go on the land, and 
 that he did not pay cash and rum to get the permission. 
 
 All he says is that Afrumpon told him the land was 
 his and he could go on it, and he did so in Jappa's time. 
 But I must say that, having regard to the unsatisfactory 
 manner in which this man gave his evidence, I am unable 
 to believe him. No evidence is given by Farbill that any 
 of these persons whom he alleges got on the land by 
 permission of his people paid anything for the permission, 
 whereas evidence is given to that effect' by the plaintiff, 
 and only in one case — that of Ando Kwaw — is it denied. 
 
 The plaintiff himself did not attempt to go on the land 
 till it was claimed by Amu, and even the killing of the 
 sheep was done before he was installed, a ceremony which 
 was gone through for this very case. His ancestors he 
 says were buried on the land, and yet there is an absence of 
 evidence of the annual custom on the land which should 
 have taken place. He declares it is not the custom, though 
 he admits that his Paramount Chief Wereku performs this 
 custom where some of his ancestors are buried. On the 
 whole, I find that the land is attached to the plaintiff's 
 stool. 
 
 Now, as to the damages, Farbill admits taking quartz 
 from the land and sending Ando to do so. Ando Kwaw 
 denies doing so, but the evidence satisfies me that he did. 
 
 There could have been no other object in his sending 
 Kojo Ansa to go on the land to see if there were samples 
 and in his going on the land after Ansa had reported to 
 him, more especially when he wishes the Court to believe 
 the land was Aframpon's, than to take samples, and when 
 this conduct of his is taken into consideration with the 
 evidence of Japenin and others, I am satisfied that he was 
 not speaking the truth when he denied that he took samples. 
 However, the Court is without any evidence of the value of 
 the samples, and doubtless, under the circumstances, the 
 
•FANTI LAW EEPOnT. 133 
 
 plaintiff could give no such evidence. The damages, there- 
 fore, must be somewhat small. I give judgment for plaintiff 
 with costs, and assess the damages for the trespass at £5. 
 
 EFOO AND OTTOO v. SIMPA AND HANNAH 
 MARTIN, 
 
 March 25, 1902. 
 
 Before Feancis Smith, J. 
 
 Acquisition of Land — First Settlers — Position of subsejuent Settlers, 
 
 Mr. Bannerman for the plaintiffs. 
 Mr. Boss for the defendants. 
 
 Judgment. 
 
 I am clear upon the evidence that there must be 
 judgment for plaintiffs on the defendant's plea. The 
 defendant supports the plaintiffs' case, in that it admits 
 that Affaidu was the first to settle in Amanful, and that he 
 was the ancestor of Mr. Sam. From Mr. Sam's evidence, 
 his ancestor gave portion of this land including that in 
 dispute to Jack Coleman, and another portion to the 
 co-defendant Hannah Martin's people, and Mr. Sam's 
 evidence is more in accordance with native law, that the 
 first settler is the one that gives permission to those 
 coming after. 
 
 It would appear that the co-defendant's people did give 
 permission to persons to build on this portion given to 
 Coleman, but it is not surprising \/hen it is considered, 
 that her father lived with Coleman and was his pawn. 
 I am however not able to state the boundaries of the 
 portion given to Coleman's and that to Hannah Martin's 
 people, and therefore my judgment is confined to the site 
 covered by Simpa's building. 
 
134 FAKTI LAW REPORT. 
 
 The question of title being the test issue, damages for 
 the trespass cannot be large. 
 
 I assess the damages at £2 2s. with costs. 
 
 IMPATASIE CONCESSION INQUIRIES 164 & 169. 
 Axim, April 20, 1902. 
 Before Morgan, J. 
 
 Stool Property — Land — Acquisition hy Settlement — Subordinate liuler — 
 Dealing with Stool Property — Superior Buler's right to Tribute. 
 
 Judgment. 
 
 As the concessions, the subject of these two inquiries, 
 relate to adjoining lands, the lessors and lessees being the 
 same in each case, it was considered desirable, for purposes 
 of convenience, that the inquiries should be held" together. 
 The subject of Inquiry No. 164, is a concession dated 
 January 14, 1896, and made between Quamina Yira, 
 Quabina Yandoh, and Cudjoe Mainsa of the one part, and 
 William George Mensah and Thomas Bren Wilson of the 
 other part. 
 
 The concession, the subject of inquiry No. 169, is dated 
 July 20, 1897, and made between Chief Quamina Yira 
 and Quabina Yandoh of the one part, and William George 
 Mansah and Thomas Bren Wilson of the other part. 
 
 The land comprised in the concession, the subject of 
 Inquiry No. 164, is stated by the claimants to be that 
 delineated and coloured green on a plan filed as giving 
 particulars of the land comprised in the two concessions. 
 It is also stated that the land comprised in the concession, 
 the subject of Inquiry No. 169, is delineated and coloured 
 buff on such plan. The claimants have, for reasons which 
 
FANTI LAW REPORT. 135 
 
 appear in the evidence, abandoned all claims to land called 
 Adiosu which formed a portion of the land with which the 
 concession, Inquiry No. 164, purported to deal. 
 
 To both of these inquiries Chief Kwasi Ghanteh of 
 Abora was made a party for the purpose of opposition, and 
 in the notices of opposition filed in both inquiries the 
 grounds of his opposition are stated to be — 
 
 1. That the lands comprised in the concessions are 
 lands attached to the stool of Ghanteh, who is paramount 
 chief of Akyempim ; 
 
 2. That the concessions were not granted by Ghanteh 
 .or any of his predecessors, or with their knowledge, consent, 
 or approval. At the commencement of the proceedings 
 counsel for Ghanteh stated that he opposed on the ground 
 that he claimed to be interested in the lands the subject of 
 the two concessions but only as paramount chief. He 
 went on to admit that Yira and Yandoh were the proper 
 persons to grant such lands, but stated that before they 
 could do so they must obtain Ghanteh's consent, which had 
 neither been asked for nor given. 
 
 By the claimants, it is denied that Ghanteh is the 
 paramount chief of the grantors, and that his consent, 
 which it is admitted was neither asked for nor given, is 
 necessary. The question, therefore, I have to decide as 
 between the claimants and the opposers is this — 
 
 Are the concessions rendered invalid by the fact that 
 the consent of the opposers to the leasing of the land 
 comprised therein was neither asked for nor obtained 
 either before or after the transactions took place? The 
 opposer claims to be paramount chief of the Akyempim 
 district, in which the lands comprised in the concessions 
 are situate. 
 
 What is a paramount chief? "Paramount" means 
 " supreme," and according to ihe proper meaning of the 
 word a paramount chief would mean the supreme head of 
 a district, who is subject to no other chief. 
 
 But the expression "paramount chief" is often, I 
 
136 JANTI LAW EEPORT. 
 
 think, used in connection with an immediate superior 
 chief, who is in his turn, suhordinate to another. 
 
 Under what condition is the consent of a paramount or 
 superior chief necessary to dealings with land by persons 
 to whom he stands in the position of paramount or supreme 
 chief ? To find out what the native law bearing on this 
 point is, it is necessary to go back to the times when writing 
 and leases were unknown. At that time the equivalents 
 of the modern conveyance, mortgage, and mining lease 
 respectively were : — 
 
 1. Sale "by native custom, which was extremely rare ; 
 
 2. Permission granted to strangers to work for gold, 
 tribute being paid in respect of each permission ; 
 
 3. Pledge of land to secure debts. 
 
 To render these transactions valid, the consent of the 
 family as regards dealings with family land, and that of 
 the community as to dealings with land attached to a village 
 or town stool, would be required, such consent being given 
 through the head of the family, or the chief of his village 
 or town stool. 
 
 Now, from the evidence of the King of Axim, it appears 
 that the right to demand and receive tribute on land is 
 based on ownership, and I am of opinion that on ownership 
 also must be based the rights to give or withhold consent 
 to dealings with land. It may possibly be that by custom 
 in some cases a chief can claim tribute from his sub-chiefs 
 in respect of their lands apart from the question of owner- 
 ship of such land ; but in such cases I do not think that 
 his consent would be necessary to render valid dealings 
 with land, the right to hold and occupy which was not 
 derived from his family or town stool. In these circum- 
 stances it is necessary for Ghanteh, in order to be success- 
 ful in his opposition, to show that the right of the grantors 
 to hold and occupy the lands the subject of the concessions 
 is derived through the stool on which he is sitting at Abora. 
 
 The circumstances under which the ancestors of Ghanteh 
 and Yira ca.me into the locality of the land comprised in 
 
FANTI LAW EEPOET. 137 
 
 the concessions, have a most important bearing on the 
 matter in issue, and in cases like the present, the Courts 
 in this colony allow evidence of family tradition, which 
 would, under ordinary circumstances, be inadmissible to be 
 given for what it is worth. It is stated on behalf of the 
 claimants that Yira's ancestors obtained permission to 
 settle on the land from the ancestors of Agyman a chief of 
 Dixcove, and that Yira's ancestors in their turn gave 
 Ghanteh's ancestors permission to settle there. In support 
 of these statements evidence as to the supplying of powder 
 by Agyman at the time of the Alfaast war was strongly 
 relied upon. This evidence was, however, contradictory, 
 and I consider it unsatisfactory and unreliable, and from 
 a consideration of all the evidence (although it is evident 
 Yira has placed himself under the protection of Agyman, 
 and acknowledges him as his superior . chief) I do not 
 believe that Yira's ancestors settled on the land by the 
 permission of the ancestors of Agyman. I believe that 
 Ghanteh's ancestors and Yira's ancestors came to the 
 coast from the interior — that Ghanteh's ancestors went to 
 Egamra and proceeded from thence to a spot in the neigh- 
 bourhood of Abora, where they settled. As to whether they 
 settled there by permission of the chief of Egamra, it 
 appears, from the evidence of Kurku Efrim, that the chief 
 of Egamra does not now claim th^ land as attached to his 
 stool, which fact, supports the assertion of Ghanteh, that a 
 gift of the land was made by the then chief of Egamra to 
 his ancestors. This fact will also support the greater 
 probability, that the land was never attached to the stool 
 of Egamra, but that the ancestors of Ghanteh went beyond 
 the limits of the Egamra land, and sc^uatted on land which 
 was unoccupied at the time. 
 
 I believe also that the ancestors of Yira, coming from 
 Akuntanaim, joined them on the land at a later period and 
 settled at Impatasie, some of the family of Yira having 
 probably previously accompanied the ancestors of Ghanteh 
 on their immigration from Egamra. 
 
138 FANTI LAW REPORT. 
 
 Now, did the ancestors of Yira settle on the land 
 independently or by the consent of any person other than 
 Ghanteh's ancestors, or did they, acknowledging that 
 Ghanteh's ancestors were heads of the community which 
 had acquired the land in the neighbourhood of their settle- 
 ment by occupation, join such community ? Impatasie is 
 very near to Abora, and Yira states that it was the first 
 place in which his ancestors settled when they left 
 Akuntanami. 
 
 If Abora was first in existence, the distance between 
 these two places is evidence to negative the probability of 
 an independent settlement. 
 
 The evidence apart from the evidence of family tradition, 
 which to my mind is of importance in the consideration of 
 this point, is — 
 
 That as to the intermarriage of the families ; 
 
 That as to Parri's mission to Impatasie about Kasor 
 land; 
 
 That as to the meeting at Amu Krom taken in connection 
 with the documents marked I. (164 and 169) ; 
 
 That as to the cultivation alleged to have been done at 
 Abora by the people of the villages in the Akyempim 
 district for the chief of Abora ; 
 
 And that as to buying of fowls and rum by the head 
 men of such villages at the celebration of the Kuntoom 
 custom as sacrifices to the stool of Abora. 
 
 Now, if Kweku Inkruma, Yira's predecessor, allowed Lis 
 mark to be put to the document I. (164 and- 169), knowing 
 its contents, such an admission would be strong evidence 
 against the claimants in the question of paramountcy, 
 and it will be borne in mind that Yira stated that he is 
 Ghanteh's superior chief, and that Ghanteh's ancestors 
 obtained permission from his ancestors to settle in Aky- 
 empim land. It would also be evidence of an admission of 
 ownership as regards Bansu lands (it will be remembered 
 that Yira stated that Kweku Inkruma gave Kweku Mensa 
 permission to live at Bansu) and Adiosu lands. 
 
FANTI LAW REPORT. 139 
 
 It is true that these lands are not affected by these 
 inquiries, but they are stated by Yira to be lands in the 
 Akyempim district, and the lands, the subject of these 
 inquiries, lie between them and Abora. It was suggested, 
 on behalf of the claimants, that this document was 
 written after the meeting had broken up, at the instance 
 of Kweku Mensa; but Yira himself, although he denied 
 the correctness of the contents, stated the case was looked 
 into, and it was decided against Kokaa, and a paper was 
 made, and he also admitted that the paper to which he 
 referred was given to Kweku Mensa. In my opinion it 
 has not been proved that the writer of the document wrote 
 therein statements substantially different from those he 
 was told to write, and I see no reason for presuming that 
 he did so. That being so, I accept the document as con- 
 taining a substantially correct embodiment of what was 
 assented to at the meeting by Kweku Inkruma among 
 others. 
 
