PRINCETON. N. J. *{f Division DT5W Section >.5Z4 EUGENE L. MORICE, Oriental a African Bookseller 39, Museum Stueei \ LONDON, W.C FANTI CUSTOIARY LAWS. A BRIEF INTRODUCTION TO THE PRINCIPLES OF THE NATIVE LAWS AND CUSTOMS OF THE FANTI AND AKAN SECTIONS OF THE GOLD COAST, A SELECTION OF CASES THEKEON DECIDED IN THE LAW COUKTS. JOHN MENSAH SARBAH, of Lincoln's inn, babristeu-at-law, practising before the supreme court of the gold coast colony. LONDON: WILLIAM CLOWES AND SONS, Limited, 27, FLEET STREET. 1897. LONDON : PRINTED BT WILLIAM CLOWES AND SONS, LIMITED, STAMFORD STREET AND CHARING CROSS. TO THE MEMOKY OF THE HONOUEABLE JOHN SAEBAH, MERCHANT, CAPE COAST CASTLE, SOMETIME MEMBER OF THE LEGISLATIVE COUNCIL OF THE GOLD COAST COLONY, AND CAPTAIN COMMANDING THE GOLD COAST RIFLE CORPS DURING ASANTI EXPEDITION, 1873-1875. A MERCHANT ENTERPRISING AND HONOURABLE, A STATESMAN LOYAL AND FEARLESS, A PATRIOT CHIVALROUS AND TRUE, A PARENT PIOUS AND MOST AFFECTIONATE, THIS BOOK is DEDICATED BY HIS SON, THE AUTHOR. Digitized by the Internet Archive in 2015 https://archive.org/details/fanticustomarylaOOsarb PREFACE. My deak Mr. Eminsang, — Pardon the liberty I take in sending you this open letter, with this my first attempt in the thorny paths of literature. I dare do so, for not only are you a native of the soil and one of my father's friends, but you are also the senior member of the Bar of the Western Province of the Supreme Court of the Gold Coast, having commenced to practise when we, who are now members thereof, were but schoolboys. Your patriotism is well known, and your loyalty is undoubted, and as one who, in former years, served his country in his office as Chief Magis- trate at Elmina — what time the Dutch held sway over a portion of the Gold Coast — and afterwards took a prominent part in executing the treaty under which British jurisdiction was extended on the Gold Coast, you have no idea, how often you have encouraged me to go on with, and persevere in, the task I had set myself, to reduce into writing the Customary Laws and Usages of the Fanti, Asanti, and other Akan inhabitants of the Gold Coast. I know that you have often given the first correct idea on Customary Laws to newly arrived European officials, who, having no intelligent person to explain things to them, would fain say there were no Customary Laws. I know how it has constantly pained and grieved you to notice any local Customary Law or Usage distorted by any practitioner from beyond seas solely bent on snatching a verdict. vi PREFACE. Thanks, however, to Sir Joseph Turner Hutchinson, Knt., sometime Chief Justice of the Gold Coast, who readily gave permission when I applied to him to take notes from the records of the Court at Cape Coast Castle, I have made a selection of cases hearing on the local Customary Laws, and I hope that by grouping and classifying the decisions together, facilities will be afforded for ascertaining what is really the general Customary Law with respect to most matters to which, it is well known, the natives are tenaciously attached, the principles underlying it, and how far it is qualified by any special local or tribal custom. And now that comparison is rendered possible, and the lines of inquiry as it were placed before them, this is a field of investigation which should engage the close and studious attention of every educated native. Unfortunately, not only was the expert evidence of the Chiefs on points of Customary Law carelessly and sometimes inefficiently translated to the Court, but no attempt had been made to test their accuracy by comparison with similar cases in other districts affecting the same class of persons. In spite of this, however, there is a remarkable uniformity and consistency in the decisions on the Customary Law in regard to certain matters, several recent decisions agreeing with old cases, the existence of which could not possibly have been known by the judges of the Supreme Court. To wade through a mass of matter for the purpose of finding what was worth copying was no light task, and I would have been more satisfied had I been able to verify with care all the decisions reported in this book. But beggars cannot be choosers ; wherefore, when I suddenly received an intimation from the Kegistrar that he was requested by Mr. Justice Hayes Eedwar to inform me, that the Chief Justice's permission was withdrawn, I had to stop ; if, therefore, any errors are detected in the reported cases, you will understand PREFACE. vii how they crept in, and this in spite of the special care I took when copying them in the first instance. I have endeavoured in some instances to state the Customary Law in a few simply worded propositions, embodying what a careful analytical study proves to be the principles running through it. I am quite alive to the danger of reducing Customary Law to a condition of fixity in a semi-developed state of society, the effect of which may hinder the gradually operating innate generation of law by a process of natural development, independent of accident and individual will, which best accords with the varying needs and spirit of a people so circumstanced as the inhabitants of the Gold Coast. A great thinker has said, " The value of a custom is its flexibility, in that it adapts itself to all the circumstances of the moment as of the locality. Customs may not be wise as laws, but they are always more popular." You will not be surprised, therefore, to find I have not attempted to write on every imaginable point of the Customary Law; to do that were to write an account of the everyday existence of the people, thus following the footsteps of Bosman and Cruick- shank, whose works I have consulted at all times during the progress of this work. I have aimed, not so much at quantity as quality ; and as often as opportunity offered, I have tested the accuracy of what is here set down, by comparing the same with information gathered from all classes and conditions of men, from all parts of the Gold Coast, with whom I have come in contact, professionally or otherwise. At the same time, I am perfectly conscious how I have been unable to attain the high standard I had set before me ; but if by my efforts other natives of the Gold Coast, acquainted with the several local dialects, and trained in the English Inns of Court, are induced and stimulated to enter the hitherto un- explored fields of our Customary Law, I shall not have viii PKEFACE. laboured in vain, for I am certain, that it is only by patient investigation and intelligent study, that the Customary Law- can be well denned and consolidated. Customary Law and other Usages recorded by Bosnian, as existing two centuries ago, have not altered to any extent up to the present day, although one knows that, as the mind of a community becomes enlightened, its legal convictions will change, and this will constitute a change in its Customary Law, as that law is, from time to time, recognized and enforced in the local tribunals. It is a universal truism that Usage generates the Customary Law, as, in the loug run, a sense of fitness becomes a sense of necessity and obligation. When Sir J. Smallman Smith, in the Full Court held at Cape Coast Castle, on October 24, 1887, and presided over by Chief Justice Macleod, stated, " I have found the native laws and customs always founded on very good and intelligible reasons, which are perfectly rational and consistent," he expressed the con- viction of every person who has any intelligent knowledge of the Customary Laws of the Gold Coast, and although I dare not claim to be he that shall come, I have en- deavoured to be the voice of one crying in the wilderness, while preparing, perhaps imperfectly, the way before him. I must now express my thanks, in addition to Sir Joseph Turner Hutchinson, Knt., to His Honour Francis Smith, Esq., Acting Chief Justice of the Gold Coast Colony; to King Amonoo of Anamaboe, King Otoo of Abura, Mr. T. F. E. Jones, and other headmen and persons whom I have often consulted, and from whom I have learnt much on the Customary Law and Usage; to Eev. J. B. Anaman, F.E.G.S., for his assistance in the compilation of the table of principal dates and events ; to Mr. Eegistrar Bernasko and Mr. Coulon, for assisting me to discover the old records ; to Mr. J. W. D. Johnson, for lending me his rare copy of Bosman's work; to Mr. Adolf Neubauer, M.A., Senior Sub-Librarian, Oxford PREFACE. ix University, for allowing rne to consult some rare old books in the Bodleian Library for this work ; and finally to my friend Mr. Samuel E. Kaye, of Lincoln's Inn, whose unremitting assistance, in correcting the proofs and verifying many quotations and extracts herein referred to, has been simply invaluable. I remain, yours very truly, JNO. M. SAEBAH. The Library, Lincoln's Inn, August, 1896. b TABLE OF CONTENTS. PAGE List of Cases ... ... ... ... ... xiii List of Governors ... ... ... ... xv Dates of Notable Events ... ... ... ... xvii Introduction ... ... ... ... ... l I. Fanti Customary Laws ... ... ... 16 II. Persons ... ... ... ... ... 31 i. The family ... ... ... ... 31 ii. Marriage, divorce, husband and wife, parent and child ... ... ... ... 37 III. Property ... ... ... 47 IV. Tenure, Kinds of and Nature of ... ... 54 V. Suretyship ... ... ... ... G3 VI. Alienation ... ... ... ... ... C7 i. Gift, what is ... ... ... ... G9 ii. Mortgage and pledge ... ... ... 70 iii. Loans ... ... ... ... 73 iv. Sale ... ... ... ... ... 74 v. Testamentary dispositions ... ... 81 VII. Succession and Inheritance ... ... ... 85 VIII. Slander ... ... ... ... ... 93 IX. Modes of enforcing Payment ... ... 94 xii TABLE OF CONTENTS. PAGE Law Report of Decided Cases ... ... ... 97 Appendices. Opinions on Tenure, by Mr. Justice Smith and Mr. Bruce Hindle ... ... ... ... 