A. K. NTRAMA ALIAS YAW ODURO, JASEHENE OF OYOKO v. 1KOFI ATIA ALIAS J. K. NKANSAH AND KOFI FORFIE
January 29, 1951
HIGH COURT
GHANA
CORAM
- JACKSON, J
Areas of Law
- Property and Real Estate Law
- Contract Law
- Evidence Law
- Civil Procedure
January 29, 1951
HIGH COURT
GHANA
CORAM
AI Generated Summary
On appeal from the Native Court of New Juaben, Jackson, J addressed whether English law governed the transaction or whether Akan customary law applied. Because there was no express or implied agreement by the parties to apply English law, Section 15 of the Native Courts (Colony) Ordinance mandated the use of customary law. The dispute centered on two cocoa farms the 1st defendant had agreed to resell to the plaintiff after receiving £20 as earnest money, before later selling to the 2nd defendant. Relying on Sarbah’s Fanti/Akan customs, the Court held that valid land sales require publicity—payment of Trama in the presence of family and witnesses and inspection and marking of boundaries with neighboring owners. Mere earnest money did not pass property. Equity could not override unmet legal prerequisites. The Native Court’s order awarding possession to the plaintiff was set aside; judgment was entered for the defendants with costs.
This is an appeal made by the defendants-appellants from a judgment given by the Native Court of New Juaben on the 3rd July, 1950.
The grounds of appeal are those dated the 27th July, 1950 and were argued by Miss Baeta, learned Counsel for the appellants. These arguments were founded upon English Law and Counsel in her argument quotes her authority by reference to text books reciting the English Law relating to those of contract and realty.
I pointed out to Counsel that by the provisions of Section 15 of the Native Courts (Colony) Ordinance and specially by reason of the proviso to subsection (b) of that section a Native Court was prohibited from determining any cause where the contract was governed by English Law unless:
(a) the parties had either expressly or impliedly agreed that these obligations should be governed by such law, and
(b) that the parties had agreed to the Native Court trying the action.
Upon the record there is nothing to show that either of the parties ever had, even in contemplation, intended that English Law should be applied and in the absence, in the record, of anything to show that the parties had so contemplated and (b) had agreed to a trial of English Law, it must be presumed that the Native Court were exercising their powers " intra vires "the Ordinance and that the law they applied was the local customary law.
In the Supreme Court the proof of customary law is governed by the same laws of evidence as is the proof of any other facts, other than where some custom has been so repeatedly proved before the Supreme Court that its Judges will judicially notice it.
An appellant must satisfy the Court that the judgment which is appealed against is wrong, and not merely that it may be wrong.
In this judgment, as in so many judgments of the Native Courts, whilst the case evidenced by each party is set out with scme clarity, which facts have not been proved are rarely clearly stated by these Courts, far less any reasons for any of the findings.
The Court in this case found that:-
(a) the 1st defendant "transferred" the disputed farm to the plaintiff on terms of credit.
(b) 1st defendant had the right to recover from plaintiff the £70 balance due upon the agreed purchase price.
(c) Had the right to transfer the farms to the 2nd defendant.
Now in the absence of any findings of fact, and upon reading the record, these are the facts which are admitted both by the plaintiff and the 1st defendant.
They are:-
(1) The plaintiff's la