JUDGMENT OF OLLENNU J.
(His lordship stated the facts, and proceeded):-
The Court of Appeal has laid down the principle which should guide the Supreme Court as to the proper method of ascertaining the native custom applicable to a particular case. In Anane v. Mensah (p. 50 of this volume) their Lordships said:
"Native customary law is peculiarly within the knowledge of the Native Courts, and the opinion of a superior Native Court on native custom must be preferred to the opinion of an inferior Native Court, unless it is either contrary to a decision of the Supreme Court or of the Privy Council on the point, or 'is repugnant to natural justice, equity and good conscience'."
Applying this principle, I proceed to examine the native custom which the Kwahu Local Court 'A' accepted and applied in determining this case, in order that I may decide whether it is a custom which the Supreme Court should countenance.
The evidence led by the State Secretary that a subject is at all times compellable to render customary services to the Stool is very significant in this matter. One of the incidents of the occupation of Stool land is the liability of the occupier to perform customary services to the Stool. Where the person in occupation of the Stool land happens to be a stranger, it is often improper or undesirable that he should be called upon to render the customary services. In such circumstances, therefore, performance of those services is commuted into a contractual tenancy agreement or licence for a composite sum, which might be termed the purchase-price for the land.
In Land Appeal No. 21/1957 (entitled Baidoo v. Osei & anor.) I stated and explained this in the judgment delivered by me on the 18th December, 1957, in the following words:
"By native custom the subject is entitled to alienate his usufructuary title in the land without express permission of the Stool, so [p.149] long as the alienation carries with it an obligation upon the transferee to recognise the title of the Stool, and to perform the customary services due to the Stool from the subject-occupier. Where the transferee is a stranger, i.e., a non-subject of the Stool, it is usual for the Stool to commute the customary services which so devolve upon the transferee to a tenancy agreement of one form or another, since by native custom it may sometimes be undesirable, indeed sacrilegious, to admit the stranger-transferee to the performance of customary services for the Stool. Thus, in an Akan Sta
