FANTI CUSTOMARY LAWS.
A BRIEF INTRODUCTION TO TEE PRINCIPLES
OF THE
NATIVE LAWS AND CUSTOMS OF THE FANTI ANT)
AKAN DISTRICTS OF THE GOLD COAST,
A EEPOET OF SOME CASES THEREON DECIDED
IN THE LAW COURTS.
JOHN MENSAH SARBAH,
OF Lincoln's inn, barrister-at-law, practising before the
SUPREME COURT OF THE GOLD COAST COLONY.
SECOND EDITION.
LONDON:
WILLIAM CLOWES AND SONS, LIMITED,
7, FLEET STREET.
1904.
PRINTKD BT
WILLIAM CLOWES AND SOK8, LIMITED,
LONDON AND BECCLE8.
TO
THE MEMORY
OF
Cf)e ?gonourable 3lof)n ^aifaaf),
MERCHANT, CAPE COAST CASTLE, SOMETIME MEMBER OF
THE LEGISLATIVE COUNCIL OF THE GOLD COAST COLONY, AND
CAPTAIN COMMANDING THE GOLD COAST RIFLE CORPS
DURING ASANTI EXPEDITION, 1873-1875. A MERCHANT ENTERPRISING
AND HONOURABLE, A STATESMAN LOYAL AND FEARLESS,
A PATRIOT CHIVALROUS AND TRUE, A PARENT
PIOUS AND MOST AFFECTIONATE,
THIS BOOK
IS
DEDICATED BY HIS SON,
THE AUTHOR.
Digitized by the Internet Arciiive
in 2007 with funding from
IVIicrosoft Corporation
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ADVERTISEMENT TO THE SECOND EDITION.
This small contribution to the study of an aboriginal
system of West African Customary Laws has met with
an acceptance and appreciation wholl}^ unexpected.
No labour, therefore, has been spared to secure accuracy,
and still striving after quality in this edition, every state-
ment of the Law has been closely scrutinized and carefully
reconsidered; and without forgetting this is but a brief
introduction to the principles of the Customary Laws,
some new matter has been added to several chapters.
Guided by the experience derived from the use of this
book in Court practice, it is hoped, the cases in footnotes
will be found useful.
The work of 1665, relating to the "Golden Coast of
Guinney," referred to in this edition, is substantially com-
piled from de Faria da Sousa, the Portuguese author, the
travels of John Lok in 1553 and 1554, Towrson in 1555 to
1557, published in Hakluyt, and Artus who wrote in 1625.
A study of these ancient authors abundantly proves that
when, in 1481, Portuguese navigators and other European
trading adventurers first appeared on the Gold Coast, they
found an organized society having kings, rulers, institutions,
and a system of customary laws, most of which remain to
this day.
I
VI ADVERTISEMENT TO THE SECOND EDITION.
Suoffjestions and criticisms from whatever source emana-
ting have been carefully examined, weighed, considered,
and dealt with accordingly.
Reference to the decided cases has been made easy by
the full index prepared by Sir W. Brandford Griffith, Kt.,
Chief Justice of the Gold Coast Colony, by whose kind
permission it is inserted. Thanks are due to the learned
Chief Justice for this useful index; and to Mr. Justice
Francis Smith, through whose courtesy appears the infor-
mation on certain Accra Customary Laws by the late
Mr. Edmund Bannerman.
The Times newspaper review of the first edition of this
work is here reproduced, in compliance with the urgent
request of many West African readers, who are anxious to
read it.
I am much indebted to my friend Mr. J. E. Biney of
the Inner Temple for his assistance in passing this edition
through the press.
J. M. S.
The Lirrary, Lincoln's Inn,
Michaelmas Term, 1903.
FANTI CUSTOMARY LAWS.
(WM. CLOWES AND SONS, LIMITED.)
Mr. Sarbaii has in this interesting volume done excellent work. He
has collected so much that is instructive to the student of ethnology and
comparative jurisprudence that it is to be hoped he will give further-
extracts from the judicial archives of the Gold Coast relating to the
customs of the Fantis. He has examined, evidently with care and a
desire to ascertain the truth, the legal proceedings in our regular Courts'
and before those extremely anomalous functionaries our judicial assessors'
relating to the family, marriage, divorce, property, tenure of land, surety-
ship, slander, and mode of enforcing payment of delts; and very curious
are some of the customs. For some reason not explained, and apparently
difficult to explain, permission to continue the examination of the archives
ADVERTISEMENT TO THE SECOND EDITION. Vll
of the Court at Cape Coast Castle was withdrawn before Mr. Sarbah's
search was complete. It is to be hoped that the permission will be
promptly renewed. The origin of the jnrisdiction of the English Courts,
and especially that of judicial assessors, on the African West Coast is
peculiar, and more than one Secretary of State has been embarrassed in
justifying a useful institution. Until recently English jurisdiction did
not extend beyond the range of the guus of our forts; and on the Gold
Coast the powers of our assessors were first derived, not from any statute
or Order in Council, but from the assent of the native kings and chiefs ;
in particular, from the bond signed in 1814: by Cudjee Chibboe, King of
Denkerah, Quashie Ottoo, chief of Abrah, and other magnates among
the Fantis. Very wisely, our Government have respected, so far as
])ossible, the locil customs, and it was the duty of the judicial assessor
to sit as a sort of head chief along with the local chief and hear and
decide the disputes of the natives. This collection furnishes ample
evidence of the good sense with which a difficult task was performed.
While human sacrifices, and such barbarous customs repugnant to civilized
ideas as " panyarring," or kidnapping, were repressed, the a-^sessors gave
to the Customary Law the flexibility necessary to meet new circumstances
and to satisfy the rising standard of justice. Among the Fantis, descent
is traced through the female, and a Fanti fiimily consists of all persons
lineall}' descended Irotn a common ancestry through females. One
peculiarity of the Customary Law is that the members of a family are
jointly and severally liable for the debts, etc., of a member of it ; all must
pay, or the delinquent member must be given up to the claimant. A
valid marriage is contracted when the husband has given his wife's family
certain presents, usually called " liead rum." The phrase does injustice
to the Fantis.
The term "head, rum" so-cnlled, often used in the case of marringe, is an
instance of erroneous and deplorable interpretation of Fanti into En^tlish. Kum
•was unknown to the people until brought to them by those engaged in the slave
trade, and before then, surely, marriage was not unknown. 'Ihe beverages made
from maize and extracted from the date and palm trees were common, but instead
of nuptial wine an ignorant clerk said "head rum" for etsir ensa. The term
■ctsirensa is evidently a contraction for etsir nsa nkredzi — literally, tokens or prices
of the head, etc.
According to a rule, the existence of which we should have doubted but
for Mr. Sarbah's explicit statement on the point, there are many contracts
of surety under native law ; and in the first instance the remedy is against
the surety, and not the debtor. Mr. Sarbah's collection of cases contains
more than one action for breach of promise of marriage. The faithless
swain is, apparently, not mulcted in what counsel call "exemplary
damages." One case tried before the Judicial Assessor and Chief Chiboo,
Thompson and Robertson, resulted in a verdict for £5. In an action for
crim. con., tried in 1844, the defendant was ordered to pay 2 oz. of gold,
a sheep, and a case of rum. Sometimes the native kings were called to
account by our Courts ; and in one case reported in this volume the ruler
viii ADVERTISEMENT TO THE SECOND EDITION.
of Eastern Wassah, charged with cruelty and extortion practised upon
his nephew, was condemned to refund treasure which he had obtained,
and to pay 5 oz. of gold for the barbarous treatment inflicted on his
relative. Evidently there is no superabundance of technicalities in the
procedure of justice in some of the Courts of which Mr. Sarbah is the
reporter, as witness the judgment attributed to Bailey, C.J., in 188 i : —
There was a rronkey who wanted to get some nuts that were hot and afire ; he
got a cat and used her hands to pull the nuts out of the fire. The monkej"- got the
nuts and the cat burnt her fingers. And they and the three chiefs are the monkeys,
and you are the cats, and you have burnt your fingers to the extent of £1 each.
Judgment : £3 and costs.
Times, Feb. 4, 1897.
PKEFACE.
i£Imma»
My dear Mr. Eminsang, — Pardon the liberty I take
in sending you this open letter, with this my first attempt
in the thorny paths of literature. I dare do so, for not
only are you a native of the soil and one of my father's
friends, but you are also the senior member of the Bar of
the Western Province of the Supreme Court of the Gold
Coast, having commenced to practise when we, who are
now members thereof, were but schoolboys. Your patriotism
is well known, and your loyalty is undoubted, and as one
who, in former years, served his country in his office as
Chief Magistrate at Elmina — what time the Dutch held
sway over a portion of the Gold Coast — and afterwards took a
prominent part in executing the treaty under which British
jurisdiction was extended on the Gold Coast, you have no
idea, how often you have encouraged me to goon with, and
persevere in, the task I had set myself, to reduce into
writing the Customary Laws and Usages of the Fanti,
Asanti, and other Akan inhabitants of the Gold Coast. I
know that you have often given the first correct idea on
Customary Laws to newly arrived European officials, who,
having no intelligent person to explain things to them,
would fain say there were no Customary Laws. I know
X rnEFACE.
how it has constantly pained and grieved j'ou to notice any
local Customary Law or Usage distorted by any prac-
titioner from beyond seas solely bent on snatching a
verdict.
Thanks, however, to Sir Joseph Turner Hutchinson,
Knt., sometime Chief Justice of the Gold Coast, who
readily gave permission when I applied to him to take
notes from the records of the Court at Cape Coast Castle,
I have made a selection of cases bearing on the local
Customary Laws, and I hope that by grouping and classi-
fying the decisions together, facilities will be aftbrded for
ascertaining what is really the general Customary Law
with respect to most matters to which, it is well known,
the natives are tenaciously attached, the principles under-
lying it, and how far it is qualified by any special local or
tribal custom. And now that compa,rison is rendered
possible, and the lines of inquiry as it were placed before
them, this is a field of investigation which should engage
the close and studious attention of every educated native.
Unfortunately, not only was the expert evidence of the
Chiefs on points of Customary Law carelessly and some-
times ineflficiently translated to the Court, but no attempt
had been made to test their accuracy by comparison with
similar cases in other districts aflfecting the same class of
persons. In spite of this, however, there is a remarkable
uniformity and consistency in the decisions on the Custo-
mary Law in regard to certain matters, several recent
decisions agreeing with old cases, the existence of which
could not possibly have been known by the judges of the
Supreme Court.
To wade through a mass of matter for the purpose of
finding what was worth copying was no light task, and I
would have been more .satisfied had I been able to verify
with care all the decisions reported in this book. But
PEE FACE. XI
beggars cannot be choosers ; wherefore, when I suddenly
received an intimation from the Registrar that the Chief
Justice had withdrawn his permission, I had to stop. If,
therefore, any errors are detected in the reported cases, you
will understand how they crept in, and this in spite of the
special care I took when copying them in the first instance.
I have endeavoured in some instances to state the
Customary Law in a few simply worded propositions,
embodying what a careful analytical study proves to be
the principles running through it. I am quite alive to the
danger of reducing Customary Law to a condition of fixity
in a semi-developed state of society, the effect of which
may hinder the gradually operating innate generation of
law by a process of natural development, independent of
accident and individual will, which best accords with the
varying needs and spirit of a people so circumstanced as
the inhabitants of the Gold Coast.
A great thinker has said, " The value of a custom is its
flexibility, in that it adapts itself to all the circumstances
of the moment as of the locality. Customs may not be
wise as law^s, but they are always more popular." You
will not be surprised, therefore, to find I have not at-
tempted to write on every imaginable point of the
Customary Law; to do that were to write an account of
the everyday existence of the people, thus following the
footsteps of Bosman and Cruickshank, whose works I
have consulted at all times during the progress of this
work. I have aimed, not so much at quantity as quality ;
and, as often as opportunity offered, I have tested the
accuracy of what is here set down, by comparing the same
with information gathered from all classes and conditions
of men, from all parts of the Gold Coast, with whom
I have come in contact, professionally or otherwise. At
the same time, I am perfectly conscious how I have been
Xll PREFACE.
unable to attain the high standard I had set before me ; but
if by my efforts other natives of the Gold Coast, acquainted
with the several local dialects, and trained in the English
Inns of Court, are induced and stimulated to enter the
hitherto unexplored fields of our Customary Law, I shall
not have laboured in vain, for I am certain, that it is only
by patient investigation and intelligent study, that the
Customary Law can be well defined and consolidated.
Customary Law and other Usages recorded by Bosman, as
existing two centuries ago, have not altered to any extent
up to the present da}^ although one knows that, as the
mind of a community becomes enlightened, its legal con-
victions will change, and this will constitute a change in
its Customary Law, as that law is, from time to time,
recognized and enforced in the local tribunals. It is a
universal truism that Usage generates the Customary Law,
as, in the long run, a sense of fitness becomes a sense of
necessity and obligation. When Sir J. Smalman Smith,
in the Full Court held at Cape Coast Castle, on October
24, 1887, and presided over by Chief Justice Macleod,
stated, "I have found the native laws and customs always
founded on very good and intelligible reasons, which are
perfectly rational and consistent," he expressed the con-
viction of every person who has any intelligent knowledge
of the Customary Laws of the Gold Coast, and although I
dare not claim to be he that shall come, I have endeavoured
to be the voice of one crying in the wilderness, while
preparing, perhaps imperfectly, the way before him.
I must now express my thanks, in addition to Sir
Joseph Turner Hutchinson, Knt., to His Honour Francis
Smith, Esq., Acting Chief Justice of the Gold Coast Colony ;
to King Amonoo of Anamaboe, King Otoo of Abura, Mr.
T. F. E. Jones, and other headmen and persons whom I
have often consulted, and from whom I have learnt
PREFACE. XIU
much on the Customary Law and Usage ; to Rev. J. B.
Anaman, F.R.G.S., for his assistance in the compilation
of the table of principal dates and events; to Mr.
Registrar Bernasko and Mr. Coulon, for assisting me to
discover the old records ; to Mr. J. W. D. Johnson, for
lending me his rare copy of Bosnian's work ; to Mr. Adolf
Neubauer, M.A., Senior Sub-Librarian, Oxford University,
for allowinfr me to consult some rare old books in the
Bodleian Library for this work ; and finally to my friend
Mr. Samuel E. Kaye, of Lincoln's Inn, whose unremitting
assistance, in correcting the proofs and verifying many
quotations and extracts herein referred to, has been simply
invaluable.
I remain, yours very truly,
JNO. M. SARBAH.
Tup: Library, Lixcolx's Inx,
August, 189G.
TABLE OF CONTENTS.
PAGE
Advertisement to the Second Edition ... ... v
Preface ... ... ... ... ... ... ix
Index of Keported Cases ... ... ... ... xvii
List of Cases ... ... ... ... ... xxv
List op Governors ... ... ... ... xxvii
Dates of Notable Events ... ... ... ... xxix
Introduction ... ... ... ... ... 1
I. Fanti Customary Laws ... ... ... 15
II. Persons ... ... ... ... ... 33
i. The family ... ... ... ... 33
ii. Marriage, divorce, husband and wife, parent
and child ... ... ... ... -^1
III. Property ... ... ... ... ... 57
IV. Tenure, Kinds of and Nature of ... ... 65
V. Suretyship ... ... " ... ... ... 74
VI. Alienation ... ... ... ... ... 78
i. Gift, what is ... ... ... ... 80
ii. Mortgage and pledge ... ... ... 82
iii. Loans ... ... ... ... ... 84
iv. Sale ... ... ... ... ... 85
v. Testamentary dispositions ... ... ... 95
VII. Succession and Inheritance ... ... ... 100
XVI TABLE OF CONTENTS.
PAGE
VIII. Slander ... ... ... ... ... 113
IX. Modes of enforcing Payment ... ... 114
Laav Report of Decided Cases ... ... ... 117
Appendices.
Opinions on Land Tenure, by Mr. Justice Smith and
Mr. Bruce Hindle ... ... ... ... 271
Royal Charters, Orders in Council, Treaties, etc. ... 286
Draft Conveyance in Fan ti ... ... ... 311
Index' ... ... ... ... ... ... 313
INDEX OF KEPORTED CASES.
PAGE
ADMINISTRATION
In granting administration Court should consider whether
administrator is legally or only morally bound to distribute
property (Amekoo v. Araevor) ... ... 220
Where persons are married under Marriage Ordinance (In re
Isaac Anaman) 221
APPEAL
No right to, where claim over £50, but Court thinks value of
claim less than £50 (Fletcher V. Sisarcon) 258
Order of Court to Registrar not subject to (Swanzy v. De Veer
and Vanderpuye) 258
ARREST
Right of Native Court to arrest (Oppon v. Ackinnie) 232
BANKRUPTCY
Judgments in Alapatira v. Halliday (trustee for J. P. L.
Davies) 250
CERTIFICATE OF PURCHASE
Only conveys such title as execution debtor had (Quassie v.
Ansafu 26(>
CHILDREN
Mother to have right of custody of (Adjuah Chibba v. Agoowah
ofMoree) 128
When father to have custody of (Neizer v. Dontoh) ... ... 12^
Infants not liable in contract for non-necessaries (Sey v.
Abadoo) 132
Rights of, to family property. See Family Property ; and see
Illegitimacy.
CONCUBINE
Forfeiture of sarwie to (Abba Quasua v. Ward) ... 50, 117
See Illegitimacy.
XVlll INDEX OF EEPORTED CASES.
PAGE
CONSAWMENT
Essential to legal marriage (Quasua v. Ward) ... 47, 49, 50, 97
COUNSEL
Imposing on District Commissioner's lack of knowledge of law
(Davis V. Jones) ... ... ... ... ... ... 265
CUSTOM. See Native Law.
DEBT
When relations of deceased person to pay (Quammie Aslion v.
John Snyper) 13G
Head of family claiming (Inkrmna v. Kankan) 13G
Where family property in debt, member cannot retire from
family without paying his share of the debt (Ampima v.
Deamua) 142
HoAV far family house liable for (Halm v. Hughes) ... 165-168
(Tokoo V. Asima) 168
DECLAKATION OF TITLE
Action for (Eccuah Bimba V. Effuah Mansah) 137
DErOSITION
Eight of family to depose for good cause (Mould v. Agoli and
another) 202
DESCENT
Law of, generally (Lintott Bros. V. Solomon) 122-125
To be by female line (Accuful V. Martey) 156
(Swapim v. Ackuwa) ... ... ... 191
(Holdbrook and others v. Atta) 211
(Sam V. Williams) 213
(Abbacan V. Bubuwooni) ... ... 213
Rules as to (Coffie Yammoah v. Abbam Coomah) 197
(Isaac Ocran v. Quah Bandafoo) 210
Colour no bar in (Hutton v. Know Kuta) 211
Evidence as to pedigree, hearsay admitted as (Bura and Amonoo
V. Ampima) 214
DESERTION
Penalty for, under native law (R. Know Kineeboah), 2 F. L. R. 10
(R. Cudjoe Mensah), 2 F. L. R. ... 11
DEVOLUTION OF PROPERTY
In case of slaves (Atta V. Sam and others) 151
(Abbrobah V. Chibboo) 172
(Adjua Amissa v. Kimfull and Fynn) ... 227
INDEX OF EEPORTED CASES. XIX
PAGE
DEVOLUTION OF J'UOPEmY— continued.
Of a family house (Halm V. Hughes) ... ... ... ... 1G5
In case of illegithiiate children (Amamoo v. Clement) ... 180
AVhere a man builds a house for himself —
(Halmond v. Daniel) 182
(Svvapim V. Ackuwa) ... ... ... ... 191
Where a woman leaves family property (Parker and others
V. Mensah and others) 201-210
And see Will ; Family PrvOPEUTY.
DIVORCE
Where persons married in Wesleyan Chapel prior to Marriage
Ordinance (Des Bordes V. Des Bordes and Mensa) 267
DOWRY
Distinction between, and head rum (Ash on v. Atta Penin) ... 132
EKAL
Cutting of, meaning disinheritance (Welbeck v. Brown) ... 185
EVIDENCE
How far hearsay is, to prove pedigree (Bura and another v.
Ampima) ... ... ... ... ... ... ... 214
EXTORTION
By Chiefs (Q. Buafoo v. Enimil) 247-249
FAMILY PROPERTY
Not to be disposed of without consent of family (Lintott Bros.
V. Solomon 122
Where family property in debt, member of family cannot retire
from family without paying his share of debt (Ampima v.
Deamua) 142
Contributions to upkeep of, who liable for —
(Jones V. Ward) 143,144
(Boham V. Marshall) ... 193,194
Sale of private house on family land (Roberts v. Awortchie) 149, 150
How far attachable for debt (Roberts v. Awortchie) ... 149, 150
(Halm V. Hughes) 165-167
(S. Tokoo v. K. Asima) 168
(Parker v. Mensah) 207
Irregular sale of, rescission of (Q. Awortchie v. C. Eshon) ... 170
voidable not void (Q. Bayaidee v. Q. Mensah) 171
held good, after lapse of years (Assraidu v. Dadzie) 174-179
Mortgage of, without consent of family (Daddie v. Queateabah) ... 173
Irregular mortgage of, acts as forfeiture of mortgagee's rights
in property (Daddie v. Queateabah) ... ... ... I73
Alienation of, method of (Assraidu v. Dadzie) 178
XX INDEX OF EEPORTED CASES.
FAMILY VRO?EUTY— continued.
Right of illegitimate child to inherit family house (Amamoo v.
Clement) 180
Substitution of new house for family house —
(Barnes v. Mayan) 180
(Halmond V. Daniel) 182
Eights of individual to family house (Barnes v. Mayan) ... 180
Right of son to sh«ire in house left by father as family house —
(Halmond V. Daniel) 182-184
(Swapim V. Ackuwa) 191
(Boham V. Marshall) 193,194
Assistance by family to build house (Welbeck v. Brown) ... 186
Disposition of, where all members of the family disinterested
(Welbeck V. Brown) 186
Widow and children of person leaving family house not entitled
to stay in it (Svvapim V. Ackuwa) ... ... ... 191,192
Children of person leaving family house entitled to stay in it
(Boham y. Marshall) 193
Liability of family property for debt of ancestor (Parker and
others v. Mensah and others) ... ... ... ... 207
GIFT
Irrevocable as against donor (Eccuali Bimba v. E. Mansah) ... 137
Form of words used in making (Halm v. Hughes) 166
Of house as family house (Halm V. Hughes) 166
HEAD RUM. ^^ee Dowry.
HOUSE
Where house built on another person's land (Quamina Attopee
y. E. Kancy) 149
Sale of materials of, in execution (Roberts v. Awortchie) ... 149
Assisting to build, effect of (Welbeck V. Brown) 185
Heir to repair (Boham V. Marshall) 193
Family. See Family PRorERTY.
HUSBAND AND WIFE
Wife need not pay debt of deceased husband (Q. Ashon v. John
Snyper) ... ... ... ... ... ... ... 136
Right of wife to house on husband's death (Swapim v. Ackuwa) 191
Husband not Avife's successor (Kendall v. Abakan) 8
See Marriage.
ILLEGITIMACY
No bar to succession as regards mother's family —
(Lintott Bros. V. Solomon) 122
(Holdbrook and others v. Atta) 211
INDEX OF REPORTED CASES. XXI
ILLEGITIMACY— continued.
Maintenance of illegitimate child (Marshall v. Dawson) ... 131
(Duncan v. Robertson) ... 134
Right of illegitimate child in father's house ( Amonoo v. Clement) 180
See Seduction.
IMPRISONMENT
Right of Native Court to imprison (Oppon v. Ackinnie) ... 232
In native prison, how to be enforced (Oppon v. Ackinnie) ... 232
To enforce decree, may issue in first instance —
(Swanzy v. De Veer and another) 258
(Swanzy V. Brew and another) 262
To enforce decree, discretion of Court to direct (Eiloart v. Brew) 261
INFANT
Not liable for what is not necessaries (Sey v. Abadoo) 132
INHERITANCE
Husband not entitled to wife's property (Kendall v. Abakan) ... 8
How person may be disinherited (Welbeck v. Brown) 185
Rules of, not to be lightly set aside (Coffie Yammoah v.
A. Coomah) 197
Voice of people to be heard in matters of inheritance to stool
(Q. Amfoo V. A. Yardonuah) 198
See Descent ; Ouster ; Devolution of Property.
INTEREST
Native rate of (C. Ashon v. C. Barng) 153
JURISDICTION. See Native Court .
LICENSE
To build house on another's land. See House.
Person put in charge of land regarded as licensee (Atta v. Sam
and others) 151
MARRIAGE
Di solution of, owing to misconduct of husband (Aggryba v.
Aban) 118
Dissolution of, ground for (Y. Renin V. W. Duncan) 119
Where solemnized by Christian rites (Des Bordes v. Des
Bordes and another) 267
What constitutes valid marriage (Y. Benin v. W. Duncan) ... 119
(Lintott Bros. v. Solomon) ... 122
(H. Jonah v. Addacoo) ... 127
Where husband marries second wife (De Graft v. A. Mansah)... 125
Repayment of dowry where wife leaves husband —
(De Graft V. Mansah) 125
(Kofi Sackie v. A. Agawa) 126
c
XXll INDEX OF REPORTED CASES.
PAGE
MARRIAGE —continued.
Recovery of headmoney where girl refases to marry man
(K. Sackie V. A. Agawa) 126
Forfeiture of headmoney Avhere man refuses to marry girl
(Neizer V. Dontoh) 129
Breach of promise of (Jones V. Mends) 128
(Neizer V. Dontoh) 129
Native marriage bars marriage under Marriage Ordinance
(Boham's Case) 13
MORTGAGE. See Pledge.
MOTHER
Right of, to custody of child (A. Chibba v. Agoowah) ... 128
(but see page 110)
Expenses of burial of, test as to free birth (Abbrobah v. Chibba) 172
NATIVE COURTS
Supreme Court not to supersede (Q. Koom v. Owea and another) 231
Supreme Court to uphold decision of 'Q. Abacan v. Q. Ackarsa) 232
Supreme Court Ordinance has not deprived, of pre-existing
powers (Oppon V. Ackinnie) ... ... ... ... ... 232
Contempt of Native Court (Abadie V. Oy am) ... ... ... 246
NATIVE LAW
Proof of (Eccuah Bimba V. Effuah Mansah) 137
Difficulty in arriving at (Assraidu V. Dadzie) ... ... ... 177
(Welbeck v. Brown) 185
Meaning of " custom" (Welbeck V. Brown) ... ... ... 187
Not applicable where persons marrie.l under Marriage Ordinance
(fle Isaac Anaman) 221
NOTICE
Of re-entry by owner to tenant at will (Eccobang v. Hagan) ... 159
To an illiterate native, what constitutes (Alapatira v. Halliday) 250-257
OATH
Calling oath on person (Beddomassoo v. John Bossoo) ... ... 247
Used as a means of extortion (Q. Buafoo v. Enimil) ... 247-249
OUSTER
Right of family to depose head of family (Mould v. Agoli and
another) 202
Person mortgaging family liouse without consent of family
forfeits his right in sucli house (Daddie v. Queateabah) ... 173
Family to pay debt of member of family or to oust such member
from family (Parker y. Men sah) ... .. 208
Child may be driven from father's house by family, see Family
Pkoperty (right of children in father's property).
See Disinheritance : Deposition.
INDEX OF REPORTED CASES. xxiii
PANYARRING
Meaning of (see p. 167) 115,116
PAWN. >See Pledge.
PLEDGE
Redemption of land held under, for twenty years (Baince v.
Mensah) 148
Right of pledge to cut down palm trees (C. Ashon v. C. Barng) 153
Right of pledge to the use and produce of land pledged (K.
Amonoo V. A. Abbakuma) 157
Of family property for private debt acts as forfeiture of pledgee's
interest in such property (Daddie v. Queateabah) 173
Pawning a pawn illegal by native law (Ebboe v. Abboma) ... 237
PRISON. >See Imprisonment.
PRODUCE
Buying and selling and leakage of (Swanzy v. Stanhope) ... 263
RECEIPT
Creditor bound to give, on payment (Parker v. Mensah) . . . 206
SARWIE
Forfeiture of (see p. 43) (Abba Quassua v. T. Ward) 117
SECURITY. ^See Pledge.
SEDUCTION
Damages for (Eccuah Ahinfvva v. Q. Ghan) 118
(H. Jonah V. Addacoo) 127
(Neizer v. Dontoh) 129
(Marshall V. Dawson) 131
(Ashon V. Atta Renin) 132
(Duncan V. Robertson) 134
SLAVES
Right of inheritance by (Lintott Bros. v. Solomon) 122
(Eccuah Bimba v. E. Mansah) 137
(C. Yammoah V. A. Coomah) 197
(Isaac Ocran v. Q. Bandafoo) 210
Marriage of (Lintott Bros. v. Solomon) 124
Devolution in case of (Atta v. Sam and others) 151
(Abbrobah v. Chibboo) 172
(Mansah and others V. Dolphyne) ... 213
Liability of emancipated slaves (Abban V. Sago) 156
Ceremony at purchase of (Cudjoe Quay v. Aywoodsuah) ... 163
Not to pay expenses of mother's funeral (Abbrobah v. Chibboo) 172
XXIV INDEX OF REPORTED CASES.
PAGE
SLAYES—continned.
Descendants of slaves are slaves (Ocran V. Bandafoo) 210
Only have life interest in property (Amissa v. Kimfoill and
another) 227-231
STATUTES OF GENERAL APPLICATION
What are (Des Bordes v. Des Bordes) 267
STATUTES OF LIMITATION
Reference to (Atta v. Sam and others) 152
Not applied though no rent joaid for thirty years (Accufid v.
-Martey) 157
Not in force by native custom (Eccobang V. Hagan) 159
Not applicable in irregular sale of family property (Q. Avvortchie
V. C. Eshon) 170
STOOL
Stool property goes with stool (Q. Dansue v. Tchibu Darcoon) 150
Occupant of stool property cannot by himself alienate it (Barnes
V. Q. Atta) 169
Control of higher stool over lower (Efifuah Edooah v. C. Awooah) 196
Brother of late stoolholder to succeed before nephew (Q. Amfoo
V. A. Yardonuah) 199
- But people allowed to overrule law 202
Deposition from, by family (Mould v. Agoli and another) . . . 202
Suzerainty of a person over the stool of another person (Bura
and another V. Ampima) ... ... ... ... ... 214
Deposition of person from (K. Ghambra v. K. Evvea), 2 F. L. R. 61
Town stool distinguished from family stool (K, Ghamba v.
K. Ewea), 2 F. L. R 61
SURETY
Rights of principal and surety (Q. Nj'-akon v. Ko5 Sarr) ... 239
TENANT AT WILL
Rights of, under native law (Eccobang V. Hagan) 159
WIFE. See Husband and Wife.
WILL
Right of person to make (Lintott Bros. v. Solomon) 123
May be made orally (Ocran V. Bandafoo) 210
Of person married under Marriage Ordinance must be made in
accordance with English law (Be Isaac Anaman) ... 225
Slave has no right to dispose of property by (Amissa v. Kimfidl
and another) 227-231
LIST OF CASES.
Kendall v. Abakan ...
Cromwell v. Arba ...
Quassua v. Ward
Aggryba v. Abau
Ahinfua v. Ghan
Yow Penin v. Duncan
Lintott V. Solomon ...
De Grafo v. Abba Mansali
Sackie v. Agawa
Jonah V. Addacoo ...
Chibba v. Agoowali ...
Jones V. Mends
(1) Tenure.
Bainee v. Mensah ...
Attopee V. Nancy ...
Koberts v. Awortcliie
])ansue v. Tchibu-Darcoon
Atta V. Sam
Aslion V. Barng
Abban v. Sago
Accuful V. Martey ...
Amonoo v. Abbakunia
Eccobang v. Hagan ...
Grant v. Amissah ...
Amamoo v. Clement
Barnes v. Mayan
Halmoud v. Daniel .
Edooah v. Awooali
Yammoah v. Abbam Coomali
Amfoo V. Yardonuali
Mould V. Agoli
Parker v. Mensah
Ocran v. Bandafoo ...
Hutton V. Know Kuta
Holdbrook v. Atta ...
The Family.
PAGE
J'AGE
8
Neizer v. Dontoh
129
0
Marshall v. Dawson
131
117
Sey V. Abadoo
132
118
Ashon V. Atta Penin
132
118
Boham's case
132
118
Duncan v. Robertson
134
122
Ashon V. Snyper
136
125
Inkruma V. Kankan
136
12G
Bimba v. Mansah
137
127
Gabrie v. Affranquah
142
128
Ampima v. Deamua
142
128
Jones V. Ward
143
Prop
ERTY.
(2) Acquisition and Alienation.
148
Quay V. Aywoodsuah
163
149
Halm V. Hughes
165
149
Tokoo V. Asima
168
150
Barnes v. Atta
169
151
Awortchie v. Eshon
170
153
Bayaidee v. Mensah
171
156
Abbrobah v. Chibboo
172
156
Daddie v. Queateabah
173
157
Assraidu v. Dadzie
174
159
Cobbold V. Quacoe Taweia ...
179
160
Inheri
rANCE.
Chih
iren.
180
Welbeck V. Brown
185
180
Swapim v, Ackuwa
191
182
Boham V. Marshall
193
//( ir-a
t-Laic.
194
Sam V. Williams
213
197
Mansah v. Dolphyne
213
198
Abbacan v. Bubuwooni
213
202
Amonoo v. Ampima
214
204
Am ekoo v. Ame vor
220
210
Auaman (deed.)
221
211
Amissa v. Kimfull
227
211
XXVI
LIST OF CASES.
Miscellaneous Cases.
PAGE
PAGE
Quacoe Koom v. Ovvea
.. 231
Swanzy v. De Yccr ...
.. 258
Abakan v. Ackarsa ...
.. 232
Eiloart v. Brew
.. 261
Eboe V. Aboma
.. 237
Swanzy v. Brew
.. 262
Ottoo V. Anochie
.. 238
V. Stanhoi e
.. 263
Aguah V. Effee
.. 238
Davis V. Jones
.. 265
Nyakon v. San-
.. 239
Effna Annoo v. Abbagee
.. 265
Ferguson V. Turton ...
.. 240-
Quasie v. Ansafu
.. 266
Abadie V. Oyam
.. 246
Des Bordes
.. 267
Beddoomassoo v. Bossoo
.. 247
Oppon V. Ackinie ...
232
Alapatira v. Halliday
.. 250
Buafoo V. Enimil
'.'. 247
Fletcher v. Sisarcon ...
.. 258
GOVERNORS OF THE BRITISH SETTLEMENTS ON THE
GOLD COAST SINCE THE YEAR 17C0.
Dltd on the Coast marhed\ ; acting*
KAMI- "^■'■'^'* ^'^
tThoraas Melvil June 28, 175L
tWilliam Tymewell Jan. 23, 175G
*CliarIes Bell . . . Feb. 17, 175(5
•Nassau Senior ... Oct. 15, 1757
Charles Bell ... May 10, 17(il
William Mutter Au^t. 15, 1763
fJohn llippersley Mar. 1, 17(j()
Gilbert I'etrie ... Aug. 11, 17()(i
John Grossle ... Apr. 21, 17(59
David Mill ... Aug. 11, 1770
Richard Miles ... Jan. 20, 1777
tJohn Roberts ... Mar. 25, 1780
*J. B. Weuves ... Mav 20, 1781
Richard Miles ... Apr. 29, 1782
James Morgue ... Jan. 29, 178-1
t Thomas Price ... Jan. 24, 1787
Thomas Norris Apr. 27, 1787
William Fielde June 20, 1789
John Gordon ... Nov. 15, 1791
A. Dalzell ... Mar. 31, 1792
Jacob Mould ... Dec. 16, 1798
John Gordon ... Jan. 4, 1799
A. Dalzell ... Apr. 28, 1800
Jacob Mould ... Sept. 30, 1802
fCol. G. Torrane Feb. 8, 1805
E. W.White ... Dec. 4, 1807
Joseph Dawso'i Apr. 21, 1816
.lohn Hope Smith Jan. 19, 1817
fBrig.-Gen. Sir Charles Mac-
Carthy ... Nov. 28, 1822
tMajor Ciiisholm Jan. 21, 1824
Major Purdon ... July 1, 1824
Major-Gen. Charles Turner
Mar. 22, 1825
Major-Gen. Sir Neil Camj)bell
Apr. 7, 1825
Captain Ricketts Nov. 15, 1826
Lieut.-Col. Lumley Oct. 15, 1827
Captain Hing>tou Mar. 10, 1828
Major Ricketts May 18, 1828
John Jackson ... June 30, 1828
Captain Maclean Feb. 19, 1830
WiUiam Topp ... June 26, 1836
Captain Maclean Aug. 15, 1838
Commander Hill, R.N. Apr. 5, 1843
VI MIT ^^^^ O*"
^'^ '^- APPOINTMENT.
♦James Lilly 1845
William Winniett 1846
Judge J. C. Fitzpatrick ... 1849
t*William Winniett .., 1850
James Bannerman ... 1850
Stephen John Hill ... 1851
* Judge J. C. Fitzpatrick ... 1853
*Brodie G. CruickshaLk ... 1853
Stephen John Hill ... 1854
*Judge Henry Connor ... 1854
Sir Benj. Chill}^ Campbell
Pine 1857
Major Henrv Bird ... 1858
Edward Bullock Andrews 1860
William A. Ross 1862
Richard Pine 1862
William Hackett 1864
fBrevet-Major Rokeby S. W.
Jones 1865
*W. E. Mockler 1865
*Col. Edward Conran ... 1865
Herbert Taylor Ussher ... 1867
VV. H. Simpson 1868
Herbert Taylor Ussher ... 1869
*Charles Spencer Salmon ... 1871
John Pope Hennessey ... 1872
Herbert Tayl r Ussher ... 1872
Col. R. W. Harley ... 1872
Sir Garnet Wolseley ... 1873
*Lieut.-Col. Maxwell ... 1874
* Charles C. Lees 1874
*Col. Johnston 1874
Captain George C. Strahan 1874
Sanford Freelmg 1876
t Herbert Taylor'Ussber ... 1878
♦William Brandford Griffith 1880
Sir Samuel Rowe 1881
tVV. A. G. Young 1884
William Brandford Griffith 1885
*Col. F. B. P. White ... 1887
Sir Wm. Brandford Griffith 1887,
1890, 1892, 1894
tSir Wm. Edward Maxwell 1895
Frederick Mitchell Hodgson 1898
Major Sir Matthew Nathan 1900
NOTABLE EVENTS.
Civil War between Agyiman and Atta, Chiefs of Akyim, 1860.
Akai War or Appolonian Expedition (1), 1835.
Akai War or Appolonian Expedition (2), 1849.
Asanti War (1), 1807-8.
Asanti War (2), 1811-12.
Asanti War (3), 1817.
Asanti War (4), 1824-26.
Asanti War (5), 1863-64.
Asanti War (6), 1873-74.
Asanti (Kumasi) Expedition, Dec. 7, 1895; Jan. 17, 1896.
Bobikuma battle, May 9, 1863.
Donasi and Abura Tribal War, 1851.
Dunkwa and Abura, 1859.
Dodowa battle, 1826.
Elmina War, 1868-70.
Insimakow battle, 1824.
Mansue expedition, 1864.
Tchibu and Gabir, 1853.
1807. Anamaboe attacked by Asantis; siege, defeat; first Asanti
invasion, June 14.
1808. Hoogenboon Dutch Governor murdered by the natives of Elmina.
1812. J. Meredith, commandant of Winneba, arrested by the people,
Feb. 6 ; d. Feb. 12.
1816. Eev. Phillip Quacoe, M.A., Oxon., d. Oct. 17 ; first native received
Holy Orders, 1765.
1817. First Treaty with Asanti, Mar. 5.
1820. Second Treaty with Asanti, Feb. 28 .
1821. Chief Paintsir and other princes of Abura fell at Mouree, Feb. 10.
1822. Sir Chas. McCarthy arrived, Feb 28.
1824. Sir Chas. McCarthy killed in battle at Insimakow, Jan. 21.
„ Asanti forces defeated by the Fantis at Effutu, May 21.
,, Siege of Cape Coast Castle, the Asantis repulsed, July 14.
1826. Battle of Dodowa in the plains of Accra, Asantis defeated, Aug. 26.
1830. De Graft and Sam imprisoned by Gov. Maclean, Feb. 1.
1831. De Graft and Sam open a night-school at Cape Coast Castle, Sept. 5.
XXX NOTABLE EVENTS.
1832. Akremansali, Chief of Cape Coast Castle, d. July 10.
1834. Kwofi Ekem committed suicide by gunpowder explosion, Sept. 6.
„ Rev. Diinwell, first M^esleyan Missionary, arrived and landed at
C.C.C, Dec. 31 ; d. C.C.C, June 25, 1835.
1837. Amonoo, King of Anamaboe, d. Jan. 27.
„ Amonoo, merchant, d. by gunpowder explosion at Anamaboe,
July 20.
„ Two Dutch officers killed at Boutry, Oct. 23.
1838. De Graft, Wm., the elder, d. at C.C.C, Jan. 1.
„ Thomas Birch Freeman arrived at C.C.C, Jan. 3.
„ Foundation stone of the first Anamaboe chapel laid, Aug. 14.
„ L.E.L. (Mrs. Maclean) landed at C.C.C, Aug. 15; d. at C.C.C,
Oct. 15.
1840. Great fire at Anamaboe caused by Attarhii, Jan. 17.
1841. Rev. Thackery, Wes. Miss., d. at Dominasi, July 4.
„ Rev. T. B. Freeman started from C.C.C. for Kumasi the second
time, Nov. G.
1843. Appointment of Judicial Assessor,Capt. Hill, R.N., Governor, landed,
April 5.
1846. Rev. John Martin embarked for Badagry, Feb. 14.
1847. Governor Maclean d. at C.C.C, Dec. 13.
1849. Kwekii Akai, King of Appolonia, taken captive and brought to
C.C.C, Nov. 29.
1850. Kudwo Tchibbu, King of Assin, d. Nov. 11.
1851. Kweku Akai, King of Appolonia, d. at C.C.C, Dec. 28.
„ Joe Aggrey (Brupu), King of C.C.C, d. Aug. 31.
5, Nanamu god's grove deserted, Aug. 31.
,, Kwesi Anka, King of Donassi, fought Akobina Amoah, King of
Abura, Oct. 21.
1852. Poll-tax introduced on the Gold Coast, April 1.
„ First Wesleyan Ordination service, Rev. J. Martin ordained, Sept. 27.
1853. Tchibbu and Gabir sentenced, April IG; beheaded for treason at
Dunkwa, April 18.
„ Peace established between Dutch and British Commenda, Sept. 22.
1854. Christiansborg, Teshie, and Labodie towns bombarded by H.M.S.
Scourge, Sept. 13.
1856. Revs. Daniel and William West arrived at C.C.C, Nov. 18.
„ C.C.C inhabitants fought and revolted against King Kwofi Amissa.
Jan. 23 ; and deposed him, Jan. 28.
,, Major Orde interviews native kings and chiefs, Feb. 25; sails for
England, March 7.
„ Kweku Atta made King of C.C.C, Mar. 12.
„ Samuel Bannerman the elder, d. Mar. 27.
1857. Kwofi Affale proclaimed King of Anamaboe, Oct. 31.
1858. Mons Regis Factory plundered by Accra people, Jan. 24.
„ Kweku Attah, King of C.C.C , d. Feb. 20.
NOTABLE EVENTS. XXXI
1858. Essien, proclaimerl King of C.C.C., Mar. G.
„ Governor Sir Benjamin Pine returned to England, May 11.
1859. Prince W. 0. Qiiantabissa of Asanti, d. Jan, 8. .
„ Ordination of Solomon, Laing, and Ansah, Jan. IG.
,, Christ Church foundation stone laid, April 11.
1860. Gov. Ed. B. Andrews landed, April 19.
„ Bentir and Intsin fight at C.C.C., Nov. 25.
1861. Accra market opened by Major Brownell, July 18.
„ Tuafu and Piranko companies fight, Anamaboe, Aug. 18.
„ John Aggrey, prince C.C.C., d. Oct. 5.
„ Wm. Hackett, Q.A., arrived, Oct. 19.
1862. Mutiny of Gold Coast Artillery Corps at the garrison, C.C.C,
Jan. 17.
,, Earthquake on the Gold Coast, July 10 ; Accra nearly destroyed.
„ Lagos made a British settlement, Feb. 8.
18G3. Battle of Bobikuma, May 9.
„ PiOA'al African Gold Coast Artillery disbanded, Aug. 19.
1864. Asanti expedition, ammunition thrown into the river Pra; West
Indian troops returned to C.C.C. much reduced in numbers
by sickness, July 2.
„ Riot at Commenda, 18 men killed, Oct. 30.
18G5. Kwofi Affale, Amonoo XL, King of Anamaboe, d. Oct. 25.
„ Kwa Baman, Amonoo IIL, of Anamaboe, proclaimed king, Dec. 5.
„ Col. Conran landed at C.C.C, Aug. 19.
1866. Christ Church, C.C.C, consecrated, Jan. 19.
„ Essien (Crentsil), King of CCC, exiled to Sierra Leone by the
British authorities, Dec. 8.
1867. Anglo-Dutch Treaty signed, first exchange of territories, Feb. 5.
„ Kweku Dua, King of Asanti, d. April 7.
1868. Great Britain takes possession of Dutch Accra, Jan. 4 ; exchange
of Dutch territories completed, Jan. 13.
„ The natives of British Commenda object to exchange of temtories,
refuse the Dutch flag, and evacuate the town, Jan. 31.
„ The Dutch bombard British Commenda, Feb. 1.
„ Elmina War, commencement of; Kwaprow people attacked,
April 4.
„ Kweku Atta and Kwofi Amoa, chiefs of C.C.C, outlawed on sus-
picion of treason, April 5.
„ Elmina War : Fantis besiege Elmina, May 26.
1869. Amonoo IIL of Anamaboe deposed. May 28.
„ Amonoo IV. proclaimed King of Anamaboe, July 3.
„ Essien (Crentsil) returns from exile in Sierra Leone, April 14.
„ Dutch sailors held captives by Fanti kings, redeemed by the
Dutch Government, July 15.
„ Mankessim day-school opened, Julv 19.
„ Abbankrome destroyed by the King of Akumfie, Nov. 6.
XXXll KOTABLE EVENTS.
1869. Gov. Simpson opened Anaraaboe market, April 30.
1870. British Commenda fought the Dutch at Kwissi Krome, Jan. 10.
Jos. Smith, d. C.C.C, May 25.
„ Mrs. Moseley opened a female school at C.C.C, July 1 ; d. Dec. 22.
„ Afu Acka beheaded by some natives of Ahanta at night, July 22.
„ Amonoo IV., of Anamaboe, returned from Ahanta War, Sept. 17,
„ Asanti war chief Akempon, and other captives, released at C.C.C,
Oct. 3.
1871. Major Brownell returned from Kumasi, Feb. 13.
„ Sixty-two Fanti captives restored by King of Asanti, Mar. 13.
,, Small-pox epidemic began at C.C.C, May 13, and spread over the
- whole country.
„ Gov. Ussher left for England, July 18.
„ Creation of Fanti confederation at Mankessim, Nov. 24.
1872. Small-pox epidemic raging everywhere.
„ Ghartey IV., King of Winneba, June 11.
„ Chief Kwow Appia, Anamaboe, d. Aug. 7.
1873. Ankwanda destroyed by Dixcove men, May 28.
„ Elmina bombarded, June 13.
„ Sir Garnet Wolseley arrived C.C.C by ss. Amhriz, Oct. 7.
„ Col. Festing defeated the Asantis at Dwukwa, Nov. 3.
„ Asantis defeated at Abakrampa, Nov. 7.
1874. Asanti expedition, white troops arrived after the enemy had
crossed the Pra, Jan. 1.
,, Battle of Amoafur, Jan. 29.
„ Slavery abolished on the Gold Coast.
1876. Rev. T. R Picot visited Kumasi, Feb. 23.
,, Accra new Wesleyan Chapel foundation-stone laid, Sept. 7.
1878. First Wesleyan camp meeting, Akrofur, Jan. 13.
„ Mankessim Wesleyan Chapel opened, April 14.
„ Adooah's religious excitement at Mankessim.
„ Winneba Chapel opened, Sept. 14.
1879. Otu Ansah, King of Abura, d. Jan. 14.
„ Fatal riots and fight between Bentir and Anaffu, C.C.C, Sept. 9-11.
1880. Judge W. B. Cullyer arrived, Feb. 2.
„ Imbia and Bentoom, two of the Bentir rioters, hanged at Elmina,
the rope breaking thrice. Mar. 10.
„ Wm. Thompson, Court interpreter, d. at CCC, June 28.
„ W. S. Swatson, d. Winneba, Nov. 29.
„ Gov. Ussher, d. Accra, Dec. 1.
„ Capt. Davies, of Lagos, tried and acquitted at Accra.
1881. Asanti mission; Buakye Tsintsin, special messenger; golden axe
sent to Queen Victoria by Sir Samuel Rowe ; threatened Asanti
War, May 16.
„ Buakye Tsintsin visits Anamaboe on his way to Asanti, Sept. 14.
„ Saltpond Wesleyan Chapel opened, Oct. 2.
:n'Otable events. xxxiii
1881. Rev. T. Laing, C.C.C, d. Oct. 23.
„ Capt. Lonsdale visits Kumasi on a special political mission, Nov. 7.
„ Woodcock, Q.A., drowned at Accra, Nov. 4.
„ Roman Catholic Missions started on the Gold Coast, first station
Elmina.
1882. Chief Justice Sir James Marshall, K.C.M.G., retired on pension,
Aug. 1.
„ Comet: superstitious public commotion on its first appearance,
Sept. 25.
1883. Acting Chief Justice Bridgman, d. Accra, May G.
„ Judge Stubbins arrived, Aug. IG.
Miss Eliz. AValdron, C.C.C.,\l. Aug. 22.
„ 1st Elmina Wesleyan camp meeting, Nov. 11.
„ Abaadzi and Kromantsi fatal riots, Dec. 22.
1884. Blai, a notorious burglar in C.C.C, killed, Mar. 12.
„ Birwa Wesleyan chapel built, Mar. IG.
,, Chief Asimaku (Jas Idun) of Kwaman, d. April 14.
,, Chief Jos. Martin, Amanfur, near C.C.C, d. Oct. 23.
„ Kudwo Edukuma of Anamaboe, chief, d. Nov. 9.
„ Prince John Ossu Ansah of Asanti, C.C.C, d. Nov. 13.
1885. Beginning of Wesleyan Jubilee Memorial services, Feb. 15.
„ Gov. W. A. G. Young, d. Accra, April 24.
„ Awusie, chief of Dominasi, d. May 0.
„ Rev. Hayfron with Coppin visited Kumasi, May 29.
„ Isaac Robertson, Chief Kweku Twim, C.C.C, d. June 8.
„ Putubiw and Ekrofur fight, Nov. 9.
„ Akwasi Kaye, King of Denkira, d. Dwukwa, Dec. 3.
„ Joseph Dawson of Takwa and Wassaw districts, d. Aug. 10.
„ Ten Winneba rioters executed at Accra, Feb. 5.
1886. Okum (Joseph Green), chief of Egyaa, d. Sept. 27.
„ Jacob (Akai) Williams, d. Axim, Aug. 2.
„ The king and people of Adansi, defeated by the Kumasi and
Bekwai forces, come into the protectorate for shelter, June 15.
,, Assafu Egay, King of Dwabin, d. April 10.
„ Chief Justice N. Lesingham Bailey, d. Accra, May 29.
,, The great Accra disturbance, when a serious collision between the
inhabitants and the Houssa constabulary under Capt. Freeman
was narrowly averted, Oct. 10.
„ Telegraph cable landed at Accra, July 12 ; telegraphic communi-
cation with Great Britain completed, July 28.
.„ Hector Wm. Macleod appointed Chief Justice of the Gold Coast,
Oct. 21.
„ Akinnie, King of Akunfie, subpoenaed all the Fanti kings and
chiefs to meet at Saltpond, April 21.
„ King of Akwamu visits Accra, July 15.
1887. Kwesi Atta, chief of C.C.C, d. Jan. 3.
XXXIV NOTABLE EVENTS.
1887. Overland telegraphs opened on the Gold Coast, May 24.
„ Gov. Col. White visited C.C.C, June 11, and Anamaboe, June 23.
„ Queen Victoria's Jubilee celebrations on the Gold Coast.
„ Arrival at C.C.C. of J. M. Sarbah, the first native of the Gold
Coast called to the English Bar, Sept. 4.
Hon. G. F. Cleland, d. Accra, Nov. 26.
1888. Keturn of F. Egyer Asaam and S. K. B. Solomon from Eichmond
College to C.C.C, Sept. 9.
„ Kwesi Atta of Nanaam fame, d. Assafa, Aug. 10.
1880. Gov. Sir W. Brandford Griffith visited C.C.C, and at a public
meeting about Kudwo Imbra's election bocame the object of
much dissatisfaction, Jan.
,, Mouree fight : Inkoom and Bentir companies, Feb. 7.
„ Eoman Catholic mission started, C.C.C, June 4.
„ Over 700 people of Tavievie killed by Houssas, June 24.
„ Saltpond Hospital opened, July 8.
„ Kwoti Amissa, ex-king C.C.C, d. Aug. 29.
1890. The great Rev. Father Freeman, d. Accra, Aug. 13.
1891. West India troops removed from the Gold Coast, June.
„ Fosu pond at C.C.C. opened into the sea for the last time, July.
„ Commencement of the influenza epidemic, Dec. 1.
1892. Rev. R. J. Hayfron, Wesleyan Mission, d. Feb. 1.
„ Hon. J. Sarbah, d. July 4.
„ Rev. David Asante, Basel Mission, d. Akropong, Oct. 14.
1893. Great fire at Chama, when the chapel and half the town were
burnt down, Mar. 30.
„ Yow Antoo, chief of Sefwhi, left for Capo Coast, where he was
tried and convicted of murder and sentenced, about Feb. 4.
1894. Kobina Gyan, King of Elmina, returned home from exile, May 17 ;
d. Feb., 1896.
„ Messrs. C J. Bannerman and T. H. Mills, of Accra, called to the
English Bar, June 6.
„ Hon. Francis Chapman Grant, d. Oct. 4.
„ Asanti messengers to England, under J. 0. Ansah, reached C.C.C,
Dec. 10.
1895. General commotion over proposed Crown Lands Ordinance, Feb.
„ Asanti messengers leave C.C.C for England, April 3.
„ Gov. Maxwell relieves Sir W. B. Griffith, reaching Axim, C.C.C,
and Accra, April 3, 6, and 8 respectively.
„ Gov. Griffith leaves finally for England by Bonny, April 15.
,, Elliott, a European agent, and Johnson found guilty of conspiracy
to steal, and sentenced at Axim, May.
„ Enimil Kwow, King of Wassaw, d. Sept.
„ Beginning of Prempe- Asanti expedition ; arrival of Col. Sir Francis
Scott with Prince Christian Victor, Prince Henry of Battenberg
officers, and European troops, Nov. — Dec.
NOTABLE EVENTS. XXXV
1895. Adansi king and people return to Adansi after signing treaty, Dec.
1896. Prempe-Asanti expedition. Invasion of Kumasi, Prempe made,
prisoner with his chiefs and others.
„ Prempe arrived at ^C.C.C, and conveyed to Elmina by H.M.S.
Racoon, Feb. 2.
1897. Geo. E. Ferguson, killed at Wa, April 6.
„ Public agitation against Lands Bill, May.
„ Divisional Court established at Axim, June.
„ Sir W. E. Maxwell, d. Dec. 14.
1898. Eev. J. A. Solomon, d. Aug. 17.
„ Land Bill Deputation returned from England, Oct. 14.
1899. Abura and Paidu civil riot, Oct.
„ J. C. Clinton, d. at Axim, Nov.
1900. Otoo Brebu, King of Abura, d.
„ Siege of Kumasi through quest of the " golden stool " by Governor
Hodgson.
,, Gold Mining boom commenced, Oct.
„ Amonoo IV. of Anamabu, d. Nov. 23.
1901. Queen Victoria, d. Jan. 22.
„ Mutiny by Mendi soldiers from Kumasi, arrival at C.C.C., &c.,
Easter.
„ Small-pox epidemic at Axim, May to November.
„ Kofi Kayi, Chief of Himan, d.
1902. Kwamina Faibir, Chief of Tarkwa, deposed.
„ Coronation of King Edward VII., Aug. 9.
„ J. \V. Sey, d. at C.C.C. ; wreck of s.s. Stanleyville.
„ Railway reached Obbuasi.
,, Hearing of Concession, inquiries at Tarkwa.
„ King Tackie of Accra, d.
1903. Edmund Bannerman, solicitor, d. May 19.
„ Train first arrived at Kumasi, Oct. 1.
THE PRINCIPLES OF
PANTI CUSTOMARY LAWS,
PART I.
INTRODUCTION.
The Gold Coast Colony is situate on the Western Coast
of Africa, and is supposed to extend from Half Assinie
on the west to the river Volta on the east. No one knows
precisely what the boundaries of the Colony are, or how
far the so-called Protected Territories extend. Having
applied to the Colonial Office for information. Her Majesty's
Secretary of State for the Colonies expressed his regret that
he could not undertake to supply the information which
was desired.
There is every reason to believe, that in very ancient
times, the original inhabitants of this country were not
Fantis but a different people. It is a well-established fact
that Cape Coast, the Cabocors of Bosman and other ancient
writers, is situate in the Fetu country — a place formerly
governed by a Dey. When that state fell, the people were
obliged to submit to the laws, regulations, and customs of
the Fantis.
Meredith, the unfortunate Governor of Winnebah, thus
expresses himself concerning the Fanti people: "The Asantis
are threatening to pay us another visit, and it is the current
opinion, that the Fantis must be either subdued by the
2 FANTI CUSTOMARY LAWS.
Asantis, or means devised to restrain their ungovernable
conduct before the country is tranquillized, or before much
improvement is effected. The Fantis are now to be con-
sidered a large body ; they have brought under their sub-
jection, either by threats or favourable promises, a number
of small estates ; so that from Cape Coast to the extremity
of the Agoona country may be put down as governed by
the Fantis. To say that such and such places bear distinct
names is now merely to signify that they were formerly
inhabited by a distinct people."
Fanti, properly so called, begins from the Sweet Eiver
on the east of Elmina, and ends at the river Yolta, according
to Craickshank. But the Fantis are so connected with the
other inhabitants of the whole country, from Assinee to the
river Volta on the seaboard, and inland to and beyond Asanti,
wherever the Akan dialect is spoken, that, for the purposes
of this work, we are not far wrong in designating all the
inhabitants of the Protectorate, except Accra and district,
as Akan Fanti, or, shortly, Fanti. The language of the
country is undoubtedly Fanti — this is the language spoken
for general purposes and in everyday transactions ; — and it
is a fact worthy of notice that Fanti is the lingua franca
of the Gold Coast and adjacent countries.
Nearly a century ago the aforesaid Meredith remarked :
" The Fanti language is understood in all parts of the Coast
from Apollonia to Accra, and to a considerable distance
inland. It is understood in Ashanti, where the language
differs very little from Fantee. This is probably the effect
of the Fantees being great traders and travelling over so
many parts of the country. ... To behold a Fantee to
advantage, he must be seen pleading his cause ; his words
are accompanied with action by no means ungraceful nor
unsuitable to the subject ; and his attitudes and energy of
expression are by no means contemptible, but on the con-
trary, we will venture to say, highly interesting."
The Fanti people seem to be one of the tribes inhabiting
the country from very remote times. In a rare book
FANTI CUSTOMAEY LAWS. 3
published in the year 1665, in which appears an interesting
account of the first voyage from England to the Golden
Coast of Guinney in August, 1558, prepared probably for
" The Adventurers of Guinney," the anonymous author,
(Speeding ?) writes * : " Sailing a mile lower we come to
the chief place of traffick, called Mourre, and a mile below
that is Infantin, and not far from that is the Castle of
Cormantin." There is not the least doubt that the ancient
sea coast town of Anamaboe, the leading Fanti state, is what
our ancient author called Infantin — a correct expression,
when one remembers that even now, according to one's
dialect or inclination, so he says Mfantsi, Nfanti, or Fanti.
The Akan language is nevertheless the parent language
— the language of diplomacy and courtiers.
The people of Wassaw, Denkera, Fanti Assin, Akim,
Akwapim, Asanti, Elmina, and those of the adjacent pro-
vinces and districts, speak dialects of the same language,
more or less corrupt. This fact favours the belief, and is
one of the facts adduced to prove the assertion, that the
inhabitants of these districts, provinces, and kingdoms are
sprung from the same source, and are branches of the same
family.
But when one compares their customs, usages, and
domestic as well as political institutions, and finds them
in the main identical, one does not hesitate to say these
inhabitants had a common origin. Well-established tradition
has it, that the people were originally living in the regions
of the Kong Mountains, and somewhere in Central Africa.
Unwilling to turn Moslems, and driven from their homes,
they founded a state Takieman ; but, through some reason
or other, a portion of Takieman betook themselves towards
the coast. This portion came to be referred to as Takieman
fa atsiwfu — that is, that portion of the Takiemans who
have gone from the main body. In process of time this
* See extracts from several ancient works in " Fanti National Con-
stitution," by the author; the new set of decided cases published in which
is hereinafter referred to as 2 Fanti Law Keport.
4 FANTI CUSTOMARY LAWS.
long, round-about designation became contracted into
Mfantsi, or Fanti.
The Asanti people were so called on account of their
stubborn and obstinate nature. We cannot find out what
name was borne by these people of Takieman before the
general splitting up. The words " Akan " (Akanfu) arose
probably from the way the Mfantsifu referred to those who
remained at Takieman. The word Akan to our mind means
a remnant ; we have heard these people speak of themselves
as Kanye, a contraction of Kannyimpa, that is, a person
who has remained behind.
Another circumstance tending to strengthen the theory
of a common origin is the division of tribes or clans.
The whole of these peoples are divided into twelve tribes
or clans, wholly irrespective of their several and distinct
nationalities. Individuals belong to one or the other without
natural distinctions, and it is a characteristic of each tribe
or clan, that the members thereof call each other brothers
and sisters, father and mother. And when the persons are
free (Dihi) it is unusual for them to intermarry. Cruick-
shank, writing on this institution, says (vol. i. 49), " A feeling
of attachment to each other exists between individuals
belonging to these clans, even although of different nations,
and we have known instances of inheritances claimed and
obtained upon the plea of this relationship, to the prejudice
of a blood relation, where there has been no male to come
to the succession."
The people of each clan have their own separate burial-
place, unite in funeral rites and customs, and when a great
liability is to be met, these clansmen have been known,
cheerfully and readily to contribute each according to his
means. And often doth the way-lost weary sojourner in
a most unexpected place, through this relationship, become
the recipient of free hospitality. As an instance in point,,
Beecham records a statement of Mr. William de Graft to
the effect that the " chiefs of the several families (clans) are
distinguished by certain significant emblems, equivalent to^
FANTl CUSTOMARY LAWS. 5
the heraldic signs used in European countries. Mr. De Graft
himself is of the Twidan or ' tiger ' family, and he distinctly
recollects old Baffu, a chief of the same family at Anamaboe,
whose sign of office (his umbrella) was surmounted by a
figure of the tiger. The emblems of the other families are
in like manner figurative representations of the names which
they respectively bear; wherever the distinction between
the families is still preserved or is supposed to exist the
brotherhood is uniformly recognized. De Graft has known
his own father attend the funerals of individuals for the
sole reason that they were members of the same original or
patriarchal family with himself; and when he resided, a few
years since, at Dixcove, he was informed that, some time
previous to his going thither, the King of AppoUonia sent
a present of rice to the inhabitants, when they were suffering
from scarcity, as an acknowledgment that he and they were
all members of the Ntwa or 'dog' family. On another
occasion, De Graft, being sent by the Governor to publish
and explain a proclamation to the natives, was received
with the greatest kindness by the chiefs of the Twidan or
' tiger ' family, who invariably, wherever he met with them
during his journey, which occupied three months, claimed
him as one of their own relatives."
As far as can be relied on, these are the principal clans,
divided sometimes into three principal classes : Akonna,
Abrotu, Aburadi, Nsonna, Annona, Yoko, Ntwa, Abadzie,
Appiadie, Twidan, Kwonna, and Dwimina. It goes without
saying that the Akanfu have a different name to some of
these clans.
Perhaps it is not a vain dream to hope a time is coming
when the several nationalities, united under a beneficent
and enlightened Government, will develop and foster the
clan feeling and instincts, which in times past have been
as free from the impulses, which have degraded the African
nature, as great in the qualities, which have ever graced
manhood in all ages and under all climes.
Others, who have studied this interesting subject, say the
6 FANTI CUSTOMARY LAWS.
various tribes above mentioned were comprehended in seven
great families, in which the members still class themselves
and recognize each other, without regard to national distinc-
tions, viz. :
1. Nsonna, in some localities known as Dwimina.
2. Annona, Yoko, Aguna, or Eguana.
3. Twidan, Eburotuw.
4. Kwonna, Ebiradzi, or Odumna.
5. Ahuradzi, Eduana, Ofurna, or Egyirna.
6. Ntwci, Abadzi.
7. Adwinadzi, Aowin.
In this country the system known amongst jurists as the
patriarchal system prevails. The(Egya orPenin) father is the
head of his family. Within his compound he reigns supreme
over his younger brothers and sisters, his wives and children,
his nephews and nieces, and his grandchildren ; and if he
be a man of wealth, his servants, pawns and slaves. So
long as a father who is free lives, all his children and grand-
children, by a free woman, not residing with their uncle, are
under his authority and power. Married people here have
no community of goods, but each has his or her particular
property: the man and his wives generally adjust the
matter together, so that they are able to bear the charge
of housekeeping, while the clothing of the whole family is
at his sole expense.
Bosman, who wrote in 1700 his " Description of the Gold
Coast of Guinea," says, " On the death of either the man or
the wife, the respective relations come and immediately
sweep away all, not leaving the widow or widower the
least part thereof, though they are frequently obliged to
help to pay the funeral charges."
We mean by servants persons who are being trained or
brought up in the house, as well as persons who are working
in the house for their living. Among the people, one often
sees persons in the same position as Jacob held in the house
of his uncle Laban.
Slaves. — On proper analysis of the incidents of this
FANTI CUSTOMARY LAWS. 7
condition, one is quite reluctant to give the name " slave "
to persons in bondage. The word " slave," to the European
ear, conjures up horrible atrocities — kidnapping, murder,
bloodshed, fire, plague, pestilence, famine, whips and
shackles, ruined and desolated villages, and all that debases
and makes man worse than the brute beasts.
The Fanti terms for a person in a state of bondage are —
1. Tenni, that is, native of the Intar country.
2. Donhor, said to be corruption of words meaning
captive of an army.
It has been already stated the Fanti/it and Akan/u have
one origin, and as such were free persons.
As wars take place and war captives increase, slavery
bears a recognized state, and the issue of a female slave
continue slaves.
The terras Tenni and Donkor are reserved exclusively
for foreigners who are in bondage. There is another term,
Akuwaa (feminine, Afunaba), meaning a dependent. Like
the Hebrews of old, there is a distinction between bondmen
captured in war or purchased from another distinct tribe,
and bondmen of the same tribe. Great numbers of the
former were annually imported from districts outside Asanti,
where these persons were either captured in war, or were
received by way of tribute from conquered states by the
Asantifu. These, on being sold, are they who can be
properly called slaves. When the iniquitous and accursed
slave trade stirred up the cupidity and all the degrading
passions of men, it became highly expedient for every
person to be under the protection of a powerful neighbour ;
it became absolutely necessary for every individual to
belong to a household. At this period, clan feeling and
clan hospitality becoming weakened began to decay, because
cupidity and blighting avarice were supreme. The solitary
traveller was no longer safe. The hunter who had wandered
too far from home in pursuit of game, the farmer on his
secluded farm, women going to market or to the spring,
were ruthlessly captured and sold into foreign slavery.
8 FANTI CUSTOMARY LAWS.
Then it was that parents, spurning all holy impulses, and
dead to natural love and affection, sold their very offspring
into foreign bondage. But through all these horrors, through
fire and sword and bloodshed, which desolated many a
prosperous village, amid all the wailings of the unhappy
captives, the distinction between the alien slaves and native
bondmen was well marked, and never once do we hear
any native in bondage called a slave, a Donkor. It is only
misfortune that has brought him into that condition, and
though such person cannot interfere in the affairs of his
own family, being regarded for the time as dead, nevertheless
as soon as he regains his freedom, whether by his own
exertions or by the aid of his family, or by the favour of
his master, at that very instant he is reclothed with his
family rights, and he returns to the same position in his
own family as though he had never been in servitude to
another, and as completely as the Eoman Law, by Jus
postliminii, restored to the original owners, property taken
in war and retaken from the enemy, and re-established in
all their former rights, all captives who had returned to
their own country.
Consulted by Judicial Assessor Chalmers, in the case of
Kendall v. Quahina Abakan, August 25, 1871, Mayan and
Amoah, Chiefs, said: "According to custom, when a man
is married and the woman dies, he is never entitled to the
property of the woman, and in all cases that a man took
a woman without marrying her properly, and the woman
had a child by him, the woman dying, the man would not
be entitled to keep the child, but the mistress would. The
child must live in the father's house. In case of son of
slave, he lives in his mistress's house, but visits his father's
house.
" By the Court : Do persons who have been made free
retain any relationship to the family of which they were
members ?
" They call themselves family. If the slaves all belonged
to one country and they happened to be with one master.
FANTI CUSTOMARY LAWS. 9
and the master set them free, they retain relationship to
one another because they all belonged to one country ; though
the master had made them free, they retain relationship to
their master, because they did not belong to the place where
they were freed. We speak of the sixteen girls of Mr.
Hutton. If a slave was a Fanti, when he was freed by his
master he goes to his relations ; but if not a Fanti, but
Donkor, he retains his relationship to the master because
he knew no one else and would not find his way to his
country, and if his master had any relations he sticks to
them. Persons freed have right to go where they like, but
their master looks after them that they may not be molested."
And judgment was given in accordance with what was so
laid down by the two chiefs. And as recently as August
2, 1895, Assistant Puisne Judge Hayes Piedwar followed
Judicial Assessor Chalmers, and accepted the correctness
of the custom in Cromtuell v. Arha and Krahha, Insarkun
claimant.
The freeborn inhabitant enters into a state of bondage
from several and various causes. As in feudal Europe,
unprotected peasants commended themselves to a powerful
or influential neighbour, even so in former days on the Gold
Coast, persons and whole families, threatened with danger
or pressed by hunger in a time of famine, were accustomed
to throw themselves at the feet of one who could protect
them from the foe, give them sustenance, or employ them.
Persons like these become members of the family they have
appealed to, and become merged therein in process of time
by marriage and other ways.
Others, pressed with debt, give up themselves and all
their possessions in pledge to the man who would pay the
whole. Persons of this class do not lose their clan dis-
tinction, even though they remain in bondage for many
years. They are members of the master's household, but
not of his family.
There is another class of persons, who, for some great
service rendered to them, their relations or ancestors, are
10 FANTI CUSTOMARY LAWS.
bound to serve their benefactor and his family. These
persons, whose services are transferable from master to
master, and who may be said to be a species of mercenary
soldiers, swell their master's retinue, defend his person, and
magnify his importance. In some places these persons are
bound to help their master at the season of tillage, sowing,
and harvest.