 Eeference during the hearing was made to a former 
 action between Ghanteh and Yira about Akyempim land, 
 but there was no plea of res judicata, nor was the judgment 
 put in evidence. It must be taken, therefore, that the 
 claimants have elected to waive their right (if they had 
 such a Tight) to set, up a plea of res judicata. Counsel for 
 the claimants obtained leave to put in that portion of the 
 evidence given by Ghanteh at the former trial which was 
 necessary to contradict him with regard to certain state- 
 ments made by him in cross-examination in these inquiries, 
 and I have only referred to such portions of his evidence 
 given at the former trial accordingly. This evidence re- 
 ferred to the non-payment of tribute ; but if Yira's ancestors 
 and Yira himself were in occupation of the land as members 
 of a community of which Ghanteh and his ancestors were 
 the heads, I presume no tribute would be payable in such 
 a case, having regard to the relationship existing between 
 the two families. 
 
 I do not propose to refer in detail to the other portions 
 
140 FANTI LAW TIEPOET. 
 
 of the evidence. It is sufficient to say that, upon a con- 
 sideration of all the evidence, I find that the right of the 
 grantors of the concessions, the subject of these inquiries, 
 to hold and occupy the lands comprised therein is derived 
 through and from the stool on which Ghanteh is now 
 sitting at Abora, and that Ghanteh's consent is necessary 
 for the valid leasing of the said lands. 
 
 The consent has neither been asked for nor obtained, 
 and the claimants have thought fit to fight the matter out 
 in Court. I declare the concessions, the subject of these 
 inquiries, to be invalid, and I order the claimants to pay 
 the costs of the opposer. 
 
 Giving judgment on an application incidental to the 
 aforesaid judgment, two of the judges of the Full Court of 
 Appeal, on the 7th day of October, 1902, expressed them- 
 selves as follows : — 
 
 Feancis Smith, J. : I concur in the judgment just 
 delivered by the learned President. I wish, however, to 
 add this, that I have furthermore had the opportunity of 
 reading the notes of evidence taken by the Judge of the 
 Court below, and I am of opinion that his judgment is 
 right. 
 
 NicoiiL, J. : I am of the same opinion, and for the 
 reasons stated by the learned President. 
 
 I may add that I also have read the evidence which was 
 laid before the Court below, and am of opinion that the 
 judgment of that Court is supported by the evidence. 
 
 Application refused. 
 
FANTI LAW EEPORT. 141 
 
 FULL COURT EEPOET. 
 
 IMPATASIE CONCESSION. 
 
 October 4, 1902. 
 
 Before Sir W. Brandfoed Griffith, Knight, C.J., Francis 
 Smith, J., and William Nicoll, J. 
 
 Concessions Inquiry— Opposition— Effect of Judgment— Appeal. 
 
 Appeal from judgment of Morgan, J. (Axim),. dated 
 April 28, 1902. 
 
 Eenner (with Hayford and Williams) for appellant. 
 Savage for respondent. 
 
 Judgment. 
 
 In this case the claimants filed in the Court below a 
 notice of concession. The lessor, the present appellant, 
 was in due course given notice of the filing of the concession. 
 Before the inquiry came on for hearing, the respondent, 
 Ghanteh, filed notice of opposition. At the hearing of the 
 inquiry, the claimants led evidence in support of the 
 concession, and the lessor not only gave evidence but he 
 appeared by counsel ; but he was not made a party to the 
 inquiry. Ghanteh produced evidence in opposition to the 
 concession to the effect that he was paramount chief over 
 the lessor. The Court below accepted the view presented 
 by Ghanteh, and found that the proper persons were not 
 parties to the concession, and that therefore it was invalid. 
 The question is whether the lessor now has a right of 
 appeal. It was urged, on behalf of the lessor, that the 
 question of paramountcy was in issue, and that therefore 
 it was res judicata as between him and Ghanteh ; it was also 
 urged that he was a party because he had received notice 
 of the filing of the concession and because he had appeared 
 
142 PANTI LAW REPORT. 
 
 by counsel. Mere appearance by counsel does not con- 
 stitute the person so appearing a party, nor will cross- 
 examination of witnesses by such counsel make any 
 difference in a concession inquiry, where the Court is only 
 too thankful to have all possible light thrown upon the 
 subject of enquiry and where the Court welcomes any 
 amicus curice who will assist it to get to the truth.* Nor 
 will the fact that the lessor was served with a notice, under 
 sect. 10 of the Concession Ordinance, constitute him a party. 
 He was served not for the purpose of protecting the lease 
 he had granted, but so as to be allowed an opportunity of 
 protecting his own interests as against the lessee. If he 
 wished to be made a party for the purposes of opposition 
 or otherwise, he could have been made a party under 
 rule 10 of the amended concession rules, but it appears to 
 us that receipt of notice under sect. 10, and subsequent 
 appearance by counsel at the inquiry did not constitute 
 him a party. Nor do we think that he is bound by the 
 finding of the Court as to the paramountcy of Ghanteh. 
 The issue at the inquiry was not the question of para- 
 mountcy, but the validity of the concession, and particularly 
 whether the proper persons were parties to the concession ; 
 paramountcy was only a matter of evidence on which that 
 issue was supported. And if this Court was to hold that 
 facts found at concession inquiries were binding on the 
 lessors, it would not only compel all lessors served under 
 sect. 10 to come forward and defend to the utmost their 
 rights at every inquiry, where such rights were impugned, 
 but it would also compel the Court to give notice in every 
 case to all the lessors. But, by the Concession Amendment 
 Ordinance No. 20 of 1901, it is laid down that where there 
 are several grantors only one need be served, whilst the 
 notices issued by the Court to the lessors imply that they 
 
 * The C.J., ia delivering judgment, interpolated a statement to the 
 effect that he did not think it would make any difiference in a matter not 
 being a concession inquiry, but the case of a concession inquiry was 
 stronger than an ordinary suit. 
 
FANTI LAW REPORT. 1^3 
 
 need not appear if they have no objection to the concession 
 being declared valid. 
 
 A notice of opposition need not be served on the lessors, 
 and to hold that lessors are bound by the findings of the 
 Court in opposed cases would inflict great injustice. The 
 fact that a lessor does have notice of the opposition and 
 does appear by counsel without being made a party, makes 
 no difference. AVe are of opinion that the lessor was not 
 a party to the concession inquiry, and is not bound by the 
 findings of the Court at the inquiry, and that the Court 
 below was wrong in granting him leave to appeal. 
 
 As this important point was raised not by counsel for 
 the respondent, but by the Court, we think that there 
 should be no costs. 
 
 On October 7, 1902, the Appeal Court refused to give 
 special leave. 
 
 KWASIE BOOGYAYE v. ACCOSUAH DJWAINEE. 
 
 July 14, 1902. 
 
 Before Francis Smith, J. 
 
 Stool Property — Tenure— Evidence— User of Land in Common. 
 
 Judgment was reserved in this case, and parties were 
 notified to attend. 
 
 Judgment. 
 
 The plaintiff seeks, first, to eject defendant from, and 
 to recover possession of, a tract of land called Ekropong, 
 and £100 damages for trespass on a hill called Aduasi, by 
 taking quartz and samples therefrom. Pleadings were 
 ordered, and the plaintiff asserts that Ekropong is attached! 
 to his stool, and is on a land called Akoti, the plaintiff's 
 property, and also that of the hill Aduasi, and claims the 
 whole of the Akoti land as property belonging to the stool 
 
144 FANTI LAW REPORT. 
 
 of his ancestors. Ekropong is not, as the plaintiff alleges, 
 a tract of land, but a village, and it is • admitted that this 
 village and the hill are on Akoti land. It is further 
 admitted that the defendant resides at Ekropong and the 
 plaintiff at Wurakessie, these two villages being the impor- 
 tant villages on Akoti land. As the title to the whole 
 Akoti land is put in issue, I shall first deal with the evidence 
 relating to the ownership thereof. The plaintiff bases his 
 right to the whole land on the traditional history that his 
 ancestor was the first to clear the land, and that permis- 
 sion was given by his ancestor to defendant's ancestor to 
 iive at Ekropong. 
 
 But where his ancestors came from to clear the land 
 he cannot say. The land, from his pleadings, measures 
 thirty-four miles from north to south, and thirteen miles 
 east to west ; what portion of this area was cleared by his 
 ancestor, so as to give him the right to claim the whole, is 
 not shown. In support of this view he gives evidence of 
 certain villages, most of them hunters' villages, founded 
 by persons to whom his predecessor and himself gave per- 
 mission, and for which tolls in the shape of game and 
 rubber were given. And whilst narrating this, he sup- 
 presses the fact that there are villages also attached to 
 Ekropong over which neither his ancestor nor he has 
 exercised any control, or given permission to any one to 
 •occupy, nor in respect of which has any tolls been paid. 
 And the object in doing this was clear that the Court 
 ^should infer that if Ekropong is surrounded by villages 
 ibelonging to him, added with the permission given to 
 ■■defendant's ancestor, Ekropong must necessarily belong 
 to him. He produces persons who allege to have boun- 
 daries with him, and this sums up the evidence he had 
 adduced to show his title to the whole land. As to his 
 ancestor having first cleared the land, he stands uncor- 
 roborated. 
 
 The defendant denies this, likewise does the defendant 
 deny that her ancestors got permission from his to occupy 
 
FANTI LAW EErORT. 145 
 
 Ekropong. Much stress has been laid on the boundaries, 
 just as if the defendant had denied that the plaintiff is not 
 in occupation of Wurakessie, which is on Akoti land, and 
 that there are no villages on the land belonging to the 
 Wurakessie people. But those who came to give evidence 
 of boundaries only spoke of having boundaries with Akoti. 
 One or two have never been on Akoti ; some do not 
 know the extent of the land nor the situation of Ekropong, 
 and the villages and to whom Akoti belongs ; and those who 
 speak to the ownership of it, merely presume the whole 
 land to be plaintiff's. Anpon, the first witness, says he has 
 a boundary, a stream Ampomapun, with Akoti land. The 
 land, he says, belongs to the plaintiff. He has never been 
 on the land, and he does not know how plaintiff got it. 
 The next witness is Enin Ayay. He says that he and his 
 uncle were coming down to Cape Coast for a case which 
 had nothing to do with Akoti land, when his uncle pointed 
 out a stream called Akonkosu as the boundary between 
 his land and Akoti land. Dankwa states nothing as to 
 boundaries, but tries to show, what was not disputed, that 
 there were villages of Wurakessie, and through the son of 
 one of plaintiff's ancestors he got to know that Akoti 
 belongs to plaintiff, and so does Ekropong, when the 
 Government ordered them to clear the road from Archin to 
 Grand Sarnie. He does not know where plaintiff's ancestors 
 came from ; and he states, what the evidence shows to be 
 untrue, that snails were collected by way of tribute from 
 Ekropong. Kwamin Egay, the brother of the plaintiff, 
 does not know to whom Akoti land belongs, but confines 
 his evidence to Bupor Kor, whilst admitting that Ekropong 
 was attached to the stool of Esuwa, the chief of Ekropong. 
 Kofi Chumasi does not help the plaintiff's case. He speaks 
 only of making rubber at Nampteh, and giving two loads 
 to plaintiff. Kobina Kessie speaks of having a boundary 
 with plaintiff, and states that Boogyaye is the owner of 
 Akoti, because he has seen him collect tolls from Oshiaka 
 and his evidence as to how he came to see tolls collected 
 
 L 
 
146 .FANTI LAW EEPORT. 
 
 is unworthy of credit. Amuama speaks of getting permis- 
 sion to work on Apemedi and collecting tribute for plaintiff, 
 but he does not know how the Akotis came on the land. 
 Abotchi, the next witness from Assin, beyond giving the 
 names of three streams — short, unconnected streams — as 
 his boundaries with Akoti land, his evidence as to the 
 ownership is worthless, for though not connected with 
 plaintiff, he swears the whole of Akoti is plaintiff's, from 
 the tradition he heard from plaintiff's family. The linguist 
 Tekia repeats what he heard from plaintiff, and in no way 
 assists the Court in determining the ownership of Akoti. 
 Bordah's evidence is entirely hearsay as to the ownership 
 of Akoti land. The rest of the witnesses give evidence of 
 permission to hunt and make hunters' villages on portion 
 of Akoti given by plaintiff's predecessor or himself, and the 
 payment of tolls in consequence. 
 
 Not in the whole of the plaintiff's case is there a tittle 
 of evidence of any act of ownership over Ekropong and its 
 villages exercised by plaintiff's predecessors or himself, or 
 any recognition by the people of Ekropong and its villages 
 of his right to them. In fact, one of his witnesses says 
 the land on which Ekropong village is built does not 
 belong to plaintiff. Ekropong is shown to be a bigger 
 place than Wurakessie, and if it was not in existence 
 before Wurakessie was built, — I am inclined to believe it 
 was — it has continued to be a village for a longer period, 
 for Wurakessie was deserted for some time. I find that 
 the plaintiff is not the owner of the whole of Akoti. Has 
 the defendant, on the other hand, proved a better case? 
 Taking into consideration her action against plaintiff when 
 Moshi was driven out of the land of Ampeni, what trans- 
 pired at the Court of the King of Abra, and the installa- 
 tion of Amua by Esuwa, the defendant has made a stronger 
 case, but not sufficiently strong, in the face of the indepen- 
 dent action of the Wurakessies, as to Wurakessie itself and 
 its villages, and the taking from the Ekropongs of snails 
 collected on the Wurakessie part, to satisfy me that the 
 
FANTI LAW EEPOBT, 147 
 
 ■whole of Akoti land belongs to her. What I am able to 
 gather is that the whole of Akoti was used in common by 
 the Wurakessies and the Ekropongs, each village having 
 small villages attached to it, and it is only since this gold- 
 mining boom has started that there has been an attempt 
 made by the plaintiff to claim the whole land. I do not 
 find that the defendant is entitled to judgment for the 
 whole land. Now come the real points of the controversy 
 — the right of the plaintiff to turn the defendant out of 
 Ekropong, and to claim damages for trespass on the 
 Aduasi hill. The defendant has lived at Ekropong nearly 
 all her life. Her predecessors had lived there without let 
 or hindrance by the chiefs of Wurakessie ; she now is 
 custodian. Neither the plaintiff nor any of his predeces- 
 sors have been in possession of it, and I find it is in no 
 way attached to his stool. There will therefore be judg- 
 ment for her. As to the trespass the plaintiff has proved 
 nothing. He has never been on the hill, nor has he nor 
 any of his people seen the defendant on the land. The 
 defendant, however, has acknowledged that she sent some 
 one to dig on the land. Kofi Kuma and Yamua are the 
 two witnesses of plaintiff that speak of Aduasi. Kuma 
 says Aduasi has a hill on it. 
 
