NANA JUABEN SEIWA, Successor of late NANA AMA SEIWAH and YAH DANI v. ADJOA FORDJOUR
1948
HIGH COURT
GHANA
CORAM
- JACKSON, J
Areas of Law
- Property and Real Estate Law
- Civil Procedure
1948
HIGH COURT
GHANA
CORAM
AI Generated Summary
Jackson, J heard an appeal from the Native Court of New Juaben concerning stool land originally given by the late Queen-mother Ama Seiwah to the defendant, now appellant, to enable her to continue service to the Queen-mother. After Ama Seiwah’s death, her successor, Nana Juaben Seiwa, and the stool claimed possession under customary law, asserting that ongoing service was required in exchange for the land’s use and profits. The Native Court treated the transaction as a revocable “gift” and awarded the property to the plaintiff-respondent. On appeal, counsel Mr. Larbi argued gifts are not revocable under custom, citing Sarbah’s Fanti Customary Laws. Jackson, J recharacterized the transaction as a conditional grant made for past services and expecting their continuance. Finding the services were not unreasonable, and that fairness requires one enjoying benefits to bear the burdens, the court affirmed the Native Court’s judgment and dismissed the appeal with costs assessed at £8 3s.
Jugdment:
This is an appeal from the Native Court of New Juaben. The facts accepted by the Native Court were that Nana Juaben Seiwa was the successor in title to the late Queen-mother Ama Seiwah. who gave a piece of stool land (which is the subject of this claim for possession) to the "defendant (now the appellant) to use it to continue her service to the late Queen-mother Nana Ama Seiwah".
They found that upon the death of Ama Seiwah her successors were entitled by custom to receive from the defendant-appellant customary service to the stool in exchange for the right to use and enjoy the profits of this piece of land, the property of the stool.
The Native Court in its judgment as recorded by the Registrar then goes on to say:-
"The only question the Court considered was whether a gift can be recovered. It is quite clear in Native Custom that a gift is revocable for good cause",
and then held that the plaintiff-respondent was entitled to the property claimed.
From this decision the defendant appealed. Grounds of Appeal were filed on the 25th February, 1948. Supplementary Grounds were filed on the 10th instant.
On opening his argument Mr. Larbi stated that the only point which had to be considered by this Court was whether or not a gift could be revoked by customary law, and, by way of authority that it cannot be revoked he invited my attention to pp. 80 et seq of Sarbah's Fanti Customary Laws. The learned Author says at p. 81 :
"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 the gift.
"Gifts, in the European sense of the term, as far as regards im" moveables, seem to be unknown here".
In my judgment the use of the word "gift" in the judgment was unfortunate, and I think upon a reading of the whole evidence was inaccurate. It appears to me to have been rather a grant of land as a reward for past services to the stool and in anticipation of the continuance of the services in the future. The right to occupy the land and to enjoy its fruits was one limited by the condition that the occupier would continue to render those cestomary services.
There is nothing in the record to suggest that the nature of the services were so unreasonable as to offend against the dictates of natural humanity or justice: on the contrary I am of the opinion that it would be an injustice for the appellant to accept and etijoy the benefit of the land without, at the s