253 Royal Charters, Orders in Council, Treaties ... 263 LIST OF CASES. The Family. Quassua v. Ward .. .. PAGE 97 Marshall v. Dawson .. PAGE .. Ill Aggryba v. Aban 98 Sey v. Abadoo 112 Ahinfua v. Ghan 98 Ashon v. Attab Penin .. 112 Yovv Penin v. Duncan 98 Boham'scase .. .. 113 Lintott v. Solomon .. 102 Duncan v. Robertson .. 114 De Graft v. Abba Mansah .. 105 Ashon v. Snyper .. 115 Sackie v. Agawa 106 Inkrumau. Kankan .. .. 116 Jonab v. Addacoo .. 107 Bimba v. Mansah .. 116 Chibba v. Agoowab .. 108 Gabrie v. Affranquah .. 121 Jones v. Mends .. .. 108 Ampima v. Deamua 122 Neizer v. Dontoh .. .. 109 Jones v. Ward .. 122 (1) Tenure. Bainee v. Mensah Attopee v. Nancy .. Roberts v. Awortchie Brown v. Bell Dansue v. Tchibu-Darcoon , Atta v. Sam .. Ashon v. Barng Abban v. Sago Accuful v. Martey .. Amonoo v. Abbakuma Eccobang v. Hagan . . Amamoo v. Clement Barnes v. Mayan Halmond v. Daniel ., Edooah v. Awooah .. Yammoah v. Abbam Coomab Amfoo v. Yardonuah Mould v. Agoli Parker v. Mensah .. Ocran v. Bandafoo .. Hutton v. Kuow Kuta Holdbrook v. Atta .. Property. 127 128 128 129 130 131 132 135 136 137 139 (2) Acquisition and Alienation. Grant v. Amissah .. .. 140 Quay v. Aywoodsuah .. 143 Halm v. Hughes .. .. 144 Tokoo v. Asima .. .. 147 Barnes v. Atta .. .. 148 Awortchie v. Esshon .. 149 Bayaidee v. Mensah .. 150 Abbrobah v. Chibboo .. 151 Daddie v. Queateabah .. 152 Assraidu v Dadzie .. .. 153 Cobbold v. Quacoe Taweia .. 155 Inheritance. Children. 156 156 158 Eeir-at 168 171 172 175 177 183 183 184 Welbeck v. Brown .. Swapim v. Ackuwa .. Bob am v. Marshall .. Sam v. Williams Mansah v. Dolphyne Abbacan v. Bubuwooni Amonoo v. Ampima .. Amekoo v. Amevor .. Anaman (deed.) Amissa v. Kimfull .. 160 16'5 167 183 185 186 186 192 193 199 xiv LIST OF CASES. Miscellaneous Cases. PAGH Apenquab's case .. .. 203 Quacoe Koom v. Owea .. 206 Abakan v. Ackarsa .. .. 207 Oppon v. Ackinie .. .. 207 Eboe v. Aboma .. 212 Ottoo v. Anochie .. .. 213 Aguab v. Effee .. .. 213 Xyakon v. Sarr .. .. 214 Ferguson v. Turton . . .. 215 Abadie v. Oyam .. .. 220 The Queen v. Kineeboa .. 222 v. Mensah .. 223 Beddoomassoo v. Bossoo .. 224 Buafoo v. Enimil PAGE .. 224 Alapatira v. Halliday .. 227 Fletcher v. Sisarcon.. .. 235 Swanzy v. De Yeer .. .. 235 Eiloart v. Brew .. 238 Swanzy v. Brew .. 239 v. Stanbope .. 240 Davis v. Jones .. 241 Effua AnDoo v. Abbagee 242 Quassie v. Ansafu .. 243 Kudjoe Ghambra v. Kwamin Ewea 244, 245 Des Bordes .. .. 248 ( xv ) GOVERNORS OF THE BRITISH SETTLEMENTS ON THE GOLD COAST SINCE THE YEAR 1750. Died on the Coast marked f ; acting *. TBAB OF APPOINTMENT. tThomas Melvil June 23, 1751 tWilliam Tymewell Jan. 23, 1756 "Charles Bell ... Feb. 17, 1756 'Nassau Senior ... Oct. 15, 1757 Charles Bell ... May 10,- 1761 William Mutter Aug. 15, 1763 tJohn Hippersley Mar. 1, 1766 Gilbert Petrie ... Aug. 11, 1766 John Grossle ... Apr. 21, 1769 David Mill ... Aug. 11, 1770 Richard Miles ... Jan. 20, 1777 tJohn Roberts ... Mar. 25, 1780 *J. B. Weuves ... May 20, 1781 Richard Miles ... Apr. 29, 1782 James Morgue... Jan. 29, 1784 tThomas Price ... Jan. 24, 1787 Thomas Norris Apr. 27, 1787 William Fielde June 20, 1789 John Gordon ... Nov. 15, 1791 A. Dalzell ... Mar. 31, 1792 Jacob Mould ... Dec. 16, 1798 John Gordon ... Jan. 4, 1799 A. Dalzell ... Apr. 28, 1800 Jacob Mould ... Sept. 30, 1802 tCol. G. Torrane Feb. 8, 1805 E. W. White ... Dec. 4, 1807 Joseph Dawson Apr. 21, 1816 John Hope Smith Jan. 19, 1817 tBrig.-Gen. Sir Charles Mac- Carthy ... Nov. 28, 1822 tMajor Chisholm Jan 21, 1824 Major Purdon ... July 1, 1824 Major-Gen. Charles Turner Mar. 22, 1825 Major-Gen. Sir Neil Campbell Apr. 7, 1825 Captain Ricketts Nov. 15, 1826 Lieut.-Col. Lumley Oct. 15, 1827 Captain Hingston Mar. 10, 1828 Major Ricketts May 18, 1828 John Jackson ... June 30, 1828 Captain Maclean Feb. 19, 1830 William Topp ... June 26, 1836 Captain Maclean Aug. 15, 1838 Commander Hill, R.N. Apr. 5, 1843 NAMF YEAK 0P APPOINTMENT. *James Lilly 1845 William Winniett 1846 Judge J. C. Fitzpatrick ... 1849 t*William Winniett ... 1850 James Bannerman ... 1850 Stephen John Hill ... 1851 * Judge J. C. Fitzpatrick ... 1853 *Brodie G. Cruickshank ... 1853 Stephen John Hill ... 1854 *Judge Henry Connor ... 1854 Sir Benj. Chilly Campbell Pine 1857 Major Henry Bird ... 1858 Edward Bullock Andrews 1860 William A. Ross 1862 Richard Pine 1862 William Hackett 1864 tBrevet-Major Rokeby S. W. Jones 1865 *W. E. Mockler 1865 *Col. Edward Conran ... 1865 Herbert Taylor Ussher ... 1867 W. H. Simpson 1868 Herbert Taylor Ussher ... 1869 *Charles Spencer Salmon... 1871 John Pope Hennessey ... 1872 Herbert Taylor Ussher ... 1872 Col. R. W. Harley ... 1872 Sir Garnet Wolseley ... 1873 *Lieut.-Col. Maxwell ... 1874 "Charles C. Lees 1874 *Col. Johnston 1874 Captain George C. Strahan 1874 Sanford Freeling 1876 fHerbert Taylor Ussher ... 1878 ♦William Brandford Griffith 1880 Sir Samuel Rowe 1881 fW. A. G. Young 1884 William Brandford Griffith 1885 *Col. F. B. P. White ... 1887 Sir Wm. Brandford Griffith 1887, 1890, 1892, 1894 ♦Frederic Mitchell Hodgson 1889, 1891, 1893, 1896 Wm. Edward Maxwell ... 1895 ( xvii ) NOTABLE EVENTS. Civil War between Agyiman and Atta, Chiefs of Akyim, 1860. Akai War or Appolonian Expedition (1), 1835. Akai War or Appolonian Expedition (2),' 1849. Asanti War (1), 1807-8. Asanti War (2), 1811-12. Asanti War (3), 1817. Asanti War (4), 1824-26. Asanti War (5), 1863-64. Asanti War (6), 1873-74. Asanti (Kurnasi) Expedition, Dec. 7. 1895 ; Jan. 17, 1896. Bobikuma battle, May 9, 1863. Donasi and Abura Tribal War, 1851. Dunkwa and Abura, 1859. Dodowa battle, 1826. Elmina War, 1868-70. Insimakow battle, 1824. Mansue expedition, 1864. Tchibu and Gabir, 1853. 1807. Anamaboe attacked by Asantis; siege, defeat; first Asanti invasion, June 14. 1808. Hoogenboon Dutch Governor murdered by the natives of Elmina. 1812. J. Meredith, commandant of Winneba, arrested by the people, Feb. 6 ; d. Feb. 12. 1816. Rev. Phillip Quacoe, M.A., Oxon, d. Oct. 17 ; first native received into Holy Orders, 1765. 1817. First Treaty with Asanti, Mar. 5. 1820. Second Treaty with Asanti, Feb. 28. 1821. Chief Paintsir and other princes of Abura fell at Mouree, Feb. 10. 1822. Sir Chas. McCarthy arrived, Feb. 28. 1824. Sir Chas. McCarthy killed in battle at Insimakow, Jan 21. ,, Asanti forces defeated by the Fantis at Effutu, May 21. ,, Siege of Cape Coast Castle, the Asantis repulsed, July 14. 1826. Battle of Dodowa in the plains of Accra, Asantis defeated, Aug. 26. xviii NOTABLE EVENTS. 1830. De Graft and Sam imprisoned by Gov. Maclean, Feb. 1. 1831. De Graft and Sam open a night-school at Cape Coast Castle, Sept. 5. 1832. Akremansah, Chief of Cape Coast Castle, d. July 10. 1834. Kwofi Ekcm committed suicide by gunpowder explosion, Sept. G. ,, Rev. Dunwell, first Wesleyan Missionary, arrived and landed at C.C.C., Dec. 31 ; d. C.C.C., June 25, 1835. 1837. Amonoo, King of Anamaboe, d. Jan. 27. „ Amonoo, merchant, d. by gunpowder explosion at Anamaboe, July 20. „ Two Dutch officers killed at Boutry, Oct. 23. 1838. De Graft, Wm., the elder, d. at C.C.C., Jan. 1. „ Thomas Birch Freeman arrived at C.C.C., Jan. 3. „ Foundation stone of the first Anamaboe chapel laid, Aug. 14. „ L.E.L. (Mrs. Maclean) landed at C.C.C., Aug. 15 ; d. at C.C.C., Oct. 15. 1840. Great fire at Anamaboe caused by Attarhu, Jan. 17. 1841. Rev. Thackery, Wes. Miss., d. at Dominasi, July 4. „ Rev. T. B. Freeman started from C.C.C. for Kumasi the second time, Nov. 6. 1843. Appointment of Judicial Assessor, Capt. Hill, R.N., Governor landed, April 5. 1846. Bev. John Martin embarked for Badagry, Feb. 14. 1847. Governor Maclean d. at C.C.C, Dec. 13. 1849. Kweku Akai, King of Appolonia, taken captive and brought to C.C.C, Nov. 29. 1850. Kudwo Tchibbu, King of Assin, d. Nov. 11. 1851. Kweku Akai, King of Appolonia, d. at C.C.C., Dec. 28. „ Joe Aggrey (Brupu), King of C.C.C, d. Aug. 31. „ Nanamu god's grove deserted, Aug. 31. „ Kwesi Anka, King of Donassi, fought Akobina Amoah, King of Abura, Oct. 21. 1852. Foil-tax introduced on the Gold Coast, April 1. „ First Wesleyan Ordination service, Rev. J. Martin ordained, Sept. 27. 1853. Tchibbu and Gabir sentenced, April 1G; beheaded for treason at Dunkwa, April 18. „ Peace established betwccrl Dutch and British Commenda, Sept. 22. 1854. Christiansborg, Teshie, and Labodie towns bombarded by II.M.S. Scourge, Sept 13. 1856. Revs. Daniel and Wm. West arrived at C.C.C, Nov. 18. ,, C.C.C inhabitants fought and revolted against King Kwofi Amissa, Jan. 23; and deposed him, Jan. 28. „ Major Orde interviews native kings and chiefs, Feb. 25 ; sails for England, March 7. ,, Kweku Atta made King of C.C.C, Mar. 12. Samuel Bannerman the elder, d. Mar. 27. 1857. Kwofi Affile proclaimed King of Anamaboe, Oct. 31. NOTABLE EVENTS. xix 1858. Mons Regis Factory plundered by Accra people, Jan. 24. „ Kweku Attah, King of C.C.C., d. Feb. 20. „ Essien, proclaimed King of C.C.C., Mar. 6. „ Governor Sir Benjamin Pine returned to England, May 11. 1859. Prince W. 0. Quantabissa of Asanti, d. Jan. 8. „ Ordination of Solomon, Laing, and Ansah, Jan. 16. „ Christ Church foundation stone laid, April 11. 1860. Gov. Ed. B. Andrews landed, April 19. „ Bentir and Intsin fight at C.C.C., Nov. 25. 1861. Accra market opened by Major Brownell, July 18. , Tuafu and Piranko companies fight, Anamaboe, Aug. 18. „ John Aggrey, prince, C.C.C., d. Oct. 5. „ Wm. Hackett, Q.A., arrived, Oct. 19. 1862. Mutiny of Gold Coast Artillery Corps at the garrison, C.C.C., Jan. 17. „ Earthquake on the Gold Coast, July 10 ; Accra nearly destroyed. „ Lagos made a British settlement, Feb. 8. 1863. Battle of Bobikuma, May 9. ,, Royal African Gold Coast Artillery disbanded, Aug. 19. 1864. Asanti expedition, ammunition thrown into the river Pra; West Indian troops returned to C.C.C. much reduced in numbers by sickness, July 2. „ Riot at Commenda, 18 men killed, Oct. 30. 