 " The plaintiff gave me Aduasi to make rubber. He, 
 however, is not at present in possession, and has not been 
 so for over ten years." Yamua, who represents himself 
 to be the nephew of Moshi, only says that Aduasi hill 
 is near Insukruwirome, one of the villages alleged to be 
 given to Moshi. Moshi denies that this hill was given to 
 him by plaintiff's ancestor. On the defendant's part the 
 evidence preponderates that the Ekropongs have been the 
 only persons who have worked and are working, and are in 
 possession of the hill and have farms there, and they are 
 not there for the plaintiff. I have been asked to allow a 
 survey to show the position of this hill ; but not seeing 
 that it could help me in any way as to who is in possession 
 of the hill, having regard to the fact that either the 
 
148 FANTI LAW EEPORT. 
 
 Ekropongs or Wurakessies were not restricted to any 
 particular portion of the Akoti land, I refused the 
 application. 
 
 The plaintiff has shown no title to this hill, and is not 
 in possession, and even if the Ekropongs farmed on the hill 
 without the defendant's permission, that circumstance 
 does not give to plaintiff a title to the land. I find that the 
 Ekropongs are in possession, and that the defendant as 
 the custodian of the stool of Ekropong committed no 
 trespass for which the plaintiff can claim damages. There 
 will, therefore, be judgment for her ; and as from the writ 
 of summons ejectment from Ekropong and damages for 
 trespass on the hill were the main issues raised, the 
 defendant is entitled to her costs, and I grant the same 
 accordingly. 
 
 CONCESSION INQUIRY, No. 38, CAPE COAST. . 
 
 BOKITSI CONCESSION. 
 
 July 19, 1902. 
 
 Before Sik W. B. Griffith, Knight, CJ. 
 
 Ti ihal Land — Stool Property — Long Possession — Acts of Ownership — 
 Mining I'libute — Denhera Suzerainty — res judicata. 
 
 Sarbah, with Willoitgliby Oslorne and Kaye, for claimants. 
 Benner for opposers. 
 
 Judgment. 
 
 In the earlier part of 1896 Clements, a petty trader on 
 his Avay down to the coast, was met at Jukwa by Hackman, 
 who had been charged by persons from Cape Coast to get 
 concessions. Clements told Hackman about Bokitsi mine, 
 where there had been an accident and fifteen persons killed, 
 and returned with him to lamfuri and got samples of 
 quartz from that mine. 
 
FAKTI LAW EEPORT. 149 
 
 The samples were taken to Cape Coast to Messrs. 
 Biney and Ellis, who sent up Benin to examine the mine. 
 Samples were got a second time, and taken to Cape Coast. 
 Hackman, who had returned to Cape Coast with some of 
 the lamfuri people, came back bringing £400. This £400 
 was paid to the lamfuri people, and a lease was granted 
 by them to Messrs. Biney and Ellis of the land described 
 in the lease A. 
 
 The boundaries of the land were not fully described, 
 and it is clear that they were to be definitely marked out 
 at a later stage. The lease A was executed on July 14, 
 1896. Clements stayed at lamfuri, and about a month 
 after the execution of A began to work at the Bokitsi 
 mine. He himself lived at lamfari, but the labourers 
 stopped at Insima, close to the mines. He employed about 
 fifteen Appolonians, who lived at Insima, to dig quartz in 
 the shafts, thirty labourers to crush quartz, and four women 
 to wash. He continued working in this way for about two 
 and a half years, i.e. up to the end of 1898, or beginning of 
 1899, getting sometimes £15 to £20 in three months. In 
 1898 Mr. Otoo, who gave evidence for the opposer, went to 
 lamfuri in connection with Princisu mine. He stayed at 
 lamfuri for about one month, and at Princisu about six 
 months. During this period Mr. Otoo saw Nsia, the chief 
 of Abinabina, and asked him for Attasi land. Nsia refused 
 to let him have Attasi land because it was their dwelling, 
 but he offered him Bokitsi. Mr. Otoo declined the offer, 
 saying that Bokitsi was already leased by the lamfuri people, 
 and that as he knew the lessees it would bring trouble. 
 
 On this occasion Nsia showed Mr. Otoo copy of the 
 judgment in the case of Ahindoman v. Essiemi,.hea.iA in 
 1879, when judgment was given for the Abinabina people, 
 and against the lamfuris, with respect to land called Owiosu. 
 After seeing this paper Mr. Otoo communicated its contents 
 to Messrs. Ellis and Biney, and this appears to have been 
 the first intimation to them that the land was claimed by 
 the Abinabina people. 
 
150 FANTI LAW KBPORT. 
 
 In 1899 Mr. Otoo was again at lamfuri with Captain 
 Williams. On this occasion Captain Williams asked Nsia 
 whether he had leased Bokitsi to Kofi Asaam. Nsia 
 replied " No," but that he had asked Kofi Asaam to sell it 
 for him. 
 
 On October 12, 1899, Nsia took out a summons against 
 Piprah, the then chief of lamfuri, claiming recovery of the 
 land Bokitsi, also called Deya (Danyuan) in the summons. 
 Owing to Ashanti troubles this case was not heard at the 
 time. On September 17, 1900, Biney and Ellis assigned 
 their lease to the present claimants. On the claimants 
 filing their notice of claim Nsia filed notice of opposition. 
 The case then pending was stayed until this opposition was 
 disposed of. 
 
 Nsia died lately, and bis place has been filled by Kwesi 
 Nyankum, the new chief of Abinabina. In this opposition 
 the Abinabina people claim that all the land on which the 
 lamfuris live belongs to the Abinabina stool. I have not 
 got to decide quite so large an issue as that ; nor have I to 
 decide whether the whole land leased to the claimants 
 belongs to Abinabina. The issue is narrowed down to the 
 five square miles selected by the claimants out of the 
 thirteen square miles which are comprised within the 
 boundaries cut by the claimants on the direction of 
 the lamfuris. As, however, the Abinabinas contend that 
 the lamfuris are there by their permission, and not by 
 right, it will be necessary for me to consider, first, whether 
 the lamfuris have a right to any land there, and, secondly, 
 whether they have a right to the particular five square, 
 miles, which have been selected. 
 
 Although the claimants began in the matter I think 
 that, as they are in possession, the burden of proof is upon 
 the opposers to prove that the land is theirs. I shall, there- 
 fore, consider the case of the opposers first. They claim — 
 
 (1) That the matter is res judicata by reason of the 
 judgment of the Court in Ahindoman v. Acquasie Esseamin 
 (called Essiemi in this case) in 1879 ; 
 
FANTI LAW REPORT. 151 
 
 (2) That the land is theirs, as it was their predecessors 
 who allowed the lamfuris to settle there ; 
 
 (3) That, at any rate, the deserted village of Danyuan, 
 which is practically the same as Bokitsi, belongs to the 
 Abinabina stool, inasmuch as it is the place where their 
 ancestors were buried, and where up to six years ago they 
 made their annual customs. 
 
 (4) That it was their ancestor, Kojo Kwedu, who per- 
 mitted Asante Bedu, a Denkera man (not an lamfuri man), 
 to live at Danyuan ; 
 
 (5) They produce a gold ornament and beads which 
 they allege were found at Danyuan by the above-mentioned. 
 Denkeras and brought to them. 
 
 The lamfuris claim — 
 
 (a) That the case above referred to related not to w- 
 large tract of land but only to a particular portion then in^ 
 dispute ; 
 
 (6) That they were on the land from time immemorial; , 
 
 (c) That their boundary with the Abinabinas (or Was- 
 saws) is the stream Ahirasu, that this stream became the 
 boundary after the above-mentioned case by reason of each 
 side confining themselves to one side of it ; 
 
 (d) That they have worked Bokitsi or Danyuan mine 
 for years without interruption, and without paying tribute, 
 other than to the lamfuri chief ; 
 
 (e) That Bokitsi mines were worked for over two years;- 
 by the lessees and their agents, to the knowledge of Nsia, 
 without his raising objection ; 
 
 (/) That Nsia came and asked for a loan from them 
 on the strength of their having got money for the lease of 
 Bokitsi, thereby admitting their right to lease ; 
 
 (g) That on their sending to ask Nsia if the rumour 
 that he had leased the land to Kofi Asaam was true, he 
 admitted their right to lease Bokitsi, and they urge that 
 he only set up this claim at the prompting of Cape Coast 
 " Scholars." 
 
 I shall deal first with the argument that the judgment 
 
152 FANTI LAW EEPORT. 
 
 of 1879 was with respect to the land now in dispute. In 
 that case the Court decided that the land Owiosu belonged 
 to the Abinabinas. 
 
 In this case the opposers have striven their hardest to 
 prove that the whole tract of land on which both Abina- 
 binas and lamfuris reside is called Owiosu, and counsel 
 argued that the whole land was in dispute in 1879, the 
 small portion then actually in issue being merely put 
 forward as a test case with respect to the whole. Neither 
 the evidence in the 1879 case nor the evidence in this case 
 warrants that view. 
 
 In the first place, had the whole land been in issue, 
 would Essiemi have allowed the lamfuris to remain where 
 they were without asserting his right of ownership ? 
 Where a tenant unsuccessfully disputes the right of his 
 landlord, the very first thing the native landlord does is 
 to oust the tenant, or at least to require pacification money 
 or tribute or some outward and visible mark of tenancy. 
 
 Essiemi did nothing of this sort. King Wereku 
 certainly states that Essiemi was about to turn the 
 lamfuris out, and that it was owing to his advice that 
 this was not done, but surely there was a middle course 
 between " driving them back to Ashanti " and not doing 
 a single act to assert title. 
 
 But the case is stronger than this. In the 1879 case 
 Essiemi's representative himself states that the land is 
 •called Abinabina, and that the gold mines are at Owiosu. 
 It is stated to be near Abosso (Aboasu), which the evidence 
 in this case shows to be between Princisu and Abinabina. 
 It was admitted in 1879 that the only part in dispute was 
 Owiosu, where Kofi Ahin Ampong was working. This 
 point is made clear, and I take it that what the parties 
 meant by " corroborating Kofi Ahin Ampong's statement," 
 was that the other parts of the land occupied by the 
 contending parties were admittedly their respective lands. 
 And the evidence in the present case shows conclusively 
 that in 1879 Kofi Ahin Ampong was working near Princisu, 
 
FANTI LAW REPORT. 153 
 
 at a place called Owiosu. Kwesi Nyankun endeavours to 
 show that Kofi Ahin Ampong in 1879 was working at 
 Bokitsi, and the opposers strove to prove that there never 
 was a village called Owiosu (p. 336 and elsewhere), but it 
 is clear from the opposers' own evidence (p. 336 and else- 
 where) that Kofi Ahin Ampong was working at Princisu 
 then, and the opposers' witness Tieku (pp. 329-333) admits 
 that there was a village of Owiosu about a quarter of a 
 mile from the present Princisu. 
 
 In my opinion it is clear that the 1879 case referred 
 solely to land round about Owiosu village, and, left un- 
 touched the other lands occupied respectively by the 
 Abinabinas and lamfuris. 
 
 The next point to consider is how the lamfuris came 
 to be on the land on which they now live. King Wereku 
 states that they were allowed to settle on the land at the 
 time of Sir Charles McCarthy, but knows nothing precisely. 
 The lamfuris themselves say that they were there from 
 time immemorial. In the case of 1879 the lamfuris claimed 
 Owiosu on the ground that it was given to them by the 
 Setchereh people (Wassaws), on the other side of the Boti, 
 and this connection the Setchereh people then upheld. 
 
