CHIEF KWABENA KYEM, substituted by CHIEF ABOAGYE ASARE ABABIO v. CHIEF OPPEN WADIE AND OPANIN ATTA YAW

Judgment :

This case, dealing with the ownership of a piece of land, was instituted in the Asantehene's Divisional Native Court, a Grade B Native Court; and when judgment in that court was given for the plaintiff, the defendant appealed to the Asantehene's Court; that court dismissed the appeal and the defendants have appealed to this court.

The claim is for damages for trespass and as is usually the case in these matters the point at issue was the ownership of the land concerned. A survey of the area was ordered and the plan of the land, known as "Ntabanu" was in evidence as Exhibit "B". Exhibit "A" is the report of those sent by the court of first instance to view the land and a sketch plan prepared by them. " £15 compensation" was awarded by the court of first instance as damages for trespass.

The first appellant conducted the case in this court on behalf of himself and his co-defendant; the second defendant was with him in court and they consulted together frequently. They asked that more detail be inserted in the survey plan and that expert evidence on custom be heard; these motions were refused, as I am satisfied that the surveyor indicated on the plan everything that was pointed out by the 2 nd defendant on behalf of both appellants, and that the members of the two courts below are competent to decide on questions of custom; the question which arose in this case was specifically mentioned and answered in both their judgments.

Many grounds of appeal were filed; from the address to me it is apparent that the appellants mainly base their claim to ownership on the proved fact of their ownership of rights over a pool called Kobi. These rights are said to be rights of ownership over what is described as a "fetish pool." I have been at pains to ascertain what this pool is and I understand that it is a pool frequently formed on the right bank of the River Ofin (where the plaintiff-respondent claims all land on that bank as his) by flood waters from the river; and it is said to be supernaturally endowed. The actual water of this pool is 1st defendant's but the bed is claimed by the plaintiff to be his; defendant-appellants say that this is impossible in Ashanti custom, but this point was dealt with in both previous judgments and the courts below are thoroughly competent in custom. I find against the appellants on this ground. And as regards the 1st defendant-appellant's evidence of ownership of farms and fishing rights, this was refuted by the plaintiff