1865. Kwofi Affale, Amonoo II., King of Anamaboe, d. Oct. 25. ,, Kwa Saman, Amonoo III., of Anamaboe, proclaimed king, Dec. 5. „ Col. Conran landed at C.C.C, Aug. 19. 1866. Christ Church, C.C.C, consecrated, Jan. 19. „ Essien (Crentsil), King of C.C.C, exiled to Sierra Leone by the British authorities, Dec. 8. 1867. Anglo-Dutch Treaty signed, first exchange of territories, Feb. 5. „ Kweku Dua, King of Asanti, d. April 7. 1868. Great Britain takes possession of Dutch Accra, Jan. 4; exchange of Dutch territories completed, Jan. 13. „ The natives of British Commenda object to exchange of territories, refuse the Dutch flag, and evacuate the town, Jan. 31. „ The Dutch bombard British Commenda, Feb. 1. „ Elmina War, commencement of; Kwaprow people attacked, April 4. „ Kweku Atta and Kwofi Amoa, chiefs of CCC, outlawed on sus- picion of treason, April 5. „ Elmina War : Fantis besiege Elmina, May 26. 1869. Amonoo III. of Anamaboe deposed, May 28. „ Amonoo IV. proclaimed King of Anamaboe, July 3. „ Essien (Crentsil) returns from exile in Sierra Leone, April 14. „ Dutch sailors held captives by Fanti kings, redeemed by the Dutch Government, July 15. XX NOTABLE EVENTS. 18G9. Mankessim day-school opened, July 19. „ Abbankrome destroyed by the King of Akumfie, Nov. G. „ Gov. Simpson opened Anamaboe market, April 30. 1870. British Commenda fought the Dutch at Kwissi Krome, Jan. 10. „ Jos. Smith, d. C.C.C., May 25. „ Mrs. Moseley opened a female school at C.C.C., July 1 ; d. Dec. 22. „ Afu Acka beheaded by some natives of Ahanta at night, July 22. „ Amonoo IV., of Anamaboe, returned from Ahanta War, Sept. 17. „ Asanti war chief Akempon, and other captives, released at C.C.C., Oct. 3. 1871. Major Brownell returned from Kumasi, Feb. 13. „ Sixty-two Fanti captives restored by King of Asanti, Mar. 13. „ Small-pox epidemic began at C.C.C., May 13, and spread over the whole country. „ Gov. Ussher left for England, July 18. „ Creation of Fanti confederation at Mankessim, Nov. 24. 1872. Small-pox epidemic raging everywhere. „ Ghartey IV., King of Winneba, June 11. „ Chief Kwow Appia, Anamaboe, d. Aug. 7. 1873. Ankwanda destroyed by Dixcove men, May 28. ,, Elmina bombarded, June 13. „ Sir Garnet Wolseley arrived C.C.C. by ss. Ambriz, Oct. 7. „ Col. Festing defeated the Asantis at Dwukwa, Nov. 3. „ Asantis defeated at Abakrampa, Nov. 7. 1874. Asanti expedition, white troops arrived after the enemy had crossed the Pra, Jan. 1. „ Battle of Amoafur, Jan. 29. „ Slavery abolished on the Gold Coast. 1876. Rev. T. R. Picot visited Kumasi, Feb. 23. ,, Accra new Wesleyan Chapel foundation-stone laid, Sept. 7. 1878. First Wesleyan camp meeting, Akrofur, Jan. 13. „ Mankessim Wesleyan Chapel opened, April 14. „ Adooah's religious excitement at Mankessim. „ Winneba Chapel opened, Sept. 14. 1879. Otu Ansah, King of Abura, d. Jan. 14. „ Fatal riots and fight between Bentir and Anaffu, C.C.C., Sept. 9-11. 1880. Judge W. B. Collyer arrived, Feb. 2. „ Imbia and Bentoom, two of the Bentir rioters, hanged at Elmina, the rope breaking thrice, Mar. 10. „ Wm. Thompson, Court interpreter, d. at C.C.C, June 28. „ W. S. Swatson, d. Winneba, Nov. 29. „ Gov. Ussher, d. Accra, Dec. 1. „ Capt. Davies, of Lagos, tried and acquitted at Accra. 1881. Asanti mission; Buakye Tsintsin, special messenger; golden axe Bent to Queen Victoria by Sir Samuel Howe ; threatened Asanti War, May 16. NOTABLE EVENTS. xxi 1881. Buakye Tsintsin visits Anamaboe on his way to Asanti, Sept. 14. „ Saltpond Wesleyan Chapel opened, Oct. 2. „ Eev. T. Laing, C.C.C., d. Oct. 23. „ Capt. Lonsdale visits Kumasi on a special political mission, Nov. 7. „ Woodcock, Q.A., drowned at Accra, Nov. 4. „ Koraan Catholic Missions started on the Gold Coast, first station Elmina. 1882. Chief Justice Sir James Marshall, K.C.M.G., retired on pension, Aug. 1. „ Comet: superstitious public commotion on its first appearance, Sept. 25. 1883. Acting Chief Justice Bridgman, d. Accra, May G. „ Judge Stubbins arrived, Aug. 16. „ Miss Eliz. Waldron, C.C.C., d. Aug. 22. „ 1st Elmina Wesleyan camp meeting, Nov. 11. „ Abaadzi and Kromantsi fatal riots, Dec. 22. 1884. Blai, a notorious burglar in C.C.C., killed, Mar. 12. „ Birwa Wesleyan chapel built, Mar. 16. „ Chief Asimaku (Jas Idun) of Kwaman, d. April 14. „ Chief Jos. Martin, Amanfur, near C.C.C., d. Oct. 23. „ Kudwo Edukuma of Anamaboe, chief, d. Nov. 9. „ Prince John Ossu Ansah of Asanti, C.C.C., d. Nov. 13. 1885. Beginning of Wesleyan Jubilee Memorial services, Feb. 15. „ Gov. W. A. G. Young, d. Accra, April 24. „ Awusie, chief of Dominasi, d. May 9. „ Kev. Hayfron with Coppin visited Kumasi, May 29. „ Isaac Robertson, Chief Kweku Twim, C.C.C., d. June 8. „ Putubiw and Ekrofur fight, Nov. 9. „ Akwasi Kaye, King of Denkira, d. Dwukwa, Dec. 3. „ Joseph Dawson of Takwa and Wassaw districts, d. Aug. 10. „ Ten Winneba rioters executed at Accra, Feb. 5. 1886. Okum (Joseph Green), chief of Egyaa, d. Sept. 27. „ Jacob (Akai) Williams, d. Axim, Aug. 2. „ The king and people of Adansi, defeated by the Kumasi and Bekwai forces, come into the protectorate for shelter, June 15. „ Assafu Egay, King of Dwabin, d. April 10. „ Chief Justice N. Lesingham Bailey, d. Accra, May 29. „ The great Accra disturbance, when a serious collision between the inhabitants and the Houssa constabulary under Capt. Freeman was naiTowly averted, Oct. 10. „ Telegraph cable landed at Accra, July 12; telegraphic communi- cation with Great Britain completed, July 28. „ Hector Wm. Macleod appointed Chief Justice of the Gold Coast, Oct. 21. „ Akinnie, King of Akunfie, subpoenaed all the Fanti kings and chiefs to meet at Saltpond, April 21. xxii NOTABLE EVENTS. 188G. King of Akwamu visits Accra, July 15. 1887. Kwesi Atta, chief of C.C.C., d. Jan. 3. „ Overland telegraphs opened on the Gold Coast, May 24. „ Gov. Col. White visited C.C.C., June 11, and Auaraaboe, June 23. „ Queen Victoria's Jubilee celebrations on the Gold Coast. „ Arrival at C.C.C. of J. M. Sarbah, the first native of the Gold Coast called to the English bar, Sep. 4. „ Hon. G. F. Cleland, d. Accra, Nov. 26. 1888. Return of F. Egyer Asaam and S. R. B. Solomon from Richmond College to C.C.C, Sept, 9. „ Kwesi Atta of Nanaam fame, d. Assafa, Aug. 10. 1889. Gov. Sir W. Brandford Griffith visited C.C.C, and at a public meeting about Kudwo Imbra's election became the object of much dissatisfaction, Jan. „ Mouree fight : Inkoom and Bentir companies, Feb. 7. „ Rev. T. Maxwell (Sofu Bankye), chaplain to the troops, left for Sierra Leone, May 5. „ Roman Catholic mission started, C.C.C, June 4. „ Over 700 people of Tavievie killed by Houssas, June 24. „ Saltpond Hospital opened, July 8. ,, Kwofi Amissa, ex-king C.C.C, d. Aug. 29. 1890. The great Rev. Father Freeman, d. Accra, Aug. 13. 1891. "West India troops removed from the Gold Coast, June. „ Fosu pond at C.C.C. opened into the sea for the last time, July. „ Commencement of the Influenza epidemic, Dec. 1. 1892. Rev. R. J. Hayfron, Wesleyan Mission, d. Feb. 1. „ Hon. J. Sarbah, d. July 4. „ Rev. David Asante, Basel Mission, d. Akropong, Oct. 14. 1893. Great fire at Chama, when the chapel and half the town were burnt down, Mar. 30. „ Yow Antoo, chief of Sefwhi, left for Cape Coast, where he was tried and convicted of murder and sentenced, about Feb. 4. 1894. Kobina Gyan, King of Elmina, returned home from exile, May 17 ; d. Feb., 189G. „ Messrs. C. J. Bannerman and T. H. Mills, of Accra, called to the English Bar, June 6. „ Hon. Francis Chapman Grant, d. Oct. 4. „ Asanti messengers to England, under J. O. Ansah, reached C.C.C, Dec. 10. 1895. General commotion over proposed Crown Lands Ordinance, Feb. „ Asanti messengers leave C.C.C. for England, April 3. „ Gov. Maxwell relieves Sir W. B. Griffith, reaching Axim, C.C.C, and Accra, April 3, 6, and 8 respectively. „ Gov. Griffith leaves finally for England by Bonny, April 15. „ Elliott, a European agent, and Johnson found guilty of conspiracy to steal, and sentenced at Axim, May. NOTABLE EVENTS. xxiii 1895. Enimil Kwow, King of Wassaw, d. Sept. „ Beginning of Prempe-Asanti expedition; arrival of Col. Sir Francis Scott with Prince Christian Victor, Prince Henry of Battenberg, officers, and European troops, Nov. — Dec. „ Adansi king and people return to Adansi after signing treaty, Dec. 1896. Prempe-Asanti-Expedition. Invasion of Kumasi. Prempe made prisoner with his chiefs and others. „ Prempe arrived at C.C.C., and conveyed to Elmina by H.M.S. Bacoon, Feb. 2. THE PRINCIPLES OF FANTT CUSTOMARY LAWS. PART I. INTRODUCTION. The Gold Coast Colony is supposed to extend from Half Assinie on the west to the river Volta on the east. No one knows precisely what the boundaries of the Colony are, or how far the so-called Protected Territories extend. Having applied to the Colonial Office for information, Her Majesty's Secretary of State for the Colonies expressed his regret that he could not undertake to supply the information which was desired. There is every reason to believe, that in very ancient times, the original inhabitants of this country were not Fantis but a different people. It is a well-estabblshed fact that Cape Coast, the Cabocors of Bosman and other ancient writers, is situate in the Fetu country — a place formerly governed by a Dey. When that state fell, the people were obliged to submit to the laws, regulations, and customs of the Fantis. Meredith, the unfortunate Governor of Winnebah, thus expresses himself concerning the Fanti people : " The Asantis are threatening to pay us another visit, and it is the current opinion, that the Fantis must be either subdued by the Asantis, or means devised to restrain their ungovernable B 2 FANTI CUSTOMARY LAWS. conduct before the country is tranquillized, or before much improvement is effected. The Fantis are now to be con- sidered a