Standing between the slave and the bondmen is the
Pawn, whose lot is the hardest.
Before pawning was abolished, a person in embarrassed
circumstances wishing to obtain a loan, usually placed one
or more of his family or slaves in temporary bondage to
another. Says Cruickshank, " The terms of this contract are
that the pawn shall serve his new master until such time as
the person pawning him shall make good the sum lent, with
fifty per cent, interest ; the services of the pawn, even if
they should extend over a great number of years, counting
for nothing in the liquidation of the debt. If a woman has
been pawned, her new master has the right to make her
his concubine, and her children continue to serve him
also."
It must be remarked here, that Cruickshank is in error
as to the master's right to concubinage. As a matter of
fact, unless it was distinctly stipulated at the time of giving
the pawn, that the master or his successor may so treat the
female pawn, any improper behaviour of this nature by
the master or any of his blood relatives or any of his
servants invariably cancelled the debt, and discharged the
pawn and her family from all liabilities.
" A father cannot pawn his child without the con-
currence of the mother's relations, unless the mother herself
be his slave. Neither can a mother pawn her child without
the father's consent ; but if he cannot advance the sum
required, then she can do so. We have always regarded
this system of pawning as much worse than actual slavery,
and we have seen but too many of its victims irrecoverably
reduced to perpetual bondage."
FANTI CUSTOMARY LAWS. 11
There are many instances where slaves have succeeded
to their master's property, but a pawn is always considered
a stranger, and never do we hear of one so succeeding to his
master.
Bosman, the Dutchman writing in the year 1700, makes
mention of the several social degrees which he had observed,
namely : —
(1) Kings or Captains.
(2) Caboceros.
(3) Rich men.
(4) The common people ; and, lastly,
(5) Slaves.
What he wrote is so accurate, and is in the main so
true now as then, that it claims attention, since it shows
the conservative nature of native institutions. Says
Bosman, " I have observed five degrees of men amongst
the negroes, the first of which are their kings or captains,
for the word is here synonymous.
" The second, their caboceros or chief men, which, re-
ducing to our manner of expression, we should be at a job
to call them civil fathers, whose province is only to take
care of the welfare of the city or village, and to appease
any tumult.
" The third sort are those who have acquired a great
reputation by their riches, either devolved on them by
inheritance or gotten by trade.
" The fourth are the common people employed in the
tillage of wines, agriculture, and fishing.
" The fifth, and last, are the slaves, either sold by their
relations, taken in war, or come so by poverty.
" The dignity of king or captain in most of these
countries descends hereditarily from father to son, and, in
defect of issue, to the next male heir, though sometimes so
much regard is had to his riches in slaves and money, that
he who is plentifully stored with these is often preferred to
the right heir."
King is not synonymous with captain. Ohin means
12 FANTI CUSTOMARY LAWS.
chief ; Oman-hin, king ; Safu-hin, a captain. The con-
fusion which exists in many of these things, arises solely
through the faulty interpretation of incompetent, ill-taught,
and stupid interpreters. The headman of a village, merely
as such, is not, and can be only slovenly called Ohin, a
king. If he is a captain under some king, he is called so-
and-so's Safu-hin ; but his usual and most correct appella-
tion is Odzi-kro.
The foreign term Caboceer has fallen into disuse, and
the ordinary term Omanfu is not so often used in these
days as Penyin, Penyinfu. The persons holding this office
are commonly limited in number, and are elected thereto.
See Cruickshank, vol. i. ch. 9.
A person reputed rich by inheritance or trade is called
Brempon. But unless such a person is successor to a stool,
his wealth alone cannot make him the occupant of a stool.
The king of a district, with his town councillors, can create
a stool, and thus confer on the occupant a political position.
Slavery has been abolished as from December 17, 1874,
by Ordinances 1 and 2 of 1874, but it is provided that
" nothing shall be construed to diminish or derogate from
the rights and obligations, not being repugnant to the law
of England, arising out of the family and tribal relations
customarily used and observed in the Protected Terri-
tories;" and this clause received judicial interpretation in
Bimha v. Mansa, 1 F. L. B. 137.
Along the coast are towns, which, for martial purposes,
are divided into companies. The one at Cape Coast Castle
is fully described in the letter written by the Mayor of
Cape Coast Castle to the Chief Justice, dated November
29, 1859.
" Sir, — I consider it my duty to forward, for the
information of your Honour and of the Executive Govern-
ment, the following circumstantial account of the events
leading to and connected with the recent unhappy dis-
turbances in the town of Cape Coast.
FANTI CUSTOMARY LAWS. 13
" 2. Your Honour will better understand the statement
I am about to lay before you, if I preface that statement
by a brief account of the nature and organization of those
bodies known as town companies.
"3. The town of Cape Coast is divided into seven
companies or quarters.
" These are : No. 1, Bentil ; No. 2, Anafu ; No. 3, Intin ;
No. 4, Inkoom; No. 5, Brofu-mba (artificers); No. 6,
Volunteers ; No. 7, Amanful.
" Each company occupies its own part of the town, and
although some persons properly belonging to one quarter
sometimes happen to reside in another, yet, on the occasion
of any outbreak, these go up to that quarter to which they
originally belong.
" 4. The companies are commanded by Saphohins, or
chief captains. The chiefs have nothing to do with them,
nor indeed has the king himself. The companies may be
described as so many little republics, each independent of
the rest, and having its own officers, laws, and customs.
Over every company there is a Saphohin, and he (called
Supi) has under him subordinate captains, who are elected
by the companies. These captaincies may be said to be
hereditary in some sort, more from custom than by law ;
the companies generally preferring to elect the sons of
deceased captains to succeed their fathers. When a
company makes any new law, it is done in a public
assembly of themselves, and communicated to the other
companies, who, if they have any objections to raise, do so
at once, when the matter is discussed.
" 5. The Saphohin, or chief captain (Siqn), holds
supreme authority in every company. He is the sole
depositary of the power of the company, and the ex-
ponent of their wishes.
" 6. Each company has its flag ; but besides its regular
* company flag,' each company has in addition a variety
of fanciful flags with devices on them, intended to re-
present some event or circumstance connected with the
14 FANTI CUSTOMARY LAWS.
history of the company that carries them, or of some rival
company.
. " 7. When making their grand customs, each company,
if it has no quarrel with any others, passes through the
various quarters of the town with its original ' company
flag,' but when there is a desire to convey defiance or
insult, a company, in passing through the quarter inhabited
by the company whom it is desired to annoy, will there
display a flag having some device ostentatiously offensive.
" 8, In the same way, whilst each company has its war-
songs, which, without being offensive to other companies,
are, of course, self -laudatory, each has also a habit of exciting
rival companies by singing insulting songs at the same time
that the objectionable flags are paraded.
" 9. From time immemorial these flags and songs have
been the cause of ill-feeling, strife, and bloodshed, as has
unfortunately been the case in the present instance."
This letter was written at the time of a serious civil
fight at Cape Coast Castle, which resulted in the case of the
Queen v. the Captains ofBentil and Intin Companies, where-
in the Chief Justice delivered the following judgment : —
" The Court also requires that all the companies of the
town shall, within one month, send into the fort such
flags as they wish to use in future, for the approval of the
Governor, who, if he disapproved, will substitute some other
in its place ; and the patterns and colours of all that may
be approved will be registered in the secretary's office in
the fort, and the exhibiting of any other flag by any com-
pany will be rendered and proclaimed to be utterly unlawful,
subjecting the persons doing so to heavy penalties. In the
mean time, the use of any new flag or flags not now in use
is hereby strictly prohibited.
"The king's authority while it remains must in all
lawful matters be obeyed, but there are ample means of
appealing against any unjust or oppressive exercise of it."
This judgment clearly shows how often laws are enacted
FANTI CUSTOMARY LAWS. 15
in these days in absolute and entire ignorance of what has
been done in times past. And viewing events since then,
one is drawn to the conclusion that, had this judgment been
enforced, many a fatal civil fight would have been averted,
many lives saved, and the new ordinance about flags and
tribal emblems, which has not yet made civil fights im-
possible, better drafted in every respect.
CHAPTER T.
FANTI CUSTOMARY LAWS.
Fanti laws and customs apply to all Akans and Fantis,
and to all persons whose mothers are of Akan or Fanti race.
If a person travel to or reside in a foreign country, he
does not lose the benefit of the laws and customs of his
native country, province, or district.
As a general rule, the right or property of a Fanti is in
no way forfeited, diminished, impaired, or afifected by change
of religious opinions. But where the persons entitled to
the immediate succession of an ancestral property do not
acquiesce in, and the dependants raise an objection to, a
change of religious opinion or belief, an absolute bar is thus
raised to succession to stool property. Where a person,
head of the family, changes his religious belief and becomes
a Christian, he thereby becomes liable to be removed.
For instance —
Kudwo, the eldest nephew of his uncle, who is possessed
of a large ancestral stool property, forsakes heathenism for
Christianity. In his family, ancestor worship is practised,
and at the stool festival every year, the head of the family
goes through the necessary sacrifices and makes the libations
to the spirits of those departed this life. In such a case,
the other nephews are preferred to Kudwo, who is passed
over.
16 FANTI CUSTOMARY LAWS.
But where Kudwo, while on the stool, changes his
religious belief, he must depute some one to perform the
necessary stool ceremonies, and if he neglect so to do, his
negligence will be a good ground for removing him from
the stool.
Colour is no bar to the right of succession by the native
laws and customs {Hntton v. Kutah).
By the Supreme Court Ordinance, 1876, sect. 19, native
laws and customs are to be enforced in certain specified class
of cases, and sect. 92 provides for calling in the aid of
Keferees on native laws and customs.
A learned writer has recently said, in discussing Indian
topics, it cannot be too strongly asserted that there is great
danger in too indiscriminately applying the technicalities of
the English Law to a country like India, whose institutions,
popular traditions, and prejudices are so entirely different
from those of England. Indian customs are not to be tested
by the arbitrary rules peculiar to English law, but rather,
as Sir Erskine Perry, Chief Justice, well remarked, by the
rules of universal applicability.*
If such caution is still necessary in discussing Indian
customary laws, much more is it essential when investi-
gating any customary law, or custom, or usage, or local
institution in any part of the Gold Coast. We justify all
references to India and Indian decisions in this work by
pointing out the remarkable resemblance and similarity
between the customs and usages of some parts of India and
* " This custom has not only been attacked on the score of unreason-
ableness, but it has been tested by every one of the seven requisites which
Blackstone has laid down for the validity of an English custom. It may be
asked, however, and I did ask why the various special rules which have
been laid down in any particular system, and some of which clearly have
no general applicability, should be transferred to a state of things to which
they have no relation. ... I apprehend that the true rules to govern such
a custom are rules of universal apphcability, and that it is simply absurd
to test a Mohammedan custom by considerations whether it existed when
Uichard I. returned from the Holy Land, which is the English epoch for
dating the commencement of time immemorial " (Perry's Oriental Cases,
p. 120).
FANTI CUSTOMARY LAWS. 17
those which are herein treated. To give only one instance :
the rule of succession in Malaba and among the Canarese is
through the female line, and almost identical with the Fanti
Customary Law of succession. Moreover, it was in India
that the eminent jurist Sir Henry Maine pursued his
researches and studies in jurisprudence ; and there, for a
longer period of time, Indian judges, afterwards members
of the Queen's Privy Council, had been administering
Customary Law and testing the usages of several semi-
civilized communities.
It has been said that to the great and eminent judge and
profound scholar Sir William Jones belong the renown and
credit of first havinor directed the attention of the British
o
Government to the vital importance, nay, the imperative
duty of allowing the natives of India the benefit of their
own laws and customs.* Outside India and the great East,
* "In a letter of 19th March, 1785, addressed to Lord Cornwallis, the
then Governor-General of India, he said nothing could be more obviously
just than to determine private contests according to those laws which the
parties themselves had ever considered as the rules of their conduct and
engagements in civil life, nor could anj'^thing be wiser than by a Legislative
Act to assure the Hindu and Mussulman subjects of Great Britain that
the private laws which they severally hold sacred, and the violation of
which they would have thought the most grievous oppression, should not
be suppressed by a new system of which they could have no knowledge,
and which they must have considered as imposed on them by a spirit of
rigour and intolerance."
As a result of his great efforts in India as well as in England, the
British Parliament, by 21 Geo. III. cap. 70, and the Indian Legislature,
by Eegulation IV. of 1793, enacted that in suits regarding inheritance and
succession to lands, rents and goods, marriage caste, and all matters of
contract, and dealing between party and party, the laws and usages of
Mohammedans in the case of Mohammedans, and the laws and usages of
Hindus in the case of Hindus, should constitute the general rules by which
the judges were to form their decision. This principle has ever since con-
trolled Indian legislation; thus the Punjab Code Act IV., 1872, directs in
sect. 5, "in questions regarding succession, special property of females,
betrothal, marriage, divorce, dower, adoption, guardianship, minority,
bastardy, family relations, wills, legacies, gifts, partition or any religious
usage or institution, the rule of decision shall be : —
(a) Any custom applicable to the parties concerned, which is not
C
18 FANTI CUSTOMARY LAWS.
the Gold Coast, which formerly included Lagos, is the only
Crown colony in the British Empire to which this beneficent
Indian principle has been extended, for neither for Sierra
Leone nor the Gambia was any provision made for the
recognition of native law or custom or any local usages.
The Supreme Court Ordinance, having noticed the existence
of native laws and customs, practically imposes a duty on
the courts to give effect to them, in the class of cases therein
specified, and, to enable the courts so to do effectually, by
sect. 92 above mentioned provides for the assistance of
referees. It cannot, therefore, be correct to say, as it has
been sometimes said, that the native laws and customs are
foreign matters which, unless proved, cannot be recognized
or noticed by a judge. For if that view be correct, then
what can be the necessity or effect of the concluding
sentence of sect. 19, " that no party shall be entitled to claim
the benefit of any local law or custom if it shall appear . . .
that such party agreed that his obligations . . . should be
contrary to justice, equity, or good conscience, and has not been by this or
any other enactment altered or abolished, and has not been decreed to be
void by any competent authority ;
(&) The Mohammedan law, in cases where the parties are Moham-
medans, and the Hindu law, in cases where the parties are Hindus, except
in so far as such law has been altered or abolished by legislative enact-
ment, or is opposed to the provision of this Act, or has been modified by
any such custom as is above referred to.
" Sect. 6. In cases not otherwise provided for, the judges shall decide
according to justice, equity, and good conscience.
" Sect. 7. All local customs and mercantile usages shall be regarded
as valid, unless they are contrary to justice, equity, or good conscience,
or have before the passing of this Act been declared to be void by any
competent authority." Among many decisions bearing on this matter may
be noted that of Mr. Justice Lindsay : " I think the courts are bound to
inquire whether a custom existed even when not specifically pleaded ; and
only when the parties specifically declare they desire to abide by Moham-
medan or Hindu law, can the courts in my opinion set aside the question
of custom. It is the intention of the Legislature that the courts shall
find out by oral examination the points in issue between the parties,
whether they consider law or custom applies to their case and frame issue
accordingly."
FANTI CUSTOMARY LAWS. 19
regulated exclusively by English law " ? * Applying the
method of Mr. Justice Lindsay, perhaps the court should find
out the native law or custom, if any, bearing on the matter in
dispute before it ; next, discover whether the parties agreed
to be bound by English law, and whether such English law
was to bind them exclusively or partially.
The comparatively modern practice of parties to a suit
<3alling experts as witnesses to prove what is the custom, is
of doubtful value, and has been the means of some erroneous
opinions finding their way into the records of the court as
native laws and customs. Having learnt the history of some
of them, care has been taken to exclude the same from the
cases reported in this work. It is always safer and better
for the court, after the parties have stated the native laws
or customs they rely upon, to seek the assistance of others
who may be versed in the native laws and customs, and to
do so in the way known to the judicial assessors and the
person who framed rule 92, who knew the practice, subse-
quently followed by Mr. Justice Hector Macleod.
But the question that demands an answer arises : what
is meant by the terms " any law or custom," " such laws
and customs," "local law or custom" in the said sect. 19;
and " native law or custom " in sect. 92. As far as can be
ascertained by research in the records at Cape Coast
Castle, and by inquiry at every available source, only
once has the court endeavoured to throw light on the sub-
ject, and this was in Welheck v. Brown^ before the Full
Court of Appeal. Unfortunately that court was not unani-
mous, for Mr. Justice Macleod, an eminent and most pains-
taking judge, who had a varied experience in the courts
at Lagos, Accra, and Cape Coast Castle, and whose know-
ledge of native customary laws and the customs and usages
of the people was certainly equal to, if not greater than,
that possessed by the two other judges of the Court, being
of contrary opinion, distinctly said, " I do not find it neces-
sary to give any opinion as to the meaning of the words
* Lonjdon v. Sagoe, 2 F. L. R. 97. f 1 F. L. R. 185.
20 FANTI CUSTOMARY LAWS.
native custom, and I must not be understood as coinciding
on that point with the Chief Justice."
It will be noticed that the judges, who essayed to dis-
cuss the point, confined their remarks to native customs;
they said nothing about native law. The reason may be
that the point was not raised or was not before the court ;
but jurists, however, have always felt a difiiculty in so
defining the term Law, as would make it comprehend not
only express enactments by a sovereign legislature, which
Austin and his disciples alone admit to be law properly
so-called, but also those rules regulating conduct and
usages, which are habitually acted upon in the ordinary
affairs of everyday life, in communities having no regular
political organization, without at the same time confusing
mere notions of abstract morality which do not even possess
the essentials of what Austin calls positive morality.
It is universally admitted that wherever there is an
assemblage of persons united together for common purposes
or ends, there must be some notion of law ; for mankind
have, as Cicero observed, a genius for law. " That there
must be a supreme power in every state or in every
self-dependent community," says Paterson, "is an axiom
which cannot be explained, but which must neverthe-
less be assumed. Even in the rudest forms of state ther&
is a similar power, whether lodged in the patriarch or the
elders of the tribe, and it is usually found to assume by
turns a legislative, a judicial, and an executive phrase. This
supreme power is only a synonym for that human voice,,
which cannot be resisted by any one individual or by any
minor combination of them short of the majority ; for when-
ever one resists it, all the other individuals readily combine-
consciously or unconsciously to uphold it."
The family group being the unit of society among the
peoples on the Gold Coast, Asanti, and neighbouring states,,
in the head or patriarch of the family resides the supreme
power. The towns scattered over the country have grown
from villages originally founded and occupied by single^
FANTI CUSTOMARY LAWS. 21
family groups, the members whereof, bound together by
ties of kindred, possessed rules of life naturally simple,
which were observed more because they were in accordance
with the general notions, views, and convictions obtaining
or current among them, than from any undesirable results
their violation or breach may cause. As the family group
gets larger, and the village community grows, and the
households increase in number, the public or general affairs
of the community are guided by the patriarch of the family,
now the headman of the village, who acts with the assist-
ance of the village council composed of the heads of the
other family groups or households and others, usually old
men. The village council thus represents the fountain-
head of the common life, and its determination finds
expression in the popular voice.*
There exists in such community much of those positive
rights and obligations constituting that Austinian Positive
Morality, which may be called the Customary Law, and
which each person can enforce against his neighbour, either
by means of the village council sitting and acting judicially
as a local tribunal, or by invoking, as already stated, the
silent force of the popular sanction according to an usage
long established or well known, all of which, more or less,
possess an imperative attribute, and therefore rightly par-
take of the character of law. " To restrict the term law/'
says Mr. Eattigan, " to statutory law would be to throw all
early or semi-civilized communities into an absolutely law-
less condition, which is not inconceivable but diametrically
opposed to all we know concerning them, and especially of
a large and typical class still ex:isting in India. While on
the other hand, to attempt to make a definition sufficiently
flexible to include statutory as well as Customary Law, is
to be reminded of the Eoman jurist, omnis definitio in iure
civile periculosa est. It may, however, be said that law in
the earliest stage of its existence represents nothing more
* Amfoo r. Tardonuah, 1 F. L. R. 198 ; Ohamhra v. Ewea, 2 F. L. R.
64 ; and Fanti Customary Laws, p. 244, 1st Edition.
22 FANTI CUSTOMARY LAWS.
than the will or conviction of a community, whereby a
given rule is adopted by common consent to govern the
conduct of its members in their relations with each other."
We take consent to mean, not one of necessity formally
given at a particular time or place, or promulgated by a
person or body of persons having power, or whose duty it
is so to do, but a common consent which prompts the
repetition of a single action by others, or which is evidenced
by that tacit acquiescence in the existence of a rule, which
commending itself to the individuals composing the com-
munity, is found to be of the greatest utility by such indi-
viduals shaping their conduct or guiding their transactions
in consonance with or within its scope. As by repeated
course of action a habit is acquired, so from isolated
instances an usage springs up, which in process of time
comes to be the Customary Law ; or as Professor Newman
hath it somewhere, "Law is everywhere built on usage," an
opinion perhaps identical with the train of thought sug-
gested by Herbert Spencer when he speaks of the " gradual
establishment of law by the consolidation of custom.
Every new member of the family or village community at
his birth, or admission by purchase before the abolition of
slavery, or by commendation or any method, finds existing
general usages which regulate his rights and obligations,
and to which, under pressure of circumstances or the
popular sanction, as already stated, he must submit. Sub-
mission or war to the knife is the substratum of all human
companionships, and the new comer, on his arrival, must
submit to what he finds already existing. As the original
community gets larger, as aforesaid, many of the rules
formerly observed within a small circle of persons gradually
acquire a wider operation, moulding and controlling the
habits of the people within its sphere. By such process,
say some writers, arose that large body of undigested
Customary Law, which, although evidenced by long usage,
is founded really on a pre-existing rule sanctioned by the
will of the community, and which in the history of every
FANTI CUSTOMARY LAWS. 23
nation is found to be long anterior to the more formal
written law. Tiiis process is still going on throughout the
Gold Coast, and the regions over which the Asanti sway
once extended. As law is said to derive its force by pub-
lication, so is it correct to say that Customary Law exists
by usage. The Customary Laws on the Gold Coast are not
written laws, by oral tradition they have been handed
down, and they are developed by usage. It will be found
in the native tribunals, that whenever there is any new
case, the like of which had not been known previously, the
difficulty is got over by making a new rule, concealed
under a fiction that it is only an old pre-existing custom,
perhaps fallen to the background, that is being applied,
restated, and made prominent.
Besides this more general source of the formation of the
Customary Law, are the comparatively few orders or com-
mands issuing from the chief or headman of a tribe, which
on examination will be found to be negative in character.
Such laws usually forbid the commission of certain speci-
fied acts or the pursuit of a certain line of conduct under
penalty, and state that a person contravening such com-
mand shall be considered to have broken or taken in vain
the great oath of the native tribe, village community, or
ruling power, as the case may be, and so subject to all
the pains and penalties issuing therefrom. In the same
manner, the headman of a clan, or the senior members
thereof, can make an order, which has the force of law
bindino- on the clan, and which the members are bound to
obey. If such law is against the interest of the clan, or is
considered oppressive, it can be only repealed by the head-
man and senior members, or, on their being lawfully
removed, by a new headman with other senior members
repealing such obnoxious law. So also are laws made
for a company by the head captain, acting with and by
the consent of the committee of captains having the
management of the company affairs. Persons offending
against or disobeying such laws are liable to be expelled
24 FANTI CUSTOMAKY LAWS.
the clan or company as the highest punishment. Laws
emanating from such an ascertainable or specific source
must be published before they can have any force,
and this must be done by the beating of a gong in the
public streets, beginning at the public place of meet-
ing and ending there, and in places where those to be
affected are wont to assemble. Most of these laws have
become merged in the Customary Law, while those dealing
with matters covered by the English criminal law have in
the protected territories ceased to exist since the Bond of
1844. The term Customary Law in this work means and
embraces the general and fundamental principles of the
Customary Law well known over the whole of the country,
and which law has sprung from usage, as well as laws or
commands made by chiefs or rulers, headmen, the village
council, headmen of clans, and company captains. As such
Customary Law is continually being generated among a
people advancing in civilization as the inhabitants of the
Gold Coast are and will continue to advance, and having
regard, further, to the fact that it is nowhere forbidden any
chief, headman, village council, head of clan, or company
committee of captains, to make new laws as has been done
from time immemorial, we know of no native laws other
than those which have been described, and if the Supreme
Court Ordinance does not refer to this kind of law, then it
refers to what did not exist. It is also clear from sect. 92
that Customary Law or usage does not become native law
by its having been judicially noticed in a suit.
Having endeavoured to state the sources of, and to
explain what is the native law, to the question now re-
maining, what is native custom, the answer is, usage —
which, developing into custom, becomes apparently crystal-
lized and merged into native law. But from the stand-
point of the natives, an usage is invariably the practical
result of the application of some principles of the Customary
Law, however much such usage may be influenced by the
time when, and place where it first sprang up. In the
FANTI CUSTOMAKY LAWS. 25
native tribunals there are no difficult problems produced
by a combination of circumstances, however novel or
intricate, which remain unsolved. The process of deduc-
tion may be unsatisfactory, but the result frequently
commends itself to the general public.
Assuming that the judges in Welheck v. Brown meant
by the word " custom," and used it as a general term for
"native- laws and customs," Chief Justice Bailey expressed
the opinion that he had no reason to suppose that when
the draughtsman of the Supreme Court Ordinance, 1876,
spoke of customs, he meant anything more or less than
that word imparts to legal ears ; and Mr. Justice Smalman
Smith, concurring with the Chief Justice, said : " We must
of course conclude that the native customs to which the
Supreme Court Ordinance of 1876 requires us to give effect
in the administration of the law of this colony, must be
such as in the contemplation and according to the prin-
ciples of English jurisprudence would be regarded as
customs, that is to say, such as have existed in the colony
from time immemorial, or 'to which the memory of man
runneth not to the contrary.'" The English law has
several rules by which the validity of any custom or usage
must be tested. When one studies the said Eno-lish law,
he discovers one of such rules to be, that for a usasre or
custom to be valid, it must be immemorial or ancient,
having existed " from the time whereof the memory of
man runneth not to the contrary." On further investi-
gation it is found that before the Prescription Act, by
the statute of Westminster (3 Edw. I.), a period of legal
memory was established distinct from that of living
memory, whereby prescriptive claim was taken to be
indefeasible if existing before the reign of King Richard I.
in A.D. 1199. One need not fully go into the reasons
assigned by English lawyers, who say King Richard's
reign was taken as the limit, because from that reign only
exists a connected record of legislative enactments, the
laws of the realm prior to that reign having been merged
2() FANTI CUSTOMARY LAWS.
in the general custom. "In like manner," says a writer
on Indian institution, " with regard to India there was no
system of legislation in force at all prior to our rule, nor
has any authentic record of the law administered by native
Courts come down to us. Under former rulers Might
generally formed the standard of Right, and disputes
between private individuals were for the most part settled
by arbitration. Such a course of proceeding naturally
favoured the creation of Customary Law, handed down
traditionally, and acquiring its force according to the
frequency of its practical application and recognition.
Accordingl}^, if we take the analogy which the English law
affords, we should require every custom to be at least as
ancient as the commencement of our rule, which would in
fact constitute the limit of legal memory in this country.
And this was the principle which Sir Charles Grey, the
Chief Justice, actually affirmed in a case which came before
him in the late Supreme Court of Calcutta."
If such opinion be accepted for the Gold Coast, it
follows that as soon as any new district is brought under
the jurisdiction of the Supreme Court, the legal memory^
of which so much was made in Welheck v. Brown, starts
into being from that day, and not from 1876, the date
of the Supreme Court Ordinance. The most important
question is. Did the judicial assessors act in accordance
with or under the English rules or tests at any time ?
Certainly not. We know when and how that office was
created, and who filled the post from time to time. The
first Chief Justice and first puisne judge of the present
Supreme Court had been judicial assessors, and in the
Assessors' Court, which was the highest native Court
(Buafoo V. Enimil)* was administered not only the
general Customary Law, which the learned assessors
treated as the common law of the land, but mindful of her
Majesty's instructions to Mr. Hill, the then Governor of
the Gold Coast settlements, they gave to the general
* 1 F. L. R. 247.
FANTl CUSTOMARY LAWS. 27
Customary Law the desirable flexibility and adaptation
by enforcing new customs and usages in the same way as
the native tribunals were wont to do, and so keeping
abreast of the times, their decisions satisfied that rising
standard of justice which continues to grow and expand
from ao^e to age.
Eminent judges in India and the East are doing the
same thing. Says West, J., in Naihin v. Esu Naildn, " in
Abraham v. Ahraham, 9 Moore's Indian Appeal, 195, the
Privy Council say that customs and usages dealing with
jjroperty, unless their continuance is enjoined by law, as
they are adopted voluntarily, may be changed or lost by
desuetude, and though race and blood are independent of
volition, usage is not. . . . Custom can be entitled to
recognition as a law, only in virtue of some power outside
the court which has given it validity, and this must be the
autonomy of the people in matters not withdrawn from
their plastic power by positive legislation and the principles
implied in its enactments."
The history of English law illustrates the true
capacity of custom or usage, as a source of law, in a strik-
ing manner. On the one hand, we find it laid down by
Tindal, C.J., in Tyson v. Smith, 9 A. and E., p. 421, that
a custom is not invalid merely because it is contrary to a
rule of the common law; while on the other, it is said
by Abbot, C.J., in R. v. Joliffe, 2 B. & C, p. 59, that " if that
custom be against any known rule or principle of law, it
cannot stand, however great its antiquity." No doubt the
apparent contradiction is explained by a consideration of
the different scope and purpose of different parts of the
general law, and of the rejection of desuetude as affect-
ing English statutes. A custom cannot prevail against
a recognized general interest of the community, more
especially when this has been guarded by an explicit law ;
but as to the merely regulative or subsidiary laws,
" wherein the State has no immediate interest of its own,"
a divergence is not impossible. At what point this general
28 FANTI CUSTOMARY LAWS.
interest arises, or is considered to arise, is determined by
the Courts as the authorized expositors of the imperative
will of the Sovereign and the community, and varies at
each stage of the national development. In delivering
the judgment of the Exchequer Chamber in Goodivin v.
Boharts, L. R 10 Exchequer 837, Cockburn, C.J., refers to
Williams v. WilliaTns, wherein it was decided that the
custom of merchants was part of the common law. After
discussing a series of cases by which the negotiability
given to various instruments by usage had been ratified,
he says, at p. 352, " Usage adopted by the Courts having
been thus the origin of the whole of the so-called law
merchant as to negotiable securities, what is there to
prevent our acting upon the principle acted upon by our
predecessors, and followed in the precedents they have left
to us ? Why is it to he said that a new usage which has
sprung up lender altered circumstances is to be less ad-
missible than the usages of past times ? Why is the door
now to be shut to the admission and adoption of usage in
a matter altogether of cognate character, as though the
law had been finally stereotyped and settled by some
positive and peremptory enactment ? " In Crouch v. The
Credit Fonder of England, L. R. 8 Q. B. 374, it was held
that a recent custom could not have the effect of making
an instrument negotiable which was not already so, " be-
cause it formed no part of the ancient law merchant." On
this it is observed : " For the reasons we have already
given, we cannot concur in thinking the latter ground
conclusive. While we agree that the greater or less time
during which a custom has existed may be material in
determining how far it has generally prevailed, we cannot
think, that if a usage is once shown to be universal, it is
the less entitled to prevail, because it may not have formed
part of the law merchant as previously recognized and
adopted by the Courts. It is obvious that such reasoning
would have been fatal to the negotiability of foreign bonds,
which are of comparatively modern origin, and yet, according
FANTI CUSTOMAEY LAWS. 29
to Gorgier v. Mieville, 3 B. and C. 45, are to be treated
as negotiable. We think the judgment in Crouch v. Tlie
Credit Fonder may well be supported, on the ground that
in that case there was substantially no proof whatever of
general usage. We cannot concur in thinking that if proof
of sreneral usa^e had been established, it would have
been sufficient ground for refusing to give effect to it, that
it did not form part of what is called the ancient law
merchant."
It is clear that a new usage which has sprung up under
altered circumstances can be properly admitted and enforced
by the Court when once it has been shown to be universal,
or a fair and reasonable result of the development of a pro-
gressing community as the inhabitants of the Gold Coast.
The law, however, " has laid down no rule as to the extent
of the evidence necessary to establish a custom, or from
which the inference of the fact of a custom may be drawn.
It is the province of a jury to draw these inferences of
fact " (Hanmer v. Chance, 4 De G. J. and S.).
Without pursuing this subject any further, it may be
said the Legislature has stated the tests which are to be
applied to native laws and customs; they must not be
repugnant to natural justice, equity, and good conscience,
nor incompatible either directly or by necessary implication
Avith any enactment of the Legislature, e.g. if a law were
to be passed to-morrow that tenants must pay their rents
for gold mines not to their landlords direct, but through
a specified channel, such law would prevail against the
Customary Law relating to rents of that nature or descrip-
tion; so also, any custom recognizing the right of an
illegitimate child by an adulterous intercourse, in the
property of the putative father, is immoral, and therefore
can have no effect. Westrop, C.J., and Melville, J., in the
appeal case, Bharthi v. Laving Bharthi, say : " The alleged
custom amongst the Gosavis to recognize a right of heir-
ship in the son of a Gosavi, by a woman, who, in the life-
time of a previous husband and without his consent, has
30 FANTI CUSTOMARY LAWS.
married the Gosavi, would be a bad custom and such as
could not be treated by Courts of justice as valid."
There is one point which has not, perhaps, received the
attention which it deserves. When it does not appear to
the Court, either by express contract or from the nature
of the transactions out of which any suit or question has
arisen, that such party agreed to be bound exclusively by
English law, the Customary Law is to prevail, but if there
is no Customary Law on the point, the Court is not to be
governed by the doctrines of equity, but by the principles
of justice, equity, and good conscience. It can be argued
that the principles of equity so mentioned are not to be
interpreted by the light of English authorities, which are
necessarily unknown to the litigant parties. The Supreme
Court Ordinance was passed on the 31st of March, 1876,
about the time her Majesty's ministers in London were
directing their special attention to the laws in force in
India, and it is not unreasonable to think the result of the
study and researches then going on may have influenced
those who gave instructions for the making of the Supreme
Court Ordinance. Writing to the Governor-General of
India about the expediency of another code for India, Lord
Salisbury, on 20th January, 1876, said, inter alia, " I may,
however, observe that the need of such a code appears
to me to be even greater at this moment than when its
preparation was first resolved upon, because there is now
an additional agency at work which is already producing
embarrassing effects, and requires to be properly directed.
The amalgamation of the Presidency and Mufassal Courts
having taken place before the formation of the civil code
which they were intended to administer, it has been re-
marked that the general direction to follow the dictates
of equity which is alone given them for their guidance, is
apt to be interpreted by many of the judges of appeal by
the light of English authorities with which they are
familiar, but which are necessarily unknown to the litigant
parties. . . . Thus, it is said, many rules ill-suited for
FANTI CUSTOMARY LAWS. 31
Oriental habits and institutions, and which would never
recommend themselves for adoption in the course of sys-
tematic law-making, are indirectly finding their way into
India by means of that informal legislation which is gradu-
ally effected by judicial decisions."
In conclusion, the alien would-be-reformer, reckless and
in haste, should ever remember in his dealings the common
saying : '* Wo-si, Ko man Ko tu ; wo-nsi, Ko man kasin " —
the saying is : " Enter into a community and settle ; not,
enter into a community to boast." Sir Richard Burton, the
great West African traveller, correctly remarks : " This is
addressed to those who leave their native land and settle in
another ; they ought to join the people with whom they
live, and not pride themselves upon retaining their own
manners and customs, or attempt to set up new rules."
This saying, in a sense a warning, is current throughout
the Gold Coast, Asanti, and neighbouring states. For any
reform to be permanent and enduring, it must be based on
and rooted in the principles of the aboriginal institutions.
The patient inquirer will discover there is very little that
is new on the Gold Coast, if not in all West Africa ; persons
administering justice may well bear in mind the words
uttered by the late Judicial Assessor and first Puisne
Judge of the Supreme Court, Sir James Marshall. Speaking
at the Colonial Exhibition in London, 1886, he said : " The
Gold Coast must remain the country of the natives, but with
a handful of Europeans among them who have the power by
which they rule these people and enforce obedience. And
whenever this rule is carried out and enforced according^ to
European ideas, without consideration of the ideas, equally
ancient and equally deep rooted, which pervade the native
mind, it may break and destroy, but without securing any
real improvement. My own experience of the West Coast
of Africa is that that Government has for the time suc-
ceeded best with the natives, which has treated them with
consideration for their native laws, habits, and customs,
instead of ordering all these to be suppressed as nonsense.
32 FANTI CUSTOMAEY LAWS.
and insisting on the wondering negro at once submitting to
the British constitution, and adopting our ideas of life and
civilization. As Judicial Assessor I was a sort of head
chief, and sat with the local chiefs in Court, hearing causes
brought by natives among themselves.
" By this I learned that a complete system of laws con-
nected with both land and personal property existed among
them, which had been handed down by oral tradition from
time immemorial, and was better suited for them than our
modern feudal elaborate and intricate laws of real and
personal property. The natives of the Gold Coast and West
Africa have a system of laws and customs which it would be
better to guide, modify, and amend, rather than to destroy
by ordinances and force. So they have their chiefs and
court forms and etiquette, their own customs and mode
of living, which will not be improved by ridicule or forced
abolition."
We have seen it stated somewhere that native laws
and custom know nothing of crimes ; but we must differ
from that opinion. They do know of crimes, which are few
in number, and they invariably bring the death penalty.
At first by the decisions of Maclean, then by the famous
bond of 1844, the Fanti rulers agreed to the British Govern-
ment having exclusive jurisdiction in matters criminal.
Maclean created the Gold Coast Protectorate, but the British
Government did not and does not own the soil of that
country beyond the actual sites of the forts and castles
in their possession.
It was in 1836 that the President in Cape Coast Castle
assumed power and tried Adoasi and Anumah for wilful
murder. When a full report of this trial reached England,
the Committee of African Merchants, in their despatch of
October 20, 1836, wrote: "Your proceedings in Council of
April 6, in reference to the trials of Adoasi and Anumah
for wilful murder, we observe were conducted in the Public
Hall of Cape Coast Castle in your presence and that of the
Caboceers and Peynins, and, found guilty upon their own
FANTI CUSTOMARY LAWS. 33
confession, these men were executed. It seems from your
information to us, that there has been a very important
departure from the proceedings of our Criminal Courts,
inasmuch as the confessions of the prisoners had been
admitted as the chief evidence against them, but of the
justice of the sentence there can be no doubt. These remarks
lead us to remark to you, which we feel bound to do, that
WE HAVE BEEN INSTRUCTED EXPRESSLY BY LORD GlENEG,
^ that the British Government pretends neither to territorial
possession, nor to jurisdiction over any portion of the Gold
Coast, excepting the actual site of the several forts and
CASTLES.' It is, therefore, necessary that your authority
should be exercised with very great caution." We have
seen the original of this letter, which was published in the
Gold Coast People newspaper of May 20, 1892. More light is
thrown on this matter by the papers printed in the Appendix.
CHAPTER II.
PERSONS.
(i.) The Family.
A Fanti family consists of all the persons lineally descended
through females from a common ancestress, provided, that
neither they nor those through whom they claim to be the
descendants of the common ancestress had severed their
connection with that root by —
(i.) Cutting Ekar, also called Kahire,
(ii.) Adoption,
(iii.) Partition, or
(iv.) Commendation.
(i.) Cutting Ekar is a particular mode of disowning any
one's blood relation. When a man desires to disown a blood
relative, he brings him before the elders of his town or
village, and in their presence, as well as in the presence of
D
34 FANTI CUSTOMAEY LAWS.
the other members of his family, an ekar is cut in twain,
and saying clearly, " We are now divided," he takes one-half
and the disowned the other half. As soon as this ceremony
is completed, the two persons have no more share or portion
in the property of each other. Where a man is disowned,
it affects him alone ; but in the case of a woman, her issue
is included, for the saying is, the children follow the mother's
condition.
In Welhech v. Brown, February 4, 1884, per Chief
Robertson : " The cutting of the custom or ekar is a thing
of the past in Cape Coast, as a sign of disownment. It
was abolished by Governor Maclean."
(ii.) Adoption is practised by persons who have no next
of kin to succeed to their property. The person adopted
is usually of the same clan as the person adopting, but
if of a different clan, he assumes the name given him and
becomes a member of his clan. To make adoption valid,
it must be done publicly, and the person who wishes to
adopt must not only get the consent of the family and
parents whose child is about to be adopted, but he must
clearly state before witnesses his desire and intention.
A person cannot adopt another outside his tribe. On
account of the custom of descent, which is traced through
the female line, it is more usual to adopt females in pre-
ference to males.
(iii.) Partition is of rare occurrence, where persons live
in the same town or locality. It takes place frequently
where two branches of one family, living in separate
localities, agree to relinquish to the other, all claim to
whatever family property that other has in its possession.
E.g. : The family of Anan is divided into two branches,
one residing in the family house at Chama, and the other
branch living on the family land at Siwdu. As soon as
the two branches agree to give up all claim to the property
in each other's possession and retain what each has, none
of the members of the Chama branch is considered member
of the Siwdu family. The successors to each property will
FANTI CUSTOMARY LAWS. 35
be selected from eacli branch. If one branch get into
family difficulties, and the members thereof decide to sell
their possessions, the other branch cannot stop such sale.
But if at any time the right person to succeed to one branch
of the family be a minor, then the headman or senior
member of the other branch is, by his position, guardian.
On failure of the legal successors, the two branches merge,
and the existing line succeeds to both. Partition does not
cause an absolute severance from one's family. In fact it
is usual for the headman of one branch to preside at the
ceremony by himself or deputy, whenever a successor is
about to be installed as headman of the other branch.
(iv.) CorriTnendation. When a person is anxious to
enter another man's family, so that he may share in the
protection and privileges which the members thereof enjoy,
he goes before the head of that family, and formally trans-
fers himself and all his worldly possessions into the safe
keeping of his new protector. Such is the ordinary com-
mendation. This must not be confounded with that
voluntary fellowship of a person in the retinue of some
influential neighbour, or with that species of service where-
by a man with his family, in town or village, voluntarily
accepts a sum of money from an influential king or chief, in
order to be counted among his subjects. The head of a
family and the whole family can (and in days gone by did
so) commend themselves to rich, powerful, or influential
neighbours.
In former times, where, through straitened circum-
stances at home, or through a crushing family debt or
calamity, a member of the family was sold or pawned, he
ceased to be a member of his family ; but whenever he was
reclaimed, he regained all his rights, privileges, and position
in the family. But when a person through misconduct was
expelled the family,* or was sold and got rid of by the
* Derx, Governor of the Dutch possessions, in an official communica-
tion to Geo. Maclean, the Judicial Assessor, on November 30, 1846,
writes : " The 9 ackies alluded to as subsequently borrowed from Effoom
36 FANTI CUSTOMARY LAWS.
family after due deliberation, he ceased to be a member of
the family, even if his master gave him his freedom.
The members of the family are termed Ebusuafu. The
normal condition of a Fanti family being joint, the law-
throws the burden of proving that a person has ceased to
be joint, or that a person has ceased to be a member there-
of, on the person asserting it. There is no limit to the
number of persons of whom a family may consist, or to the
remoteness of their descent from the common stock, and
consequently to the distance of their relationship from each
other. But the Fanti coparcenary, properly so called, con-
stitutes a much larger body. When we speak of a joint
family as constituting a coparcenary, we refer, not to the
entire number of persons who can trace descent from a
common female person, and among whom no cutting of the
ekar has ever taken place ; we include only those persons
who, by virtue of relationship, have the right to enjoy and
hold the joint property, to restrain the acts of each other
in respect of it, and to burden it with their debts. Outside
this body there is a fringe of persons who possess inferior
rights, such as that of residence in the case of children, of
maintenance in the case of domestics, or who may under
certain contingencies hope to enter into the coparcenary.
The ordinary incidents of a family are —
(i.) Common clan ;
(ii.) A common penin ;
(iii.) Common liability to pay debts ;
(iv.) Common funeral rites ;
(v.) Common residence ;
(vi.) Common burial-place.
In the native courts, and with the experienced Judges
of the Supreme Court, these several incidents are most
carefully looked into in deciding contending claims, and for
by the father of the above-mentioned boy, Quashie Kin, which person,
through making of much debts, was publicly abandoned by the family, and
according to the black laws the debts are thereby null and void " as against
the family of the debtor.
FANTI CUSTOMAHY LAWS. 37
any light which may be thrown upon the matter, the
opinion of the neighbourhood, and the statements of
domestics and friends and servants, are received in
evidence. Amonoo v. Ampima*
(i.) Common clan : members of the family belong to the
same clan, and to this rule there is no exception whatever.
The slave becomes a member of his m-aster's clan. The
children of a freeborn woman belong to their mother's clan
and not to that of the father : e.g. a man of the Nsonna
clan whose father is an Annona clansman is not at all
entitled to any Annona property, for he is not a member of
his father's family. Nor can a man be a member of two
clans.
(ii.) A common penin (elder), also called Egya, father.
The senior or other male member of a family who has
control of the family, and is its representative, is called the
penin, or egya. Such person must of necessity be a
member of the same clan ; he may be a freeborn person of
the heritable class (Dihi) known as the head of the family,
managing and directing its affairs ; or he may be the person
who first brought wealth into the family ; or increased its
importance by buying slaves or receiving several persons by
way of commendation ; or who, by some act or deed, had
increased the family possessions. The penin has control
over all the members of the family and the issue of such
members. Where the founder of the family is deceased,
then the senior male member in the line of descent is, in the
absence of any direction to the contrary, the penin. As
such, he is the natural guardian of every member within
the family. He alone can sue and be sued,! as the repre-
sentative of the family, respecting claims on the family
possessions, and he is as much the guardian and represen-
tative for all purposes of property as the Eoman father —
Paterfamilias.
The members of the family are bound to obey the
* 1 F. L. E. 214.
t Mensa Y.Krahue, 2 F. L. E. 86 ; Asraidu v. Dadzie, 1 F. L. E. 174.
38 FANTI CUSTOMARY LAWS.
lawful commands of the penin ; he arranges the rooms in
the family residence to be allotted to each,* and what
portions of the family lands each is to cultivate or possess.
Rooms and lands so allotted continue in the possession of
such persons and their successors until the penin re-
arranges them.
When a member takes upon himself to take possession
of the family property or a part thereof without the per-
mission of the penin, he can be removed at any time, and
another person placed in his stead. So also, a member of
the family making any additions to the family residence
or property cannot have an exclusive right thereto as
against the family, unless at the time of making the
addition the penin reserved to him the exclusive or special
enjoyment of the addition or improvement.
The penin is usually one whose fitness had been recom-
mended by the immediate predecessor, and who had been
confirmed in his position by all, or by the majority of, the
principal members of the family.
The principal members of the family have the right to
pass over any person so recommended, and to elect another
member of the family instead. Where the penin suffers
from mental incapacity, or enters upon a course of conduct
which, unchecked, may end in the ruin of the family, or
persistently disregards the interests of the family, he can
be removed without notice by a majority of the other
members of the family, and a new person substituted for
him.
In the absence of the penin, the eldest male member of
the family acts as penin, for the long absence or incapacity
of the penin must not prejudice the interests of the family.
Like other members of the family, the penin has
but a life interest in the immoveable property of the
family.
(iii.) Common liability to 'pay debts. Not only does the
Customary Law render the person or persons who defray
* Barnes v. Mayan, 1 F. L. R. 180 ; Halmond v. Daniel., 1 F. L. R. 182.
I
M the bi
H respo]
H states
FANTI CUSTOMARY LAWS. 39
the burial expenses of any person prima facie liable and
responsible for the debts of the deceased, but, as Bosman
states, the members of a family and the head thereof are
jointly and severally responsible for any family liability.
If a member of a family contract debt which benefits the
family, or commit a wrong for which he is liable to pay
damages or give satisfaction, the other members of his family
are bound to pay, or such member must be given up by
the family to the person making the claim. If the family
do not wish to be held responsible for the future acts of a
certain member, there must be a public notice of their
decision to that effect, and such person must be expelled
the family, thereby severing his connection with them. A
person is liable for the debts and the consequences of the
torts of his slaves and the members of his family under his
control. While a husband is living with his wife, or is
providing for and maintaining her, he is not liable for her
contracts, debts, or liabilities, except for any medical ex-
penses she may be put to for herself or child by him. For
the wife, if freeborn or domestic of a different family, can
acquire and hold property apart from the husband, and
has her own family to fall back on. If the wife be a
domestic and member of the same family as the husband,
their common master's liability for them remains.
Children are liable for the debts of their mother.*
Not only is a father liable to maintain his child, but if
he fail to obtain a wife for his son on reaching the age of
puberty, he is liable for damages arising from the son's
misconduct with any woman. On this point the Com-
missioners appointed by the Governor of the Gold Coast
Colony in August, 1894, to inquire into various matters
relating to Native Courts, suggest in their report that the
question whether a father is liable for his sons' 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
* Quacoom v. Ansa, 2 F. L. E. 1.
40 FANTI CUSTOMAEY LAWS.
case when it arises by evidence as to the custom of the
particular district.*
(iv.) GoTriTnon funeral rites. On the decease of a mem-
ber, all persons who are members of the family take part in
making the funeral custom and contribute in defraying its
expenses, for which they are primarily liable. The mem-
bers of the clan also take part in observing the funeral
custom, and contribute collectively towards the payment
of the same, but they are not liable at all. It is usual for
the local senior member of the clan, with the head of the
family of the deceased, to preside over the funeral custom,
to receive the expressions of condolence from sympathizing
neighbours, and to accept funeral donations. " It is
customary for friends and acquaintances to bring presents
to the relations of the deceased, to assist them in per-
forming the funeral ceremonies in a becoming manner."
(Cruickshank, vol. ii. 217.) Funeral donations are of two
kinds, to wit : (a) Insawa, which are not repaid at all, being
considered as gifts to the deceased ; (b) Esi-adzi, which
may be more correctly called funeral custom advances.
Respecting esi-adzi, Cruickshank writes: "Considerable
sums are received in presents at the time of the funeral.
They are seldom a source of gain, as it is expected that the
receiver will make similar presents to the donor upon
the occasion of death in his family." On entering into
the accounts of the funeral custom expenses, esi-adzi
sums are set aside, and if the Insawa presents are found
insufficient to defray the expenses, the immediate rela-
tives of the deceased contribute for this purpose. Any
sums received from the children or grandchildren of the
deceased, or from his widows, are in the nature of Insawa ;
the liability to pay such sums by no means makes them
members of his family, where such widow or widows are
of a different family, since they are not entitled to be
present when such accounts are being gone into, nor can
* OoJd Coast Oovernmenf Gazette, January 31, 1895, p. 34, reproduced
in 2 F. L. R. 182.
FANTI CUSTOMAKY LAWS. 41
be compelled to contribute towards the liquidation of
any deficiency.
(v.) Common residence. Persons who have a right to
reside in the family house, or the right to dwell on the
family possessions unconditionally, are members of the same
family. " It was customary to regard the possession of a
house as a common family fund in all the members of the
family ; while they remained such, each had a share at the
same time that the head or representative of the family
had the direction and disposed of it." (Cruickshank, vol.
i. 316.)
(vi.) Common hurial-place. It is customary for the
family to have a common burial-place, which may be
either in the family dwelling-house, or a grove or a plot
of land set apart for burial. Children by a woman, free-
born or of a different family, can only be buried in the
family burial-place of the father, by special leave of the
head of the family. The members of a family have a right
to burial in such burial-place, and it is here that libations
are made on the special Adai seasons, or during the time
of Ahuha kuma.
(ii.) Marriage.
The customary law relating to marriage is very simple,
but, by some inexplicable process, it is a stumbling-block
to the foreigner, and to the native who considers himself
better than his forefathers. The attention of those whose
sole object on the Gold Coast is to discredit the Fanti
marriage institution is respectfully directed to an accurate
study of the English marriage system.* From the
* WooiNGs AND Weddings in M.vxy Lands. By Annie Hyatt-
Woolf. — Many of our own wedding customs are survivals of the days
when marriage laws were of the laxest description, and it was the vogue
for the would-be husband to seize and carry off by force the lady of his
fancy. But later times, better manners. When Caesar invaded Britain
(52 B.C.) a suitor for a maiden addressed himself to her father, whose
42 FANTI CUSTOMARY LAWS.
English law point of view, a man's family is that of his
father, and pedigree is generally traced in the male line.
property slie was, and if the father consented the girl had not the power
to say " No." But naturally a woman's lot would not be so beset with
hardships if she were given away or sold as if she were stolen. The
Anglo-Saxons regarded the bond of matrimony with all reverence, and no
man could lawfully marry without first gaining the consent of the woman's
father, or, should he be dead, of her nearest male relative. In acknowledg-
ment for the permission thus granted he paid a price according to the rank
of the lady. Practically the girl was sold, and it was therefore advantageous
to a father that the " spindle side," or female part of the family — to use
King Alfred's term — should outnumber the " spear side," or male members
of the family. Marriage banns are said to have been established by the
Synod of Westminster in 1200, which ordered that no marriage should be
contracted without banns thrice published in the church, unless by the
special authority of the bishop.
The " best man " is a survival of the time when marriage by capture
was the mode of procedure. His office then was to carry sword or spear
and assist in the seizure of the bride. Of course, if much difficulty were
anticipated, the number would be multiplied to two or three, and, possibly,
for a chief or king's daughter there would be a band of " best men." The
honeymoon is distinctly a relic of the days when the newly wed couple
deemed flight the better part of wisdom, and sought safety in refuge either
from an irate father robbed of his daughter, or other too ardent suitor. To
trace the bridal veil to its earliest origin we should have to go back to a
very ancient period. Our Anglo-Saxon forbears received the nuptial
benediction from the priest, sometimes under a veil or square piece of
cloth, called the " care-cloth," held at each corner by a man to conceal
the blushes of the bride ; but this little attention they deemed superfluous
to bestow on a widow. A ring was used at the marriage as well as at the
betrothal ceremony, and at the wedding both the man and woman were
crowned with garlands of flowers. The custom of introducing orange
blossoms into wedding wreaths and bouquets is a comparatively modern
innovation, although orange trees were growing in England when bluff
Hal was king, who, as every schoolboy knows, distinguished himself by
marrying six wives. The fashion of adorning the bride with orange
blossoms we have borrowed from the East. There it is regarded as a
symbol of a prosperous and fruitful marriage. In indigenous countries
orange trees bear fruit and flowers at one and the same time. With us,
in the days that were earlier, a sprig of gorse was often introduced into
the bridal bouquet, possibly because of the old saying that " When the
furze is out of bloom kissing is out of fashion." Throwing a slipper after
a bride is a somewhat doubtful compliment, for it is generally agreed
among competent authorities that, at the marriages of the Anglo-Saxons,
the father or nearest of male kin presented the bridegroom with one of the
FANTI CUSTOMARY LAWS. 43
The converse is the case with the inhabitants of the Gold
Coast, Asanti, and other neighbouring places. In the
bride's shoes as a token of the transfer of his authority to his son-in-law,
who then and there, in appreciation of this mark of ownership, gave his
bride a blow on her head with her own shoe. Yet the husband was
bound by oath to treat his wife kindly, and if he did not she was free to
leave him. But he appears to have been allowed a very wide margin —
different times, different manners, and, to quote the words of an old author,
" he might bestow moderate castigation on her."
An interesting link with olden times is " Bidden Weddings," and in
Cumberland and Westmoreland and the North of England, about a hundred
years ago, this form of marriage was still celebrated. A w^edding in these
districts was not so much a private as a public affair, and called a " bride-
wain," or " bidden wedding." A match being arranged, the parties gave
notice of its intended celebration to all and everybody, and to mark the
festive occasion " open house " was kept, and the guests congregated from
miles around. A " bidding letter " sent as late as 1850 gives information
of the place and hour to the invited guests, and concludes with the words,
" and whatever donation you may be pleased to confer on us then will be
thankfully received, warmly acknowledged, and cheerfully repaid whenever
called for on a similar occasion." Newspapers were also used as a medium
to advertise the coming wedding, and invite whoever would to attend.
Such an advertisement appeared so late as 1803. Usually, in response to
this summons, hundreds of persons assembled at the bridegroom's house
or other place indicated, where they all joined in outdoor sports. After
much feasting and drinking it was the custom to place a plate or bowl in
some conspicuous spot, and it was de rigueur for each visitor to contribute
something to its contents. The relatives and near friends generally made
special gifts of household furniture, pewter plate, candlesticks, grain, and
money, several days after the wedding ceremony. And in a lower, middle-
class wedding, the value of the total gifts were, we are told, " sometimes
as much as £200." A servant girl who had been in one situation for seven
years was entitled upon her marriage to a copper kettle capable of holding
from four to six gallons. Other weddings celebrated in the same public
fashion were called " bride-ales," " bride-bushes," or " bride-stakes." On
these occasions the bride on her wedding-day sold ale to the guests, who
paid in either money or goods. A bush at the end of a stake or pole was
the olden sign of a country ale-house, and around the pole the customers
congregated and often danced. The term " bride-ale " was also applied to
the marriage procession. In Queen Elizabeth's time a law was passed
limiting the quantity of " iveddyn-ale " that any person or persons shall
*' hrewe to sell.'''' From this restriction we gather that " bride-ales " were
in early times conducted with much deep drinking. A very quaint usage
prevailed in Essex until comparatively recent times. " It is the common
custom there, when poor people marry, to make a kind of dog-hanging or
44 FANTI CUSTOMAEY LAWS.
early days of the missionaries on the Gold Coast, a practice
or usage arose amongst the converts of recognizing the
English law, while native custom was retained. The wife,
by matrimony, took the name of her husband, and at his
death, his children and widow took a half of his moveable
property, while his own family took the other half. This
practice cannot be said to be unreasonable or against the
principles of justice, equity, and good conscience.
money-gathering, which they call a wedding dinner, to which they invite
tag and rag, all that will come ; where, after dinner, upon summons of the
fiddler, who setteth forth his voice like a town crier, a table being set forth,
and the bride sat simpering at the upper end of it, the bridegroom standing
by with a white sheet athwart his shoulders, whilst the people march up
to the bride, present their money, and wheel about. After this offering is
over there is a pair of gloves laid upon the table most monstrously bedaubed
about with ribbon, which, by way of auction, is set to sale at who gives
most, and he whose hap it is to have them shall withal have a kiss of the
bride." The history of the wedding-ring is so ancient that it is based
upon fables, and who wore the first wedding-ring no man can say. In the
long ago the ancients wore the betrothal ring, as we do to-day, on the
third finger of the left hand, because they thought that a vein or nerve ran
from that finger directly to the heart, and the outward sign of matrimony
they considered ought to be placed in near connection with that seat of
life. Another reason not so complimentary why women wear their
wedding-rings upon their left hand is said to be because that hand is a
sign of inferiority. In early times in England the date of a marriage was
often fixed after a due consultation of the aspect of the heavens, and
probably that is why there was a superstitious belief that there were lucky
and unlucky seasons. As many popular sayings bear witness, " Marry in
Lent, and you'll live to repent." The Romans regarded May as an ill-
fated month for weddings, and our forbears were certainly of the same
opinion. And an old couplet says, " From the marriages in May all
the bairns die and decay." Another old saying was, " May never was ye
month of love." " Who mames between the sickle and the scythe will
never thrive." A popular rhyme gives the folklore relating to the days
of the week on which weddings ought and ought not to take place —
" Monday for wealth,
Tuesday for health,
Wednesday the best day of all ;
Thursday for crosses,
Friday for losses,
Saturday no luck at all."
From Lloyd's Weekly Newspaper, by kind permission of the Proprietors.
FANTI CUSTOMARY LAWS. 45
Marriao-e is the union of a man to a woman to live as
husband and wife for life. It is sometimes preceded by
betrothals, which often take place long before a girl arrives
at a marriageable age. This is done when a person desires
to be connected with the family of a friend, or desires his
child or relative to be so connected with a desirable family.
The acceptance of any money or token, called consawment
money or token, and a piece of cloth for this specific
purpose, destines the girl to be the wife of the person for
whom the alliance is sought. This betrothal is perfectly
binding on the family of the girl, who is regarded as the
wife of the person betrothing her. He narrowly watches
her conduct, and frequently demands and receives com-
pensation for any liberties she may allow other men to
take with her.
According to the law of the country, every person is
the member of some family, and all the other members
of that family are answerable for him. In theory, the
stranger belongs to the family of the person with whom
he lodges, to whom he came, or who is his landlord. A
father is entitled to all the earnings of his son before his
marriage. It is the duty of the father to engage a wife
for his son as soon after he reaches the age of puberty as
possible ; and he is generally liable in damages, if his
unmarried son, living with him, commits adultery with
another's wife or any woman. This customary law is an
old one, and is referred to by Artus in 1625. According
to him : " Marriage being the foundation of Society, they
keep their daughters in cloisters, when they are marriage-
able, and their sons leave themselves to their disposal, never
wooing or looking on their wives before they marry them ;
giving nothing with their sons but what they earn them-
selves. Only the father gives a peto and a half of gold, and
the mother half a peto, i.e. half an ounce, and the richest
no more." In very many parts of the Gold Coast, that is
in the inland districts, this custom still exists, but where
European influence has had its way, he thinks twice who
46 FANTI CUSTOMAKY LAWS.
desires to take a wife, what with sundry initial fees
of eighteen shillings and upwards, besides other heavy
expenses.
If the father be dead, his successor is entitled to the
aforesaid earnings, and he is bound to provide the wife
when the occasion arises.
He who desires a woman, whether maiden or widow,
in marriage, must apply to her family, or person or
persons, in loco parentis, for consent, and without such
application and consent there can be no betrothal. Nor is
there any remedy for breach of promise of marriage. If a
man fail to marry a woman for whose hand he had applied,
or if such woman refuse to marry him, or her family with-
draw their consent, no action arises, and no damages are
incurred by the person in default, who, however, forfeits
any consawment or anything given to the other.* For
instance, a man after giving consawment to the family of
his intended wife, and money, trinkets, and other valuable
presents to herself, cannot have any of them back should
he improperly break off the engagement. But, if the
breach is caused by the woman or her family, they are
bound to return him the consawment and every present to
herself and family, even though he may have received
presents from them ; the only exception is, in the case of
funeral custom donations, as to which accounts are entered
into and the balance struck off.
In order to be valid, a marriage must not be in violation
of any rule as to tribal relationship, in some districts, or
consanguinity. A man may not marry his uterine sister,
his father's sister, or mother's sister, or brother's daughter,
or mother's sister's daughter. A man can marry his father's
sister's child. The union, however, is not encouraged. An
adopted son or daughter falls within the same rules both
in his adoptive and natural families, and the same rule
applies to their issue. In some districts, a marriage between
freebom persons of the same clan is very much discouraged.
FANTI CUSTOM AEY LAWS. 47
but is not improper between a freeborn and a domestic, or
between two domestics. To the question of the judicial
assessor in Penin v. Duncan* about the essential acts or
ceremonies to constitute a valid marriage, according to the
custom of the country, the chiefs replied : " When a man
intends to have a certain woman for his wife, he applies
to her family, asks her to be given in marriage by taking to
the family according to his means, two flasks of rum, or two
ackies of gold dust, or four or six ackies, according to his
means. Upon this, if the family approve, they agree to give
the woman. This request and consent with the first present
alone make a valid marriage." The term " head rum," so
often used in the case of marriage, is an instance of erroneous
and deplorable interpretation of Fanti into English. Rum
was unknown to the people until brought to them by those
engaged in the slave trade, and before then, surely, marriage
was not an unknown institution. The beverages made
from maize, and extracted from the date and palm trees,
were common, but instead of nuptial wine, an ignorant
clerk said "head rum" for Btsir ensa. The term Etsir
ensa is evidently a contraction of Etsir nsa-nkredzi, literally,
tokens or price of the head; for in all primitive societies
the idea of purchasing a wife underlies the institution of
marriage, but rum, the curse of West Africa, is not essential
at all in contracting marriage. Cruickshank, writing on
marriage, says in his second volume, " native contracts of
marriage are made by the payment of a certain sum to the
relations of the bride. This sum varies according to the
rank of the individual from 2 ounces gold = £8, to
4J ackies = 22s. 6d., but it is more frequently paid in goods
than in gold." Gold or goods so given, for the hand of a
woman in marriage, were called Etsir nsa-nkredzi, rendered,
in the records of the old judicial assessors, consawment
money. This word is also mentioned by Bowdich in his
work on Asanti ; and when one bears in mind that some of
the Etsir nsa-nkredzi are distributed among the relatives
* 1 F. L. R. 118.
48 FANTI CUSTOMARY LAWS.
and more immediate friends of the woman, as proof of the
honourable alliance, the absurdity of " head rum " becomes
manifest.
After the consawm6nt is accepted, follows the matter of
dowry. " That depends on the family. If they tell the
man that they require dowry to be paid, they state the
amount they wish, sometimes one ounce, or nine ackies." If
the woman's family do not wish for dowry, the man is not
bound to pay anything. Among the poorer classes, the man
and woman live together without any dowry having been
paid at all, and yet such marriage is perfectly legal, and the
husband can sue any one for satisfaction, that is, damages
for misconduct with the wife.
If a man seduce an unmarried woman, he is liable to pay
to her family damages for the wrong so done her and the
disgrace brought on her family. When such seduction was
under promise of marriage, the liability to damages is not
extinguished by any consawvient subsequently given by
the seducer to her family, who can at any time hold it as
satisfaction of the claim for damages for the wrong done
their child. Where a married woman is seduced, her
seducer is bound to pay to the husband as damages a fine
or penalty called Brabbu, which is for the pacification of
the injured husband, and is not less than the value of the
consawment dowry and all the marriage expenses. If the
marriage is continued, only pacification fine can be claimed,
the amount of which is fixed according to the social standing
of the injured husband, guided by the general character of
the seduced woman. Moreover, where the conduct of the
wife was brought about more or less by the husband's
treatment, the seducer is liable to a nominal fine.* And
if, on account of such seduction, the former marriaoje is
dissolved, and he marries the woman, he cannot at any
time recover from her family what he had so paid, even if
the woman, without any cause whatever, refuse to live with
him then or afterwards. Nor can he recover compensation
* Penin v. Duncan, 1 F. L. II. 118. See judgment by Chalmers.
FANTI CUSTOMARY LAWS. 49
from any one who may take this woman away from him,
for, unless a man has given consaiument, he cannot recover
against anybody for seduction of a person who is nothing
more than his mistress.
Where the consent of a woman's family cannot be gained,
either because they improperly refuse to give such consent,
or because they reside in such a distant place that it is
impossible to obtain such consent, a man and woman, who
voluntarily agree to live as man and wife for life, can con-
tract a valid marriage; provided that such agreement is
expressly made in the presence of credible and respectable
witnesses, or in the presence of the chief or headman of the
place, followed by the man and woman living as husband
and wife.
When there has been a marriage in fact, the validity
thereof is presumed, and where the caprice, avarice, or
ambition of a parent has not been excited to force on a
marriage, it will be found by careful study of the people
and examination of the local marriage institution, that
marriage entirely rests on the voluntary consent of a man
and a woman to live together as man and wife ; which
intention, desire, consent, or agreement, is further evidenced
by their living together as husband and wife. All other
ceremonies and expenses attending marriage are superfluous,
but are useful and taken account of in assessing damages
in case of criminal conversation. Briefly stated, therefore,
when a man desires to marry a woman, he goes personally
or sends some one to her parents or family for her hand.
If his proposal is agreeable to the family, and he receives
their consent, the co7isaivment money or token, valuing as
much as he can afford, is sent to them. That is all that is
necessary to constitute the marriage tie. The man may,
according to his means, send to his bride some dresses, so
that she may come to him properly attired. In marriages
where one finds such expensive ceremonies, it is a notorious
fact, there is no unity of interest, for the domestic arrange-
ment is such that the wife rarely resides in the same house
E
50 FANTI CUSTOMARY LAWS.
with her husband, but only carries his food to him daily
and ministers to his desires.
On the death of the husband, his widows, him sur-
viving, and their children by him, are entitled to reside
in any house built by him, and the children and their
issue have a life interest in such house, subject to good
behaviour.*
When there has been a betrothal, a man can claim his
wife on her reaching the age of puberty, and he is bound to
support and maintain her from the day of betrothal. A
man is bound to maintain his wife, and it is her duty to
obey his request to live with him, and to perform all his
lawful orders. A man can contract other marriages. By
courtesy, the first wife should be informed of the proposed
alliance ; but the omission to do so is no cause for divorce
or termination of the marriage by the first wife. A woman
living in concubinage cannot sue the man with whom she is
so living for any maintenance, nor can her family or parents
sue the man for any satisfaction or maintenance. Whatever
is given or entrusted by a man or woman to the person
with whom he or she is living in concubinage, cannot be
reclaimed on any consideration whatsoever. This custom
of forfeiture is called sarwie. At first sight, this custom
may seem repugnant, but the grounds for it are not un-
reasonable. Although men of substance and the influential
classes will deny, or question, the existence of the custom
or usage known as sarwie, or at least endeavour to limit its
effect on account of its restraining influence on concubinal
and illicit intercourse, this salutary custom or usage un-
doubtedly exists, and is well known to the female community
{Quassua v. Ward).^ In former times, this particular
custom placed a great check or restraint on the wealthy,
and those traders, European and native, who were in the
habit of keeping a host of women under their protection
as concubines, euphemistically called friends. Knowing
* Barnes v. Mayan, 1 F. L. R. 180 ; Amamoo v. Clement, 1 F. L. R.
180; Swapim v. Ackuua, 1 F. L. R. 191. t 1 F. L. R. 117.
FANTI CUSTOM AKY LAWS. 51
perfectly well that the Customary Law compels no man to
maintain his mistress, these "friends" had no claim for
support or maintenance on their so-called protectors. But
if such a woman has a child by her protector, he is bound
to look after her during her illness only, and to pay any
expenses attending her confinement. The sole or principal
object of keeping these women, for whom no consawTnent
had been given, and who had neither the status nor rights
of a wife, was for their services. The protector lives
on their services. A man having such a woman usually
•employed her without any pay or remuneration in selling
goods, which he constantly, or at times, supplied her.
Now and again the man may give to the woman money
■or clothing, with the object of inducing her to continue
her services, and, with fair words, a woman is ever a prey
to a designing man. The protector invariably manages
to make the woman indebted to him, and whenever he
fears she will transfer her affection to another in honour-
able marriage or otherwise, he endeavours to dissuade her
by frightening her with false unfounded claims. A woman
living with a man as concubine, mistress, or friend, is not
■encouraged in the eyes of the Customary Law, which stamps
the relationship as immoral, to be remedied as quickly as
possible. But women are frail, though the desire to have
issue is keen in them, and men are deceivers ever. If a
man therefore will not be properly and honourably married
io a woman, but will for his own purposes keep her and
live upon her labour, she is at liberty to terminate the
immoral relation at any time she pleases, and she shall not
be liable to return to him anything whatsoever he may
have given or entrusted to her for safe keeping, sale, or
any purpose whatsoever. Where a person living with a
woman as his concubine wishes to marry her, he is bound
to pay to the family of the woman satisfaction money,
which can be waived, before giving the consawment, and if
in consideration of the marriage the family of the woman
-or she herself be willing: to return to the man whatever he
52 FANTI CUSTOMARY LAWS.
may have given her or entrusted her with, the amount
thereof is ascertained by the man and woman going into
detailed accounts, immediately before the consawment is
given and accepted. Such a marriage legitimizes the
children of the man already born by the woman. The
issue of an adulterous connection is illegitimate, and cannot
be made legitimate by the subsequent divorce of the woman
and her marriage with her paramour ; e.g. Amba, wife of
Kwamina, during his absence at Akassa, bears a son, the
issue of an adulterous intercourse with Kwesi. Such son
is illegitimate, and cannot have any interest whatsoever
in the house of his putative father, even if, on being
divorced by Kwamina or on his death, Amba is married
by Kwesi.
