GHANA LAW FINDER [[Seieipguiderohetaw | Fasyrouse | Care and Subject matter index [emanates s nome 1963 GHANA LAW REPORT AHMAD v. AFRIYIE AND OTHERS [1963] 2 GLR 344-348 IN THE HIGH COURT, KUMAS! 14TH OCTOBER, 1963, APALOO J) Customary law—Land—G*t of Gif of land inter vivos—Essentials of vall git—Offer of git in publc in Presence of winesses—Acceptance of git by donee—Payment of customary aseda and entry into possession —Whether gif revorable. HEADNOTES The plant, a royal of Keniago stool in Ashant, allogod that after having worked for nine years, from 1960 to 1959, asa clark othe stool without any remuneration, the elders ofthe siool mat and gave him as a git @ stool cocoa farm which had almost become a farmstead in recagniton of hs devoted services to the ‘S00. He entered into possession and plucked the covoa for two seasons without intemuptin. In 1961 the first defendant, who was installed as chief of Keniago, entered the farm in question with a number of labourers and removed cocoa which was being dried. "As a result of this interference with his farm, the Plainti insttuted tis action against the defendants for a declaration of tite to the farm, damages for trespass and an order of perpetual Inuncton. At the wal, the plant testified that ne requested that a git of the farm be made to him in recognition of his devoted services tothe stool and thal the elders unanimously agreed and he acknowedged the git by the payment ofa customary aseda. The plaintiffs evidence about the git was corroborated by an elderly man in his seventies who said he was present when the git was ‘made and took part in the dink which the olaitif gave as aseda. The defendants on the other hand denied that the farm was ged fo the plaintiff but rather contended that he was merely a caretaker of [p.345] Hold: the roquiremonts of customary law for passing good to of the farm to the plaintif had boon satisfied in that the gift was made in public before winesses and accepted by the plant by the payment of aseda and the entry into possession. A vald customary gf of the land had therefore, been made tothe plait by the Keniago stool in 1959 and that git was imevocable NATURE OF PROCEEDINGS ACTION for a declaration of tide to land, damages for trespass and an order of perpetual injunction, ‘COUNSEL Jantuah, for the defendants Paint in person JUDGMENT OF APALOO J. In ths action, the plainti claims a declaration of tite to a cocoa farm sald to be situate ata place called NNyebiammoswo on Keniago stool land, damages for trespass and an order of perpetual injunction restraining the defendants from dealing with th said farm, ‘The plant, who | should judge to be in his late shies is native of Domi, Keniago. He is educated and between 1925-1950 lvea away from home, He must have been employed in some tort of clerical jad ether at Bekwai or Kumasi. The Abotendomhene of Keniago, Kwame Yamoah, said he returied home with a Gofeit and settled down fo making farms. | am net able from the evidence Io form anything tke a reliable Picture of Keniago, About one thing, however, | am Certain, namely, educated persons are a ranty. In fact Nana Yamoah sai, "We have no clarks in Keniago| think that sa litle exaggerated but iis plain to my ‘mind that educated persons are extremely hare to come by in that town, The plaints somehow connected with the Keniago stool. I prefer the evidence that he is a royal ofthe paramount Keniago stool nol merely as the defence suggested, the Kronthene stool. Nana Owusu Alivio the present Keniagohene admttea thatthe pain at one time contested forthe stool and lost. He would rot have done so fhe were nat a royal of that stool and considered himself eligible to occupy i The plait says that he was employed as a stool clerk by Nana Yaw Barmah in 1950 and that Ne worked in this capacty without remuneration for a period of nine years. He says the chit said as he was one ofthe royals ofthe stool, he should sacrice for it. In about 4959, Nana Barimah took il and in order to find time to receive mecieal treatment, he abdicated.” He was succeeded on the stool by one Kofi Agyel whose stool fname is Nara Kwame Yamoah Abablo. The evidence shows that at an unspecified date In 1959, the stool elders met to render an account of the stool properties and formally hand them over to the new chetAccording to the paintif, at this meeting, he fold the elders that he had served the stool for nine years without remuneration and that there was a. stool cocoa farm which had almast become a farmstoad. He Fequested that a gf of the farm be made to him in recognition of his devoted services to the stool. The Plaintif testfied tat the elders unanimously agreed and he acknowledged the git by the payment of & Customary aseda. Thereafter the plaintiff said, he entered into [p-346] possession and plucked the cocoa for two soasons without interuptin, In Oacember 1960, Nana Yamoan Ababio was dotained undor the Proventve Detention Aci He was succeeded onthe sloal by the fest defendant who was inslaled on the ‘st Api, 1961. The lator interfered wi the plant's rghts to tho farm and thus gave rso to this action, ‘The defendants for their part say that no such gift as the plaintif alleges was ever made of the farm in dispute to te plaintif.Athough they admitted thatthe plant was al one Ume in possession of the farm, they say ne was merely a caretaker of it and took charge of the farm as caretaker at his own request and wath Nana Yaw Barimaf's consent. The defencants say futher that the plait rendered accounts to Nana Yaw Barimah and when Nana Yamoan Ababio came onthe stool, the farm in dspure was one ofthe farms handed fo hie as stool propery. The farm relainad ils public character when the fist defendant came an the stool and was one ofthe farms handed to him as stool property. The defendants tendered in evidence {an inventory of the stool propery bearing the date the 20th September, 1961. Al page one of it appears our cocoa farms at Domi-Keniago." The defendants also deny that the plaintif was at any time employed 128 @ stool clerc and say the stool needed the services ofa lierate person, trey got one at random, {AS to whether or not the plain! was employed as a cork by the sto}, | do not feel any doubt that | must ‘accept the plaints version, It seems to me to accord wholy withthe probabies ofthe case, One knows {tom experionce that often a need arises