large body ; they have brought under their sub- jection, either by threats or favourable promises, a number of small estates ; so that from Cape Coast to the extremity of the Agoona country may be put down as governed by the Fantis. To say that such and such places bear distinct names is now merely to signify that they were formerly inhabited by a distinct people." Fanti, properly so called, begins from the Sweet River on the east of Elmina, and ends at the river Volta, according to Cruickshank. But the Fantis are so connected with the other inhabitants of the whole country, from Assinee to the river Volta on the seaboard, and inland to and beyond Asanti, wherever the Akan dialect is spoken, that, for the purposes of this work, we are not far wrong in designating all the inhabitants of the Protectorate, except Accra and district, as Akan Fanti, or, shortly, Fanti. The language of the country is undoubtedly Fanti — this is the language spoken for general purposes and in everyday transactions; — and it is a fact worthy of notice that Fanti is the lingua franca of the Gold Coast and adjacent countries. The Akan language is nevertheless the parent language — the language of diplomacy and courtiers. The people of Wassaw, Denkera, Fanti Assin, Akim, Akwapim, Asanti, Elmina, and those of the adjacent pro- vinces and districts, speak dialects of the same language, more or less corrupt. This fact favours the belief, and is one of the facts adduced to prove the assertion, that the inhabitants of these districts, provinces, and kingdoms are sprung from the same source, and are branches of the same family. But when one compares their customs, usages, and domestic as well as political institutions, and finds them in the main identical, one does not hesitate to say these inhabitants had a common origin. Well-established tradition has it, that the people were originally living in the regions of tire Kong Mountains, and somewhere in Central Africa. FANTI CUSTOMARY LAWS. 3 Unwilling to turn Moslems, and driven from their homes, they founded a state Takieman ; but, through some reason or other, a portion of Takieman betook themselves towards the coast. This portion came to be referred to as Takieman fa atsiwfu — that is, that portion of the Takiemans who have gone from the main body. In process of time this long, round- about designation became contracted into Mfantsi, or Fanti. The Asanti people were so called on account of their stubborn and obstinate nature. We cannot find out what name was borne by these people of Takieman before the general splitting up. The words " Akan " (Akanfu) arose probably from the way the Mfantsifu referred to those who remained at Takieman. The word Akan to our mind means a remnant ; we have heard these people speak of themselves as Kanye, a contraction of Kannyimpa, that is, a person who has remained behind. Another circumstance tending to strengthen the theory of a common origin is the division of tribes or clans. The whole of these peoples are divided into twelve tribes or clans, wholly irrespective of their several and distinct nationalities. Individuals belong to one or the other without natural distinctions, and it is a characteristic of each tribe or clan, that the members thereof call each other brothers and sisters, father and mother. And when the persons are free (Dihi) it is unusual for them to intermarry. Cruick- shank, writing on this institution, says (vol. i. 49), "A feeling of attachment to each other exists between individuals belonging to these clans, even although of different nations, and we have known instances of inheritances claimed and obtained upon the plea of this relationship, to the prejudice of a blood relation, where there has been no male to come to the succession." The people of each clan have their own separate burial- place, unite in funeral rites and customs, and when a great liability is to be met, these clansmen have been known cheerfully and readily to contribute each according to his means. And often doth the way-lost weary sojourner in 1 FANTI CUSTOMARY LAWS. a most unexpected place, through this relationship, become the recipient of free hospitality. As an instance in point, Beecham records a statement of Mr. William de Graft to the effect that the " chiefs of the several families (clans) are distinguished by certain significant emblems, equivalent to the heraldic signs used in European countries. Mr. De Graft himself is of the Twidan or 'tiger' family, and he distinctly recollects old Baffer, a chief of the same family at Anamaboe, whose sign of office (his umbrella) was surmounted by a figure of the tiger. The emblem of the other families are in like manner figurative representations of the names which they respectively bear ; wherever the distinction between the families is still preserved or is supposed to exist the brother- hood is uniformly recognized. De Graft has known Ins own father attend the funerals of individuals for the sole reason that they were members of the same original or patriarchal family with himself ; and when he resided, a few years since, at Dixcove, he was informed that, some time previous to his going thither, the King of Appollonia sent a present of rice to the inhabitants, when they were suffering from scarcity, as an acknowledgment that he and they were all members of the Ntwa or ' dog ' family. On another occasion, De Graft, being sent by the Governor to publish and explain a proclamation to the natives, was received with the greatest kindness by the chiefs of the Twidan or ' tiger ' family, who invariably, wherever he met with them during his journey, which occupied three months, claimed him as one of their own relatives." As far as can be relied on, these are the principal clans, divided sometimes into three principal classes : Akonnoi, Abrotu, Aburadi, Nsonna, Annona, Yoko, Ntwa, Abadzie, Appiadie, Twidan, Kwonna, and Dwimina. It goes without saying that the Akanfu have a different name to some of these clans. Perhaps it is not a vain dream to hope a time is coming when the several nationalities, united under a beneficent and enlightened Government, will develop and foster the FANT1 CUSTOMARY LAWS. 5 clan feeling and instincts, which in times past have been as free from the impulses, which have degraded the African nature, as great in the qualities, which have ever graced manhood in all ages and under all climes. Others, who have studied this interesting subject, say the various tribes above mentioned were comprehended in seven great families, in which the members still class themselves and recognize each other, without regard to national distinc- tions, viz. : 1. Nsonna, in some localities known as Dwimina. 2. Annona, Yoko, Aguna, or Eguana. 3. Twidan, Eburotuw. 4. Kwonna, Ebiradzi, or Odumna. 5. Ahuradzi, Eduana, Ofurna, or Egyirna. 6. Ntwa, Abadzi. 7. Adwinadzi, Aowin. In this country the system known amongst jurists as the patriarchal system prevails. The (Agea or Penin) father is the head of his family. Within his compound he reigns supreme over his younger brothers and sisters, his wives and children, his nephews and nieces, and his grandchildren ; and if he be a man of wealth, his servants, pawns and slaves. So long as a father who is free lives, all his children and grand- children, by a free woman, not residing with their uncle, are under his authority and power. Married people here have no community of goods, but each has his or her particular property : the man and his wives generally adjust the matter together, so that they are able to bear the charge of housekeeping, while the clothing of the whole family is at his sole expense. Bosman, who wrote in 1700 his " Description of the Gold Coast of Guinea," says, " On the death of either the man or the wife, the respective relations come and immediately sweep away all, not leaving the widow or widower the least part thereof, though they are frequently obliged to help to pay the funeral charges." We mean by servants persons who are being trained or 6 FANTI CUSTOMAUY LAWS. brought up iu the house, as well as persons who are working in the house for their living. Among the people, one often sees persons in the same position as Jacob held in the house of his uncle Laban. Slaves. — On proper analysis of the incidents of this con- dition, one is quite reluctant to give the name " slave " to persons in bondage. The word " slave," to the European ear, conjures up horrible atrocities — kidnapping, murder, blood- shed, fire, plague, pestilence, famine, whips and shackles, ruined and desolated villages, and all that debases and makes man worse than the brute beasts. The Fanti terms for a person in a state of bondage are — 1. Tennie', that is, native of the Intar country. 