Although a man may lawfully marry several wives, a
woman cannot at the same time have more than one husband.
Adultery is a ground for divorce, and a wife's adultery
justifies her husband in expelling her from his house and
refusing her any maintenance. Notwithstanding the vague
ideas in the coast towns about divorce of native marriage,.
there is no doubt that, save and except the competency of
a native tribunal to decree the dissolution of a marriage,
the right of divorce is marital only. The wife cannot
declare her marriage void, nor can her family give her
permission to remarry in the absence of the consent of her
husband, signified by his releasing her from her conjugal
obligation, either by chalking her, or saying so in the
presence of competent witnesses. For adultery or witch-
craft on the part of the wife, a man can divorce his wife
and claim from her family the consawment and other
expenses. But the wife cannot enforce divorce or dis-
continue marriage on the ground of her husband's adultery,
or on his marrying more wives.
Change of religion is no ground for divorce ; therefore,
if a married woman embrace Christianity and thereupon
deserts her husband, she does not cease to be his wife, and
whosoever weds her can be sued for damages. By the term.
FANTI CUSTOMARY LAWS. 53
*' ground for divorce," is meant cause for which the husband
could recover the consawment and all his expenses from
the woman's family ; or cause for which the wife and her
family would not be compelled to return any portion of
the consawment to the man. If a husband is impotent, or
neglect his wife or grossly ill-treat her, or absent himself
for a long period of time, so that she commits adultery, he
can divorce her, but cannot recover the consawment ; for a
wife has a right to the protection of her husband, and
Customary Law does not countenance negligence of marital
obligations.
There is no law on the Gold Coast similar to the Indian
Act XXI., of 1866, the Native Converts Marriage Dissolu-
tion Act, under which, if a married person deserts his wife
or her husband for six months or more, on the ground of
change of religion, the Court can fix a year, on the expira-
tion of which, if the defendant still refuses to continue the
marriage, divorce is decreed. In our native tribunals a
husband can bring an action against a man harbouring a
wife, and against her family for her recovery. This form
of action is well known in India, and there the British
Courts constantly enforce decrees to recover possession of
wives by their husband.
A woman living with a man as concubine is always
looked down upon, and is considered immoral, however
wealthy she may be.
Where the marriage is discontinued through the fault
of the husband, so found by arbitrators or a native
tribunal on a complaint made against him, he cannot
get the consawment or money or any of his expenses,
and the wife goes away with all the property she possessed
at the time of marriage, and, in addition, she is entitled to
claim from him whatever she or her family may have
expended on him. When the marriage is at an end, the
wife can demand from the man a return of all monies and
goods of her own in his possession.* If, on the other hand,
* Fatimer v. Wellington, March 5, 1872, Oape Coast Court Record.
54 FANTl CUSTOMARY LAWS.
it was through the fault of the wife or her family, the
consawmenty and his trinkets and clothing, not worn out
in the service of the wife to her husband, are returned.
Moneys expended by the husband for the maintenance of
his wife are not recoverable. An account of loans advanced
to each other, as well as of funeral donations, is gone into
and a balance struck, on paying which the woman is free
to contract another marriage.* On the death of the
husband the wife is bound to contribute towards the
funeral expenses. Children bear the cost of the coffin and
burial clothes of their father, but are not liable for the
expenses of the funeral custom. They have the right to
live in their father's residence or rooms, provided they are
of good behaviour.-)-
A regrettable departure from the Customary Law relat-
ing to the recovery of the consawment on the determination
of the marriage is becoming somewhat frequent in pro-
ceedings before the District Commissioners. In many cases
it is assumed that the mother-in-law is always liable,
whereas the person priina facie liable is the head of the
family, or person who acted as such when the consawment
was paid. When a woman deserts her husband the family
is liable for all the property supplied by the husband then
in her possession.^
A child receives its name from its father or the head of
the father's family, eight days after its birth, and every
child bears as its first name the day of the week on which
it is bom. Be it noted that Saturday (Miminda) is the first
* Karaba v. Quansima, May 17, 1871, Cape Coast Court Record, p.
348. la answer to the Judicial Assessor, the Chiefs state that " it is a rule
that when a woman refuses to continue marriage her husband recovers his
expenses. If she leaves from her husband's misconduct and she makes
palaver, and gains her case, the husband would lose his claim for expenses."
And judgment accordingly.
t Barnes v. Mayan, 1 F. L. R. 180 ; Swapim v. Acquuah, 1 F. L. R.
191 ; Amamoo v. Clement, 1 F. L. R. 180.
t SacJcie v. Agawa, 1 F. L. R. 126.
FANTI CUSTOMARY LAWS.
55
Male.
Female.
Kwamina, Kwamin
Amba.
Akwesi, Kwesi
Essi,
Akosua.
Kudwo
Adwua.
Akobina, Kobina
Araba,
Abina.
Kweku
Ekua.
(Ekuow, Kuow,
Abba,
(Yow
Ya, Yawa
Kofi
Etfua.
day of the week, and is considered as God's day. The natal
day names are —
Saturday
Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
According to the order of the birth a child may receive an
additional name ; the third male child is called Mensa, female
child Mansa. Children of a woman bearing the same natal
name, being twins or otherwise, are distinguished by the
words Penin (elder), and Kaikraba or Kakra (younger).
Some natal names have certain endearing synonyms or
complimentary salutations attached to them : e.g. Adwua as
Adai ; to Kobina the salutation is " Ebo Kobina ye bremba "
(" thou art a brave man, Ebo Kobina ") ; he replies, " M'afe
na wosi " (" so say my comrades ") ; to a Mensa's salutation,
" Abur ampa" ("ingratitude still lurks "), the reply is, " Wo
oyimpa tsirim "(" in the head of man ") ; meaning, no doubt,
one does not easily forget an ungrateful conduct.
" What is most commendable among the negroes is that
we find no poor amongst them who beg : for though they
are never so wretchedly poor, they never beg. The reason
of which is, that when a negro finds he cannot subsist, he
binds himself for a certain sum of money, or his friends do
it for him ; and the master to whom he hath obliged him-
self, keeps him in all necessaries, setting him a sort of task
which is not in the least slavish, being chiefly to defend
his master on occasion, and in sowing time to work as
much as he himself pleases." (Letter ix. p. 140.)
56 FANTI CUSTOMARY LAWS.
" Married people here have no community of goods ; but
each hath his or her particular property. The man and his
wives generally adjust the matter together, so that they are
to bear the charge of housekeeping, while the clothing of
the whole family is at his sole expense.
"On the death of either the man or the wife, the
respective relations come and immediately sweep away all,
not leaving the widow or widower the least part thereof,
though they are equally obliged to help to pay the funeral
charges. Some negroes, besides wives, have also their con-
cubines, which they several times prefer before their wives,
and take more care of them ; but their children are esteemed
illegitimate, and not reckoned amongst the relations.
" If a negro has a child by his slave, whether married
to her or not, his heir will look after it and keep it only as
a slave, on which account those who love their slaves will
take care to make their children free, with the usual cere-
monies, before they die, after which they are in every
particular treated as free persons.
******
" I have already told you how many wives the negroes
marry; and herein they place the greatest glory and
grandeur, as their riches consist in the multitude of slaves,
though they frequently conduce to their ruin, because every
man is obliged to make good the injury which his slave does ;
if he is guilty of theft or adultery his master is obliged to
pay the fine imposed for his crime. The negroes are also
responsible for their sons, nephews, and other relations,
though in this case the relations help each other by a mutual
contribution, each giving something towards it according to
his circumstances ; which if he should not do, the criminal
would be condemned to death or slavery." (Bosnian's
letter xii. p. 202.)
FANTI CUSTOMARY LAWS. 57
CHAPTER III.
PROPERTY.
Things are divided into moveables and immoveables.
These two kinds are sub-divided into —
(1) Ancestral, including stool property.
(2) Family.
(3) Self-acquired or Private.
Moveables : e.g. sandals, cloth, a gold ring.
Immoveables : a house, land.
Moveable ancestral : a gold ring left by an ancestor or
ancestress.
Moveable family : a gold ring purchased by general con-
tribution of the members of a family.
Self-acquired : a gold ring purchased by a man with his
own earnings.
Immoveable ancestral: a house or land which has
descended from an ancestor or some relative.
Immoveable family : a house built or acquired by mem-
bers of a family.
Self-acquired or private : a house or land purchased or
gained by a person by his individual effort or exertion.
There are certain kinds of immoveable things which,
either from their nature (as a fetish grove, public river or
lake) or by reason of the uses to which they are put (as a
burial gi'ove), cannot be sold.
The acquisition of property is either original or
derivative.
Original acquisition may be by —
(1) Appropriation of what has no owner, or of property
whose owner has plainly expressed his intention of giving
up and has, in fact, given up his ownership by leaving
possession.
(2) Conquest or capture in war.
58 FANTI CUSTOMARY LAWS.
(3) Accession by means of the increase or development
of a thing in one's possession : e.g. crops and fruits from
one's land ; rent of property ; trees planted on one's land
by any person whatsoever without the owner's permission ;
lands gained from the sea or river, either by alluvion from
the washing-up of mud, sand, or earth, or by the water
gradually or imperceptibly receding.
An inundation effects no change of property in land.
Where treasure-trove is found on some one's land, the
owner of the land is entitled to a moiety of such treasure,
and the chief or headman of the district to the other
moiety. If such treasure was there hidden by the owner
of the land, the finder is bound to restore it to its owner
without any deduction whatsoever.
If a hunter or any person kill game on another man's
land, the owner of the land is entitled to the shoulder or a
quarter of such game.
Derivative acquisition may be by —
(1) Transfer, as in gifts.
To complete a transfer, it is necessary that —
(a) The transfer be by the owner of the thing trans-
ferred, or by one duly authorized by him. Where the
thing transferred is ancestral or family property, the trans-
feror must act with the concurrence and full approval of
the senior members of the family having an interest in the
property.
(b) The transferee must be placed in possession of the
thing.
(c) The nature of the estate, title, or interest therein
transferred must be distinctly stated.
{d) The transferee must show his acceptance of such
estate, title, or interest in the thing.
(e) The subject of transfer must be capable of owner-
ship.
(/) There must be witnesses of the transaction.
(2) Contract : e.g. sale, mortgage, lease, or loan.
(3) Succession of another's property.
FANTI CUSTOMARY LAWS. 59
(4) Partition : on the division of ancestral, family or
other property held or enjoyed in common.
Ancestral property is —
(i.) Any moveable or immoveable thing which has
descended to a person from an ancestor or ancestress how-
ever remote.
All savings made out of such moveable or immoveable
thing, and all purchases or profits made from the income or
from the proceeds on the sale thereof, follow the character
of ancestral property.
(ii.) Property acquired on partition of, or in exchange
for, ancestral property {Mary Barnes v. John 3fayan,
June 24, 1871). Per Chalmers :—
" The ground on which Mrs. Barnes bases her right is
that the subject in question was given by Mr. De Graft to
her mother, who was one of his wives, and was occupied by
her as a dwelling-place. It appears that Mr. De Graft's
family house stood formerly near the Castle ; that it was
removed as well as other houses by order of the Govern-
ment, at a time when that part of the town was opened up,
and that the tenement now in dispute was assigned by the
Government to Mr. De Graft, in lieu of the one from which
he had been dispossessed. He received also a money com-
pensation for the building which it may be presumed he
laid out in the construction of his new house. These things
being so, I consider that the new tenement took all the
incidents of the one for which it was substituted, and was
therefore, in De Graft's lifetime, in the same position as if
it had been land of inheritance to which he had actually
succeeded."
(iii.) All accretions of any ancestral property. A person,
whether member of the family or otherwise in possession
of stool, ancestral, or family property, wishing to improve
or make an addition thereto, must apply to or inform the
stool-holder or head of the family for his permission so to
do, and if no objection is raised, he acquires a right to the
prior enjoyment of the improvement or addition so made,
60 FANTI CUSTOMAEY LAWS.
which is not liable to be sold for a stool or family debt so
long as other property is available, otherwise not ; for it is
not lawful for persons to ignore the stool-holder or the head
of the family and deal with the property as if it were their
own absolutely.
(iv.) Property earned by a person with or by means of
an ancestral property or its accretions.
(v.) Property which, belonging to a branch of a family,
has come into the possession of another branch of the
family on the failure of a successor.
Family property is any moveable or immoveable thing —
(a) Acquired by the joint labour of two or more of the
members of a family ;
(h) Or by contributions from the members of a family.
Property is designated self-acquired or private, where it
is acquired by a person —
(a) Through his own personal exertions, without any
help or assistance from his ancestral or family property ;
(h) By gift to himself personally ;
(c) By superior skill in business or intellectual pursuits.
Whatever a person acquires with the aid of his sister
or their children or his brothers is family property. If his
children by a free woman (Dihi) help him to acquire any
property, they have no interest therein, and in the absence
of any help from his own family, property so acquired is
self-acquired or private. Whatever a wife helps her hus-
band to acquire is the sole property of the husband.
If any property lost by the ancestor or any of his
successors be recovered by a member of the family out of
his own private resources, it is no longer considered as
ancestral or family property, but is private property ; unless
such property had been recovered by the use of any part
or portion of the ancestral or family patrimony ; or it was
acquired for the purpose of its forming part of the ancestral
possessions, and this was made known to the members of the
family. With the exception of the coast towns, where there
is much contact with European ideas, private property in
FANTI CUSTOMAKY LAWS. 61
its strict sense does not exist. The family group is of the
pure patriarchal type. The head of the family owns the
whole of the property, and all acquisitions made by
the members of the family are made for him, and fall into
the common stock. This custom obtains in all parts of this
country.
When the ancestral or family property is owned by a
famil}^, whether whole or divided, of which the headman
sits on a stool, then the property is known as stool
property, and is attached to the stool. As the family
increases in prosperity and influence, the stool-holder
creates junior stools, subordinate to the head stool, and
any property, attached to the junior stool on its creation
or subsequently acquired or possessed by the junior stool-
holder and the people of that stool, is also called stool
property.
In the coast towns a member of a family may make
separate or private acquisitions and dispose of them as he
pleases in his lifetime, provided none of his family nor
any part or portion of his ancestral or family property
contributed to the acquisition of such property. But any
property of his that remains undisposed of at his death,
descends to his successors as ancestral property.
As in India, even so in this country, the advance of
civilization tends to break up the unity of the family.
Where the members of a family support themselves on
the produce of a common land, the proceeds of their united
labour must be necessarily small.
The family has a claim upon its constituent members
for their assistance in the cultivation of the common land,
or in the ordinary labours of the household; hence it is
no matter of surprise to find the units breaking up, on the
discovery of new industries requiring skill and producing
great rewards, aild giving scope to each individual unit for
the exercise of his skill and ingenuity in the acquisition of
wealth and private property.
In this country joint property is the rule, and must bc;
62 FANTI CUSTOMAKY LAWS.
presumed to exist in each individual case until the contrary-
is proved. If an individual holds property in severalty —
that is, as sole owner and possessor — it will in the next
generation relapse into a state of joint tenancy.
Absolute, unrestricted, exclusive ownership, enabling
the owner to do anything he likes with his immoveable
property, is the exception.
The father is restrained by his brother, the brother by
his nephew and sister's children, and the woman by her
own issue. If land be free to-day in the hands of its
acquirer, it will to-morrow resume its fetters in the hands
of his heirs. In the English law, individual property is the
rule, but corporate property is the rule on the Gold Coast
and among the Akan and Fanti tribes. A careful com-
parison and analysis of the several kinds of systems
commonly known here, show that there are but three
forms of corporate system of property, to wit, the village
community, joint family, and patriarchal family.
The Village comTnunity is a corporate body, of which
the members are families, or family groups, residing in
the several households, and including the joint as well as
patriarchal families.
These village communities are scattered over the length
and breadth of the whole of Guinea. The headman of the
village is in some places so by hereditary right, in other
places he is so by election. But in places, where the right
is hereditary, the members of such village community have
a right of veto.
The Joint family is a corporate body whose members
are persons or individuals having a remote common
ancestor, or who, though alien in blood, have become
members of the same clan by commendation or otherwise.
Patriarchal family is defined by the great jurist Sir
Henry Maine, to be a group of natural *or adoptive de-
scendants, held together by subjection to the eldest living
ascendant uncle, father, or grandfather. Whatever be the
formal prescriptions of the law, the head of such a group is
FANTI CUSTOMAKY LAAVS. 63
always practically despotic ; and he is the object of respect,
if not always of affection, which is probably seated deeper
than any positive institution.
In the more extensive assemblies of kinsmen which
constitute the joint family, the eldest male of the eldest
line is never the parent of all the members, and not neces-
sarily the first in age among them. To many of them he
is merely a distant relative, and he may possibly be an
infant. The sense of patriarchal right does not die out in
such groups. Each father or grandfather has more power
than anybody else over his wife, children, and descendants ;
and there is always what may be called a belief that the
blood of the collective brotherhood runs more truly and
purely in some line than in any other. Among the
Hindoos the eldest male of his line, if of full mental
capacity, is generally placed at the head of the concerns
of the joint family ; but where the institution survives in
any completeness, he is not a paterfamilias, nor is he owner
of the family property, but merely manager of its affairs
and administrator of its possessions.
If he is not deemed fit for his duties, a worthier
kinsman is substituted for him by election, and, in fact,
the longer the joint family holds together, the more
election gains ground at the expense of birth (" Early
History of Institutions," 117).
According to the Fanti laws, a father has in subjection
under him his son and his son's children. Whatever is
acquired is acquired for the father, and this state of sub-
jection dofch only terminate on the father's death. In a
patriarchal family, one finds the father having power
over his sons and daughters and grandchildren, his wife,
servants, and other dependents. If on his death his sons
separate, this will be the setting up of several subordinate
families, over which each son will be the head, but under
the head of their mother's family.
Under the system of village community, the land be-
longing to the village is so held, that all the inhabitants of
64 FANTI CUSTOMARY LAWS.
the village have each of them a proportionate share in it
as common property, without any possession of, or title to,
distinct portions of it. Each person is entitled to cultivate
any portion of it, and during such cultivation he has an
absolute right to his crops.
In the joint family all the holdings are enjoyed in
severalty, and each member manages his portion of land.
The extent of such holding is equal to the land origi-
nally brought under cultivation, or transferred on the day
of commendation, or is determined by long usage.
In the patriarchal family all the lands are under the
control of the patriarch, who alone directs how they are to
be cultivated. He is entitled to all the produce of the land,
and nothing can be done with anything belonging to the
family without his approval or confirmation.
There is a fourth kind of corporate system of property,
which may be called the " clan property." Property of
this nature was originally acquired by the local clansmen
clearing the virgin forest and afterwards setting it aside
for the use of the clan, usually in the possession of one of
the principal clansmen, whiose duty it is to look after it for
the benefit of all the clansmen in that locality in particular,
and for the fellow-clansmen in general. Hence one hears
the expression, " The land (Asiasi) is the property of the
Okonor clan." Plots of such lands are granted to members
of the clan desirous of building thereon. The freehold is
always in the senior clansman for the time being of the
locality. By no length of uninterrupted enjoyment can
any one acquire any title adverse to the title of the whole
clan. It is very doubtful whether the clansmen have any
power of sale over any part or portion whatsoever of such
clan property. Analogous to such clan property are burial
groves, or places set apart for the burial of the members of
each clan.
FANTI CUSTOMARY LAWS. 65
CHAPTER IV.
TENURES.
The ordinary tenures of land are freehold, and the deriva-
(tive tenure of leaseholds.
An estate of freehold is an estate either of inheritance
or for life in lands of free tenure.
An estate in lands and tenements may be considered —
(i.) In reference to the quantity of interest, that is,
•whether freehold or less than freehold ; or
(ii.) With regard to the time of enjoyment, as to
whether the interest is in possession or expectancy ; or
(iii.) With regard to the number and connection of the
"tenants.
The terra " freehold " denotes the tenure of the property,
and shows that the owner thereof has a life estate at least.
An estate of inheritance is where the tenant is not only
•entitled to enjoy the land for his own life, but where, after
liis death, it is cast by the law upon the persons who suc-
cessively represent him in perpetuum in right of blood,
according to an established order of descent.
With regard to the quantity or duration of interest,
there are estates more or less similar to English estates of
i(i.) fee-simple, (ii.) for life, (iii.) for years.
An estate in fee-simple is the largest estate or interest
which the English law allows any person to possess in
landed property, and is that which a man has to him and
his heirs. The holder of such property is called a tenant
in fee-simple. Strictly speaking, the term " fee-simple," as
used in English law, cannot be correctly applied or used
when speaking of the highest kind of the tenures obtaining
on the Gold Coast. Even in those parts, such as Wassaw
Amenfi, where the king is the owner of all the lands in his
district, the use of the term " fee-simple " is misleading. At
F
66 FANTI CUSTOMARY LAWS.
the most the king or head chief is but a trustee, who is as
much controlled in his enjoyment of the public lands by his
subordinate chiefs and councillors as the head of a family
by the senior members thereof. Per Chalmers, in Barnes
V. Attali, July 17, 1871 : "I apprehend that not even the
regular occupant " (of an Egua) " could alienate property
without some concurrence by the peo[)]e of the stool (Agua)
who have an interest in it, and are usually consulted on
such a matter."
The king, by the law of England, is the supreme lord of
the whole soil. Whoever, therefore, holds lands must hold
them mediately or immediately of him ; and while the
subject enjoys the usufructory possession, the absolute and
ultimate dominion remains in the king. (Co. Lit. la.)
As far as the Gold Coast is concerned, this portion of the
English law does not apply, for it is a group of territories
under native rulers taken under British protection ; it is
British territory, but not so by conquest or cession ; as a
matter of fact, the Colonial Office stated on the 11th day of
March, 1887, as published in Parliamentary Blue Book of
that year, that it is inaccurate to state that after the
successful Asanti expedition of 1874, the Protectorate was
annexed by Great Britain and became a colony, " inasmuch
as the greater portion of the Gold Coast Colony still remains
a Protectorate, the soil being in the hands of the natives
and under the jurisdiction of the native chiefs."
According to native ideas there is no land without
owners.* What is now a forest or unused land will, as
years go on, come under cultivation by the subjects of the
stool, or members of the village community, or other
members of the family.
The granting of permission to others and outsiders to
reside on or cultivate the lands of a family, a stool, or a
village community, is a practice of the greatest antiquity,
and was in times past more universal than sale of land,
which is of comparatively modern growth. The chief or
* Vide Mr. Justice Smith and Mr. Bruce Hindle's opinions in Appendix.
FANTI CUSTOMARY LAWS. 67
king of a tribe, or headman of a family, can, with the con-
sent of the whole or major part of the sub-chiefs, and
councillors, village elders forming body of councillors or
senior members of the family, as the case may be, allow
stranorers and forei owners to live on certain lands. In cases
where the land is appurtenant to the stool of a king or head
chief, the tenant becomes subjected to such stool, and he,
with his people, is bound to perform such services, or pay
such annual sums as may be declared to be performed or
paid yearly. Plots of land in the actual and lawful posses-
sion of a subject of the stool, or a member of the village
community, or a member of the family or company, cannot,
unless with the express consent of the person in possession,
be so granted. But where a person in .possession of a
portion of the public land abandons it, or his family have
abandoned it for more than ten years at least, the village
headman and elders can allow another person to occupy the
same.
The making of grants to strangers, particularly to
Europeans, of waste lands, that is, lands abandoned or
never under cultivation by any one, and of minerals, and of
concessions of forest land for a term of years, though said
to be modern comparatively speaking, is not necessarily
illegal, according to Customary Law. A person who desires
to procure a grant of land or any concession from a local
ruler, should make special inquiries, and inform himself who
the members of his council are, and get them or the linguist
of the council to join the head chief in making such grant.
Where the concession is made by a subordinate chief,
inquiries should be made to find out whether the concur-
rence of his paramount chief is necessary or no, for whatever
lawful grant or permission is so given by a person de facto
chief, with the concurrence of men de facto members of the
village council or stool, is good and valid according to
Customary Law, and the grantee by taking possession of
the land and working thereon becomes a tenant of the
stool, village council, or family, as the case may be, and not
68 FANTI CUSTOMARY LAWS.
of a specific individual. Among European communities the
title of a landlord, or vendor, or grantor of property, is
sought for by searching his muniments of title and making
an abstract of his title-deeds ; on the Gold Coast one has
to make careful inquiries, which must be guided by the
Customary Law. The occupant of the stool, or head of
the village community or family, as trustee, has the right
to enforce performance of the conditions under which the
permission was given. If the tenant fails so to do, or
denies the right of the person who, or whose predecessors,
gave him title, or encourages some other person to contest
such right or title, he can be sent away from the land.
Conveyance of land is invariably made in the presence
of witnesses. The symbolic tokens and ceremonious per-
formances, taken in addition to the words expressed before
such witnesses, set forth the nature of the transaction, the
quality of the estate granted or transferred, and the con-
ditions, if any, of such grant.
There are certain well-established usages in the enjoy-
ment of lands, one of which is the practice of allowing
plots of land to lie fallow for a longer or lesser period of
time.
It must be borne in mind that no person can acquire
by long uninterrupted possession, an adverse title against
the owner of property, through whom or whose ancestors
possession was tirst acquired.
The simplest and most common kind of tenure is what
may be called " sowing tenure." Here, the owner of a plot
of land usually gives to a person, who has applied to him,
leave to have the use of his land for one sowing season.
In the absence of agreement, the owner of the land is
entitled to take 500 heads of corn, or a small proportion,
about one-tenth, of any other crops grown on such land.
If the tenant die before his crops are gathered, his heir
or successor is entitled to reap them, and the owner of the
land cannot appropriate such crops, without giving notice
to the representatives of the deceased, to the effect that the
FANTI CUSTOMARY LAWS. 69
crops must be removed before the end of the harvest season,
or before the festival Ahuba Kessi. Having once sown his
crops, the tenant cannot sow a second crop on any part
of the grantor's land without his express permission, for as
soon as the crops are gathered in the tenancy ceases.
Where, after notice, the tenant's crops are not removed,
such crops become the property of the owner of the land.
There is also known what may be called an " annual
tenure " running from year to year.
A person having once got the land has full right to
cultivate it for any duration of time until the owner, by
due notice, terminates the tenancy.
The rent usually reserved, in the absence of special or
other agreement, is the help which the tenant is bound to-
render the landlord at the period or seasons of sowing and*
reaping, usually three days in the week.
Unlike the sowing: tenure, the tenant has the risrht to-
build and reside on land so granted him. On his death, his
heir or successor, after notifying the owner and after certain,
ceremonies, acquires the same rights and privileges until
the landlord gives notice to terminate the tenancy, when
the land goes back to the owner with all the improvements
thereon. But the owner of the land is not entitled to such-
crops as are sown and reaped yearly, unless the tenant has-
failed to remove them after due notice. Where the owner
of land gives to a person permission to cultivate a portion
of his land, and this person and his heirs continue the
cultivation of such land, for upwards of forty years, without
paying any rent or giving any produce therefrom to the
owner, such long possession does not destroy the title of
the original owner and his representatives.
The original owner or his successor can at any time go
upon and retake possession of the land as soon as the tenant
asserts an adverse claim to it. In the absence of such
adverse claim he cannot disturb the quiet enjoyment of the
tenant, without prior notice to the tenant that he requires
the land. Where, however, there are palm-trees on the
70 FANTI CUSTOMARY LAWS.
land, whether planted by the owner of the land or by the
tenant, the landowner has full right, at any time he pleases,
to cut trees or gather any nuts therefrom. Custom does not
permit any person to be improved out of his land, and palm-
trees not only improve, but also enhance the value of, lands.
Where the nuts from a palm land are manufactured into
oil, the owner of the land receives half of the oil, and the
oil manufacturer the other half, and the expenses of pre-
paring the oil is equally shared by them. If, instead of oil
manufacture, there is extracted from the palm-trees palm-
wine, then the owner of the palm-trees is entitled to one-
fourth of the proceeds of such palm- wine, the person who
fells the trees and prepares the wine is entitled to one- fourth
of such proceeds, and the person who sells such palm-wine
is entitled to half of such proceeds. According to a well-
known practice of the Law Courts, each palm-tree is valued
at twenty shillings.
Abehem tenure arises where a person is placed on palm
land, and the only stipulation is for a specified quantity of
oil to be delivered to the owner each year, whether the
tenant makes any oil or not during the year.
In the absence of agreement, an owner of land, from
persons having the use of his land, is entitled to claim when
corn is planted 500 heads.
Grants of land for building purposes are very frequently
made in the form of perpetual leases, either for some valuable
consideration, or by way of reward for past services, or on
the ground of mere affection or friendship. Lands so
granted are resumable by the grantor and his successors
on failure of successors in the grantee's family.*
Land so granted is inalienable, except with the express
consent and concurrence of the grantor, if it be his self-
acquired property ; but if ancestral or family property, then
the consent of the persons entitled to the reversion, and
who have an interest in it, and who are usually consulted
before any alienation is made, must be gained.
* Boun V. Steele, 2 F. L. It. 77.
FANTI CUSTOMAIIY LAWS. 71
The grantee of a building lease does not acquire any
right in the soil.*
Grants of land for building purposes are generally made
by members of a family to a junior member at the time of
marriaore. Thus a man takes in marriao^e a woman. The
members of her family give or point out to the husband a
plot of land to build on, and the only object of this is that
the man may have somewhere to reside with his wife and
any issue of the union.
The rule of the descent with regard to any erections on
such lands is somewhat similar to what is known in English
law as tenancy in tail special. The grant is invariably made
to a man and his issue (not heirs) — say, on Essie, his wife
begotten or to be begotten. Whatever is erected on such
land goes to Essie and her children by him. For all practical
purposes, the man has only a life interest, which he forfeits
by wrongfully and improperly terminating the marriage.
The man's heir or successor has no title or interest in
such premises, nor can he himself sell or mortgage them.
If the land was granted by the family of the man to
him for building purposes, then neither his freeborn wife
nor her issue has title or claim to the ownership of such
premises, but his children by her have only a right of
residence in the father's house, i.e. a life interest subject to
good conduct.!
Land so granted for building purposes reverts to the
grantor and his family —
(a) On the grantee quitting possession ;
(b) On the grantee denying the title of the grantor to
the land by setting up his own title or the title of any other
person ;
(c) On the building erected thereon, or the greater part
of such building, falling into ruins ; J
(d) On the grantee leaving no issue by the woman on
* Lyall V. Dougan, 2 F. L. Pi. 5G.
t Sicapim v. Acku>va, 1 F. L. R. 191.
% Au'ortchle v. Aidjun, 2 F. L. 11. 5(3.
72 FANTI CUSTOMARY LAWS.
whose marriaore with him or throucrh whom the ojrant wa.s
originally made ;
(e) By purchase of the building erected thereon.
The woman is, however, entitled to live in such buildings
as may have been erected by the husband.
The right of the grantor is lost by —
(a) Gift or sale of the freehold to the grantee ;
(6) Sale of the land by the grantor to any person ;
(c) Death of the grantor without heirs or any successor.
If the grantee erects any building on land so granted,
and he desires to sell such building, there being failure of
issue by his wife then deceased, the grantor or his successor
has an absolute right of having the first offer.
Where the grantee has issue by the wife, through whom
he came into possession, he cannot sell premises erected on
land so granted without the concurrence of his wife and his
children by her.
If such premises be sold without the consent of the
grantor or his successor and family, but only with the con-
currence of wife and children, the purchaser acquires, at
the most, only a life interest, and can only enjoy the
property during the life of the grantee, his wife, and their
children, for as soon as they all die, the grantor or his
successor is entitled without any interruption to take back
the land, without paying any compensation whatsoever for
any improvements made or for any buildings thereon
erected.
And not only is the grantor or his successor entitled to
the first offer, but he is entitled to demand from the
purchaser an acknowledgment, that the land is not the
property of the person who built the premises. This
acknowledgment may be made by payment of money or
by giving any token.
If the grantee or purchaser neglect or refuse to render
the acknowledgment, or to pay any reserved rent, he must
remove his buildings and quit the land. The creditors of
the owner of the buildings can at any time pull down the
FANTI CUSTOMARY LAWS. 73^
buildinsrs and remove the materials in satisfaction of their
claim. Therefore, where the owner of land gives leave to a
person to build, the maxim quicqwid plantatur solo, solo
cedit, doth not apply, and even if the materials were
acquired from the land, and the occupier unsuccessfully
contests the right of the owner, yet he can pull down the
houses, when he is being turned out, or he is voluntarily
leaving.*
It is a well-established custom that no one should bo
improved out of his land, and also that family and ancestral
properties must not be alienated except for well-recognized
reasons.
Where famil}" or ancestral property has been alienated
for value, the original owners, or those descended from them,
can repurchase such property, provided the proper sacrifice
is offered, the necessary libations are made, and the family
or persons in possession are not residing on such property
or using it. If a portion of the land has been set apart for
a burial-place, that part need not be reconveyed to the
family of the original owner at their request. The re-pur-
chasing of such property is called Pun, that is Kedemption.t
A family owning or in possession of other lands as free-
holders in the same neighbourhood, cannot compel this kind
of redemption, and a long period of time does not bar the
right to such recovery of ancestral property. This kind of
redemption must not be confounded with the redemption
of mortgaged or pawned lands.
Owners of lands where gold and other minerals are
found give permission to miners to work thereon. These
men open mines and sink several shafts, and the customary
rent is what is known as Ebusa, which is a division into
three parts of whatever the mines produce, whether gold,
or quartz, or other minerals. To the landlord belongs one-
third. But whenever gold nuggets are found in such mines
the landlord takes one-half.
* Wood V. Aisau-a, 2 F. L. E. 51.
+ Comi are Leviticus xxv. 23-27.
74 FANTI CUSTOMARY LAWS.
The owner of land covered with timber is entitled, in
the absence of express agreement, to one-third of all logs,
beams, and other timber felled or gotten of his land. And
generally the owner of land is entitled to one-third of all
produce gotten of his land by his tenants ; this one-third is
given him in kind, or its value paid in money, as the owner
shall direct.
In the Wassaw Amenfi district Tikororo custom pre-
vailed, that is, King Enimil was entitled every Saturday
during the mining season to be paid from each mining
shaft a measure of quartz, and this was collected on each
Saturday by the king's servants.
Grantees or their successors asserting title to a land
adverse to the grantor, or disputing his title, forfeit their
possession, and may be ejected at once from the land by
the grantor or his successors.
CHAPTER V.
SURETYSHIP.
Suretyship, Eginam-dzi or Aha-su-dzi, is a collateral
engagement by a person to be responsible for the debt or
performance of the obligation of another. The person who
undertakes to be so responsible is called the surety, Egina'tn-
dzi nympa or Aha-su-dzi nyi. To constitute valid suretyship,
it is essential to have the mutual assent of all the parties,
namely, the creditor, the person secured, usually called the
principal debtor, and the surety. These three parties must
be persons competent to contract, and they must do so with
the necessary formalities and ceremonies.
However much a person may like to stand surety for
a principal debtor, he cannot do so against his approval,
whether such person is related to him or not. The creditor
also must assent to the suretyship, and, until his acceptance,
the offer to be so liable is revocable. Where the creditor
FANTI CUSTOMARY LAWS. lb
and his debtor are subjects of the same stool, or members
of the same village community, under the same headman,
chief, or king, such king, chief, or headman cannot be a
surety, and any engagement on his part to be responsible
to a person so under him for another person under him is
void. Likewise, the head of a family cannot be surety to a
member of the family for another member of the family.
But where the creditor belongs to a different family, even
though of the same clan, the head of the family can become
surety for a member of the family to the creditor. Insane
persons and lunatics cannot be sureties. If a person, through
intoxication or by duress, become a surety, he can avoid his
responsibility by acting promptly, and calling upon the
creditor to release him from his obligation, otherwise his
acquiescence will bar his release. A married woman cannot
without the consent of her husband become surety for any
person whatsoever, save and excepting her parents and
children. Except with her mother or other immediate blood
relatives, an infant can never become surety. The liability
of a surety to answer for the debt of another, or for the con-
sequences arising from failure of the performance of his
principal's obligation, is a personal responsibility, and does
not bind the surety's family or his successors. When a man
becomes surety none of his children are bound by his con-
tract, except such as joined in the contract with the consent
of their mother or her family. Although there may be slight
variations in some localities, there is always a promise made
or oath taken by the principal debtor to the proposed surety,
that on such and such a day he will hand to the surety the
amount in question, or that before the expiration of the
specified day the contract will be performed ; e.g. A requiring
2 ackies goes to B, who agrees to give it him on his finding
a surety. C consents to guarantee the amount. To complete
this contract there must be witnesses, in whose presence B
counts the money and places it in the hands of C, who parses
it to A. Immediately before or after the receipt of tlie
money, A has to promise C, or take oath in the presence of
76 FANTI CUSTOMARY LAWS.
these witnesses, that he, A, will repay C the loan on the day
fixed, so that he, C, may pay B. If A has sureties, whether
members of his family or otherwise, each of them makes the
same promise or takes an oath to the same effect. After this
C also promises B, or takes oath, that, on the day specified,
he will see A repay B the loan, or he, C, will make it good.
Where C also has sureties, each of them promises B, and
takes oath to the same effect, each promissor in his turn calls
the witnesses to take note of what is going on. The witnesses
are usually invited by the creditor, debtor, and surety
respectively, and in their presence the considerations must
be distinctly stated. After the creditor has consented to
accept C as surety for A, a sum of money or chattel is given
to the witnesses as token of the contract. If there are
persons who ''stand behind" the surety to ensure the due
performance of his guarantee, they do not always expressly
make any promise or take any oath, the surety C merely
saying to the creditor, " these stand behind me," i.e. they
are my sureties. Money or token given to the witnesses is
added to the debt of the debtor.
In default of payment, the remedy of the creditor is
against the surety in the first instance, and not against the
debtor. It is only where the surety cannot be found, or he
fails to pay, that the creditor can sue the debtor, for then
it is certain that the debtor had failed to keep his solemn
promise to the suret3\ It is the duty of tho debtor to per-
form his solemn stipulation, and to see that his surety does
not fail in doing likewise, for the debtor should know
more of his surety than the creditor. Where there are
several sureties for one specific sum of money, they are
jointly liable, and each cannot be made to pay more than
a proportion of the debt. Where the creditor makes
further arrangement with the debtor, unknown to the
surety, or without his consent, or grants him more time,
or instigates the debtor to run away or so deal with his
property, that the surety's means of falling on it to recoup
himself is lost, the surety is discharged. Where a creditor,
FANTI CUSTOMARY LAWS. 11
by fraud, or misrepresentation, induces a man to become
surety for a debtor, the contract is void. A person does
not become a surety by merely interceding for a debtor.
At the time of accepting the guarantee, the creditor is to
give the surety some money, varying in amount from a
takoo, or ninepence, to an ounce of gold (£3 12s.), to bind
the contract of suret3^ship.
When the surety wishes to strengthen his claim on
the debtor's relations, the debtor is usually joined by
hi-5 brothers and nephews, the younger ones being pre-
ferred, as in the ordinary course of nature the younger
ones may live longest. In order that the debtor may
expeditiously fulfil his contract, it has long been customary
for a child, relative, or servant of the debtor, to live with
the surety, and in the event of the death of the debtor, the
fact of such a person residing with the creditor, or surety,
is a strong proof to the debtor's family of the existence of
the debt.
This custom is quite distinct from pawning (Ahuha). A
person placed in pawn is not personally liable for the debt,
although in temporary bondage to the creditor, and as such
he cannot acquire any property, which will belong to the
creditor. The death of the pawn does not cancel the debt
and he must be replaced. But in the case of Eginam-dzi
(suretyship) the co-surety, i.e. the person " standing behind,"
is personally liable for the settlement, and while remaining
with the creditor he can acquire property or earn means to
liquidate the debt. The creditor may, though not bound,
maintain him, and if he does maintain him he can add the
expenses thereof to the debt, unless the co-surety gives his
services in return.
The surety has a right to fall on the debtor to repay
him all monies he may have paid to the creditor, together
with any expenses and disbursements incident thereto. A
surety is not entitled to the benefit of any set-off the
principal debtor may have against the creditor, unless by
express agreement.
78 FANTI CUSTOMARY LAWS.
CHAPTER VI.
ALIENATION.
Alienation of property may be by (i.) gift, (ii.) mortgage
or pledge, (iii.) loan, (iv.) sale, or (v,) testamentary dis-
position, and any property about to be alienated should
be so described and defined that there can be no reasonable
doubt as to its identity.
The head of a family has greater powers of alienation
over moveable ancestral property than he has over im-
moveable ancestral and family property.
He can alienate the former in gifts to any of the
members of the famil}^, or for their education, support, or
relief from distress, or for starting in trade or business, or
for getting a wife for any member.
Whenever there is a stool or family debt, the stool or
family property, whether moveable or immoveable, can be
taken and sold to pay such debt. And where the members
under the stool or of the family refuse or are unable to
pay such lawful liability, the stool-holder or head of the
family can, after due notice to the senior members of the
stool or family, with or without their concurrence, mort-
gage or pledge any stool or family property.*
Amid all the conflict of contradictory accounts which
meet one at every turn, it is nearer the mark to say, that
the head of the family has the moveable ancestral property
in his absolute control ; if, therefore, the family find he
is misappropriating, wasting, or squandering the ancestral
fund, it is to their interest to remove him at once and
appoint another in his stead.
The head of a family cannot, without the consent of
all the principal members of the family, or the greater part
thereof, that is the Ebusuafu, alienate the immoveable
ancestral or family property.
* Aidoasi v. Abban, 2 F. L. R. 90.
FANTI CUSTOMAllY LAWS. 79
And although an alienation may be necessary for some
family purpose, or for the discharge of a family obligation,
nevertheless, unless confirmed by the senior or principal
members of the family, such alienation is revocable.
Neither the head of the famil}^ acting alone, nor the
senior members of a family acting alone, can make any
valid alienation nor give title to any family property
whatsoever.
Any person buying or advancing money on any
property should carefully inquire whether the property is
ancestral, or family, or private. If he find from his in-
quiries that it is not of the last description, he is bound
to inquire into the necessity for the alienation, and find
out whether all the beneficiaries are parties to the trans-
action; whether such alienation benefits the estate or
family ; and in cases where the property is in a stranger's
possession, whether the senior members of the family have
received notice of such transaction. Pandy v. Koomvaree,
6 Moore's Indian Appeals, 423 : —
" The court will consider whether the debt for the dis-
charore of which the alienation is alleged to have taken
place, has been incurred owing to misfortune, an income
inadequate for the ordinary expenditure of a person in the
position of the person incurring the debt, or antecedent
mismanagement of other managers ; or, on the other hand,
whether it is owing to profligacy and wanton waste of the
estate on the part of the alienor ; and if the latter state of
facts be proved, the court will scrutinize rigidly to see if
the person advancing the money was in any way a party
to such profligacy or wanton waste, and if it be shown
that he was so cognizant of or a party to it, the court will
not deem the alienation to have been lawful." Thus de-
cided their lordships of the Queen's Privy Council, and
it is worthy of remark, that in the native tribunals the
purchaser of ancestral family or stool property must have
clean hands, if he is to retain possession of such property.
Where money has been advanced for the purpose of
"80 FANTI CUSTOMARY LAWS.
discharging an ancestral or a family debt, and the members
of the family have parted with their ancestral or family
property in satisfaction of such advance, such alienation is
valid, if the alienee is able to show that he acted honctfide ;
that in truth and in fact, the money advanced was for the
discharge of an ancestral or family debt ; and that on in-
dependent inquiry he was satisfied it was an ancestral or
family debt from which it was necessary to relieve them.
Whenever the alienation of any property is set aside,
•the alienee is entitled to get back his purchase-mone}'' from
•the person who received it, and where the person at whose
instance the alienation was set aside has had some benefit
from the purchase-money, he will be bound to refund the
whole or lose his suit. AwortcJtie v. Eshon, March 7, 1871.
But where the alienee fails to prove facts which would
justify a refund of the purchase-money, he loses his money.
If, however, part of the alienation is found to be justi-
.fiable and a part not, then the alienee will be entitled to
the part upheld.
(i.) Gift.
Gift consists in the relinquishment of one's own right
And the creation of the right of another, in lands, goods, or
-chattels, which creation is only completed by the acceptance
of the offer of the gift by that other.
It must be remembered, however, that gifts are oftener
made of moveables such as goods and chattels, than of lands
•and other immoveables.*
To constitute a valid gift, an intention of giving or
passing the property in the thing given to the donee by the
donor, who has power so to do, is necessary.
The acceptance of such gift by the donee must be made
.in the lifetime of the donor.
The giving and acceptance must be proved and evidenced
* Ilalm V. Hughes, 1 F. L. R. 65 ; Bimha v. Mansa, 1 F. L. R. 137.
FANTl CUSTOMARY LAWS. 81
by such delivery or conveyance as the nature of the gift
admits of.
What is given by a person in wrath or excess of joy, or
through inadvertence, or during minority or madness, or
under the influence of terror, or hy one intoxicated, or
extremely old, or afflicted with grief or excruciating pain,
or what is given in sport, is void.
Where anything is given for a consideration unper-
formed, or to a bad man mistaken for a good one, or for any
illegal act, the owner may take it back.
The acceptance of a gift may be made publicly or
privately, having regard to the nature of the gift; but
the acceptance of a gift, consisting of immoveable property,
must be invariably made with as much publicity as possible.
Acceptance is made —
(i.) By rendering thanks with a thank-offering or
presents, alone or coupled with an utterance or expression
of appropriating the gift ; or
(ii.) Corporeal acceptance, as by touching ; or
(iii.) Using or enjoying the gift; or
(iv.) Exercising rights of ownership over the gift.
In this country gifts invariably clothe themselves
with the semblance of a sale, and therefore, where formal
acceptance is wanting, the owner can take back his gift.
Gifts, in the European sense of the term, as far as regards
immoveables, seem to be unknown here.
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
expresses his acceptance in the manner set forth in (i)
above.
Every gift when completed is irrevocable, except in
gifts between parent and child, which can be recalled or
exchanged at any time by the parent in his or her lifetime,
or by his will or dying declarations.
A gift is not rendered invalid —
(a) By being made in contemplation of death and
G
82 FANTI CUSTOMARY LAWS.
subject to a conditional right of resumption in case of the
donor's recovery ; *
(h) By being made dependent on a contingency ; or
(c) Because the donee is a minor, provided some one on
his behalf makes the necessary acceptance ; or
(d) Because it is voluntary.
Anything given in return for a gift, as a token of the
acceptance, cannot be recalled so long as the original gift is
in the possession of the original donee.
(ii.) Mortgage and Pledge.
A pledge is the delivery of a thing or chattel to a
creditor as a security for money advanced or due, on con-
dition of his restoring it to the owner after payment of the
debt, and subject to a conditional power of sale if the loan
or debt be not paid at a certain specified time.
The creditor is not bound to defend the title of the
owner of such security.
A moveable thing or chattel given as security for a debt
is a pledge.
An immoveable property given or conveyed by way of
security for a debt is a mortgage.
The person giving an immoveable property as security is
called the mortgagor ; and the person to whom such property
is given is called the mortgagee.
When the mortgagor discharges the liabilities for which
an immoveable property is mortgaged, he is said to redeem
the property.
When the mortgagee enforces any right given to him by
his contract of putting an end to the mortgagor's right to
redeem, whether by selling the property, and out of the
proceeds of the sale satisfying the debt on the property,
or by transferring the property to another person, or by
* Asandua v. Hayfron and others, before Macleod, C.J., 1887, a case
of Donatio mortis causa.
FANTI CUSTOMARY LAWS. 83
becoming absolute owner of the mortgaged property, he is
said to foreclose.
Where a person is the security'' given for the payment of
any sum of money, the person is called a pawn, and the
transaction, pawning ; but since the Gold Coast Ordinance,
No. 1, 1874, this has been declared illegal.
A mortgagee has no power to foreclose without first
giving reasonable notice to the mortgagor, and in his
absence, to the immediate relatives of the mortgagor, of his
intention so to do.
Where real property has been mortgaged, the mortgagee
is absolutely entitled to enjoy, without any hindrance what-
soever, all profits accruing therefrom, nor is he accountable
for the profits so enjoyed.*''
Where continuing interest is charged for the principal,
the mortgagee may reimburse himself for any trouble or
expenses he may have put himself to, for and on behalf of
the mortgaged property.
A mortgagor can redeem at any time he please, provided
he repays all monies due on the property, whether such
monies be the principal debt or interest, or expenses in-
curred on behalf of the property.
No mortgagor or mortgagee, or their respective suc-
cessors, can transfer to another any rights which he may
have under the mortgage without notice to the other party
to the mortgage transaction. The mortgagor may assign
or transfer his right of redemption to a third person.
To make such an assio^nment or transfer of mortojaeje
rights valid, it is necessary that some of the witnesses of
the original transaction be present, if available, or the
mortgagor have notice of the person to whom such assign-
ment or transfer is made.
The person to whom a chattel is pledged has the right
to use it, nor is the pledgor discharged if the thing pledged
is destroyed by use : e.g. Kudwo pledges his cloth to Kwow
* Amonoo v. Abbakuma, 1 F. L. E. 157 ; Ashoiig v. Barng, 1 F. L. R.
153.
84 FANTI CUSTOMARY LAWS.
for a dollar. Kwow has the right to use the cloth, and
Kudwo is bound to repay the dollar so long as the pledgee
can restore the cloth, even if in a torn and worn-out
condition.
No person can sell a chattel pledged to him until the
owner on being requested to redeem has failed so to do.
Where the owner is dead or not to be found, his immediate
successors or relatives must have notice of the intended
sale of such pledged article before the pledgee can safely
sell.
The pledgee cannot purchase from himself any article
pledged to him unless the owner thereof, or some one claim-
ing through him, has gone into accounts with the pledgee
and consented to his taking the chattel, in full or part
satisfaction of the debt.
Where a mortgagee or pledgee realizes his security and
finds there is still a balance due, he cannot call on the
mortgagor or pledgor to make up the difference. If his
security has turned out insufficient, he has to thank himself
for his simplicity. The debtor, however, is bound to make
good the balance, if the creditor sold it by his instructions
or with his approval. If, on the other hand, the security
realizes more than the debt, the surplus must be paid over
to the debtor or his personal representative. Once a pledge
or mortgage, always a pledge or mortgage.*
(iii.) Loans.
A loan is the lending of an article to another person
called the borrower, for the use of such borrower, either
gratuitously or for valuable consideration.
The property in an article borrowed remains in the
owner, whether the borrower himself have it in his posses-
sion or not.
The borrower is bound to exercise the greatest diligence
* Incroma v. Mar moon, 1 F. L. Tl. 157.
FANTI CUSTOMARY LAWS. 85
and care for the safety of the article borrowed, for if the
thing borrowed is injured through his carelessness, he is
bound to make an equivalent restoration.
If the thing borrowed be injured or lost by act of God,
he is not liable if his own negligence did not conduce to
such loss or injury. If the thing be lost by any other
cause whatsoever, the owner at his own option can claim
the value or an article of like nature and qualit}'.
Where the borrower fraudulently deals with property
borrowed, or uses it for a purpose different from that for
which he told the owner of the thing, he is liable, not only
to return it, but also to account for any profits accruing
therefrom.
E.g. : A lends his cutlass for a month to B, who said he
wanted to cut some bamboo trees. B does not use it to cut
bamboo trees, but to cut down odum wood. A can claim
his cutlass back before the end of the month, and compel
B to give compensation from the proceeds of the odum
wood.
If B had not shown for what purpose he required the
cutlass, A could not demand any compensation.
The most common kind of loan is that for money.
Here the lender invariably asks for a surety or security,
and in the absence of a special and distinct contract, the
rate of interest is fifty per cent, on the sum advanced, the
principal and interest being payable at an indefinite time
not less than a year, and even then after notice. The said
interest of fifty per cent, is added once for all ; other lower
rates are fixed, according to an agreement of the parties.
Among the Wassaw people, for each extension of time not
less than a month an extra interest is charged.
(iv.) Sale.
Dealing with the native law and custom relating to
the sale of land, wher^; the English language or a written
instrument is not used, the careful student will doubtless
86 FANTI CUSTOMARY LAWS.
not fail to observe that, of all things, land is about the last
thing which became the subject of an out-and-out sale.
Owners of land were as reluctant and unwilling to part
with their land and inheritance as was Ephron, the Hittite,
to sell a burying-place to Abraham, as recorded in the
Holy Writ. Rather than sell his land, the Fanti landowner
prefers to grant leave to another, a friend or alien, to
cultivate or dwell upon it for an indefinite period of time,
thus reserving unto himself the, reversion and the right to
resume possession whenever he please.
This is the reason why the first European settlers could
not buy the freehold of the site of their forts and castles,
but had to give pay-notes, securing to the owners of the
land certain annual rents.
Before the prohibition of slavery and pawning on the
Gold Coast, rather than part with the family inheritance,
members of a family have cheerfully volunteered to be sold
to raise money for the payment of a pressing family liability.
But in process of time, and especially since the emanci-
pation of slaves and the prohibition of slavery, the sale
of lands has been of more frequent occurrence in the coast
towns.
The inhabitants of the more inland distiicts are very
conservative, but the native laws and custom relating to
the sale of land have not changed at all, and the decisions
of the Judicial Assessors thereon are as applicable to-day
as then.
To constitute a valid sale of land on the Gold Coast
there must be —
1 . Competent contracting parties ;
2. Mutual assent of such parties ;
3. The marking out or inspection of the land and its
boundaries, and, if necessary, the planting of boundary
trees, and fixing of boundary marks ;
4. Valuable consideration, that is gold, money, or chattel,
paid, given, or promised ;
5. The payment of Trarna (earnest money) to the
FANTI CUSTOMARY LAWS. 87
vendor or his representative, in the presence of some of
the members of his family and witnesses.
1. To find out who are the competent contracting parties,
one must know whether the land about to be sold or pur-
chased is —
{a) Land appurtenant to a stool ; or
(6) Land held in common by the members of a village
community or a compan}?^ ; or
(c) Ancestral property ; or
{d) Family property ; or
(e) Self-acquired property.
(a) To every stool {Bogy a Egwa) to which annual
sacrifices are made, are attached lands under cultivation,
or forest, or habitable, and in such lands the family, in-
cluding the servants and others, the immediate dependents
of the stool community called domestics, have a life interest.
The blood relatives of the original owner, the purchaser,
with the occupant of the stool, however, possess a greater
and superior interest in such stool property, but the
occupant of the stool alone cannot sell or alienate any
portion of such property. Per Sir David Chalmers, Judicial
Assessor : —
" I apprehend that not even the regular occupant could
alienate property without some concurrence by the people
of the stool who have an interest in it, and are usually
consulted on such a matter." *
If one of the people of a stool {Bogya Egwa) convey
any stool land on his own authority, and in so doing no-
doubt intends the best interests of the stool, yet such
transaction is not binding on the stool or the members
thereunder so as to give a valid title to the land.
(6) The village community is a corporate body, of which
the members are the resident families or family groups
residing in the several households.
These villaore communities are scattered over the length
and breadth of the whole of Guinea. The headman of the
. * Barnes v. Alia, 1 F. L. K 169.
88 FANTI CUSTOMARY LAWS.
village is in some places so by hereditary right, in other
places he holds his position by election. In places where
the right is hereditary, the members of the village com-
munity, by and through the council of the village elders,
have a right of veto to his election. Land owned by the
village community can be sold, when, there being a public
liability, the inhabitants of the village are unable to
contribute money for the payment of such claim, and
the village council decides to sell such land or a portion
thereof. The headman of the village, acting together with
the members of the village council, alone can sell the land ;
but where the plot is in the occupation of some one, that
person is entitled to make the first offer for it. So, also,
in cases, where land is owned by a company, the person
who can act for the company is the president of the
assembly of captains controlling and managing the affairs
of the company. The captains in a body, with their presi-
dent, may sell lands belonging to the company whenever
any pressing or special need arises, causing the alienation
of such property for purposes of the company, expedient or
imperative.
(c) Ancestral property is any moveable or immoveable
thing which has descended to a person from an ancestor
however remote ; all savings made out of such moveable
or immoveable thing, and all purchases or profits made from
the income, or from the proceeds of the sale thereof, follow
the character of ancestral property, also every immoveable
property acquired on partition of, or in exchange for, pro-
perty which has so descended.
Per Chalmers: "I consider that the new tenements took
all the incidents of the one for which it was substituted,
and was therefore in Degraft's lifetime in the same position
as if it had been land of inheritance to which he had
actually succeeded." *
{d) Family property is any moveable or immoveable
thing acquired —
* Barnes v. Mayan, 1 F. L. 11. 180.
FANTI CUSTOMARY LAWS. 89
i. By the joint labour of the members of a family. One
of the most common instances of this is the build-
ing of a house by the members of a family ; or
ii. By the contributions from two or more members of
one's family.
(e) Property is designated self-acquired or private, where
it is acquired by a person by means of his own personal
exertions, without any unremunerated help or assistance
from any member of his family ; or without any advance
or contribution from the ancestral or family possessions of
his family.
The owner of self-acquired property, whether such
property consists in land or otherwise, can sell or deal with
it as he thinks fit.
But where any land, lost by an ancestor or any of his
successors, has been recovered by a member of the family
out of his private resources, such land is considered to have
been purchased for the family, and is not self-acquired
property, unless the members of the family were made dis-
tinctly to understand at the time of purchase that it will
not resume its former condition as the ancestral property.
It should be noted, while on this point, that, with the
exception of the coast towns, where there is much contact
with European ideas, self-acquired or private property in
its strict sense does not exist over the whole country,
because the family group is of the patriarchal type.
The occupant of a stool and the head of a family each
occupies a position somewhat similar to that of a Roman
paterfamilias.
But in this country the head of a family holds the
family possessions in trust for himself and the members of
the family.
All the family possessions are under his control, and
all acquisitions made by the family are made for him,
and fall into the common stock, and all the self-acquired
property of a person which remains undisposed of at his
death descends to his successors as ancestral property.
90 FANTI CUSTOMARY LAWS.
It is a universal custom that if an individual holds
property in severalty, that is, as sole owner and possessor,
it will in the next generation relapse into a state of joint
tenancy.
If land be free to-day in the hands of its acquirer, it
will to-morrow resume its fetters in the hands of his heirs.
Absolute, unrestrained, and exclusive ownership, enabling
one person to deal with his immoveable property, is the
exception. For the father is restricted by his brother, the
brother by his sister's sons and daughters, and the woman
by her own issue. In the English law, individual property
is the rule ; the converse holds in the Gold Coast.
The head of a family has greater powers of alienation
over moveable than he has over immoveable ancestral pro-
perty and family property. He can alienate such moveable
property in gifts to any of the members of the family, for
their education, support, or getting a wife for any member
of the family.
If the family, tlierefore, find the head of the family
misappropriating the family possessions and squandering
them, the only remedy is to remove him and appoint
another instead ; and although no junior member can claim
on account from the head of the family, or call for an
appropriation to himself of any special portion of the family
estate, or income therefrom arising, yet the Customary Law
says they who are born and they who are still in the
womb require means of support, wherefore the family lands
and possessions must not be wasted or squandered.
The head of a family cannot, without the consent of or
notice to all the principal members of the family or the
greater part thereof,* alienate any part of the family im-
moveable possessions, and if such consent is secured, the
alienation must be for the benefit of the family, either to
discharge a family obligation, or the proceeds of such
alienation must be added to the family fund.
In answer to the Judicial Assessor, as to how such
* Gaisiwa v. Alcraha, 2 F. L. R. 94.
FANTI CUSTOMARY LAWS. 91'
consent should be signified, the Chiefs said * : — " It would be
necessary for all the members of the family to meet and
discuss, and if there were land to be sold, all the members
would meet and f^fet strano^ers to be witnesses, and the
family would concur for payment of the debts. As many
members as could be got should represent the family. When
such meeting and discussion has once been had, the sale
remains good. It would be proved by the strangers who
were witnesses."
The right of one of the senior or elder members of the
family to rescind or set aside sale of ancestral or family
land, such person having opposed the sale, has been the
subject of a decision of the Full Court, presided over by
Chief Justice Marshall in Bayaidee v. Mensah. f
The Court said : — *' Although it may be, and we believe
it is the law, that the concurrence of the members of the
family ought to be given in order to constitute an unim-
peachable sale of family land, the sale is not in itself void,
but is capable of being opened up at the instance of the
family, provided they avail themselves of their right
timeously, and under circumstances in which, upon the
rescinding of the bargain, the purchaser can be fully
restored to the position in which he stood before the sale.
This, obviously, is not the case, whereas here the purchaser
has possessed for a series of years (fourteen years) in
undisturbed ownership, has cultivated and improved the
land and established a home upon it. We are of opinion
that whatever right of impeaching the sale the family
possessed, is barred by their acquiescence and the plaintitt^s
continued cause of undisturbed possession.'*
The principle enunciated has been followed in two im-
portant decisions, Asraidu v. DadzieX and Bokitsi Conces-
sion Inquiry. §
2. The intending purchaser having discovered the proper
persons from whom he could buy, and who could give him
* AirorfcJne v. Es/wn, 1 F. L. R. 170. t 1 F. L. E. 171.
t 1 F. L. R. 174. § 2 F. L. R. IGO.
t)2 FANTI CUSTOMARY LAWS.
a good title, now enters into negotiations with them, and
in the course of these he makes known to them what he
seeks to buy.
It has been already stated that in ancient days the sale
of land was not of general or common occurrence, and to-
day there are some parts of the Gold Coast whose in-
habitants will not sell any of their lands.
But the sale of the produce on one's land is a very
ancient custom. In the palm-oil producing districts there
exists the custom of selling the palm crops of a specified
field, for one or more seasons, and the purchaser is entitled
to enter on the land with his servants to gather the nuts
and make the oil on such land. While eng^aored in this
work they may eat some of the plantains there growing,
but must not remove any for sale.
On the same principle landowners sell growing timber
for a lump sum of money, which the purchaser has the right
to cut down on and remove within a reasonable time, from
a ])iece of land, the name of which is given, or the
boundaries thereof are mentioned or shown. When the
trees are cut down the land reverts to the owner, although
the felled timber can be removed afterwards. Unfortu-
nately, it has been found in several instances, that land-
owners have been made to put their names and seals to
documents in the English form, under the belief they were
selling only the timber on such land, when, as a matter of
fact, they were parting with the entire ownership of such
lands. It is satisfactory to state, that many conveyances
of this kind, having been detected by the Concessions
Divisional Court at Axim, were abandoned by the
claimants thereof.
The right to collect or manufacture rubber on payment
of a lump sum is more in the nature of a licence for
valuable consideration than of sale of the rubber.
Generally when any land is sold, and the ownership
is parted with, the purchaser becomes the owner of every-
thing, including the minerals in such land, for the common
FANTI CUSTOMAKY LAWS. 03
saying is, " If you find a treasure-trove on your land, you
are entitled to it ; it is your luck." But in such mining
districts as Wassaw, Sefwhi, Apollonia, and Aowin, the
purchase of lands does not include the minerals. The
ownership of the minerals is vested in the king's stooU
When the purchaser mines, he is bound to give to the stool-
holder the usual Ebusa ; if, however, he allows others to
mine, he is entitled to claim from them one-third as his
Ebusa, and of this the stool-holder gets a third.
3. When the owners of tlie land consent to sell, a day
is fixed for inspecting the land. The owners of land
adjacent to and abutting upon land under inspection are
invited to be present, so that disputes as to boundary
marks may be averted in the future. Where the land ia
a town plot, and the intending purchaser knows it, an
inspection may be waived.
In the contract of sale, whether of immoveable or
moveable property, one is ever reminded of the saying, Obi
nto nantiui anaonon, "Nobody buys the footprints of a
bullock."
4. Having determined upon the identity of what is to be
sold, and the interest which the buyer is acquiring, the
price is fixed, and is payable in gold or silver. In former
days purchases were made by barter. The Fanti Avord for
trading is Batta. This word is used by Asanti and other
traders, and is not a corruption of the word " barter." *
5. Then is paid the earnest-money (Trama). This
binds the contract, for without the payment of Trama to-
the vendor no contract exists, and he is at liberty to sell
the land to some one else for a larger price ; the intending
purchaser can withdraw his offer and repudiate the con-
tract without being liable to any damages, although the
Trama becomes forfeited ; but if any part payment has-
been made, it is doubtful whether it can be recovered. In
this connection is the expression, " If you have not eaten
anything you do not pay for it." Basel Mission Factory v..
♦ CohMd V. Taweia, 1 F. L. K. 179.
94 FANTI CUSTOMARY LAWS.
Jinice, 2 F. L. E. 99, will repay a careful study, and will
1)0 found very interesting, instructive, and useful. In that
case the defendant purchased a piece or parcel of land
from one Jacob Vanderpuye, on April 23, 1899, for one
hundred and seventy-five pounds, of which he paid eighty
pounds down ; the balance, ninety-five pounds, was to be
paid three months afterwards. The purchaser did not
receive a deed or any document, but at the trial he called
evidence to show, and the Court found, that the sale was a
valid one by native law. The plaintiffs alleged they had
bought from the same Jacob Vanderpuye a larger piece of
land, of which this formed a portion, for three hundred and
eighty pounds, and had received a deed of conveyance
for the same on June 19, 1899, which had been duly
registered as required by sect. 17 of the Registration Ordi-
nance, 1895 ; and, further, as they were not natives, the
Customary Law relating to sales should be disregarded.
The Court decided that the land in question had been
validly sold to the defendant prior to its sale to the
l)laintiffs, and gave judgment in favour of the defendant,
and this was, on appeal, confirmed.
The Trama is sometimes distributed among the wit-
nesses to the contract, as token of their presence when the
bargain was struck ; but it is more usual for the vendor on
receiving the Trama to sjive to the witnesses a distinct
amount of money.*
The drinking of palm-wine, rum, gin, or other spirits is
not an essential part of the contract of sale.
In Appendix XII. will be found a form of document
which has been extensively used by the author for many
years. It was prepared for those who were anxious to hold
or possess some documentary evidence of their title to
property validly acquired in accordance with the require-
ments of the Customary Law. The form is now translated
into the Fanti language for the use of persons who prefer
to conduct their business in their own lanfjuaije.
* Quay V. Jt/icoodsuahf 1 F. L. R. 163.
FANTI CUSTOMARY LAWS. 95
In tLe absence of aorreement reservino^ the croDS on the
land which are to be removed as soon as possible, or within
a specified time by the owner, the purchaser of a piece of
land is entitled to all that is thereon and within it.
He who offers anything for sale thereby implies he has
a right or is authorized by the true owner or owners to sell
and part with the ownership therein, and to give a good
title to the purchaser. Where the title is found defective,
the purchaser can demand his money back, and all expenses
incurred must be repaid by the seller, whose personal repre-
sentatives are not liable. If, therefore, a man buys from
another, and after the death of the seller the purchaser
discovers his title defective, he has no remedy, for if he
wished to protect himself, he should have specially contracted
with the seller for good title and included his successors
or heirs. No earnest-money (Trama) is paid in simple
purchases or in barter. In the sale of lands and slaves,
and for a large quantity of goods at one sale or transaction,
Trama must be paid.
In contracts for the sale of chattels and merchandise, as
soon as Trama is paid, the purchaser is entitled to their pos-
session on payment of the agreed price. If he fail to com-
plete the purchase, he forfeits the Trama, but he does not
seem to be liable to any damages for breach of contract. The
vendor cannot compel the purchaser to perform his part of the
contract ; on the other hand, in the absence of the Trama,
the purchaser cannot, b}^ tendering the price agreed upon,
compel the vendor to give him delivery. The respective
positions of the parties, and their freedom from liability,
are tersely stated in the well-known trade expression,
current on the West Coast of Africa, " No buy, no pay."
(v.) Testamentary Dispositions.
The Customary Law knows nothing of wills in writing,
and even in the matter of testamentary dispositions the
members of the family exercise much influence.
96 FANTI CUSTOMARY LAWS.
Cruickshank describes the ceremony of will-making, as
he calls it, which is still common among the people. " In
view of death, the head of the family summons around his
death-bed his relations. He instructs them about the state
of his affairs, and how his property was acquired, and how
to be disposed of. He is most particular to furnish them
with proofs respecting the acquisition of his pawns and
slaves, mentions the names of the witnesses to the trans-
actions, the circumstances under which they took place, and
the sums paid for them, in order that his successor may be
enabled to defend his rights, in the event of their attempting
to obtain their liberty or redemption at the death of their
master. He also recounts the names of his debtors with the
sums which they owe to him, as w^ell as the debts which he
owes to others. His death-bed declarations, made in the
presence of responsible witnesses, are always received as
evidence in the event of litigation afterwards." The curious
inquirer may here be informed how suggestive are the death-
bed scenes of the patriarch Jacob, as recorded in the sacred
writ (Gen. xlix.), and that of King David.
Now^, it has been affirmed as a general proposition by Sir
Henry Maine, in his "Ancient Law," that in all indigenous
societies a condition of jurisprudence, in which testamentary
privileges are not allowed, or rather not contemplated, has
preceded the latter stage of legal development in which the
mere will of the proprietor is permitted, with more or less
restrictions, to override the claims of his kindred in blood.
And even among the Romans, a will was never regarded by
them as a means of disinheriting a family or of effecting the
unequal distribution of a patrimony, and the rules of Law
preventing its being turned to such a purpose increase in
number and stringency as the jurisprudence unfolds itself.
Samansiw is, in fact, not a word that accurately conveys the
conception of a will as understood by an English lawyer, for
the idea of making a disposition of property to take effect
after the death of the giver, as has been noticed by observant
European travellers on the Gold Coast, is really opposed to
FANTI CUSTOM AKY LAWS. 97
the fundamental principles of the ties binding the members
of the family.
Without doubt, the custom of making wills with respect
to self-acquired property is of modern growth, but no one
can tell when the practice first began. Death-bed dispositions,
known as Satnansiw, seem to be recognized, not so much
because of any assumed right to make such a disposition, as
because, from feelings of afiection, respect, or even superstition,
the last wishes of the deceased are considered to be entitled
to weight, among the members of his family. And this idea
runs through the Customary Law relating to testamentary
disposition of property. In fact, the only disposition of
property known to the early Customary Law was a transfer
followed by immediate possession. Contact with British rule
in the old settlements gave rise to the practice of reducing
into writing such transactions, and writing has in some
localities become common, not so much because it is essential
for the validity of transfer, but because it is a permanent
record of such occurrence.
A stool-holder, or chief, or head of a family, or the manager
of family property, has no power by testamentary disposition
to alienate any part or portion of the family estate, moveable
or immoveable, from the family. He may suggest some one
to be his successor, but on his decease the people of the stool or
members of the family may or may not act upon his sugges-
tion or recommendation {Goffie Yammoah v. Ahhan CooTna).
