JUDGMENT OF OLLENNU J.
(His lordship referred to the facts and continued).
After hearing the oral evidence and inspecting the land, the native court delivered judgment as follows:—
"This court, after summing up the evidence of both parties together with their witnesses found out that the evidence of the plaintiff customarily weighs much. According to the evidence of [p.78] defendant’s own witnesses and that of the plaintiff it has been made plain to this court that no matter whether one of the deceased wives has a heavy number of issues, the properties be shared according to Shai custom equally according to the number of wives but never upon the number of children of the deceased in whole.
"The court never believes in the evidence of the defendant on the point that the farms have been shared equally, each to measure of two ropes. Defendant found liable. Judgment entered in favour of the plaintiff. Plaintiff allowed costs to be taxed. We order parties' stepfather, Amotee Kofi to share the land to them equally according to Shai custom of inheritance."
It is interesting to note that the native court evaded making a definite finding as to whether or not the late Tetteh Sumie apportioned the farms among the children of his late brother. By accepting the custom as stated by the plaintiff they, by inference, found that Tetteh Sumie apportioned the farms among the children, but, and again by inference, they held that the apportioning was not in conformity with Shai custom.
It is quite clear from that judgment that the native court failed to direct themselves on an important principle of customary law, namely that customary law does that which is reasonable and that in matters of inheritance, and as far as partitioning or sharing of property of a deceased person is concerned, the appointment of a successor is a matter entirely in the discretion of the family, a discretion which is exercised upon well defined principles, and further that an apportionment of any property left by a deceased person among members of a family is also within the discretion of the family, general principle to the contrary notwithstanding.
On the question as to whether there has been a sharing or an apportionment of the farms between the children of the late Siaw Ngua, there is overwhelming evidence on both sides. The plaintiff agrees that there was such an apportionment and so does the defendant. The only difference between the two parties is the issue as to whether the apportionm