 There can be little doubt that the lamfuris came 
 originally from the other side of the Prah ; but when and 
 how they came, whether they got permission from the 
 Wassaws to settle on this land, whether they settled on 
 what was no man's land, or whether they were located by 
 the Government after Sir Charles McCarthy's death, it is 
 impossible to say. A perusal of the earlier chapters of 
 Cruickshank's "Eighteen Years on the Gold Coast of 
 Africa" (1853), shows how the Denkeras were originally 
 independent, how the Ashantis conquered not only them, 
 but the Wassaws and the Tufels, and depicts graphically 
 the unrest and turmoil of the whole country between 
 Kumasi and the coast during the first quarter of the last 
 century. Tribes were conquered, revolted, set up for 
 themselves, joined combinations, fled from one place and 
 
154 PANTI LAW EEPOET. 
 
 settled in another. But the place of greatest danger would 
 have been that land adjoining Ashanti, and probably 
 Wassaws and others whose lands bordered on the Offin 
 Prah deserted the extremities of their land and lived nearer 
 the coast. It may be at this time that the lamfuris crossed 
 the Prah and settled on this side of it, or it may be that 
 the lamfuris came across in 1822 when the Denkeras were 
 defeated by the Ashantis (Cruickshank, vol. i. p. 149), or it 
 may be that when Kojo Chibo, the Denkera king, was 
 settled at Jukwa some of his people preferred to settle 
 nearer to their former home across the Prah. It must be 
 remembered that Kojo Chibo was one of the Ashanti 
 captains, and had given great assistance to the Fantis and 
 the British (Cruickshank, vol. i. pp. 151, 157, 162), and, 
 considering the state of the country, it is probable that 
 the Fanti tribes gladly gave the Denkeras (including the 
 lamfuris) land on this side of the Prah; and it is con- 
 sistent with the state of things then existing to think that 
 the Wassaws would have been delighted to give to any of the 
 Denkeras who cared to have it the land between the Of&n 
 and themselves. I think it probable that the lamfuris 
 came on the land early in the last century, and probable 
 that they M-ere given land by the nearest Wassaws ; but I 
 think that the land was a gift. In view of the fact that 
 the lamfuris have lived in undisturbed possession of the 
 land for at least seventy years, that they have never in 
 any shape or form paid tribute, and that unless we accept 
 the statement of the Setchereh chief in 1879 the manner 
 in which they came to occupy the land is lost in antiquity, 
 and taking into consideration the material fact that in 
 1879, when there was a dispute as to outlying lands, the 
 Abinabina people never set up the contention that the 
 lamfuris held under them, it is impossible, to my mind, 
 to come to any other conclusion. 
 
 But the opposers claim that at any rate Danyuan, a 
 place immediately adjoining Bokitsi, is theirs, in that their 
 ancestors are buried there, that they i^erformed annual 
 
FANTI LAW KEPORT. 155 
 
 custom there up to six years ago, that they permitted 
 Denkeras from Gamilsu (Jamina) to reside there, and that 
 these Denkeras brought them gold and beads dug on the 
 land. 
 
 I am inclined to give some credence to the tradition that 
 Danyuan was formerly connected with the Abinabinas. 
 That they have buried their chiefs there during the last 
 forty or fifty years, or that they have performed any custom 
 there during the same period, I doubt, without going into 
 details. The evidence of Kwesi Nyankum and of Tieku is so 
 unsatisfactory with respect to the burial of chiefs and the 
 holding of the custom, that I give no credit to what they 
 say on the point. In their evidence they allege that the 
 annual custom was continued up to six years ago, i.e. up 
 to about 1896. It does seem strange that they should 
 have discontinued it just at the time when Clements began 
 to work, and if they discontinued it because of the new 
 workings, it is difficult to conceive why they took no steps 
 to at once assert their rights which were being disturbed. 
 I am inclined to think, but only inclined, that in the remote 
 past the Abinabinas had some connection with Danyuan, 
 but that they left the land, relinquished all claim to it, 
 and only bring the matter up now for the purposes of their 
 present claim. 
 
 On the gold ornament and beads produced in this case 
 as having been found at Danyuan I lay no stress. It was 
 implied in the 1879 case that they were found by Denkeras 
 at Owiosu. We know that there are numerous Denkera 
 villages scattered about on land acknowledged to be 
 Abinabinas land, and were this case and the case in 1879 
 to be lost sight of, I have little hesitation in saying that 
 this ornament and beads would be used for a third land. 
 
 With regard to the evidence of the witness Kodia I 
 have had some difficulty — generally I believe it, but 
 I doubt it in particulars. I put faith in what Kwa Gamoa 
 says as to Kor Sim, one of Kodia's Denkeras, living at 
 Danyuan, and I think it probable that some of Kodia's 
 
156 PANTI LAW EEPORT. 
 
 predecessors went to the Abinabina chief and asked for 
 lands. We know that Kodia's people are at Fobinsu, 
 Abaosu, and Domponiniasi, on Abinabina land, and to 
 settle there they must have sought permission of the 
 Abinabina chief. I am inclined to think that Kodia's 
 relatives got permission from the Abinabina people to 
 settle on the Abinabina land, and some of them then or 
 later came to Danyuan. Being Denkeras the lamfuri 
 people would not have objected. Of course this is only 
 conjecture, but I am satisfied that Kodia would not stick 
 at making an addition to his evidence, whilst his conduct 
 in the matter is distinctly suspicious. I am also unable 
 to fit in the whole of his statement, which is little more 
 than hearsay, with the other facts of the case, as to which 
 I am clear. 
 
 On the whole, therefore, I think that the claim of the 
 opposers to the land is vague and shadowy, and is far 
 from being sufficient to oust the lamfuris after so long an 
 undisturbed possession. 
 
 But the lamfuris have a stronger title than the weakness 
 of the Abinabina claim. In the first place, how was it 
 that they were allowed to work gold at Bokitsi without 
 being called on to pay tribute ? We have seen how the 
 dispute in 1879 arose on account of the gold tribute, it is 
 not likely that the Abinabinas would have refrained from 
 asserting similar rights had they possessed them. Bokitsi 
 seems to have been a large working, as at one time 
 fifteen persons lost their lives there. It is not possible 
 for the Abinabinas to say that they were unaware of the 
 workings, as they must have had notice of them when 
 passing. Secondly, they must have known of the lease 
 by the lamfuris, and I accept Clements's statement that 
 Nsia knew he was working there. Is it likely that he 
 would have stood by and seen land belonging to his stool 
 sold and worked and not have taken prompt steps to have 
 asserted his stool rights ? 
 
 I also believe Yao Jimma's statement that Nsia came 
 
FANTI LAW REPORT. 157 
 
 -to lamfuri for a loan, and then referred to his lease of 
 Princisu and to the lease by the lamfuris of Bokitsi, Nsia 
 could not have done that had he believed that Bokitsi was 
 his stool property. 
 
 Nor. have I any reason to doubt Yao Jimma's account 
 of the second visit of Nsia -when Mr. Biney was at lamfuris 
 "With regard to the visit of the lamfuris to Nsia at. 
 Abinabina, I prefer the version given by the lamfuris... 
 I thought Clements stupid and obstinate, but I also thought, 
 him truthful. 
 
 I also find that Insima, and Oponkroom, and Kweku. 
 Adai Krum, were offshoots from lamfuri, and that the 
 Appolonians at Insima got permission from lamfuri and 
 not Abinabina. 
 
 I find that Danyuan and Bokitsi belong to the lamfuiiL 
 stool. It now remains to decide whether the whole of the 
 five square miles marked out by Mr. Campbell, the- 
 claimants' surveyor, falls within the lamfuri land. There 
 is no recognized boundary between the Abinabina andl 
 lamfuri land, but towards Mohassem the Ahirasu seems 
 a natural boundary. There is much evidence to show- 
 that the Abinabinas have not worked beyond that stream,, 
 and there is some evidence to show that the lamfuris have 
 cultivated in that direction. It is not possible to make 
 a finding on the point other than that the lamfuris have 
 taken it as their boundary, and that it seems a reasonable 
 and fair boundary. I declare it to be a boundary from 
 its source up to the point where it crosses the cutting made 
 by the Atasi Company, about six chains to the north-east 
 of the Mohassem village. The Ahirasu is not marked by 
 that name on the map put in by the claimants, but from 
 the evidence of the lamfuri witnesses I am clear that 
 the Ahirasu they take as a boundary is that part of what 
 Mr. Campbell in his plan calls the Amobre Creek, which 
 crosses the road from Insima to Princisu. This will give 
 some of the five square miles marked out by the claimants 
 to the opposers. From the source of the Ahirasu I declare 
 
158 FANTI LAW EEPOET. 
 
 the boundary to run to the source of the Akosu (Akwasu 
 and Acquosu in Mr. Campbell's map). This stream has 
 three sources shown in Mr. Campbell's map, and the, 
 source to which I refer is the middle of the three. The 
 boundary then runs along the Akosu stream in a south- 
 east direction, till that stream crosses the Atasi cutting. 
 The Atasi cutting then forms the boundary for about five 
 chains. The Akasu then forms the boundary up to where 
 it touches the corner of the Atasi Concession. I have not 
 suf&cient material on which I can define the boundary 
 any further in this direction, but I am satisfied that as 
 between the Abinabinas and the lamfuris the land on the 
 north of a line drawn from the last-mentioned point to 
 Moaboam Krum is lamfuri land. How far to the south of 
 this line their land extends I am not in a position to say. 
 
 I also find that the Atasi cutting, between the Ahirasu 
 and the short cutting made by Mr. Campbell of 475 links, 
 marked A B on his plan in blue pencil, is the boundary- 
 line between the opposers and the lessors in that direction. 
 
 The other boundaries marked out by Mr. Campbell are 
 ■either the lamfuri boundaries or are inside the lamfuri 
 boundaries. In the result I find that the claimants in 
 marking out their five square miles have taken a portion 
 ■of the Abinabina land. To that extent and only to that 
 €xtent the Concession is invalid, but the claimants can 
 select another five square miles within the boundaries 
 which the Court has specified. 
 
 The opposers have succeeded as to a small portion of 
 their claim, but have been unsuccessful as to the greater 
 part. The claimants have had a far larger measure of 
 fiuccess, and I think that the opposers should pay one-third 
 of the claimants' costs, excluding Nkwantabissa's costs. 
 Clements's costs I allow. 
 
 I have refrained from dealing with a number of incon- 
 sistencies and discrepancies in the evidence of each side. 
 # * * » » * 
 
 To make the boundaries clear, I have essayed a 
 
FANTI LAW EEPOET. 159 
 
 reduction of Mr. Campbell's plan, and on my plan I 
 have marked the boundaries so far as I have found 
 them specifically. 
 
 Subject to those remarks I have made above, as to the 
 Concession being void to the extent that it encroaches upon 
 the Abinabina lands, and subject to the claimants putting 
 in their certificate of incorporation, I find that sub- 
 sects. (1) to (5) of sect. 11 of the Concessions Ordinance 
 have been proved. 
 
 Ordek foe Survey. 
 Postponed sine die. 
 
 FULL COURT, CAPE COAST CASTLE. 
 March 10, 1903. 
 
 Before Smith, Acting Chief Justice, Nicoll and Morgan, JJ. 
 
 Renner, for appellants, in the course of his argument, 
 cites Aacht v. Viala, decided by Macleod, J. 
 
 Sarbah, with Davis, for respondents, cites Asraidu v. 
 Dadzie. 
 
 Tuesday, March 24, 1903. 
 
 Judgment in this case was reserved on the 14th instant, 
 and the judgment of the Full Court is now delivered by 
 Mr. Justice Morgan, as follows : — 
 
 This is an appeal from the judgment of the Chief 
 Justice, delivered July 19, 1902, the issue to be deter- 
 mined being whether the lands comprised in the Conces- 
 sion, the subject of the inquiry, are attached to the Stool 
 of lamfuri, or to that of Abinabina, the chief and coun- 
 cillors of which latter place are opposing the grant of a 
 certificate of validity. 
 
 The case for the opposers is practically based on three 
 contentions — 
 
160 FANTI LAW EEPORT. 
 
 1. That the place called Danyuan was the ancient 
 residence and burial-place of the Abinabinas. 
 
 2. That the judgment in the case of Ahin Dorman v. 
 Essiemi, in 1879, decided that the land in dispute was 
 attached to the Abinabina stool. 
 
 3. That the ancestors of one Kodia, a Denkera man, 
 obtained permission from the then chief of Abinabina to 
 settle at Danyuan. 
 
 But we are of opinion that the opposers have failed to 
 prove these contentions, and that they have also failed to 
 prove generally that the land in respect of which the Court 
 below has declared the Concession to be valid, was ever 
 attached to the stool of Abinabina. 
 
 Assuming, however, that they had proved that at some 
 former period it had been so attached, but that the lam- 
 furis had, without any definite permission being granted to 
 them, occupied it without paying tribute, and under such 
 circumstances (as in the present case) as would cause them 
 to believe themselves to be the owners of the land, and to 
 incur pecuniary responsibilities in consequence of that 
 belief, we think it right to state that in our opinion it 
 would be contrary to the principles of equity to allow the 
 native law to apply in its entirety, such law being, as we 
 Understand it, tnal IFe original owner of land who has not 
 specifically divested himself of his ownership can, after 
 any length of time and under any circumstances, obtain 
 recovery of his land from persons setting up an adverse 
 title, whatever may be the detriment caused to such persons 
 by the fact that the original owner chose to sleep on his 
 rights. 
 
 We therefore affirm the judgment of the Court below, 
 and dismiss the appeal with costs, assessed at £50, the 
 payment of which must be enforced by the Court below. 
 
FAKTI LAW EEPORT. 161 
 
 BIMPON V. ABOKIE AND OTHEES. 
 
 January 6, 1903. 
 Before Fkancis Smith, Acting Chief Justice. 
 
 Chiefs Court— Enforcing Judgment— Imprisonment — Native Jurisdiction 
 — Ordinance, 1883— /'eJisA offences. 
 
 Eenner for plaintiff. 
 Bannerman for defendants. 
 
 Judgment. 
 
 The plaintiff seeks to recover £100 damages for false 
 imprisonment, unlawful arrest, assault and battery, 
 alleged to have been committed by the defendants on him. 
 It is doubtful whether the trespasses following the false 
 imprisonment are charged as matters of aggravation or as 
 substantive trespasses. 
 
 The facts not in dispute are as follows. The plaintiff 
 resides at Imbrayaim, and is a captain of Abokie, the King 
 of Mampon, the first defendant, and a subject of his. That 
 the King of Mampon exercises by native law jurisdiction 
 over his captains, who are bound to obey his call, and that 
 he with his councillors constituting his Court hears and 
 disposes of cases according to his native law in which his 
 captains or any of his subjects may be involved. That 
 with several persons, including the other defendants sent 
 by the King of Mampon, plaintiff left his town for Mampon, 
 and that he was tried and found guilty and fined at 
 Mampon. 
 