2. Donhor, said to be corruption of words meaning captive of an army. It has been already stated the Fanti/w and Akan/w have one origin, and as such were free persons. As wars take place and war captives increase, slavery bears a recognized state, and the issue of a female slave continue slaves. The terms Tennie and Donkor are reserved exclusively for foreigners who are in bondage. There is another term, Akuwa (feminine, Afunaba), meaning a dependent. Like the Hebrews of old, there is a distinction between bondmen captured in war or purchased from another distinct tribe, and bondmen of the same tribe. Great numbers of the former were annually imported from districts outside Asanti, where these persons were either captured in war, or were received by way of tribute from conquered states by the Asantifu. These, on being sold, are they who can be properly called slaves. When the iniquitous and accursed slave trade stirred up the cupidity and all the degrading passions of men, it became highly expedient for every person to be under the protection of a powerful neighbour ; it became absolutely necessary for every individual to belong to a household. At this period, clan feeling and clan hospitality becoming weakened began to decay, because FANTI CUSTOMAKY LAWS. 7 cupidity and blighting avarice were supreme. The solitary traveller was no longer safe. The hunter who had wandered too far from home in pursuit of game, the farmer on his secluded farm, women going to market or to the spring, were ruthlessly captured and sold into foreign slavery. Then it was that parents, spurning all holy impulses, and dead to natural love and affection, sold their very offspring into foreign bondage. But through all these horrors, through fire and sword and bloodshed, which desolated many a prosperous village, amid all the wailings of the unhappy captives, the distinction between the alien slaves and native bondmen was well marked, and never once do we hear any native in bondage called a slave, a Donkor. It is only misfortune that has brought him into that condition, and though such person cannot interfere in the affairs of his own family, being regarded for the time as dead, nevertheless as soon as he regains his freedom, whether by his own exertions or by the aid of his family, or by the favour of his master, at that very instant he is reclothed with his family rights, and he returns to the same position in his own family as though he had never been in servitude to another, and as completely as the Eoman Law, by Jus postliminii, restored to the original owners property taken in war and retaken from the enemy, and re-established in all their former rights, all captives who had returned to their own country. Consulted by Judicial Assessor Chalmers, in the case of Kendall v. Quabina Abbakan, August 25, 1871, Mayan and Amoah, Chiefs, said: "According to custom, when a man is married and the woman dies, he is never entitled to the property of the woman, and in all cases that a man took a woman without marrying her properly, and the woman had a child by him, the woman dying, the man would not be entitled to keep the child, but the mistress would. The child must live in the father's house. In case of son of slave, he lives in his mistress's house, but visits his father's house. " By the Court : Do persons who have been made free s FANTI CUSTOMARY LAWS. retain any relationship to the family of which they were members ? " They call themselves family. If the slaves all belonged to one country and they happened to be with one master, and the master set them free, they retain relationship to one another because they all belonged to one country ; though the master had made them free, they retain relationship to their master, because they did not belong to the place where they were freed. We speak of the sixteen girls of Mr. Hutton. If a slave was a Fanti, when he was freed by his master he goes to his relations ; but if not a Fanti, but Donkor, he retains his relationship to the master because he knew no one else and would not find his way to his country, and if his master had any relations he sticks to them. Persons freed have right to go where they like, but their master looks after them that they may not be molested." And judgment was given in accordance with what was so laid down by the two chiefs. And as recently as August 2, 1895, Assistant Puisne Judge Hayes Kedwar followed Judicial Assessor Chalmers, and accepted the correctness of the custom in Cromwell v. Arba and Krabba, Insarkun claimant. The freeborn inhabitant enters into a state of bondage from several and various causes. As in feudal Europe, unprotected peasants commended themselves to a powerful or influential neighbour, even so in former days on the Gobi Coast, persons and wbole families, threatened with danger or pressed by hunger in a time of famine, were accustomed to throw themselves at the feet of one who could protect them from the foe, give them sustenance, or employ them. Persons like these become members of the family tbey have appealed to, and become merged therein in process of time by marriage and other ways. Others, pressed with debt, give up themselves and all their possessions in pledge to the man who would pay the whole. Persons of this class do not lose their clan distinction, even though they remain in bondage for many years. They are members of the master's household, but not of his family. FANTI CUSTOMARY LAWS. 9 There is another class of persons, who, for some great service rendered to them, their relations or ancestors, are bound to serve their benefactor and his family. These persons, whose services are transferable from master to master, and who may be said to be a species of mercenary soldiers, swell their master's retinue, defend his person, and magnify his importance. In some places these persons are bound to help their master at the season of tillage, sowing, and harvest. Standing between the slave and the bondmen is the Pawn, whose lot is the hardest. Before pawning was abolished, a person in embarrassed circumstances wishing to obtain a loan, usually placed one or more of his family or slaves in temporary bondage to another. Says Cruickshank, " The terms of this contract are that the pawn shall serve his new master until such time as the person pawning him shall make good the sum lent, with fifty percent, interest; the services of the pawn, even if they should extend over a great number of years, counting for nothing in the liquidation of the debt. If a woman has been pawned, her new master has the right to make her his concubine, and her children continue to serve him also." It must be remarked here, that Cruickshank is in error as to the master's right to concubinage. As a matter of fact, unless it was distinctly stipulated, at the time of giving the pawn, that the master or his successor may so treat the female pawn, any improper behaviour of this nature by the master or any of his blood relatives or any of his servants invariably cancelled the debt, and discharged the pawn and her family from all liabilities. " A father cannot pawn his child without the concurrence of the mother's relations, unless the mother herself be his slave. Neither can a mother pawn her child without the father's consent ; but if he cannot advance the sum required, then she can do so. We have always regarded this system of pawning as much worse than actual slavery, and we have 10 FANTI CUSTOMARY LAWS. seen but too many of its victims irrecoverably reduced to perpetual bondage." There are many instances where slaves have succeeded to their master's property, but a pawn is always considered a stranger, and never do we hear of one so succeeding to his master. Bosnian, the Dutchman writing in the year 1700, makes mention of the several social degrees which he had observed, namely :— . (1) Kings or Captains. (2) Caboceros. (3) Rich men. (4) The common people ; and, lastly, (5) Slaves. Slavery has been abolished as from December 17, 1874, by Ordinances 1 . and 2 of 1874, but it is provided that " nothing shall be construed to diminish or derogate from the rights and obligations, not being repugnant to the law of England, arising out of the family and tribal relations customarily used and observed in the Protected Territories ; " and this clause received judicial explanation in Bimba v. Mansa. What Bosman wrote is so accurate, and is in the main so true now as then, that it claims attention, since "it shows the conservative nature of native institutions. Says Bosman, " I have observed five degrees of men amongst the negroes, the first of which are their kings or captains, for the word is here synonymous. " The second, their caboceros or chief men, which, reduc- ing to our manner of expression, we should be at a job to call them civil fathers, whose province is only to take care of the welfare of the city or village, and to appease any tumult. " The third sort are those who have acquired a great reputation by their riches, either devolved on . them 1 ly inheritance or gotten by trade. " The fourth are the common people employed in the tillage of wines, agriculture, and fishing. FANTI CUSTOMARY LAWS. 11 " The fifth, and last, are the slaves, either sold by their relations, taken in war, or come so by poverty. "The dignity of king or captain in most of these countries descends hereditarily from father to son, and, in defect of issue, to the next male heir, though sometimes so much regard is had to his riches in slaves and money, that he who is plentifully stored with these is often preferred to the right heir." King is not synonymous with captain. Ohin means chief; Oman-hin, king ; Safu-hin, a captain. The confusion which exists in many of these things, arises solely through the faulty interpretation of incompetent, ill-taught, and stupid interpreters. The headman of a village, merely as such, is not, and can be only slovenly called Ohin, a king. If he is a captain under some king, he is called so-and-so's Saffu- hin ; but his usual and most correct appellation is Odzi-kro. The foreign term Caboceer has fallen into disuse, and the ordinary term Omanfu is not so often used in these days as Penyin, Penyinfu. The persons holding this office are commonly limited in number, and are appointed by election. See Cruickshank, vol. i. ch. 9. A person reputed rich by inheritance or trade is called Brompon. But unless such a person is successor to a stool, his wealth alone cannot make him the occupant of a stool. The king of a district, with his town councillors, can create a stool, and thus confer on the occupant a political position. Along the coast are towns, which, for martial purposes, are divided into companies. The one at Cape Coast Castle is fully described in the letter written by the Mayor of Cape Coast Castle to the Chief Justice, dated November 29, 1859. " SlE, — I consider it my duty