The owner of self-acquired property can in his life-
time deal with it as he pleases, and where he intends to give
the whole or a portion of it to his child by a freeborn wife,
Adihiwa, or to any person not a member of his family, he
does so before his death. As soon as he dies, his successor
is entitled to all the property he died possessed as heritable
and ancestral estate, subject to the usual rules of inheritance ;
of course the successor may give heed to the expressed
desires of the deceased, who may have been so taken ill
suddenly as to have been unable to accomplish his intention
respecting the disposal of his property.
H
98 FANTI CUSTOMAKY LAWS.
Where the owner of self-acquired property gives testa-
mentary directions as to its disposal among the members of
his family, who thereby take such property as heritable or
ancestral property, the person, who would otherwise have suc-
ceeded to the deceased, cannot ignore such dispositions, and
the persons benefited have a right to enforce such bequest.
E.g, Kwesi, owner of Addum and Donpim lands, four
bendas, a house, and twelve pieces of salagha cloth, makes
testamentary disposition, bequeathing Addum land to his
son Kudwo, Donpim land to his youngest niece Araba, two
bendas to Aduku, his younger brother, two pieces salagha
cloth to Baidu, his friend. The said Kwesi had a mother,
elder brother, and three sisters him surviving. By the
Customary Law, his son Kudwo cannot take Addum land
unless his father placed him in possession before his death ;
Araba is entitled to Donpim land, and can enforce her right
to possess the land, she being of the heritable blood ; and it
is only on the failure of her issue to succeed that the other
members of her family come in. Aduku also is entitled to
take the two bendas, but Baidu cannot compel delivery of
the two pieces of salagha cloth, if the mother, eldest brother,
or the sisters refuse to deliver them to him. The owner
of self-acquired property, after solemnly making his testa-
mentary dispositions, may subsequently revoke a part or
the whole of them.
Where a woman, having issue or descendants, possesses
self-acquired property, her testamentary declarations as to
the disposal of her property among her children and grand-
children are binding. When she fails to make such dis-
position her mother is her successor, then her children by
seniority, failing whom, her sisters and brothers by seniority.
So long as her children and their issue are alive, the right
of the brothers, sisters, and sisters' issue is subordinate to
that of her own children.
The property of her son, which a mother succeeds to, is
at her absolute disposal, and she can do whatever she pleases
with it ; but she has only a limited or at the most a life
FANTI CUSTOMARY LAWS. 99
interest in property which comes to her from her deceased
daughter leaving issue.
E.g. Amba has two daughters, EfFua and Abba, both
having issue, and sons Kwesi, Kobina, and Kwow. Effua,
the possessor of four bendas, and Abba, the owner of a piece
of land and some valuable beads, and Kobina, possessing a
house, chattels, and some money, die, each leaving children,
but without making any testamentary disposition: the
mother takes the property of her son Kobina, and of this
she has absolute control. She may appoint the youngest
son Kwow to be Kobina's successor, or even give the estate
of the deceased son to any of her grandchildren by her
daughters Effua and Abba, and such person will hold the
property as heritable or ancestral property. The said
mother has only a limited interest, however, in the estate
of her daughters, for the right of children to succeed to
their mother is superior to that of their grandmother.
A stool-holder, who had kept his self -acquired property
distinct from the stool property, to the knowledge of the
senior and immediate members of the stool, can make a valid
testamentary disposition of such self-acquired property to a
member of the family. The Customary Law does not permit
any person to bequeath to an outsider a greater portion
of his property than is left for his family. Nor does the
Customary Law permit any testamentary disposition, by a
man weak in intellect, or imbecile, or insane, or under the
influence of fraud or misrepresentation, to stand, or to be
regarded at all.
It is not only on the death-bed that a man can make
testamentary disposition. A person can make his testa-
mentary disposition while enjoying perfect health ; but at
the time it is made, the witnesses must be distinctly told
by him his words are his Samansiw, to take effect after
his death. A subsequent Samansiw does not necessarily
cancel or revoke a previous one, unless it is incompatible
therewith.
Where a person, by testamentary declaration, releases
100 FANTI CUSTOMAKY LAWS.
his debtor from payment of any claim he may have against
him, or directs that a person in possession of the testator's
chattel shall retain it as his own, it is binding on his suc-
cessor and other members of the family, who cannot claim
from such debtor the amount of the debt, or from such
legatee his legacy ; for, says the Customary Law, what is
given under such solemn conditions cannot be recalled ; the
acts of gratitude should be cherished, and an act of restitu-
tion that calms a guilty conscience pricked with remorse
should be respected.
Persons coming under the Marriage Ordinance, 1884,
should clearly understand that, unless they leave a will
made in strict compliance to and in accordance with the
English Statute of Wills, they die intestate, for at present
no provision exists for the granting of probate on the
recognition of any other form of will. Be Anaman
deceased, 1 F. L. E. 221.
CHAPTER VIL
SUCCESSION.
The first important rule which one has to learn and ever
bear in mind when dealing with matters of succession is
that the right of inheritance is only through the female,,
and pedigree is traced through the female line and that only.*
There is no such thing as succession, in the proper
English meaning, in a family owning ancestral property.
The whole family, consisting of males and females, consti-
tutes a sort of corporation; some of the members being
coparceners, i.e. persons entitled to a portion of the property
on partition (cutting Ekar), and others who are dependents,
and are entitled to reside in the dwelling-house for life, such
as sons and daughters, subject to good conduct and not dis«
puting right of the family. Partition being extremely rare,
* Abbacany. Buhuwooni, 1 F. L. K. 213 ; Parker v. Mensah, 1 F. L. R.
204; Eoldlrooh v. Atta, 1 F. L. R. 211.
FANTI CUSTOMARY LAWS. 10 1
the idea of heirship scarcely presents itself to the mind of
any member of the family. The members are entitled to
reside in the ancestral house, and to enjoy that amount
of affluence and consideration which springs from their
belonging to a family possessed of greater or less wealth.
The head of a family holds his property either in severalty
or in coparcenary, and this depends whether the property
is self-acquired, family property, or ancestral property, and,
if the last, whether it be attached to some political or public
office.
The right of inheritance to ancestral property attached
to a public or political office, varies as to whether such
property is enjoyed with or without the immediate or re-
mote control of any person. For example, in the case of a
captaincy (Tufuhin) or other commanding position in a
fighting force, without election no one can fill the post left
vacant by his father or uncle or brother.
Where the property is under or subject to another stool
or head of a family, either by commendation or subjection,
or by any other means, the superior lord or head of the
family has an ultimate and absolute right of veto, when-
ever the person selected or elected by the retinue or members
of the family is considered unfit or unsuitable by him.
E.g. Kudwo, brother or nephew of X deceased, is chosen
by his family to sit on the stool under Y, whose chief he was.
If the blood relatives and domestics and bondmen of the
family concur, the proposal must be confirmed by king Y,
before Kudwo can be placed in the room of X deceased.
And on the failure of the blood relatives, domestics, and
bondmen to present a suitable person, the king may him-
self choose one of the blood relatives ; and this person will
succeed if accepted by the major part of the family or people
of the subordinate stool, otherwise one of the domestics or
bondmen is to be appointed as the manager or trustee for
life or for a specified period of the family possessions.*
The owner of self -acquired real property«dying intestate,
* Amfoo V. Yardonua 1 F. L. R. 198.
102 FANTI CUSTOMARY LAWS.
is not succeeded by his sons, they being outside the line of
inheritance, but by his mother and her issue according to
seniority.
Persons in the line of succession are: —
Mother.
Brothers, according to seniority.
Nephews, by seniority.
Sisters.
Sisters' daughters.
Failing these —
Mother's brothers, by seniority or election.
Mother's sisters.
Mother's sisters' children.
Failing these and their stock, the domestics in whose
veins runs any of the heritable blood, take by seniority.
Next, the head domestic ; lastly, a member of the tribe.
Provided always that a man is invariably preferred to a
woman. Hence the saying, " Obaa odan bayin " (a man is
the mainstay of a woman).
There are therefore four kinds of successors, viz. Real,
Proper, Ordinary, and Extraordinary.
The Real successor of a person is his mother.
We call those persons Prosper successors who are the
uterine brothers and sisters of the deceased, and the issue of
such sisters ; but never can the pedigree be traced out in
the line of the male.
Ordinary successors are such persons as are descended
from the maternal grandmother :
E,g, : A person's uncle or aunts, and the issue of such
aunts.
Extraordinary successors are : —
(i.) Issue by a house domestic with a male person of the
heritable blood (Dihi).
(ii.) Domestic.
(iii.) Clan or tribal relative.
The rule of succession may be made plain perhaps by
the following pedigree or table of descent : —
FANTI CUSTOMAKY LAWS.
103
_^ O) tC
— m
d
Q
■60
3
03
ft
o
— CO 5
•fo-
t^.
o c
W
to
d
a
Ul
x'
^
p
o 2
^
— cc
bO
s
— ^
bO
i4
3
ft
3
a
S
M
o
fl
W
W.
— o
rjl
%*
^H
OJ
M
^
^
bD
P
c5
1^
N
— bO
=5
■5
104 FANTI CUSTOMARY LAWS.
In the above pedigree A, a male, is the owner of self-
acquired property. On his death, his wife Abba does not
succeed to his property, but his Real successor is his
mother B ; she waiving her right, his brothers C, D, and E
take by seniority. Failing the brothers C, D, and E, his
successor is found among his nephews, that is, children of
his sisters F, G, and H.
The nephews are I, son of his sister F ; and J, son of
his sister G. These take by seniority ; if, therefore, J, the
nephew by his younger sister G, is older than I, J has a
better right to the succession.
If the nephew I or J be older than the brothers C, D, E,
such nephew can be preferred over the brothers C, D, E, and
the sisters F, G, H, to succeed A, and although the brothers
are capable to succeed, yet any of them can waive his right
in favour of one of the nephews. On the death, however, of
the nephew, the right of the brother passed over or who
waived his right revives. Failing the brothers and nephews,
the next persons in the succession are K and L ; next to
them are M, N, and O, then P, Q, and R. The persons so
named are those who can be placed on the stool, if any, and
can become head of the family. If any of them cannot
succeed when it is his turn, and there is no proper person
available, then S, a son of E, by a domestic of the house, or
a suitable domestic is appointed manager of the property.
It seems that where a house-born son as S is appointed
guardian trustee, or manager, he holds his post for life,
although he can resign in favour of any of the proper suc-
cessors becoming fit to inherit.
The sisters F, G, and H are the natural and proper
guardians of the property during the incapacity or minority
of the proper successors, but their management of such
property and their control goes by seniority, the eldest, F,
taking before G and H. Where the nephews are capable
to look after the property, they take by turns : e.g, if the
three sisters had three sons each, after the death or deposition
for misconduct of the eldest son of the eldest sister, one of
FANTI CUSTOMAEY LAWS. 105
the sons of the second sister will be entitled to succeed to
the uncle's property, and on his death the eldest son of the
youngest sister will be next entitled, and one branch
will not be exhausted before those of the other branch
come in.
Suppose K, a son of U, the daughter of F, who is the
sister of A, had died, leaving self-acquired property. After
his mother he will be succeeded by L, then by M, his nephew,
who will be in his turn succeeded by Z, his grandnephew,
and not by 0, the great grandson of H, who cannot succeed
until the issue of Z's sister, V, becomes extinct. When that
line becomes extinct, some say any son of Z by a domestic
takes in preference to O, who is blood relative, and the
ordinary successors of K, both persons tracing descent from
a common ancestress B, and failing the descendants of B,
the persons entitled must be found by finding the descendants
of A's aunts.
When a person such as A dies, having his own acquired
property, moveable and immoveable, he is not succeeded by
his sons, free-born or domestic, whose only right is that of a
life interest in the dwelling-house built by their father, the
deceased, on a land not family property. For if the house
be built on family land, the children have only right of
occupation during good conduct. If any one living in the
house of his father deny the right of the proper successor, or
commit waste or injure the house, or encumber or sell it,
he thereby forfeits his life interest. Such person must make
the necessary repairs, and may quit if the successor requires
it for himself as a residence.
Mr. Eminsang, giving his opinion on Boliam and another
V. Marshall (May 18, 1892), says: "By native law, Anna
Boham had a right to the house, as she was the sister of
John Boham. By native law, she was the only heiress at
the time. She could by native law have power to give the
house to the children for their natural lives. Of the part so
given to the children, unless Marshall gave the children an
equivalent, he could not turn them out of the house.
106 FANTI CUSTOMAEY LAWS.
Marshall can pull down his portion of the house, if he did
not interfere with the other portion,
" By the Court : By native law, the person succeeding to
property could not dispose of it to beyond his lifetime, unless
with the consent of the families. In this case, the plaintiffs
being the children of John Boham, have the right to remain
in their father's house during their lives, unless for good
reasons. If the children do not live in their father's house,
still if they can go and live there as they will, the heir
could not break the house down and dispose of the materials.
The heir is the one to repair the house, and if the children
are in a position they contribute towards the expenses."
The latter part of this opinion is, we submit, erroneous.
Children who leave their father's house for their own family
or private house, cannot stop the father's successor breaking
down the house, and if they alone reside therein, they must
keep the house in repair. Where, however, the successor
resides in the same house, he of course sees about the repairs.
In Halmond v. Daniel, August 22, 1871, Chief Koffie
Chie and others laid down the law, in answer to the inquiry,
If a man went from his family, cleared land, and on that
land built another house, would not his children be entitled
to live in it after his decease ? that "if a man had a father,
either by country marriage or otherwise, and the father
lived in the house with the wife and child, and he died, all
the deceased's property, except the house, goes to his family.
The father's gun and sword and house go to the son, and the
saying is, * the father dies and leaves his house to the son.'
" The family take the property, but do not turn away the
child. The son lives in the house with the family of his
father, supposing they had nowhere else to live, and the
son does not turn them away. If it is a family house, the
head occupies as head ; yet he does not turn away the son
from the house, except the son, after he has grown up, finds
himself competent to build and leaves for the purpose of
doing so. But he would not under any circumstances be
turned out by the head of the family.
FANTI CUSTOMAKY LAWS. 107
"The family would not be turned out for the son's accom-
modation. If they had nowhere else to live, they would
live in the house. Where there is room enough for all (son
and family), the head of the family arranges the rooms to be
allotted to each. My answer of the descent of house to the
son applies in case it has been built by the father. The
family would be allowed to live in it if they had nowhere
else to go ; if they had, they would leave the father's house
to the son. The son could not sell the house except with
consent of the family."
In the coast towns, one now and then comes across
what at first sight seems to be an exception to the general
rule of succession. There are some families where succession
goes from father to son ; but this has reference only to the
dignity or title or office, with ^uch property or insignia going
with it, and which was in the first instance created with it.
Such a position is quite distinct from that of head of family,
although a person may hold the two offices at the same time :
e.g. B is head of a wealthy family having and possessing a
large retinue. The townspeople make him their king or
chief, and give him by general contribution a sword, robes,
drums, etc. If at any time the people depose him, the only
property they can take from him will be what was handed
him on his installation as king or chief, at which time he
took the oath of office, swearing to be true and faithful to
the interests of his subjects. And unless the members of
his family remove him, he nevertheless continues head of
his family, although another person be given the public
honour and office.
Where the deceased is a slave or domestic, his master or
mistress is entitled to take all the property, but if another
slave or domestic is appointed as successor, the master or
mistress takes from the personal efiects whatever he or she
pleases.
If a person whose ancestress was a slave die without
issue, there being no descendants of the ancestress's master
or mistress, his fellow domestic takes his property as
108 FANTI CUSTOMARY LAWS.
successor : e.g. B is great-grandchild of C, a donkor of A ; D
is descendant of A, and there are in the family (i.) several
domestics, (ii.) but one domestic. On the death of B, D
may keep B's effects or give some to such one of the
domestics as he please. If there be no descendant or heir
of D her surviving (i.), the head domestic succeeds ; (ii.)
the one domestic takes, and no tribal or clan relative can
take preference, for the donkors invariably acquire their
owner's tribal name, and bondmen often join the master's
tribe. „
He who succeeds a person owning self-acquired property
is liable for and bound to pay the private debts of the
deceased, whether the assets are or are not sufficient. An
heir, if he sees that his deceased relative is greatly indebted,
can give the body to the company of the deceased, and on
the body being buried at the expense of the company or
the public, the heir and his family are not liable at all
for any debt of the deceased. Any property left by the
deceased is sold by the public to defray any burial expenses.
In the early part of 1891, Chief Justice Hutchinson
sought information on certain points of the Customary Law
from the late Edmund Bannerman, of Accra, that eminent
solicitor and advocate whose knowledge of the Customary
Law and long experience in the Law Courts were unsurpassed.
The Chief Justice put these questions : —
1. As to property which the deceased himself acquired :
I understand that it descends as follows — (a) to his eldest
brother by the same mother ; (6) to his eldest sister by the
same mother ; (c) to the eldest son of his eldest sister ; (d)
to the eldest daughter of his eldest sister. Is this correct ?
And who is the next heir ?
2. As to property inherited : 1 suppose the rule is the
same, except that you have to go back (as far as possible)
to the person who originally acquired the property, and
trace the descent from him ?
3. Where does the mother come in, supposing her to be
alive ?
FANTI CUSTOMARY LAWS. 109
4. Does a woman's property acquired by her descend in
the same way, or do her children inherit it before her
brothers and sisters ?
5. Can a child ever (and if so, under what circumstances)
be heir to its father's property ?
6. Is there not a custom in some places for a stool or
stool property to descend to the late chiefs son ?
7. Can a man appoint as heir to his property, inherited
or acquired, a person who is not the next heir according to
native law ? If so, what formality is required ?
8. The rights of the heir : Does he ever take the property
as his own absolutely, or is he bound to allow some share
(and if so, what) to the other members of the family ?
9. The duties of the heir : Is he bound himself to pay
all the expenses of the funeral and the funeral custom, and
all the debts o£ the deceased ?
10. Suppose a person not the heir, with the heir's
consent, performs and pays for the custom, does he thereby
acquire any right to the property of the deceased, or to be
reimbursed ?
11. Can the other members of the family supersede the
heir ; and if so, on what grounds ; and can a mere majority
doit?
12. If a man dies without any known heir, who takes
his property, and who is bound to bury him ?
13. Can a bastard inherit the property of his mother
and of her other, legitimate or bastard, children ?
Similar questions were sent to Mr. G. E. Eminsang at
Elmina.
Mr. Bannerman's opinion relates specially to the Accra
district, but it will be noticed that the Accra customary
laws differ very little from what have been explained
herein. Says Mr. Bannerman : " Before answering the first
question, it will be as well to explain that there are two
forms of marriages obtainable in the Accra country proper,
namely, what is known as the two-cloth, or sweetheart, and
the other is six-cloth, or legal marriage. With reference to
110 FANTI CUSTOMARY LAWS.
the first, personal property only descends as follows: (a)
to the uterine brothers of the deceased, the eldest taking
first ; (b) failing the brothers, the uterine sisters and their
children take by seniority.
" The children by the two-cloth marriage do not come in
at all.
"(c) With reference to the second, that is, six-cloth
marriage, real property descends the same as personal
property, with this exception, that it is inherited in con-
junction with the children of the deceased of that marriage,
and such real property cannot be disposed of without the
children's consent. It must be borne in mind that in the
Accra country males take precedence of females, and if
minors, the eldest female takes charge until the eldest
male be of age. I am well aware that opinions varying in
part to mine have been given, but it is most absurd to
think that there should exist two forms of marriages, one
superior to another, and yet the claims of the children of
one marriage to their father's property is the same as the
claim of the children of the other.
" {d) Property acquired by the deceased, he can either in
writing or verbally will away to whomsoever he pleases,
but should he die intestate, it then descends according to
(a), (6), and (c).
"Property inherited descends precisely in the same
manner as property acquired, with the exception that the
deceased has no power to will it away, as in the case of
property acquired.
" The mother does not come in at all, but the inheritor of
the property is bound to take care of her durante vita, and
at her demise to bury her decently.
" A woman's property acquired by herself descends to her
children and their children ; failing them, then to brothers
or sisters according to age.
" No child can inherit his father's property except under
the circumstances related in (a), (6), and (c).
"There are instances where the son has inherited the
FANTI CUSTOMARY LAWS. Ill
stool and property strictly attached to the stool ; e.g. the
case of King Frederick Dowoonah, of Christiansborg, Accra ;
but generally inheritance of stool jumps from one branch
of the family to another and back again. Should the
holder of the stool, however, acquire any property of his
own durante vita, that property cannot go to the inheritor
of the stool, but must descend as stated in {a), (b), and (c).
" No man can appoint an inheritor to property which
he inherited, but the property acquired by himself. The
inheritor appointed may be a person who is not the next
heir, but such person must go through the formality of
custom, making expenses of funeral and paying all the
deceased's just debts.
" The right of the heir of personal property is absolute,
but he is bound to assist any member who is in real distress.
"The heir is bound himself to pay all the just debts of
the deceased's, and also the expenses of the funeral custom.
"Any person not being the heir, but who with the
heir's consent performs and pays for the custom, does not
acquire any right whatsoever to the property, but has
simply to be reimbursed for what he has expended.
" The heir can be superseded by other members of the
family on the ground of insanity, imbecility, extravagance,
etc. There need not be a majority to supersede him. Two
or three of the nearest members are quite sufficient for the
purpose.
" Should a man die without any known heir (a thing
utterly unknown as regards natives), his property would be
taken charge of by the owner of the house in which he
stayed when he came into the country, who will see all
funeral expenses and debts paid ; and should any heir ever
turn up, he or she alone is responsible to him or her.
"Any child can inherit the property of his mother,
bastardy being a thing hardly recognized in this country."
Bosman, writing on inheritance, says : " The children
they have by their wives are indeed legitimate, but all along
the Gold Coast (they) never inherit their parent's effects
112 FANTI CUSTOMARY LAWS.
except at Accra only. The right of inheritance is very
oddly adjusted, and as far as I could observe, the brothers*
and sisters' children are the right and lawful heirs in the
manner following: They do not jointly inherit, but the
eldest son of his mother is heir to his mother's brother or
her son, as the eldest daughter is heiress of her mother's
sister or her daughter. Neither the father himself nor his
relations as brothers' sisters have any claim to the goods of
the defunct. In deficiency of the above-mentioned heirs,
the brothers or sisters take their place ; but if none of them
are living, then the nearest relation of the mother of the
defunct comes in.
" The eldest son, supposing the father a king or a captain
of a town, succeeds him in his office only ; but besides his
father's shield and sabre he has nothing more to pretend to.
So that 'tis here no manner of advantage to be descended
from rich parents, unless (which seldom happens) paternal
love obliges them to bestow somewhat on their children in
their lifetime, which must be privately done, otherwise the
relations after the father's death will oblige the children to
return it to the utmost farthing." (Bosman, letter xii.
pp. 208, 204.)
John Barbot, the agent-general of the French Royal
Company of Africa and islands of America, who was a
contemporary of Bosman, in connection with this custom,
says : " The best reason the blacks give for such a con-
stitution, is, that the dividing of estates or goods among so
many persons as generally compose their families, so many
wives and children, would occasion endless disputes and
quarrels amongst them ; or this, that children relying too
much on their father's wealth, would live lazily, without any
inclination to employ themselves in some business, to avoid
lewdness, wantonness, and debauchery. Whereas being
now sensible from their tender youth that they have
nothing to expect from their father but a bare maintenance
during his life, they are much the readier to betake them-
selves early to learn some profession by which they may
FANTI CUSTOMARY LAWS. 113
maintain themselves handsomely when their father is no
more ; and even to maintain their father's family after his
death, as many do."
CHAPTER VIII.
SLANDER.
Words which cause or produce any injury to the reputation
of another are called defamatory, and, if false, are actionable.
False defamatory words, when spoken, constitute slander.
Where a person has been found guilty for using slanderous
words, he is bound to retract his words publicly, in addition
to paying a small fine by way of compensation to the
aggrieved party. Words imputing witchcraft, adultery,
immoral conduct, crime, and all words which sound to the
disreputation of a person of whom they are spoken, are
actionable. The native custom is more in accordance with
natural justice, equity, and good conscience than the English
law, which has been denounced by many a learned judge.
Says Lord Chancellor Campbell, in Lynch v. Knight and
Wife, " I may lament the unsatisfactory state of our law,
according to which the iaiputation by words, however gross,
on an occasion however public, upon the chastity of a
modest matron or a pure virgin is not actionable, without
proof that it has actually produced special temporal damage
to her." Instead of the word "unsatisfactory" I should
substitute the word " barbarous," said Lord Brougham on
the same occasion.
Meredith remarks : " The law against witchcraft is
particularly severe, inasmuch as it generally extends to all
under the same roof ; as it is supposed they possessed some
portion of the malign influence." What makes it a serious
offence is that witchcraft is considered hereditary, and to
call a person Ayen, wizard, witch, implies that every
member of such person's family is possessed of an evil
114 FANTI CUSTOMARY LAWS.
spirit capable of doing infinite mischief, and the less one
has dealings with any of them the better.
So much annoyance, mischief, and injury is caused by
the reckless imputation of witchcraft, that many a woman
has been known to commit suicide, unable to bear the
disgrace of a false imputation.
It would be well if other judges and magistrates follow
what was done by Mr. Justice Richards in Bedua v. Ochvu.
An effective way of punishing a person guilty of slander
of serious consequences, is to make him walk through the
town or village carrying a heavy stone in front of an officer
of the Court, who, at convenient halting-places, beats a
gong ; the guilty slanderer is compelled to recant his base
falsehoods, and to confess his disgraceful behaviour, amid
the sneers and jeers of the multitude. The heavy stone so
carried is called oturhiha.
CHAPTER IX.
MODES OF ENFORCING PAYMENT.
There are several modes of enforcing payment of liability
more or less common. I. " Dharna," a practice well known
in India, especially in the native states. The word "Dharna"
is said to be an exact equivalent to the Roman capio. The
person who adopts this means of enforcing payment of his
claim goes early in the morning to the door or house of the
person against whom it is directed, or to the place where the
debtor usually follows his occupation. Here the creditor,
covered over with white clay or in sackcloth and ashes, and
having a supply of food sufficient for one meal, seats himself
on a mat or on the bare ground. He informs the debtor
that unless the debt is paid to the last farthing he will not
go away, and if the debtor goes out this creditor follows
him everywhere. Instances are known where the debt not
FANTI CUSTOMARY LAWS. 115
having been paid the creditor has died of starvation. Some-
times, as the day draws to a close, the creditor swears to
commit suicide if the debt be not paid before sunset. If in
such a case the debt be not paid, and the creditor doth
commit suicide, the debtor is bound to bear the funeral
expenses in addition to paying the original debt and making
substantial compensation to the family of the deceased
creditor. But when the creditor swears that if by a certain
time the debt be not paid he and the debtor must both
forfeit their lives, the debtor cannot save his life by simply
paying the debt and a compensation ; he too must take away
his life.
It is worthy of notice that in the Brehon law, if a person
has a legal claim against a man of a certain rank, and is
desirous of compelling payment, the law authorizes him to
" fast upon him." Notice, it says, precedes distress in the
case of the inferior grades, except it be by persons of dis-
tinction or upon persons of distinction; fasting precedes
distress in their case. (Ancient Laws of Ireland.) This
institution is said by Sir Henry Maine to be unquestionably
identical with one widely diffused throughout the East, and
known by the Hindoos as "Sitting Dharna," which consists
in sitting at your debtor's door and starving yourself till
he pays.
II. There are two kinds of Panyarring, namely, {a)
persons, (6) chattels.
(a) Among the coast tribes and members of the same
tribe, panyarring of persons was not customary. When a
member of a different tribe was found in a distant place he
was liable to be seized with all his goods, and detained in
bondage for a debt due by a member of his tribe till such
debt had been paid to the satisfaction of the person or
creditor who had so detained him.
(h) A creditor whose claim remains unsatisfied after
repeated demands, followed by unfulfilled promises of pay-
ment by the debtor, is entitled to seize his debtor's goods
and chattels, usually of a higher value and retain them till
116 FANTI CUSTOMARY LAWS.
his claim is satisfied in full. The creditor has no power or
right to sell the goods so seized or to use them ; but he is
under no obligation to take any special care of them, or to
account for their safe custody or keeping.
Panyarring (pronounced payaring) is rather a law than
a custom, and although sometimes prostituted to bad pur-
poses, is frequently the only way to recover a just debt.
If exercised unlawfully, the amount of damages to be paid
as satisfaction is so much as to cause the financial ruin of
the wrong-doer.
III. Payment of debts is also enforced by the debtor
being detained in custody, imprisoned in chief's prison or
at the village lock-up till payment is made. The debtor
meanwhile has to subsist himself or get his family or friends
to do so, failing which he is forced to do hard labour by
way of return for his board. So effective is this custom
that, except in very rare cases, the debtor's family quickly
make a contribution and pay the debt in full. During the
administration of the African Association and Governor
Maclean, judgment debtors were never subsisted by their
creditors. On their friends failing to look after them^
they were compelled to earn their food by being put to
some remunerative occupation within the precincts of the
prison.
PART II.
FANTI LAW EEPOET OF
DECIDED CASES.
THE FAMILY.
ABBA QUASSUA v. THOS. WARD.
September 1, 1845.
Con&awment Money — Husband and Wife — Accounts.
Plaintiff in this case complained that the defendant, her
husband, according to the country custom, had been treat-
ing her ill, and not using her as she considered a wife
should be.
Complaint examined and found that he had not been
treating her well. It appeared likewise that he refused to
allow her to go away back to her family, who lived at a
distance, alleging that she was due him on account. This
account, on examination, seemed to consist of some small
items which she had gotten on different occasions to sell,
and of no great amount. This was declared unclaimable,
considering that the plaintiff or her family had not received
any consawment money according to the country custom at
the time he took her, and it is hereby accordingly declared
unclaimable. The plaintiff was likewise to consider herself
free from any claims which the defendant might have upon
her, inasmuch as from his own conduct to her, he had not
performed his duty to her as a husband is generally con-
sidered according to the custom of this country.
118 FANTI CUSTOMARY LAWS.
AGGRYBA v. ABAN.
September 1, 1845.
Marriage — False Charges — Dissolution.
The plaintiff in this case complained that during the
time she had lived with the defendant as a wife he had
used her ill, and endeavoured to get up a false debt against
her and her family, by leaving in her hand some pieces of
lead, iron, etc., going away and alleging afterwards that
this was gold. This was disproved afterwards, and the
defendant convicted thereupon by his own town chiefs.
He did not, when brought up before me, even attempt to
substantiate it. The plaintiff, in consequence of her own
refusal to return and live with him, w^as declared free from
any claim which he might have upon her.
ECCUAH AHINFUA v. QUASHIE GHAN.
Anamabu, October 7, 1845.
Father^ s Liahility — Child's Maintenance.
Plaintiff claims for her daughter Adjuah Bakoom's
lying-in and support charges from defendant, the father of a
child, begotten with the said daughter.
Judgment for plaintiff, 9 ackies and costs.
YOW PENIN V. WILLIAM DUNCAN.
October 11, 1869.
Before D. P. Chalmers, Judicial Assessor.
Assessors : Chief John Mayah and Chief Kofi Amoah.
Marriage — Essential Ceremonies — Dowry — Consaivm ent — Dissolution —
Ill-usage — Theft — Tanbiba.
John Mayah, sworn : —
What are the essential acts or ceremonies to constitute
a valid marriage according to the custom of the country ?
FAKTI CUSTOMARY LAWS. 119
When a man intends to have a certain woman for his
wife, he applies to her family, asks her to be given in
marriage, by taking to the family, according to his means,
two flasks of rum ; or 2 ackies of gold dust (9s.), or 4 to 6
ackies, according to his means. Upon this, if the family
approve, they agree to give the woman.
Next follows the matter of dowry.
That depends on the family. If they tell the man that
they require dowry to be paid, they state the amount they
wish, sometimes one ounce or nine ackies. If the woman's
family did not wish for dowry, the application of the man
with the rum would make a valid marriage.
Next custom to be performed by the man is preparing
some clothing for the intended wife. Gold is given to the
mother of the woman, called Tanbiba, signifying money for
the mother, for cooking against the time of marriage.
Would the request and consent with the first present
alone make a valid marriage ?
Ans. : It would. The preparation of the clothing and
gold would not affect the marriage ; the man would give
them afterwards.
Kofi Amoah : — All that the witness Mayah has stated
is correct, according to the custom of our country.
If a wife steals from her husband, does that break the
marriage ?
No. It is not customary for a husband to turn his wife
away in such case. The case must be looked into to see
if the marriage is to continue. If that is proved, the
husband has the option of continuing or discontinuing the
marriage.
If he elects to discontinue, what steps must be taken ?
If husband says he does not want his wife, the wife goes
away with all the property she possessed at the time of
marriage ; if the wife refused to remain, everything that
had been given the wife must be refunded.
Is any ceremony necessary ?
The word of mouth of the husband is not sufficient. It
120 FANTI CUSTOMARY LAWS.
is necessary to chalk the woman. The husband chalks her
on the shoulders, for unless chalked the woman would not
be at liberty to marry again.
How is the chalking proved ?
The woman goes about to the neighbours showing the
marks and telling, " My husband has chalked me." If a
woman should falsely represent such chalking, the family
would have to make satisfaction to the husband, paying
about two flasks of rum. Though there has been no theft,
if the husband wishes to be quit of his wife, he may chalk
her and let her go. He cannot do so without assigning
cause. It is inquired into by the family, and they judge
whether the cause is sufficient.
Is a husband beats or illuses his wife, is she at liberty
to leave him ?
Not without the case being gone into by the family of
the man and woman. If not investigated, and the wife
should marry again, the first husband would be entitled to
have compensation from the second husband ; the amount
would vary according to the man's position — 6 ackies up to
2 ozs.
When marriage is suspended and parties wish to renew,
is any ceremony used ?
When the woman has stolen from the husband, it is
necessary, in the event of renewal, for the wife to give a
sheep unto the husband by way of satisfaction.
On October 12, 1869, judgment was delivered : — Find
that the plaintiff was married to his wife Eccuah Chimuah
according to the custom of the country.
That a husband cannot validly put away his wife without
going through certain ceremonies.
That the plaintiff has not performed these ceremonies.
Consequently that cohabitation with the said wife by
another man was unlawful.
Find that alleged cohabitation by defendant proved.
But not proved that defendant enticed or seduced Chinwah
to leave her husband.
FANTI CUSTOMARY LAWS. 121
Find that plaintiff is entitled to compensation from the
defendant ; under the whole circumstance, restrict the
amount to 1 ackie, i.e. 4s. 6d.
(Signed) D. P. Chalmers.
In the hearing of this case the following evidence was
given among other : —
September 20, 1869. — Plaintiff my husband brought
rum and engaged, and afterwards brought cloths and
married me. No money was sent, only cloths. He did not
ask my family when he took me to wife, and paid the
expenses charged by my first husband. I know the law in
the country to which I belong, and the reason why none of
my family was asked when I married plaintiff, (was that)
plaintiff paid all the expenses charged by my former
husband without dispute ; plaintiff paid to my former
husband about 4 ozs. 8 acks.
October 7, 1869. — Per Kofi Koomah. Eceuah Chinwah
my niece has been married to plaintiff legally, according to
country fashion. The ceremonies were not performed, but
took her to be his wife. The presents should have been
given to me. The marriage can be made good at any time
by paying the dowry. No dowry has been paid to me.
EcciiaJis father and mother are both dead. EccvmIi is not
niece to me through her father or mother, only by tribe.
I am not brother either to her father or mother. I am
the chief man of the tribe. The presents are paid to the
chief. If father or mother were alive, the presents would
have been paid to them, but I must have been informed.
Know defendant ; have seen defendant at Dominassie.
Eccuah lived with plaintiff about two years.
Cross-examined : I know country custom of marriage.
Plaintiff asked Eccuah from me in marriage. A person
who did not apply properly for a woman in marriage, but
seduced her, would be fined. When a woman has been
properly asked in marriage, though ceremonies not luUy
122 FAKTI CUSTOM AEY LAWS.
performed, if any trifle had been given as earnest, if she
was seduced, the husband would be entitled to compensation.
When plaintiff asked for Eccuah, she had not been married.
Plaintiff" brought me 2 flasks of gin, and 2 flasks of rum.
Eccuah'^ mother was living wheu plaintiff" proposed
marriage. When it was time to fulfil the marriage, plaintiff*
brought nothing to me. The marriage gifts were brought
direct before me. It is necessary for the man to buy some
clothing, beads for the women, and I saw you send these.
I could accept these things without monies also being given.
There was no money. It is customary to send gold dust ;
plaintiff* sent some ; the mother returned it, because she did
not know if the marriage would be prosperous. I gave my
consent to this marriaoje. The 2:old sent was 8 takoos,
i.e. 6s. Plaintiff* undertook to cook according to custom for
eight days. I invited friends. On the death of the mother-
in-law plaintiff* contributed to the customs.
When a man detects his wife stealing from him, it
breaks the marriage. If they wish to renew, the one in
the wrong must give satisfaction — 3 ackies, i.e. 13s. Qd.
LINTOTT BROTHERS v. SOLOMON.
April 18, 1888.
Before Francis Smith, Judge.
Family Frojperty — Alienation — Consent of Senior Meinhers essential —
Marriage — Domestics — Succession .
James H. Brew : As chief, I have been in the habit of
deciding cases referring to the law of descent, and I have
decided cases wherein the ceremonies connected with native
marriages are brought in. In certain respects the law of
native marriages is not so different from that of the law in
England. The party seeking the hand of the daughter of
another, would apply to the parents of the girl for her ; and
on the parents expressing their willingness to give their
daughter to the man, he would give them headrum without
FANTI CUSTOMARY LAWS. 123
doing anything more. That would make the woman his
wife in the eyes of the native law. But if he were desirous
of going through the remaining ceremonies in addition to
the headrum, he would send the trousseau, give a party to
his friends, and in the evening the friends of the lady would
accompany her to her husband's residence with lanterns not
dimly burning, and leave the wife with her husband to
complete the ceremony. The headrum is given to the father,
and in case of a slave to the master or mistress, as the case
may be. In the absence of the father, to any person stand-
ing in loco 2^cc'^entis. The party receiving the headrum
distributes it amongst his family, and in some cases amongst
his friends.
The law as to descent is from uncle to nephew, the eldest
son of the eldest sister taking, that is, where the party
dying does not make a will according to native notions.
But where there is a brother of the deceased uncle, he steps
in before his nephew.
Where there are freeborn in the house and slaves, the
country law is that slaves cannot inherit as long as there
are any of the blood surviving. They may inherit by
will, or, where the blood is under age, one may be selected
from the slaves to succeed. There is a vast distinction
between legitimate and illegitimate children known to
native law. If a man has children by a woman for whom
he pays no headrum, the children are not legitimate
according to native law, though they may become so by
their parents marrying. Children cannot succeed unless
under the will of the parent, or by express declaration of
all the family, given during the lifetime of the deceased.
Ancestral property cannot be willed absolutely as if it were
acquired property, but the last surviving member of a family
can dispose of it as he thinks best. If emancipated slaves
take advantage of their emancipation by leaving the family
and severing their connection, they have no right to the
property of the family, and whatsoever they acquire becomes
their own property. Those of the blood would be those
124 FANTI CUSTOMARY LAWS.
coming out of the womb of the head. All who issue from
her are all of the blood. The children begotten by those
of the blood are termed household children. The emanci-
pation is useless unless you take the benefit of it. The
grandchild of an emancipated slave would still be a slave, if
he does not sever the connection. If there are two cousins,
A and B (males), and A is a {sic) family, and there are issues
of A with a slave in the house, and there are issues of B
with an outsider, the issues of A would take in preference ;
but if A and B are females, the issues will take equally —
that is, the senior branch would take first. If a mistress
takes a slave, and through that branch one child remains,
he will take in preference to the descendants of the brothers
of the mistress.
If one buys a slave, and that slave has a child, and he
wishes to marry that child, he will give headrum to the
mother. The exact ceremonies will not necessarily be
followed. Cases are known in which the headrum is not
paid. This might prejudice the issue of the blood. If a
master has a child by a slave, and the master's sister has a
child by an outsider, the sister's child will take in preference.
Illegitimacy is no bar to issue of the female side as to
succession.
The head of the family cannot dispose of any of the
family property without the consent of the family. No
qualification, excepting that of birth, is needed to be the
head of the family, and this head must be from the female side.
By birth, I mean it must come from the blood, the
seniority taking precedence. The father might be disposed
not to regard the children by a slave for whom he paid no
headrum, and in that case they would be prejudiced. The
household children stand next in succession to those of the
blood.
If the father does recognize the issue of a slave of his,
that issue's rights are not the same as issue of a lawful
marriage. The issue of the lawful marriage would necessarily
succeed first.
FANTI CUSTOMARY LAWS. 125
If there are three sisters, A, B, and C, and A has a son
lawfully born, who has a grandchild from a slave in the
house, and B has sons and daughters, and C has a daughter,
who marries outside and has a child, the children of B, with
regard to the family property, would take first. Bub if A,
B, or C has acquired property of her own, the line of descent
of each must be extinguished before the property of the one
can go to the other line.
Judgment for plaintiffs with costs.
Mr. Renner for plaintiffs.
Mr. Sarbah for defendant.
DE GRAFT v. ABBA MANS AH.
September 9, 1871.
Before Chalmers, Judicial Assessor.
Marriage — Accounting — Second Marriage — Wife.
To show cause why you, having refused to live with
plaintiff* as his country wife, and having left his home,
should not be ordered by this Court to pay him the sum of
£40 12s. 7^d., the same being amount incurred by plaintiff*
on your account according to the custom of the country.
Chiefs : It is the practice for elder wife to be consulted
by husband on taking " second wife." If husband takes a
second wife without doing so, it is not cause for discon-
tinuance of the marriage, but it brings dispute, and husband
must give elder wife satisfaction.
Defendant being interrogated, states that she does not
wish to continue marriage with plaintiff". Plaintiff* is will-
ing to renew and do such things, and pay satisfaction as
may be appointed by the Court.
Remitted to Chiefs Thomson, Martin, Robertson, and
Mr. Morgue, to receive from Ahha Mansah for De Graft
such of the articles given by him to her as may be service-
able, the value of which shall go pro tanto towards,
satisfaction.
Judgment for plaintiff, £30 10s.
126 FANTI CUSTOMARY LAWS.
KOFI SACKIE V. ACCOSUA AGAWA.
July 28, 1873.
Before Chalmers, Judicial Assessor.
Marriage — Becovery of Consawment — Liahility of Mother-in-law.
Recover}^ of the headmoney from defendant, whose
daughter declines marrying plaintiff.
Chiefs : 1. When a man takes a woman as his wife, is
it customary for him to pay a sum of money to her mother
as a dowry ? Yes.
2. Is this dowry given as a " gift " to the mother, or can
it, under any circumstances, be recovered back by husband ?
It is recoverable in a case of dispute between husband and
wife, which has led to a discontinuation of marriage. The
money given as dowry by the husband does not always
go to the mother alone, but also to the father, as well as
the nearest relations. On a discontinuation of marriage,
accounts are gone into between the husband and wife as
to their separate expenses, and a balance is struck, which
becomes payable by the one on which it lies.
3. Can the mother be made liable to pay the lump sum
of dowry, if it had been divided among others ? The appli-
cation is made to the head of the family, who consults and
acts with others.
4. If a woman deserts her husband, is her family liable ?
Yes.
5. If a woman deserts her husband, can the husband
claim any money from the mother-in-law which he has
expended in maintaining her ? The family of the wife will
be liable for all the property which the wife possessed when
she left her husband, if supplied by the husband.
Judgment for plaintiff, Chiefs Attah and Mayan to
settle matters of account in dispute between the parties.
FANTI CUSTOMARY LAWS.
127
HANNAH JONAH v. ADDACOO.
October 9, 1873.
Claim o£ £12 8s., expenses incurred by plaintiff and her
family during the illness and subsequent death of one Etfua
Marnan, wife of defendant and daughter of plaintiff.
Chiefs : A woman is a man's sweetheart, and not his
wife, until he provides her family with rum or money as a
substitute, when she becomes his wife.
Plaintiff charged the following : —
£ s.
d.
Native Doctor
... 4 10
0
Medical Comforts ...
... 1 16
0
Coffin
... 1 7
0
Burial Ground
... 1 7
0
Grave Diggers
... 0 5
0
Funeral Obsequies .. .
... 1 5
0
Silk Pillow
... 0 4
6
Cloth for Coffin
... 0 13
6
Midwife
... 1 0
0
£12 8
0
Defendant said I sent the plaintiff 8 ackies in gold
(£1 16s.) and a ring (2 ackies), and a gallon of rum,
because I loved the deceased. That is more than is usual
in this country.
Judgment.
On account of the iniquitous charges made, I had
intended to relieve the defendant from all payment ; but
under all the circumstances, I decree that the offer of the
defendant be accepted. £2.
128 FANTI CUSTOMAEY LAWS.
ADJUAH CHIBA v. AGOOWAH OF MOREE.
October 21, 1873.
Custody of Children — The Bight of the Mother.
Judgment.
No person has a right to detain a child from her family,
and the plaintiff has had a right to demand the girl Accosuah
ever since she went into defendant's possession, and the
defendant has had no right to refuse to give her up nor to
demand any money for doing so. The defendant seems to
have treated this girl kindly, and to have kept her well ;
but, it must be remembered, she has had the services of the
girl in her house working for her. I wish it to be distinctly
understood that I refuse any payment to be made to the
defendant as though the girl belonged to her as a slave ; it
will only be as compensation for the expenses the defendant
has incurred in clothing her. Her services I consider an
equivalent for her food. I order the girl to be given up to
her family at once, and award £2 to the defendant to be
paid by the plaintiff as compensation for the girl's clothing
and expenses, which are not covered by the services given
by the girl.
PATRICK JOJSES AND HARRIET JONES v. J. F.
MENDS.
April 22, 1872.
Before Chalmers, Judicial Assessor.
Breach of Promise of Marriage.
Judgment.
I find that the defendant asked the plaintiff in marriage,
and that his proposal was accepted by her and by her parents
on her behalf. That the understanding was that a country
marriage should at once be entered into, which should be
FAXTI CUSTOMARY LAWS. 129
converted afterwards into a marriage in the face of the
Church. Find that no time was fixed for the second
marriage ; that there is no proof of the defendant having
refused to fulfil this part of the agreement, and that he has
not incapacitated himself from so doing by the contraction
of any other lawful marriage. In these circumstances the
cause of action is not sustained, and judgment must be for
defendant. The country marriage, upon defendant's own
statement, still continues, and the plaintiff is entitled to
the privileges which belong to that relation.
JOHN DANIEL NEIZER v. E. P. DONTOH.
March 5, 1874
Before James Marshall, Judicial Assessor.
Breach of Promise of Marriage and Seduction — Measure of Damages —
Custody of Child.
Chiefs Chiboo of Assin, Thompson, and Robertson.
If a man promises to marry a woman and breaks the
promise, has the woman any remedy against him ?
In our country, if a man wishes to marry a woman, he
sends his friends to her parents and asks their permission
to marry the woman. If they consent to give him the
woman, and afterwards he refused to be married to her,
there would be no penalty; palaver set. But if he had
already provided the necessary things, as gold from 4 to 8
ackies, and some cloths, and some rum or money as a sub-
stitute, then there would be a penalty if the man refused
to marry the woman. The penalty is that the man forfeits
what he has provided, and if there has been connection
between him and the woman, he has to pay money to the
parents.
If there is a child, the man would have to make pro-
vision for the child. In such a case, the parents would be
the plaintiffs.
130 FANTI CUSTOMARY LAWS.
If the man provides for the child, it belongs to him
when it grows up, i.e. when fit to part from the mother,
about four or five years.
According to the law of the country, if a woman is
made enceinte by a man, her family ought to give the
man notice of it in about two months after she became
aware of it. Loss of service is no ground for compensation.
It is the custom in our country, that if a man has a
daughter, and a man has connection with the daughter, the
father may claim one ounce, and then, if the man wishes to
marry her, he begins to provide the necessary money and
other things, and to ask her parents. But if the parents
do not wish the marriage, they can claim nothing but the
one ounce. If the woman prove pregnant, the man should
provide for her during her pregnancy.
If the man denies her being pregnant by him, the
parents support her until after delivery, when the matter
is decided by the appearance of the child. This is decided
by the midwives.
In this case, our opinion is that the defendant should
pay one ounce and the Court expenses, and that the father
should attend until she is delivered, and that if it be then
found the child is the defendant's, the plaintiff should have
further claims on himself. If it be found not to be his
child, the father is to have no claim.
Judgment.
Yerdict for plaintiff" — compensation £5, and each side
to pay its own costs.
FANTI CUSTOMARY LAWS. 131
MARSHALL v, DAWSOK
September 15, 1885.
Before Hector Macleod, J,
Maintenance of Illegitimate Child — Proper Person to sue —
Satisfaction — Measure of Damages.
• Chiefs Sackey and Kofii Yammie.
The plaintiff claims £30, being amount expended on
Margaret Boham before and after her confinement of the
illefjitimate child of which defendant was the father, and
£50 for the maintenance of the child during minority.
Plaintiff is a person in loco parentis.
Curia : I find that defendant is the father of Margaret
Boham's child.
The following questions were put to the chiefs by the
Court : — Is the defendant liable for the medical expenses
and . . . connected with the birth of this child ? Yes ?
Is the defendant liable for the maintenance of the mother
during the seven months she was laid aside from work ?
Yes. Is there any other expenses for which the defendant
is liable ? Yes ; these are the midwife and other expenses
attending the birth; and as the defendant does not wish
to keep the woman, he ought to pay compensation, but
only half what is usual, because she was not a virgin. We
think perhaps £10 would be suitable. Marshall is the
proper person to sue.
Curia : This is a case to be decided altogether by native
law. I find that defendant must pay the following sums : —
For Maintenance of Margaret Boham
, £
s.
d.
seven months, at 205.
, 7
0
0
Medical expenses during pregnancy ...
, 3
9
3
Fooshiw Tam ..
2
0
0
Midwife expenses of birth
. 2
17
3
Illness after in-lying
, 1
13
6
Compensation
. 10
0
0
Total ...
£27
0
0
Costs, £1 18s. dd. ; Execution stay, one month.
132 FANTI CUSTOMAKY LAWS.
SEY V. ABADOO.
July 7, 1885.
Before Hector Macleod, J.
Infants — Native Law — English Law.
Claim : £6, being rent for occupation of premises belong-
ing to plaintiff.
Appellant (the plaintiff) admitted that the defendant is
under twenty-one years, and argued —
(1) That the lodgings in this case were a necessity;
(2) That judgment was against the weight of evidence ;
(3) The case should be decided according to native law.
Respondent not called upon.
Judgment.
This case must be decided according to English law.
The father of this infant told it that he had already pro-
vided lodgings for it. It was therefore unnecessary for the
infant to enter into a contract for other lodgings ; and the
fact that Mr. Sey did not know that the infant was already
supplied, is not material. Appeal dismissed, with 21s. costs.
Decision to be enforced by Court below.
ASHON V. ATTA PENIN.
July 25, 1888.
Before Commissioner Rayner.
Betrothed Woman — Seduction — Damages — Difference het'vecn Dowry
and Cunsawmenf.
Plaintiff sued defendant for £3 12s., alleged as paid for
headrum.* Facts proved. Defendant, while engaged by
another man, was seduced by plaintiff, who was bound to-
pay, and did pay, all the expenses paid by this man on
* Consawment.
FANTI CUSTOMARY LAWS. 133
behalf of the woman. Plaintiff and defendant then lived
together.
Held, ])er Chief Sackey. Plaintiff cannot recover what
he thus paid. It was not headrum, but satisfaction money,
and if the man had liked he could have still continued the
marriage. Hence, as no headrum was paid or has been
paid, the relation of husband and wife does not exist.
Headrum is paid to family, not to outsiders.
ELMINA ASSIZES.
BOHAM'S CASE.
June 15, 1892.
Before Francis Smith, J.
In re Boliam and Hayford — Kative Marriage — Marriage Ordinance
No. 14, 1884— Caveat.
In the matter of an intended solemnization of marriage
between JoseijJi Alfred Boham and Helen Mary Hayford.
A caveat in this matter was entered against the issue
of the Registrar's certificate for the solemnization of the
said marriage by Arnhah Kortaba. Parties accordingly
summoned to attend this Court to be examined concerning
the premises.
Amhah Kortaba, sworn: I live at Atchinm, near
Elmina. I know Joseph Alfred Boham. He is married
to me according to native law. I heard that he w^as going
to marry Helen Mary Hayford, and I entered a caveat
against the marriage. I wrote a letter to the Judge, say-
ing I wish to withdraw the caveat, but I had been coerced
to do so by the plaintiff. Boham married me long before
he knew Mary Hayford. Of my own free will I do not
wish to withdraw the caveat.
By the Court : It appearing from the evidence of
Amhah Kortaba that she is married by native law to
134 FANTI CUSTOMAEY LAWS.
Joseph Alfred Boham, who intends now to marry Helen
Mary Hayford, it is ordered that the Registrar shall not
issue certificate.
DUNCAN V. ROBERTSON.
April 30, 1891.
Before W. E. Cleaver, A.J.
Claim hy Person in loco parentis — S.C.O. 187G, sec. 19 — IllegUimato
Child — Expenses <f Confinement.
This is an aj^peal hy the defendant against an order of
the District Commissioner, bearing date the 17th day of
September, 1891, in which the appellant was ordered to
pay the sum of £12 15.5., being money expended by the
respondent, Hannah Duncan, on Amba, her ward, before
and after her confinement of a child of which appellant is
the father.
Mr. Eiloavt appears for appellant.
Mr. Sarhah appears for respondent.
Mr. Eiloart addresses the Court, and argues that —
(1) Native law should not apply to this case. He cites
sects. 14 and 19 of Supreme Court Ordinance, 1876, and
relies upon argument that respondent did not show that
" substantial injustice " would be done by strict adherence
to English law, appellant being a European and respondent
a native.
(2) That if native law applies, it is contrary to natural
justice and equity if it has been lightly interpreted.
(3) Respondent in loco parentis, and, therefore, a joint
tort feasor with appellant.
Mr. Sarhah replies —
(1) English law is not applicable.
(2) Bastardy Act never enforced.
(3) Appellant not European.
Mr. Sarhah cites Marshall v. Dcavson.
FANTI CUSTOMAEY LAWS. 135
Judgment of Chief Justice Macleod. Summons framed
in accordance with that judgment. He further argues : — •
Affiliation orders not in accordance with practice of
this Court. Respondent does not claim damages for tort ;
the action is for money expended. Respondent did not en-
courage connection, therefore native law alone applicable,
and Marshall v. Daivson applies.
Mr. Eiloart replies, and states that affiliation orders
might issue, which would give Amha right to clairxi money
expended for confinement, and respondent had her remedies
against Amha. Cur. ad vult.
April 30, 1891. Judgment: I am of opinion that this
is a cause which should be decided by native law. The
appellant is not known to be, and there is no evidence as
to his nationality ; but admitting that he is a European,
I think that where a man enters into concubinal relations
with a native woman, his liabilities (and rights, if any)
should be determined by the same rules, whether or not
that man is a European or a native. The position of the
one should be no worse nor better than that of the other.
The case of Marshall v. Daivson (Cape Coast, vol. vi.
420) appears to be almost identical with this case. The
summons appears to have been drawn with reference to
that case, and the decision of the District Commissioner
appears to be strictly in accordance with the principles
laid down in that case. I have not lost sight of a point, I
think an important point, and raised by counsel for the
appellant, namely, the respondent's connivance, or, at least,
tacit consent to the immorality of her ward ; but even in
this particular, the case of Marshall v. Dawson appears to
be similar, though there was very little on that point, and
the Divisional Court did not appear to attach much im-
portance to the point.
I am bound by the decision in Marshall v. Dawson,
and therefore I must dismiss this appeal with costs, which
I assess at £l.
136 FANTI CUSTOMARY LAWS.
QUAMIE ASHON v. JOHN SNYPER.
November 26 and December 17, 1869.
Wife not liable for Husband's Debt — Private Dtbt — Family Undertaking.
Where the relatives of a person undertake to pay his
liabilities in his lifetime, they are bound to fulfil their
undertaking even should he die in the mean time.
Chiefs: When a man is married country fashion and
dies in. debt, it is his own relations who have to pay his
debt.
Daring his lifetime he applies to his relations for advice.
Sometimes they undertake the debt for him. But without
such previous voluntary understanding, the relations would
not be held liable. The debtor himself would be liable.
There is no obligation on wife to pay any part of
husband's debt.
Judgment of nativ^e Court at Mankessim affirmed.
INKRUMA V. KANKAN.
July 16, 1885.
Before Hector Macleod, J.
Head of Family — Claiming Debt.
Quamina Dansu [per the Court] : Did your stool belong
to Kankan ? A. — No, it was my own ; he has his. Q. — Had
Kankan any authority or control over your stool ? A. — He
had. Q. — What was the extent of that control ? A. — When-
ever he sent me anywhere I went.
July 18, 1885 [^^er Macleod, in judgment]. InJcrumas
answers to my questions lead me irresistibly to the con-
clusion that when the Dompin palaver was before Judge
Smith nearly five years ago, Dansu took out a summons
to recover, not only his own property, but also that of
Inkruona, and such action on the part of the head of a
FANTI CdSTOMARY LAWS. 137
family is of constant occurrence in the Courts of the colony,
though generally in cases affecting the rights in land, for
cases of this kind are rare.
ECCUAH BIMBA v. EFFUAH MANSAH.
November 25 and 26, 1891.
Before Hayes Redwar, Actincr Judo^e.
G>/t — Family Property — Emancipation Ordinance, 1874.
Plaintiff for herself and the family of Aggrey, late King
of Cape Coast, seeks to establish her title to that piece or
parcel of land situate at Amissa Akyre in Cape Coast, the
freehold of which the defendant unlawfully claims.
Judgment.
In a case like the present, where an entirely different
mode of tenure prevails from anything known to English
law, and where the alienation and devolution of property
proceed on principles the exact origin of which must ever
remain, to a great extent, obscure, owing to the absence of
any authentic records of native law, except of those points
which have been litigated and decided in this Court, it is
necessary to proceed with great caution, and, where customs
are not strictly proved in evidence, or have received judicial
recognition, to follow as far as practicable the analogy of
English law, disregarding any customs not so proved or
sanctioned by this Court. Native law, when not incorporated
by judicial decision in the law of this land under the pro-
visions of sect. 19 of the Supreme Court Ordinance, 1876,
must stand therefore on the same footing as foreign law,
and must be proved by the evidence of expert witnesses.
Now, in this case expert evidence is not called, and
reliance is placed upon certain decided cases which, although
138 FANTI CUSTOMARY LAWS.
not conclusive on the points in dispute, throw the strongest
light on them, enabling analogies to be drawn.
In the first place, the plaintiff, by a form of action
unknown to English procedure, claims to establish her title
to certain land, the freehold of which it is alleged the
defendant unlawfully claims. That this action is in no way
connected with or similar to a proceeding under the Imperial
Declaration of Title Act, 25 & 26 Vict. c. G7, is perfectly
clear, since the proceedings under that Act are not hostile
proceedings, and the Act itself is expressly confined in its
operation to England. But the form of action employed is
one which has been in use in this Court for many years, and
although it is difficult to see why proceedings should be
taken in this form rather than in ejectment or for the
recovery of possession, the Court is in this case relieved from
the responsibility of scrutinizing its own practice in this
respect by the consent of counsel at the bar ; and, indeed,
in view of the general aspect of the case as it appears to
me, it is unnecessary to consider the point which was raised
by defendant's counsel and subsequently dropped.
Looking at the plaintiff's case first. She contends that
her ancestor King Aggrey merely gave a permission or
licence to build on this land, the freehold of which remained
in himself and descends to his heirs ; and further, that the
house erected by defendant's ancestor having fallen, further
permission was necessary before it could be rebuilt, and this
permission not having been obtained, the licence to build
was annulled according to native law, since the house had
been improperly rebuilt. No expert evidence, however, was
called on this point, and reliance w^as placed upon the case
of Lyall V. Doiigan decided in this Court. But upon a com-
parison of the facts of that case with the facts in this, it is
at once clear that the case for the defendant in this action
is of an entirely different character, and that the question
which the Court has to decide in this case depends entirely
upon the credit of the witnesses called on both sides to
establish the respective parties' positions. The claim of the
FANTI CUSTOMARY LAWS. 139
plaintiff is based upon a pedigree showing her descent from
Aggrey, but she admits that she is the descendant of a slave
of Aggrey ; and the question was then raised as to how the
status of a slave to inherit is affected by the Emancipation
Ordinance, No. 2 of 1874.* Defendant's counsel has argued
that, as slaves cannot legally exist, the conditions of their in-
heriting property are swept away with the status of slavery.
But upon referring to sect. 8 of that Ordinance, a proviso
is found that nothing in that Ordinance shall diminish or
derogate " from the rights and obligations of parents and of
children, or from other rights and obligations not being
repugnant to the law of England, arising out of the family
and tribal relations." The true construction of that section
is, in my opinion, that slavery, being repugnant to the law
of England, is abolished by that enactment, but that any
privileges or rights which the slave may have had before the
passing of the Ordinance are saved, provided those privileges
or rights are not in themselves repugnant to English law.
Obviously there is nothing "repugnant" in the idea of a
slave child inheriting its parent's property, and I hold there-
fore that a slave can inherit, under any native law permitting
him to inherit under circumstances clearly defined and
proved to exist. Now, in view of the decision to which I
have come in this case, after a careful consideration of the
evidence adduced on both sides, it is unnecessary to express
any opinion as to the validity of the plaintiff's claim as a
house-born slave to inherit King Aggrey's property, because
unless I entirely disbelieve the evidence led by defendant,
* On December 17, 1874, a proclamation was issued by the Govern-
ment forbidding slavery and dealing in slaves, and declaring that all
children born after November 7, 1874, were free. This proclamation
concluded thus : " But it is not intended by any of the aforesaid laws or
otherwise to offer inducement to any persons to leave any master in whose
service they may be desirous of remaining, or to forsake the Kroom where
they have been accustomed to inhabit, and that it is intended to permit
the family and tribal relations to continue in all respects according as used
and wont, except only that of slavery, and such customs as arise therefrom,
and are thereon necessarily dependent."
140 FANTI CUSTOMARY LAWS.
the question narrows itself to this : "Was this land given or
sold by King Aggrey to defendant's ancestors or not ? " If
it was so given or sold, whatever may be the plaintiff's
claim to inherit, this land in dispute forms no portion of the
inheritance. Now, the plaintiff sets up an admission by
Bosumafi that the land was not hers but King Aggrey 's,
and that the house only was her property. Upon what
evidence is this alleged admission based ? I dismiss at once
the evidence of Prah as being of no value. I further dismiss
the evidence of plaintiff on this point, as she admitted in
cross-examination that she derived her information from
what she had heard from Tawiah, and that she was not
present when the admission was made. The admission, then,
must rest on the evidence of Ayensoo, and looking at his
evidence generally, and the mode in which he stood the
ordeal of cross-examination, I am forced to the conclusion,
from the general tenor of his testimony and its improbability,
that this witness's memory is at least defective, and liis
knowledge of facts even more defective. He is unable to
answer any questions outside the alleged admission, and is
unable to give any clear account even on the very points
on which his evidence is of importance. So much for the
admission; I will now address myself to the evidence
adduced by defendant.
She states that her ancestor Bosumafi went to Aggrey
and asked for land to build on ; that King Aggvey said she
was welcome to do so, as he had married into her family ;
that subsequently he said he would make a present of the
land in dispute to his wife Insafuabbah and her son by
him ; that because of this the three sisters — Kabbribah,
Insafuabbah, and Bosumafi — sent, as a thank-offering to the
King, the sum of twenty dollars in cash and other valuable
presents, which at first he refused, but that he subsequently
accepted, at least some of them. Now, most of the witnesses
of these transactions are stated to be dead, and the defendant
is herself an aged woman ; but she tells her story in a
straightforward manner, and comes through the ordeal of
FANTI CUSTOMARY LAWS. 141
cross-examination with the main points of her testimony
unshaken. Counsel for plaintiff has commented on the
absence of witnesses to corroborate defendant's statements ;
but these things occurred a long time ago, and it may well
be that witnesses older than defendant have passed away.
She says she was about twelve or fourteen years of age at
the time, and she is now an aged woman. Amongst other
things, she says that the three sisters contributed to the
sum of twenty dollars, and that Kabbribah dying first,
Insafuabbah and Bosumafi occupied the house that was
built ; that neither could dispose of the land given by the
King, or the house built, without the consent of the others ;
and that it passed to the survivor Bosumafi, and thence to
her (defendant) as her niece. Further, that the King gave
the land to them to do what they pleased with it. It would
seem, therefore, that the land was held after the fashion
of a joint tenancy with benefit of survivorship. Now,
plaintiff's counsel asserted that such a tenancy was unknown
to native law ; but he called no expert evidence on the
point, nor did he refer me to any case in which it has been
lield that such a tenancy is unknown or impossible accord-
ing to native law.
The cases cited in the arguments do not convince me .
either that this transaction was merely a permission to
build on the land without affecting the ownership of the
freehold, or that a licence to build is revoked by the falling-
of the house built upon it. Indeed, the cases, if anything,
guide me by analogy to the conclusion that this transaction
was really a gift of the land to defendant's ancestors as
members of Aggrey's wife's family, and that there was no
intention to limit or control the subsequent disposition of
the lands so given. I am doubtful, indeed, whether the
transaction was anything more than a gift. I hardly think
it was, in the strict sense, a purchase, although valuable
gifts are alleged to have been made to the King. I pass-
over minor points in the evidence, and deal only with the
broad facts before the Court.
142 FANTI CUSTOMARY LAWS.
A further point was raised by plaintiff's counsel that,
according to native custom, a gift is revocable. He has
produced no authority for this proposition, and the cases
cited tend rather the other way. In the absence of any
authority as to the native law on this point, I feel myself
bound to be guided by the settled principles of English law
on cases of this kind, and to hold that although it may be
doubtful whether this was a' purchase, even as a voluntary
gift it is good as against the grantor himself, and those
claiming under him.
Under the circumstances, the judgment is for the
defendant and with costs. Let the costs of the defendant
of this action be taxed, and let the plaintiff pay to the
defendant the amount of her costs when so taxed.
GABRIE V. AFFRANQUAH AND Q. EBERI.
September 3, 1844.
Criminal Conversation of Plaintiff's Wife hy Eberi, Slave of Affranquah.
Plaintiff, Chief of Mansue.
Defendant admitted offence. Ordered to pay to plaintiff
as damages 2 ozs. gold, a sheep, and a case of rum, leaving
it optional with his master, Affranquah, either to pay this
sum or give up his claim to defendant Eheri.
AMPIMA V. DEAMUA.
Anamabu, September 5, 1844.
Family Deht — Contribution by Members — Domestics.
In this case plaintiff complains that the house or family,
of which the defendant and himself formed a part, had
fallen into debt. That the defendant, who is a slave of the
house, wants to get off from it, and leave the house, contrary
to a law that prevails among the natives of this country.
FANTI CUSTOMARY LAWS. 143
Defendant pleaded that he was no slave of the house,
but free-born ; that he wished to go away from the house,
and leave it to plaintiff and the rest of the family.
It appeared, during a lengthened investigation, that
defendant is a slave of the house, was born therein, and had
ever since lived there ; that he had at one time assumed the
highest place in the house, during which he had sold off
several members of the family as slaves, among whom was
the plaintiff's brother and the plaintiff himself also ; and
that he had since redeemed himself and returned to the
family.
Decreed that defendant must either redeem himself
from the family or still remain there, and pay his part of
the debt that has fallen upon it. His redemption money
was fixed at 2 ozs.
ISAAC GODWIN JONES v. PRECILLA WARD
AND OTHERS.
December 23, 1895.
Before Francis Smith, J.
Family Land — Sale — Ruined House — Compensation — Contribution.
Claim £137 2s. with interest, being expenses incurred
for the preservation and security of the late Richard Sam's
house and land, etc.
Judgment was reserved in this case, and parties having
been duly notified to attend and hear it, have accordingly
done so. The opinion of the Referees upon the native law
involved is made part of the case.
Judgment.
The plaintiff seeks contribution from the defendants for
expenses incurred by him on the repairs of the family house
during the lifetime of his mother. This house fell into ruins.
144 FANTI CUSTOMARY LAWS.
and the Government bought the ruins and site for public
purposes, the proceeds of which sale were shared between
the plaintiff and defendants. This right, which is claimed
by plaintiff, cannot be determined by English law, the act
being a voluntary one on his part, and not performed at the
request of any of the defendants. Native law must decide
the matter, and (a) accordingly, at the close of the case, the
facts were submitted by me to three native experts, and the
native law bearing on the facts was asked of them, and
these Referees have submitted their opinion thereon. These
Referees are not unanimous in their opinion, two holding
one view (6), and the third a different view (c). The two
hold that the plaintiff has no right to contribution from the
defendants, whilst the third that he has. They do not
disagree, as it appears to me, upon the general question of
the right of a member of a family to have the expenses he
has incurred in repairing a family house, by which the value
of that house has been enhanced, shared amongst the
family when such a house is sold ; but the two have applied
the law to the circumstances of this case, whereas the third
has stated the general law. That law, as stated by the two,
commends itself to me, and is consistent with equity and
good conscience. The circumstances are, that the Govern-
ment did not buy any house, but the ground on which were
the ruins of a house. Had there been a house, the value of
the property would have been increased, the Government
would have had to pay more, and in fairness and equitably ,^
the member by whose means this increased value has been
obtained should receive his expenses. The money so ex-
pended on the house was practically lost when it fell into-
ruins, and the purchase-money was really given for the
ground on which no money had been expended. By native
law, therefore, and in this case the Court is bound by the
opinion of the majority, the plaintiff cannot claim contribu-
tion from the defendants. I must nonsuit the plaintiff, but
in view of the circumstances of the case the nonsuit will
be without costs.
FANTI CUSTOMARY LAWS. 145
Court House, Cape Coast, December 4, 1895.
(a) Dear King, — A matter has come before me touching
the right of a member of a family to be repaid his expenses
of helping to repair the family house.
The facts are briefly these : During the lifetime of a
person whom we shall call A, B her son now and again
contributed money and materials to repair the family house
where the mother and other members, except the son, were
residing. After the death of the mother the house fell into
ruins, and lately the Government have purchased the ruins
and site for public purposes. The money paid by the
Government was delivered to the son and eldest daughter
on account of the family, and that money was accordingly
shared by the whole family, the son and eldest daughter
receiving the greater share, and the others in proportion.
The son now has sued the members of the family amongst
whom the money has been shared for contribution towards
the expenses he has incurred, and as the determination of
his right depends upon native law, I shall feel obliged if you
will advise me on the following points : —
Is the son entitled to have his expenses shared amongst
himself and the other members of the family ?
Does the fact that when he incurred the expenses he
was doing so at the request of his mother, prevent him from
claiming contribution from the other members ?
Would each member who has expended money on the
house have the right to contribution from the other members?
When the money is unequally shared, would each be
only entitled to contribute to the extent of his share, or
must the expenses be equally divided amongst the members?
With kind regards,
I am, dear King, yours faithfully,
(Signed) Francis Smith,
Puisne Judge.
To King Amonoo IV. of Anamaboe and to Chief Andoh of Elmina.