for a slool to requie the services of an educated person and often stools employ such persons who are generally known a8 stool clerks, Fora long time prior to 1950, the Keniago stool, porhaps through want of funds, employed no clerk. In that year, the Paitfarivedan elderly and experienced man wino has come to settle at home for good. He was himself a royal. it seems to me to bo only natural that he should be asked to perform the services which the slool needed and which elthor ftom want of means or unavallabilty of suitable persons, the stool was unable to afford. Indeed a very pressing need arase for the services of a clerk when the Keniago stool found itself in ligation wlth the ‘Nkauwie stool. In those circumstances, the plaintf would have been a perfect godsend. Upon his return the plaintif cid nat Keep fo himsalf and lead the life of anything ike a recluse. He actively identified himsel with the welfare of his stale and was soon found suitable enough to be elected to the local council. I'am satisfiec the plain was employed as a stool cletk of the Keniago stool and served the stool without remuneration for nine years. | think the reason why the defendants seek to deny itis because they knew he had nothing for hs services and his evidence makes It probable that he had this farm gifted him in recognition of those services. (347) Ibis notin dispute thatthe plaintiff was at one time in possession of this farm. While the plaintiff says he assumed possession of the farm in pursuance of the gi, the defendants say he was in possession as Caretaker. Kwame Yamoah said the plaintif was qven this farm to look after six years ago. | fina this story dieu ta cred. Sx years ago, the plaintif would have been in his ealy eitios, He was fr all practical purposes the anly scholar of Keniago and was himself a royal. I cannot Believe thatthe stol elders would Want to antrsta'stool farm to the caro of a man as old as Siaty especially, as Yamoah assorts, tho plait Physically worked on te farm. Much cannot be got from @ man of his age. seems to mo sl loss lkely that the Kenagohene would pick on the only scholar of te town for a job harcly more hanourabe than that of farm labourer. When | recall to mind the fact that the pint is hime a royal, and with Lick may one ay ascond the Keniago stool, fool salsied that I must reject the story thal the farm in aispute was given to him merely as a caretaker. ‘The plains said when the gil was made to him, he acknowledged it by paying aseda. Yaw Kubi, a very ‘elderly man who was a bey during the Yaa Asaniewa War ang who {fom looks much past seventy, sad fhe was presen! when the git was made and took pat inthe dink which the plintif gave as aseda. When a ‘man of this venerable age gives evidence aslo Whal he saw, | should have very good reason before | eject it Teertainly nave none inthis case, I think nis evidence, ike that of the plain othe tnt ‘The plant nas of course not bean able to substantiate his case by any writen record ofthe gif. That fact ges me no trouble. itis not reasonable to expect one where the donee isthe ony Iterate parson in town, ‘The git was made in publc before witnesses and was emily accepted. That satisfies the requirement of customary law and | am satisfied that good te tothe farm passed tothe plant in 1988, ‘The present Keniagohene was not present when this gi was made, and relies on his elders to aispute it Two of the elders who the plaintif said were present when the git was made gave evidence fer the efence, They are Kwame Yamoah, the Abontendomnene, and Kwame Dorkor the chiet linguist. Both Gonied that agit was made. reject ther evidence. Although itis not for me to ascribe motives, | cannot lose sight of the fact that they both collectively had cause to be aggrieved about the plait. When al the elders elected and instaled the frst defendant on the Keniago sto), he pla was Bold enough fo put up 8 tval candidate who eventually los. The elders were naturaly dissatisfied with the plants. conduct especially as he was the recipient ofthe stools bounty. | think that is the reason why those two elders {enied the git of the farm which was made to the plant in their presence. The view which | have just ‘expressed is fried by te fist defendant's undisputed conduct. Athough on his own showing, the pain was lawuly in possession of the farm as [p.348] the stool caretaker, the Keniagoheno aid not adopt any method approaching anything like constitutionally in removing him. He merely wert fo the farm wih & hhumber of labourers and removed the cocoa which was then drying on a mal and when the plait complained, he gave him in custody to the Antoakrom police on a charge of threatening. When pressed in ‘rast-examinalion, tye Keniagahene said, “I admit! was notin good terms with you, that i why Took te Cocoa farm ffom you. | just removed you as caretaker” Accordingly, as 1 sai, | am satisfied that a val ceustomary gf of tis farm was made tothe pain by the Koniago stool in 1988, Tho plant having duly ‘accepted it by the payment of aseda and entering into possession, | hold thatthe gifts irrevocable | find on the undisputed evidence that the first defendant by himself and his hirelings trespassed into the farm in the cocoa seasons in 1961 and 1962 and plucked and caried away ripe cocoa beans from the Plaintifs cocoa farm. In my judgment, all the defendants are lable ta the plant for his undoubted trespass. The evidence shows that the average yearly yield ofthe farm varies between ten to fiteen loads. Ina the creumstances, | adjudge that the defendants snall pay to the plainttf €G7S damages for trespass, The plait is also entiled to restrain these acts of trespass inthe future and ought to get the order of perpetual injunction which he seeks.Inthe rosul, I make as prayed, a declaration thal the plant isthe owner of tha cocoa farm fuly described In the writ. | award, the plaintiff against the defendants jointly and severaly, £G7S damages for trespass. ‘There wil also be an order of perpetual injunction restraining the defendants, their servants ar agents from trespassing into the said farm or in any manner whatsoever interfering with the plaintiffs. peaceful enjoyment of that farm. ‘The defendants are ordared to pay the costs af his action which | assess at £635, DECISION Judgment forthe plant KT. FOOTNOTE 1 No.t7 of 1958, Legal Library Services cian n2 ase tuanee