 The facts in dispute are that the plaintiff was taken by 
 force from Imbrayaim to Mampon. That the only persons 
 who had a palaver were Duku and Atta, and that he was 
 forced to accompany them ; that at Anamaboe or Numaboe 
 he was first made acquainted with the charge against him, 
 viz. that he had made bad medicine by which Kweku Sah, 
 the late King of Mampon, had been killed. That at the 
 
 M 
 
162 FANTI LAW EEPOET. 
 
 trial the name of Appewu, wlio it was alleged had informed 
 against him, was not called to give evidence, though the 
 plaintiff asked that he should be called, that the chief of 
 Mampon had no jurisdiction to try cases in which persons 
 are killed by fetish, that he the plaintiff was assaulted and 
 beaten, put to the expense of the purchase of several sheep, 
 that he was unjustly convicted and fined, and that he was 
 kept in confinement till he paid the fine, and for fifteen 
 days after. The plaintiff is. the chief of Imbrayaim; and 
 what has struck me as very singular is, that he has 
 produced not one of the residents of Imbrayaim as to what 
 took place at Imbrayaim, except his two sons, nor the 
 others that accompanied him to Mampon. 
 
 With regard to the plaintiff I may at the outset say 
 that he did not favourably impress me in the witness-box. 
 His disinclination to answer questions, the answers to 
 which he considered might be against him, his readiness 
 to answer those he thought in his favour, and his own 
 contradictions make against the truth of a greater portion 
 of his story. He is the only one to give us evidence of 
 having been forced to Mampon from Imbrayaim, unless 
 he intends the Court to infer from the number of persons 
 sent, that he had to go against his will, an inference 
 rebutted by the evidence of the defence that the number 
 sent was out of compliment to the dignity of his position. 
 But apart from the representation of the defence, the 
 plaintiff's contradictory evidence precludes me from 
 drawing such inference. 
 
 He has himself acknowledged that as a captain of the 
 King of Mampon he was bound to obey the king's call, 
 an obligation arising from his position in relation to the 
 King of Mampon, and the duties imposed upon him 
 according to native law, so that if one man had been sent 
 he would have felt himself bound to go. This, therefore, 
 is not the kind of force which the law contemplates. In 
 the beginning of his evidence he said, seated at Imbrayaim 
 the persons Who came spoke to me. In consequence I 
 
J'ANTI LAW KEPORT. 163 
 
 went down to Mampon with two of my people. He then 
 follows this up by saying he told them he would not go ; 
 they insisted, and told him if he did not go they would take 
 him by force. Taking this part of the evidence with what 
 he admits in cross-examination to be the object of the visit 
 of the messengers in connection with his acknowledged 
 obligation to his paramount chief, the statement is im- 
 probable, and does not commend itself to my acceptance. 
 He states : They said that Atta and Duku had a palaver, 
 and that as I was the head I was to go with them to look 
 into the palaver. I was to go and assist the king in 
 deciding the matter. This was what I understood. I 
 knew when I left for Mampon I was going to assist the 
 king in deciding between Atta and Duku. If this is what 
 he understood, he could not have declined the invitation 
 under the circumstances so as to give rise to the use of 
 threats ; and if he did, it was equally unlikely that, as he 
 was no party to the dispute, but simply invited, the 
 messengers would have forced him by threats. His 
 witness, Kudjo Akumani, does not support him, after stating 
 that thirteen messengers came and informed his father 
 that they had been sent by the King of Mampon, and that 
 Atta and Duku should go and the plaintiff should accompany 
 them. Bimpon said he would go, my father consented to 
 go with the witnesses. Not a word that Bimpon refused 
 and was threatened. His last witness states the messengers 
 said the King of Mampon had asked them to come for 
 plaintiff. They mentioned Atta Kweku and Kwamin Duku. 
 Bimpon went with them. Here no statement is made of 
 Bimpon's refusal, and the threats made to him. 
 
 The object of this evidence is to lead the Court to 
 believe that the plaintiff was not properly summoned, or 
 that he was not summoned or legally taken to Mampon 
 on the charge for which he was then tried. In fact, the 
 messengers removed him by a subterfuge, and when they 
 had got him into their power, they explained the reason of 
 their taking him. By legally taken, I mean according to 
 
164 FANTI LAW EEPOET. 
 
 the rules of native law. Now I am convinced on the 
 evidence that Bimpon well knew, before he left Imbrayaim, 
 that it had been reported to the King of Mampon that he 
 (Bimpon) had made bad medicine, calling the name of 
 Kweku Sah, which caused his death, and that he had said 
 that Atta bad joined him in making the medicine, and that 
 the messengers came to take him and Atta to Mampon to 
 have this matter investigated, and at the same time to 
 bring Duku, who had a matter with Atta. There had been 
 previously a Court held at Imbrayaim by Assabil, the 
 brother of plaintiff, and chief of Musuasu, to inquire into 
 this medicine palaver, the plaintiff being accused of burying 
 bad medicine, causingthe death of Kweku Sah. Theplaintiff, 
 on the other hand, admitted burying the medicine, but 
 stating he had done so for his health at the advice of the 
 native doctor, he being ill at the time, the result of the 
 inquiry being that he killed a sheep on the medicine, dug 
 the medicine up, and paid a fine of £16. The plaintiff 
 denies paying the £16, but that Boham paid it. And as 
 he says Boham paid it, and had gone away long before the 
 fetish was dug up, his story is unreliable, as on the evidence 
 it is clear that the payment was not made till after the 
 medicine was dug up, and then Boham had left the town. 
 And it is improbable that Boham should have paid ii 
 unasked. It is obvious that the admission of the payment 
 by the plaintiff would be an admission of the truth of the 
 charge. None the less, the Court finds that he did pay the 
 money, and that without questioning. Following this, two 
 messengers, from the King of Mampon, came to plaintiff to 
 report the death of Kweku Sah. Akumani gives us the 
 names of the messengers, one of whom gave evidence for 
 the defence. That is Kwa Achi ; and also narrated in part 
 what took place when they arrived. Kwa Achi has given 
 us all what took place, and his evidence has not been shaken. 
 Akumani states that : before the messengers arrived, Atta 
 and Duku had sworn oaths against each other, and my 
 father asked the messengers if they would like to have the 
 
FANTI LAW REPOKT. 165 
 
 case settled there, and they said they would go and report 
 the matter. Achi states : I was sent Ijy the King of Mampon 
 to report the death of Kweku Sah. Bimpon and Atta camo 
 before me. Bimpon told me Atta had said that he (Bimpon) 
 had buried medicine, using the king's name, and that if he 
 did it, he did it with Atta. Atta said he did^not do it with 
 him, and that he would go into investigation with him. 
 I said I was young to investigate this matter, I must send 
 and report it to the king. I sent and reported it, and sent 
 also another report that Atta and Duku had taken the 
 king's oath against each other. Prior thereof to the arrival 
 of the messengers, Bimpon knew the report that had been 
 sent to the king, and when the messengers arrived and told 
 him they were sent by the king, and plaintiff Atta and Duku 
 were to go with them to Mampon, the plaintiff was well 
 aware that the matter between him and Atta with regard 
 to the making of the bad medicine was to be investigated, 
 besides the inquiry into the reasons of Atta and Duku 
 taking the king's oath. When Bimpon, therefore, left 
 Imbrayaim, he left with the full knowledge of the charge 
 against him, and that it was to be tried at Mampon. 
 
 The question, therefore, turns upon the plea of 
 justification ; the act being alleged as that of a paramount 
 chief done in the exercise of his rights and privileges to 
 hear and determine any charge made against any of his 
 captains, and for that purpose to bring him before his 
 Court. 
 
 Before dealing with the question, the specific acts of 
 assault and battery complained of may be disposed of. 
 They are the slapping of the plaintiff's face, the taking 
 away from him of his umbrella, thereby exposing him to 
 the rains, the brandishing of a sword over him, and the 
 putting into his mouth of the blood of sheep that were 
 killed. As to the striking on the face, the plaintiff does 
 not know the name of the person who did it. At the bid 
 of the king, he alleges, women came and stood before him 
 and wept, and one slapped him. Akumani tells us that 
 
166 FANTI LAW EEPOBT. 
 
 Kokua, the sister of the king, was the one who slapped his 
 father. He does not mention that this was done at the 
 request of the king, nor does he corroborate his father's 
 statement that the women came before him and wept. 
 The last witness, however, supports the plaintiff's evidence. 
 The defence by several witnesses has denied this. According 
 to plaintiff, it was Bofoo Agay who took his umbrella from 
 him. His two witnesses say it was Kokua. This also is 
 denied by several witnesses for the defendant. The 
 plaintiff does not mention any person who waived a sword 
 over his head. Only his two witnesses give evidence of 
 this, and say Bofoo Agay did so. This is likewise con- 
 tradicted by the defendant's witnesses. As to the putting 
 of blood into the plaintiff's mouth, the plaintiff and his 
 witnesses contradict each other as to the number of times 
 this operation was performed. Plaintiff says five times he 
 had to taste blood. Akumani, in examination in chief, 
 says that he saw blood put into his father's mouth twice. 
 In cross-examination, he says he saw it once. He was 
 told of the other. Essuambah states : Four times blood 
 was put into my father's mouth, and except on the first 
 day, Akumani was present when it was done on the second, 
 third, and fourth occasions, which is contradicted by 
 Akumani. The defence showed that it was only once that 
 the plaintiff's mouth was touched with the blood of the 
 sheep, and this was according to custom, having regard to 
 the nature of the charge, and not only this was done to the 
 plaintiff, but also to Atta. As to this, I find it is the custom ; 
 but as to the other specific acts, the plaintiff has failed to 
 satisfy me that they were committed. 
 
 Coming now to the plea of justification ; whilst Bimpon 
 admits that the king would have the power to try him for 
 offences committed against native law, and he and his 
 councillors would be the proper tribunal to hear the matter, 
 yet in this case he contends he had not the power to do so, 
 for he was charged with murder. Now we do know that, 
 cases of murder committed within the jurisdiction are not. 
 
FANTI LAW REPORT. 167 
 
 determined by native tribunals. But this is not the kind 
 of murder that the Courts recognize. We don't belieYe 
 putting a person in fetish by means of which he or she can 
 be killed. But is it believed by the natives, and does it 
 form one of the offences known to native law and triable 
 by a native tribunal ? If it is, unless the Legislature has 
 abolished the offence and the power of the native Courts to 
 try it, is not the Court bound to regard the plea? By 
 sect. 19 of the Supreme Court Ordinance, we shall 
 observe and enforce the observance of any native law or 
 custom not repugnant to natural justice, equity, or good 
 conscience, or incompatible with the provisions of the 
 Legislature. The Full Court decided in the case of Oppon 
 V. Ackinie that the Supreme Court did not take away the 
 powers of native kings and chiefs, and that the Legislature 
 recognized native tribunals as existing, but requiring, 
 regulation. Is this native law, therefore, not to be observed. 
 by this Court on the ground of its repugnancy to natural 
 justice, equity, and good conscience ; a key to this is to be 
 found in the provision of the Legislature in the Native 
 Jurisdiction Ordinance of 1883, by which they recognize as 
 native law putting a person in fetish, practically the sam& 
 offence with which Bimpon is charged. 
 
 In recognizing this, it could only be confirming and 
 supporting the native idea. The Legislature, therefore, 
 could not have considered that in acknowledging the right 
 of native tribunals constituted under the provisions of that 
 ordinance, to observe this law, and punish its breach, it 
 were assisting in the observance and keeping up of a law 
 repugnant to natural justice, equity, and good conscience, 
 and I cannot, therefore, hold a different view. Of course, 
 the King of Mampon has. not been brought under the 
 ordinance, but that does not preclude him from administer- 
 ing native law; the only difference is that there are 
 advantages secured to those coming under the ordinance, 
 which cannot be claimed by those who are not brought 
 within its provisions. The plaintiff, in his contention, is 
 
168 FANTI LAW EEPORT. 
 
 sharp enough to take the view that our Courts would take, 
 viz. that he had used no physical force to cause the death 
 of Kwaku Sah, but as a native and as a captain having 
 native Court, he knew of, and he himself believed in, the 
 offence of putting a person in fetish which might cause him 
 an injury or death. In dealing, therefore, with this offence, 
 the king and his councillors, or the native tribunal, was only 
 acting in conformity with native law, and by that law it 
 would have the power to bring the offender before the 
 Court. In sending, therefore, for Bimpon to answer the 
 charge, I find the king was acting within the scope of his 
 authority as head of the native tribunal, and I have not 
 been able to gather from the evidence that under pretext of 
 this authority, and for the purpose of oppression, Bimpon 
 was taken to Mampon, and there convicted and fined. Up 
 to his trial and conviction, the defendants have justified 
 their action. In saying this, I wish it to be understood 
 that I am not expressing any view of the correctness of the 
 judgment. It in no way arises from the cause of action, 
 which merely raises the issue as regards this part of the 
 plaintiff's case of the unlawful arrest and imprisonment. 
 