L
146 FANTI CUSTOMARY LAWS.
Cape Coast, December 8, 1895.
(c) Dear Sir, — I have the honour to acknowledge
receipt of yours of the 4th instant, and note contents of
same having reference to a case that has come before you,
and your honour requesting my opinion or advice on native
points stated therein. In reply I beg to say —
1st. B the son of A is entitled to have his expenses
made towards the house shared amongst himself and the
other members of the family, and B should have one-third,
and two-thirds for the other members of the family.
2nd. The fact that he made the expenses towards the
house at the request of his mother does not prevent him
from such a claim, unless he had the means from other
property of the family.
3rd. Each member who resided in the house with the
mother cannot have right to such contribution for his
expenses unless he was not residing then in the house.
4tb. The expenses should not be equally shared, but in
proportion to the amount of his share of the money, or his
age in order.
I have the honour to be, dear Sir,
Yours faithfully,
(Signed) Amoxoo IV.
Elmiiia, December 13, 1895.
(h) SiK, — Your letter of the 10th iiist. to hand, in the matter touching
the right of a member of a family to be repaid his expenses of helping to
repair the family house.
That during the lifetime of A, B her son now and again contributed
money and materials to repair the family house, where the mother and
other members, except the son, were residing. After the death of the
mother, the house fell into ruins, and lately the Government have pur-
chased the ruins and site for the public purposes.
The money was delivered to the son and eldest daughter on account
of the family, and that money was accordingly shared by the wliole famil}',
the son and eldest daughter receiving the greater share, and the others in
proportion. The son sued the members amongst whom the money has
been shared for contribution tov/ards the expenses he has incurred :
FANTI CUSTOMAEY LAWS. 147
1. Is the son entitled to have his expenses shared amongst himself and
other members of the family ? Answer : No.
2. Does the fact that when he incurred the expenses he was doing so
at the request of his mother, prevent him from claiming contribution from
the other members ? Answer : Yes.
3. Would each member who has expended money on the house have
the right to contribution from the other members '? Answer : No.
4. When the money is unequally shared, would each be only entitled
to contribute to the extent of his share, or must the expenses be equally
divided amongst the members ? Answer : No. When the family shared
the money unequally, by giving the son and eldest daughter the greater
share, the members of the family must have had their reasons for doing
so ; the expenses are not to be divided amongst the members.
If the house in question was standing, and inhabited by any member
of the family, or was under rent, and, as above stated, the son did not
live in the house, but kept it in repair, and the house and site were
purchased, the son or any members of the family who kept the house in
repair, as by his or their keeping the house in repair makes the estate
more valuable, therefore he or those members of the family who did so^
would have a right to have their expenses first deducted out of the amount
so paid, and share it amongst them, according to the extent of his or their
expenses made in keeping the house in repair, and the balance of the
money divided amongst all the members according to their connection (in
blood), as the land and ruins belong to them all.
I am, Sir,
Your obedient servant,
(Signed) G. E. Eminsang,
Head Chief.
Elmina, December 9, 1895.
Sill, — I have the honor most respectfully to acknowledge the receipt
of your letter, No. 362/341, of the 4th instant, and beg to reply you
according to paragraphs as follows: —
1st. According to the native laws, one person out of a united family may
purchase house or build one, but such house will always be recognized as
his own house, and it will only be considered a family house after the death
of its rightful owner, but the next of kin to the party who owns the house
will be recognized the rightful owner of the house ; and will be the only
person to have supervision over the house ; the next of kin will be entitled
to take entire charge of the house, and to dispose same.
2nd. The families can assist the next of kin to make the necessary
repairs towards a house, if the next of kin is not in a position to do so ;
but their doing so will not justify any family to have supervision over a
house other than the next of kin ; their rendering such assistance is only
a matter of form to keep the reputation of the first owner of the house.
148 FANTI CUSTOMARY LAWS.
3rd. Answer to paragraph 3.
The son is not entitled to share any expenses he may have incurred
towards the repairs of any building with families, except the families
choose to render him any assistance ; and in rendering such assistance, the
families will not be justified to have any claim after, or have any super-
vision over the house.
In reply to paragraph 4.
The son will not in any way be entitled to claim any contribution he
has from time to time incurred towards the repairs of the house.
Jn reply to paragraph 5.
The family will be entitled to demand any contribution from any
family or the next of kin towards the repairs of any building, although
some of the families may contribute more or less than the others.
In reply to paragraph 6.
I beg to inform you that the next of kin is entitled to have the greatest
portion of the proceeds realized from any property or building sold ;
although the property or the house may be in a ruinous condition, and
the families may, however, render assistance, but such assistance will not
refer to either young or great, since the next of kin is supposed to be the
rightful owner.
I have the honor to be. Sir,
Your obedient servant.
Chief QuACOE Andokii his x mark.
Witness to mark and writer : (Signed) K. B. A>sDORH.
PKOPERTY.
BAINEE V. MENSAH.
February 14, 1853.
Morfyage — Foreclosure.
Plaintiff states he is accused of owing money to defen-
dant's family.
Defendant states that a man named Konfu Quabina
pawned a man Bondon to Ewea for 1 oz. 2 acks. These
three persons are all dead, and Ewea's family have claimed
from Yarquah, of Bondon's family, the amount paid for
Bondon. Yarquah, having no money, gave a piece of ground
to Ewea's family that they should use it. The ground has.
FAXTI CUSTOMARY LAWS. 149
been iii possession of Ewea's family since it was given to
them by Yarquah. This was about twenty years since.
Plaintiff only laid claim to the ground last year.
It was decreed that plaintiff should pay the amount of
Bondon's price, 1 oz. 2 acks. In default, the land to remain
in possession of Ewea's family, of which Mensah is a
member.
QUAMINA ATTOPEE v. EFFUA NANCY.
February 21, 1853.
Building Tenure— Itesum2)t ion of Land — Compensation.
Pldiutiff states that the defendant gave him some ground,
and now, after building a house on it, she wants it back.
He now wishes her either to pay the expense of building
the house or to receive payment for the ground.
The defendant adopts the former.
By the Judicial Assessor : —
Referred to Dawson and Mr. Clottston to say how much
it will cost plaintirt' to build as good a house as is now
standing.
ROBERTS V. AWORTCHIE.
June 23, 1884.
Before Hector Macleod, J.
Company Land — BaiJdinj Tenure — What Interest attach able — Judgment
Creditor — Interpltader.
Isaac Robertson: This house could not be sold by
Qiiamina Aiuortchie, because it is the public meeting-place
of the company, and, if it chose, the company could turn
Aivortchie out without compensation. When Aiuortchie
dies this house will belong to Awortchie's children.
The native law is that the creditors of a trader can sell
the materials of which such a house as Aivortchie s is built.
150 FANTl CaSTOMARY LAWS.
and the company has no right to prevent the purchaser
from removing the materials. In the circumstances of this
particular case, the judgment creditor has quite a right to
sell Aivortchies house, and the No. 2 company has no right
to prevent the purchaser from removing the materials of
which the house is built ; but the judgment creditor has no
right to sell the land itself, which belongs to the company.
If part of the swish that Aivortchie used was on the land
before in the shape of a ruined house, then such part is the
property of the company, and cannot be sold ; but such
part of the swish as defendant brought there himself, the
judgment creditor can sell, and the judgment creditor can
sell the woodwork belonfrinor to Awortchie.
Judgment.
Macleod, J. : I have heard the case for the claimants.
I think that an order ought to issue, releasing the land
from attachment.
Further, I think the claimants are entitled to half the
swish composing the house ; but according to their own
case, native law allows the judgment creditor to sell for the
purpose of removal such of the material forming the house,
as was brought there by the judgment debtor.
Claimants : Ayea and Antoney, on behalf of No. 2
company.
QUAMIN DANSUE v. TCHIBU-DARCOON AND
CANCAN.
December 18, 1880.
Before W. J. Smith, J.
Stool Property-^ Occupant abdicating to restore Stool and Appurtenances,
Assessors : When a person is placed on a stool and he
wishes to leave the stool, everything he received with it
and everything he had made by use of the property passing
FANTI CUSTOMARY LAWS. 151
with the stool were taken from him, and he must go
alone.
* * * . » «
Defendant, Kincr Tchihii-Darcoon, Kinor of Assin : Have
chiefs and captains under me. The chief of Fessoo is the
head chief. The captain of Dompin is under Yow Fencee.
Cancan succeeded to Yow Fencee. The stool of Dompin
belongs to the stool of Fessoo. All the property belongs
to the stool. When a captain dies, another is placed there,
and if he leaves, the property is taken and given to the new
captain. This was the reason the property at Dompin was
taken, namely, because it belonged to the stool, and I
ordered them to be taken because he said he was going to
leave entirely.
*****
Amonoo, of Anamaboe : When a captain leaves the stool,
he must not take the property away if the stool is subordinate
to another.
Judgment.
That the property taken at the village of Dompin
belonged to the stool, and was legally seized by the
defendants when plaintiff declared his intention of leaving
the stool and going to Akim.
ATTA V. SAM AND OTHERS.
June 8, 1882.
Before N. Lesingham Bailey, Actinor Chief Justice.
Family Property — Succession — Slaves — Emancipation Ordinance.
In this case plaintiff claims certain lands by right of
succession to one Otuah, whom he alleges to have been
tenant in fee or absolute owner. The defendants claim to
be joint owners of the lands by right of succession to one
Odabin. After hearing the evidence on each side, I and the
152 FANTI CUSTOMAEY LAWS.
assessors also have come to the conclusion that the plaintiff
has established his claim, and that Otuah was tenant in fee
of the lands in question, and that the defendants were his
slaves. On the death of Otuah, more than fifteen years
ago apparentlj^ the right of succession devolved on the
plaintitf, who, however, permitted his younger brother
Q^ebiah to exercise rights of ownership over the lands in
question. Tebiah employed one Akon, as caretaker, and up
to that time the defendants were, and considered themselves
to be, the slaves of Tebiah. After Akon had been placed
in possession by Tebiah, one of the defendants, Incomah,
lived with him (Akon) as his wife or concubine; but,
between ten and fifteen years ago, Akon was ejected by her
from the lands over which he had been placed in charge by
Tebiah. Tebiah I hold to have been simply the licensee
of the plaintiff, and consequently his possession was the
possession of the plaintiff.
The adverse possession of the defendants, therefore, com-
menced within the time limited by the Statute of Limita-
tions (supposing such statute to be in force in the colony), a
point which I am not called upon to decide.
The point urged by Mr. Eminsang for the plaintiff, viz.
that as slaves freed by the Ordinance of 1874, the defendants
were not entitled to succeed to the ownership of his lands
on the death of their master, does not arise. The master
died before the passing of the Ordinance, and by native
custom, they, as well as his other property, devolved upon
his nearest blood relation in the female line. The fact that
Tebiah and Attah were the nearest blood relations of Otuah
was not put in issue, nor were the points in any way
relied upon by the defendants, neither were the plaintift''s
witnesses cross-examined on this head. Judgment will
therefore be for the plaintiff, with costs.
FANTI CUSTOMAEY LAWS. 153
COBINA ASHON v. COBINA BARNG.
November 27, 1891.
Before Hayes Redwar, Acting Judge.
Mortgagor s Itights — Palm-oil Districts — Pahn-ivine — Gtneral Bate of
Interest.
Plaintiff claims £50 damages for trespass on plaintiffs
land, called Ottookrooban, and cutting down thirty-four
palm-trees.
Mr. Roberts for plaintiff; Mr. Sarhah for defendant.
Plea— Not Guilty.
Hearing resumed at 9 a.m., pursuant to adjournment.
Mr. Sarhah proceeds and calls the following expert
evidence : —
KoK Sackie, sworn : I am a Chief of Cape Coast. I have
been accustomed to be consulted as to native law by this
Court since the days of Chief Justice Chalmers. In the
case of a pledge of lands, the pledgee works on the land,
and if there are palm-trees on the land, the pledgee has a
right to cut them down. As to the neighbourhood of Cape
Coast and Anamaboe, I know that at Anamaboe they make
palm-wine, but whether some of them make oil I don't know.
As to Cape Coast, they only make palm-wine there. In a
palm-wine district the pledgee has the right to cut the palm-
trees. In cutting the palm-trees the pledgee is not account-
able to the pledgor. The pledgor's previous consent is not
necessary to cut down the palm-trees. In the Fanti country
the pledgee is not to account to the pledgor for the use of
the land or of a man who is pledged. This is a universal
custom in the Cape Coast district.
[By the Court.] It is the custom of the whole Fanti
country. Before the pledging is made, the custom* must
be explained to the pledgor.
* The word " custom" by interpreter objected to by defendants' counsel,
who said that it should be interpreted as " matter."
154 FANTI CUSTOMARY LAWS.
[Examination continued.] Before the land is pledged,
the pledgor tells the pledgee, " I am going to pledge my
land to you." Then the pledgee says to the pledgor, " I am
going to take your land on these conditions."
[By the Court.] The conditions must be agreed on.
There are some lands that have no palm-trees, and on those
lands it is agreed that the pledgee should work thereon till
the loan is paid. On lands which have palm-trees produc-
ing wine, the agreement is that the pledgee has a right to
cut the palm-trees for wine in lieu of interest. Being the
law of the country, this is explained and agreed to before
the pledging is completed. Whether this law is explained
or not, the pledgee has a right to cut the palm-trees. I
have never known a case in which pledgor has claimed an
account from pledgee.
By the Court : If the pledgee takes from the land the
amount of his loan and interest, is he entitled to continue
cutting down the trees till he is paid ?
Witness replies " Yes."
[Examination continued.] I know one Inkrumah, and
of a dispute between him and some one about land which
had been pawned for years.
Dankin's land is situated in the Anamaboe district.
The "conditions" I have mentioned before must be men-
tioned to both pledgor and pledgee. If the pledge be of
land in a palm-oil district, there must be an arrangement
that the pledgee shall take the palm-oil from the nuts.
Where palm-oil is made, there is no cutting of trees for
making wine for sale ; the trees are only cut for wine for
the labourers. No permission is necessary to cut down
palm-trees for him for labourers.
Not re-examined. '
Cudjoe Imrah, sworn : I am Chief of Cape Coast, and I
was once linguist at the King of Anamaboe's Court. I hold
Court now and decide cases. Supposing a man wants to
raise money and borrows on the security of his land, there
is native law on the subject. When the pledgor pledges
FANTI CUSTOMARY LAWS. 155
land to the pledgee, and when there are palm-trees on the
land, it is arranged that he is to cut the palm-trees.
[By the Court.] The arrangement is on the basis of a
native law. By the law it is so, but the pledgee is to be
told of this. It is not necessary to tell the pledgee, inas-
much as he has taken your money, he has a right to take
the crops and cut down the palm-trees.
[Examination resumed.] Interest is matter of arrange-
ment. There is a legal rate on all the Fanti Coast ; the
rate is 50 per cent. Sometimes the lender is asked to take
less than this rate, and sometimes he foregoes interest
altogether. I have done that myself. At Anamaboe the
pledgee has a right to cut palm-trees for wine. In a palm-
oil district, you have to ask the pledgor for permission
to make oil, because palm-oil is considered more valuable
produce than palm-wine. In a palm-oil district, the pledgor's
permission is not necessary to enable the pledgee to cut
down palm-trees for wine for labourers. The native law of
pledging is applicable to palm-oil districts as well as palm-
wine districts ; but, as I have stated, an arrangement also
is made. The arrangement sometimes is that the pledgee
charges no interest, in which case he is entitled to take the
palm-oil ; and sometimes it is arranged that the pledgee
takes interest and goes shares with the pledgor in the pro-
ceeds of the sale of the produce of the land. In palm-wine
districts, sometimes it is arranged that the pledgee is only
to fell a certain number of trees for the wine, and that goes
as a set-off against the debt. Where this arrangement is
not made, the pledgee has a right to fell the trees to any
amount until the debt is paid.
Cross-examined by Mr. Sarhah.
A pledgee advances £4, no arrangement is made as to
interest, the boundaries are shown. In such a case the
pledgee has a right to cut the trees to any amount.
[By the Court.] This Law is well known in the Anamaboe
and Cape Coast districts.
By the Court: Upon a careful consideration of the
156 FANTI CUSTOMAllY LAWS.
expert evidence, I find that by a preponderance of testimony
the custom of cutting down the palm-trees by a pledgee
until the debt is repaid is clearly and satisfactorily proved,
and that therefore the plaintiff's claim for damages in
trespass fails, as the defendant had a legal right to do what
he had done, and which is the subject of this action.
The judgment must be for the defendant and with costs,
to be taxed.
ABBAN V. SAGO.
January 24, 1883.
Before Quayle Jones, Acting Judge.
Emancipation Ordinance — Tenure-service.
Per Quayle Jones: I find that the land in question is the
property of the plaintiff, and that defendant and his ancestors
occupied as slaves in the first place, and since the abolition
of slavery, on an implied contract of fulfilling the services
and bearing the responsibilities which would have devolved
on them as slaves. This being so, as long as defendant
fulfilled these services and bore these responsibilities, the
plaintiff would not have been entitled to recover the land in
dispute. But the defendant having refused to continue to
perform such services and bear such responsibilities, ceases
to have any interest in the land, and plaintiff is entitled to
recover the same.
Judgment for plaintiff.
ACCUFUL V. MARTEY.
December 22, 1882.
Tenant — Family Land— Failure of Rent — Aduerse Possession.
Judgment.
I think it is clearly proved that the lands in question
were originally Etsien's, and by the native law land descends
by the female line to the children of the owner's sister.
FANTI CUSTOMARY LAWS. 157
^m Donkum was Etsien's son, or rather one of his sons, and
^B was permitted at his father's death to occupy the land
^g together with the other children, paying a portion of the
produce to Etsien by way of rent. This permission was
continued to Abocue's children, among whom was Martey
the defendant; but for thirty years no rent had been received
from the defendant. I cannot, however, bring myself to
hold that the defendant's possession was adverse possession.
I feel quite clear that the defendant was well aware of the
tenure under which he held, and that he was in fact
permitted by native custom to receive and cultivate the
land, but had no right of ownership in it.
KOFI AMONOO v. ADJUA ABAKUMA.*
June 7, 1871.
Before Chalmers, Judicial Assessor.
Mortgage — Rtdemptlon — Intermediate Profits — Accounts closed.
To render payment to plaintiff of the value of the palm-
wine, yams, and other produce of a certain land, known as
Soldofoo, which proceeds you have unlawfully retained and
Converted to your own use for the last six years, and which
plaintiff estimates at £97, or thereabouts.
Judgment.
In this case the plaintiff claims £97, being the value at
which he estimates the use and profit had by the defendant
from the lands at Soldofoo, which, by proceedings in 1865,
before the Mayor's Court, and again recently in this Court,
♦ Incroma v. Marmoon, April 13, 1882, before Lesingham Bailey, C.J.,
the Assessors, Chiefs Robertson and Botchi laid down the Customary Law
thus : " No right of possession by a mortgagee could vest the ownership of
mortgaged lands in such mortgagee. No length of even adverse possession
would entitle a mortgagee to oust the claim of the mortgagor, the mortgage
debt having been satisfied.
158 FANTI CUSTOMARY LA^YS.
it has appeared, were held by the plaintiff and his ancestors
in pawn for a loan made to the ancestors of the defendant.
It appears that by the custom of the country a creditor who
holds land in pawn is entitled to the use and produce of the
land as well as the interest of the money borrowed. I
must remark on this arrangement, that it gives a very
large advantage to the lender over the borrower, where the
land, as in the present case, is of considerable value ; and
this consideration makes me, I confess, the less favourable
to such a claim as is now made — to the effect, at least, of
inducing me to inquire somewhat strictly that the circum-
stances which are necessary to sustain the claim should
have been thoroughly fulfilled.
It appears from the evidence that during the six years
which constitute the period to which this claim relates
there has been a joint use of the land by the people of the
King of Anamaboe and the defendant's people. This shows
that what the defendant was doing was perfectly well
known, yet no steps were taken on the King's part to
exclude her or her people. All that was done was that on
some occasions the person who says he was in charge for
the King of Anamaboe, asked persons who were working
on the land to account to him for what they took. The
names of such persons were not taken, nor is there in strict-
ness any distinct proof that they were sent by the defendant,
though she has not disputed this. It is true that for a year
Know Saman, while occupant of the stool, took possession
of the land, driving away, it seems, defendant's people.
After this he was deposed and left the land, and the present
King succeeded, and soon after his succession, the defendant
made payment of the sum found due by the Mayor's Court.
Unfortunately the payment miscarried and she obtained no
valid discharge, but it was made in complete good faith on
her part ; and after so doing, she was, in the absence of
notification to the contrary, well entitled to " think " she
had a good right to the use of the land. It does not seem
that any such notification was given to her ; on the contrary,
FANTI CUSTOM AEY LAWS. 159
the joint use of the land by the plaintift's and her people,
appears to have continued without the plaintiff making any
exclusive claim ; neither did the plaintiff apply to her for
payment for the 8 ozs. found due by the Mayor's Court,
which, though paid by the defendant, he had not received.
I must further state that the actual value received by the
defendant from the land is left a good deal conjectural, the
witnesses for the plaintiff, who lived on the land and who
speak to produce removed by people supposed to belong to
the defendant, giving nothing but very indefinite statements
on this subject. Taking all these considerations into account,
and taking into account also that a very considerably in-
creased amount of redemption money for the land has been
assessed by the Court] without any mention being made by
the plaintiff of this claim, which redemption money has
been paid ; and taking into account also the clear opinion
stated by the chiefs, that after a land has been redeemed,
nothing should be said about intermediate profits, which I
think is a right and just opinion, I must advise the King of
Anamaboe that this claim should not be sustained.
Judgment therefore for defendant.
ECCOBANG V. HAGAN.
May 29, 1885.
Before Brandfokd Griffith, A.J.
Trespass — Long Possession without Bent of any Kind — Notice.
Keferees : Mr. Sarbah and Chiefs Essell and Sacky.
Q. — By the Court : The owner of land gives permission
to a person to cultivate a portion of the land ; this person
and his heirs continue cultivating the land for upwards of
forty years, paying no rent and giving no produce to the
owner ; by native law, does this prolonged possession destroy
the title of the original owner ? Referee : I say and affirm
that such prolonged possession does not destroy the title of
the original owner.
IGO FANTI CUSTOMARY LAWS.
It makes no difference if the permissive occupier inter-
marry with the niece of the original owner.
The original owner can re-enter upon the land at any
time. The original owner could not enter on the land and
take the produce at any time without consent of the
occupier.
The original owner cannot enter on the land at any time
and " clear away bush " * without giving prior notice to the
occupier that he required the land.
The owner of the land might cut down palm-trees on
this land at any time, as they either ought not to have
been planted by the occupier without the previous consent
of the owner, or they were there at the time the land was
lent.
Judgment.
The Court finds that the portion of the land called
Oduassie, claimed by the plaintiff, is held by the plaintiff
at the will of the defendant, and that the defendant before
entering on the land gave notice thereof to the plaintiff, and
that the defendant by entering on the land after such notice
and clearing the land and cutting palm-trees thereon did
not commit a trespass.
GRANT V. AMISSAH.
November 20, 1883.
Before N. Lesixgiiam Bailey, Esq., Chief Justice, and
Mr. Justice Macleod, Puisne Judge.
Family Land-building Tenure — Adverse Claim — Ejectment.
This was an appeal against a judgment of Mr. Justice
Macleod for the defendants on November 3, 1883, in an
action brought by the plaintiffs to recover possession of a
* ["Clear away bush" means to till or cultivate the land.— Ed.]
FANTI CUSTOMARY LAWS. 161
piece of land alleged by them to have been granted to one
of the plaintiff's predecessors in title, one Charlotte De Graft,
and subsequently conveyed to the plaintiffs.
Mr. Maxivell was for the appellants, and Mr. Williams
for the respondents.
Mr. Justice Macleod delivered a written judgment as
follows : —
Upon the 15th of November, 1883, 1 gave judgment in
the Court below for the defendants, and it is therefore not
easy for me to view the case from the standpoint which
ought to be taken by a Judge of Appeal. I have, however,
listened with care and attention to the arguments addressed
to the Court by the counsel for the appellants, and I still
remain personally satisfied with my judgment of November
3, 1883 ; but I desire to add a word or two regarding the
interpretation which I have thought it right to put upon
the certificate of the measure of land granted to Charlotte
De Graft, as that certificate appears upon page 16 of Vol. I.
of the Register of Town Lots, for according to my views of
the case upon that interpretation depends the issue.
The certificate begins by saying that an actual measure-
ment has been made of a lot of land upon the Saltpond
Road on the one side, but it does not say that the lot upon
or on the other at the back. It simply narrates that this
second road is at the back of the lot. That, therefore, does
not necessarily mean that the lot extends from road to road.
From the description so far, it may so extend or may not.
Next follows a statement of the actual measurement made
of the lot ; and it is declared to be (in the direction with
which we are concerned) 120 feet. Then, for the first time,
we get something clear and distinct; 120 feet never change.
I allowed this clear and distinct measurement to control
and regulate the previous general description, and in doing
so I think I adhere to the ordinary canons of interpreta-
tion. In a word, I held that in that direction Charlotte De
Graft had only a right of 120 feet, and through her father
she transferred her rights, which, through Mr. Grant,
M
1G2 FANTI CUSTOMARY LAWS.
senior, and Encliey, came into the ownership of the present
plaintiffs. There is nothing to show that Mr. Grant got
from Mr. De Graft anything more than his daughter
possessed. If I am right, so far, the plaintiffs have only
established a right to 120 feet from the Saltpond Road.
Now, does the Saltpond Road end at the ditch or at a wall ?
That is an important question, for if it ends at the wall, part
o^ Mary AmissaKs \io\xsQ stands upon the 120 feet, whereas
if it ends at the ditch, the house is clear of the 120 feet.
Under these circumstances, the first occupants (of whom
we know anything) of the land in dispute are the defend-
ants, and I think they ought to remain there till some one
with a better title makes his appearance.
The Chief Justice said that it was with considerable
regret and great hesitation that he felt compelled to differ
from the judgment just delivered, and from that of the
Court below. Still, while recognizing the great pains and
care which had been bestowed by the Court below upon
this case, he could not bring himself to interpret the
certificate No. 15 (upon the construction of which the
whole case was admitted to turn) in the way that Court
had interpreted it. He then read the certificate, and said
that although the description of the land granted was not
such as would have been employed by a lawyer, it ap-
peared to him sufficiently clear.
He could not but interpret the words as meaning that
the plot of land lying between the Saltpond Road on the
south and the Napoleon Road on the north was granted by
the then Lieutenant-Governor on December 31, 1850, to
the plaintiff's predecessor in title, Charlotte De Graft.
It is true that the certificate goes on to say that the
land had been measured from north to south, and was
certified to be 120 feet; but that appeared to him to be
merely a matter of description, which could not affect the
operative portion of the grant which, if his construction
was correct, gave the land between the two roads above
mentioned to the grantee.
FANTI CUSTOMAHY LAWS. 163
He observed that the Court below had sucffjested that
the roads may have been altered since the date of the
grant, but there was not a tittle of evidence that he could
see in support of such a suggestion. The Court below had
also viewed the land, and found that by measuring, not
from the Saltpond Road, but from a point some 27 feet to
the north of it, 120 feet was left between that point and
the Napoleon Road, and that the land claimed in this
action would thus be excluded.
But why measure from that point ? Why not take a
point 27 feet to the south of the Napoleon Road, which
would still leave only 120 feet of Mnd, but would include
the land in question ? He considered that the probabilities
were also in favour of this view. The defendants had, on
first squatting on the land in question, asked permission
to do so from the plaintiffs or their predecessors in title.
Then, too, why should the original grantee have asked
for 120 feet from any given point off the road instead of
from the road itself ?
On the whole, and looking at the terms of the certifi-
cate No. 15, he felt bound to dissent from the judgment of
the Court below.
Ordered: That the judgment of the Court below be
reversed, and that the plaintiffs do recover possession of
the land in dispute. Costs to be appellants'.
CUDJOE QUAY v. AYWOODSUAH.
July 28, 1871.
Before Chalmers, Judicial Assessor.
Sale — Trimma or Earnest-money — Ceremonies — Burthen of Proof .
Per Chief Kofi Yammie : If a mother was purchased
by her husband and she had children, except they belong
entirely to their father's house, they would be entitled to
succeed to his property. They are his slaves. He could
1G4 FANII CUSTOMARY LAWS.
not sell his own children except the son were unruly. If
uncle pays money for niece, he pays as one of same house,
and the child on whose account the money is paid lives in
the house. When I say on account of the child, I contem-
plate that the father's necessities would have (if he had not
got the advance from the uncle) compelled him to pawn the
child to a stranger. The child would be a pawn, so that it
might be redeemed whenever money could be raised ; or
if not, then would continue living in the house. If the
brother who advanced the money should predecease the
borrower, the child comes back into its father's hands,
through his succession to his brother. Re-interrogated,
states that the child in his uncle's hands would be a slave.
Re-interrogated — white man's palaver is very difficult, —
states that the child Avould be pawn to his uncle. A man
cannot owe a debt to himself. When a mother belonged to
another family, and you received the mother for money,
the son has nowhere to go to, is your property entirely.
Brothers, if of different mothers, would be of different
family ; if of same mother, of same family. Brothers who
were of different family, would not succeed to each other.
Judgment.
The claim of the plaintiff to hold Adjuah Aywoodsuah
and her relatives as slaves depends for its validity on the
absolute sale of Aywoodsuah to Quamin Ahin ; it lies on
the plaintiff to prove this, and without it he has no case.
His proof is dependent on the statement made by the
mother of the witness Kofi Ahin (who is now dead). That
■witness certainly alleges that the information of his mother
was that an absolute sale had taken place ; but no accom-
panying circumstances are stated, such as the payment of
earnest y or of the ceremonies denoting sale. Moreover, an
absolute sale is improbable ; if the advance had been received
from a stranger, it is much more likely that the father
would have pawned the child than sold it absolutely, espe-
cially for the comparatively small sum of 1 oz. 2 ackies ; and
FANTI CUSTOMARY LAWS. 1G5
from the evidence of Chief Yammie, before whom the case
formerly came, it does not seem that the fact of the sale was
at that time stated to him. His decision seems to have
been based on the fact (that) merely that money was paid
by Quamin Ahin on account of the child, coupled with an
assumption that on being transferred to him it passed into
a different family from its father's. But this last was
obviously a mistaken supposition, as appears from Quacoe
Ahin (as is stated by both parties) having succeeded to the
property of Quamin Ahin on his death. I consider, on the
whole, that the burden of proof has not been satisfied, and I
must dismiss the claim to hold the defendant as a slave.
Judgment is therefore for defendant.
JOHN HALM V. REBECCA HUGHES.*
November 15, 17, and 19, 18GD.
Before Chalmers, Judicial Assessor.
Interpleader — Family Property — Gift.
To show cause why you shall not be ordered by the said
Court to give up possession of the house known as Bosoo's
house, seized and taken possession of by the Bailiff Minew,
by virtue of a writ oi ji. fa., issued from the said Court in
Re Hughes v. Halm at your instance, the said house being
the property of the said plaintiff and his said brothers and
sisters, to wit, Lucy Halm, John Holdbrook, Thomas
Hughes, Josiah Martin, Elizabeth Hughes, William De
Graft, and the children of John and Lucy Halm.
* From the evidence it appears that Mr. Hughes bought from Thomp-
son Bosoo's house, which was then in possession of his nephew, Mr.
Thompson, b}-- right of inheritance. Hughes did not take possession, but
gave it to his married sister, Mrs. Halm, who took possession with her
children, and made such repairs as were necessary.
Mr. Hughes, the donor, spoke to the donee, his sister, about her
quarrels with his wife and children ; told her, " I do not like it — there is
that house for you," pointing towards Bosoo's house. Donor did not
mention the children. ^
166 FANTI CUSTOMARY LAAVS.
November 19, 1869.
Chiefs : 1. A family house is when a person had an
ancestor and that ancestor died, he inherited the property
and the ancestor's house, such house is called family house.
2. A house would also be called a family house if it was
built from the proceeds of inherited property.
8. A family house descends to the heirs in succession ;
the succession is by the mother's side.
4. Owner is not at liberty to sell family house.
5. The next succeeding members of the family would
oppose him, and if he persevered, would turn him off the
possession, saying, " you are likely to ruin this house."
G. A person who has not inherited, however rich he
may be, cannot constitute his house a family house.
7. If a family house should be sold to a stranger it
would cease to have the qualities.
8. Under some circumstances a brother might be bound
to provide a married sister with a house, i.e. if she and her
husband were poor and he had means, and also to keep it
in repair.
9. Such 'a house would be considered a family house.
The sister would leave children who must inherit the house.
The sister could not sell the house.
10. This form would be used in making over such a
house. The donor must say : " I dash this, or give it to
you."
11. When a house is presented to a sister, it belongs also
to the children and descendants. (This in answer to ques-
tion, if it is necessary in the gift to make express mention
of the children.)
12. If the sister is not poor, and the brother, neverthe-
less, gives her a house, that also would be a family house.
13. Could the house be seized for the sister's debts ?
When a brother made a present of a house to his sister,
knowing that she had children, but when there was debt
incurred by the family or debt incurred by the sister, it
FANTI CUSTOMARY LAWS. 167
would not follow that the debt should be paid, and she
must consult with the children : " there is this debt which
I have incurred, let us consult how we can contribute
towards its payment." If the family could contribute, well
and good. If they did not, and the mother proposes to sell
the house, the house would be sold.
14. But if the children did not consent ? Then the
mother could sell the house.
15. If children did not consent to their mother's
making away with the house, they must pay the debt, or
work for it.
16. If neither mother nor children were willing to sell
the house, what would the creditor do ?
The mother and children must pay the debt.*
17. If house is not occupied, could the creditor take
possession for his debt without consent of the mother and
children ?
The creditor could not.
Judgment.
November 19, 1869.
Find that the house claimed and known as Bosoo's
house, was constituted a " family house " to Mrs. Lucy Halm
and her family.
That such a house is not liable to execution for debt.
Therefore find for the plaintiff in this summons.
Order the execution to be withdrawn.
♦ Creditor could originally in such a case put the debtor and her
children in logs, panyarr any of them or their family till debt is paid, or
sit dharna. — Ed.
168 FAXTI CUSTOMARY LAWS.
SAMUEL TOKOO v. KWOW ASIMA.
January 26, 1870.
Before Chalmers, Judicial Assessor.
Interpleader — Family House — Debt.
Fer Samuel Christian : The house being a family house,
it would not be seized for debt. Whole family must concur
in sale. The present members of the family may agree to
put away the house.
When a man gives his whole property for his debt, I
understand it to mean his own — not family property.
January 28, 1870.
Chiefs : It is always the case, when a member of a family
has a debt and the debt is known to the whole family, and
they all consent and speak on behalf of the debtor and give
security for the debt, it would become necessary for the
family to part with present. The family are not respon-
sible, havinor made no an^reement to be so.
The defendant should have ascertained clearly from
plaintiff what the property consisted of, whether a part of
it was family property. If he understood plaintiff to mean
that the house was part of the property given in security,
he would not attach it without intimation to the family and
their consent.
Failing to do this, it is not to be understood that the
family house was included.
The land or the house in question is known as a family
house. There is no division ; it is all one. It could not
pass for the debt of one member.
FAXTI CUSTOMAKY LAWS. 1G9
MARY BARNES v, CHIEF QUASIE ATTA.
July 17, 1871.
Before D. P. Chalmers, Judicial Assessor.
Property attached to Egua (stool) — Z)eW of Deceased Chief— LiahiUtij of
h is Fa m ily — Aliena tiu n .
The claim of the plaintiff is that the land claimed by
her was conveyed to her late husband by Kofi Koomah, in
satisfaction of a debt due first by Quacoe Atta, afterwards
by Quacoe Ennoah, who had both been occupants of the
stool now held by Chief Atta.
The facts stated on behalf of the plaintiff are that
Quacoe Atta, whilst King of Cape Coast, owed a debt to
Mr. and Mrs. Barnes ; that Quacoe Ennoah succeeded him,
undertook his debt, and also contracted some further debt
of his own ; that on the death of Ennoah, Kofi Koomah,
who was his uncle, was applied to for payment, and having
no money at command to meet the claim, gave this land,
which was accepted by Mr. and Mrs. Barnes as equivalent.
There is a discrepancy in the statements of plaintiff and
defendant in regard to the acquisition of the land ; plaintiff
says it was purchased by Quacoe Atta and descended to
Ennoah ; defendant, that it was purchased by Ennoah ; and
this view is best borne out by the evidence, although not
of material bearing on the case at issue.
In order to the validity of the transfer, it is necessary
that Kofi Koomah should have been in a position in which
he had power to put away the property belonging to the
stool. He was not regularly in occupation of it, and there
is some dispute whether he was fully, or to what extent,
in charge of its affairs at the time; but assuming that he
was, / apprehend that not even the regular occupant could
alienate property tuithout some concurrence by the people
of the stool who have an interest in it, and are usually
considted on such a matter. Here there was not only no
concurrence, but there is evidence of dissent. The presents
170 FANTI CUSTOMARY LAWS.
which inferred indebtedness were not accepted, but ex-
pressly refused by the people, on which Kofi Koomah took
upon himself to hand over the land on his own authority,
in so doing, no doubt intending the best interests of the
stool. Yet, I apprehend it was not an act binding on the
stool, so as to give a valid title to the land that is now in
the defendant as occupant of the stool. He will, however,
be responsible for the debt of his predecessor on its amount
being proved.
Judorment for the defendant.
QUAMINA AWORTCHIE v. CUDJOE ESHON.
March 7, 1872.
Before Chalmers, Judicial Assessor.
Trespass on Land — Sale of Family Property — Eescission of Sale.
Chiefs : When a man is head of the family and he has to
sell land in case of debt having arisen in the family, is it
necessary that he inform the members of the family and
get their concurrence before the land could be sold ?
If the purchaser know that the land he had to pur-
chase was a family land and the man from whom he was
purchasing it was the head of that family, he would not
make the purchase from the head without requesting him
to get the concurrence of his family. And if he paid his
money to the head of the family without this, his money
was considered lost, in respect he was fully aware that the
land was family land.
If he did not know it, it would be that he was a
stranger, and he would get back his money from the head
of the family.
Interrogated : Whether any limit of time within which
family must interpose if they desire to set aside a sale ?
There is no limitation of time — even after lapse of time.
Interrogated : How consent should be signified ?
FANTI CUSTOMARY LAWS. 17 1
It would be necessary for all the members of the family
to meet and discuss, and if there were land to be sold, all the
members would meet and get strano^ers to be witnesses, and
family would concur for payment of the debt : as many
members as could be got should represent the family.
When such meeting and discussion has once been had, it
remains good ; it would be proved by the strangers who
were witnesses.
Judgment.
Sale set aside, and Quamin Tawiah, who sold the land,
ordered to restore to Qitamiiia Awortchie 5 ozs., the
amount he had received.
FULL COURT REPORT.
QUASIE BAYAIDEE v. QUAMINA MENSAH.
March 27, 1878.
Sale of Family Land — Impeacliahle Title — Possession — Improvements,
The plaintiff here seeks to recover from the defendant a
piece of land called " Odoomassie," the possession of which,
he says, the defendant has unlawfully deprived him. The
iudgment of the Court below was, that the plaintiff should
recover the land, against which judgment the present
appeal is brought.
It appears from the evidence that Bayaidee purchased
the land from Kofi Aigin for ^the price of 1^ preguans ;
that Kofi Aigin was the owner of the land ; that his pur-
chase took place fourteen j^ears ago, as plaintiff states, and
in any case, a very considerable number of years ago ; that
upon purchase Bayaidee entered into possession of the
land and cultivated it, and that his possession was not dis-
turbed until seven months before he brought the suit in
September last.
The ground on which the appeal was maintained was that
172 FANTI CUSTOMARY LAWS.
the land was family land ; that Kofi Aigin, although the occu-
pant of the stool, could not make a valid sale of the land alone,
and that one of the members of the family, Eccua Assabill,
protested against the sale at the time it was being effected.
Now, although it may be, and we believe it is the law, that
the concurrence of the members of the family ought to be
given in order to constitute an unimpeachable sale of family
land, the sale is not in itself void, but is capable of being
opened up at the instance of the family, provided they avail
themselves of their right timeously and under circumstances
in which, upon the rescinding of the bargain, the purchaser
can be fully restored to the position in which he stood
before the sale.
This is obviously not the case, whereas here the pur-
chaser has possessed for a series of years an undisputed
ownership — has cultivated and improved the land, and has
established a home upon it.
We are of opinion that whatever right of impeaching
the sale the family possessed is barred by their acquies-
cence and the plaintiff's continued course of undisturbed
possession.
And we order that the judgment of the Court that he
should recover his land be affirmed, with costs of this
appeal.
ABROBAH V. CHIBOO.
January 26, 1883.
Before Quayle Jones, Acting Judge.
Land — Sale hy Slave — Master s Consent necessary.
Per Robertson : A slave has no power to sell his master's
land without his master's permission. A slave does not
inherit land from his ancestors. If a man sold land to bury
his mother, that would show he was a freeman, because, if
he were not, the master would have to defray the funeral
expenses.
FANTI CUSTOM AFvY LAWS. 173
The leave a slave must have to sell such land is not a
mere consent, but a formal consent given in the presence of
and with the approval of his master's family.
Judgment for defendant.
DADDIE r. QUEATEABAH.
February 22, 1884.
Before Hector Macleod, J.
Family Property — Unauthorized Alienation — Mortgage — Forfeiture of
Interest.
A member of a family who, without the knowledge and
consent of the other members, encumbers the family pro-
perty, forfeits thereby any right or interest which he or she
may have had in it.
Calling on defendant to show cause why she should not
be ordered by the Court to deliver to plaintiffs their family
houses which she had, unknown to the plaintiffs, mortgaged
to one J. W. Sey, and which were advertised to be sold.
Defendant admitted that, unknown to plaintiffs, she
mortgaged the three houses to Mr. Sey ; she also admitted
they were family property, that she had no right thus to
mortgage the houses, and that she was not one of the
elderly members of the family.
Daddic, plaintiff, said as follows : I knew nothing of
the debt which defendant incurred to Sey. I am not
aware that any member of our family knew of the debt.
The first intimation which I had of this debt or mortgage
was the notice of sale posted in the houses. When I asked
Queateahah about it, she told me she had incurred a debt
to Sey, who married her daughter, and that she hoped to be
dealt easily with. She said she had gone to Sey with her
sister Fosuah and her daughter, Sey's wife. There was no-
family debt; it was Qiieateahalt s private debt, contracted
without our knowledge. Queateahah is a member of our
family, and if there had been any family debt, we would
all have contributed to its payment. She told us she had
174 FANTI CUSTOMAIIY LAWS.
incurred this debt about four years ago. We have had no
interview with Mr. Sey about this, because it was not our
palaver. Ambah Amissah, who is sick, is the present head
of our i&mily, and she was appointed our head. Defendant
is not the head of our family, neither is she second in the
family. Ganbah is next to Amissah. Our family knew
nothing about the mortgage. We knew nothing about her
doing so until we saw the notices for sale. I represent the
family in this action. Fosuah is defendant's younger sister.
Chiefs Essel and Know Kuta, on oath, said : In conse-
quence of the action of defendant in mortgaging to Sey
those three houses without the knowledge of the heads * of
the family, which she had no right to do, that she had
forfeited thereby any right in the house which, as a member
of the family, she may formerly have had.
MACLEOD, J. : I adopt the opinion of the Chiefs, and
declare that, in consequence of the conduct of defendant,
she has forfeited any right in the three houses, which as
a member of the family she may formerly have had. In
making the declaration, I think I am substantially satisfy-
ing the ends of justice, and though my judgment in this
action cannot directly affect the rights of Sey under his
mortgage ; still, it may enable him to judge whether, in
view of this judgment, he is likely to find a purchaser of
the rights of the defendant in those three houses.
ASSRAIDU V. DADZIE.
Cape Coast Eecords, vol. xii. p. 720.
July 23, 1890.
Before Hutchinson, C.J.
Famihj Property— Gift— Mortgage—SaU— Sec. 19 of S.C.O. 187G— Zoss
of Bight to sue or recover Possession — Adverse Possession,
This case must be decided according to native law, that
is, I ought to give the same judgment that a native Court,
* Elders.
FANTI CUSTOMArvY LAWS. 175
j uclging honestly and in accordance with native law and
custom (such law and custom as is referred to in section 19,
of the Supreme Court Ordinance, 1876) ought to give.
The land in question was family land. About ten years
ago, Kobina Kwenu, late chief of the family, was dead ;
Ochrimpi was the person entitled to be established as his
successor, but he had not been installed (being a sick man),
and there was no one on the stool ; Ochrimpi, however, was
in charge of the stool and of the family property. He gave
Ochua a piece of the family land ; she says that he gave it
to her absolutely to do what she liked with it ; and she says
that there were then only five of the elders of the family
living, and that all these were present when he gave it to
her. On the 9th of July, 1881, she having built a house
on the land, mortgaged the land and house to Abadoo for
her own private debt; on the 29th of April, 1882, Abadoo,
under the power of sale in his mortgage, sold the property
to Eddu, and shortly afterwards Eddu sold it to the
defendant Dadzie. The first sale was by auction, the bell
was rung through the town, and the sale was as public as
possible. Dadzie took possession, fenced the property
round, put up other buildings on it, spent a considerable
sum in improving it, and has been in possession ever since
his purchase. At the time of the sale to him Affedi was
on the stool. He was, I think, not the person entitled to
be installed on Ochrimpi's death, for the plaintiff, who was
then and had been for many years in Salagha, had a better
right. Still, the plaintiff being absent, Affedi was the
person in charge of the stool property. He died about two
years ago, and on his death the plaintiff was placed on the
stool.
The first question is whether it was possible by native
law for Ochrimpi, with the concurrence of those heads of
the family who were then in the country, to make an
absolute gift of part of the family land to Ochua. I think
that the chief and all the heads of the family concurring
can make an absolute gift of the family land ; but the only
176 FANTI CUSrOMAKY LAWS.
evidence that has been given on the point is to the effect
that, if any of the heads are absent and do not concur in
the gift, those absentees are not bound by it. And the
reason why they are not bound is, not that the land belongs
to them (for even the chief on the stool is not the owner
of it, but onl}^ the trustee or manager for the family), but
that it belongs to the family, and the consent of all the
members of the family then living must be obtained before
it is given away. But in this case it is not merely claim-
ing back the land from the donee, but claiming it after it
has been sold eight years, all the members of the family
who were then in the country knowing that it had been
sold, and after the purchaser, without any objection from
any member of the family, has spent large sums of money
in building on and improving the land.
What would a native Court do in such a case ? It
must be noticed that the right to set aside the gift made
by Ochrimpi is not a personal right of the plaintiffs. Family
land does not belong to the chief : he is merely the trustee
of it for all the family. The right to set aside the gift and
the subsequent sales was the right of the family ; and the
question is whether or not the family, through its chief for
the time being, can enforce that right after any lapse of
time, however great, and after full knowledge of and
acquiescence in the dealings with the land during all that
time by all the members of the family except the two who
were absent from the country.
There is apparently no positive rule in native law limit-
ing the time within which an action for recovery of land
must be brought. Chief Sackey, however, gave some illus-
trations of cases in which the right to recover would, in his
opinion, be held by a native Court to have been lost.
Doubtless, there is no positive rule of native law as to the
circumstances which would deprive an individual or a
family of the right to recover land. But judging from the
opinion expressed by Chief Sackey, and from what I have
heard of the procedure of native Courts, I think that
FANTI CUSTOMARY LAWS. 177
where the chief and all the family who are in the country
have seen the land sold and have said nothing for eight
years, and have allowed the purchaser to suppose that the
land belonged to him, and to build and spend money on it,
the right of the family to claim the land again would,
according to native and custom, be held to be lost. I have
little doubt that a native Court, applying the general
principles of native law and custom, and deciding according
to what they thought fair and equitable, and in accordance
with those principles, would so decide. That is the way,
therefore, in which I think that I ought to decide.
I dismiss the action with costs.
The plaintiff having applied for a rehearing, the Court,
on November 5, 1890, gave the following judgment : —
This case has been reheard and evidence taken on the
point raised in the affidavits filed by the plaintiff in this
application for a rehearing, viz. that Chief Sackey's view of
the native law applicable to the case was wrong.
I have always found it hard to discover what is the
native law upon any point whatsoever. And the reason is
because there does not exist any native law, which is the
same throughout the colony or over any considerable area.
It would be strange if it were otherwise, considering the few
opportunities that were until recent times of friendly com-
munications between distant tribes, the absence of Supreme
Court of Appeal to lay down the law for inferior Courts or
to enact new law.
The present question is as to the circumstances under
which " family land " can be absolutely sold or otherwise
alienated. Cases raising this question have probably not
often come before the native Court ; for until lately there
was (so I have often heard) no market for land, and it was
rarely sold or given away absolutely.
This is not surprising, therefore, that answers of the
chiefs who gave evidence in this case were contradictory
and disclosed no principle. They were, in fact, so incon-
sistent, that I cannot place any reliance on them.
N
178 FANTI CUSTOMARY LAWS.
There is a definition of family land given by assessors in
the case of Halm v. Hughes on November 19, 1869 ( " Civil
and Criminal Record Magistrates' Court," p. 461), and that
case and Awortchie v. Eshon, on March 6, 1872 (C. Magis-
trate's Book 1, p. 50), and Beyaidee v. Mensah, on March 27,
1878 (vol. 1, p. 585), contain some information as to the
circumstances under which family land can be alienated.
The conclusion that I come to is, that it can be alienated
by way either of sale or of gift by the heads of the family ;
and that, if all the heads concur, the other members of the
family, including children and unborn persons, are bound by
the alienation. I asked one of the chiefs who gave evidence
in this case, whether one of the headmen who was tem-
porarily insane would be bound ; he replied *' Yes ; " and I
think the answer, only a guess, was right.
Then, is a member who is absent from the country,
bound ? I can see no principle upon which infants and
lunatics can be bound, and yet persons living abroad are
not bound ; upon which a man who, without fault of his
own, is temporarily incapacitated from concurring can be
bound, and not a man who voluntarily disables himself by
going and living abroad.
The case of Beyaidee v. Mensah, decided by the Court of
Appeal in 1878, is important, and I think concludes this
case. There, the head of the family sold family land without
the concurrence of the other members of the family and in
spite of the protests of one of them to the seller and the
buyer. After fourteen years' possession by the buyer, the
family tried to eject him; but the Court decided in his
favour on the following grounds : " Now, although it may
be, and we believe it is the law, that the concurrence of
the members of the family ought to be given in order to
constitute an unimpeachable sale of family land, the sale is
not in itself void, but is capable of being opened up at the
instance of the family, provided they avail themselves of
their right timeously and under circumstances in which,
upon the rescinding of the bargain, the purchaser can be
FANTI CUSTOMARY LAWS. 179
fully restored to the position in which he stood before the
sale. This is obviously not the case, whereas here the
purchaser has possessed for a series of years an undisputed
ownership, has cultivated and improved the land, and has
established a house upon it."
In the present case, the land is given absolutely by
Ochrimpi, the head of the family, to Otua ; and it was
afterwards sold with the knowledge of all the members of
the family then living in the country.
Now one member, who has been living in Salaga for
many years, seeks to set the gift and the sale aside. Even
supposing that he could have succeeded if he had brought
his action within a reasonable time, I am of opinion that he
cannot do so now.
COBBOLD V, QUACOE TAWEIA.
March 18, 1846.
Fayment — Barter.
The defendant in this case having brought the amount
of his debt, six ackies, in goods, to pay the plaintiff — a
mode of payment often adopted by parties in this country,
and in some cases (and under certain circumstances)
sanctioned by the authorities — they were sent over to the
plaintiff for the purpose of knowing whether he would
accept them. They were shortly brought back with a
message to the effect that he would see before he would
accept them, whereupon the goods were ordered to be
lodged in the fort and the defendant immediately released.
180 FANTI CUSTOMARY LA^VS.
INHEEITANCE.
JOHN AMAMOO AND OTHERS v. JOHN CLEMENT.
April 24, 1871.
Before Chalmers, Judicial Assessor.
Bight of ChilJren to a Father s House.
Chief Mayan states that children of persons not married
have no right of succession to property (moveable), but that
if there was a family house and the child had been a good
(dutiful) child to his father, he would have a joint right
with other members of the family to inherit the house.
Curia : There is no proof of the marriage of the mother
of plaintiffs to William Gordon Amamoo. Here the essen-
tial condition of their having a right of succession is
wanting. It does not even appear that they have any joint
right along with the family, this not being of the nature of
a family house ; at least, there is no evidence that it is such
a house.
Judgment for defendant.
MARY BARNES v. CHIEF J. MAYAN.
June 24, 1871.
Before Chalmers, Judicial Assessor.
Family House — Childrerts Wight to liesiJence — Foioers of Head of Family .
Judgment.
This is an action to try the right to a piece of land
with buildings thereon, part of a larger tenement, in De
Graft Street, Cape Coast.
The land was formerly owned by Mr. De Graft, the
father of Mrs. Barnes^ who, for some time and at the time
of his death, was head of his family (Twidan). Chief
FANTI CUSTOMARY LAWS. 181
Mayan, the defendant, is his nephew and successor as head
of the family.
The ground on which Mrs. Barnes bases her right is
that the subject in question was given by Mr. De Graft to
her mother, who was one of his wives, and was occupied by
her as a dwelling-place. It appears that Mr. De Graft's
family house stood formerly near the Castle ; that it was
removed as well as other houses by order of the Govern-
ment, at a time when that part of the town was opened up,
and that the tenement now in dispute was assigned to Mr.
De Graft, in lieu of the one from which he had been dis-
possessed. He received also a money compensation for the
building, which it may be presumed he laid out in the con-
struction of his new house. These things being so, I con-
sider that the new tenement took all the incidents of the
one for which it was substituted, and was therefore, in Mr.
De Graft's lifetime, in the same position as if it had been
land of inheritance to which he had actually succeeded.
Keeping this in view, it is clear that it is not in Mr. De
Graft's power (in accordance with Fanti laws), by any act
of gift to his wife, to confer either on her or on her
children an exclusive right of ownership. But, further^
there nowhere appears in the evidence the slightest
indication that it was his intention to do so. What he did
was to give his wife a right to use and occupy for the pur-
poses of a dwelling-house, and I consider that this right,
but no larger or more exclusive ones, inheres in Mrs. Barnes
as her child whilst she chooses to exercise it as one of the
family. The judgment of the Court, therefore, is that Mrs.
Barnes is entitled to the use of the premises occupied by
her mother in such mode and for such purposes as may be
consistent with that condition as forming part of a family
house, such use to be had and exercised under the sanction
and approval of Chief Mayan, the head of the family, and
not otherwise. With regard to the hall raised above the
room occupied by Mrs. Barnes s mother, which was erected
by some other member of the family subsequently, Mrs.
182 FANTI CUSTOMAEY LAWS.
Barnes is entitled to the use of that also, under the same
restrictions and sanction as the lower story, but further
with the condition of making adequate compensation to the
persons who erected the same.
HALMOND V. DANIEL.
August 22, 1871.
Before Chalmers, Judicial Assessor.
Children — ItUjld of Piesidence — Fathers House — Family Land — Head of
Family — Duty to allot Rooms.
Per Chief Kofi Chee : If a man went from his family
house, cleared land, and on that land built another house,
would not his children be entitled to live in it after his
decease ?
The custom is that if a man had a father either by
-country marriage or otherwise, and the father lived in the
bouse with wife and child, and he died, all the deceased's
property, except the house, goes to his family. The father's
gun and sword and house go to the son, and the saying
is, " The father dies and leaves his house to the son." The
family take the property, but do not turn away the child.
"The son lives in the house with the family of his father,
supposing they had nowhere to live, and the son does not
turn them away. If it is a family house, the head occupies
as head, yet Je does not turn away the son from the
house, except the son, after he has grown up, finds himself
competent to build and leaves for the purpose of doing so.
But he would not under any circumstances be turned out
by the head of the family. The family would not be
turned out for the son's accommodation ; if they had
nowhere else to live, they would live in the house. Where
there is room enough for all (son and family), the head of
the family arranges the rooms to he allotted to each. My
answer of the descent of house 'to the son applies in case it
FANTI CUSTOMARY LAWS. 183
has been built by the father ; the family would be allowed
to live in it if they had nowhere else to go. If they had,
they would leave the father's house to the son. Son could
not sell the house except with consent of the family.
Judgment.
There are two subjects of dispute : First, a garden
which is in the possession of Isaiah Halmond ; but the
right to which the Daniels contend is not in him, but in
Henry Daniel, as the present head of the family. Second,
the house built b}^ John Halmond at Amanful, which the
Daniels contend is to be held and dealt with as a family
house, but which Isaiah Halmond says belongs to him
solely, claiming to inherit as the lawful son of John
Halmond. Although claiming this absolute right in terms,
he does not, in fact, set up more than a qualified right — a
right to occupy, but without power of alienation. Halmond
contends that the land pawned by old John Halmond in
Amanful was not land of inheritance, but was acquired by
himself through his having occupied and cleared it by his
own labour. The evidence is decisively negative of this
supposition. The statements of the old member of the
family, Effua Circuah, as reported by Mr. Martin, and
those of old Halmond himself, in the actions referred to
by both parties, which statements were sustained in the
resulting decisions, are enough to settle this matter ; besides
which, there is the utmost improbability that at a place
peopled as Amanful is, land should have been lying owner-
less at the time assumed. This being so, the bequest by
old Halmond, which is assented to by Isaiah Halmond,
would fail of the validity attributed to it, as he would not,
in accordance with Fanti law, be entitled to dispose abso-
lutely of family property, even to his son.
In regard to Halmond's right to the house of his father,
he also fails. The house was built on family land and in
substitution for an old family house, the remains of which
184 FANTI CUSTOMARY LAWS.
are still existing on this land. The presumption is that the
new house was intended also to be a family house. All
feeling of respect for the ancestors, and desire to perpetuate
their names, lead to this conclusion, and thouofh Hal-
mond had joined the Wesleyan Church, there is not the
slightest reason to suppose that in so doing he threw aside
those ideas which belong to no creed but to humanity
itself, and are found habitually in association with the
deepest religious feeling. There is nothing to rebut this
presumption. The alleged bequest of land to his son and
nephews by Halmond does not apply to the house. The
Martins' evidence states that old Halmond expressly
appointed his nephew, Henry Daniel (his successor by law),
to occupy and attend to this house in the mode which is
customary. Mrs. Halmond's statement of old Halmond
having once desired her to remain in the house after his
death, as otherwise he feared his children would leave it,
whatever it shows as to the discussions he anticipated
between his son and nephews, noways shows that he
intended his son to have an unqualified right in the house,
but distinctly the contrary.
I therefore think that both the garden and the house
must be considered as family property ; nevertheless, it is
just that Isaiah Halmond, as the son of his father, should
occupy a portion undisturbed. He will, therefore, continue
to occupy the garden he now possesses, but without right
to sell or alien it. And he will occupy such part of the
house as may be allowed to him and agreed on between
him and the other members of the family.
To report the allotment.
rWELBECK AND OTHERS, APPELLANTS v. BROWN
AND ANOTHER, RESPONDENTS.
Bef
Natl
FANTI CUSTOMAHY LAWS. 185
FULL COURT REPORT.
Before H. Lesixgham Bailey, C.J., Smalman Smith
and Hector Macleod, J J.
Native Laiu and Custom — S.C.O. 1876, Sec. 9 — Cutting ^' Ekal " —
Disinheriting — Comjpensa tio n.
James Welhech appeared for appellants.
Mr. Richards for respondents.
The following judgment of the Court below as read over
to appellant Welhech: — "The plaintiffs seek in this action
to recover from the defendants the estate of the late Peter
Benjamin Johnson, and in making that claim they have
appealed to native law and custom, but they have failed to
satisfy me that native law and custom support their claim.
On the contrary, I think that the opinion of Chief Robert-
son lays down good law according to native ideas. It is
possible that some of the plaintiffs may have a claim
against the estate for the assistance given to the deceased
in the building of this house. That question does not
arise here. I decide this case purely upon the principles of
native law and custom, and according to that criterion the
plaintiffs have failed to establish any right to any of the
property belonging to the deceased, and that property must
remain with the defendants. As all the parties live in
Cape Coast, there will be no costs."
Judgment.
Bailey, C.J. : — Peter B. Johnson, the owner of the
property in dispute in this case, was the uncle of the plain-
tiffs and the father of the defendants.
The property consists of a house and personalty of the
alleged value of £300. It is admitted, on behalf of the
defendants, that the site of the house was in part purchased
18G FAKTI CUSTOMARY LAWS.
by the deceased with money supplied by the plaintiffs, or
some of them, and that the}^ assisted him, either with
ipQoney or labour, or both, in building it.
At the hearing, it was admitted that, by native custom,
when members of a man's family assist him in building a
house in the manner described, the members so assisting
him have, at his death, the right to succeed him in such
house as joint tenants, or rather as tenants in common. It
was also admitted that, during his life, the owner of the
house so built may disinherit any or all the members of his
family ; and if he do so disinherit all of them, may dispose
of his property in any way that he pleases.
Now, the plaintiffs contend that no valid act of disin-
heritance w^as ever done by the deceased ; the defendants on
the other hand alleging that the plaintiffs were duly disin-
herited. The plaintiffs allege, and by the evidence of one
Quansah have endeavoured to prove, that disinheritance can
only be effected by the cutting of an ** ekal " — one-half of
which the head of the family keeps, and the other he gives
to the disinherited member. That solemnity, the plaintiffs
allege, and the defendants admit, was not observed in
this case.
The defeiidants, however, allege, and by the evidence of
their witnesses, I think, abundantly prove, that this custom
has been, of late years, superseded by another ; and one of the
witnesses who, though called by the plaintiffs, gave evidence
in favour of the defendants (Chief Robertson), states that
the old custom of cutting the " ekal " was abolished in
Cape Coast in Governor McLean's time, some forty or fifty
years ago. He says that now it is sufficient that the owner
of the house drive away from that house any nephew or
niece whom he desires to disinherit, and that thereupon
the act of disinheritance is completed, and the disin-
herited nephew, though he may have helped to build the
house, ceases from that time to have any interest therein.
John Sarbah, a witness called for the defendants, gives
somewhat similar evidence, though he appears in one part
FANTI CUSTOMAEY LAWS. 187
of his evidence to lay it down that the act of disinherit-
ance is not complete till the value of the contribution of the
disinherited to the building of the house has been paid.
To my mind the discrepancy, if such there be, between
the evidence of Sarbah and Robertson is unimportant, and
for this reason : they are speaking of a custom, if custom it
can be called, which not only does not date from "a time
to which the memory of man runneth not to the contrary,"
but actually dates from a time which is in the memory of
men now living. How can this be called a custom ? I
know we are to give effect to native law and custom as it
existed at the date of the passing of the Supreme Court
Ordinance, viz. 1876. Bufc the man who drafted that
Ordinance was a lawyer, and I have no reason to suppose
that when he spoke of " customs " he meant anything more
or less than that word imparts to legal ears.
If my opinion be correct that this is no custom now — •
because we know the date of the beojinnino^ of it — it was
no custom when the Ordinance was drafted some eight
years ago.
It may be that the old custom spoken to by Quansah
has fallen into disuse, and that so there remains no means
by which a native can disinherit his nephews. I am not
concerned with that ; but one thing does concern me, and
that is, that the Courts should do all that is in their power
to fix these fugitive will-o'-the-wisps called native customs,
and transfer them to the records of the Court, rejecting all
those which are alleged to be custom, but which do not
bear the test to which I have subjected this one.
Mr. Richards has put it on me that I am upholding one
custom, that of the devolution of property to nephews,
while I am refusing to uphold another. True, but I am
not inconsistent ; one is alleged to be a custom, and neither
side has offered any evidence that it is not a valid custom —
valid, that is to say, as a legal custom ; while with regard
to the other, if I am right, Mr. Richards himself has shown
it to be invalid — in short, no custom at all.
188 FANTI CUSTOM ARY LAWS.
I am of opinion that this appeal should be allowed, and
that it be ordered —
1. That the decision of the Court below be reversed.
2. That the plaintiffs be permitted to enjoy the house
in question together with the defendants as tenants in
common, according to native law and custom, in every
respect as though they had not been disinherited by the
deceased P. B. Johnson.
3. That the plaintiffs be declared entitled to the person-
alty of the deceased P. B. Johnson.
MACLEOD, J. : — I do not find it necessary to give any
opinion as to the meaning of the words " native custom,"
and I must not be understood as coinciding on that point
with the Chief Justice.
Whether or not the plaintiffs were legally disowned by
the deceased is to my mind a question for the Assessors, who
are called in to assist the Court because they are supposed
to be skilled in matters of native law.
They have given their opinion, and I see no reason why
I should interfere with it.
Smalman Smith, J. : — I concur in the conclusion at
which the Chief Justice has arrived, but for somewhat
different reasons.
We must of course conclude that the native customs to
which the Supreme Court Ordinance of 1876 requires us to
give effect in the administration of the law of this colony,
must be such as in the contemplation and according to the
principles of English jurisprudence would be regarded as
customs, that is to say, such as have existed in the colony
from time immemorial, or " to which the memory of man
runneth not to the contrary." It cannot, therefore, be con-
tended that an observance or course of conduct which may
have sprung up within the last fifty or sixty years, and
which native chiefs choose to designate a custom, should
have the effect of law in this colony, or should be, so to
speak, crystallized into law by the action of the Courts of
this colony.
FANTI CUSTOMARY LAWS. 189
The intention of the Legislature was, in my judgment,
to give the force of law to such customs of general and long-
continued usage and observance as can be proved to have
been in existence at the date of the Ordinance, and to have
had at that date the essentials as well as the force of cus-
toms as by law established.
Now, the right of a man to disinherit in his lifetime
those who would otherwise be entitled to share in his
property after death, is proved to exist as a custom to my
satisfaction.
The cutting of the " ekal " was a symbolic act which
accompanied the act of disinheriting. I do not think, how-
ever, that the cutting of the " ekal " was essential to the
existence of the custom, which is based on the rigid of a
man to disinherit in his lifetime those who would otherwise
be entitled to succeed him. When therefore the cuttinor of
the " ekal " ceased to form a part of the ceremony, the
right w^hich by custom then existed did not cease to have
the force of a custom, because the formalities which
accompanied the act were varied in an important, though
not an essential particular. Granted, therefore, that the
right of a man to disinherit in his lifetime, still exists as a
custom of the country, I have now to consider what forma-
lities are necessary to render the act complete and opera-
tive. In ordinary circumstances, the solemn act of turning
the persons whom it is intended to disinherit, out-of-doors,
and in the presence of friends and relatives refusing to
readmit them, amounts to a complete act of disinheritance.
But where such persons have contributed to the building
of the house from which they are shut out, they have,
according to native custom and natural equity, a vested
interest in that house. Where such are the facts, the act
of disinheriting is not complete until compensation has
been paid or offered to the persons ejected for their share
or interest in the family house. Such were the facts in the
present case. The payment of such compensation I regard
as an essential element to the complete act of disinheritance.
190 FANTI CUSTOMARY LAWS.
The Chief Sarbah is the only witness, it is true, who speaks
to this ; but it does nob appear from the notes that the
actual facts of the case under notice were submitted to the
then witnesses for their judgment. I do not find, there-
fore, that the evidence of the chiefs is incapable of being
reconciled with the evidence of Sarbah.
The plaintiffs had a vested interest in the family house ;
they were entitled to compensation for that interest. This
compensation was neither paid nor offered at the time of
the alleged disinheritance, nor has it been since paid.
The alleged act of disinheriting merely consisted in
turning the plaintiffs away from the house and refusing
their readmission. The act was therefore incomplete and
of no effect.
Under these circumstances the plaintiffs are entitled to
share with the defendants in the family house, and are
further entitled to the personalty of the deceased P. B.
Johnson.
Chief Justice of opinion that the judgment of the lower
Court should be reversed. Mr. Justice Macleod dissented
from the opinion of the Chief Justice, and supports the find-
inors of the Court below. Mr. Justice Smalman Smith of
the same opinion with the Chief Justice.
(Signed) H. Lesingham Bailey, C.J.
„ Smalman Smith, J.
„ Hector W. Macleod, J.
Upon hearing James Welhech for the appellants, and
Mr. Bichards for the respondents, it is ordered that the
appellants be permitted to possess and enjoy, in conjunction
with the respondents, the house and premises — the subject-
matter of this action — in accordance \yith native law and
custom, and that the respondents do pay the costs of the
action in the Court below, and of this appeal. It is
further ordered that the respondents do deliver over to
the appellants the personal property of the deceased P. B.
Johnson.
FANTI CUSTOMARY LAWS. 191
SWAPIM V. ACKUWA.
September 22, 1888.
Before Smith, J.
Family Land — Blcjht of Children to live in Father's Itesidjnce —
Ouster of Widoiu.
A review was allowed in this cause and the matter now
comes on for argument.
Mr. Eminsang appears for the plaintiffs, Mr. Sarhah for
the defendants.
Mr. Eminsang says that the house occupied by the
defendants is part of the family house, and it was not a
distinct house which was built on the land ; that by native
law, if a husband built on family land with the assistance
of his wife, the family of the husband can take possession
of the house and turn the wife out. Even if the husband
builds on his own land with the assistance of his wife, it is
the same ; so also, if the wife built the house on the family
land with the consent of the family, she can be turned out
of the land by the family and quits, cites Grant v.
Amissah.
After hearing Sarhah, case adjourned to obtain evidence
on the Customary Law.
December 11, 1888.
This case was last before the Court on the 3rd of
October last, when the opinion of certain chiefs on native
law was ascertained, and it was thought expedient, in view
of the difference of opinion, to consult other chiefs. Where-
upon the opinion of the Kings of Anamaboe, (a) Man-
kessim, and (h) Abura, was obtained by letter, setting forth
the questions which had been put to the other chiefs, and
their replies have been received, and are now made part of
the case.
Parties were duly notified that judgment would be
given in this case to-day, and they accordingly attended.
192 FANTI CUSTOMARY LAWS.
Judgment.
In view of the native law on the point, I must alter my
judgment in so far as it gives to the defendants the right
to remain in the house, and I declare that the plaintiff
Swapim is entitled to the possession of the house. I give
the defendants (sic) days to remove from the house.
Each party will pay its own costs.
(a) By King Amonoo IV. : I. The wife of the deceased
husband, who was invited by a member of the family,
has no interest in the house which both the husband
and she built on the family land, except that of a mere
occupant.
2. The family of the deceased husband would be entitled
to the house.
8. Yes. The family would have the right to turn the
wife out of the house, if they wish it. And she should
only remain therein by the permission of the family, the
wife having her own family, to whom she must go.
4. The family of the husband would be entitled to the
house.
5. Yes. Her family would have the right to turn the
children out of the house. The children could remain or
continue in the occupation thereof by the permission of the
family, the children also having their own family on their
mother's side to go to. But this right of the family is
seldom exercised but where occasion is given.
6. Yes. The person who succeeds to this land has a
right to turn the wife out of the house, if he succeeds to
the land as family property.