to forward, for the informa- tion of your Honour and of the Executive Government, the following circumstantial account of the events leading to and connected with the recent unhappy disturbances in the town of Cape Coast. "2. Your Honour will better understand the statement 12 FANTI CUSTOMARY LAWS. I am about to lay before you, if I preface that statement by a brief account of the nature and organization of those bodies known as town companies. " 3. The town of Cape Coast is divided into seven com- panies or quarters. "These are: -No. 1, Bentil; No. 2, Anafu ; No. 3, Intin; No. 4, Inkoom ; No. 5, Brofu-mba (artificers) ; No. 6, Volun- teers ; No. 7, Amanful. "Each company occupies its awn part of the town, and Although some persons properly belonging to one quarter sometimes happen to reside in another, yet, on the occasion of any outbreak, these go up to that quarter to which they originally belong. " 4. The companies are commanded by Saphohins, or chief captains. The chiefs have nothing to do with them, nor indeed has the king himself. The companies may be de- scribed as so many little republics, each independent of the rest, and having its own officers, laws, and customs. Over every company there is a Saphohin, and he has under him subordinate captains, who are elected by the companies. These captaincies may be said to be hereditary in some sort, more from custom than by law ; the companies generally preferring to elect the sons of deceased captains to succeed their fathers. When a company makes any new law, it is done in a public assembly of themselves, and communicated to the other companies, who, if they have any objections to raise, do so at once, when the matter is discussed. " 5. The Saphohin, or chief captain, holds supreme au- thority in every company. He is the sole depositary of the power of the company, and the exponent of their wishes. "6. Each company has its fiag; but besides its regular ' company fiag,' each company has in addition a variety of fanciful flags with devices on them, intended to represent some event or circumstance connected with the history of the company that carries them, or of some rival company. " 7. When making their grand customs, each company, if it has no quarrel with any others, passes through the various FANTI CUSTOMARY LAWS. 13 quarters of the town with its original 'company flag,' but when there is a desire to convey defiance or insult, a com- pany, in passing through the quarter inhabited by the company whom it is desired to annoy, will there display a flag having some device ostentatiously offensive. " 8. In the same way, whilst each company has its war- songs, which, without being offensive to other companies, are, of course, self-laudatory, each has also a habit of exciting rival companies by singing insulting songs at the same time that the objectionable flags are paraded. " 9. From time immemorial these flags and songs have been the cause of ill-feeling, strife, and bloodshed, as has unfortunately been the case in the present instance." This letter was written at the time of a serious civil fight at Cape Coast Castle, which resulted in the case of the Queen v. the Captains of Bentil and Intin Companies, wherein the Chief Justice delivered the following judgment : — " The Court also requires that all the companies of the town shall, within one month, send into the fort such flags as they wish to use in future, for the approval of the Governor, who, if he disapproved, will substitute some other in its place ; and the patterns and colours of all that may be approved will be registered in the secretary's office in the fort, and the exhibiting of any other flag by any com- pany will be rendered and proclaimed to be utterly unlawful, subjecting the persons doing so to heavy penalties. In the mean time, the use of any new fiag or flags not now in use is hereby strictly prohibited. " The king's authority while it remains must in all lawful matters be obeyed, but there are ample means of appealing against any unjust or oppressive exercise of it." This judgment clearly shows how often laws are enacted in these days in absolute and entire ignorance of what has been done in times past. And viewing events since then, one is drawn to the conclusion that, had this judgment been enforced, many a fatal civil fight would have been averted, 14 FANTI CUSTOMAHY LAWS. many lives saved, and the new ordinance about flags and tribal emblems, wliich has not yet made civil fights im- possible, better drafted in every respect. Without giving a full historical outline of this country, persons administering justice may well bear in mind the words uttered by the late Judicial Assessor and first Puisne Judge of the Supreme Court, Sir James Marshall. Speaking at the Colonial Exhibition in London, 1886, he said : " The Gold Coast must remain the country of the natives, but with a handful of Europeans among them who have the power by which they rule these people and enforce obedience. And whenever this rule is carried out and enforced according to European ideas, without consideration of the ideas, equally ancient and equally deep rooted, which pervade the native mind, it may break and destroy, but without securing any real improvement. My own experience of the West Coast of Africa is that that Government has for the time suc- ceeded best with the natives, which has treated them with consideration for their native laws, habits, and customs, instead of ordering all these to be suppressed as nonsense, and insisting on the wondering negro at once submitting to the British constitution, aud adopting our ideas of life and civilization. As Judicial Assessor I was a sort of head chief, and sat with the local chiefs in Court, hearing causes brought by natives among themselves. " By this I learned that a complete system of laws con- nected with both land and personal property existed among them, which had been handed down by oral tradition from time immemorial, and was better suited for them than our modern feudal elaborate and intricate laws of real and personal property. The natives of the Gold Coast and West Africa have a system of laws and customs which it would be better to guide, modify, and amend, rather than to destroy by ordinances and force. So they have their chiefs and court forms and etiquette, their own customs and mode of living, which will not be improved by ridicule or forced abolition." We have seen it stated somewhere that native laws FANTI CUSTOMARY LAWS. 15 and custom know nothing of crimes ; but we must differ from that opinion. They do know of crimes, which are few in number, and they invariably bring the death penalty. At first by the decisions of Maclean, then by the famous bond of 1844, the Fanti rulers agreed to the British Govern- ment having exclusive jurisdiction in matters criminal. Maclean created the Gold Coast Protectorate, but the British Government did not and do not own the soil of that country beyond the actual sites of the forts and castles in their possession. It was in 1836 that the President in Cape Coast Castle assumed power and tried Adoasi and Anumah for wilful murder. On receipt of the report of this trial reaching England, the Committee of African Merchants, in their despatch of October 20, 1836, wrote : " Your proceedings in Council of April 6, in reference to the trials of Adoasi and Anumah for wilful murder, we observe were conducted in the Public Hall of Cape Coast Castle in your presence and that of the Caboceers and Peynins, and, found guilty upon their own confession, these men were executed. It seems from your information to us, that there has been a very important departure from the proceedings of our Criminal Courts, inasmuch as the confessions of the prisoners had been admitted as the chief evidence against them, but of the justice of the sentence there can be no doubt. These remarks lead us to remark to you, which we feel bound to do, that WE HAVE BEEN INSTRUCTED EXPRESSLY BY LORD GLENEG, ' that the British Government pretends neither to territorial possession, nor to jurisdiction over any portion of the Gold Coast, excepting the actual site of the several forts and castles.' It is, therefore, necessary that your authority should be exercised with very great caution." We have seen the original of this letter, which was published in the Gold Coast People newspaper of May 20, 1892. More light is thrown on this matter by the papers printed in the Appendix. 16 FANTI CUSTOMARY LAWS. CHAPTER I. FANTI CUSTOMARY LAWS. Fanti laws and customs apply to all Akans and Fantis, and to all persons whose mothers are of Akan or Fanti race. If a person travel to or reside in a foreign country, he does not lose the henefit of the laws and customs of his native country, province, or district. As a general rule, the right or property of a Fanti is in no way forfeited, diminished, impaired, or affected by change of religious opinions. But where the persons entitled to the immediate succession of an ancestral property do not acquiesce in, and the dependents raise an objection to, a change of religious opinion or belief, an absolute bar is thus raised to succession to stool property. Where a person, head of the family, changes his religious belief and becomes a Christian, he thereby becomes liable to be removed. For instance — Kudwo, the eldest nephew of his uncle, who is possessed of a large ancestral stool property, forsakes heathenism for Christianity. In his family, ancestor worship is practised, and at the stool festival every year, the head of the family goes through the necessary sacrifices and makes the libations to the spirits of those departed this life. In such a case, the other nephews are preferred to Kudwo, who is passed over. But where Kudwo, while on the stool, changes his religious belief, he must depute some one to perform the necessary stool ceremonies, and if he neglect so to do, his negligence will be a good ground for removing him from the stool. Colour is no bar to the right of succession by the native laws and customs (Hutlon v. Kutah). By the Supreme Court Ordinance, 1876, sect. 19, native laws and customs are to be enforced in certain specified class of cases, and sec. 92 provides for calling in the aid of Referees on native laws and customs. A learned writer has recently said, in discussing Indian topics, it cannot be too strongly asserted that there is great FANTI CUSTOMAKY LAWS. 17 danger in too indiscriminately applying the technicalities of the English Law to a country like India, whose institutions, popular traditions, and prejudices are so entirely different from those of England. Indian customs are not to be tested by the arbitrary rules peculiar to English law, but rather, as Sir Erskine Perry, Chief Justice, well remarked, by the rules of universal applicability.