 Though the Legislature has in no way abridged the 
 powers of native kings and chiefs to try offences recognized 
 by native law, it has thought it expedient to make pro- 
 vision respecting the enforcement of their judgments. By 
 the Native Prison Ordinance of 1888, no imprisonment to 
 enforce the judgment of any native court can be carried 
 out unless in a prison recognized by the Government, and 
 even in such a case the imprisonment cannot continuously 
 exceed a month. The King of Mampon having no recognized 
 prison, is therefore precluded by law from enforcing his 
 judgment, and if he therefore kept the plaintiff in confine- 
 ment till the amount of the fine was paid, he is clearly 
 liable at the suit of the plaintiff to pay damages for such 
 imprisonment. I confine my remarks to the king, for 
 there is no evidence that the other defendants authorized 
 the imprisonment. Did he, therefore, authorize the 
 
FANTI LAW BEPOET. 169 
 
 detention or, as a matter of fact, was the plaintiff detained 
 to his knowledge till the fine was paid ? Upon this there 
 is so much conflict of evidence on the part of the plaintiff 
 that I am unable to come to any conclusion. The plaintiff 
 himself does not tell us the number of days he was detained 
 between the judgment and the payment of the fines, what 
 he tells us is not only at variance with what his witnesses 
 say, but to my mind improbable, for there could be no 
 object in it. He states he was detained fifteen days after 
 the fines were paid. Akumani, his witness, states that the 
 next day after the case was finished the £100 was paid. 
 The day the case was finished myself and my father slept 
 at Abokie's house. The fourth day after paying the £100 
 we left Mampon. My father remained the three days 
 waiting for his box to come. Essuambah throws no light 
 on the matter. For the defence, Atta states his expenses 
 were paid four days after the decision, and that eight days 
 after the king took his money plaintiff left Mampon, and 
 that Bimpon remained a month at Mampon after paying the 
 expenses. Other witnesses state that when the fine was 
 imposed plaintiff asked for twenty days to pay it, and it 
 was allowed him, during which time he was never in 
 custody, and Assabil states that during this time plaintiff 
 went to Egarbin, about seven miles from Mampon, on his 
 own account. In the face of all this evidence I am unable 
 to come to the conclusion that the plaintiff was imprisoned 
 after the decision. 
 
 There will be judgment for the defendants, with costs. 
 
 EILOART V. HOLMES.* 
 
 Ernest Eiloart, the above-named plaintiff, was an Englishman and a 
 barrister of the Inner Temple, ■who practised for some years in the Colony 
 of the Gold Coast. 
 
 Without expressing any opinion whether the defendant did or did not, 
 
 "• See page 68. 
 
170 PANTI LAW KEPOET. 
 
 as an executive officer, previously advise on or take any part directly or 
 indirectly in the preparation of the case, during the trial of which the 
 plaintiff made the remark deemed by defendant, the presiding magistrate, 
 a contempt, the principal object of the plaintiff for instituting his action, 
 was to raise the question. Can any person acting as an executive officer or 
 otherwise lawfully sit and summarily adjudicate on any criminal or revenue 
 case, after he has advised thereon, or' directed how the case is to he 
 conducted, or is acting practically as the prosecuting counsel. 
 
 No doubt the exigencies of the service on the Gold Coast may compel 
 a District Commissioner to combine together the conflicting functions of 
 a judge and prosecuting counsel, hut can such a combination.be defended? 
 
 Counsel for the defence in such a case finds himself somewhat embar- 
 rassed, especially when the magistrate puts to a witness improper questions. 
 This reminds one of what Mr. Jeremiah Mason, an eminent American 
 lawj'er, once did. It is said, he was in a case, when the judge put a question 
 to a witness which was of doubtful admissibility. Mason at once interfered 
 with this remark : If your Honour puts that question for us, we don't want 
 it ; if you put it for the other side, then I object that it is not evidence. 
 
 By the constitutional law of his country a native of the Gold Coast 
 cannot be lawfully condemned by the decision of one person only, for in 
 the multitude of councillors there is safety. 
 
 Perhaps in due season a person accused before a District Commissioner 
 may have, by legislation, the beneficent protection of the English law, 
 which gives a person the right to elect to be tried by a higher tribunal in 
 certain cases. 
 
 Instead of quoting several cases and the dicta of eminent English 
 judges, the following deserve consideration : — 
 
 " It is impossible to overrate the importance of keeping the adminis- 
 tration of justice by magistrates clear from all suspicion of unfairness." — 
 Wills, J. 
 
 " In the administration of justice, whether by a recognized legal Court 
 or by persons who, although not a legal public Court, are acting in a 
 similar capacity, public policy requires that, in order that there should 
 be no doubt about the purity of the administration, any person who is to 
 take part in it should not be in such a position that he might be suspected 
 of being biassed." — Lokd Esiiek, Master of the Holls. 
 
APPENDIX. 
 
 REPOET OF THE COMMISSION" APPOINTED BY THE 
 GOVERNOR ON THE 1st OF AUGUST, 1894, TO 
 INQUIRE INTO VARIOUS MATTERS RELATING 
 TO NATIVE COURTS. 
 
 Gazette, January 31, 1895. 
 
 The Commission has sat for the purpose of taking evidence at 
 Cape Coast, Elmina, Victoriaborg and Aburi ; and one of the 
 Commissioners has also taken evidence in the Axim District and 
 another in the Wassaw District. Public notice was given of the 
 Sittings, and they were open to the public. Nearly fifty witnesses 
 were summoned and examined, and evidence was also invited from 
 any person who might wish to offer any. 
 
 Summary of Evidence. 
 
 1. The persons who constitute a head chief's or king's court 
 are the chief as president sitting with his subordinate chiefs and 
 a certain number of company captains (Asafohin), as deputed 
 representatives (two or three from each) of the various com- 
 panies (asafo), where companies exist, and the elders, of the town 
 as councillors, and the linguists and other court officials. In 
 some cases, however, the company captains do not attend unless 
 specially invited. A subordinate chief's court is composed of the 
 chief as president sitting with his sub-chiefs, if any, and the 
 elders of the town as councillors and the court officials. 
 
 (1) "Chief" in this Report includes "King;" the natives 
 themselves have only one word (in Fanti EMn, in 
 Chwi Oheiie, in Ga Manche) which the English render 
 by " King " in the case of a chief who is not subordinate 
 to any other chief. 
 
 2, There is no hard and fast rule as to the number of coun- 
 cillors necessary to form a properly constituted court ; but it 
 
 171 
 
172 FANTI LAW KEPOET. 
 
 would seem that a head chief would not sit wibh less than five or 
 six, and generally with not less than ten or twelve, councillors, 
 one of whom should be a chief. It is said, however, that in 
 Eastern Akim three councillors would be a sufficient number ; 
 and in Kitta, two. For the trial of ordinary cases a chief sits 
 with his chiefs and elders who live in his town ; but for the con- 
 sideration of a case of importance he summons the chiefs of the 
 towns, if any, who are subordinate to him to assist in the delibera- 
 tions, and a subordinate chief calls to his assistance his sub-chiefs 
 from other places, and sometimes also requests his head chief to 
 send councillors. 
 
 3. Under native law there are no cases, civil or criminal, 
 which are beyond the jurisdiction of a head chief's court ; but 
 the idea in the native mind that all cases of killing must be 
 tried in the English Courts is general ; and the dread of doing 
 anything to incur the displeasure of the Government induces 
 most chiefs to send to the English Courts for trial all cases of a 
 criminal nature which are in any degree serious. In Awuna 
 countries, however, a custom that a man who has killed another 
 shall be put to death is sometimes, even of late years, carried out, 
 and an instance in which this has been done has recently come 
 before the Court at Victoriaborg. The jurisdiction of a sub- 
 ordinate chief's courb extends, as a general rule, only to the hearing 
 of charges of petty assault and stealing, in which the value of the 
 articles stolen is small, and actions for damages for taking a 
 man's wife, and for the recovery of small debts, and sometimes 
 for slander. In some places, however, subordinate chiefs of the 
 highest rank have power to try cases relating to land and other 
 matters of importance. It is impossible to define accurately the 
 actual jurisdiction vested in the courts of subordinate chiefs, as 
 there is no rule of native law governing the matter, which is 
 merely one of local custom. A chief has jurisdiction with regard 
 to strangers temporarily residing in his country. 
 
 4. Speaking generally, on the conclusion of the hearing of 
 a case, the councillors, who are practically the judges, retire to 
 consider their judgment ; the presiding chief does not retire with 
 them, and takes no part in their deliberations. After the coun- 
 cillors have agreed upon their decision, upon which they must all 
 be unanimous, they return into court, and it is communicated to 
 the chief, who then delivers it as the judgment of the courb 
 through his linguist. The general rule is that the councillors 
 
APPENDIX. 173 
 
 must be unanimous, that a majority canoot give a decision, and 
 that the chief cannot overrule the judgment of his councillors, 
 but is bound to give judgment in accordance with their deci- 
 sion. Should they be unable to come to a unanimous decision, 
 they refer the matter to the chief and explain their points of 
 difference to him, and in such a case he is generally able by the 
 weight of his opinion to induce them to come to a unanimous 
 decision ; but should he not be able to do so a new trial would 
 be necessary, a contingency which seldom happens. If the chief 
 does not agree with his councillors' decision, he is sometimes able, 
 by argument and inflaence, to induce them to give judgment in 
 accordance with his views. 
 
 The King of Cape Coast, however, says that he has power to 
 decide against the opinion of the whole of his council. He 
 states that he retires with them to consult, and that if a majority 
 of them agree with him he decides accordingly, but that if a 
 majority is against him he generally (although he can decide 
 with the minority) orders a fresh trial. 
 
 The King of Anamabu retires with his councillors to consult, 
 but the decision must be unanimous, and the king cannot decide 
 against the opinion of his councillors. 
 
 In the court of the King of Abra the decision of the majority 
 prevails, and need not be unanimous. The king cannot decide 
 against the majority ; but if he does not agree with their 
 decision he has power to dismiss the court and order a fresh trial. 
 
 The King of Winneba states that the decision of his court 
 rests with him, and that if the members of his council do not 
 agree they refer the matter to him and he decides. 
 
 The Chief of Kitta, James Oklu, states that he can overrule 
 his councillors. 
 
 It was stated that, in the court of the King of Eastern Krobo, 
 the king does not retire with his councillors to consult, and that 
 a majority of the councillors can give a decision ; and that 
 although the king cannot overrule the decision of the majority 
 of his councillors, he sometimes refused to accept it, and that 
 after argument the king's view has been accepted. 
 
 It was stated that, in the court of the King of Western 
 Krobo, the decision of the councillors need not be unanimous ;. 
 and if the king should not agree with the decision he would send 
 the councillors back to reconsider the matter, and if necessary 
 dismiss them and try the case again. 
 
174 FANTI LAW REPORT. 
 
 The chiefs of Abosso and Takwa say that their opinion pre- 
 vails over that of their councillors. 
 
 5. The remuneration of members and officials of native courts 
 consists only of shares of the court fees received. There is no 
 recognized scale of pay to which individual members are entitled, 
 excepb with regard to fees paid to linguists and other officers of 
 the court. The chief takes the whole of the summons fee ; of the 
 other fees he takes one-third, and the remaining two-thirds (in 
 some courts after deducting the fees payable to certain officers of 
 the court) is divisible among the other members of the court. 
 
 There are also certain fixed fees, varying however in different 
 districts, payable to officers of the court for serving summonses, 
 making arrests, levying execution, and the like, which are taken 
 by the officers performing the particular duty. 
 
 6 & 7. Proceedings are instituted in two ways, viz. by 
 summons, and by swearing the chief's oath. If a person wishes 
 to proceed by summons, he lays his complaint before the chief's 
 linguist, who thereupon goes with him to the chief, and on pay- 
 ment of the accepted fees a messenger is sent summoning the 
 defendant to the court. The summons is always oral. 
 
 (i.) The messenger'' s fee is a fixed one, but varies in the different 
 districts from 6i. to 2s. Qd., with sometimes a fixed fee 
 of 3s. or 4s. for mileage, or with mileage allowance of 
 Is. to 7s. &d. per diem, 
 (ii.) The summons fee varies according to what the court will 
 accept and the ability of the complainant to pay, from 
 2s. &d. to 5s. in a sub-chief's court, and from 2s. Qd. to 
 £4 in a head chief's court. The mean summons fee 
 in a head chief's court appears to be from 5s. in an 
 ordinary case of debt to 10s. in a case relating to land ; 
 but there is no fixed scale upon which summons or other 
 fees are taken. If the defendant attends in pursuance 
 of the summons the case is proceeded with ; but if he 
 neglects or refuses to attend, in some cases he is arrested 
 and brought before the court ; in others (a practice 
 copied from the English Courts) the case is heard and 
 decided in his absence ; and in others the case is not 
 heard and nothing is done, the chief, through fear of 
 the Government and possible consequences, not choosing 
 to arrest the defaulting defendant, 
 (iii.) In Fanti countries, when both parties are before the 
 
APPEKDIX. 175 
 
 court a hearing fee called aJ^^irazi or sometimes ffumhizi 
 or egiramezi is generally taken from each party ; in a 
 king's court this varies from about 5s. to £2 in, debt 
 cases, and from about £l to £10 in land cases. In a 
 few courts it is not payable at all, and in otters it is not 
 taken in debt cases. In the king's court in Eastern 
 and Western Krobo a fixed hearing fee of 2s. %d. in all 
 cases is taken from each party, with probably a flask of 
 gin besides. In Chief Oklu's court at Kitta, a hearing 
 fee called nuhoho of 3s. in debt up to 36s. in laud cases 
 is taken ; and in the king's court at Adda an invariable 
 hearing fee of 2s. in all cases is taken from each party. 
 At Accra no hearing fee is taken. In a subordinate 
 chief's court in Fanti countries, the alegicazi when 
 taken varies from about 8s. to 10s. in debt and from 
 about 7s. 6^. to 25s. in land cases. Speaking generally, 
 the abegwazi or hearing fee is not taken upon any fixed 
 scale, but varies according to the amount which the 
 parties are willing or can be induced to pay. In Chwi 
 speaking countries, no hearing fee is taken, 
 (iv.) After the hearing and decision of the case, the successful 
 party is called upon to pay a fee called in Fanti abemi 
 and in Chwi and Ga ahene or assida. In Fanti countries 
 this fee is not always taken, and in some courts it is 
 not taken in debt cases and. in others not in land cases ; 
 but in courts where it obtains it varies from about 5s. 
 to £1 in ordinary and from 10s. to £5 in land cases. 
 In some courts it is equal in amount to the abegwazi, in 
 others nearly equal ; in others half the amount, and in 
 others one-third more. In a subordinate chief's court 
 when taken it is probably about 5s. In Chwi speaking 
 countries abene is invariably taken, and varies from about 
 10s. to £2 in ordinary cases and from £2 to £8 in land 
 cases. In Krobo this fee varies from 4s. to £1 in ordinary 
 cases, and is about £2 in land cases. In the Kitta 
 chief's court a corresponding fee called redoho, or " clay 
 money," of 4s. Qd. payable by the winner is taken ; and 
 at Adda the chief takes a fee after the hearing called 
 ayilloda, or " chalk money," varying from 12s. to £4 
 from the successful party. At Accra the ahene varies 
 from 2s, Qd. to 4s. in ordinary cases and from 8s. to 12s. 
 