7. The person to whom the land descends has the right,
after the death of the son, to turn the children out of the
house, but this is seldom enforced. It is exercised when the
children gave occasion. As the person to whom the land
descends has right to the house, he could ask the children
to go out on any occasion for any reasonable grounds, and
where the interest of the family is at stake, or their right
FANTI CUSTOMARY LAWS. 193
13 disputed, or even merely to secure and promote the
interests of the family,
(b) By King Amfoo Otoo : 1. The interest of the wife
who has built a house with the husband exists only in the
lifetime of the husband.
2. [On the death of the husband] one from the family
of the deceased husband is entitled to the house.
3. The woman would still remain in the house, if she
will be married to the successor of her late husband ; if
not, she has no claim to the house.
4 The house or property of a deceased husband or
father, according to native law, belongs to the family and
not to the children.
5. The family have the right to turn the children out of
the house, on this ground, if they are not on good terms
with the father's family or successor, and are never entitled
to father's house or property.
6. I give same opinion, that sons and wives have no
rio^ht to claim a house or land belongino^ to sister's deceased
brother, that is to say, it belongs to the sister.
BOHAM AND ANOTHER v. MARSHALL.
Elmina, May 18, 1892.
Before Smith, J.
Family House — Tenancy of Children — Tlieir Bights and Liahilities.
Eminsang : By native law, Anna Boham had a right
to the house, as she was the sister of John Boham. By
native law, she was the only heiress at the time. She could
by native law have power to give the house to the children
for their natural lives. Of the part so given to the children,
unless Marshall gave the children an equivalent, he could
not turn them out of the house. Marshall can pull down
his portion of the house, if he did not interfere with the
other portion.
o
194 FANTI CUSTOMARY LAWS.
Per Court: By native law, the person succeeding to
property could not dispose of it to beyond his lifetime,
unless with the consent of the families. In this case, the
plaintiffs being the children of John Boham., have the right
to remain in their father's house during their lives, unless
for good reasons. If the children do not live in their
father's house, still if they can go and live there as they
will, the heir could not break the house down and dispose
of the materials. The heir is the one to repair the house,
and if the children are in a position they contribute towards
the expenses.
EFFUA EDOOAH v. COFFIE AWOOAH.
July 23, 18G9.
Before F. C. Geant, Chief Magistrate and Judicial Assessor.
Senior Stool-holder — His Bights and Duties— Guardian — Subordinate
Stool
To return plaintiff's brother's property, which you
wrongfully seized immediately after his decease.
Facts : Plaintiff says, my brother died at war between
Fantees and Elminas. After the custom, defendant took all
my brother's property, slaves, and pawns, and gave me only
one woman and one girl to serve me, and told me he would
train up my own son, and when he came of age place him
on my brother's stool. I refused, and told him I belong to
Acquannah family. Defendant to Abbrodie family, and not
related to me.
Myself and defendant were of same father; different
mothers. My father belongs to Acquannah family, and my
mother belongs to Acquannah family at Assin, and belongs
to Assin. My husband Essuman married me according to
country law, and succeeded my father to the stool and
property. My husband Essuman belongs to Abbrodie
family. The son defendant wanted to put on my brother's
stool was mine by Essuman. I am a free woman, and am
FAKTI CUSTOMARY LAWS. 195
not a daughter of any of defendant's slaves, nor was my
brother.
Witness : Plaintiff sent nie to tell defendant if a man
buy slaves and one becomes wealthy and dies, the master
places one of the fellow-slaves on the stool of deceased slave ;
but this man who is dead, and you want to take his
property, I plaintiff am rightful brother (?) of deceased, and
call upon you to give me his property.
Defendant said I must place his son on the stool of his
uncle, my brother.
Defendant states plaintiff is not a slave ; they are all
brothers and sisters, and that my deceased brother told me
so, and told us all to bury him when he died.
Opokoo is our grandfather; he bought Enquie, and
Enquie bought plaintiff's and her deceased brother's mother,
and married her. I defendant am the nephew of Opokoo.
My mother was Opokoo's sister. My mother is called At-
tah, and she was sister of Opokoo. He gave my mother,
his sister, in marriage to Enquie. Opokoo died, and was
succeeded by his slave Enquie. "When Enquie grew old
and was about to die, he made a verbal will. Plaintiff's
mother died before Enquie. After her death, Enquie gave
plaintiff and her deceased brother in charge to defendant's
mother. Enquie died also. After his death plaintiff^s
deceased brother was asked to take his stool. He refused,
stating he was a younger brother, but defendant being
older ought to succeed before him. Defendant did not
succeed, but Essuman was asked to succeed, being defend-
ant and plaintiff's uncle. According to countr}^ law,
during his occupation of the stool, plaintiff w^as handed
over to him as his wife. At the time Essuman took the
stool, I was allowed the use of palm-field, a very large one,
too large for me to work. I divided it into two, and gave
half to the deceased to work on it. Akoo succeeded Essu-
man, and I succeeded him. On the death of plaintiff's
brother, as head of the family I made the necessary
custom. After this I gave three persons to plaintiff to
196 FANTI CUSTOMARY LAWS.
serve her and work for her. I also took her son, by our
uncle Essuman, to serve me, to carry my gun behind me.
I would, when he came of age, place him on my deceased
brother's stool. I gave the son three bo^^s to serve him ;
the palm-field I gave to my late brother that also I gave to
plaintiff's son, and directed the three boys to work in the
palm-field and get money out of it for the future successor.
In this country, if you bu}^ a slave and he had children,
they are to be considered as free in the house ; they are no
more slaves. Plaintiff's deceased brother is my younger
brother; we are of different mothers, but one father.
When the deceased has no brother to succeed him, then,
and only then, the sister succeeds.
Judgment.
The Judicial Assessor having convened a meeting of
the chiefs of Cape Coast to consider this case, finds that
defendant has acted in strict accordance to the country
laws. That defendant is the head of the house, and that
the same consists of two stools, a great stool and a small
one. That defendant sits on the great stool, and has con-
trol over the small stool. That defendant has acted wisely
in protecting the small stool, and acts as guardian to the
plaintiffs son, and will place plaintiff's son on the stool
provided he behaves himself. That, according to country
law, if plaintiff is a free woman, she is not entitled to any
property at all in the house, but being a slave entitles her
to claim through her son, which is not disputed by
defendant.
This Court therefore gives judgment in favour of
defendant, and orders him to take the supervision of the
property as he has hitherto done, and advises him to deal
leniently, kindly, and patiently with plaintiff and her son's
future interest of the stool of which he is the head and
guardian. The debts of the estates defendant will collect,
and when he is satisfied plaintiffs son will manage the
stool carefully and wisely, he will place him thereon as
FAXTI CUSTOMARY LAWS. 197
under him ; and to restore all property she has taken away
to Assin, and to live peaceably with her brother and
family in order to enjoy all the benefits accruing from the
stool.
COFFIE YAMMOAH v. ABBAM COOMAH.
November 8, 1869.
Before Chalmers, Judicial Assessor.
Huh of Descent — //etV — liijht of Selection hy Members of Family.
For a trespass committed by you and your servants ovt
plaintiff's land called Impu-assam, and situate in the dis-
trict of Gomuah, between Benyansang Ohhukookoodoo ;
damage of plaintiff, £9.
November 5, 1869.
Opinion of Chiefs :
If Essa had property and Essa had a nephew, a son
of his sister, or a grandson, the nephew or the grandson
would be entitled to the property. It is custom to trace
the descent from a very old ancestor. Persons entitled
to succeed are :
First, brother ; second, nephew ; third, grandson; fourth,
great-grandsoD.
If he had more of these, but had sisters who had chil-
dren, and children's children, who are considered, upon
consultations, part of the famil}^ these would succeed after
each other. If deceased had a brother and sisters, if all
descended from one mother (if not all livinor at the same
place), the eldest sister would be nearest to the property,
and her children succeed. Then come in other children,
according to the ages of their mothers, unless deceased
himself names a child or states reasons. Sometimes if no
blood relation is entitled, a slave woman after purchase by
a member of the family. Her child w^ould be entitled to
take ; makes no difference in the succession of blood
relatives, whether they be in same place.
198 FANTI CUSTOMAKY LAWS.
When a man has an heir, to whom he has objections
stated to family, family has no right to consult on the
reasons during testator's lifetime. But they do so after
his death. Sometimes the testator's reasons are overruled.
Sometimes they consent during testator's lifetime, and
though agreeing to the testator's exculpations of the ob-
noxious person, do not afterwards adhere.
Rules of inheritance are not set aside at mere pleasure
of owner, unless his reasons are judged sufficient.
Judgment for defendant.
.QUASIE AMFOO v, AMBAH YARDONUAH.
May 17, 1871.
^Before D. P. Chalmers, Judicial Assessor.
'Stool Property — Succession — Bight to pass over — Election Veto.
Chiefs interrogated, say : The case has reference to the
'two persons who appear and have stated matters respecting
the stool which is in contention between them. It has been
stated that there was a man, Quamin Efifor, who had four
sons and one daughter ; that the man bequeathed his
property and stool to his children ; that he died: that the
stool was succeeded by Quasio Anka ; he by Kwow
Atta. Kwow Atta having died, the plaintiff wanted to
take it. We find that one of the children has died. We
have also heard it stated by the defendant, that after the
custom of Kwow Atta had been finished, the relatives
connected with the stool and the people w^ho were not blood
relatives, as well as the people of the x^lace, agreed among
themselves and placed defendant's son on the stool ; that
defendant did not agree to this, but the people did prevail
and placed the son on the stool. It has also been stated to
us that there was a will, in w^hich it was laid down that
the children of the deceased testator should take the stool.
The question put before us by your Honour, to consider,
FAXTI CUSTOMARY LAWS. 199
was as to whether the relatives and slaves and people of
the place were justified in placing defendant's son on the
stool, contrary to what was stated by the will. In con-
sidering these matters, we find that the defendant in this
case is the eldest child of the man Effor (testator) ; yet, as
a woman, and because she is a woman, she did not succeed
to the stool, but Quasie Anka, who was next to her, took
the stool, and after him, Kwow Atta, and the next person
would have been the plaintiff. We are chiefs, we have
inherited to stools in like manner as the relatives of
defendant have done ; we have slaves, people, and property
connected with the stool, and we find, on the conclusion,
that the succession to the stool in question and right of it
lies with the plaintiff in this case, who was the next
person to Kwow Atta, who should take the stool, and
not the defendant's son, who was the nephew ; because
the plaintiff has not succeeded to it nor died, so that defen-
dant's son should succeed ; and we think that it is
contrary to rule that people and relatives connected with
the stool should join with the people of the place to consult
and place defendant's son on it in place of the plaintiff.
The people of the place could have no power to join people
connected with the stool to put off the rightful person.
We find that the plaintiff is the rightful person for the
stool.
Judgment.
It was adjudged that the plaintiff be the rightful
occupant of the stool, and ordered accordingly that he be
placed thereon.
On the 24th May, 1871, this case was reopened by the
learned Judicial Assessor, and at his request Amfoo Ottoo,
King of Abrah, related what had passed before him and his
councillors when they investigated this matter.
By King Amfoo Ottoo: Kwow Atta was a principal
man, he was Master-of-Arms of the whole district of Abrab,
and was chief over them. I was on a visit to Abonu at the
200 FANTI CUSTOMARY LAWS.
time of his death. On my return to Abakrampa the
plaintiff Amfoo came to me and informed me of what had
taken place, namely, that his nephew had been put on the
stool of Kwow Atta instead of himself. I replied that I
was anxious to attend at Donassi to make custom, and that
when I had done so I would inquire into matters. . . .
Accordingly, when I had stated this, I went to Donassi and
made custom.
After that we had palaver. First was that the defen-
dant has summoned his sister, the present defendant.
Decision was in her favour ; it was clear that he had
summoned her for nothing. As for the people of Donassi
who are people of the stool, the councillors still thought
that when Kwow Atta had died and plaintiff Amfoo was
his brother, they should have waited for the King's return
from the camp ; and then for a case to be heard as between
them and Aviifoo as to the reason and cause of their not
placing him on the stool, or of their objections they had
to him, so that these things miorht be talked over before
any one was placed on the stool. That, as concerned this,
ATYifoo was right to complain.
The people of Donassi replied that they were dissatisfied
with the decision (viz. that the plaintiff should not be
passed over), and they said further that if the animal
found nothing and had no reason to give, that animal did
not make a hole in the ground to hide its young ones ;
that Amfoo had done several wrongs, and they appointed
two persons who came before me to state these wrongs.
The wrongs of Osam (sic) in charcoal, red clay, and pepper,
etc., knowing that this person was my servant. The
persons who represented the people went on to state every-
thing connected with Amfoo. I and the whole people of
Abrah were satisfied that they had made a case against
ATYifoo, and that all was correct. They said further to me,
a person who would attend well on it, he is the person who
would be entitled to succeed to it, and not a person who
would not. Further, that I should compare the thing with
FANTI CUSTOMARY LAWS. 201
myself — how I was elected to the stool ; and I thought of
that because I was elected by the people to the stool,
although I had an uncle who was a man of means, having
about twenty slaves whom he had purchased, and has at
present about fifty persons who could hold guns with him,
and I have a brother who was next to me ; that when the
stool which I now occupy was vacant, and they wanted the
rightful man to be placed on it ; and though my uncle was.
alive, and the proper person to be elected, the people of the
stool objected to him. They did not choose me either.
They chose my younger brother, and after his death, took
me. And if they had chosen Gaisi, Amfoo was his uncle,
and was to sit behind him. Osam's case was brought to
Cape Coast, and large expense was incurred. The people
of Abrah found that as for the reasons stated they placed
Gaisi on the stool, they did right ; they also found the
decision given against him before was incorrect. I spent
great attention on the case. I found they were correct. I,
as a Judge, was on the side of Amfoo. The people said
that at that rate, as they had stated, they had placed Gaisi
already on the stool, I should state what ought to be done
for Amfoo (the plaintiff), and I called on him to state what
he claimed. He said that if they gave him 4 ozs., he would
be satisfied, then Gaisi must inherit the stool. Then I
said he himself will not have to sweep his house— give him
two persons to sweep his house and carry his stool, also
one woman to be with him. These to be given him in
addition to the 4 ozs., so that he may, as it were, sit behind
his nephew, and look after him on the stool. The 4 ozs.
was given to Amfoo as a kind of compensation, in respect,
that, being in the line to be placed on the stool, he had
been passed over, and another person put in his place.
March 24, 1871.
Judgment.
This cause is in substance an application by Quasie
Amfoo, the plaintiff, to be placed on the stool of Quamin
202 FANTI CUSTOMARY LAWS.
Effor of Donassi, deceased ; this U opposed by the people
belonging to the stool. The Judicial Assessor has heard
the statement fully on both sides. Qaasie Ainfoo is the
person in the direct line to the stool, and would have suc-
ceeded thereto if his election had been supported by the
people who have the right of choice. These persons, how-
ever, have passed over the plaintiff, and elected, in prefer-
ence, his nephew Gaisi. This election has been confirmed
by the King and principal persons of the district. The
Judicial Assessor does not, under the whole circumstances
which have been put before him, see cause for setting aside
the appointment which has been made, which is hereby
confirmed accordingly.
J. H. MOULD V. AGOLI AND E3SAN.
June 6, 1871.
Before Chalmers, Judicial Assessor.
Hea i of Fa mihj — His Duties— Removal — A ceo u n ts .
Judgment.
The question raised by the plaintiff is that of his right
to receive from defendants and other persons of Abrobon-
ku, the produce of the palm-trees belonging to that place.
He claims on the ground of being headman, and he says
that he is entitled as such to apply and appropriate a fourth
share at his discretion without being accountable to the
people. He has, it appears, been receiving this share until
within a short time ago, when, on certain accounts being
made of his past receipts, the defendants, not being satisfied
about the manner of his disposal thereof, have refused to
continue to make payments to him. The plaintiff has based
his claim on his alleged inheritance from Adjuah Beraful,
who, it is acknowledged, was at one time the owner of the
land at Abrobonku. I do not think his descent is very
satisfactorily established in evidence ; but as the right he
FANTI CUSTOMARY LAWS. 203
claims is not a patrimonial one so much as to be considered
head of the family, and as such to occupy the stool of
which the lands at Abrobonku are an appendage, it is the
less necessary to give a decision on this question.
It is the fact that the plaintiff has been acknowledged
as headman by the family for a considerable number of
years, and has acted in this capacity ; but the right of the
family to displace him from that position on sufficient cause
is in accordance with the laws and customs of the country.
The particular fault which the family, as represented by
defendants, allege against Mould is that he had not applied
certain moneys, amounting, as they state, to 7 or 9 ackies,
for their benefit in such way as they consider proper. On
the other hand, the plaintiff says he has applied this sum
for the family in defraying the charges necessarily falling
upon him in his character of headman, and also in the
expenses of certain law proceedings which were taken with
the purpose of recovering money from one Faidee, who,
for a time, was in charge of these palm-trees, and received
the proceeds for the family. The proof of the plaintiff
havinjr received these sums, is the statements of the defen-
dants, which, however, the plaintiff does not contradict.
As to the disposal of them, it is certain that the plaintiff
must, from time to time, have been at some expense for the
family ; but the amount is conjectural, being uninstructed
by any accounts. The plaintiff says he has expended more
than he received. Upon the whole of this matter, the
defendants have not proved misappropriation of the moneys
by the plaintiff; but, on the other hand, he has not clearly
established his averment that it has been all expended for
the family.
It appears that there is not any member of the family,
other than Mould, pointed out by age or position as suitable
to take the stool in his place ; and no one is proposed at
present to occupy it. That is the state of things not likely
to advance the interests of the persons concerned; and, in
the whole circumstances, I think it best to remit to certain
204 FANTI CUSTOMARY LAWS.
chiefs to arbitrate between plaintiff and the defendants,
with full power to these arbitrators to arrange either for
the continuance of the plaintiff on the stool on such terms
as may be thought suitable, or for placing some other
person upon it, should it appear to them that there is
sufficient reason for removing him.
Remit was made accordingly to Chiefs Attah, Mayan
and Attopee, who were present in Court, and accepted of
the reference.
SARAH PARKER AND OTHERS v. MENS AH
AND OTHERS.
June 6, 1871.
Before Chalmers, Judicial Assessor.
Family Property — Liahility of a Memler of a Family,
Judgment.
The question which the Court has primarily to consider
in this case is whether the sale of the land at Quaduagah to
Qiiassie Memah under a writ of execution obtained by
Agoah Koomah against Joseph Adams was valid. The
land belonged by pwrcJiase to Amoonoah, the mother of
Adams; and the family of Amoonoah, as represented by
Sarah Parker and the others who concur with her in this
action, now claim that the sale should be set aside and the
land returned to them on the grounds : —
First : That the inheritor of Amoonoah's property was
Sarah Parker, her eldest child, and not Joseph Adams ^
who, her eldest son, was not the eldest in the family, and
therefore according to country law not the inheritor of
Amoonoah.
Second : That the land having descended to Miss Parker,
has become in her hands family land, which, by the custom
of the country, is not attachable either for the debt of the
head or of any member of the family ; and
FANTI CUSTOMARY LAWS. 205
Third : That the liability of Adams to Agoah Koomah
was in no way shared either by Amoonoah or the family.
The first of these positions is true, Miss Sarah Parker
and not Adams being the eldest child and inheritor of
Amoonoah ; and if the statement of the case which I have
just referred to were comprehensive of all its incidents, the
customary law of the country would render at once obvious
the decision which should be given, and that would be that
the land should be restored to Miss Sarah Parker as repre-
senting Amoonoah 's family, and that the purchaser recover
from the creditor of Adams, at whose instance and risk the
sale was made, the price he has paid as well as collateral
expenses.
But there are circumstances which render it necessary to
inquire whether Amoonoah should be held to have been at
least jointly responsible with Adams for the debt which at
the first view seemed solely his own ; for if she was thus
responsible, I apprehend that. I am in consonance with the
country law in holding that her family could not recover
back this land unless on the condition of satisfying the
debt. Accordingly, I have found it necessary to look back
closely into the circumstances out of which the liability of
Adams arose.
The facts, according to the evidence, are these : A
number of years ago (how many does not clearly appear,
but at least sixteen years) Agoah Koomah obtained a loan
of 7 ozs. from Amoonoah. This was to be repaid with
interest of 50 per cent. Agoah Koomah's own statement
is that the first payment she made was 5 ozs. 8 ackies ;
then, that she paid 1 oz. ; then there was a payment of 5
ozs., which was made in cowries.
It is impossible to hold that Adams interposed in these
transactions otherwise than as agent of Amoonoah. It is
said she gave him the debt to collect and apply for his own
xise. It is quite possible that she did not exact from him a
strict account of what he received, but here we have her
name appearing as the judgment and incarcerating creditor.
20G FANTI CUSTOMARY LAWS.
and receiving one of the final payments in person ; what-
ever arrangement she had with Adams, she obviously, as
regarded the debtor, sustained the character of creditor,
Adams being her agent merely, through the payments
made partly to him in that capacity and partly to herself
in person, she had at this stage received full payment of
her debt.
On this her duty to her debtor was plain. She was to
grant a valid receipt, to take the original document of debt
out of her agent's hands, and see that no further proceedings
were taken by him against the debtor. It was stated by
Agoah Koomah that on receiving the last payment
Amoonoah gave no receipt, stating that it should stand
over till Adams returned, who was then absent from
Anamaboe. The debtor was not bound to pay except on
receiving a valid receipt, and if Amoonoah did as was
stated, she made herself responsible that Adams s subse-
quent proceedings should be such only as she herself might
lawfully have taken. It rather seems that this demur in
giving a receipt must have referred to some of the previous
payments. Nothing further seems to have taken place till
1861, when Adams took out a summons against Agoah
Koomah at Anamaboe for £18. There has not been a sug-
gestion that Agoah Koomah ever borrowed from Adams,
or was indebted to him personally for this £18. Now, the
extract from the book of the Anamaboe Court, which is
in evidence, is remarkable. It contains the plea of the
defendant denying the debt. Then the magistrate has
noted : " The plaintiff produced a paper showing the
defendant owed him £18." This to a moral certainty
was the original undertaking of Agoah Koomah and her
sureties, with the endorsement of a balance of 5 ozs. due,
which I have noticed. Judgment was given for Adams,
and upon that seems to have commenced a series of extor-
tionate seizures, which were the ground of the recent
judgment against Adam,s. And this action does not con-
clude the series. Adams afterwards, in 1863, has the
FANTI CUSTOMARY LAWS. 207
effrontery to raise an action against the sureties in the
original undertaking, and by means which could have been
nothing else than fraud upon the Court, obtained judg-
ment, on which he proceeded to sell and seize the property
of the sureties. It is not a little significant that when he
was called to account on these proceedings in this Court he
obstinately refused to do so, and finally allowed judgment
to go against him by default, being aware that he could
make no defence. Now, it may be asked, what had
Amoonoah to do with all these acts of misconduct, or how
was she responsible ? It would be painful to suppose she
was aware of what Ada7ns was doing, yet it is very
difficult to think that these seizures and sales taking place
at Anamaboe could pass unknown to her. But whether
this were so or no, she had put the means of perpetrating
those malpractices in the hands of Adams. She had
suffered him to have the documents after her own debt
had been fully paid. She had not recalled the agency
committed to Adams. Even assuming her to be free
of all connivance with the tortious proceedings of
Adams, and equally innocent of those who suffered by
them, a responsibility arises, on the plain principle that
where some one must be a loser through the fraudu-
lent acts of an agent, it is more reasonable that the person
who had employed and confided in the wrong-doer should
be the loser than a third party.
If Agoah Koomak and her sureties had claimed redress-
from Amoonoah during her lifetime, it is difficult to say
how she could have refused it. Not only was Adams one
of her family, her eldest son, but it had been in consequence
of her own employ of him that he had been enabled to
make these extortions, and if the aggrieved persons had'
constituted their claim by formal proceedings and had sold
this land, I do not see how such sale could have been
questioned. Now the land has been seized after it has
become land of inheritance, and according to general rule
not attachable. But I think this alienable quality of
■208 FANTI CUSTOMAllY LAWS.
family property must be reasonably construed. If there
was an obligation subsisting in Amoonoah's lifetime, for
which the land, whilst hers, might have been taken, it
descended to her successor under the condition that she was
bound to discharge such obligation by paying its amount
to the persons entitled to claim. It is further to be
•observed that Adams, as a member of Amoonoah's family,
has by his acts constituted a family debt which, it seems,
in case of a subordinate member, the family are not in
strictness bound to discharge, but would be in honour
bound unless they wished to cast the debtor out of the
family. Something like an undertaking to pay the debt
is spoken by Agoah Koom^ah, viz. that Mr. Blankson,
junior, interposed to prevent Adams being imprisoned,
saying the family would see to the debt: whether for
this reason or for any other, it is certain that Adams has
•not been imprisoned on the judgment obtained against
»him.
This sale has taken place without notice of any prefer-
able claim, for it appears that the message sent by Mr.
Blankson reached Quaduagah after the sale had taken
place, and whatever was its purport, it seems to have been
waived on the part of Amoonoah's family by their remiss-
ness in following it up, they having allowed a claim to the
•land which proceeded on a quite different ground adverse
to their own to be fully litigated before setting up their
Tight.
Having under review the whole circumstances that this
sale should not be set aside — certainly not on any other
-conditions than of Amoonoah's family making full compen-
sation to the purchaser for the price he has paid and all
expenses, and also compensating Agoah Koomah for her
expenses incurred in previous action — the expenses of this
action will be payable by the plaintiffs.
[Per George Blanhson, junior : I as one of the members
•of the family of Amoonoah claim to have a superior right
FANTI CUSTOMARY LiWS. 209
to any that can be shown by the defendants, inasmuch as I
have a right to cultivate and occupy landed property
which was owned by my grandmother during her lifetime,
and which was not bequeathed by writing to any particular
member of the family. But the title which I assert to the
occupancy is not confined to myself, but extends to all
members of the family. I state that Amoonoah did not
leave this land to Joseph Adams, nor on the eve of her
death did she leave a will either verbal or written making
her property attachable for Joseph Adams's debt. I also
state that Amoonoah never mentioned that this land was
attachable for Joseph Adams, To the best of my belief,
Agoah Koomah, one of the defendants, the judgment-
creditor of Joseph Adams, never in Amoonoah's lifetime
took any steps to inform Amoonoah as to the judgment
debt which existed against Joseph Adams, I claim on the
principle of the country law, that no real estate is salable
or attachable for debt unless by the sanction of the whole
family — neither for the debt of the head of the family nor
of any member. I maintain that the writ of execution was
directed only against the goods and chattels of Joseph
Adams, or against such real estate as Joseph Adams held
in individual right. Where an owner of land dies without
leaving will, and leaves a family who have to undergo
■collectively the funeral expenses which may be made, and
supposing the family make such expenses, then whatever
the deceased may leave as real property would have to be
distributed among the members who made the custom.
The head of the family, no matter who he or she may be,
is supposed during life to look after the interests of every
member who may spring from him. If any member owes
debt during his lifetime, in default of payment the head
must pay it. Again, if the head contracts debt the whole
family must contribute. They are not to allow the head
to be imprisoned, even though the debt were contracted
without their knowledge. Therefore when Amoonoah
•died without leaving a will, and the family made the
P
210 FANTI CUSTOMARY LAWS.
custom for lier, it gave them right to inherit any property
which she might have left. I as one of the members made
custom.
When a woman leaves real estate, the eldest daughter,
not the eldest son, is the inheritor — not for herself, but for
the family. As a matter of fact, Amoonoah possessed the
land. She left a family of sons and daughters. It is a
feature of the country law that although my late mother
was married according to Protestant religious rites, yet she
could hold property in her own right independently of her
husband. The head of the family who now claims is
Sarah Parker of Anamaboe, who is eldest daughter of
Amoonoah ; she is my aunt ; she took principal part in
paying the debts of Amoonoah after her death, especially
funeral expenses,]
ISAAC OCRAN v. QUAH BANDAFOO.
October 13, 1873.
Before Chalmers, Judicial Assessor.
Ejectment — Land Ahoo-Akoo, near Woontoo-Aga.
The property is at Quessie Ansah, between Abrah and
Aga districts ; bounded by Aban's, Amissah's land, and by
the village Quessie Ansah.
Chiefs : Wills are made by word of mouth, and if not, it
is easily discoverable who the rightful heir is.
If the grandmother was a slave, all her descendants
remain slaves until redeemed.
Court : Has every slave a right to redeem herself? '
A slave belonging to the country can be redeemed by
her own family; but it is very difficult, as the expense
would be great, and all her personal property whatever
there, if she too have slaves, would have to be paid for.
In the case of a man dying and leaving property, and
his blood relations appear to be too young to manage it,
FANTI CUSTOMARY LAWS. 211
the property descends to an elderly slave as trustee, till
the real successor comes to age. In the case of a slave
becoming such a trustee, it would be his business to redeem
all the blood relations of his master out of the proceeds of
the property, and bring them to the house, and they would
all succeed to the property in succession, and when all were
dead, the property would go to the slaves.
The general rule of descent of property is that the
nephew succeeds.
ARTHUR HUTTON v. KUOW KUTA.
December G, 1878.
Letters of Administration — Family Property.
To show cause why the letters of administration, granted
you to administer the estate of John Mayan, of Cape Coast,
deceased, shall not be set aside and revoked in so far as they
affect the family property held by the deceased, the same
being the lawful property of plaintiff and others by the
laws and customs of this country.
Colour is no bar to the right of succession in native
law.
Judgment for plaintiff.
DINAH HOLDBROOK AND OTHERS v. ATTA.
December 22, 1882.
Before Lesingham Bailey, Chief Justice.
Order of Succession — Family Property.
Chief J. Robertson stated, with concurrence of Chief
Know Kuta, that in the event of land being held in common
by three brothers and a sister, the children of the sister
would, at the death of all (brothers and sister), inherit in
preference to the children of the brothers, unless such
212 FANTI CUSTOMARY LAWS.
brothers had married a woman of the same blood and family,
and that this would be so, even though the sister had not
been married according to native law, and if, in point of
fact, her children were the issue of an illicit connection
with a married man.
Judgment.
The plaintiffs claim to be entitled to the possession of
the land in question, as the children of Abbraba Kerantsua,
who, with her three brothers, Chissie, Taweia, and Appia,
held it in common, it having descended to them from the
aunt or uncle, which is not shown in the evidence. Abbraba
survived the three brothers, one of whom, Taweia, married,
and had a son, Koffie Aboo. At the death of the brothers,
the sister, niece of the purchaser (a person last seised), took
possession of the land, and at her death her children, the
present plaintiffs, took possession. Koffie Aboo, however,
sold the land to the defendants, who have occupied it under
a grant from him for a period of four or five years. The
native law is very clear on the subject of inheritance, and
there is no question that the land of a deceased uncle
may be, and indeed of right is occupied by all the children
of his sister, whether male or female, and descends at the
death to the children of the female only; and therefore,
although Chissie, Taweia, and Appia, were entitled to
possession, together with their sister, during their lives, it
descended to her children alone, to the exclusion of the
children of either of her brothers.
These children are the plaintiffs, and as the defendants
claim through a son of Taweia, I am of opinion that the
plaintiffs are entitled to j udgment for recovery of possession
of the land.
FAKTI CUSTOMARY LAWS. 213
SAM V. WILLIAMS.
February 24, 1883.
Before Quayle Jones, A.J.
Bule of Succession.
Per J. M. Abadoo : Q. A buys property and dies,
leaving no brothers or sisters living born of the same
mother, but one of such sisters left issue, who now survive.
All the others died without issue. In such a case as this,
can any one other than the issue of A's sister succeed to the
property purchased by A ?
No one not being such issue of A's sister can succeed.
They are the sole heirs.
MANSAH AND OTHERS v. DOLPHYNE.
May 11, 1883.
Before Henry Stubbins, J.
Succession hy Domestics.
Per Chief Andor : The children of a man's slaves, be-
gotten by him, take property in preference to household
slaves.
Nonsuit, with liberty to sue again if evidence can be
given that these were no children of Neizer.
ABBACAN V. BUBUWOONL
May 25, 1883.
Before H. Stubbins, J.
Bule of Succession.
Having called in Chiefs Robertson and Kuow Kuta, and
they, finding that plaintiff claimed through the father's side
and defendant claimed through the mother's side, and the
law of the country being that the claimant through the
mother's side takes the property.
Judgment for the defendant.
214 FANTI CUSTOMAEY LAWS.
BURA AND AMONOO v. AMPIMA.
September 28, 1891.
Before Hayes Redwar, Actino- Judsre.
Suzerainty — Suhordinate Stools — liiile of Succession — Practice — Hearsay
Evidence — Common Ileputatiou — Town Stool Linguist — His Duties—
Lachesse.
In this case the plaintiff's original claim was to recov^er
from the defendant for himself and the Abonu people the
five Darkem stools belonging to the Abonu people. To this
the defendant pleaded " res judicata" but afterwards with-
drew this special plea and substituted a plea of " entitled to
possession."
Subsequently an application was made under Order III.,
rule 5, for the joinder of King Amonoo IV. of Anamaboe, as
plaintiff, on the ground that his suzerainty over the stools
of Abonu was in dispute in this cause. Leave was granted
for the joinder, and the plaintiff's writ was amended, and
stands thus : " The plaintiffs for themselves and the Abonu
people claim to establish their title to the five Darkem
stools for the town of Abonu." *
Plea, entitled to possession. This plea puts in issue the
plaintiffs' claim, and obliges the defendant to prove lawful
possession in herself. The plaintiffs' claim must, however,
only recover on the strength of their own title, and not on
any weakness in that of defendant.
The evidence in this case, although lengthy, is, when
analyzed, much simpler than it appears to be at first sight.
The plaintiff Biira's evidence as to pedigree consists of his
own statement and those of the co-plaintiff Amonoo and
Kofi Akubin, linguist of the town of Abonu, and he deduces
a title by succession from Apotuduarkem, the first Chief of
Abonu. Apotuduarkem came to Anamaboe, they say, to
seek the protection of the then King of Anamaboe from the
Asantis. This protection was afforded to him, and he was
* Abonu town is in the neiglibourliood of Cape Coast Castle.
FANTI CUSTOMARY LAWS. 215
granted the land now known as Abonu, by the King of
Anamaboe. Apotuduarkem was succeeded by Kurankie-
penin, his son, who was placed on the stool of Abonu, which
was created under the protection of the King of Anamaboe,
because Apotuduarkem's sister Drowa had no son. Kurankie-
penin was succeeded by Inkrabia, who was succeeded by
Okra, whose mother was Brainua, the daughter of Drowa,
who was the sister of Apotuduarkem. He was succeeded by
Kofi Acquah, whose successor was Tchibu, the uncle of the
plaintiff Bura, whose right has been recognized by King
Amonoo IV. of Anamaboe. The woman Brainua was a
niece of Apotuduarkem, and had two children, Okra (before
mentioned) and a daughter. Yah Fuliwa, who had two
children, Kofi Acquah (before mentioned) and a daughter,
Orguetey. Orguetey had four children, Tchibu (before
mentioned), Teney, a son, Breesee (eldest daughter), and
Tenagaiwa (a daughter). Breesee had a son, who is the
plaintiff" Biira, and, therefore, a nephew of Tchibu, who was
deposed.
The defendant's evidence as to pedigree is her own state-
ment and that of Eccua Finiba, and she also deduces a title
by succession from Apotuduarkem. She denies the story of
her ancestor seeking the protection of the King of Anamaboe,
and represents him as settling at Abonu independently of the
King, and the town being subsequently a sort of dependenc}^
or at the least, in alliance with the stool of Cape Coast. The
King of Cape Coast, Cudjoe Imbra, however, gives evidence
for the plaintiffs and does not support this view, although he
cannot say under the protection of what stool the town of
Abonu is. He appears to be a disinterested witness, and dis-
claims any control over or alliance with the Abonus as a de-
pendency of his stool. To return to the defendant's pedigree :
Apotuduarkem, according to her case, was succeeded by
Br uwa, a brother of Apotuduarkem, who brought one Pimpon
as a slave from Asanti, where he, Bruwa, had been to trade.
The stool of Apotuduarkem, according to her case, was
brought to Abonu by her ancestors, and upon this stool
216 FANTI CUSTOMARY LAWS.
Bruwa was his successor. He was succeeded by Pirapon,
who was a slave ; and was placed in charge of the stool by
Bruwa's direction. Pimpon was succeeded by Kurankie-
penin, whose successor was Kaffu, who in his turn was
followed by Orkra. Orkra was succeeded by Kofi Acquah,
whose successor was King Amissa, who married King
Acquah's daughter. King Araissa is stated by defendant
to have been a nephew of Acquah and brother of defendant
by the same mother, named Adjua Kuma, who was a sister
of Kofi Acquah. The witness Finiba, however, contradicts
this, and says that Amissa's mother was one Korkua, so
that defendant's evidence is uncorroborated on this point,
which is a most material point as affecting her claim to
succession through the female line from King Amissa, under
whom she claims.
Then arises a difficulty as to the admissibility of some of
the evidence as to pedigree. The settled rule of English law
of evidence on this point is to admit the oral or written
declarations of deceased members of the family to prove a
pedigree, and this exception to the rule, excluding hearsay,
is founded on the difficulty of otherwise tracing descent and
genealogy. Now much of the evidence adduced on both
sides in this case does not satisfy the conditions of this rule,
and counsel for plaintiffs has argued that, inasmuch as in
this country there are no written memorials or history of
families, and every matter of that sort depends on oral
traditions, the evidence should be admitted. He argued that
this had been done constantly, and that the rule, excluding^
hearsay, was of necessity relaxed by the Courts in cases of
this kind. He said also that at the annual native festivals,
a custom prevailsof the linguistand other headmenand elders
of the town giving a sort of recitation of the deeds of the
ancestors of their family in which the stool of the place
descends, and genealogies were often given, from which the
history of the family could be gathered. Further, that hardly
any other source of information existed. Now, in this case,
the evidence of the witness Kofi Akubin is that of a linf^uist
FANTI CUSTOMARY LAWS. 217
and a linguist of the town of Abonu,and it has been shown
that it is the duty of a linguist to know the history of the
family in which the stool descends. A circumstance not to
be overlooked in this case is, that if the English rule be
rigidly applied, evidence on both sides of this case would be
rejected ; and this, coupled with the circumstance that the
defendant's counsel has not objected to the admission of the
plaintiff's' evidence on this ground, weighs with the Court. I
hold, therefore, that, as a rigid adherence to the English law
in this respect would work injustice, the evidence in the
nature of hearsay adduced in this case is admissible. Apart
from this, even according to English law, evidence of common
reputation is admitted to prove rights affecting a large number
of persons, and therefore in the nature of public rights ; also
of customs of manors and boroughs. Now, the right of
succession to the stools of Abonu is one which must
necessarily affect the people of Abonu, and on this ground
also it seems to me that hearsay evidence is admissible.
Dealing generally with the evidence in this case, there
is a discrepancy in the statement of the plaintiff Bara, as
compared with that of the co-plaintiff Amonoo, relative to
the length of the interregnum after the deposal of Tchibu
from the stool of Aboiiu ; but his evidence on other points
has been corroborated ; and looking to the fact that he is
illiterate, I am not disposed to allow a misstatement on one
point of secondary importance to outweigh the fact that his
evidence and that of the other witnesses as to the plaintiffs'
pedigree coincides on every material point.
Looking at the evidence for the defence, I find graver
discrepancies. It was stated that Chief Kudjoe Essel had
been in charge of the Abonu stools ; but when called as a
witness for the defence, he appeared surprised at this sug-
gestion and denied the fact. Notwithstanding defendant's
statement that she was born at Abonu, her witness Accundo
stated that she was born at Cape Coast, and when questioned
as to her pedigree, stated that King Amissa placed his
uncle Acquah on the stool of Abonu. Thereby not only
218 FANTI CUSTOMAEY LAWS.
contradicting the defendant's evidence as to pedigree, but
betraying an ignorance of the facts of the case. I cannot
forget also, as a judge of fact, that when the written record
of a Native Court was disallowed in evidence in this case,
and the defendant's witness Ashun was questioned as to a
record, he stated that no record was kept in the Native
Court, and the linguist called to prove judgment and its
purport, contradicted the evidence for the defence on this
point. The evidence as to a letter from Elmina Prison, from
prisoners confined there, fails to support the view advanced
by the defence, and the letter, to my mind, is of the ordinary
character of a threatening letter, and carries no weight with
me as opposed to the evidence of the plaintiff's pedigree.
1. Upon the whole case for the defence, then, I find that
there is nothing to show that Kofi Amissa ever occupied the
stools of Abonu as rightful successor to Apotuduarkem,
although he may have had charge of the stools as a sort of
caretaker.
2. I find further, that even if he did occupy the stools as
rightful successor to Apotuduarkem, the defendant has not
succeeded in showing her descent from Amissa, through the
female line, there being a conflict between her evidence and
that of Eccuah Finiba on this point.
3. Upon the other hand, I find that plaintifi" Bura
establishes his right to the five stools of Abonu, as a
descendant of Apotuduarkem according to the native law
of succession ; but having regard to the admission of his
counsel, made in the hearing of this cause, subject, as regards
the stool of Pimpon, to the right of any third party whose
title can be made out to the right of taking charge of that
stool, as to which the Court can express no opinion on the
evidence before it.
4. With regard to the suzerainty of the co-plaintiff"
Amonoo, there has been a conflict of evidence, but the
evidence for the defence amounts merely to a bare denial of
this right, while the evidence for the plaintiff contains more
probability in its general tenor, and some of the witnesses
FANTI CUSTOMAHY LAWS. 219
for the defence even have admitted the existence of this
right, while the co-plaintiff's case is supported to a certain
extent by the testimony of such unbiassed persons as
Kudjoe Mbra, King of Cape Coast, and Mr. Jacob Sey. I
find, therefore, by a preponderance of testimony, that such
a right exists, and that the co-plaintiff is entitled to place
a chief on the stools of Abonu and to a general suzerainty
over these stools.
5. The only other point raised by the defence requiring
notice, is whether the plantiff-j, by letter or otherwise
showing a knowledge that defendant had litigated her
claim and obtained judgment for the recovery of these
stools against Akuban and Feakie in this Court, and not
taking any steps to assert their respective titles, have been
guilty of such delay or acquiescence as to amount to
" lachesse " within the doctrine that " Delay defeats
Equities." I am of opinion on this point, having regard
to this delay being only for a short time, viz. two years at
the most (the action being before the Court only in last
July), and having regard to the dilatory habits of natives
in this country, and to all the circumstances of the case,
that this equitable doctrine does not apply, and that the
plaintiffs are entitled to come to this Court.
Declare that the plaintiffs and every other person or
persons claiming or to claim under them, are entitled to the
possession of the five stools of Abonu, but subject, as regards
the stool of Pimpon, to the right of any third party who
shall make a title to the custody or charge of the said stool
of Pimpon.
Decree that the plaintiffs be quieted in the possession of
the said five stools of Abonu, which shall be delivered to
the said plaintiffs forthwith. Let the costs, etc., etc.
Mr. Sarhah for the plaintiffs.
Mr. Maonuin for the defendant.
220 FANTI CUSTOMARY LAWS.
AMEKOO V. AMEVOR.
Accra, September 29, 1892.
Before Hutchinson, J.T., C.J.
Administration Suit — Family/ Property — Native Law.
Judgment.
The decision given on June 13, 1889, upon the application
for letters of administration to the estate of Ametefi, was
that property ought to devolve according to native law or
custom, and administration was accordingly granted to
Amevor. There was an appeal from that decision, but the
appeal was abandoned.
According to native law, as proved in the application
for administration, Amevor is entitled to manage the
property, and he is entitled to the largest share of it, but
he " ought " to give something — how much is not fixed by
native law — to the other brothers and sisters and the
children of Ametefi. Whether he can be by native law
compelled to give these persons anything, or whether the
duty to do so is only a moral duty, is uncertain. But
unless he is legally bound to do so, the decree for
administration by the Court ought never to have been
made, and I think, therefore, that the Court in distributing
the property, especially as the defendant is at variance
with some of his brothers and sisters, ought not to give
the whole to the defendant.
The only property that the Court can deal with at
present is this £562 8s. ^d. and interest thereon, which is
in the hands of the Basel Mission. Amevor in his accounts,
sworn on August 10 last, shows that he has received
^4867 9s. 9d, and of that he only accounts for £700 8s. 8d ;
most of the rest, he says, has been taken by Ter Holma
and the lawyers. And he also says that he and Ter
Holma are in possession of deceased's land and houses.
Ter Holma admits havinir received over £1000. I shall
FANTI CUSTOMARY LAWS. 221
not, therefore, give either of them any part of this
£562 8s. Sd. The third brother, Dsidso, admitted, in action
of Ter Holma v. Dsidso, that he had received some goods
o£ Ametefi's, but did not say how much ; and therefore, as
he has made no claim now, I shall give him nothing. It
has not been shown that either of the sisters of Ametefi, or
his widow, or his children, have received anything. I
shall therefore divide the balance of the fund (after pay-
ment of the costs) amongst them equally.
Mr. Bannerman for plaintiff ; defendant in person.
In re ISAAC ANAMAN, Deceased.
March 13, 1894.
Before Francis Smith, J.
Administration — Marriage Ordinance — Dying Declarations —
Intestacy— S.C.O., 1876, sect. 19.
Judgment.
This is an application by Grace Amelia Anaman,
widow of the late Isaac Anaman, for a grant of letters of
administration of the estate of her deceased husband. A
notice to prohibit the grant was filed by Jacob Anaman,
who was in due course warned by a warning in writing.
When the case came on for hearing, the contention by
the counsel for Jacob Anaman was, not that the grant
should not be made to the widow, though in the affidavit
filed by Mr. Jacob Anaman on April 18, 1893, he claims to
be the executor of the deceased, according to the tenor of
his dying declaration, but that such a grant should be made
with a verbal will reduced into writing subsequently
annexed, which verbal will is said to have been made by
the deceased, so that his intention as to the disposition of
his property should be carried out by the administratrix.
The facts of the case are these. In the month of
222 FANTI CUSTOMARY LAWS.
October, 1887, the deceased was married to Amelia Grace
Anaman at Anamaboe, according to the rites or usages
observed by the Wesleyan denomination. On January 31,
1893, the deceased then being ill, made a declaration as to
the disposition of his property, and died the next day.
There is, however, some conflict as to what were the
exact terms of this verbal disposition, the widow stating
that he made three declarations — one before herself and
Mr. Anaman, another before herself and Mr. Parker, and
the third before herself and Amelia Ferguson ; whereas
Mr. Anaman gives evidence of one declaration. Assuming,
however, that the deceased disposed of his property in the
manner contended by Mr. Anaman, the question for
determination is. Did the deceased die intestate ?
Mr. Roberts contends that as the late Isaac Anaman
was married according to the provisions of the Marriage
Ordinance, 1884, to prevent his personal property from
being distributed in accordance with the provisions of the
law of England relating to the distribution of the personal
estates of intestates, he must have made a will accordinir
to English law, the word " intestate " in the Marriage
Ordinance referring to a person dying without having
made such a will.
On the other hand, Mr. Sarhah cleverly argues that the
deceased and the widow being natives of the colony, native
law and custom must, in terms of sect. 19 of Ordinance
No. 4 of 1876, bind them, the Legislature having provided
that such law and custom shall be deemed applicable in
causes relating to testamentary dispositions ; that, as by
native law testamentary dispositions mean verbal disposi-
tions, writing not being necessary by native law, a native
who makes such verbal disposition cannot be said to die
intestate.
That the word " intestate " in the Marriage Ordinance
means a person dying without making a will, either in
accordance with native law — that is, verbally — or in accord-
ance with English law; that the rules 21 and 22 of Order
FAXTI CUSTOMARY LAWS. 223
51, 2nd SchedulGj Supreme Court Ordinance, 1870, are
merely rules of procedure, and cannot override the sub-
stantive law, and quotes Ahd-ul-Alessih v. Farra and
another, Law Times Report, vol. 69, p. lOG.
That case established that similar rules in the Order in
Council of December 12, 1S70, conferring probate juris-
diction on the Supreme Consular Court at Constantinople
were mere rules of procedure, and that the domicil of the
testator must govern in all questions arising as to his
testacy or intestacy, or as to the right of persons who. claim
his succession ah intestato.
In that case the domicil of the testator was Cairo,
which is not British possession nor governed by English
law, and the testator being domiciled in the Ottoman
Empire, the law of Turkey became the measure of his
personal capacity, upon which his majority or minority, his
succession and testacy or intestacy depended.
The case, however, is distinguishable from the present,
in that Isaac Anaman was domiciled in the Gold Coast
Colony, which is a British possession and governed by
English law. Unless, therefore, the provisions of sect. ID
of Ordinance No. 4 of 1876 override sect. 16, rules 21, 22
and 23 of Order 51, 2nd Schedule, Ordinance 1876, and the
provisions of the Marriage Ordinance 1884, or the provisions
of sect. 19, can be consistently carried out side by side with
the above enactments and not in conflict thereto, English
law must govern the present case.
Section 16 enacts that the jurisdiction of the Court in
probate causes may, subject to the Ordinance and rules of
Court, be exercised by the Court in conformity with the law
and practice for the time being in force in England.
Section 19 provides for the application of native law
when not incompatible either directly or by necessary
implication with any enactment of the Legislature existing
at the commencement of the Ordinance, or which may after-
wards come into operation.
Now, the Legislature clearly had in view, in the framing
224 FANTI CUSTOMARY LAWS.
of sect. IG and the said rules, the English Statute of Wills,
and has made no provision for the granting of probate of a
will executed in any other form than in the English form.
There is no power conferred on this Court to grant probate
with the will annexed, or probate of a will made according
to native law.
All that the Legislature says is, the Court shall, under
certain circumstances, observe native law in causes relating
to testamentary dispositions ; in other words, shall give
effect to them when practicable. Further, the application of
native law can only be made under the conditions specified
by the Legislature.
It requires no argument to show that the status of
persons who are married under the Ordinance is entirely
different from that of those married according to native law.
Eights are conferred by the former which not only are not
enjoyed by those married according to native law, but are
also inconsistent with the provisions of native law. Dis-
abilities are created which are not known to native law.
But it is contended that it is only in case of intestacy that
these rights can be enforced, that is, where a person died
without making a will either according to English or native
law. Against this contention there is this argument : The
word " intestate " occurs in an Ordinance dealing with
marriage on the same footing as the law of England, and is
■used in connection with the devolution of personal property
according to English law. The Ordinance does not regulate
the relationship between a man and a woman married
according to native law. Not, therefore, regulating native
marriages, except by imposing certain restrictions on
persons already married according to native law wishing to
T3e married according to English law, the meaning of the
word " intestate " must be found from its connection with
the subject of the legislation. And as it is used in con-
nection with English law, its English legal signification
must be ascribed to it and not its native legal import. And
this view is further strengthened by the consideration of
FANTI CUSTOMARY LAWS. 225
the duty imposed on the registrar to explain to the parties
the prohibited degrees of kindred and affinity, and the
effect as to the succession of the property of either dying
intestate.
I find, therefore —
1. That the application of native law under these cir-
cumstances is incompatible with the enactment of the
Legislature; and
2. That the person who is married under the Marriage
Ordinance, dies intestate when he or she has not made a
will accordinor to the Enfjlish Statute of Wills.
On these findings I declare that Mr. Isaac Anaman
died intestate ; the widow is entitled to the administration
of his estate, to be distributed in accordance with English
law. Under the circumstances I allow no costs.
Mr. 7. /. Roberts for Grace Anaman, the widow, apply-
ing for letters of administration.
Mr. J. M. Sarbah for Jacob Anaman, the caveator.
Where any person who is subject to native law or custom
contracts a marriage in accordance with the provisions of
this or of any other Ordinance relating to marriage, or has
contracted a marriage prior to the passing of this Ordinance,
which marriage is validated hereby and such person dies
intestate, subsequently to the commencement of this Ordi-
nance, leaving a widow or husband or any issue of such
marriage.
And also where any person "who is issue of any such
marriage as aforesaid dies intestate subsequently to the
commencement of this Ordinance,
The personal property of such intestate and also any real
property of which the said Intestate might have disposed by
Will shall be distributed in accordance with the provisions
of the law of England relating to the distribution of the
personal estates of Intestates, any native law or custom to
the contrary notwithstanding.
Q
226 FANTl' CUSTOMAEY LAWS.
Provided always, that where by the law of England, any
portion of the estate of such Intestate would become a
portion of the casual hereditary Revenues of the Crown,
such portion shall be distributed in accordance with the
provisions of native law and custom, and shall not become
a portion of the said casual hereditary Revenues.
Provided also that real property, the succession to which
cannot by native law or custom be affected by testamentary
disposition, shall descend in accordance with the provisions
of such native law or custom, anything herein to the contrary
notwithstanding.
Before the Registrar of Marriao^es 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
to property as affected by marriage (Marriage Ordinance, No.
14, 1884, sect. 41).
Nothing in this ordinance shall deprive the Supreme Court of
the right to observe and enforce the observance, or shall deprive
any person of the benefit, of any law or custom existing in the
said Colony and Territories subject to its jurisdiction, such law
or custom not being repugnant to natural justice, equity, and
good conscience, nor incompatible either directly or by necessary
implication with any enactment of the Colonial Legislature exist-
ing at the commencement of this ordinance, or which may after-
wards come into operation. Such laws and customs shall be
deemed applicable in causes and matters where the parties thereto
are natives of the said Colony or Territories, and particularly, but
without derogating from their application in other cases, in causes
and matters relating to marriage and to the tenure and transfer
of real and personal property, and to inheritance and testamentary
dispositions, and also in causes and matters between natives and
Europeans where it may appear to the Court that substantial
injustice would be done to either party by a strict adherence to
the rules of English law. No party shall be entitled to claim the
benefit of any local law or custom, if it shall appear either from
express contract or from the nature of the transactions out of
which any suit or question may have arisen, that such party
FANTI CUSTOM AEY LAWS. 227
agreed that his obligations in connection with such transactions
should be regulated exclusively by English law ; and in cases
where no express rule is applicable to any matter in controversy
the Court shall be governed by the principles of justice, equity,
and good conscience. (Section 19, Supreme Court Ordinance
1876.)
ADJUA AMISSA v, SUSANNAH KIMFULL AND
WILLIAM FYNN.
November 26, 1894.
Before Francis Smith, J.
Family Property — Marriage Ordinance Will — Intestacy.
Judgment.
This action was for trespass, but as the plaintiffs title
to the house and land has been raised by the defendants,
the question to be first determined is the ownership of the
house and land. The facts are not in dispute. The land,
originally, was Eccua Akroma's, alias Elizabeth Williams,
who got it from her husband. Elizabeth Williams had two
brothers, AVilliam Fynn and Edward Jonah Fynn, their
mother being Eccua Kraba. Eccua Kraba was bought by
one Sarah, so that William, Edward Jonah, and Elizabeth,
were domestics of the house of Sarah. William Fynn
married Margaret, alias Araba Dodua, and the defendants
are two of the issue of the marriage. The mother of
Margaret was Eccua Brobraba, and she was bought by the
said Sarah, so that the defendants are also domestics of the
house of Sarah. On the death of Elizabeth Williams, who
had built a house on the land, William Fynn succeeded to
the property and built another house on the land, and on
his death, his brother Edward Jonah succeeded, and he also
built a house on the land, which is the subject of the present
action. As the last of the blood relatives of Elizabeth,
Edward Jonah, who had married but had no issue, devised
228 FANTI CUSTOMARY LAWS.
this house absolutely to his wife, who survived him, making
other devises affecting the other houses and portion of land,
and the plaintiff is now claiming the property as her niece.
It is further admitted that before building, Edward Jonah
sent to inform the women of the house that he was not
going to take the house anywhere, but that he was going
to build it in the house. This case depends entirely upon
native law, and must be decided accordingly.
Mr. Sarhah, for the plaintiff, contends that as Elizabeth
Williams obtained the land from her husband and not from
Sarah, and as Edward Jonah Fynn built the house without
the help of any of the members of the family, he being the
last survivor from the same womb as Elizabeth, he became
absolutely entitled to the property and could dispose of it
as he liked. And having by his will left it to his widow,
the plaintiff, who is her heiress, is now the owner of the
property.
On the other hand, it is contended that though Elizabeth
received the land from her husband, yet she being a domestic
of the house of Sarah, who could have dealt with the land as
if it were her own, the land became family property, so that
notwithstanding that Edward Jonah Fynn was the last
survivor from the same womb as Elizabeth, he was still a
domestic of the house of Sarah, and succeeded to the family
property as such domestic. Hence he could have no more
than a life interest in the land. Also as to the house, his
interest therein was the same, and on his death the house
and land passed to the other domestics in turn. It was
therefore not his property to dispose of it absolutely.
The facts of the case, with the variation of names, w^ere
submitted by me, with certain questions thereon, to the King
of Elmina, the King of Anamaboe, and Chief Hama, and they
have given me the native law thereon. There has, however,
been a difference of opinion, two holding the same view, that
is, the King of Elmina and Chief Hama, and one, the King
of Anamaboe, the opposite view.
The opinion of the King of Elmina is that Edward Jonah
FAXTI CUSTOMARY LAWS. 229
Fynn did not and could by no means become absolutely en-
titled to his sister's property, viz. the land with the houses
built by his sister and brother William, by virtue of his
being the last from the same womb. He being a domestic
as his sister and brother of the house of Sarah, he had only
a life interest in the property, the property passing, at his
death, and in the absence of the blood relatives of Sarah, to
the fellow-domestics of the same house in turn, including the
children of William and Dodua.
Edward Jonah Fynn had no greater than a life interest
in even the house he himself built on the land, whether his
fellow-domestics assisted him in the building or not ; what-
ever Edward Jonah Fynn had in life, whether by means of
personal labour or by inheritance, were regarded as family
])roperty, and were, therefore, descendible after death to the
surviving domestics.
"Edward Jonah Fynn not having more than a life
interest in the house he built, it would be against native
law to dispose of it as he has done."
If Edward Jonah Fynn did not even care to inform the
fellow-domestics that he was not ffoino; to take the house
anywhere, but that he was going to build it in the house,
he would still have no more than a life interest only in the
house. The fact of his being a domestic limits his interest
to a life interest, and prevents him from making an absolute
disposition of it to his wife. " He could only have the right
to dispose of both houses and land in any way he pleased,
only when there was not even one of the domestics surviving."
Chief Hama, by his linguist, whom I examined here on
the 16th instant, gave practically the same answers.
The King of Anamaboe replies as follows (I am now
substituting the real names for the fictitious ones used in
my letter to the King) : —
" The argument in favour of the children, viz. that the
fellow-domestics who now represent Sarah have the same
right as Sarah, is not quite correct or sound, for fellow-
domestics cannot represent their master in such or same
230 FANTI CUSTOMARY LAWS.
and equal position as to be capable of claiming the property
of their fellow-domestics, at least the property acquired by
themselves, and not descended from their master, as in this
singular and rare case before j'ou." I answer — 1. Edward
Jonah Fynn became entitled to the property of his sister and
brother because he was of the same womb with them. 2. Not
because he built the house without their assistance, though
if they had given him assistance, it might have induced him
to act otherwise, yet not necessarily so. 3. He could dispose
of it as he had done. 4. If he said that he did not know
or understand in his own right his telling them, that could
not limit his interest." There is no question which calls
for this answer, but I presume the King is referring to the
message sent by Edward Jonah Fynn when about to build.
" I think he only said that to encourage them, to assist them,
or to avoid their groundless interference for the time being.
I may add that, as Edward Jonah Fynn made a will and
gave it to his wife, the children would not lay claim to it
on the mere ground that they are fellow-domestics, and who
never care to give assistance in the erection of a house by
Edward Jonah Fynn. And the Emancipation has so affected
such property of a slave, that Edward Jonah Fynn could
dispose of it as he has done.'*
I am not quite sure whether this opinion of the King is
not the outcome of a mixture of native and English law. I
can well conceive cases in which the view thus expressed
by the King would be more consistent with natural justice,
equity, and good conscience. Such, for instance, when a
domestic has severed his connection with the house of which
he was a member, and after that had acquired wealth by his
own individual exertion. In such a case, it would be unfair
to control his power of disposition of his property. But the
present case is not one of this character, and I must therefore
decide it in accordance with native law, as expressed by the
majority.
By that law, Edward Jonah Fynn had no more than a
life interest in the land and houses, and therefore could not
FAXTI CUSTOMAHY LAWS. 231
have disposed of any of them by will, and the plaintiff
cannot be in a better position than he. There will, there-
fore, be judgment for the defendants. But I think this is a
case in which counsel was rightly and properly engaged,
and I allow him his costs. Further, in view of the circum-
stances of the case, the rent of the shop will now be received
b}^ Susannah Kim full, representing the head of the family ;
the costs of counsel should be borne by the defendants.
And I order so accordingly, and with this exception each
party will pay its own costs.
MISCELLANEOUS CASES.
QUACOE ROOM v. OWEA AND KUDJOE TAINEE..
July 21, 1878.
Before Marshall, J.
Jurisdiction of Native Courts — Ohject 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
g£ 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 inter-
fere with it, and defendant Tainee is to bear the costs of
this action.
232 FANTI CUSTOMARY LAWS.
QUABINA ABAKAN v. QUASIE ACKARSA.
July 23, 1878.
Before Marshall, J,
Trespass — land Abakaneckie, a short distance from Cape
Coast, then in possession of plaintiff. Chiefs find that the
land belongs to the plaintiff.
The Court intimated that in these land cases the opinion
of the assessors must be followed, unless there appears some
injustice in it.
Judgment for plaintiff.
OPPON V. ACKINIE.
October 24, 1887.
Before Hector Macleod, C.J., Smalman Smith, J.,
Francis Smith, J.
This is an appeal against a judgment of the Divisional
Court of Cape Coast, dated February 14, 1887, confirming
a judgment of the District Commissioner, Saltpond, ordering
defendant Ackinie to pay damages to Oppon in the amount
of £5, with lis. costs.
Mr. Eminsang, with Williams and Eeimer, for
appellant (AcJcinie).
Oppon in person.
Judgment, October 24, 1837 : — •
This is an appeal by the defendant Achlnie against a
judgment of the Divisional Court of the Western Province,
dated February 14, 1887, aflSrming a judgment of the Dis-
trict Commissioner of Saltpond, dated February 25, 188G, by
which the defendant was ordered to pay to the plaintifi* the
sum of £5 as damages, with lis. costs.
The facts of the case are practically not in dispute. A
person, named Ghartey (formerly one of the defendants in
FANTI CUSTOMARY LAWS. 233
this action), charged another person, named David Otchafoo,
before the defendant AcJcinie, who is the King of Aikunfie,
with receiving bribes.
According to the custom, in such matters a surety had
to be found, and the plaintiif Oppon, one of Achinits own
subjects, became surety for the payment of any costs to be
found due by Otchafoo, in the matter of that complaint.
Otchafoo was found liable to costs.
If Oppon was dissatisfied with the decision, his remedy,
according to one of the witnesses called on February 14 last,
was to pay the costs and cause an appeal to be brought
to the British Courts ; but Oppon refused to pay the costs,
alleging that he was not satisfied with the decision of King
Ackinie.
Thereupon Ackinie caused Op>pon to be arrested and
imprisoned in respect of the refusal to pay the costs.
The power of arrest and imprisonment under such cir-
cumstances has been exercised by the defendant and his
predecessors as far back as the memory of living witnesses
can carry us, as one of the royal prerogatives.
Upon these facts there arises a short but very important
point in law. Important, because it affects the whole judicial
powers of kings and chiefs throughout the Protected Terri-
tories. Short, because it is all summed up in this question :
"Has the Supreme Court Ordinance, 1876, swept away the
previously existing judicial powers of native kings and
chiefs ? "
Before we proceed to discuss this question, we desire to
make one preliminary observation, and it is so important
that we shall direct it to be recorded in red ink.
We are not here engaged in any inquiry as to the extent
of her Majesty's power and jurisdiction in and over the
Protected Territories. We are only inquiring whether,
through the medium of the Colonial Legislature, she has,
in virtue of the power and jurisdiction vested in her, yet
chosen to say that the judicial powers of native kings and
chiefs shall no longer exist.
234 FANTI CUSTOMARY LAWS.
King Ackinie has, in the course of this case, had the
benefit of nearly all the local legal talent. Oppon has had
no such aid. Nevertheless, had Bailey, C.J., still been
alive, he would doubtless have given judgment in Oppon' s
favour. That is evident, from several cases decided by
him in the Divisional Court of the Central Province. In
none of these cases did the learned Chief Justice enter into
any discussion upon the point, which one must suppose
appeared to him so clear as to require no consideration.
We know, however, the reasons upon which he founded
his judgments, and we think it only right that we should
state them. He founded his opinion upon sects. 11 and 12
of the Supreme Court Ordinance, 1876. Regarding sect.
11, he would in substance say, if he were here to-day,
"The Supreme Court Ordinance, sect. 11, vests all the
jurisdiction of the High Court of Justice in England
(Admiralty excepted) in the Supreme Court of the Colony.
That being so, what jurisdiction the native chiefs formerly
possessed, was from the date of the passing of that Ordinance
extinguished."
Regarding sect. 12 he would doubtless say, " What juris-
diction, civil or criminal, was, or is not, exercisable by her
Majesty in these territories? Absolutely none. All, then,
is vested in the Supreme Court, and, according to the con-
cluding words of the section, shall be exercised under and
according to the provisions of the Ordinance and not other-
wise." If Oppon had all the legal talent in the world to
plead for him, we do not see how his case could be more
powerfully stated.
But we think Bailey, C.J., failed to apprehend the
object and scope of this Ordinance. First, however, let us
consider sects. 11 and 12 by themselves. While these
sections contain words affirmative of the Supreme Court,
we find in them no negative words, no words of conclusion,
nothing to indicate that jurisdiction, other than her
Majesty's, is to cease. We see no words that lead us to
think it would be inconsistent with the object of the
FANTI CUSTOMARY LAWS. 235
Legislature that her Majesty's jurisdiction and the jurisdic-
tion of the kings and chiefs should be co-existent. The civil
and criminal jurisdiction of her Majesty exercisable in the
Protected Territories at the commencement of the Ordinance,
was one, to a great extent, occurrent with the jurisdiction
exercisable by the native kings and chiefs ; and that is, to
our minds, a conclusive answer to the arguments which we
have put into the mouth of Bailey, C.J.
But we must not confine our attention to sects. 11 and
12 of this Ordinance. It is not by any means the only
Ordinance that created a Supreme Court for the Gold
Coast, and regulated its procedure. Various such Ordi-
nances were passed from 1858 downwards, and we think
we are right when we say that not one of such Ordi-
nances referred to the Local Native Courts, yet these Native
Courts exercised jurisdiction side by side with the Supreme
Court so created.
The key to the successful interpretation of sects. 11 and
12 already mentioned is, we think, to be found in sect. 20
of the same Ordinance ; from which it appears that, prior
to this Ordinance of 1876, her Majesty had been exercising
her jurisdiction by the help of a very confusing arrange-
ment of Courts and magistrates. All these were to cease,
and the one Supreme Court, whose powers and jurisdiction
are described in sects. 11 and 12, took their place.
Two years later the Colonial Legislature passed an
Ordinance (No. 8 of 1878) "to facilitate and regulate the
exercise, in the Protected Territories, of certain powers and
jurisdiction by native authorities." Can any one read that
Ordinance, and particularly sects. 3, 4, 10, and 30 thereof,
without coming to the conclusion that the jurisdiction of the
kings and chiefs is there treated as existing, but requiring
regulation? The Ordinance was confirmed by her Majesty,
though it was not thought expedient to proclaim any head
chiefs division under it.
In 1883 it was repealed, not because it did not speak
the truth, but that an Ordinance more in harmony with the
236 FANTI CUSTOMARY LAWS.
views of the Legislature for the time being, might take its
place ; and that successor is No. 5 of 1883. It also treats
native tribunals as existing, but requiring regulation.
It might be observed of these two native jurisdiction
Ordinances that, by mere recital, they could not restore what
was taken away by the Supreme Court Ordinance of 187(5.
Perfectly true ; but, when considering whether the Supreme
Court Ordinance of 1876 did or did not take away jurisdic-
tion from native tribunals, do not these native jurisdiction
Ordinances give us considerable light ?
Again, the point seems covered by authority. In the
end of 1880, or beixinnins: of 1881, the Divisional Court of
the Central Province ordered Quamin Fori, King of Aqua-
pim, to pay damages to one Bruce, as compensation for
illegal arrest.
Bruce was charged with violating a girl in the bush,
and Qua'niin Foi'i ordered his arrest. The Divisional Court
was of opinion that Qua'niin Fori had used such violence
in having Bruce brought before him that he must pay £30
damages and costs.
Upon the 1st of April, 1881, this judgment was reversed
by the Full Court (Marshall, C.J., and J. W. Smith, Ag.
Judge), whose judgment says, " We are of opinion that the
king, in all that was done, acted within the powers which
have always been recognized and allowed to the Native
Courts, unless those powers are taken away by the Gover-
nor ; and that if he was in fault, it was in not proceeding
further with the case, and inquiring more fully into the
charge against Bruce."
As a criticism upon that judgment, it might be observed
that it only recognized powers in kings and chiefs, which
can be taken away by the Governor; and that, as the
Governor has no power to take away inherent jurisdiction
from a king, that cannot have been the jurisdiction recog-
nized in Quamin Fori's case, and therefore his case cannot
apply to the present one.
Without discussing whether a Governor has power to
FANTI CUSTOMAEY LAWS. 237
take away inherent jurisdiction, and without pretending to
understand what the Full Court meant by the words
" unless those powers are taken away by the Governor," we
cannot help regarding the suggested line of criticism as
unworthy of comment.
Had it not been for the opinion of Bailey, C. J., we
would have entertained no doubt upon the question which
we have discussed. Now that we have considered it from
every possible point of view, we are clear that the Supreme
Court Ordinance, 1876, has in no way impaired the judicial
powers of native kings and chiefs, and, so far as we know,
it has not been suggested that any other Ordinance has
taken them away.
The defendant (appellant) in the present case has
exercised a very ordinary judicial power, and therefore
we think the judgment of the Court below ought to be
reversed and judgment entered for the defendant AcJcinie.
We are not inclined to give him costs, for the impression
made upon our minds is that he had brought this action
upon himself. It must be distinctly understood that there
is to be no imprisonment without an adequate and regular
supply of food, means of washing daily, and ample oppor-
tunities for obeying the calls of nature, being given to
every prisoner.
EBBOE V, ABOMA.
April 19, 1844.
Plaintiff claims from Aboma, as representative ol a
deceased pawn, 3 ozs. 6 acks. of gold, subject to deduction
of 1 oz. already paid by Mrs. F. Smith. Complaint dis-
missed, inasmuch as it appeared that plaintiff had done that
which, by the native laws and customs, he had no right to
do, namely, that he had pawned a person in pawn to him ;
and, moreover, that when he was offered the balance of his
238 FANTI CUSTOMARY LAWS.
claim against the deceased pawn, he had refused the same,
wishing to keep up his claim against the family of the
deceased.
QUASHI OTTOO v, ANOCHIE.
July 22, 1844.
Coram, Maclean.
Plaintiff claims from defendant the sum of 20 ozs. 4 acks.,
being a sum advanced by the plaintiff's uncle for the
redemption of defendant's uncle.
Plaintiff states that while the Assins, to which tribe
defendant belongs, remained under his (plaintiff's) immediate
protection, he abstained from pressing this claim, but that
the Lieutenant-Governor having recently declared the
Assins entirely independent of him, and the whole of the
Assins, including defendant, having solemnly sworn no
longer to acknowledge Ottoo as their feudal superior, he
now brings forward this claim in order to its being
liquidated.
