KWAN v. NYIENI & ANOR.

JUDGMENT OF VAN LARE, AG. C.J.

Van Lare, Ag. C.J. delivered the judgment of the Court.

This is a judgment of the Court in the preparation of which we all have participated. The appeal is from a judgment of Benson J. delivered on the 12th January, 1956 in the Land Court, Kumasi, in a suit which had been instituted in Kumasi West District Court “B”, Goaso, and which was transferred to the said Land Court by Order dated the 12th July, 1955 made by the Land Judge, Kumasi.

(His lordship stated the facts, and proceeded):—

In our opinion a most significant inference to be drawn from the order of the Kumasi West District Court “B” is that Yaw Donkor, the caretaker of the family, should retain possession of the farms. It can also be inferred from that order, read together with the second order, that a declaration that the farms were not liable to be sold was clearly meant, though not specifically made. The reasons given by the Court for their order that the debt of £900 should be paid out of the proceeds of the farms show that the Court was doing justice in accordance with native custom, without interfering with the strict legal rights of the family in their property.

We are unable to agree, however, with any of the reasons advanced in the judgment of the learned Judge. Counsel for the respondents, supporting the judgment, submitted that the declaration of native custom (that the appellant, not being the head of the family, is not competent to sue in respect of family property) is a correct statement of the custom. He argued that the only exception to that well established custom is in the case of interpleader suits where, under the Rules of Court, any member of the family who claims to be in possession, active or constructive, of family property which has been attached in execution of a decree of the Court, can resort to the Courts for the removal of the attachment.

Firstly, however, the Kumasi West District Court “B”, who are presumed to know the native custom, made the declaration prayed for by the appellant in the former suit, although it found in very clear terms that the appellant was not the head of the family. The inference is that, though not the head of the family, the appellant as a member of the family is entitled, in the special circumstances of the case, to sue on behalf of the family. As already pointed out, that judgment of the trial District Court “B” was not varied by the superior native court, which is a higher authority on the native custo