Kwesi Enimil & Ors V. Kwesi Tuakyi & Ors (1950)

LawGlobal Hub Judgment Report – West African Court of Appeal

Application of English Law where parties are natives—Whether native or
English law applies depends on the circumstances relating to the transaction—
Forfeiture of rights by reason of denying overlordship.

Facts

The parties in this action were all natives, and the issue depended upon whether the matters in dispute were governed by native law and custom, or by English law.

The land in dispute was undoubtedly originally held according to native tenure. The interest of the former owner of the land was seized and sold in execution and the purchaser mortgaged it. Later the mortgagee, exercising his power of sale, sold his interest in the land to the predecessors in title of the respondents.

The respondents were kept out of possession for a period of over twenty years and appellants’ Counsel argued that English law applied, and as the respondents had been out of possession for more than twenty years they were debarred by the Statute of Limitations.

Counsel further argued that the respondents, having denied overlordship of the appellants by refusing to pay tribute, forfeited their interest in the land.

Held

What the respondents’ predecessor in title bought was the right title and interest under native law of the original judgment debtor. Accordingly English law did not apply. The only occasion on which tribute was refused was when the respondent contested the appellants’ claim. This was not a good ground for forfeiture, otherwise no person could risk contesting any claim of this nature and would be left entirely at the mercy of the overlord.

Appeal dismissed.