Judgment for plaintiff, 9 ozs.
AGAH AGUAH v. QUAMINA EFFEE.
May 8, 1844.
Witchcraft — Unlawfully charging.
Defendant accused of having charged plaintiff with
practising witchcraft, and with having thereby caused the
death of a child lately deceased, to the great annoyance
and injury to plaintiff. Partially proved; defendant
ordered to pay costs, and fined. Security, that neither
he nor his family shall trouble plaintiff in future under a
penalty of 4 ozs. of gold. Seckie and Appah, securities.
FANTI CUSTOMARY LAWS. 230
QUOW NYAKON v. KOFI SARR.
June 3, 1871.
Before Chalmers, Judicial Assessor.
Liability of Principal to his Surety.
Chiefs : When palaver settled in the country, it is
necessary for a man who is called on to find security, to
find that security required. If he found security, the
security would ask the man what he would gis^e him for
undertaking the whole result of the case. When that is
arranged and the case is gone into, the security would be
liable in the expenses and results of the case. And if
there be debt to be paid by the party, the opposite parties
would look to the security for payment of the debt and
expenses. When case finished in one Court and the party
who found the security was not satisfied and wished to go
elsewhere, it would be necessary for the man who got the
security to consult the surety and say he wished him to
continue his suretyship, and, if he continued, he would still
be liable in the second Court, otherwise he would not. The
amount paid to the surety in return for his obligation
depends on the nature of the case. The amount would be
2, 3, 4 ackies ; in fact, just matter of bargain.
Judgment.
June G, 1871.
Find that the defendant became security for the plaintiff
in proceedings before Chief Amoah at his (plaintiff's)
instance against Yow Accoffie ; and that the plaintiff is
bound to reimburse the defendant for the expenses for
which he became liable in these proceedings; find that
these expenses were of the amount of 12 ackies : further,
the plaintiff engaged to pay 4^ ackies to the defendant in
consideration of his becoming security for him.
Judgment, therefore, for defendant, for 16 1- ackies. No
costs.
240 FANTI CUSTOMARY LAWS.
SAMUEL FERGUSON v. JOS. TURTON.
March 18, 1872.
Before Chalmers, Judicial Assessor.
Current Account — Pass-hooh Debit and Credit Entries — Wrongfal
Dismissal — Yearly Service — Allowance for Palm-oil Leakage.
Judgment.
The plaintiff entered in the employment of the de-
fendants on January 1, 1871, under an agreement, in the
capacity of factor in charge of the factory at Saltpond.
He was supplied with goods and money by the defendants,
and his duty was to dispose of these to the best advantage,
receiving palm-oil and other produce in return. He con-
tinued in this employment till December 5, 1871, when he
was dismissed. During the currency of the employment,
accounts had been kept between the parties, but had not
been brought to any balance. On its termination, the
accounts were made up and balanced. The plaintiff being
dissatisfied with the result arrived at, now sues the
company for various items of credit to which he considers
he is entitled, amounting in aggregate to a sum of
£214 12s. These items it is necessary to consider
separately.
The first claim is for the value of 630 gallons of palm-
oil. The account between Ferguson and the company is
kept by means of a pass-book, on the credit side of which
entries are from time to time made by the company,
representing the various instalments of produce delivered
into the company's possession by Ferguson from the
factory. It appears that when the examination and
balance of the account were being made, the defendants
considered that Ferguson had received credit by these
entries for 630 gallons of oil more than he had trans-
mitted to them, and, in order to correct the balance, they
debited him by cross entry with 630 gallons ; this debit
Ferguson now seeks to expunge.
FANTI CUSTOMARY LAWS. 241
Amongst the books which it was Ferguson's duty to
keep, was palm-oil book, and in this he should have entered
all oil received by him into the factory, distinguishing
what he received in the cause of his own transactions as a
factor (for which alone he was entitled to receive credit),
from that which he received for behoof of the company
from persons who were indebted to them and which he
held as custodian merely. The book ought also to show
quantities of produce delivered by Ferguson into the
possession of the company.
On examination, I find that the actual difference between
the aggregate of the entries of the palm-oil with which the
company have credited Ferguson, and the aggregate of the
delivery items entered by him on his palm-oil book, is
G09^ gallons of credit entries in excess of the delivery
entries. It was explained by the witnesses that the credit
entries were made after Ferguson had made shipments
from the receipts given to him by the shipmaster and other
person who received delivery from him for behoof of the
company. The practice was that these receipts, together
with all Ferguson's books, were sent monthly to the head
establishment at Cape Coast, where the necessary entries
were made, and as soon as that was done the books were
returned into Fergusons custody, the receipts being
retained. It is impossible to check the items by comparison
of the figures in the palm-oil book with the cash-book ;
the cash-book entries being frequently in lump sums, while
the delivery entries are more detailed. Nor can I arrive
at any satisfactory result by stating the delivery and
credit entries in the form of a progressive account. I have
endeavoured to do this, following the dates of shipments
as shown in the oil-book and those of the credits as in the
pass-book. As might be expected, the aggregate of the
shipments is generally in advance of the credits, but some-
times, on the other hand, the credits are largely in advance
of the shipments.
The rule of law which is applicable to the credit entries
R
242 FANTI CUSTOMAEY LAWS.
made by the company in the pass-book is that these entries
are evidence against the company in favour of Ferguson.
But they are not conclusive ; it may be shown by sufficient
evidence that all or any of them are erroneous. If not thus
shown to be erroneous they ought to stand good. Perhaps
it may be supposed that Ferguson's entries in the oil-book
should occupy a similar position as evidence against him
to the effect of limiting the credits to which he may be
entitled. To a certain extent they do bear this force, but
not identically. There is the material difference that the
effect of Ferguson's entries can only be negative, while the
credit entries are positive. The same degree of inference is
not to be drawn from the absence of an item in the oil-
book to what belongs to the insertion by the company of a
credit item in the pass-book.
The probability of the latter having been made erro-
neously, was considerably less than that of Ferguson having
omitted to make an entry of oil to which he was entitled.
Besides this, I am not quite satisfied, on the present evi-
dence, that it was impossible for Ferguson to be entitled to
any credit entry of oil not passing through the Saltpond
factory. There is one item I observed in the pass-book
which apparently did not pass through his hands or come
from the Saltpond factory, and which nevertheless seems
to be a legitimate credit entry. This is under date No-
vember: "291 gallons palm-oil from Mr. C. B. Acquah on
your account — £21 16s. 6d" It is possible that other
similar payments might be discovered as part of larger and
lump payments, if the vouchers had been examined. It
is therefore not enough that there should be an excess of
the pass-book credits over the delivery credits claimed by
Ferguson in the oil-book ; the onus lies on the defendants
to show specifically that there is error in the credits they
have given.
The defendants have pointed to an entry of 608 gallons
under date February 15, and again an identical entry under
date April 11, and they contend that this should be held
FANTI CCSTOMARY LAWS. 243
to be a double entry of the same consignment. There is
but one entry in the oil-book of the shipment of a parcel of "
G08 gallons, but, as I have already noticed, the two sets of
entries not being always counterparts of each other, there
is not much to be inferred from this fact alone. Then the
plaintiff has put in a memorandum dated March 31, 1871,
showing 608 gallons purchased by him with casli as the
return for £55, cash supplied to him by Mr. Capper. It
appears to have been given with a view of showing Fer^
guson what was the balance of cash he owed on that
transaction. From its date and the date of the letter
transmitting it, it plainly belongs to the first parcel of 608
gallons, but standing by itself as it does in the present
evidence, it throws no light on the second entry. Again, if
I am correct as to the payment from Acquah, the amount
over-credited on the Saltpond transactions would be the
utmost only 318 gallons, and if I should disallow the 608
gallons, the credits would be short of the shipments. In
these circumstances I have determined that the most
equitable adjustment I can at present make is to direct,
the debt entry of 630 gallons to be struck out of the
account, that being in any event erroneous. It follows -
that plaintiff's claim to have judgment for the value is
superseded, leaving the proof still open as to the supposed
over-credit of 609 1 gallons.
The second item of demand is 1300 gallons, claimed to
have been shipped by plaintiff, and for which he says he
has received no credit. It is true that there is no credit
entry of this particular item any more than there is of
many other detailed items. But plaintiff' has got full
credit, as is shown by the aggregate results of the accounts
which, in their present position, give him, as I have just
stated, 609^ gallons more than there is any proof of his
having shipped, except the company's own entries in his
favour. This item is therefore disallowed.
The plaintiff next claims three months' salary in respect
of his having been dismissed without notice.
244 FANTI CUSTOMARY LAWS.
Althougli there is not in the agreement any express
stipulation as to the period of its endurance, yet being a
contract for services to be rendered for yearly wages, it is
impliedly a contract for a year ; renewable, of course, by
the consent, express or implied, of parties, but if not so
renewed, coming to its natural termination at the end of
one year from its commencement without notice. Plaintiff
is consequently entitled to salary from the date of his dis-
missal, viz. December 5 to the end of the year or December
31, unless his dismissal was justified. I consider that this
is not established. Some improper message, or some mes-
sage which was understood as improper, was sent by plain-
tiff, but it is not sufficiently instructed that this amounted
to a cause of dismissal. Ao^ain, though it is said that there
was dissatisfaction with the mode in which the plaintiff
carried on his duties, it is not said that he would have
been discharged for these faults ; at least he was not so
discharged. The actual and proximate cause of dismissal
seems to have been that by his arrest and detention in Cape
Coast plaintiff became for the time incapacitated for carry-
ing on the charge of the factory. A disability such as this
being merely temporary would not, any more than a tem-
porary disability from sickness, authorize the employer to
dismiss his servant. It is right to observe that in con-
struing the agreement as for a year, I have done so in the
absence of proof of any local custom in reference to trading
agreements such as the present, which might attach to
them a different significance.
* * * ** *'
Then there are three items of cl^im for oil used in fill-
ing up leakage, amounting together to 207 gallons used in
filling up 112 puncheons. There was no agreement as to
leakage. The evidence as to the practice is rather conflicting.
While the defendants show that it has not been the practice
of the African Merchant Company to allow their factors for
leakage, there is evidence that it is the rule of the other
firms to do so, and, of course, this general practice must
FANTI CUSTOMARY LAWS. 245
re^^ulate in the absence of stipulation. But there is not
evidence of the extent of the leakage which is allowed, and
it is certainly not to be supposed to be indefinite. The
result which I arrive is that leakage should be allowed to
the factor so far as inevitable, but not such as is the result
of careless cooperage or other improper management. I
regret there is little evidence as to what might be taken to
be a reasonable average leakage allowance. As a mean I
shall allow plaintiff to take credit for 84 gallons, being
three-quarters of a gallon on each puncheon.
The next item of claim is for the value of a cask of
tobacco seized by defendants when they took possession of
the Saltpond store upon plaintiff's dismissal. They did so
on the assumption that it was their own property, as they
did not assume that the plaintiff had in their warehouse
any goods for the purpose of trading on his own account,
which it was not intended that he should do. It was
undoubtedly within the spirit of his agreement, and more
distinctly expressed, if need were, in his written instruc-
tions that he should not trade on his own account. There-
fore I do not think that the defendants were in fault in
taking the tobacco. Plaintiff should have accepted it when
oflTered to be returned to him, and if the company have
taken reasonable care of it in the mean time, it will be
sufficient that they now restore it to the plaintiff.
The claim of the plaintiff having been so much reduced,
his costs will be subject to modification.
Judgment for plaintiflT, £20 19s. 4cZ.
246 FANTI CUSTOMAEY LAWS.
ABADIE V. QUASIE OYAM.
April 26, 1872.
Before Chalmers, Judicial Assessor.
For Contempt of King Moguah's Court, to whose Jurisdiction you are
lawfully subject — Native King's Jurisdiction.
In this action the King of Edjumaku, prosecutor, prose-
cutes Oyam for having refused to attend his Court when
summoned ; and at last, when apprehended and brought
there, having made his escape from the King's prison, to
which he was committed on declining to make his defence.
Oyam was a subject of King Moguah; the person with
whom he had the dispute was also his subject ; the matter
of the dispute was of a nature which properly fell within
the King's cognizance. There is no good reason alleged
by the defendant for refusing to obey the summons, or for
refusing to state his case ; and if the matter (had) finished
there, I should have given my decision against the de-
fendant, and ordered him to pay satisfaction of sufficient
amount to Kin^r Mofjuah.
But I find that on defendant's refusal to state his
defence. King Moguah committed the defendant to prison.
It does not appear to me that this was a proper step to
have taken. It would have been sufficient if the King had
proceeded to give judgment by default against the defendant.
This being so, although I think it is right to decide in
King Moguah's favour, because the defendant was clearly
in the wrong in not promptly obeying his summons, I do
not award more than a nominal fine on the defendant. Ho
is fined 4 ackies ; failing payment, he will be imprisoned
with hard labour for fourteen days.
Note. — A king's subject, when summoned in a matter in
which his King has full cognizance, should not refuse to attend.
That is productive of much confusion. But he is not therefore
bound to pay excessive expenses. If the decision is unsatisfactory,
the party deeming himself aggrieved has an appeal to Cape Coast,
FANTI CUSTOMARY LAWS. 247
and the expenses also should be subject to the appeal. What I
have stated applies to the case of persons summoned by the King
of their own district under whom they live ; and I do not say
anything at present as to persons summoned out of their district.
It is a practice which prevails to considerable extent, but it seems
to me to be abusive, and one about which the kings might do
well to enter into some arrangement among themselves. This
last remark does not apply to the present palaver heard by the
King of Anamaboe, which was by arrangement, as it appears,
with King Moguah.
D. P. C.
BEDDOOMASSOO v. JOHN BOSSOO.
August 3, 1844.
Abjuration — Calling Oath.
Defendant accused of going to the house where one of
plaintiff's captains stopped, and calling down fetish to kill
plaintiff, this being considered among the natives a serious
and punishable offence.
Defendant guilty, and fined 4 acks, with costs.
QUACOE BUAFOO, OF AMANTIN v. ENIMIL, KING
OF AMANTIN.
July 4, 1874.
Before Marshall, Judicial Assessor.
Jurisdiction of Kings — Lialility for Besults of Oaths.
Judgment.
In this case, Enimil, King of Eastern Wassaw, is accused
by Quacoe Buafoo, one of his blood relations, of cruelty and
extortion exercised upon him and his nephew.
The defendant being summoned by me to answer this
charge, promised by a letter, dated May 16, to do so in
248 FAXTI CUSTOMARY LAWS.
person, but asked for thirty days' time to put in an appear-
ance. The thirty days elapsed without any further word
from or of him. I again wrote and called upon him to keep
his promise of appearing, but he has not done so. I there-
fore heard the case of the plaintiif in his absence, and now
give judgment upon it.
From the evidence laid before me, it appears that the
defendant accused the plaintiff of practising fetish against
the late King, and by so doing causing his death. He also
made defendant chargeable for an accusation of theft brought
against plaintiff's late mother, which, according to plaintiff's
evidence, was never proved against her, and further, accused
plaintiff of absenting himself from the ceremony of defendant's
being made King, when although, according to plaintiff, the
reason for this was that he was too ill to attend. Defendant
made these accusations against plaintiff the ground for lay-
ing upon him a line so enormous that the chiefs interfered,
and it was reduced to 15 pereguans 6 ackies. To raise this
money plaintiff was forced to pawn six relatives and three
slaves. In addition to this, defendant put plaintiff and his
nephew, who had nothing to do with these matters, in cruel
logs, and kept them so for five days and nights. For one
day the nephew was kept with his hand chained to his foot.
The defendant also swore his oath upon Adjuah Yarkoo, a
wife of the plaintiff, driving her from her husband, forbid-
ding her to give him food, and allowing any one to have
connection with her. This last act is a great aggravation
of the defendant's offence, and I wish to lose no opportunity
of making it known that persons will be always held
responsible for deeds committed under this pernicious
practice of swearing oaths.
I have every wish and intention to uphold the authority
of kings and chiefs when properly exercised, but it is my
duty to protect the people against all cruelty and extortion
practised upon them by their rulers.
The evidence in this case proves defendant to have
used his power and position in exercising both cruelty and
FANTI CUSTOMARY LAWS. 249
extortion upon the plaintiff and his family, bringing misery
and ruin upon them, and causing nine members of it to be
pawned. He has been guilty of breaking his word to this
Court and of disobedience to its order, which is an offence
which cannot be tolerated. The defendant w^as established
on his stool by a proclamation of Governor Sir Garnet
Wolseley, and after receiving large supplies oi: arms and
ammunition he failed to give any assistance in the late war.
And now he stands condemned of cruelty, extortion, and
contempt of the highest native Court in the protectorate.
The Chief of Cape Coast, who sat in the case with me,
informs me that extortion like this is constantly practised
in Wassaw, and asked me to make a severe example of the
defendant for this and for his disobedience to the Court,
and also as a warning to other rulers.
The order of the Court is that the defendant is to refund
to the plaintiff the 29 ozs. 5 ackies = £105 10s. Qd., which
he extorted from him, and that he pay 3 ozs. to the plaintiff
and 3 ozs. to plaintiff's nephew as compensation for the cruel
and barbarous treatment they received, and also that he pay
1 oz. as compensation to Adjuah Yarkoo, besides the costs
of this suit and maintenance for the plaintiff, his wife, and
nephew, at the rate of 5s. a day for the three, commencing
from April 28, until they are enabled to return to their
home, and the defendant is warned against molesting them
again.
Should defendant come to Cape Coast, he is not to be
allowed to leave until this order is obeyed. A copy of this
judgment will V)e sent to his Excellency Captain Strahan,
that he may be acquainted with the behaviour of the
defendant.
250 FANTI CUSTOMARY LAWS.
FULL COURT.
ALAPATIRA v. HALLIDAY; DAVIES, Trustee.*
Lagos, April 20, 1881.
Judgment by Mr. Justice Macleod : —
This case comes on appeal from the Divisional Court of
the Eastern Province. The respondent, who in the Court
below was plaintiff, got judgment in his favour for the
amount sued for with costs, and from that judgment of
July 9, 1880, the defendant now appeals.
The facts of the case are very simple. The cause of
action was a balance of account amounting to £724 Qts. lid.
for goods sold and delivered, alleged to have been due
by the defendant to Mr. J. P. L. Davies in the month
of January, 1876. Mr. J. P. L. Davies, however, was
adjudicated a bankrupt on August 9, 1876, and the plaintiff
in this case was the trustee appointed to take charge of his
bankrupt estate.
* Callendar, Sykes, and Co. v. Colonial Secretary of Lagos and Davies ;
Williams v. Davies (1891), Appeal Cases, 4G0 ; Wheeler's Privy Council
Law, 868.
It was held by the Privy Council, in the Consolidated Appeals, that
the Supreme Court of the Gold Coast Colony had no bankruptcy jurisdic-
tion in 1877, and therefore could not act as an auxiliary to the English
Court under sect. 74 of the Bankruptcy Act of 1869. Held, further, that
the English Bankruptcy Act of 1869 applies to all her Majesty's dominions,
and therefore that an adjudication under that Act operates to vest in the
trustee in bankruptcy the bankrupt's title to real estate, situate in Lagos,
subject to any requirements prescribed by the local law as to the conditions
necessary to effect a transfer of real estate there situate. Per the Court :
It would certainly be a matter for regret if it were found that a person in
quiet possession of land could be expropriated by the State, and could not
get the price of his land except by taking legal proceedings and paying the
costs. Such miscarriages of justice have happened here in earlier times
by the oversight of the Legislature; but when notice was attracted to
them, the law was put on a footing which effectually prevented their
recurrence. Their lordships are glad to find that the law of Lagos is not
such as to prevent justice being done in this respect.
The Colonial Secretary should be charged with the costs of the action
and appeal in the colony.
FANTI CUSTOMARY LAWS. 251
On examination the defendant admitted that in the
month of January, 1876, he did owe this sum to Mr. J. P.
L. Davies, and further stated that since that time he had
paid the whole debt either to Mr. J. P. L. Davies or his
brother Mr. E. A. L. Davies. The plaintiff, however, con-
tended that this was not a valid payment so far as he was
concerned, because it was a payment made to the bankrupt
by a person who at the time of that payment had notice of
an act of bankruptcy committed by the bankrupt and avail-
able against him for adjudication. This contention of the
plaintiff was supported by me in the Court below, and I see
no reason now to change the view which I then formed. It
is true that the defendant on examination denied all know-
ledge of such notice, and this point has been the mainstay
of his counsel in the Appeal Court. But I am satisfied, on
the evidence of Jacob Samuel Leigh, and his clerk John
Payne Jackson, that a copy of notice marked D was served
upon the defendant on the 1st of January, 1S76. Mr. Leigh
tells us that he caused one of these notices to be endorsed to
the defendant, that he sent his clerk to deliver it, and that
the clerk on his return reported to him that he had delivered
it. The clerk himself, Mr. Jackson, corroborates this. He
remembers addressing one of these notices to the defendant,
and he handed it to the defendant himself. On that evidence
I am satisfied that the service did actually take place as
narrated to us by Mr. Leigh and Mr. Jackson. But what
is the effect and value of this service ? The notice is in
English, and the defendant on whom it was served is a
native. There are many things which must be considered in
estimating the value of this service. Though the defendant
can neither write nor read the English language, yet he is
a native of superior intelligence. Ledger C shows that for
fiv^e years the defendant carried on large business transactions
with the bankrupt, and the first entry in the Ledger C shows
a debit balance carried forward from Ledger B amounting
to £293 8s. lid.
The bankrupt is a man who carried on his business, so
252 FANTI CUSTOMARY LAWS.
far as it required to be written, in the English language,
and in the course of the numerous and important transr
actions between the defendant and the bankrupt, many
trade documents must have passed between them. We
cannot ignore the custom of the traders in the country
where we reside.
If a native trader receives a printed or written letter
and does not keep an educated clerk of his own, he gets the
letter interpreted to him. Unless he did so it would be
impossible for him to carry on his trade. Now, I am not
aware that the Bankruptcy Act has laid down any par-
ticular method of service ; on the contrary, it only requires
that the means of knowledge shall be placed in the possession
of the party, and when that has been done the onus of
proving want of notice lies upon the party in whose
possession the means of knowledge are. Well, a copy of
this notice D was put into the defendant's own hands by
Mr. Jackson, just as any other trade document would have
been handed to him, and from the moment that the means
of knowledge were thus put into his power in the usual
way, there fell upon the defendant an onus of proving
actual want of notice, which he has not even attempted
to discharge. He evidently preferred to rely upon a
denial of the receipt of the copy of notice D. Then the
terms of the notice are so simple, that one might almost
suppose they had been framed with special regard to a
savage and untutored mind. A reference to the technical
terms of filing a petition, and an act of bankruptcy followed
by an adjudication, was necessary in the notice; but in
addition to that it conveys a very simple and telling warn-
ing to the defendant. It says in fact, *' You owe Mr. Davies
some money. Do not pay him. If you do pay him, you
run the risk of having to pay over again the same amount."
Far be it from me to say that I am satisfied that the
defendant did actually pay this debt to the bankrupt or
his brother. On the contrary, I have grave doubts respecting
this alleged payment ; but that point it is not necessary for
FANTI CUSTOMARY LAWS. 253
me to express an opinion upon, as will appear further on.
But at any rate the defendant alleges that he did so, and if
he did, he has no one but himself to blame for his con-
temptuous disregard of the simple warning which is so
clearly traced to his possession.
The only point which now remains for consideration is,
whether notice D conveys notice of an act of bankruptcy
available for adjudication. I am very clearly of opinion
that it does.
In that notice Mr. Leigh, who lived in Lagos, intimates
that he has been requested by Messrs. Callendar, Sykes and
Mather of Manchester, to inform the defendant (by endorsa-
tion of defendant's name) that they have been compelled to
file a petition in the London Bankruptcy Court, against Mr.
J. P. L. Da vies.
That intimation cannot refer to a petition of a later date
than the last week of November, for the notice is dated
December 31, 1875, and the information that a petition had
been filed could not have been furnished to Mr. Leigh
within a month after the actual filing. That circumstance
brings the petition and the act of bankruptcy within the
necessary relationship as to date.
That, then, is my view of the important items in this
case, and it is unnecessary for me to determine whether the
defendant actually paid the bankrupt the money for which
he is sued in this action or not, as I am of opinion that it
would not be a good payment as against the bankrupt's
trustee.
These opinions force me to the conclusion that the
decision of the Court below should be adhered to, and the
appeal dismissed.
Judgment by Mr. Justice W. J. Smith : —
The appellant in this case was sued by the trustee in
bankruptcy of J. P. L. Davies for the sum of £724 6s. lid.,
the balance of account for goods sold and delivered.
The defence raised, though informally, was a bond fide
254 FANTI CUSTOMArvY LAWS.
payment to the bankrupt before adjudication, and without
notice of an act of bankruptcy available for adjudication.
At the hearing neither the date of adjudication nor the
date of payment to the bankrupt was proved, but we are
entitled to assume, and, in my judgment, ought to assume
that the payment was prior to the adjudication. There
was no question raised as to the bond fides of the payment
to the bankrupt, and the only question was as to the
receipt by the appellant of notice of an act of bankruptcy
available for adjudication. The Court below held that
sufficient notice had been given to him, and judgment was
accordingly against him.
The only question that we have to consider is that of
the sufficiency of the notice. It is contained in the printed
circular marked " D," dated December 31, 1875, and there
is no doubt that a copy of this circular was served on the
appellant, though he himself did not remember it. The
appellant is a native trader who admittedly cannot read,
and it is the respondent's contention that the mere handing
of this printed circular to a man whom he knew could not
read it, without translating it to him, and without one
word of explanation as to what it was or what it meant, is
a sufficient notice of an act of bankruptcy, so as to deprive
this payment of the protection of sect. 94* of the Bankruptcy
Act, 1869, sub-sect. 1. In this contention I am unable to
concur. In my judgment the handing to a man a circular
printed in a foreign tongue, without calling his attention to
its contents, is not a good notice. It must not be forgotten,
too, that the Bankruptcy Act is not in force in this colony,
and I think some explanation should have been given of
the meaning of this circular, that the English law had,
through some act done by the bankrupt, vested the right
to this money in another person. He would, of course,
learn, if the notice had been read to him, that somebody
was warning him not to pay money to his creditor, and
that, in consequence of something that might happen, he
might have to pay it again to some one in England ; but
FANTI CUSTOMARY LAWS. 255
he would not understand, without explanation, how it was
that money he owed to Davies in Lagos for goods supplied
had become vested absolutely in somebody in England, or
what right the person sending the notice had to give him
the direction he did. It was argued that he should have
obtained the assistance of somebody to translate and
explain the circular to him ; but I see no reason why the
duty of having every printed circular that may be left at
his house translated, should be cast upon him. And while
we protect the interests of the creditors, we must also see
that in a case where payment has been bona fide made to a
bankrupt, in a country where the Bankruptcy Act is not
in force and its provisions unheard of, that the notice of
the act of bankruptcy and its consequences should be
clearly brought home and explained to the person bond fide
making such payment.
The agent of the trustee in bankruptcy might have done
this by taking care that the clerk who took the notice
should explain to the appellant its meaning and its effect,
and so have placed the matter beyond all doubt. He has
not done so, but has contented himself with sending round
a printed circular to a man whom he knew could not read
it ; and for the reasons given above, I am of opinion that
this is not a good notice.
I, therefore, think that the judgment of the Court below
was wrong, and should be reversed.
Judgment by Chief Justice Marshall : —
In this case it is decreed in the Divisional Court that
the appellant should pay to the respondent the sum of
£724 Qs. lid, on the ground that, although he had already
paid this amount to his creditor, Mr. J. P. L. Davies, he
had done so wrongfully and knowing it to be wrong, as
previous to that notice he had received notice in bankruptcy,
which brought to his knowledge that such payment might
be held void.
The main point which the Full Court has to deal with,
25 G FAXTI CUSTOMARY LAWS.
is whether this notice marked " D " sent to the appellant was
a sufficient notice to render the appellant liable to pay
again to Mr. Davies's trustee in bankruptcy the money
which he had already paid to Mr. Davies.
In considering this point, I think we must bear in mind
the peculiar state and position of this settlement.
The Supreme Court of the Gold Coast Colony has not
had jurisdiction in bankruptcy conferred upon it, and the
English Bankruptcy Laws are not in operation here, and
are practically unknown to the native inhabitants. The
protection and assistance given by these laws to persons
unable to meet their liabilities are withheld from them, and
therefore there is all the more reason for being very
cautious and guarded in allowing native traders to become
subject to the penalties of non-compliance with the
provisions and enactments of these unknown laws.
I also think that in weighing the evidence given by the
appellant at the hearing of the cause, we should bear in
mind the disadvantage in which he was placed, and the
great difficulty he must have been in to know what was
the case he had to meet.
He does nob understand English, and was unable, at the
time, to obtain the services of any lawyer to advise or
appear for him. On the other hand, the trustee in bank-
ruptcy, armed with the rights and powers conferred upon
him by the Court of Bankruptcy in England, was repre-
sented by the Queen's Advocate of the Colony. When the
hearing came on, no one was called for the plaintiif to state
and prove his case, but the defendant, the present appellant,
was first called and examined. There is no mention of
cross-examination by the Queen's Advocate, and he appears
to have been examined as an adverse witness when giving
his own evidence. No case had been brought forward for
him to meet, and after he had given his own evidence, and
been subjected to an adverse examination, two witnesses
for the plaintiff Halliday were called to prove that the
notice D had been served upon him.
FANTI CUSTOMARY LAWS. 257
It appears to me that the appellant was at a great
disadvantage in making his defence, and it was only on
the information that the Court below had taken official
cognizance of a communication received from a Court of
Bankruptcy in England that this Court, by allowing the
respondent to put in the order of adjudication in bank-
ruptcy, obtained evidence as to the date of the order of
bankruptcy, and the right o£ Halliday to sue in this Court.
In considering the notice said to have been sent to the
appellant, we have not, in my opinion, to decide whether
it would be a good and sufficient notice in England, but
whether it was for the appellant, a native trader in Lagos,
who cannot read English.
He is a large trader, fully acquainted with all the
ordinary routine of Lagos trade, but that does not include
bankruptcy proceedings. Together with others of Mr.
Daviess debtors he received a general circular, printed in
English, which, if he could have read, or if it had been
interpreted to him, could not, in my opinion, have been
understood by him, and by very few persons in Lagos.
If Mr. Leigh had explained to him, or brought to his
knowledge that a transfer of Mr. Davies's property to
another person was about to be made by a Court in
England, and that the transfer might date from that time
and include his debt, the plaintiff Halliday might have
had a good case against him.
I am of opinion that the notice given to the appellant
was not a sufficient notice to make Alapatira liable to pay
this debt to Mr. Davies's trustee in bankruptcy, as he has
already paid it to Mr. Davies, and that the judgment of the
Court below should be reversed with costs.
Judgment of the Court below reversed with costs, Mr.
Justice McLeod dissenting.
Mr. Moss, agent and solicitor for the respondent, moved
for leave to appeal to the Privy Council.
(Signed) J. Marshall, C.J.
s
258 FANTI CUSTOMARY LAWS.
FLETCHER v. SISARCOX.
October 5, 1883.
Before Macleod, J.
Appeal — Biyht of Appellant — S.C.O. Order liii.
Plaintiff appears and asks leave to appeal. This appli-
cation raises a nice little point, which I am glad to have
the opportunity of considering and deciding.
A right of appeal is given to a defeated litigant when a
decision is given which affects a civil right of £50 or
upwards. If such defeated litigant has not otherwise a
right of appeal, I do not think he can give himself such
right by putting down a random sum in name of damage.
He can only have such right of appeal when his claim can
reasonably be held to be in respect of a civil right of £50
or upwards. In this action plaintiff claimed £100, but
under the circumstances of this case I am very clearly of
opinion that I have given no decision respecting a civil
right which I can reasonably regard as amounting to £50,
and I must therefore refuse leave to appeal.
SWANZY V, DE VEER AND VAN DER PUYE.
Before Macleod, J.
Supreme Court Ordinance Order xlvii., rule 17.
Application for warrant of attachment against the
person of the defendants, returned from December 1, 1883.
Judgment.
December 3, 1883. — Under the judgment in favour of
the plaintiffs, dated August 4, 1883, neither a writ oifi.fa.
nor judgment-debtor summons has been issued, and the
FANTI CUSTOMAEY LAWS. 259
jucl<^ment-creditors propose, as their first step under that
judgment, to arrest the persons of the defendants, and with
that object in view have made the present application.
Against the granting o£ this application there is a
previous decision of this Divisional Court. In a similar
application in causa, Swanzy v. Madden, upon December
23, 1882, I find it laid down by the learned Chief Justice
Bailey (1) that when a party obtains judgment he ought
first to obtain a writ o^ fi. fa. if the judgment-debtor has
property; (2) that if the judgment-creditor has no know-
ledge of any property belonging to the judgment-debtor,
he must take out a judgment-debtor summons; and (3)
that the judgment-debtor cannot be imprisoned unless he
fails to appear or has misconducted himself. I regret to
be under the necessity of expressing my inclination to
think that each of those three propositions is bad in law.
Let me examine them in detail.
First. It is said that if a judgment-debtor has property,
his creditor knowing that fact must first take out a writ of
ji. fa. Where is the authority for that bold assertion ? I
do not find it so laid down in the Supreme Court Ordinance,
1876 ; and, in passing, I may remark that if it were so,
the Judge to whom the application for a writ against the
person is made, would, in this particular case, have none of
that discretion upon which the learned Chief Justice so
strongly discourses. A contrary doctrine has been declared
monstrous, but I must be strangely constituted, for I see
no monstrosity, only common sense. I have said that I do
not find it so laid down. On the contrary, I find a pro-
vision made for what is to happen when a debtor is
imprisoned whose creditor is aware that he has property.
That provision will be found in sect. 17, Order xlvii.,
Schedule ii.. Supreme Court Ordinance, 1876, and the
succeeding section provides that the mere issue of the writ
against the person is not even temporarily to restrain
writs against the property.
Second. It is said that if the judgment-creditor is not
260 FANTI CUSTOMAllY LAWS.
in the knowledge of any property which his debtor has, he
must take out a judgment-debtor summons before he can
proceed further. 'Now, from what source is that dictum
derived ? I have searched through the Supreme Court
Ordinance, 1876, and cannot find there any authority for it.
It comes from the brain of the learned Chief Justice, and
admirable as are the results when that brain is set to work
upon materials existing outside it, yet I cannot recognize that
brain itself as a fountain-head from which flows good law.
Third. It is said that the judgment-debtor cannot be
imprisoned unless he fails to appear in answer to the
summons, or misconducts himself. That is what the learned
Chief Justice says. But the law says differently. Section 5,
Order xlv., Schedule ii., Supreme Court Ordinance, 1876,
says that a decree for money shall be enforced by the im-
prisonment of the party against whom the decree is made,
etc. ; while sect. 7 and following sections of Order xlvii.,
Schedule ii., Supreme Court Ordinance, 1876, provide in
terms an additional imprisonment and punishment for
those judgment-debtors who fail to appear or misconduct
themselves in the terms of those sections, and expressly so
as to state, that the imprisonment and punishment therein
set forth are to be additional in the case of those who have
already been imprisoned under sect. 5 of Order xlv.
If these doctrines enunciated in the case above men-
tioned had been promulgated by the authority of the Full
Court, I would be bound by them, whatever I might think.
But as they have been enunciated by a Court of co-ordinate
jurisdiction, and as they are so manifestly opposed both to
the letter and spirit of the law, I cannot act upon them.
On a review of the whole provisions of the Ordinance, I
am satisfied that imprisonment was intended to be an
effectual handle to make judgment-debtors (who in this
colony have such facilities for concealing their property)
disclose their property, and provision has been made in
sects. 5 and 6 of the Order xlvi. to prevent this power being
used oppressively.
FANTI CUSTOMARY LAWS. 261
Such was the practice which existed when I came to
the colony, nearly four years ago. It was established by
able and eminent judges, and I cannot be a party to its
overthrow.
In this particular case, I think a warrant of attachment
against the persons oF the defendants and judgment-debtors
admirably calculated to further the ends of justice, and I
therefore grant the application and direct the registrar to
issue the writ.
Mr. Williams asked leave to appeal, on the ground that
an order has been given, and also on the ground that a
decision has been given on the practice as to the issue of
writs of execution.
Mr. Bichards referred to Order liii.
By the Court : I do not think that this is a matter in
which I shall give leave to appeal, and I have pointed out
to Mr. Williams how he can bring the matter before the
Full Court. I have not made an order between the parties.
I have simply given an order to the registrar, and the
parties are not supposed to be present, though, at my
request, they have addressed an argument to me. I refuse
leave to appeal.
EILOART V. BREW.
December C, 1883.
Before Hector Macleod, J.
In this action I gave judgment for the plaintiff upon
December 1, 1883.
The defendant has applied for leave to appeal, and I
stayed execution until security had been found to the
satisfaction of the Court.
Such secuiity has now been found, and the plaintiff has
made application to the registrar for the issue of a writ
to attach the person of the defendant. The registrar has
applied to me for directions.
262 FANTI CUSTOM AllY LAWS.
In the case of Swanzy v. Be Veer and another, I had,
on December 3, 1883, under my consideration an applica-
tion for the issue of a similar writ, and as I thought that a
suitable case for the issue of such a writ, I ordered it to
issue, although neither writ o^ fi. fa. nor judgment-debtor
summons had been taken out.
The present application is made under very different
circumstances, for in this case the defendant had mortgaged
to the plaintiff certain property in security for the debt,
and in exercise of the discretion which, I think, vested in
me, I cannot order the issue of a writ to attach the person
of the defendant until the plaintiff has done what he can
tinder the judgment to realize the amount from, at least,
that property of the defendant's property which has been
specially set apart by the defendant for the plaintiff's
security. I therefore direct the registrar not, meantime, to
issue a writ to attach the person of the defendant.
SWANZY V. BREW AND BREW.
January 9, 1884.
Before Hector Macleod, J.
Judgment.
I desire in this application to follow out the principles
which I laid down for my own guidance in the case of
Swanzy v. De Veer and another, upon December 3, 1883,
and subsequently in the case of E'doart v. Breiv, upon
December 6, 1883. The plaintiffs ask me to issue a
warrant for the arrest of both defendants, but the de-
fendant J. H. Brew has voluntarily disclosed in open Court
the names of properties which he says will cover much
more than the judgment debt, and he has stated his
willingness to send a person with the bailiff to point out
FANTI CUSTOMARY LAAVS. 263
his properties. He was further asked to go into the box
and make the same disclosure on oath, but this he refused
to do. That was extremely unreasonable on his part, but
at the same time perfectly competent, and the judgment-
creditors can at any time get the disclosure upon oath by
the issue of a judgment-debtor summons.
In respect of the voluntary disclosure and willingness
to assist on the part of the defendant J. H. Brew, I am not
inclined to order either of them to be arrested until the
results of a writ of ^. fa. upon the motion of the plaintiffs
have been ascertained by the judgment-creditors. I shall
reserve consideration of the application for the warrant to.
arrest when that has been done.
SWANZY V. STANHOPE.
August 11, 1884.
Before Macleod, J.
Mevcantile Custom — Purchase of Produce — Pdlni-Oil and Kernels.
Custom proved. C. W. Burnet : —
As a rule, kernels shipped out of these boxes turn out
40 lbs. to the box, after deduction of tare and draft. Oil
from this coast, I have frequently known, turn out 296
gallons to the ton. If it turns out 305 s:allons to the ton,
I should not charge anything to the factor, but if more I
should. A factor who does his work well ought to lose
nothing if he is not charged anything up to 305 gallons to
the ton.
Thomas Robert Gillet : — There is generally a very
small deficiency in the weight as they turn out in England,
after being calculated as shipped at 40 lbs. to the box. For
example, the deficiency on 17 tons 19 cwts. was 7 cwt. and
3 lbs., that is, when calculated at 40 lbs. a box, and that I
264 FANTI CUSTOMARY LAWS.
consider a fair deficiency; also 12 tons 10 cwts. 19 qrs.
12 lbs., there was a deficiency of 4 cwt. 2 qrs. 1 L lbs. Asa
rule, I calculate 300 gallons of oil to the ton.
Tare is the weisrht of the cask or bao^.
JUDGMEXT.
The present claim for £41 5s. Ilc7. has been resisted as
to items which may be divided into three groups.
First : In the account sued upon, the plaintiffs seek to
charge the defendant with a sum of £8 86. which they say
he wrongly credited himself with duriug the first nine
months of 1882, as subsistence at 2s. 6d. a day while
travelling for the factory. (This is allowed to defendant.)
Third: It was the duty of the defendant to ship to
England for the plaintiffs kernels and oil. To save the
defendant the trouble of weighing the kernels, and in
accordance with the custom of the trade, the defendant
bought the kernels in boxes which contained kernels,
which, after reachini:: Enojland, ouorht to weiojh 40 lbs., and
for each box stated to be shipped the defendant credited
himself. When the turn-out of the kernels in England
was very slightly in excess or very slightly in deficit of the
estimated weight no notice was taken. But when any
considerable surplus turned out the defendant got the
benefit of it, and, after careful consideration, I am unable
to see why he should not bear the loss arising from de-
ficiencies. The same principles apply to the loss on palm-
oil. Therefore, I think the plaintiffs ought to succeed on
their claim for deficiency in kernels and oil, subject to a
deduction in respect of the draft with which the defendant
is charged, for some reason unknown. That deduction I
assess at 4s. 9cZ. Accordingly, I give judgment for the
plaintiffs.
FANTI CUSTOMARY LAWS. 2G5
DAVIS V. JONES.
December 18,1884.
Before Lesingham Batley, C.J.
Slander — Proof of Special Damage.
Mr. Renner for plaintiff; Mr. Niblett for defendant.
I cannot help remarking that in a case of this kind,
when there is no pretence, that the words declared are
even actionable, unless the plaintiff has suffered special
damage, and as there is not a tittle of evidence to show that
such damage had been suffered by the plaintiff"; I say, in
such cases, I cannot help remarking that it would be far
more decorous, if gentlemen of the Bar were to abstain
from appearing in support of actions, which they must
know are not maintainable for a moment.
I observe that various cases were cited by the counsel
for the plaintiff in the cause before the District Com-
missioner, apparently with a view of imposing on his want
of knowledge of law.
The District Commissioner's decision is altered, with
costs.
EFFUA ANNOO v. ABBAGEE AND TWO OTHERS.
December 18, 1884.
Before Bailey, C.J.
Action to claim Damajes for Trespass on Land of Plaintiff's called Man
— PZm, Justification.
Judgment.
There was a monkey who wanted to get some nuts that
were hot and afire ; he got a cat, and used her hands to
pull the nuts out of the fire. The monkey got the nuts,
and the cat burnt her fingers.
26G FANTI CUSTOMARY LAWS.
Anthony and the three chiefs are the monkeys, and you
are the eats, and you have burnt your fingers to the extent
of £1 each.
Judgment : £3 and costs — damages.
QUASIE V. ANSAFU.
July 11, 1885.
Before Hector Macleod, J.
FraH-ice — Ejectment and Trespass — Sheriff's Sah — Certificate of Purchase,
Judgment.
In this action the plaintiff claims £50 damages for
trespass on land called Brahyun or Borah in. The previous
actions regarding this land, of which there appear to have
been several, were heard at Accra, and this one ought to
have been taken there also ; but as all the parties are here,
I have heard the case, as the parties do not object. This is
nominally an action for trespass, but ought to have been for
ejectment, because the plaintiff has never been in possession
of this land. He comes here as purchaser of the right, title,
and interest of Quow Koon in this land Borahin, and sets
forth that he is unable to get possession. He produces the
proper certificate from the Court, and that undoubtedly
entitles him to obtain actual possession of the right, title,
and interest of Quow Koon in the land Borahin. He is
unable to get possession, because Ansafii is in possession.
The plaintiff has not even endeavoured to show that Quow
Koon has any right, title, or interest in this land, and on
plaintiffs own case I would not be able to eject the defendant.
But defendant not only says this land is his, but produces
a certified copy of a judgment of the Chief Justice, which
sets out that, by virtue of previous decisions, this land
Borahin is the property of Ansafu. I have narrated these
facts to show that no injustice is done to the plaintiff when
I dismiss this action with 20s. costs.
FANTI CUSTOMAEY LAWS. 267
DES BORDES v, DES BORDES AND MENSAH.
January 23, 1884.
Before Mr. Justice Macleod.
This petition was resumed from yesterday, and the
Divisional Court of Cape Coast now sat at Elmina for the
purpose of delivering judgment in the presence of Mr.
Williams for the petitioner, and respondent in person.
Judgment.
Macleod, J. : This is a petition by Elizabeth Des Bordes
for divorce from her husband, on the ground of adultery and
cruelty.
The respondent in his answer admitted the adultery,
and he also admits cruelty, which he has failed to justify, or
to show that the petitioner brought it on herself by her own
misconduct. I am therefore prepared to give a decree nisi
for the dissolution of the marriage, provided such a marriage
as this Court can recognize binds the parties to each other.
The marriage was, in 1878, solemnized in a Wesleyan
chapel in Elmina by a Wesleyan minister, after publication
of banns. The Wesleyan minister was not a clergyman of
the Church of England. The Weslieyan chapel was not
registered or licensed as a place where banns may be pub-
lished or marria^res solemnized. There was no reofistrar
present at the marriage. It is therefore evident that if the
Marriage Acts of England are in force in this colony, there
is here no tie of marria^^e for me to dissolve. The Marriao^e
O O
Acts of England may be described as consisting of the 4th
Geo. IV. c. 76; G & 7 Will. IV. c. 85, and the several
amending statutes. The Supreme Court Ordinance, 1876,
has rendered operative in this colony such statutes of general
application as were in force in England upon July 24, 1874.
I have therefore to consider whether the Marriage Acts of
268 FANTI CUSTOMARY LAWS.
England are statutes of general application in the sense of
that Ordinance.
Now, what is meant by *' statutes of general application" ?
That expression cannot mean statutes which apply to the
whole United Kingdom, for this Court constantly enforces
the provisions of statutes which do not apply to Scotland ;
neither can that expression mean those statutes which are
printed under the designation " Public General Statutes,"
for statutes which apply to Scotland alone are among the
** public general statutes;" neither does that expression
include those statutes which apply to the whole of England,
for the Full Court (sitting at Lagos) has decided that the
Bankruptcy Acts of England are not operative here.
The i>Iarriage Acts of England are of general application
when compared with some statutes, and of particular appli-
cation when compared with other statutes ; and I am afraid I
must designate those words " statutes of general application "
as a slovenly expression, made use of by the Legislature of
this colony to save itself the trouble of explicitly declaring
what the actual law of the colony shall be.
I am not aware of anything in the Marriage Acts of
England which makes them of more general application than
the Bankruptcy Acts ; it is my duty therefore to follow the
Full Court (though I do not by any means say that I concur
with the Full Court), and declare that the Marriage Acts of
England are not operative within this colony. The same
Ordinance to which I have already alluded, makes operative
within this Colony the common law of England. There is no
doubt as to what the common law of England was before the
passing of the Marriage Acts to which I have referred. I
have an epitome thereof set forth in the second edition of
Macqueen on the " Law of Husband and Wife " at pages 4
and 5. It is there stated that, according to the common
law of England, a private marriage, that is, a marriage not
celebrated in facie ecclesice, was good only for certain limited
purposes. It did not give the woman the right of a widow
in respect to dower; it did not give the man the right of a
FANTI CUSTOMARY LAWS. 26^
husband in respect of the woman's property ; it did not render
the issue begotten legitimate ; it did not impose upon the
woman the disabilities of coverture, and it did not make the
marriage of either of the parties (living with the other) with
a third person void ; but it had the following effects : (1) the
parties could not release each other from the obligation ; (2)
either party could compel the other to solemnize the marriage
in facie ecclesitc ; (3) if either of the parties cohabited with
another person, the parties might be proceeded against for
adultery ; and (4) if either of the parties afterwards married
with another person, solemnizing such marriage in facie
ecclesice, the same might be set aside even after cohabitation
and after the birth of children. Such, then, was the common
law of England before the passing of the Marriage Acts ; but
that is not the common law which the Ordinance of 1876
made operative within this colony. That Ordinance extends
to this colony only, the common law which was in force in
England until July 24, 1874. But at that date there was,
on the subject of marriage, no common law operative in
England, for it had all been swept away by statutes. This
colony is therefore deprived (1) of the presently existing
Marriage Acts of England, and (2) of the old common law.
Can the parties to this marriage, then, appeal to the
native law and custom of their own country ? Certainly
not ; for by the most unequivocal act of going to the white
man's church to be married, they put native law and custom
from them.
I am thus driven back to first principles. Marriage is
a consensual contract capable of being completed by the
parties without any interpositions of spiritual authority.
The petitioner and the respondent have been joined together
in the strictest society of life till death shall separate, and
unlike other consensual contracts, this contract of marriage
cannot be dissolved by the mere consent of parties. Why ?
simply on the ground of public policy. The colony is young,
and it is the duty of the Court (as far as it comes within its
province) to make the foundations of society strong. This
270 FANTI CUSTOMARY LAWS.
attribute of marriage — its character of indissolubility — has
not, so far as I know, been the creature of legislative enact-
ment in any civilized nation. Just as a fire cannot fail to
give heat, so a contract of cohabitation without the quality
of indissolubility would not be marriage. If such be the
law, and I cannot say that I have ever heard it so expounded
before, I have here before me a marriage good by the law
of the colony, and therefore good all the world over. Once
thus established, the marriage and the parties hereto come
under the operation of the divorce law of England, which by
section 16 of the Supreme Court Ordinance, 1876, is made
operative here. And as I find the adultery and the cruelty
established, I give decree nisi with costs against the
respondent.
APPENDIX,
Opinion on the native tenure on the Gold Coast, copied from
a report published by the Gold Coast Government.
* * ***>:=
2. The subject on which His Excellency requires to be informed
is a large and comprehensive one, and having regard to the
different customs that appear to obtain in different districts,
nothing short of a Commission appointed for this purpose is likely
to furnish full and satisfactory information. Such knowledge as
I possess is derived from cases heard in the Courts, when native
experts are called to expound the law ; and even then the experts
do not always agree. In fact, I have heard it stated on more
than one occasion that pure native law is not always obtainable
in the sea-coast towns, where the natives come in constant con-
tact with European civilization. Still, on the main points, there
appears to be a certain consensus of opinion, in the direction of
which the decisions of the Court have generally proceeded.
3. Land in the colony is distinguished under the following
heads : — Stool land, Family land, and Private land ; and under
these designations all the land in the colony, save what the
Government have from time to time taken for public purposes,
has, according to native law, an owner.
4. By what means property attached to a king or chief's stool
has been acquired is difficult to say, probably by conquest. A
case occurred lately in the Court in which the King of James
Town claimed a large tract of land on the other side of the River
Densu as part of his stool property by right of conquest when the
Accras and Akims fought against and drove away the Akwamus.
In whatever way the property is acquired, it becomes attached to
272 fanti customary laws.
the stool absolutely, the occupant thereof, during his life or good
behaviour, being considered the owner, but with no power of
alienating the property. Such property includes land cleared and
cultivated, waste and forest lands. Each subject of the king or
chief has a right to have allotted to him portion of the stool land
for cultivation. I understand that in some districts there are
what are known as town lands, though attached to a stool, that
is, land where no permission is required to be obtained to work
on, each of the inhabitants of the town having the right to take
possession of and cultivate any portion thereof so long as he does
not interfere with the right of a fellow-townsman. To natives,
other than subjects of the stool, permission may also be granted
to cultivate stool property ; but this permission is granted by the
king or chief with the concurrence of his headmen or councillors.
To obtain permission, rum or sometimes money is given, more or
less as the applicant is not or is subject of the stool, portion of
the produce of the land being from time to time given to the
king or chief, as the case may be. But this partial alienation
vests no right whatever in the cultivator of the soil beyond his
right of tilling the ground. No time is specified as to the dura-
tion of the grant ; but as soon as the grantee ceases to cultivate
the land, it reverts to the stool. Even during the period of
cultivation, should the grantee assert a title to the land in him-
self, he forfeits his right to continue the cultivation, and is at
once ejected from the land.
5. From the fact that property is a source of revenue to the
stool-holder, absolute alienation of stool land is rarely, in the
interior, made, and then under exceptional circumstances, such as
to raise money to pay a stool debt. In these cases the king and
his councillors or headmen are parties to the transaction. No
writing is necessary, and evidence of the transaction is orally
given. Some formalities to be gone through in order to vest the
land in the purchaser are required in some districts, but once the
land is acquired the purchaser takes it absolutely. In the sea-
coast towns, however, an absolute sale of stool property is of more
frequent occurrence, and takes place when the king and his
councillors desire to raise money for their own use. Stool
property may also be mortgaged by the concurrence of the king
or chief and his councillors. Tradition keeps this transaction
alive, and, at any distant period, it can be redeemed ; but till such
redemption takes place, the mortgagee or his representative is
APPENDIX. 273
practically the owner. Of late, however, in imitation of English
law, sales and mortgages of stool property are done by deed. The
leasing of timber and mining rights is of recent growth, and is now
made by deed, which regulates the rights of the contracting parties.
♦Such alienation is unknown to native law, but inasmuch as the
leases are made with the concurrence of persons, who by native
law are empowered to dispose of stool property, the question of
the validity of any of these leases will only arise when a rival
•claimant to the land springs up, which is not unlikely to occur,
owing to the absence of boundary marks between the forest land
of one owner and another.
6. When, however, land is given for cultivation to a native,
and he discovers gold, he is bound to report the same to the
chief or king, and to share with him the find. The proportion
that the king or chief is entitled to receive varies in different
districts.
7. Land given for building purposes reverts to the grantor or
his representative on the happening of one of the following con-
ditions : —
(1) Where the building has fallen into ruins.
(2) Where the grantee disputes the title of the grantor. The
grantee or his successor may, by keeping up the building and
recognizing the right of the landlord, continue indefinitely in
occupation. He pays a certain amount in money and rum for
permission to build, but I am not aware that any rent is reserved.
But land for building purposes is not, as a rule, granted to
strangers.
8. Forest land is also reserved for cultivation, and is from
time to time cleared for this purpose, as the cultivator is obliged
to adopt the shifting system, no means of fertilizing the soil,
beyond allowing it to lie fallow for some time, being known to
the native. I am not aware of any permanent system of culti-
vation by natives.
9. Family property can be traced to individual ownership.
A person being the absolute owner of land — that is, land that
he has himself acquired — has every right to dispose of it, verbally
or by writing, the latter mode formerly in one or two cases, but
now frequently resorted to. Failing this, the land descends
according to the native law of inheritance, and then becomes
family property, and the mode of alienation is the same as that
of the stool property of the chief or king. Family land may also
T
274 FANTI CUSTOMARY LA^'S.
be acquired by purchase by the heads of the family, it being
agreed at the time that the land is intended to be family property,
and when it is desired to erect any building thereon, the members
assist by labour or money, the labour being in some cases the
carrying of swish balls from where made to the building, and this
gives a vested interest in the house to the members so contributing
labour or money.
10. Descent is traced through females. Property acquired
by a man descends to his mother, then to his brothers and sisters
by age. Failing this, to uncles and aunts, then to the eldest
children of the eldest aunt, and so on. As males are preferred,
a woman generally waives her right in favour of the next male
successor, who is placed, with the consent of the family, on the
stool, if any such exists, or otherwise takes charge of the property.
The heir is superseded for just cause, such as drunkenness,
extravagance, imbecility, &c.
11. The son, in the Fanti country, does not inherit his
father's property, but his father may nominate him his heir,
and may by gift, verbal or otherwise, give to him his acquired
property. Children are not considered members of the father's
family, as far as having any right to his property. They belong
to the mother's family, and inherit from the mother's side. Failing
all blood relatives, the domestics of the house succeed by age, I
believe, males being also preferred to females.
12. With regard to family property, where there is a stool to
which it is attached, I understand that the custom at Cape Coast,
Elmina, and Chama is that the stool descends to the son, but the
property of the stool descends as I have before mentioned. I
have not, however, known a case involving these points decided
by any of the Courts.
13. The property of a woman descends to her children, then
to her brothers and sisters by the same mother, and then to the
children of the sisters according to seniority.
H. In the Eastern Province the same rule of succession
prevails, with this difference, that in some parts thereof, that is,
Accra and east of it, childreij of legal marriage, that is, marriage
according to native law, said to be known as the sixth-cloth
marriage, sometimes inherit the property of their father in con-
junction with the heir, and the property cannot be disposed of
without the consent of the children. The mother, it is said, does
not succeed to the property of her son, acquired or inherited ; but
AITENDIX. 275
I confess that I know of no decided case upholding this view,
and I cannot explain the reason for this alleged custom.
15. As to the stool property of a king or chief, the succession
is, in most cases, the same, but in the Eastern Province sons
sometimes inherit the stool and property attached to it. A chief
may, for good reason, be also set aside by his head chiefs or
councillors. He himself may sever his connection with the stool,
and thereby forfeit all right to the property by transferring his
allegiance from his paramount king to another, and going through
the custom of cutting the caul. Till this is done, he is said to
have the animus revertendl, and may return and assume his
position as a stool-holder. This custom obtains only in some
parts of the Fanti country; but opinions differ thereon, sojne
holding that without cutting the caul, the chief forfeits all the
right to his stool and property, if he openly avows his intention of
serving another king, and removes to, and takes up his residence in,
the territory of the king to whom he has transferred his allegiance.
I have the honour to be, Sir,
Your obedient servant,
(Signed) Francis Smith.
To this report is added a minute on land tenure by Mr.
Justice Smith, dated May 22, 1891.
Mr. Justice Smith, to The Colonial Secretary.
(Confidential M.P., 82/91.)
Lands, according to native law, are described as acquired,,
stool, and family, and their modes of alienation vary. As to
acquired lands, the power of alienation by the owner is the same
as of property acquired according to English law, viz. that they
can be disposed of at the will of the owner, the only difference
between the two being, in the modes of conveyance of stool lands,
the holder of the stool exercises a power of alienation or con-
cession, for purposes of habitation or cultivation, to subjects of
his stool. In cases of alienation to strangers, whether of a limited
or absolute character, that is, whether the property passes to the
alienee for a time, reverting to the holder on the happening of
certain events, or absolutely as a purchase, the concurrence of
the head chiefs or councillors of his stool to such alienation is
276 FAXTI CUSTOM AEY LAWS.
indispensable. The concession may be verbal or in writing. In
either mode, whether the concurrence necessary to give validity
to the transaction has been obtained will be matter of evidence*
For a deed passing or dealing with stool property, and executed
only by the stool-holder, may be valid, the deed being made with
the consent and approval of the councillors or head chiefs, though
not appearing as parties themselves to the deed ; for it is only
their concurrence that is necessary, the law imposing no necessity
for the concurrence being given, or appearing, in writing. On
the other hand, a deed purporting to comply with the require-
ments of native law may be worthless, for, as the councillors or
head chiefs are illiterate, their names may be inserted therein
without their concurrence.
With regard to family property the same law prevails, the
head of the family, known as their heir or successor, with the
elders of the family, taking the place of the stool-holder and
his councillors or head chiefs.
(Intd.) F. S.
IT.
Sir, — I have the honour to acknowledge the receipt of Circular
No. 24/95, dated the 22nd ultimo, asking for a report upon the
customs of the Non-Mohammedan African tribes in the Gold
Coast Colony, in regard to the tenure of land.
2. The tribes referred to are numerous, and are spread over
a large extent of territory ; their customs frequently differing as
much as their languages. When questioned as to their customs
they are often suspicious and reticent, or misleading in their
answers. Iii the courts the evidence of so-called experts generally
differs remarkably, and usually according to the interest the
witnesses have in the matter. The decisions of the Courts in
these cases turning upon native customs are often leaps in the
dark. There are, of course, no native records, and the generalities
of casual European travellers are not, so far as I am able to
judge, much to be relied upon. There is scarcely anything that
can be laid down as absolutely of general application, and in the
circumstances it is difficult, indeed it is impossible, to answer
APPENDIX. 277
satisfactorily the questions now put. However, I may say that
from my seven years' connection with the place, from travelling
in different parts of it, from inquiries made from time to time,
and from matters in the Courts and appearing in papers submitted
to me, I have formed certain general impressions in relation to
the subject to be reported upon, which I will proceed to submit
for what they may be worth.
3. It is considered by the natives that all lands, whether
reclaimed or not, are attached to the stools of the different kings
and chiefs, with the exception of the comparatively small portions
detached in manner hereinafter mentioned. There is no land
which is not or has not been so attached. The occupant for
the time being of the stool, so long as he continues to occupy the
same, is practically a trustee of the stool-lands for the common
benefit of those under his authority. Generally, if a person
wishes to have the occupancy of any land for cultivation or for
building purposes, he applies to the stool-holder for an allotment
thereof. The stool-holder consults with the minor chiefs, and if
the proposal is agreed to, the applicant must provide the usual
gifts — in many cases a sheep, some rum, a small sum of money,,
and some white baft for the Fetish. The boundaries of the land,
are defined, and the allottee is put in possession. In the bush
the boundaries are generally fixed by particular trees, by natural
features, such as rivers, streams, or hills, by ant-hills or mounds,,
a path being usually cut from point to point. The land so
allotted is held during the pleasure of the stool-holder, though
the tenant is rarely disturbed, provided that he furnishes to th&
stool-holder a fixed proportion of the produce, and, it may be,
performs certain services. With regard to land for building
purposes, it should be observed that the great majority of
buildings so called are huts with thatched roofs and walls of
bamboo or swish, or a combination of the two, readily constructed
from materials at hand, and costing scarcely anything to speak of.
It is not an uncommon thing to see these huts and even clusters
of them entirely abandoned. In the native towns there are
very few really substantial erections, and such as there are
generally belong to the king or chief and some of the minor
headmen. If a person wishes to acquire an allotment absolutely,
he may do so much in the same way as he acquires the right of
occupancy only. There is, however, a difference in the ceremony.
This time a sheep is killed, and on the land the stool- holder and
278 FANTI CUSTOMARY LAWS.
the allottee take hold of a leaf of some kind and pull it asunder.
One name of this ceremony is "foyibah," and without it a
transfer would not be accomplished. It has l^een considered by
some of the natives that the land should not be parted with in
this way except in serious emergencies, such as the discharge of
stool debts which could not otherwise be paid ; but nevertheless
the practice has gradually become more and more common. The
succession to the property acquired in manner last referred to
would be in accordance with the native custom, to be hereinafter
described. It has not, I think, been common amongst the
natives to make allotments of metalliferous land. They generally
have the right to win gold, out of which a certain proportion
goes to the stool-holder. As to forest land, much the same thing
applies — that is to say, a certain fixed tribute has to be paid out
of anything obtained therefrom. Of comparatively late years,
however, the custom has sprung up of granting long leases in
English form to natives as well as to Europeans, of mining and
timber lands, in consideration generally of a small premium, and
of a fairly high rent when full working operations commence,
and in some cases there is a proviso for re-entry if such working
operations are not commenced within a time limited. I do not
know that there are any lands properly describable as waste lands.
In some instances — not many, I think — there are lands allotted
to the people of particular places, and over these lands the stool-
holder has not the same rights as over land allotted to particular
persons ; but I have no definite information as to the reasons for
and methods of allotment or the conditions thereof. Doubtless
they vary. Stool-holders again sometimes have private lands
previously detached from a stool, and coming to them by succes-
sion. These lands would not go with the stool in the event of
its going to some one who would not, according to native custom,
be the successor to such private lands. The rights of a para-
mount stool-holder over the minor kings and chiefs with regard
to consent, tribute, etc., in relation to land transactions vary, it
seems to me, and I am unable to do more than mention the fact
that rights of the kind exist. Besides the methods of detaching
lands from the stool by some such custom as that called
" foyibah," and the detachment in a way by allotment to com-
munities, it has become a common custom to transfer land
absolutely for a consideration by conveyancing forms.
These conveyances are made at least as frequently to natives
APPENDIX. 279
as to Europeans. Occasionally they are carefully drawn, but not
as a general rule. They are generally held by the Courts to be
valid instruments of title between natives, even if imperfect
according to English law. The principal chiefs and headmen ol
the stool-holder in many cases sign as parties, or testify their
consent by signing as witnesses, the document having first been
interpreted to them. After execution the deed is stamped and
registered, a list of these registered instruments being published
from time to time in the Gazette. The same practice is followed
with regard to leases for terms of years before referred to.
Stamping is necessary for the purpose of putting such documents
in evidence, if necessary. Registration is not compulsory, but
as it gives priority and puts the transaction on record, docu-
ments are generally registered, and they cannot be registered
without first being stamped. Of course there are no native
records.
Mortgage, or rather pledge of land, is a transaction in the
presence of witnesses, the possession of the land pledged being
given to the lender of the money. The amount to be paid for
redemption is ordinarily agreed upon, and as in the mean time
the profits of the land go to the lender, the amount is often
merely that of the advance, or that amount with a comparatively
small addition. Tradition preserves these transactions, and
redemption may take place generations afterwards by and from
any successors in interest.
It may here be observed that there is no prescription by
native law, and it has been held by the Courts that the statutes
of limitation do not apply in matters between natives. There is
also the mortgage in ordinary form, executed, stamped, and
registered in the sama manner as other documents relating to
land. In the large coast towns the land has for the most part
become detached from the stools, and is dealt with by natives
and Europeans according to the methods and forms of English
conveyancing. I think I have now disposed of the first four
questions, and they have been dealt with together, because they
seem to me so intimately connected as to make that the more
convenient course.
4. Succession is traced through females, for reasons which it
is not necessary here to state, but which are commonly under-
stood. Property goes to the mother's sons, according to age ;
failing sons, to her daughters ; failing these, to the mothers,
280 FANTI CUSTOMARY LAWS.
brothers, and sisters ; and these again failing, to the eldest child
of the eldest daughter, always according to age and to males
before females. Entire failure of heirs is extremely rare. There
is a diiference between property acquired and property inherited.
The former can be disposed of out of the usual course of
succession ; the latter must go in course traced through the heirs
of the acquirer. Property acquired by a woman goes to her
children, and, failing those, in course as before mentioned.
Bastardy is a thing not considered or recognized. With regard
to inherited land, the heir becomes the head of the family, and
cannot alienate without the consent of the family ; and the
family, including the mother, has a claim upon him to look after
them to some extent. The heir has to pay half of the funeral
expenses, the other half being divided amongst the relations.
He has also to pay the debts of the deceased. Property given
can be disposed of out of ordinary course. A son cannot come
in for his father's property except by gift, and then the property
must have been acquired by the father. In a few places the
stool descends to the son, but not the property. The foregoing
is given only as a general idea. There are many differences in
the different parts of the country. One leading principle^
however, is fairly universal, that is to say, descent through
females.
5. Native rights and customs in reference to land and to-
succession have constantly been subjects of litigation, and
almost as constantly have been recognized and upheld by the
Courts.
6. As to systems of cultivation, there is practically no per-
manent cultivation in the country. Plantains and cocoanut
trees are set and allowed to grow, and these plantations are, so
to speak, permanent, this being all there is of the kind. Such
system of cultivation as exists is shifting. The occupier of an
allotment cultivates part of it for two or three years, then
another part for about the same time, and so on, not returning
to the first part for at least six or seven years. AVhen he first
begins to cultivate he burns the bush on the ground he intends
to work, clearing and enriching the soil, which becomes ex-
hausted after two or three years, and the same process takes
place on the other portions. By the time the cultivator returns
to the first plot the bush has grown up again, and it is again
burned. The methods are most primitive, as also are the
APPENDIX. 281
implements — generally a cutlass and a hoe. The products are
principally maize, yams, cassada, cocoa, groundnuts, and occa-
sionally rice. So far as I know, there are no methods of
fertilizing the soil or cultivating it other than those above
described.
7. To obtain definite and accurate information on the
different points referred to would necessitate the appointment of
a Commission to take evidence in all parts of the country. The
inquiry would take a long time, but if properly carried out the
results would be most valuable, affording as they would a much
surer foundation in dealing with native affairs than the slender
and imperfect knowledge we now possess.
I have the honour to be, Sir,
Your obedient servant,
(Signed) Bruce Hindle.
The Honourable the Colonial Secretary.
[195954.]
III.
Fantee Chiefs.
(Bond, 6th March, 1844.)
1. Whereas power and jurisdiction have been exercised for
and on behalf of her Majesty the Queen of Great Britain and
Ireland, within divers countries and places adjacent to her
Majesty's forts and settlements on the Gold Coast, we, chiefs of
countries and places so referred to, adjacent to the said forts and
settlements, do hereby acknowledge that power and jurisdiction,
and declare that the first objects of law are the protection of
individuals and of property.
2. Human sacrifices and other barbarous customs, such as
panyarring, are abominations and contrary to law.
3. Murders, robberies, and other crimes and offences, will be
tried and inquired of before the Queen's judicial officers and the
chiefs of the district, moulding the customs of the country to the
general principles of British law.
282 FANTI CUSTOMAKY LAWS.
Done at Cape Coast Castle before his Excellency the
Lieutenant-Governor, on this 6th day of March, in
the year of our Lord 1844.
Their
X Cudjoe Chibboe, King of Denkera ;
X Quashie Ottoo, Chief of Abrah ;
X Chibboe Coomah, Chief of Assin ;
X Gebre, Second Chief of Assin ;
X Quashie Ankah, Chief of Donadie ;
X Awoossie, Chief of Dominassie ;
(Signed) Quashie Ankah ;
X Amonoo, Chief of Annamaboe ;
X .Toe Aggery, Chief of Cape Coast,
marks.
Witness my seal on the 6th day of March, 1844, and the 7th
year of her Majesty's reign.
(Signed) H. W. Hill, Lieutenant-Governor (L.S.).
"Witnesses, and done in the presence of —
(Signed) George Maclean, J.P., and Assessor (S.).
.F. PoGSON, 1st W.I. Regiment (S.), Command-
ing H.M. Troops.
S. Bannerman, Adjutant of Militia and Police
(S.).
Blue book : Africa, Western Coast, p. 419.
IV.
Memorandum explanatory op " Panyarring."
" Panyarring," or " kidnapping individuals," in order to
obtain restitution of goods or money that has been unjustly
withheld, is common amongst the Fantees on the Gold Coast.
If a resident of Anamaboe is indebted to a native of Cape
Coast Town, and will not discharge the demand, or withholds
property improperly, the first native of that place who may fall
into the hands of the creditor is detained by him until the claim
is settled or the property restored, which is often promptly
acceded to, for the family of the man detained immediately
compels the debtor to release their relation by discharging the
APPENDIX. 283
debt. This is attended with considerable expense, and it fre-
quently happened, during the existence of the Slave Trade con-
ducted by the British, that a man so " panyarred " was sold and
carried off the coast before it could be discovered what captain
had made the purchase. In a case of this kind, it brought on a
protracted and expensive palaver, and very frequently terminated
in the sale of an entire family. — Blue Book : Africa, Western
Coast, 1865, p. 437.
V.
Lord Stanley to Lieutenant-Governor Hill.
" Assessors Jurisdiction."
Downing Street, November 22, 1844.