176 FANTI LAW EEPOET. 
 
 in land cases, and here a fee of 6d. to Is. for ayilloda is 
 also taken, 
 (v.) At the conclusion of the case there are also in all courts 
 certain fees payable to the linguists and court criers. 
 When no aienzi is taken these fees are sometimes paid 
 out of, sometimes in addition to, the ahegwazi. Where 
 abenzi is taken they are sometimes paid out of, some- 
 times in addition to, that fee. In some courts there is 
 no linguist's, in others no crier's, fee. The linguist's 
 fee varies from Is. to about 12s. (in one case it was 
 stated that it might be £1 5s.) ; that of the court 
 crier is from Gd. to is., but generally Is. When the 
 case is finally settled and all fees have been paid, the 
 loser has to refund to the winner through the court all 
 fees and expenses paid and incurred by the latter, in 
 addition to the satisfaction, or damages (mpaia) awarded, 
 or the amount of the debt, if the suit was for a debt. 
 In some courts the abenzi is not repaid directly, but the 
 satisfaction given includes it. 
 (vi.) The fee for a view when land is in dispute is fixed by the 
 court. It is divisible among the members of the court 
 and their assistants who go to view the land and cut 
 the boundary, and depends in some measure on their 
 number, the importance of the ca^e, and the distance 
 of the land. It is paid by each party, and varies from 
 about 4s. 6^. to 5s. paid to each member viewing the 
 land to a lump sum of from 9s. to £6 8s. paid by 
 each party. The share paid by the winning party is 
 refunded to him by the loser through the court, 
 (vii.) A witness's fee varies according to the importance of the 
 case and the rank of the witness ; an ordinary witness 
 is paid from Is. to £1, a chief from £1 to £2 ; the 
 amount is decided by the court ; and the witness is 
 bound to give his evidence although his expenses and 
 costs are not previously paid. 
 8. The swearing of the chief's oath, ntam, is probably a more 
 ancient method of commencing an action than that by summons. 
 The oath is sworn for the prevention of some act or in support of 
 some assertion. For instance, A says to B, I swear the king's (such 
 and such an, oath) that this land is mine, and that you shall not 
 go upon it." If B admits A's claim and docs not go upon the 
 
APPENDIX. 177 
 
 land, no fine is payable, for the oath has not been broken. But if 
 B goes on the land he has broken the oath ; an inquiry as to the 
 title is rendered necessary, and the parties must go before the 
 chief, who summons his councillors to decide to whom the land 
 really belongs. Should B deny A's title but not go on the land, 
 he will bring A before the court for having broken {i.e. unlawfully 
 sworn) the oath, and for restraining him from going on his land, 
 and the question of title is inquired into, the procedure being the 
 same as in ordinary cases. The unsuccessful party is ordered to 
 give up the land and pay the other's expenses, in addition to the 
 fine payable for breaking the oatL Again, if a man is being 
 beaten, he may swear the king's oath on the aggressor to cease 
 from beating him ; if the beating continues the oath has been 
 broken, and an inquiry must take place as to which of the parties 
 is in the right. The parties are brought before the court upon 
 the information of an informer, or of the person swearing the 
 oath ; or they may both come voluntarily to have the question 
 settled. In Fanti countries abegwmi, and in Chwi countries alme, 
 is usually taken on the hearing of the dispute ; but in some places 
 both these fees are taken, and in others neither of them, and per- 
 haps, as Mr. Sarbah said, the right custom is that neither of 
 them should be taken. There is generally a fee of from about 
 2s. to £1, according to distance, payable to the messenger who 
 brings the parties before the court ; and it is a general custom 
 that one or two sheep, provided by the person swearing in the 
 first instance, should also be killed before the trial takes place ; 
 and sometimes there are also fees payable to the chief's servants, 
 abinkwa, on various pretexts. 
 
 The fine for breaking the oath is paid by the unsuccessful 
 party. The chief takes the whole of it. It varies considerably, 
 being entirely a matter for the chief, who can reduce it if he 
 pleases. Should the party found to be in the wrong be duly 
 submissive and beg the chief and pay a fee to his councillors for 
 their good offices on his behaK, the fine is sometimes reduced. 
 The fine (to which a sheep is generally added) varies from about 
 £1 for breach of smaller or less important oaths to £8 2s., and 
 from about £4 to even £36 for the " big " oaths. The mean 
 fine would seem to be from £4 Is. to £8 2s. If the oath of 
 the King of Eastern Akim is sworn in Western Akim the king of 
 the latter country sends to the king of the former £7 4s. for the 
 fine, £1 for the messenger, and £11 2s. for certain court officials. 
 
178 FANTI LAW REPORT. 
 
 In Kitta the fine for breaking the chief's oath is 12s. and twelve 
 hottles of rum, and for breaking the king's oath 36s., besides 
 a bnllock and three demijohns of rum, which are divided among 
 the three Awnna companies. In Adda the fine for breach of the 
 king's oath is £5 to £6, one case of gin, and a sheep ; and in 
 Accra a fee of 8s. to 9s. is paid, some mm is given, and a sheep 
 is killed, before the case is gone into ; and the loser pays £5, 
 another sheep and two cases of rum. 
 
 Cursing (euphemistically called ehira, "blessing,") the king, 
 by which his life is supposed to be put in danger, is resorted 
 to in some cases. Immediately on the curse being pronounced, 
 one or more sheep must be killed and the blood sprinkled to 
 propitiate the angry fetish, and the parties are taken before 
 the king. More sheep are then lolled, and the question between 
 the parties is gone into and decided. In every case of ehira 
 a fine, which goes to the king alone, must be paid, and the 
 party found to be in the wrong has to pay for aU the sheep 
 slaughtered in addition to the fine and the expenses incurred 
 by his opponent. This fine varies from £2 to even £50, and 
 Trith it a sheep is usuaUy given to the king, and there are 
 generally also fees payable to the king's attendants. In AtiTn 
 Swedru the fine for the ehira is £8 and some sheep ; two sheep 
 are also killed in the place where the ehiri is uttered, £1 is paid 
 to the king's messenger and £3 to the court officials ; and assida 
 is also taken at the hearing. In Akropong the fine is £6 8s. and 
 four sheep, and £2 is paid to the king's councillors. All the 
 sheep killed in consequence of swearing the oath or of the ehira 
 are distributed by the chief as he thinks fit. 
 
 9. When a case comes on for trial it is usual to require each 
 party, before the trial, to find a surety for the performance of 
 whatever order the court may make ; and some courts will 
 refuse to go on with the case until the plaintiff finds a surety. 
 The evidence would show that no one is treated as a surety 
 unless he has expressly agreed to be surety ; and this is certainly 
 right ; no one ought to be held responsible for a defendant 
 merely because he has accompanied the defendant to the court as 
 a friend. 
 
 10. (i.) A father is generally held liable in damages if his 
 
 unmarried son, living with him, conmaits adultery with 
 another's wife. Opinions differ as to whether a man 
 is liable generally for other wrongful acts or defaults 
 
APPENDIX. 179 
 
 of his son, or for the acts or defaults of his " domestics " 
 or of other members of his household ; but as a general 
 rule he is not now liable. 
 
 (ii.) Probably the head of a family was once universally held 
 responsible for the debts and wrongful acts of every 
 member of the family. This responsibility is still 
 practically enforced in many parts of the country ; in 
 other parts it has ceased to be a fixed rule, although 
 even in these latter parts the responsibility is frequently 
 accepted without question. 
 
 (iii.) A householder is in some places held responsible for 
 wrongful acts done by his guest while lodging with 
 him. 
 
 (iv.) A man in whose house a stranger dies is in some places 
 held responsible for the stranger's debts. 
 
 11. There is nowhere any limit of time within which a suit 
 
 must be instituted. 
 
 12. (i.) Judgments and orders for payment of money are 
 
 generally enforced by imprisonment of the debtor or 
 his surety ; in a few cases by seizure and sale of his 
 property, a practice only lately adopted in imitation of 
 that of the English Courts. Where property is sold in 
 execution it is pretty certain that no attempt is made 
 to distinguish between the debtor's private property and 
 family property of which he merely has the employment 
 or control as a member of the family. And in this 
 connection we may observe that it seems to be almost 
 impossible for natives to grasp the idea of a sale of the 
 debtor's interest in property ; even when the Sheriff under 
 a decree of the Supreme Court expressly sells only " the 
 right, title, and interest of " the debtor in a piece of 
 land, the purchaser believes that he acquires the absolute 
 ownership of the land, and other persons who have 
 rights in it think that the sale deprives them of their 
 rights. 
 
 (ii.) Judgments and orders other than for payment of money 
 are enforced by imprisonment. 
 
 (iii.) Some chiefs who have no registered prison do not 
 attempt to enforce their judgments or orders. 
 
 13. (i.) A sentence of imprisonment ought, as the law now 
 stands, to be only in a prison registered under the 
 
180 FANTI LAW REPORT. 
 
 Native Prisons Ordinance, 1888, or, in some few cases, 
 in a place declared a prison under the Prisons Ordinance, 
 1876 ; and imprisonment in a native prison ought to 
 be for not more than a month. There is no doubt that 
 these requirements are frequently disregarded, either 
 wilfully or from ignorance, 
 (ii.) For temporary detention till the man can be brought up 
 for trial he is, where there is no proper prison, either 
 handcuffed or put " in log " or tied up. Every chief 
 is anxious to have handcuffs, partly as the most con- 
 venient way of securing a man, but chiefly because 
 handcuffs are regarded as a sign of authority given to 
 the chief by the Government. 
 
 14. (i.) There is in every case an appeal from every subordi- 
 
 nate chief to his head chief. The appellant summons 
 the respondent to the appellate court, and the whole 
 case is heard afresh, 
 (ii.) It will sometimes happen that each of two independent 
 courts has jurisdiction to try the same case ; and we 
 believe (though no evidence was given on this point) 
 that in such cases when the suit has been determined in 
 one of the courts the unsuccessful party often takes it 
 to the other court, which determines it without any 
 reference to the decision already given. 
 
 15. Most of the persons summoned to give evidence before 
 the Commission were chiefs and their olEcials, who naturally 
 would not admit that their courts were guilty of extortion or 
 corruption. Independent natives, such as Mr. ■ Sarbah and 
 Mr. Eminsang, did not make any serious charges ; and the 
 allegations of witnesses Nos. 37 — 40, 42, and 43 against the 
 Wassaw chiefs do not amount to much. Ample notice was given 
 of the sittings of the Commission ; they were open to the public, 
 and were attended by large numbers, and notice was frequently 
 given that the Commissioners would hear any complaints. Never- 
 theless scarcely any complaints were made. Mr. Sarbah, whose 
 opinion on such a matter carries very great weight, says (page 
 49) : — " People are afraid to come down and complain to the 
 English Courts because, if they were to do so, they and all their 
 family would be boycotted and ruined." 
 
 In spite of the denials of the chiefs and their officers, and in 
 spite of the meagreness of evidence of extortion or corruption, we 
 
APPENDIX, 181 
 
 are of opinion that extortionate fees are often charged by native 
 courts, and that persons are often wrongfully imprisoned upon the 
 mere order of the chief, not in execution of a judgment after 
 regular trial, but as a punishment for some supposed insult to the 
 chief's dignity. 
 
 No instances of corruption or undue influence were brought to 
 our notice. 
 
 16. (i.) We think that the Bill which was read a first time 
 in Council on June 30 last is in the main on the right 
 lines. 
 
 (ii.) We think that a new Native Jurisdiction Ordinance 
 should apply to all native courts without exception, i.e. 
 to all courts which are properly constituted and acting 
 within their powers in accordance with native custom ; 
 and that no distinction should be made between native 
 courts in the interior and those in the coast towns where 
 an English Court is also held. The power of appeal, 
 the power to suspend or depose a chief, and the power 
 to deprive him of his prison, will be in general suificient 
 checks upon abuses of their powers. 
 
 (iii.) No attempt should be made to specify the local or other 
 limitations of the jurisdiction of subordinate courts ; 
 they should be left, subject to the general provisions of 
 the Ordinance, to be governed by the customs of the 
 particular district. 
 