* If such caution is still necessary in discussing Indian customary laws, much more is it essential when investigating any customary law, or custom, or usage, or local institution in any part of the Gold Coast. We justify all references to India and Indian decisions in this work by pointing out the remarkable resemblance and similarity between the customs and usages of some parts of India and those which are herein treated. To give only one instance : the rule of succession in Malaba and among the Canarese is through the female line, and almost identical with the Fanti Customary Law of succession. Moreover, it was in India that the eminent jurist Sir Henry Maine pursued his researches and studies in juris- prudence ; and there, for a longer period of time, Indian judges, afterwards members of the Queen's Privy Council, had been administering Customary Law and testing the usages of several semi-civilized communities. It has been said that to the great and eminent judge and profound scholar Sir William Jones belong the renown and credit of first having directed the attention of the British Government to the vital importance, nay, the imperative duty * "This custom has not only been attacked on the score of un- reasonableness, but it has been tested by every one of the seven requisites which Blackstone has laid down for the validity of an English custom. It may be asked, however, and I did ask why the various special rules which have been laid down in any particular system, and some of which clearly have no general applicability, should be transferred to a state of things to which they have no relation. ... I apprehend that the true rules to govern such a custom are rules of universal applicability, and that it is simply absurd to test a Mohammedan custom by considerations whether it existed when Richard I. returned from the Holy Land, which is the English epoch for dating the commencement of time immemorial " (Perry's Oriental Cases, p. 120). C 18 FANTI CUSTOMARY LAWS. of allowing the natives of India the benefit of their own laws and customs.* Outside India and the great East, the Gold * " In a letter of 19th March, 1785, addressed to Lord Cornwallis, the then Governor-General of India, he said nothing could be more obviously just than to determine private contests according to those laws which the parties themselves had ever considered as the rules of their conduct and engagements in civil life, nor could anything be wiser than by a Legislative Act to assure the Hindu and Mussulman subjects of Great Britain that the private laws which they severally hold sacred, and the violation of which they would have thought the most grievous oppres- sion, should not be suppressed by a new system of which they could have no knowledge, and which they must have considered as imposed on them by a spirit of rigour and intolerance." As a result of his great efforts in India as well as in England, the British Parliament, by 21 Geo. III. cap. 70, and the Indian Legislature by Regulation IV. of 1793, enacted that in suits regarding inheritance and succession to lands, rents and goods, marriage caste, and all matters of contract, and dealing between party and party, the laws and usages of Mohammedans in the case of Mohammedans, and the laws and usages of Hindus in the case of Hindus, should constitute the general rules by which the judges were to form their decision. This principle has ever since controlled Indian legislation ; thus the Punjab Code Act IV., 1872, directs in sec. 5, " in questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partition or any religious usage or institution, the rule of decision shall be : — (a) Any custom applicable to the parties concerned, which is not contrary to justice, equity, or good conscience, and has not been by this or any other enactment altered or abolished, and has not been decreed to be void by any competent authority ; (b) The Mohammedan law, in cases where the parties are Moham- medans, and the Hindu law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provision of this Act, or has been modified by any such custom as is above referred to. " Sect. 6. In cases not otherwise provided for, the judges shall decide according to justice, equity, and good conscience. " Sect. 7. All local customs and mercantile usages shall be regarded as valid, unless they arc contrary to justice, equity, or good conscience, or have before the passing of this Act been declared to be void by any competent authority." Among many decisions bearing on this matter may be noted that of Mr. Justice Lindsay : " I think the courts are bound to inquire whether a custom existed even when not specifically pleaded ; and only when the parties specifically declare they desire to abide by Mohammedan or Hindu law, can the courts in my opinion set aside the FANTI CUSTOMARY LAWS. 19 Coast, which formerly included Lagos, is the only Crown colony in the British Empire to which this beneficent Indian principle has been extended, for neither for Sierra Leone nor the Gambia was any provision made for the recognition of native law or custom or any local usages. The Supreme Court Ordinance, having noticed the existence of native laws and customs, practically imposes a duty on the courts to give effect to them, in the class of cases therein specified, and, to enable the courts so to do effectually, by sect. 92 above mentioned provides for the assistance of referees. It cannot, therefore, be correct to say, as it has been sometimes said, that the native laws and customs are foreign matters which, unless proved, cannot be recognized or noticed by a judge. For if that view be correct, then what can be the necessity or effect of the concluding sentence of sect. 19, -'that no party shall be entitled to claim the benefit of any local law or custom if it shall appear . . . that such party agreed that his obligations . . . should be regulated exclusively by English law " ? Applying the method of Mr. Justice Lindsay, perhaps the court should find out the native law or custom, if any, bearing on the_ matter in dispute before it; next, discover whether the parties agreed to be bound by English law, and whether such English law was to bind them exclusively or partially. The comparatively modern practice of parties to a suit calling experts as witnesses to prove what is the custom, is of doubtful value, and has been the means of some erroneous opinions finding their way into the records of the court as native laws and customs. Having learnt the history of some of them, care has been taken to exclude the same from the cases reported in this work. It is always safer and better for the court, after the parties have stated the native laws or customs they rely upon, to seek the assistance of others who may be question of custom. It is the intention of the Legislature that the courts shall find out by oral examination the points in issue between the parties, whether they consider law or custom applies to their case and frame issue accordingly." 20 FANTI CUSTOMARY LAWS. versed in the native laws and customs, and to do so in the way known to the judicial assessors and the person who framed rule 92, who knew the practice, subsequently followed by Mr. Justice Hector Macleod. But the question that demands an answer arises : what is meant by the terms " any law or custom," " such laws and customs," "local law or custom" in the said sect. 19; and " native law or custom " in sect. 92. As far as can be ascertained by research in the records at Cape Coast Castle, and by inquiry at every available source, only once has the court endeavoured to throw light on the subject, and this was in Wclbcch v. Broivn before the Full Court of Appeal. Unfortunately that court was not unanimous, for Mr. Justice Macleod, an eminent and most painstaking judge, who had a varied experience in the courts at Lagos, Accra, and Cape Coast Castle, and whose knowledge of native customary laws and the customs and usages of the people was certainly equal to, if not greater than, that possessed by the two other judges of the Court, being of contrary opinion, distinctly said, " I do not find it necessary to give any opinion as to the meaning of the words native custom, and I must not be understood as coinciding on that point with the Chief Justice." It will be noticed how the judges, who essayed to discuss the point, confined their remarks to native customs ; they said nothing about native law. The reason may be that the point was not raised or was not before the court ; but jurists, however, have always felt a difficulty in so defining the term Law, as would make it comprehend not only express enact- ments by a sovereign legislature, which Austin and his disciples alone admit to be law properly so-called, but also those rules regulating conduct and