Sir, — I have had under my consideration the correspondence
noted in the accompanying schedule, and of which papers copies
are herewith enclosed, and I have to acquaint you that upon the
Report of the Law otiicers of the Crown, her Majesty has been
pleased to pass an Order in Council, herewith enclosed, under the
Acts 6 and 7 Vict., cc. 13 and 94, appointing her Majesty's
settlement of Cape Coast Castle as a place to which persons coming
within the operation of the last-mentioned of those Acts may be
sent for trial or punishment.
The Order, you will perceive, provides for two distinct classes
of cases. The one, that of persons whom it may be deemed
expedient to send from the neighbouring countries to be tried
within her Majesty's settlement ; the other, that of persons who
may have been tried in the neighbouring countries, but whom
it is considered advisable to send into her Majesty's settlement
for the purpose of undergoing their sentences.
As regards the first class of cases, you will of course bear in
mind, that in any trial which takes place, the provisions of the
6 & 7 Vict., c. 94, applicable to that event, must be strictly
observed; and also, that as the jurisdiction for the trial of
offenders sent under the provisions of the Act is given to the
Supreme Court of the Colony only to which they are sent, that
in the present state of the judicial institutions on the Gold Coast,
such offenders would require to be forwarded thence to Sierra
Leone for trial.
284 FANTI CUSTOMARY LAWS.
For practical purposes, therefore, as yet at all events, this
power is not likely to be of any general utility. The powers,
however, given under the second head will, I apprehend, greatly
facilitate the working of the system which has grown up in
our relations with the tribes surrounding the forts under your
Government.
It being necessary to provide for the appointment of persons
to be specially empowered to exercise the powers conferred by
the different sections of the 6 & 7 Vict., c. 94, I send you
additional instructions, under the sign manual, giving you the
requisite authority, both to act yourself, and to nominate others
for the same purpose, and I have, as you will perceive, taken
the opportunity of providing for Mr. Maclean's absence or
inability to discharge the duties of assessor to the sovereigns and
chiefs of the neighbouring tribes, by making a fresh appointment
to the office, including yourself and others with him, as such
assessors, having power to act either jointly or severally.
Should Mr. Cloustun, the gentleman whom you have ap-
pointed, as reported in your despatch, No. 27 of June 16 last,
to officiate for Mr. Maclean, not be already in the commission of
the peace, or his name not stand first or second upon it, it will
of course be necessary that a new commission should be issued.
I presume that the magistrates and gaoler at the gaol at Cape
Coast Castle are already the persons to whom it appertains to
carry into effect there any sentences which may have been passed
by the Supreme Court at Sierra Leone.
Should that, however, be not the case, appointments to that
effect ought forthwith to be made, and I have instructed the
Governor of Sierra Leone accordingly, it being necessary, under
the 5th section of the 6 and 7 Vict., c. 94, that the persons to
give effect within any colony to sentences passed out of it, should
be "magistrates, gaolers, or other officers to whom it may ap-
pertain, to give effect to any sentence passed by the Supreme
Court, exercising criminal jurisdiction within such colony."
The royal instructions, you will perceive, also provide for the
appointment of persons having the authority to exercise the
powers given by the 6th section of the 6 and 7 Vict., c. 94,
relative to the transportation of convicts ; but you will clearly
understand that, although it has been considered expedient to
provide by the instrument the machinery necessary for bringing
into operation all the powers conferred by the Act, yet that you
APPENDIX. 285
are not to consider yourself at liberty, in any case, to exercise
or permit the exercise of that relative to transportation without
special instructions from the Secretary of State.
Although likewise the instructions, as before observed, provide
for the exercise of the office of assessor by several persons jointly,
as well as by one person, you will not on that account make any
alteration in the practice which has hitherto prevailed of leaving
the duties to be executed by one person.
You will bear in mind that the power of the assessor, in his
judicial capacity, is not derived from either the Acts of Parlia-
ment above referred to, or from the Order in Council ; and
further, that it cannot be exercised by him as such within her
Majesty's dominions. It must be founded on the assent and
concurrence of the sovereign power of the State within which it
is exercised, either express, as in the case of the treaty transmitted
by you in your private and confidential despatch of the 6th of
March last, or implied from long usage, as in the case of the
long and general acquiescence, which can be shown in many
districts, in the authority hitherto exercised by Mr. Maclean.
You will understand that the system upon which Mr. Maclean
has proceeded, in the exercise of judicial powers over the natives,
is to be taken as the guide for the exercise of the powers of
assessor for the future.
It consists, in fact, in combining with an impartial investi-
gation of the cases brought before him, a mitigation of the
severity of the sentences which in such cases would be awarded
by native judges in the event of conviction. I need not there-
fore instruct you to caution the assessor of the necessity for a
lenient exercise of the discretion entrusted to him ; but in the
event of his deeming capital punishment in any case inevitable,
you will instruct him that the execution must be carried into
effect by the native authorities, and take place in the country in
which the offender is tried.
Having thus, as far as possible, brought the very peculiar case
of the jurisdiction exercised among the tribes in the neighbour-
hood of the forts on the Gold Coast within the operation of the
Acts of Parliament referred to in the commencement of this
<lespatch, it only remains for me further to observe that I am
not to be understood as affirming that the exercise of that
jurisdiction is not capable of being justified and maintained
independently of any such express sanction of the Legislature.
28G FANTI CUSTOMAPtY LAWS.
It is a jurisdiction which had its origin in a desire to mitigate,
by the influence of Christianity and civilization, the effisct of
cruel and barbarous customs ; it has been brought into operation
upon a state of society, and under relations to savage tribes,
necessitating a neglect of all technical rules and observances. In
its effects, it has undeniably been the means of insuring justice,
preventing cruelty, and promoting civilization ; and I must guard
myself against being supposed, because I endeavour to give it
the aid of the forms I have adverted to, to assume that the
general principles of the law of England are not comprehensive
enough to allow for the necessities which such a state of circum-
stances as exist on the Gold Coast unavoidably creates, and to
justify those measures by which such necessities, when created,
can alone be adequately provided for.
I have, etc.,
Lieut.-Governor Hill, etc.
(Signed) Stanley.
VI.
Draft of an Order of the Queen in Council for determining the
mode of exercising the power and jurisdiction acquired by
her Majesty within divers countries on the West Coast of
Africa, near or adjacent to her Majesty's Gold Coast Colony.
At the Court at Osborne House, Isle of Wight, the 6th day
of August, 1874.
Present : The Queen's Most Excellent Majesty ; Lord Presi-
dent ; Mr. Secretary Cross ; Mr. Disraeli.
Whereas, by an Act made and passed in the session of Parlia-
ment, holden in the sixth and seventh years of her Majesty's
reign, intituled " An Act to remove Doubts as to the Exercise of
Power and Jurisdiction by her Majesty within divers countries
and Places out of her Majesty's Dominions, and to render the
same more effectual," it was, amongst other things, enacted that
it should be lawful for her Majesty to hold, exercise, and enjoy
any power or jurisdiction which her Majesty then had, or might
at any time thereafter have, within any country or place out of
her Majesty's dominions in the same, and as ample a manner as
if her Majesty had acquired such power or jurisdiction by the
cession or conquest of territory. And whereas by certain Letters
APPENDIX. 287
Patent, under the Great Seal of the United Kingdom of Great
Britain and Ireland, bearing date at Westminster, the 24th day
of July, 1874, in the thirty-eighth year of her Majesty's reign,
her Majesty's settlements on the Gold Coast and of Lagos were
constituted and erected into one colony, under the title of the
Gold Coast Colony, and a Legislative Council was appointed for
the same colony, with certain powers and authority to legislate
for the said colony, as by the said Letters Patent, reference being
had thereto, will more fully appear. And whereas her Majesty
hath acquired power and jurisdiction within divers countries on
the West Coast of Africa, near or adjacent to her Majesty's said
Gold Coast Colony, and it is expedient to determine the mode of
exercising such power and jurisdiction. Now, therefore, it is
hereby ordered, with the advice and consent of her Privy Council
as follows : —
1. It shall be lawful for the Legislative Council for the time
being of the said Gold Coast Colony by Ordinance or Ordinances,
to exercise and provide for giving effect to all such powers and
jurisdiction as her Majesty may, at any time before or after the
passing of this Order in Council, have acquired in the said
territories adjacent to the Gold Coast Colony.
2. The Governor for the time being of the said colony shall
have a negative voice in the passing of all such Ordinances as
aforesaid. And the right is hereby reserved to her Majesty, her
heirs and successors, to disallow any such Ordinances as aforesaid
in whole or in part, such disallowance being signified to the said
Governor through one of her Majesty's principal Secretaries of
State, and also to make and establish from time to time, with the
advice and consent of Parliament, or with the advice of her or
their Privy Council, all such laws or Ordinances as may to her
or them appear necessary for the exercise of such powers and
jurisdiction as aforesaid, as fully as if this Order in Council had
not been made.
3. In the making and establishing all such Ordinances, the
said Legislative Council shall conform to and observe all such
rules and regulations as may from time to time be appointed by
any instruction or instructions issued by her Majesty with the
advice of her Privy Council, and, until further directed, the
instructions in force for the time being as to Ordinances passed
by the said Legislative Council for the peace, order, and good
government of the said Gold Coast Colony shall, so far as they
288 FANTI CUSTOMARY LAWS
may be applicable, be taken and deemed to be in force in respect
of Ordinances passed by the said Council by virtue of this Order
in Council.
4. In the construction of this Order in Council the term
" Governor " shall include the officer for the time being adminis-
tering the government of the said Gold Coast Colony.
And the Right Honourable the Earl of Carnarvon, one of
her Majesty's principal Secretaries of State, is to give the
necessary directions herein accordingly.
(Signed) Arthur Helps.
VII.
The Earl of Carnarvon to Governor Strahan.
Downing Street, August 20, 1874.
Sir, — In my despatch of the 20th instant, I had the honour to
forward to you an order made by her Majesty in Council, which
delegates to the Legislature of the Gold Coast, the exercise by
ordinance or ordinances of such power and jurisdiction as her
Majesty has or may at any time have acquired in the territories
adjacent to the Gold Coast Colony.
2. The Legislature of the Gold Coast settlements has from
time to time enacted ordinances which were intended to take
effect beyond the local limits of the British settlements of the
Gold Coast. Doubts, however, have been entertained as to the
validity and force of such legislation, and in 1855 the law
officers reported that such assumption of authority was not
justified.
3, Her Majesty's Government, having decided to establish a
new colony and Legislative Council for the settlements of the
Gold Coast and Lagos, vesting in that Council the power to
■legislate for the protected territories on the Gold Coast, the law
officers were requested to report upon the subject ; and in
accordance with their opinion, of which I annex a copy for your
private information, the Order in Council already transmitted to
you was passed. By this Order the Local Legislature is (subject
to the conditions and reservations therein specified) clothed with
whatever legislative authority her Majesty has or may hereafter
-claim to exercise on the Gold Coast.
APPENDIX. 289
4. This having been done, it becomes advisable to define as
clearly as may be the extent of her Majesty's power and juris-
diction, so as to prevent misunderstandings in future, and to
enable the Colonial Legislature to know on what subjects it may
properly legislate.
5. I need not here examine in detail the origin and history
of the peculiar jurisdiction exercised by this country in the
protected territories of the Gold Coast. Carried to its highest
development under Governor Maclean, its existence is first
authoritatively recorded and recognized in the Report of the
House of Commons Committee of 1842, which, in recommending
the continuance of the system, suggested that it should be made
the subject of distinct agreement with the native chiefs. That
recommendation resulted in the negotiation with the native chiefs
of the document called the Bond of the 6th of March, 1844, which
is the only document purporting to define the extent of the
Queen's jurisdiction on the Gold Coast in other than strictly
political matters. But that definition, either from being an
inadequate representation of the facts as they then existed, or
from change of circumstances, no longer truly expresses what
her Majesty's Government believe to be the extent and scope
of her Majesty's power.
6. The Bond grants to her Majesty's officers the right to try
and punish crimes and offences and to repress human sacrifices,
panyarring, and other unlawful acts and barbarous customs. It
is silent as to the Queen's right by her officers and delegates to
collect customs, to administer civil justice, to legislate for the
public health, to erect municipalities, to provide for education,
to construct roads and regulate the industrial and social economy
of the Protectorate. On all these matters, the Legislature or
Government of the settlement has, with or without the co-
operation of the native rulers, exercised authority to an extent
Avhich, strictly speaking, could only be justified on the assump-
tion (the justice of which I am satisfied is not open to question)
that these matters have by usage and by the sufferance and tacit
assent of the natives fallen within the province of the Queen's
authority.
7. The necessity of some more adequate definition of the
Queen's authority that the obsolete Bond of 1844 being thus
apparent, it remains to be considered whether that definition
should take the form of a Bond to be negotiated with the chiefs,
U
290 . FANTI CUSTOMARY LAWS.
as in 1844, or a Proclamation emanating from the sole authority
of the Queen.
8. In 1844 the method of proceeding by negotiation was
recommended by obvious considerations of prudence. But in the
thirty years which have since elapsed, the power and resources
of the British Government have been gradually increasing, until,
by the recent victories of the British forces, they have been so
strengthened and consolidated as to render an act of sovereign
power, such as a Proclamation of the Queen, the only appropriate
mode of proceeding for the attainment of the desired object. It
may be added that there are many objections of policy to pro-
ceeding by way of negotiation. It is not for her Majesty to
take as a grant what is already claimed and held as a right ;
whilst, looking to the number of petty chiefs on the coast, and
the obscurity in which their relations with one another are
involved, there would be some danger of not inviting the con-
currence of chiefs who might afterwards allege, and with a certain
show of reason, that their consent was as requisite as that of
others whose co-operation had been asked and given. Besides
this, the Government would be placed in a position of much
embarrassment if any considerable body of chiefs refused their
consent in part or in whole to the proposed treaty.
9. On the other hand, I should be anxious to avoid the risk,
if any, attendant upon this manner of proceeding of alienating
the feelings of the natives, and I am fully alive to the importance
of their willing co-operation in the work of promoting the civili-
zation and prosperity of the Protectorate. The nature of the
proposed terms are such as, if not fully and clearly explained,
might excite the alarm and aversion of the less intelligent rulers,
whilst a too hasty assumption of authority might create a feeling
of discontent, and possibly lead them to seek alliances beyond the
Protectorate with tribes hostile to our power.
10. Before coming to any conclusion as to the best mode of
procedure, I desire to know your opinion on a question which is,
perhaps, as difficult as any that you may be called on to deal
with, and one that demands the exercise of the most delicate
tact and judgment. I enclose a draft of a Proclamation which
I have caused to be prepared for consideration.
11. In defining the nature of the Queen's Protectorate on the
Gold Coast, it may be well also to define and limit the local
extent of that Protectorate.
APPENDIX. 291
12. What may be termed the natural boundaries of the
Protectorate to the north and east are to a great extent marked
out by the course of the Prah and the Volta, and the lagoon
dividing Quittah from the sea ; but considerations connected
with the protection of trade and the collection of revenue may
compel your Government to plant establishments or exercise
jurisdiction in parts of the Ahoonah country lying to the east
of the Volta and behind the lagoon. The question of the
northern limit of the Protectorate towards the Croboe and
Aquamoo country will also call for careful examination in con-
nection with the request of the Aquamoo people to be included
in the Protectorate, recently reported by Dr. Gouldsbury, and
it may be worthy of consideration whether some limitation should
not be put on what are usually regarded as the boundaries of
British jurisdiction in the little-known regions of the north-west.
13. Up to this point I have confined my observations to the
Protectorate adjacent to the Gold Coast settlement ; but ' a
further question of grave importance presses for consideration
with reference to the boundaries of British territory and the
British Protectorate at Lagos, for it will not have escaped your
notice that the language of the Order in Council in effect
delegates to the Local Legislature her Majesty's rights over both
Protectorates. As bearing upon this point, I may refer you to
Lord Kimberley's despatch of April 5, 1873, to Governor Keate.
14. You are well aware that the effect of including, under the
same provisions and procedure, the area of country which has
been called the Protectorate of Lagos, would have to be seriously
considered as possibly involving us in difficulties with the neigh-
bouring nations, which might prove deeply injurious to the
prosperity of that settlement. The history of our relations with
the protected territories of Lagos differs entirely from that of
our relations with the protected territories on the Gold Coast.
Her Majesty's Government have not assumed to so great an
extent at Lagos as at the Gold Coast the direction of political
and other affairs, and the Queen's forces have not at Lagos, as on
the Gold Coast, been associated with the Native Powers in hostile
alliances against a powerful common foe. For these reasons I
am inclined to think that the Queen's authority as a protecting
power need not, under present circumstances, be declared to
extend to the Protectorate of Lagos, as proposed to be defined
in the Draft Proclamation, although, of course, under our treaty
202 FANTI CUSTOMARY LAWS.
engagements, we must continue to exercise a control over the
affairs of that part of the coast, and in some sense to discharge
the functions of a protecting power.
15. I have to request your opinion and criticisms, together
with those of Mr. Chalmers, on the Draft Proclamation, as well
as on the form it should assume, and the territories to which it
should be declared to extend. I shall be glad to receive your
answer as soon as you feel yourself able to come to a conclusion
on the various questions contained in this despatch.
16. If, contrary to my expectations, it should seem desirable
to proceed by treaty engagements with the native chiefs, the
Draft Proclamation, with due alterations of phrase, will probably
suffice as a draft of the bond which those chiefs would be
required to sign. But I have to request that you will apply to
me confidentially for further instructions before taking any open
action in the matter.
17. I need hardly add that, in the mean time, it will not be
desirable for the Legislative Council, unless some very special
emergency should arise, to attempt to exercise the powers vested
in them by the recent Order in Council.
18. There remains the question of the existence of slavery
within the range of the Queen's influence and authority. It is one
surrounded by many and serious difficulties, but it is also one
which affects, by its existence, not only the honour and traditional
policy of this country, but the welfare and good government of
the Gold Coast. It has ever, since I received the seals of this
office, engaged my anxious attention, and though her Majesty's
Government could not consent to have the decision of it forced
upon them, and to be pledged to some precipitate and probably
ill-considered course of action, they have at no time abandoned
the hope and intention of extinguishing an evil which they have
been compelled to tolerate, but in which they have never acquiesced.
The time has now, in my opinion, arrived when at least the
possibility of dealing with this important question may receive a
careful and dispassionate consideration ; and I propose to address
you in another despatch on this subject.
I have, etc.,
(Signed) Carnarvon.
APPENDIX. 293
YIII.
Draft of a Proclamation defining the nature and extent of the
Queen's jurisdiction on the Gold Coast.
Victoria, by the grace of God of the United Kingdom of Great
Britain and Ireland, Queen, Defender of the Faith, to all to
whom these presents shall come, greeting :
Whereas, by an Act of Parliament made and passed in the
session of Parliament holden in the sixth and seventh years of our
reign, intituled " An Act to remove Doubts as to the Exercise of
Power and Jurisdiction by her Majesty within divers countries
and Places out of her Majesty's Dominions, and to render the
same more effectual," it is, amongst other things, enacted that it
is and shall be lawful for us to hold, exercise, and enjoy any
power or jurisdiction which we now have, or may at any time
hereafter have, within any country or place out of our dominions,
in the same and as ample a manner as if we had acquired such
power or jurisdiction by the cession or conquest of territory.
And whereas we have by grant, treaty, usage, sufferance, and
other lawful means acquired, and do hold, exercise, and enjoy
power and jurisdiction in divers countries on the West Coast of
Africa, near or adjacent to our Gold Coast Colony :
And whereas by an Order made by us in Council, bearing date
at Osborne House, on the 6th day of August, in the year of our
Lord one thousand eight hundred and seventy-four, it was
amongst other things ordered that it should be lawful for the
Legislative Council of our said Gold Coast Colony for the time
being by Ordinance or Ordinances to exercise and provide for
giving effect to all such power and jurisdiction as we might at
any time, either before or after the passing of the said Order in
Council, have acquired in the said territories adjacent to the
Gold Coast Colony ;
And whereas the extent and nature of our power and juris-
diction, as now actually holden, exercised and employed by us in
the said territories, have not been anywhere by us fully declared :
And whereas it is expedient for the guidance and information,
am well as of the Legislature of our said Gold Coast Colony as for
that of the native chiefs and rulers living under our protection in
the said territories, that the nature of our power and jurisdiction,
as well as their local limits, be declared by us. Therefore we do
declare as follows : —
294 FANTI CUSTOMARY LAWS.
Our power and jurisdiction which we have acquired as afore-
said extends, amongst other things, to —
I. The preservation of the public peace and the protection of
individuals and property.
II. The administration of civil and criminal justice, includ-
ing :—
(1) The constitution and regulation of a Superior Court of
Justice, such as that which has been hitherto known as the
Judicial Assessor's Court, of District Magistrates' Courts, Native
Courts, and such other Courts as it may from time to time be
deemed expedient to create.
(2) The enactment of laws relating to crimes, wrongs
personal rights, contracts, property rights, and fiduciary relations
similar to those prevailing in our Gold Coast Colony, but framed
with due regard to native law and customs where they are not
repugnant to justice, equity, and good conscience.
(3) The determination of appeals from native tribunals to
magistrates or to some Superior Court.
(4) The apprehension and trial of criminals and offenders of
all kinds in any part of the said territories.
(5) The supervision and regulation of native prisons.
III. The extinction of human sacrifices, panyarring, judicial
torture, and other immoral, barbarous, and cruel customs.
IV. The abolition of slave trading.
"V". Measures with regard to domestic slavery and pawning.
VI. The protection and encouragement of trade and traders,,
including the construction, maintenance, and improvement of
roads, paths, bridges, harbour works, waterways, telegraphs,
and other public works which benefit trade and promote
civilization.
VII. The maintenance of an armed police force for the
preservation of internal order and the prevention of foreign
aggression, and the organization of the military forces of the
native rulers in alliance with her Majesty.
VIII. The settling by the authority of the Governor of our
Gold Coast Colony of disputes arising between different chiefs
and rulers in the said territories.
IX. The promotion of the public health, including the impo-
sition, with the assent of the native chiefs, of sanitary rates in
towns and villages.
X. The establishment of municipalities.
ArrEXDix. 295
XL Public education, including industrial and religious
training.
XII. The raising of a revenue by licences and customs, and
by such direct imposts as the native chiefs and rulers, or a major
part of them, may agree to.
And further. We declare that the undermentioned territories
are those within which at the present time we have power and
jurisdiction as aforesaid.
(List of territories to be inserted by the local authorities in
the first instance.)
IX.
British Charter, providing for the government of her Majesty V
settlements on the Gold Coast and of Lagos ; and constituting
those settlements into a separate colony to be called the Gold
Coast Colony, and providing for the government thereof.
Westminster, July 24, 1874.
"Victoria, by the grace of God of the United Kingdom of
Great Britain and Ireland, Queen, Defender of the Faith, to all
to whom these presents shall come, greeting.
1. Whereas, by certain Letters Patent under the Great Seal'
of Our United Kingdom of Great Britain and Ireland, bearing
date at Westminster the 19th day of February, 1866, in the 29th
year of our reign, provision was made for the government of our
settlements on the West Coast of Africa, as therein is more
particularly described :
And whereas by a Supplementary Commission under the
Great Seal aforesaid, bearing date at Westminster the 8th day of
November, 1872, in the 36th year of our reign, we did empower
our Governor and Commander-in-Chief of our West Africa settle-
ments to grant pardons to offenders in the manner and upon the
terms therein mentioned :
And whereas, by our Commission under the Great Seal afore-
said, bearing date the 25th day of July, 1873, in the 37th year
of our reign, we did constitute and appoint our trusty and well-
beloved George Berkeley, Esquire (now Companion of our Most
Distinguished Order of Saint Michael and Saint George), to be,
during our will and pleasure, our Governor and Commander-in-
Chief in and over our said West Africa settlements ; and whereas
it is expedient that provision should be made for the government
296 FANTI CUSTOMARY LAWS.
of our Settlements on the Gold Coast and of Lagos, apart and
separate from the government of our other settlements in the
West Coast of Africa ;
And whereas, by an Act made and passed in the 6th year of
our reign (cap. 13), intituled " An Act to enable her Majesty to
provide for the government of her Settlements upon the Coast of
Africa and in the Falkland Islands," it was enacted that it should
be lawful for us, by any Commission under the Greal Seal of
our United Kingdom, or by any instructions under our sign-
manual and signet accompanying and referred to in any such
Commission, to delegate to any three or more persons within any
of the settlements aforesaid, either in whole or in part, and
subject to all such conditions, provisions, and limitations, as
might be prescribed by any such commission or instructions, the
power and authority to make and establish all such laws, institu-
tions, and Ordinances, and to constitute such Courts and officers,
and to make such provisions and regulations for the proceedings
in such Courts, and for the administration of justice as might be
necessary for the peace, order, and good government of our
subjects and others within our then present or future settlements
on the said coast.
Now know ye that we do by these our Letters Patent,
under the Great Seal aforesaid, declare our pleasure to be that
our said Letters Patent of the 19th day of February, 1866, our
said Supplementary Commission of the 8th day of November,
1872, and our said Commission of the 25th day of July, 1873,
shall be, and they are hereby revoked so far as regards our said
settlements on the Gold Coast and of Lagos, or any part or parts
thereof ; and we do further declare our pleasure to be that those
settlements shall constitute, and they are hereby erected into a
separate Colony under the title of the Gold Coast Colony.
2. And we do further declare our pleasure to be that our
settlement on the Gold Coast shall, as heretofore, and until
otherwise provided by us, comprise all places, settlements, and
territories which may at any time belong to us in Western
Africa between the 5th degree of west longitude and the 2nd
degree of east longitude. And our settlement of Lagos shall, as
heretofore, and until otherwise provided by us, comprise all
places, settlements, and territories, which may at any time belong
to us in Western Africa between the 2nd and 5th degrees of east
longitude.
APPENDIX. 207
3. And we do further declare and appoint that the govern-
ment of the said colony shall be administered by a Governor duly
commissioned by us on that behalf.
4. And we do further declare our pleasure to be that there
shall be within our said colony a Legislative Council, which shall
consist of our said Governor for the time being, and of such
other persons or officers, not being less than two in number, from
each of our said settlements, as shall be named or designated by
or by virtue of any instruction or instructions, or by any warrant
or warrants to be by us for that purpose issued under our sign-
manual and signet, and with the advice of our Privy Council ; all
of which persons or officers shall hold their places in the said
Council during our pleasure.
5. And we do further, by this our Commission under the
Great Seal of our United Kingdom aforesaid, delegate to the
persons who within our said colony shall compose the Legislative
Council thereof, full power and authority, subject always to such
conditions, provisions, and limitations as may be presented by
any Commission or instructions, to establish such Ordinances not
being repugnant to the law of England, or to any order made or
to be made by us with the advice of our Privy Council, and to
establish such courts and officers, and to make such provisions
and regulations for the proceedings in such Courts, and for the
administration of justice, as may be necessary for the peace, order,
and good government of such colony.
6. And we do further declare our pleasure to be that our said
Governor shall have a negative voice in the passing of all such
Ordinances aforesaid ; and we do also hereby reserve to ourselves,
our heirs and successors, our and their right and authority to
disallow any such Ordinances as aforesaid, in the whole or in
part, such allowance being from time to time signified to him
through one of our principal Secretaries of State, and also to
make and establish from time to time, with the advice and
consent of Parliament, or with the advice of our and their Privy
Council, all such laws or Ordinances as may to us or them
appear necessary for the order, peace, and good government of
our said colony as fully as if these presents had not been
made. And we do further declare our pleasure to be that in the
making and establishing of all such Ordinances, the said
Legislative Council shall conform to and observe all such
rules as may from time to time be directed or appointed by
298 FANTI CUSTOMARY LAWS.
any instruction or instructions issued by us with the advice of
our Privy Council.
7. And we do further declare and establish that the laws now
in force in our said colony shall continue in force as long and
as far only as they are not repugnant to or repealed by any
Ordinance passed by the Legislature of our said colony.
8. And we do further declare our pleasure to be that, for the
purpose of advising our said Governor, there shall be for our said
colony an Executive Council, which shall be composed of such
persons and constituted in such manner as may be directed by
any instructions which may from time to time be addressed to
our said Governor by us under our sign-manual and signet, and
all such persons shall hold their places in the said Council at our
pleasure.
9. And we do further authorize and empower our said
Governor to keep and use the public seal of our said colony for
sealing all things whatsoever that shall pass the said seal, and
we do direct that until a public seal shall be provided for our
said colony, the public seal of our settlement on the Gold Coast
shall be used as the public seal of our said colony for sealing all
things whatsoever that shall pass the said seal.
10. And we do authorize and empower our said Governor to
make and execute in our name and on our behalf, under the said
public seal, grants and dispositions of any lands which may be
lawfully granted or disposed of by us within our said colony,
either in conformity with instructions under our sign-manual
and signet, or in conformity with such regulations as are now
in force, or may be made by him in that behalf, with the advice
of our said Executive Council, and duly published in our said
colony.
11. And we do further authorize and empower our said
Governor to constitute and appoint all such Judges, Commis-
sioners of Oyer and Terminer, Justices of the Peace, and other
necessary officers and ministers as may lawfully be appointed by
us, all of whom shall hold their offices during our pleasure.
12. And we do further authorize and empower our said
Governor as he shall see occasion, in our name and on our behalf,
when any crime has been committed within our said colony, or
for which the offender may be tried therein, to grant a pardon
to any accomplice, not being the actual perpetrator of such
crime, who shall give such information and evidence as shall
APPENDIX. 299
lead to the apprehension and conviction of the principal offender ;
and further to grant to any offender convicted of any crime in
any Court, or before any Judge, Justice, or Magistrate within
our said Colony, a pardon, either full or subject to lawful
conditions, or any respite of the execution of the sentence of any
such offender, for such period as to him may seem fit, and to
resist any fines, penalties, or forfeitures which may become due
and payable to us.
13. And we do further authorize and empower our said
Governor, upon sufficient cause to him appearing, to suspend
from the exercise of his office within our said colony any person
exercising the same under or by virtue of any Commission or
Warrant, granted or to be granted by us in our name or under
our authority, which suspension shall continue and have effect
only until our pleasure therein shall be known and signified to
him. And we do hereby strictly require and enjoin him, in
proceeding to any such suspension, to observe the directions in
that behalf given to him, by any instructions under our sign-
manual and signet as may be hereafter addressed to our said
Governor for the time being.
14. Our will and pleasure is, and we do hereby direct that,
in the execution of this our Commission, and in the exercise of
the command hereby vested in our Governor for the time being,
he be resident in our settlement on the Gold Coast, or at such
place or places in the territories adjacent thereto as may from
time to time be appointed for the residence of our said Governor,
except when the interests of our service may render his presence
desirable in our settlement of Lagos.
15. And whereas it is necessary that provision be made for
the execution of this our Commission in the event of the death
or incapacity of our said Governor, or of his removal from his
command, or of his absence from the limits of his said govern-
ment : Now, therefore, we do further declare our pleasure to
be that, in any such event as aforesaid, all and every the powers
and authorities hereby vested in him shall be, and the same are
hereby vested in such person as may be appointed by us and
our sign-manual and signet, to be our Lieutenant-Governor of
our said colony, or if there shall be no such Lieutenant-Governor
therein, such person or persons as may be appointed by us under
our sign-manual and signet to administer the government of our
said colony, and in case there shall be no such person or persons
^00 FAXTI CUSTOMAllY LAWS.
within our said colony so appointed by us, then is the person for the
time being administering the government of our said settlement of
Lagos, >yho shall for such time as he administers the government
of our said colony, be called the Administrator of the Gold Coast
Colony. Provided always, and we do further declare our pleasure,
to be, that our Governor for the time being, during the period
of his passage by sea from either of the settlements aforesaid to
the other of the said settlements, or while visiting or residing
at any place in any of the territories adjacent thereto, shall not,
for any of the purposes aforesaid, be considered as being absent
from the limits of his said command.
16. And we do further declare and direct that, during his
absence from our said settlement on the Gold Coast, but while
he is within the limits of his said command as aforesaid, our
Governor may, if he think fit, appoint some person to act as
his deputy in administering the government of our said Gold
Coast settlement, upon such terms and conditions, and for such
time, as he may think desirable for the good government of our
said settlement ; and all or such of the powers and authorities
aforesaid as our said Governor in his discretion shall from time
to time think it necessary or expedient to assign to such deputy
shall, so far as the same shall be exercisable within such settle-
ment, be vested in such deputy.
17. And we do further declare that so long as our said
Governor, or (as the case may be) Lieutenant-Governor, or
Administrator of the Gold Coast Colony, shall be absent from
our settlement of Lagos, all and every the powers and authorities,
except the powers of suspension and pardon, hereby vested in our
said Governor, and so far as the same shall be exercisable within
such settlement, shall be vested in such person within the same
as may be appointed by us by warrant under our sign-manual
and signet to administer the government thereof; and in case
there shall not be within such settlement any such Administrator,
then we declare that the said powers and authorities shall, in our
said settlement of Lagos, be vested in such person, and upon such
terms and conditions, and for such time, as our said Governor,
Lieutenant-Governor, or Administrator of our Gold Coast Colony,
as the case may be, shall provisionally from time to time appoint,
subject to our approval. And we do further declare and provide
that the officer for the time being administering the government
of our said settlement of Lagos shall, in the discharge of such his
APPENDIX. 301
office, conform to and observe such instructions as shall, for that
purpose, be addressed to him by our said Governor in the execu-
tion of this our Commission ; subject, nevertheless, to all such
rules and regulations in that behalf as may from time to time be
contained in any instructions under our sign-manual and signet,,
addressed to our Governor for the time being of our said Gold
Coast Colony.
18. And we do further direct and enjoin that this our Com-
mission shall be read and proclaimed within our said respective
settlements on the Gold Coast and of Lagos, and that a tran-
script thereof shall be deposited and duly recorded in our said
settlements, this our original Commission being preserved within
our said settlement on the Gold Coast.
19. And we do hereby require and command all officers, civil
and military, and all others the inhabitants of our said colony, to
be obedient, aiding and assisting unto our said Governor for the
time being, and to the officer appointed to administer the govern-
ment of our settlement of Lagos, in the execution of this our
Commission, and of the powers and authorities herein contained.
20. And we do hereby reserve to ourselves, our heirs and
successors, full power and authority from time to time to revoke,
alter, or amend this our Commission as to us or them shall seem
meet.
In witness whereof we have caused these our Letters to be
made patent. Witness ourself at Westminster, the 24th day of
July, in the thirty-eighth year of our reign.
By warrant under the Queen's sign-manual.
C. ROMILLY.
X.
BRITISH LETTEBS PATENT, constituting tie office of Governor
and Commander-in-Chief of the Gold Coast Colony, and pro-
viding for the government thereof Westminster, January ISth,
1886.
Victoria, by the grace of God of the United Kingdom of Great
Britain and Ireland, Queen, Defender of the Faith, Empress of
India : To all to whom these presents shall come, greeting.
1 . Whereas our Gold Coast Colony, as now constituted, com-
prises our settlements on the Gold Coast and at Lagos, lying
302 FANTI CUSTOMARY LAWS.
between the fifth degree of west longitude and the fifth degi'ee of
east longitude : And whereas by Letters Patent, under the Great
Seal of our United Kingdom of Great Britain and Ireland, bear-
ing date at Westminster the 22nd day of January, 1883, we did
constitute the office of Governor and Commander-in-Chief of our
Gold Coast Colony, and did provide for the government of
our said colony : And whereas we are minded to separate the
government of our settlement at Lagos from the government of
our settlements on the Gold Coast, and to make further provision
for the government of our said settlements on the Gold Coast :
Now know ye that we do, by these presents, revoke and determine
our said Letters Patent of the 22nd day of January, 1883,
but without prejudice to anything lawfully done thereunder :
And further know ye that we do, by these presents, order and
declare that our Gold Coast Colony shall henceforth consist of
our settlements on the Gold Coast as hereinafter described, and
that there shall be a Governor and Commander-in-Chief in and
over our Gold Coast Colony, and that appointments to the said
office shall be made by Commission under our sign-manual and
signet.
2. Our Gold Coast Colony (hereinafter called the colony)
shall, until we shall otherwise provide, comprise all places, settle-
ments, and territories, belonging to us on the Gold Coast in
Western Africa between the fifth degree of west longitude and
the second degree of east longitude.
3. We do hereby authorize, empower, and command our said
Governor and Commander-in-Chief (hereinafter called the Gover-
nor) to do and execute all things that belong to his said office,
according to the tenor of these our Letters Patent and of such
Commission as may be issued to him under our sign-manual and
•signet, and according to such instructions as may from time to
time be given to him under our sign-manual and signet, or by
our order in our Privy Council, or by us through one of our
principal Secretaries of State, and to such laws as are now or
shall hereafter be in force in the colony.
4. And we do by these our Letters Patent declare our will and
pleasure as follows : —
5. Every person appointed to fill the office of Governor shall,
with all due solemnity, before entering on any of the duties of his
office, cause the Commission appointing him to be Governor to be
I'ead and published at the seat of Government on the Gold Coast,
APPENDIX, 303
in the presence of the Chief Justice, or of some other judge in the
Supreme Court, and of such members of the Executive Council of
the colony as can conveniently attend, which being done, he shall
then and there take before them the Oath of Allegiance, in the
form provided by an Act passed in the session holden in the
thirty-first and thirty-second years of our reign (cap. 72),
intituled "An Act to amend the Law relating to Promissory
Oaths," and likewise the usual oath for the due execution of the
office of Governor, and for the due and impartial administration
of justice, which oaths the said Chief Justice or judge, or, if they
be unavoidably absent, the Senior Member of the Executive
Council then present, is hereby required to administer.
6. Tho Governor shall keep and use the public seal of the
colony, for sealing all things whatsoever that shall pass the said
seal ; and, until we shall otherwise direct, the public seal hitherto
used for our Gold Coast Colony aforesaid shall be used as the
public seal of the colony.
7. There shall be an Executive Council for the colony, and
the said Council shall consist of such persons as we shall direct
by instructions under our sign-manual and signet, and all such
persons shall hold their places in the said Council during our
pleasure.
8. There shall be a Legislative Council in the colony, and the
said Council shall consist of the Governor and such persons, not
being less than three at any time, as we shall direct by any
instructions under our sign-manual and signet, and all such
persons shall hold their places in the said Council during our
pleasure.
9. In pursuance of the powers vested in us by an Act of the
Imperial Parliament, passed in the sixth year of our reign (cap.
13), intituled " An Act to enable her Majesty to provide for the
Government of her Settlements upon the Coast of Africa and in
the Falkland Islands," we do hereby commission the persons who
shall from time to time compose the said Legislative Council, and
we do hereby delegate to them full power and authority, subject
always to any conditions, provisoes, and limitations prescribed by
any instructions under our sign-manual and signet, to establish
such Ordinances, not being repugnant to the law of England,
and to constitute such courts and officers, and to make such pro-
visions and regulations for the proceedings in such Courts, and
for the administration of justice, as may be necessary for the
304 FANTI CUSTOMARY LAWS.
peace, order, and good government of the colony. The Governor
shall have a negative voice in the making and passing of all such
Ordinances.
10. We do hereby reserve to ourselves, our heirs and suc-
cessors, full power and authority, and our and their undoubted
right to disallow any such Ordinances, and to signify such dis-
allowance through one of our principal Secretaries of State.
Every such disallowance shall take effect from the time when
the same shall be promulgated by the Governor in the colony.
"VVe do also reserve to ourselves, our heirs and successors, our
and their undoubted right, with the advice of our or their Privy
Council, from time to time to make all such laws or Ordinances
as may appear to us or them necessary for the peace, order, and
good government of the colony.
11. In the making of any Ordinances the Governor and the
said Legislative Council shall conform to and observe all rules,
regulations, and directions in that behalf contained in any in-
structions under our sign-manual and signet.
12. The Governor, in our name and on our behalf, may make
and execute, under the public seal, grants and dispositions of any
lands within the colony which may be lawfully granted or dis-
posed of by us : Provided that every such grant or disposition
be made in conformity either with some law in force in the
colony, or with some instructions addressed to the Governor
under our sign-manual and signet, or through one of our principal
Secretaries of State, or with some regulation in force in the
colony.
13. The Governor may constitute and appoint all such judges,
Commissioners, Justices of the Peace, and other necessary officers
and ministers, as may be lawfully constituted, or appointed by
us, all of whom, unless otherwise provided by law, shall hold
their offices during our pleasure.
1 4. The Governor may, upon sufficient cause to him appearing,
suspend from the exercise of his office any person holding any
office within the colony, whether appointed by virtue of any
Commission or Warrant from us or in our name or by any other
mode of appointment. Every such suspension shall continue and
have effect only until our pleasure therein shall be signified to-
the Governor. In proceeding to any such suspension, the
Governor is strictly to observe the directions in that behalf given
to him by any instructions as aforesaid.
APPENDIX. 305
15. When any crime has been committed within the colony,
or for which the offender may be tried therein, the Governor
may, as he shall see occasion, in our name and on our behalf,
grant a pardon to any accomplice in such crime who shall give
such information as shall lead to the conviction of the principal
offender, or of any one of such offenders, if more than one ; and
further, may grant to any offender convicted in any Court, or
before any judge or other magistrate, within the colony, a
pardon, either free or subject to lawful conditions, or any re-
mission of the sentence passed on such offender, or any respite
of the execution of such sentence, for such period as the Governor
thinks fit, and may remit any fines, penalties, or forfeitures due
or accrued to us. Provided always, that the Governor shall in
no case, except where the offence has been of a political nature
unaccompanied by any other grave crime, make it a condition of
any pardon or remission of sentence that the offender shall be
banished from or shall absent himself or be removed from the
colony.
16. Whenever the office of Governor is vacant or if the
Governor become incapable or be absent from the colony, our
Lieutenant-Governor of the colony, or if there be no such officer
therein, then such person or persons as we may appoint under
our sign-manual and signet, and in default of any such appoint-
ment the Senior Civil Member of the Executive Council, shall,
during our pleasure, administer the government of the colony,
first taking the oaths hereinbefore directed to be taken by the
Governor and in the manner herein prescribed, which, being
done, we do hereby authorize, empower, and command our
Lieutenant-Governor, or any other such Administrator as afore-
said, to do and execute, during our pleasure, all things that
belong to the office of Governor and Commander in Chief, accord-
ing to the tenor of these our Letters Patent, and according to
our instructions as aforesaid, and the laws of the colony.
17. In the event of the Governor having occasion at any
time to visit any territories adjacent to the colony, in pursuance
of any instructions from us, or through one of our principal
Secretaries of the State, he may by an instrument under the
public seal of the colony appoint any person or persons to be his
deputy or deputies within any part of the colony, and in that
capacity to exercise, during his pleasure, such of the powers
hereby vested in the Governor, except the powers of suspension
X
306 FANTI CUSTOM;! AEY LAWS.
and pardon, as the Governor shall think fit to assign to him or
them. The appointment of such deputy or deputies shall not
affect the exercise by the Governor himself of any of his powers
or authorities. Every such deputy shall, in the discharge of his
office, conform to and observe all such instructions as the
Governor shall address to him for his guidance.
18. And we do hereby require and command all our officers
and ministers, civil and military, and all other the inhabitants
of the colony, to be obedient, aiding and assisting unto the
Governor and to such person or persons as may, from time to
time, under the provisions of these our Letters Patent, ad-
minister the government of the colony.
19. In the construction of these our Letters Patent, the term
"the Governor," unless inconsistent with the context, shall in-
clude every person for the time being administering the govern-
ment of the colony.
20. And we do hereby reserve to ourselves, our heirs and
successors, full power and authority from time to time to revoke,
alter, or amend these our Letters Patent as to us or them shall
seem fit.
21. And we do direct and enjoin that these our Letters
Patent shall be read and proclaimed at such place or places
within the colony as the Governor shall think fit.
In witness whereof we have caused these our Letters to be
made patent. Witness ourself at Westminster, the 13th day of
January, in the 49th year of our reign.
By warrant under Queen's sign-manual,
(Signed) Mum Mackenzie.
(Hertslet's " Commercial Treaties.")
XL
Treaty of Friendship and Protection made at Prahsue this
eighteenth day of October, one thousand eight hundred and
ninety-five, between her Most Gracious Majesty Victoria, Queen
of Great Britain and Ireland, Empress of India, etc., her heirs
and successors, by her subject Captain Donald William Stewart,
an officer in the Civil Service of the Gold Coast Colony, acting
under instructions received from his Excellency William Edward
AITENDIX. 307
Maxwell, also a subject of her Majesty, Companion of the Most
Distinguished Order of Saint Michael and Saint George,
Governor and Commander-in-Chief of the Gold Coast Colony on
the one part, and the king, chiefs, and principal headmen of the
country of Adansi on the other part.
Whereas Kweku Inkansa, king of the country of Adansi, and
the chiefs and principal headmen of that country, for and on
behalf of themselves, their heirs, successors, and people, have
presented to the Governor of the Gold Coast Colony a request
that their country should be placed under the protection of
Great Britain, and have agreed to enter into a treaty with her
Majesty the Queen of Great Britain and Ireland, Empress of
India, etc., her heirs and successors, by the said Captain Donald
William Stewart, acting for that purpose for the said Governor.
Now, therefore, Kweku Inkansa, King of Adansi, and the
chiefs and principal men of that country, whose names are
hereinafter signed to this treaty, for themselves, their heirs, and
successors, and the people of Adansi on the one part, and his
Excellency William Edward Maxwell, Companion of the Most
Distinguished Order of Saint Michael and Saint George, Governor
and Commander-in-Chief of the Gold Coast Colony, a subject of
and representing her Most Gracious Majesty Victoria, Queen of
the United Kingdom of Great Britain and Ireland, Empress of
India, etc., her heirs and successors, by Captain Donald William
Stewart, a subject of her Majesty (acting for the Governor), on
the other part, do hereby enter into this treaty containing the-
following Articles : —
Article !.■
The king of the country of Adansi for himself and his lawful'
successors, together with the chiefs and principal men of the
country of Adansi, whose names are hereinafter signed and seals
affixed, for and on behalf of themselves and their successors, and
people of Adansi, hereby place themselves under the protection of
Great Britain, declaring that they have not entered into any
treaty with any other foreign power.
Article II.
Her Majesty's subject, the Governor of the Gold Coast
Colony, for and on behalf of her Majesty the Queen of Great
308 TANTI CUSTOMARY LAWS.
Britain and Ireland, Empress of India, etc., her heirs and
successors, hereby takes the country of Adansi under the pro-
tection of Great Britain.
Article III.
It is hereby agreed that the king, chiefs, and principal men,
together with the other people of Adansi, will not enter into any
war or commit any act of aggression on any of the chiefs border-
ing on their country by which the trade of the country shall be
interrupted, or the safety and prosperity of the subjects of her
Majesty the Queen of England and Empress of India shall be
lost, compromised, or endangered, and that the said king, chiefs,
and principal men of Adansi hereby undertake to refer to the
Governor of the Gold Coast Colony, acting on behalf of her
Majesty, for friendly arbitration, any trade or other quarrels in
which they may become involved before actually entering upon
hostilities.
Article TV.
Should any difference or dispute accidentally arise between
the King of Adansi and any of his chiefs and principal headmen,
or between any of the chiefs and principal headmen, it shall be
referred to the Governor of the Gold Coast Colony, or to the
nearest British Authority, for the time being, whose decision shall
be final and binding upon all parties concerned.
Article Y.
British subjects shall have free access to all parts of Adansi,
and shall have the right to build houses and possess property
according to the law in force in the Gold Coast Colony; and
they shall have full liberty to carry on such trade or manufacture
as may be approved by any officer appointed for the purpose by
her Majesty's Government, and should any difference arise between
the aforesaid British subjects and the king, chiefs, and principal
headmen of the country of Adansi as to the duties or customs to
be paid to the said king, chiefs, or the principal headmen of the
towns in that country by such British subjects, or as to any other
matter, that the dispute shall be referred to the officer mentioned
in Article lY., whose decision in the matter shall be binding and
APrENDIX. 309
final, and that the king, chiefs, and principal headmen of Adansi
will not extend the rights hereby guaranteed to British subjects
to any other persons without the knowledge and consent of such
officer.
Article VI.
In consideration of the protection guaranteed on the part of
Great Britain to the king, chiefs, and principal headmen and
people of Adansi, they hereby bind themselves, their heirs and
successors, to keep their main roads in good order, that they will
encourage trade and give facilities to traders, and will not cede
their territory to, or accept a protectorate from, or enter into
any agreement, arrangement, or treaty with, any other foreign
power except through and with the consent of the Government
of her Majesty the Queen-Empress.
Article VII.
The Government of her Majesty the Queen-Empress will not
prevent the King of Adansi, or his chiefs, and principal headmen
and their lawful successors from levying customary revenues
appertaining to them according to the laws and customs of their
country, nor in the administration thereof; and her Majesty's
Government will respect the habits and customs of the country,
but will not permit human sacrifices; and slave dealing,* when
brought to the notice of the Government, will be punished
according to the laws of the Gold Coast.
Article VIII.
This treaty shall come into force from the date hereof, but
power is expressly reserved to her Majesty the Queen-Empress
to refuse to approve and ratify the same within one year from
the date hereof. In witness whereof the parties to this treaty
have hereunto set their hands and affixed their respective seals.
Done in triplicate at Prahsue, in the country of Assin, this 18th
* Extract from report of Captain Stewart and Mr. Vroom, October 2G,
1895.
" The treaty in triplicate we beg to attach. The Adansis objected
very strongly to the clause in the treaty with reference to slave-dealing.
However, notwithstanding that, they signed the treaty willingly."
310 FANTI CUSTOMARY LAWS.
day of November, in the year one thousand eight hundred and
ninety-five, in the fifty-eighth year of the reign of her Majesty
the Queen-Empress.
Names of signatories. Their marks and seals : —
Harks. S'-al.
1. Kweku Inkansa, King of Adansi X „
2. Kofi Kwedu, War Chief of Adansi X ,,
3. Kojo Gimma, Chief of Ayowasi X ,,,
4. Kweku Ashanti, Chief of Edubiasi X ,,
5. Akwesi Fori, Chief of Dompoasi x „
6. Kweku Af uakwa, Chief of Ekrofrome, repre-
sented by Yow Yamua X ,,
7. Yaw Apia, Chief of Akrochire X ,,
8. Kwabina Kwantabissa, Chief of Odumasi X ,,
9. Kweku Wia, Chief of Kwisa X „
10. Kwami Iduo, Chief of Brobidiasi X „
11. Kwami Essitii, Chief of Abejimu X „
12. Kwami Apeajo, represented by You Simpon,
of Adomemu X ,,
13. Kwabina Chiadi, Chief of Eginasi X „
14. Kwesi Buabin, Chief of Medomma X „
15. Kofi Ammua, represented by Se-Kojo of
Kianbusu X ,,
Donald William Stewart, Captain,
'Travelling Commissioner, an officer in the Civil Service of
the Gold Coast Colony, for and on behalf of William
Edward Maxwell, Governor of the Gold Coast Colony.
(Seal) Signed, sealed, and delivered in our presence, the same
baving been first read over and interpreted to the king, chiefs,
and people, who seemed perfectly to understand the meaning,
conditions, and scope of the foregoing treaty.
Hk. Vroom, District Commr.
J. H. Cramer, Captain.
R. A. Irvine, Captain.
M. Hawtrey, Captain.
K. F. T. Buee, Ass. Col. Surgeon.
Blue Book [C. 7917], February, 1896.
APPENDIX. 311
XII.
Deed of Conveyance in the Fanti Language.
Ahyiemdzi-Wuma iyi wo-aye nu wo Onumahu wo busum o-tsia
esid (June) ni da o-tsia 10 wo afi 1903 numu A.B. onyi D.F. hon
nyina wofi Nhuhem wo Isim (Axim) afam wo-gyina ma honara
honhu nna su wo-gyina ma hon ebusuia odzikor iyi wo-fre hon
Atonfunu wo afa na onyi Koji Mensa a wo-fi * Selcunde odzikor
iyi wo-fre nu f Nya-Orito-iyi nusu wo afa.
Susuampa de Atonfunu wo nyi hon ebusuiafu ij: wo asiasi nyi
numu adzi nyina wo-akyire mu wo he-iyi Na Susuampa de dam
ebusuiafu iyi numu etsitsir nyina wo-apini na wo nyi Nya-Orito-
lYi akyi kyir de wo-riton asiasi nu na wo-edzi anu efua abendaa
anan Na Susuampa de Nya-Orito-iyi oa-tsiw ni tsir Trama na
wo-dzi asiasi nu ahye ni nsa na asiasi nu ni hyi wo-akyire na wo-
etua ka wo adasifu anukwafu enim Na Susuampa de nkrofu
emu-ebien nyina apini de wo-baye Ahyiemdzi-Wuma iyi edzi dza
wo-aye iyi hu adansi ama esu o-ahye Nya-Orito-iyi ni tum owo
asiasi iyi du nu ma Sa-ntir-a nkiyi Aiiyiemdzi wuma iyi dzi dasi
de onam pini-a wo-abodzin nu na su onam Trama dwua sura oa
tsiw na su abendaa anan a Nya-Orito-iyi etua ama Atonfunu
nyi hon ebusuiafu mu etsitsir nu mma Atonfunu wo-nam iyi du
wo-pini de hon nsa aka Hon Atonfunu wo-nam Ahyiemdzi-
wuma iyi du hyira asiasi nu nyi numu adzi nyina du ma Nya-
Orito-iyi onyi obiara o-nam nu du asiasi iyi boko ni nsa mu nu
na asiasi nu onu iyi ebusuiafu Asiasi-a o-da Mfuma kwan nu
nkyen na ni tsintsin ye anamon § aha-esid (160) na ni teter ye
anamon aliaasd eduesid (360) na ni hyi nyi Mfuma Kwan Kwesi
Kiima n asiasi Emisa halca de mbre wo-akyirew nu yie wo nfonin
a owo iyi mu nu Na Atonfunu de mbre wo aka nu dada nu wo-
pini na wo-dzi asiasi nu onyi numu ndzinua nyi tum nyi ahu-
womu a hon nyinara nkurkur nyi hon ebusuiafu wowo wo du na
onyi biribiara wo-piri nu avo mu ankurankur nyi ebusuiafu nu
nyinara wo dzi ma Nya-orito-iyi na onyi obiara o-nam nu du
asiasi iyi beye nu dzi nu alibo kepim de asiasi nu nyi nu mu nyi
nu hii adzinyina o-ye Nya-Orito-iyi na obiara o-nam nu du asiasi
* If more than one purchaser, substitute " o-fi," for " wo-fi."
f " Hon Nympa-Worito-iyi " for "nu Nya-Orito-iyi."
t If the land belongs to a clan, then write " Ebusuia."
§ Or fathoms, alasamu.
312 FAXTI CUSTOMARY LAWS.
beye nu dzi nu kurakura de Atonfunu hon ebusuiafu biara o-
rapaa hon hu ego o-ntutu hon anamon mu wo hii o-npiripiri hii
oanyi du turn o-nbisa hoa h asem biara Na asiasi nu odzikor iyi
owo ho de mbre hen man iyi mu asiasi hvi aman mbra nu kyire
nu ara Na Atonfunu wo-nam iyi du nyi NyaOrito-iyi onyi
obiara o-nam nu du asiasi iyi beye nu dzi nu kyikyir de hon na
hon ebusuiafu sesie wowo hii kwan nyi tum de woton asiasi nu
de mbre wo-aka dada nu esu de asiasi nu o-da ho totorito de
mbatahu biara onyi hu nna hon ebusuiafu nu hon mu obiara o-
nkaye biribiara a o-bama oton a wo-aton asiasi nu ana mbre wo-
aye nu iyi wo-etsia aman-mbra Nna su Nya-Orito-iyi onyi obiara
o-nam nu du asiasi iyi beye nu dzi nu wowo de wo-fa asiasi nu
mu adzi nyina wo-tsina du kom na ofir nde o-dzi-kor iyi wo-gye
nu mu asrandzi nu mu mfasu nyinara wo-dzi ma hon de Aton-
funu ana obiara nsiw hon kwan o-ntutu hon anamon mu o-nbisa
hon hu asi ana mpiripiri hu Na su Atonfunu de mbre wo-aka nu
dada nu wo ni hon ebusuiafu nyinara ofir nde dzikor iyi se Nya-
Orito-iyi ana obiara o-nam nu du asiasi iyi beye nu dzi hwihwe na
se o-tua ka a wo-beye biribiara ana wo-bakyirew wuma biara a o-
bama Nya-Orito-iyi onyi damn nyimpa iyi hon turn wo asiasi nu
mu esi pi de mbre o-hya de wo-ye nu Na iyi nu hii dasihye nna
nkrofu emu-ebien iyi wo-dzi hon nsa onyi hon daagyii ahye asi
wo da onyi afi a wo-akyirew dadfi nu.
Asiasi nu hu nfonin iyi.
******
Nsem a o-wo wuma iyi mu wo-kinkan na wo-kyire '^ A.B.
I
asi kyire nkrofu iyi wo hon kasda mu ma wo- f D.F.
tsi asi koto nu nna wo-dzi hon nsa hye asi na ( Kofi
wo-dzi daagyii si du wo adasifu iyi hen Enim. ) Mensa.
Akiceai Danfu,
Efua Inkosu.
INDEX.
Ahasu'lzL See Suretyship, 74
Abehem. See Texuiie.
Accounts: husband and wife, 54;
between mortgagor and mortga-
gee, 83, 84
Accra Customary Law : marriage,
two kinds, 109 ; property, family
private, 110; succession, 110;
sale, necessary ceremonies, Tra-
ma, 93
Adai season, 41
Adansi Treaty, 306
Adoption, females usually, of same
class, 34
Adultery : of wife, good ground
for divorce, 52; slander, 113
Afunab'i : female dependent, 7
Ahuha : pawning, 77 ; now illegal,
83
Akan, language of the country, 3 ;
meaning of word, 4
Alienation : 78 ; head of family, his
powers, 78, 88 ; land, demarca-
tion of boundaries, 8G ; com-
pany land, 88; inquiry neces-
sary, 79; family debt, 80;
setting aside, refund of purchase-
money, 80; testamentary, 95;
village lands, 88. See Sale, 86
Anamabu, an ancient town, 3
Ancestral land. See Property.
Annual tenure, rent, 69
Austin, 20
Barter, payment by, 93
Bond of 1844, 32
Borrower, See Loax.
Bosman : kings, chiefs, slaves, 1 1 :
inheritance father and son, 112 ;
no succession between husband
and wife, 6
Brabbu, penalty for seduction, 48
Breach of contract. See Marriage.
Bridal veil. See Marriage,Exoijsh.
British Jurisdiction : former ex-
tent, 33
Letters Patent, 301 ; Buildings :
additions to family residence, 38
Building tenure : 70,71; forfeiture,
72, 74 ; reversion to landowners,
71; rule of descent, 71; house
falHng down, 71
Caboceer : town elders, 11, 12
Cabocors : former name of Cape
Coast Castle, 1 ; seven com-
panies of, described, 13, 14 ; trial
of Adoasi and Anumah in 1836
for murder, 32
Captain, company. See Compaxy.
Child : liable for mother's debt, 39 ;
contribution towards father's
funeral expenses, 54 ; earnings,
father entitled to, 45, 63 ; right
to live in father's house, 50;
father when liable for tort, 39,
45; male child succeeded by
mother, 98 ; female child suc-
ceeded by her child, 99 ; gene-
rally does not succeed father,
102 ; except to public office, 107 ;
Accra custom of inheritance, 110;
when legitimate, 52 ; father
314
INDEX.
bound to maintaia his child, 39 ;
names, 55
Clans: incidents, 4, 37; division
and names, 5, 6 ; test of relation-
ship, 37; succession through
clanship, 4 ; inter-marriage be-
tween members of the same clan
discouraged, 46 ; clan property,
64 ; funeral custom, 40
Commendation : increase of family
by, 35 ; to village community, 22
Company : of towns described, 13
Concessions : necessity for careful
inquiry, 67; fraudulent, aban-
doned, 92 ; gold mining, 67, 73,
74 ; rubber, 92 ; tribute, 74, 92 ;
how lost, 74
Concubinage : discouraged, 57 ;
monies advanced to concubine
not repayable, Sarwie, 50; lia-
bility for confinement expenses,
51 ; marriage of concubine, 51
Consawment. /See Marriage.
Consent : additions to family pro-
perty, 38, 39; elders, for vaHd
alienation of family property, 90 ;
before betrothal, 46, 49 ; hus-
band's consent required before
wife becomes surety, 75
Corporate property : clan, 64 ;
joint family, 64 ; stool, 63 ; vil-
lage communit}^ 20, 63, 87
Council, 1874, Order of, 286
, village : development, 21 ;
legislation by, 24
Cruicksbank on : clan institution,
4 ; family property, 41 ; Fanti
territory extent, 2 ; funeral dona-
tions, 40 ; marriage, 47 ; pawn-
ing, 10 ; will making, 47
Customary laws : to whom ap-
plicable, 15; administered by
Supreme Court when, 16, 25 ;
to be altered cautiously, 31 ;
Bond of 1844, 32 ; change of re-
ligion, 15 ; defined, 24 ; English
law tests, 16, 25 ; evidence to
support, 29 ; limits of, 29 ;
sources of, from family group
by head of family, 20, 23 ; head-
men, company captains, king and
council, 23 ; usage, 22 ; opinions
on,byHindle, 276; Chief Justice
Mirshall, 31; Acting Chief
Justice Smith, 271 ; not written,
23
Damage : breach of contract of
marriage, 46 ; breach of contract
of sale, 95 ; seduction, 48 ;
slander, 113 ; measure of for
palm trees, 70
Dates and notable events, xxix
Debts : of deceased, 108 ; family,
38, 78 ; enforcing payment, 114-
116; release by will, 100. See
Alienation — Child — Fajhily —
Surety.
Descent : traced through female,
130, 274
Divorce. See Marriage.
Domestics : 87 ; liability, 39 ; suc-
cession by, 104
Donations, funeral, 40
Donhor, 7. See Domestics —
Slaves.
E
Earnest money. See Sale.
Earnings : of son 45, 46, 63 ; of
wife, 56
Ubusudfu, 36, 78
Ebusu. See Rent — Tribute.
i:kar, 33
Election ; family, head of, 38
EngHsh marriage, incidents, 41
Esiadzi; funeral expenses contri-
bution, 40
Events, notable, xxix
F
Family : explained, 33, 36 ; di-
vision into junior branches, 34 ;
absence of head, 38 ; incidents
ordinary, 36; common liability
to pay debt, 39 ; family debt, 38,
78, 56 ; members, how increased,
35, 55; members to obey the
head, 37, 64 ; members liable for
funeral expenses of deceased, 40 ;
woman and her child belong to
INDEX.
315
same family, 39; testamentary
disposition controlled, 95, 97
Family, head of: authority, 37, 41 ;
ahsence, long, 38; interest in
family property, 38, 101 ; grounds
for removing, 38, 78, 90 ; grant-
ing land, ()G, 89 ; members bound
to obey him, 37, 64 ; his position,
G ; guardian of minors, 37 ;
surety, void, to be, 74, ISee
Aliexatiox — Sale.
property: acquired, how,
60, 01 ; additions to, 38, 59 ;
alienation, 67, 78; consent of
members required, 79, 80 ; nature
of, 57, GO, 62, 273, 275; re-
demption, 73; sale for iamily
debt, 78 ; residence, 38, 41. See
Alienation -— Sale — Succes-
sion.
Father. See Husband.
Forfeiture : of grant, 68, 74 ; con-
saiument, 53
Funeral: custom, donations, lia-
bility of child and mother, burial
expenses, 40
Gift : 80 ; acceptance, 85 ; of im-
movables, 80: voidable, 81
Gleneg, Loid, 33
Gold Coast : boundary of Protec-
torate, 1
, Marshall on, 31
, tribunals, 25, 26
, Govi^rnors, list of, xxvii
Grant of lands, hy i^enin, QQ, 67, 89
Grantee of land : inquiry by, 69,
79,80
Grounds for removing penin, 38,
79, 90
Guardian of minors. 37
Head kum. See Marriage.
House : family, 41 ; additions to,
38, 59 ; child's right to father's,
50, 105; Accra Law, 110. See
Family Property.
Husband : child's earnings, 45, 63 ;
forfeiture of consaivment, 53;
consent for wife's suretyship, 75 ;
dissolution of marriage, 52 ;
family, 39 ; maintenance of child
and wife, 39, 50, 56 ; son's torts,
39,45
India, Native Converts Act, 53
, Punjab Code, 17
, Oriental cases. Perry's, 16
Indian cases : Bharthi v. Laving
Bharthi, 29 ; Naikin v. Esu Nai-
kin, 27 ; Pandy v. Kwoowaree, 79
Insawa : funeral donation, 40
Interest : rate of, for loan, 85
Interest of: stool-holder, ijQ, 87,
176; pe7iin, 38, 101
Judicial Assessors, 26, 31, 283
Jurisdiction : local tribunals, 31,
231, 232
K
Kahire : cutting, 33
Kanye, 4
King: omanhin, 11, 12, 32; suc-
cession, 11; surety may not be,
75; tribute, 73, 74, 92, 278. See
Alienation — Tenure.
Language : common, 2, 3 ; con-
veyance in Fanti, Appendix xii
Lease. See Letting.
Legislation : aboriginal, 23.
Legitimation. See Marriage.
Letting of land, 66, 67. See
Tenure.
Loans, 84 ; liability of borrower, 85
M
Maclean, Governor, 32
Maine, Sir Henry : " Ancient Law,"
96; "Early Institutions," C3;
on sitting Dhama, 115
31G
I^'DEX.
Marriage : 41 ; betrothal, 45 ; breach
of promise of, 46; consent of
parents, 46 ; improperly refused,
49 ; of concubine, 51 ; consaw-
ment, 45; when repayable, 46,
53 ; by converts, 44 ; de facto
presumed valid, 49; discontinu-
ance by husband, 52 ; by wife,
52, 53; dowrj', 48; head rum,
47; previous seduction, 48 ; pro-
hibited unions, 46 ; right of child
and wi(
39, 45
, English : explained, 41 ;
best man, 42 ; consent of father,
41 ; dowry, 42 ; honeymoon, 42 ;
ring, 42, 44 ; wedding gifts, 43 ;
veil, 42
Marshall, Sir James, on Customary
Law, 31
Meredith, Henry, 1, 2 ; witchcraft,
113
Minerals. See Sale.
Mining. See Tesure.
Minors. See Head of Family.
Misconduct : head of family, 38, 78,
90 ; member of family, 35, 39 ;
of son, 39, 45 ; of wife, 52
Mohammedan: custom, 16; kin,
17, 18
Money loans, 84
Mortgage : explained, 82 ; fore-
closure only on notice, 83
Mortgagee : expenses on security
repayable, 83 ; entitled to rents
and profits without accounting,
83 ; transfer on notice of his
security, 83 ; sale, 84 ; when
mortgagor liable to pay balance
of debt, 84
Mother : child's status determined
by, 37 ; child liable for debts of,
39 ; real successor of her child,
102 ; Accra custom, 110
N
Native chiefs, 11, 12, 13, 32
law and custom. See Cus-
tomary Laws.
tribunals, 22, 23, 32
0
Odzi-kro, 12
Ohin, oman-hiii. 11, 12
Omanfu, 12
Order of succession. See Succes-
siox.
Oturbiba : punishment for slander,
114
Pacification, penalty. See Se-
duction.
Palm-tree : value of, 70 ; land-
owner's share of oil, 70
Panyarring : of chattels and per-
sons, 115 ; abolished, 281
Partition : of family, 34 ; family
property, 35
Patriarchal family, 62. See Family.
Pawns, pawning, 10.
Payment, modes of enforcing :
fasting on debtor, 115 ; panyar-
ring, 115; imprisonment, 116;
by barter, 93
Penin. See Head of Family.
Perry, Sir Erskine, on Customary
Laws, 16
Pledge : right and liability of
pledgee, 83
Produce of land : palm-nuts, rubber,
92,95
Property : kinds ancestral, 57, 59,
271 ; how acquired, 59, 60, 88,
89 ; family, 57, 60, 62, 64, 78,
89, 273; private, 60; stool, 61,
271. /See Alienation.
Fun : ancestral property re-
purchase, 73
Punjab Code Act, 1872, 17
R
PkEAL successor : the mother is, 102,
274
Pent : by service, 67, 69 ; mining,
73 ; rubber, timber, 74 ; pay-
notes for European forts, 86
Pting, wedding : European usage,
42
INDFX.
317
s
Sale : ancestral property, 88 ;
breach of contract, 95; con-
ditions of, 80 ; consent of elders
of family, 90 ; covenants implied,
95 ; inspection of land, 93 ; pro-
duce of land, 92, 95 ; originally
imusual of land, 8G ; rescission of,
91 ; stool property, 87 ; village
community, 87 ; title to property
not written, 94
Salisbury, Lord, on the Indian
Code,'30
Samansiw : parol will, 9G; famil}''
property voidable, 97 ; private
property, 97. ^ee Wills.
Sarwie : concubinage, incident, 50
Seduction : Brabbu, a penalty, 48 ;
damages, measure of, for, 48 ; dis-
continuance of marriage, ground
for, 52 ; family's liability, 48
Slander: action for, 113; damages
and fines for, 114; imputation of
adultery, theft, witchcraft, action-
able, 113; oturhiba punishment,
114
Slaves: abolished, 20; origin ex-
plained, 7 ; tenni, donJcor, 7 ;
freed, 9 ; master's liability, 39,
56 ; property of, succession, 107
Social degrees, 7, 11, 12
Sowing. See Tesuhe.
Stool. See Alienation — Pkopekty.
Succession : daughter's property,99 ;
general rule, 100 ; reason of such
rule, 112 ; order of, 102 ; family
property, 273 ; private property,
105, 108 ; stool property, 99,
101 ; veto by family or people
of stool, 97 ; Accra rule, 109
Successors : kinds of, 102 ; brothers
and sisters uterine, 102
^Supi : head captain, 13
Surety : 74 ; debtor, right against,
77; creditor's remedy, 76; dis-
charge, 76 ; joint liability, 76 ;
who may 7iot be, 75
Tenni, 7
Tenure : Ahehem., 70 ; annual, 69 ;
building, 70, 71; fee simple, a
misleading term, 65 ; forfeiture,
72, 74; freehold on Gold Coast
in aborigines, 65, GG ; mining,
73 ; pay-notes origin, 86 ; rever-
sion, 71 ; rule of descent build-
ing, 70, 71 ; sale formerly un-
usual, GC), 177; timber and
rubber, 74, 92 _
Testament : disposition Avhen im-
perative, 100
Tikororo : mining tribute, 74
Trama : earnest monev, 86, 93, 95
Treaty : Adansi, 306 ; Fanti
Bond, 1844, 24, 32
Tribute. See Tenure.
U
Usage : source of Customary Law,
21, 22, 24 ; origin of law mer-
chant, 28; evidence required to
support, 29
V
Village community, 22 ; land of,
63 ; oath of, 23 ; sale of land, 88.
See Council.
W
Widow : no right to husband's
goods, 6 ; contribution to hus-
band's burial expenses, 54
Wife. See Marriage.
Wills: parol, 95; about private
property, 97, 98, 99 ; of woman,
98 ; release of debt, 100 ; stool-
holder, 97, 99 ; marriage ordi-
nance, 100
Witchcraft: charge of, 113; mar-
riage, ground for discontinuing,
52
THE END.
VEISTKD BY
WILLIAM CLOWES AXD SONS, LIMITED,
LONDOS AXD BECCLES.
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