 (iv.) The Ordinance should declare that in every case in every 
 native court the decision must be the unanimous decision 
 of all the councillors ; and that the chief or king shall 
 have no power either to set aside or to refuse to accept 
 their decision. 
 
 (v.) Where a defendant duly summoned does not appear, 
 power should be expressly given to decide the case in 
 his absence ; and where his absence is not excused he 
 should be, as he is now, liable to arrest, but only for the 
 purpose of securing his attendance at the trial, and not 
 for the purpose of punishing him for non-appearance. 
 
 (vi.) The right of a chief to summon as a defendant (but not 
 
 as a witness) one of his subjects who is temporarily 
 
 residing out of his jurisdiction should be recognized ; 
 
 the summons or message should be sent to the chief in 
 
 whose jurisdiction the defendant is resident, who should 
 
182 FANTI LAW EBPORT. 
 
 be bound on payment of the proper fee to serve it or to 
 send his own messenger to notify the defendant ; and 
 the defendant if he refuses to attend should be liable to 
 be arrested and taken before the chief who issued the 
 summons. 
 
 (vii.) The penalty {see sect. 12 of the Bill) for refusal to give 
 evidence should be limited to (say) a fine of £2, or 
 imprisonment for two weeks, which penalty should be 
 imposed by the chief with the consent of his councillors. 
 
 (viii.) We think it is practicable to fix and enforce a scale of 
 fees and fines. But the scale given in the schedule to 
 the Bill requires some modification. It should sanction 
 for each item the average fee, as nearly as may be, 
 which according to the evidence is now charged in 
 native courts, including the fee called abenzi or abene ; 
 the demand of any higher fine than that authorized in 
 the scale for swearing an oath should be forbidden, and 
 no chief should be allowed to swear his own oath. 
 
 (ix.) Execution by seizure and sale of the judgment-debtor's 
 property should be sanctioned ; but family or stool 
 property should not be liable to be seized for a private 
 debt. 
 
 (x.) We approve generally of the rules as to imprisonment and 
 as to appeals contained in the Bill. 
 
 (xi.) A majority of the Commissioners are of opinion that it 
 should be declared that in suits between natives the 
 Statute of Limitations do not apply. 
 
 (xii.) We think that the question whether a father is liable for 
 his son's debts or wrongful acts, and whether the family 
 or the head of the family is liable for one of its members, 
 and whether a host is liable for his guest, should be left 
 to be decided in each case when it arises by evidence as 
 to the custom of the particular district. 
 
 (xiii.) It should not be necessary for the heir to take out 
 letters of administration for the purpose of proceedings 
 in a native court ; but in proceedings in the English 
 Courts the heir should not be entitled to sue in respect 
 of the personal property unless he is also the executor 
 or administrator. 
 
 (xiv.) The custom which exists in some places of holding the 
 person who buries a dead body, or in whose house a 
 
APPENDIX. 183 
 
 stranger dies, though he is not the heir, liable for the 
 deceased's debts, should be abolished, 
 (xv.) Native courts should not be required to keep any written 
 records whatsoever ; but where any written records are 
 kept, the Supreme Court should have power to require 
 their production, 
 (xvi.) When a new law is made which directly affects native 
 courts or chiefs the Governor should send copies to each 
 king and request him to explain its provisions to his 
 subordinate chiefs. And in particular the provisions of 
 the Native Jurisdiction Ordinance should be explained 
 to kings and chiefs by the District Commissioners and 
 Travelling Commissioners from time to time as oppor- 
 tunity offers. 
 The above Eeport is approved by all the Commissioners who 
 have signed it, except that Mr. Sharood thinks that the maximum 
 fine to be imposed by any king or chief should be limited to £10, 
 and the term of imprisonment to six weeks ; and that no king or 
 chief should be allowed to exercise any jurisdiction in a town in 
 which a District Commissioner holds Court. 
 
 J. T. HUTCHINSON. 
 A. SHAEOOD. 
 JOS. H. CHEETHAM. 
 JNO. VANDER PUYE. 
 T. C. RAYNER. 
 Victoriaborg, 
 
 January 12, 1895. 
 
INDEX. 
 
 AEBITRATOES. See Awaed. 
 
 ADMINISTRATION, 
 
 court fees remitted : re Power, deceased, 73 
 
 nephew of deceased not entitled as of right to Letters of Administration 
 
 under Marriage Ordinance, 1884 : re Hagan, deceased, 92 
 effect of compromise between nephew, widow, and children of 
 
 deceased : re Hagan, deceased, 93 
 
 ADULTERY. See Makriage Ordinance. 
 ALLEGIANCE, 
 
 treasonable to transfer, from one native ruler to another : Apenquah's 
 Case, 5 
 
 APPEAL. See Practice. 
 
 AWARD, 
 
 by arbitrators according to Customary Law enforced by action : Ayafie 
 V. Banyea, 38 
 
 CERTIFICATE OF PURCHASE, 
 
 purchaser in possession of land : Amoa v. Obil, 39 
 
 CHILD, 
 
 entitled to reside in father's house : Inkrabeah v. Acquakoah, 50 ; 
 
 Mensa v. Krakue, 86 
 liable for mother's debt : Quacoom v. Ansa, 1 
 
 COSTS, 
 
 taxation : Cheetham v. Bannerman, 26 
 
 CRIMINAL CODE. See Practice. 
 
 CRIMINAL PROCEDURE ORDINANCE, 
 
 charging offences : Reg. v. Amanqua, 95 ; Reg. v. Thompson, 52 
 
 CRIMINAL TRIAL. See Practice. 
 
186 INDEX. 
 
 CUSTOM, 
 
 observance of annual custom evidence of ownership : Esabra v, 
 Takiwa, 31 ; Amu v. Kvsraw, 132 
 
 DEBT, 
 
 Btool debt : Mensah v. Jonfia, 112 
 
 mortgaging stool property to pay : Aidoasi v. Abban, 91 ; Adoasi v. 
 
 Abadoo, 90 
 seEing family property to pay family debt : Gaisivfa v. Akraba, 94 
 family property not attachable for private debt: EusseU v. Meffull, 
 119 
 DESERTION, 
 
 penalty for, under Customary Law : Reg. v. Kineeboa, 10 ; Reg. v. 
 Mensah, 11 
 
 DISTRICT COMMISSIONER, 
 
 action against : Eiloart v. Holmes, 68 
 
 should not be prosecutor and judge in the same case : Eiloart v. 
 
 Holmes, in noiis, 169 
 can review or rehear his own decision only : Annotay v. Aginfram, 17 
 illegality in Courts of: Cheetham v. Bannerman, 27 
 
 EVIDENCE, 
 
 corroboration when required : Jonfia v. Inkatsia, 71, 72 
 
 document in English from dictation of unlettered person : Jonfia v. 
 
 Inkatsia, 72 ; Fletcher v. Bordoh, 28 
 document purporting to be from unlettered person : Pagay v. Toku, 89 
 family tradition : Impatasi Concession, 137 
 observance of annual custom evidence of ownership : Esabra v. Takiwa, 
 
 31 ; Amu V. Kwaw, 132 
 
 FAMILY PROPERTY. See House. 
 
 FETISH, 
 
 possession of fetish drugs, etc., unlawful and punishable : Reg. v. 
 
 Esse], 12 
 putting person in: Bimpon v. Abokie, 167 
 
 HOUSE, 
 
 child entitled to reside in father's : Inkrabeah u. Acquakoah, 50 ; 
 
 Mensa v. Krakue, 86 
 not to be rebuilt without leave of landowner : Awortchie v. Aidgun, 56 
 may be sold exclusive of land : Lyall v. Dougan, 56 
 right to light and air : Aiyima v. Adjua, 67 
 husband contributing to erection of vrife's family house cannot oust 
 
 the family : Bonn v. Steele, 77 
 family house may be sold to pay family debt after notice to members : 
 
 Gaisiwa v. Akraba, 94 
 
INDEX. 187 
 
 IMPRISONMENT, 
 
 lawful for native tribunal to imprison : Koom v. Owea, 13 ; Ofoli v. 
 Anderson, 20 
 
 INSTALLATION, 
 
 ceremony : Ayah v. Boabin, 7 ; Mensah v. Tok«, 45 ; Toku v. Ama, 
 59 
 
 LAND, 
 
 acquisition of, by subsequent settlers : Efoo v. Simpa, 133 
 user of, in common : Boogyaye v. Djwainee, 147 
 
 LETTER, 
 
 written from dictation of unlettered person in Fanti: Fletcher v. 
 Bordoh, 28 ; Jonfia v. Inkatsia, 72 
 
 MARRIAGE ORDINANCE, 1884 
 
 re-marriage of married couple : Ackah v. Arinta, 79 
 adultery damages for : Ackah v. Arinta, 84 
 
 MORTGAGE. See Stool Pkopeety. 
 
 NATIVE COURTS, 
 
 decision enforced by Supreme Court : Amanpou v. Yew, 70 
 decision enforced in Supreme Court when action brought in proper 
 
 form : Sam v. Drowa, 76 
 lawful to arrest and detain absconding defendant: Ofoli v. Ander- 
 son, 20 
 parties bound to obey summons of : Quansah v. Keredeh, 75 
 power to impose death sentence : Reg. v. Kinneboa, 10 
 Supreme Court not to supersede : Koom v. Owea, 13 
 offences relating to fetish practice : Bimpon v. Abokie, 167 
 
 OATH, 
 
 liability to pay for taking : Ofoli v. Anderson, 19 
 
 OCCUPANTS, 
 
 to quit possession if contesting landowner's title : Wood v. Aisawa, 51 
 
 PRACTICE, 
 
 appeal on ground of law may be entertained six months after decision 
 on the merits : Halliday v. Alapatira, 21 
 
 appeal only proper course to reverse decision of Judge or Com- 
 missioner : Annotay v. Aginfram, 17 
 
 appeal, special leave refused : Pepe Concession, 128 
 
 appeal, consent judgment after objection overruled by Court : Swanzy 
 V. Bordoh, 85 
 
188 INDEX. 
 
 TBACTICE— continued. 
 
 arrest of absconding defendant refused : Khule v. Eoberts, 41 
 concession inquiry opposition : Pepe Concession, 122, 123 
 criminal trial, further adjournment refused : Eeg. v. Amakie, 89 
 criminal information, accused entitled to know specific charge against 
 
 him : Eeg. v. Thompson, 52 
 criminal information quashed for duplicity : Keg. v. Amanqua, 95 
 demurrer : Eiloart v. Holmes, 68 
 
 interpleader, right to inspect documents of claimant: Sey v. Amissah, 41 
 Letters of Administration, remission of Court fees : re Power, deceased, 
 
 73 
 Letters of Administration, grant to widow under Marriage Ordinance, 
 
 1884 : re Hagan, deceased, 92 
 order for interim attachment of property refused, when claim is for 
 
 debt: Herschell v. Munday, 40 
 rehearing and review must be by none other than Judge giving 
 
 original decision : Annotay v. Aginfram, 17 
 rule nisi: Christian v. Christian, 69 
 
 trespass, plea not guilty, effect of: Bsabua Know v. Awua, 99 
 service on parties : Pepe Concession, 127 
 
 EAPE, 
 
 punished by fine : Likroma v. Obil, 1 
 
 SALE, 
 
 family property for family debt after notice to members of family : 
 
 Gaisiwa v. Akraba, 94 
 land, when ownership passes : Basel v. Bruce, 99, 101, 103 
 documentary title, registration not essential : Basel v. Bruce, 102 
 sheriff's sale : Amoa v. Obil, 39 
 land, unusual under ancient customary law : Abessibro v. Ama, 79 ; 
 
 Impatasie Concession, 136 
 rescission of: Insilhea v. Simons, 104 
 stool property for stool debt : Mensah v. Jonfia, 109 
 
 SLANDEE, 
 
 fine for, of family : Inkroma v. Obil, 1 
 
 vulgar abuse, proof of damage: Cheetham v. Bannerman, 24; 
 Fletcher v. Bordoh, 28 
 
 STATUTE OF LIMITATIONS, 
 
 contracts between natives : Longdon li. Sagoe, 97 
 reference to : Mooquah v. Ayensu, 40 ; Yamike v. Adako, 2 
 
 STOOL, 
 
 distinction between family and town stool : Ghambra v. Ewea, 64 
 Mensah v. Toku, 45, 46 
 
INDEX. 189 
 
 STOOL PEOPERTY, 
 
 acquisition by inheritance : Menaah v. Toku, 43 
 
 acquisition by settlement : Impatasie Concessions, 141 
 
 councillors consulted before sale of: Mensah v. Jonfia, 110 
 
 merger of private property into : Mensah v. Toku, 42 
 
 mortgage of, for stool debt : Aidoasi v. Abban, 90 ; Aidoasi v. Abadoo, 91 
 
 rents from tenants of: Jonfia v. Inkatsia, 71 
 
 SURETY, 
 
 who may not be : Mensah v. Tchibu, 48 
 
 written undertaking by unlettered person : Pagay v. Toku, 89 
 
 TENURE, 
 
 buUding, leave of landowner required to rebuild: Awortchie v. 
 
 Aidgun, 57 
 grant of land on terms of service : Abessibro v. Ama, 79 
 
 TREASURE TROVE, 
 
 custody of: Esabra v. Takiwa, 32 
 
 VOTES, 
 
 generally majority followed : Mensah ■;;. Jonfia, 111 
 exception to rule : Toku v. Ama, 60 
 
 THE END. 
 
 PHINTED BY WILLIA3I CLOWES AND SOSS, LIMITED, LOKDON AXD EECOLES.