Effuah Kwakuwah V. Effuah Nayenna (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim to land and building thereon alleged to have been granted-under Native Customary Law—Law governing such grant—Findings of fact by the Native Tribunal set aside by the Courtof the Provincial Commissioner.

Held : Findings of the Native Tribunal should not have been disturbed and appeal allowed.

There is no need to set out the facts.

C. P. Hayfron-Benjamin for Appellant. K. A. Korsah for Respondent.

The following joint judgment was delivered

KINGDON, C.d., NIGERIA, PETRIDES, C.d., GOLD COAST AND WEBB, C.d., SIERRA LEONE.

The plaintiff sued the defendant before the Native Tribunal of Yamoransa, Omanhene of Nkusukum State, claiming a piece of land and a building thereon.

From the judgment of the Native Tribunal it will be seen that the plaintiff’s case was that she rendered monetary and other assistance to her late husband Kwamin Assimaku, during the course of the erection of the building the subject matter of the action, while they were living together as husband and wife, and because of this Assimaku, in his lifetime, gave her a part of the building as a gift and the other part to his sister and his nieces.

The Native Tribunal gave judgment for the defendant with costs assessed at £5. In its judgment the Native Tribunal stated that :—

” The Tribunal find that, although it might be that Assimaku ” intended to make a gift of a portion of his building to plaintiff, ” his wife, the course adopted seems to have been improper; it is ” tantamount to private transaction or dealing; gifts of this kind ” must be made public, that is : relatives of both the donor and the ” donee and some outside persons must be present to act as ” witnesses, and the donee in accordance with custom acknowledges ” or accepts the gift by giving some present or presents in return ” as a thanksgiving. This is not so in this case and it cannot ” therefore be said that the gift is valid in accordance with Native ” Customary Law. The claim of the plaintiff fails, and the building ” left by Robins Assimaku on his death automatically goes to his ” family.

In view of the apparently good services rendered by plaintiff

Kwakuwah” to her late husband Assimaku, the Tribunal recommend to the

v.” defendant that plaintiff, who is already in occupation of one of

Effuah” the rooms in her late. husband Assimaku’s building, be allowed to

Nayenna.” continue in occupation for the time being until such time as she

” would again be married to another man when she should quit.” Kingdon,On appeal the Court of the Provincial Commissioner, Central

C.J.,Province_s reversed this decision. The material part of the

Petrides,

judgment of that Court is as follows :—

C.J.,

” The Tribunal in its judgment sums up the evidence quite

and

” correctly, namely that the appellant assisted her husband during

Webb, C.J.

” his lifetime to build a house and for services so rendered he

” presented her with a portion of it and the rest to his sister and ” nieces.

” This statement is supported by evidence which is good and ” is not rebutted.

” Respondent’s statement is simply a blunt denial of these ” facts but supports it with no evidence. The Tribunal then goes ” on to say that this gift of a portion of the house to appellant ” was contrary to Native Custom and finds in favour of the mother ” i.e. the respondent in this ease.

” it is recognised Native Custom that a person can dispose of ” self-acquired property i.e. property which he has bought or ” constructed during his lifetime. It is contended by the ” respondent that even so his mother ought to have been told. ” There is unrebutted evidence in the record to show that she was ” told.

” The Court finds that the Tribunal wrongly interpreted ” Native Custom in this respect and this Court therefore, in view ” of the fact that the evidence is strongly in favour of plaintiff. ” appellant and Native Customary Law is also in her favour, ” allows the appeal with costs to be taxed.”

The Privy Council in the course of its judgment in the case of Abakah Nthah v. Anguah Bennieh• said :—

” By colonial legislation all suits relating to the owner” ship of land held under native tenure are placed within ” the exclusive original jurisdiction of native tribunals, ” unless satisfactory reason to the contrary is shown. It ” appears to their Lordships that decisions of the native ” tribunal on such matters which are peculiarly within their ” knowledge, arrived at after a fair bearing on relevant ” evidence, should not be disturbed without very clear proof ” that they are wrong, and their Lordships fail to find such ” proof in the present case.”

In Christian Yao Kisiedu and Others v. Djorbuah Doinpreh and Otherst the Privy Council stated :—” No doubt an appeal in a case tried by Judge alone, is ” not governed by the same rules which apply to an appeal ” after a trial and verdict by a jury. It is a rehearing

” Nevertheless before an Appellate Court can properly reverse ” a finding of fact by a trial Judge, who has seen and heard ” the witnesses, and can best judge not merely of their ” intention and desire to speak the truth, but of their ” accuracy in fact, it must come to an affirmative conclusion ” that the finding is wrong. There is a presumption in ” favour of its correctness which must be displaced.”

It will be seen from the passage of the judgment of the Native Tribunal quoted that that Tribunal held that the gift relied on was invalid, according to Native Law and Customs, because :—

1. it was not made with the necessary publicity and
2. the donees did not in accordance with custom acknowledge or accept the gift by giving some present or presents in return.

In the 1st Edition of Sarbah’s Fanti Customary Laws it is stated at pages 69 and 70 :—

” The acceptance of a gift should have as much publicity ” as possible having regard to the nature of the gift ” but the acceptance of a gift, consisting of ” immoveable property, must be invariably made ” public. Acceptance is made-

1. By rendering thanks with a thank-offering or ” presents, alone or coupled with an utterance ” or expression of appropriating the gift; or
2. Corporeal acceptance, as by touching; or (iii) Using or enjoying the gift; or

” (iv) Exercising rights of ownership over the ” gift.”

” If the donee is in possession, either alone or jointly ” with the donor before the gift, the continuance ” of his possession is sufficient without any new ” delivery, provided the donee makes acceptance ” in the way set forth by (i) above

In our opinion there was no evidence that the Native Tribunal was wrong in holding that the gift relied on in this case was invalid according to native law and custom. We therefore come to the conclusion, having regard to the principles laid down by the Privy Council in their judgments cited above, that the finding of the Native Tribunal should not have been disturbed.

We accordingly allow the appeal. We set aside the judgment of the Court of the Provincial Commissioner, Central Province, and restore that of the Native Tribunal. The appellant is awarded costs in this Court assessed at 224. 16s. 3d. and in the Provincial Commissioner’s Court to be taxed.