usages, which are habitu- ally acted upon in the ordinary affaire of everyday life, in communities having no regular political organization, without at the same time confusing mere notions of abstract morality which do not even possess the essentials of what Austin calls positive morality. FANTI CUSTOMAKY LAWS. 21 It is universally admitted that wherever there is an assemblage of persons united together for common purposes or ends, there must be some notion of law ; for mankind have, as Cicero observed, a genius for law. " That there must be a supreme power in every state or in every self- dependent community," says Paterson, "is an axiom which cannot be explained, but which must nevertheless be assumed. Even in the rudest forms of state there is a similar power, whether lodged in the patriarch or the elders of the tribe, and it is usually found to assume by turns a legislative, a judicial, and an executive phrase. This supreme power is only a synonym for that human voice, which cannot be resisted by any one individual or by any minor combination of them short of the majority ; for when- ever one resists it, all the other individuals readily combine consciously or unconsciously to uphold it." The family group being the unit of society among the peoples on the Gold Coast, Asanti, and neighbouring states, in the head or patriarch of the family resides the supreme power. The towns scattered over the country have grown from villages originally founded and occupied by single family groups, the members whereof, bound together by ties of kindred, possessed rules of life naturally simple, which were observed more because they were in accordance with the general notions, views, and convictions obtaining or current among them, than from any undesirable results their violation or breach may cause. As the family group gets larger, and the village community grows, and the households increase in number, the public or general affairs of the community are guided by the patriarch of the family, now the headman of the village, who acts with the assistance of the village council composed of the heads of the other family groups or households and others, usually old men. The village council thus represents the fountain-head of the common life, and its determination finds expression in the popular voice (Amfoo v. Yardonuah ; Ghambra v. Ewea). There exists in such community much of those positive 22 FANTI CUSTOMARY LAWS. rights and obligations constituting that Austinian Positive Morality, which may be called the Customary Law, and which each person can enforce against his neighbour, either by means of the village council sitting and acting judicially as a local tribunal, or by invoking, as already stated, the silent force of the popular sanction according to an usage long established or well known, all of which, more or less, possess an imperative attribute, and therefore rightly par- take of the character of law. "To restrict the term law," says Mr. Kattigan, " to statutory law would be to throw all early or semi-civilized communities into an absolutely lawless condition, which is not inconceivable but diametrically opposed to all we know concerning them, and especially of a large and typical class still existing in India. While on the other hand, to attempt to make a definition sufficiently flexible to include statutory as well as Customary Law, is to be reminded of the Roman jurist, omais definitio in iurc civile pcriculosa est. It may, however, be said that law in the earliest stage of its existence represents nothing more than the will or conviction of a community, whereby a given rule is adopted by common consent to govern the conduct of its members in their relations with each other." We take consent to mean, not one of neces- sity formally given at a particular time or place, or promul- gated by a person or body of persons having power, or whose duty it is so to do, but a common consent which prompts the repetition of a single action by others, or which is evidenced by that tacit acquiescence in the existence of a rule, which commending itself to the individuals composing the community, is found to be of the greatest utility by such individuals shaping their conduct or guiding their trans- actions in consonance with or within its scope. As by repeated course of action a habit is acquired, so from isolated instances an usage springs up, which in process of time comes to be the Customary Law ; or as Professor Newman hath it somewhere, " Law is everywhere built on usage," an opinion perhaps identical with the train of thought suggested by Her- bert Spencer when he speaks of the " gradual establishment FANTI CUSTOMARY LAWS. 23 of law by the consolidation of custom. Every new member of the family or village community at las birth, or admis- sion by purchase before the abolition of slavery, or by com- mendation or any method, finds existing general usages which regulate his rights and obligations, and to which, under pressure of circumstances or the popular sanction, as already stated, he must submit. Submission or war to the knife is the substratum of all human companionships, and the new comer, on his arrival, must submit to what he finds already existing. As the original community gets larger, as aforesaid, many of the rules formerly observed within a small circle of persons gradually acquire a wider operation, moulding and controlling the habits of the people within its sphere. By such process, say some writers, arose that large body of undigested Customary Law, which, although evidenced by long usage, is founded really on a pre-existing rule sanctioned by the will of the community, and which in the history of every nation is found to be long anterior to the more formal written law. This process is still going on throughout the Gold Coast, and the regions over which the Asanti sway once extended. As law is said to derive its force by publication, so is it correct to say that Customary Law exists by usage. The Customary Laws on the Gold Coast are not written laws, by oral tradition they have been handed down, and they are developed by usage. It will be found in the native tribunals, that whenever there is any new case, the like of which had not been known previously, the difficulty is got over by making a new rule, concealed under a fiction that it is only an old pre-existing custom, perhaps fallen to the back ground, that is being applied, restated, and made prominent. Besides this more general source of the formation of the Customary Law, are the comparatively few orders or commands issuing from the chief or headman of a tribe, which on ex- amination will be found to be negative in character. Such laws usually forbid the commission of certain specified acts or the pursuit of a certain line of conduct under penalty, and state that a person contravening such command shall be 24 FANTI CUSTOMARY LAWS. considered to have broken or taken in vain the great oath of the native tribe, village community, or ruling power, as the case may be, and so subject to all the pains and penalties issuing therefrom. In the same manner, the headman of a clan, or the senior members thereof, can make an order, which has the force of law binding on the clan, and which the members are bound to obey. If such law is against the interest of the clan, or is considered oppressive, it can be only repealed by the headman and senior members, or, on their being lawfully removed, by a new headman with other senior members repealing such obnoxious law. So also are laws made for a company by the head captain, acting with and by the consent of the committee of captains having the management of the company affairs. Persons offending against or disobeying such laws are liable to be expelled the clan or company as the highest punishment. Laws emanating from such an ascertainable or specific source must be published before they can have any force, and this must be done by the beating of a gong in the public streets, beginning at the public place of meeting and ending there, and in places where those to be effected are wont to assemble. Most of these laws have become merged in the Customary Law, while those dealing with matters covered by the English criminal law have in the protected territories ceased to exist since the Bond of 1844. The term Customary Law in this work means and embraces the general and fundamental principles of the Customary Law well known over the whole of the country, and which law has sprung from usage, as well as laws or commands made by chiefs or rulers, headmen, the village council, headmen of clans, and company captains. As such Customary Law is continually being generated among a people advancing in civilization as the inhabitants of the Gold Coast are and will continue to advance, and having regard, further, to the fact that it is nowhere forbidden any chief, headman, village council, head of clan, or company committee of captains, to make new laws as has been done from time immemorial, we know of no native laws other FANTI CUSTOMARY LAWS. 25 than those which have been described, and if the Supreme Court Ordinance does not refer to this kind of law, then it refers to what did not exist. It is also clear from sect. 92 that Customary Law or usage does not become native law by its having been judicially noticed in a suit. Having endeavoured to state the sources of, and to explain what is the native law, to the question now remaining, what is native custom, the answer is, usage — which, developing into custom, becomes apparently crystallized and merged into native law. But from the standpoint of the natives, an usage is invariably the practical result of the application of some principles of the Customary Law, however much such usage may be influenced by the time when, and place where it first sprang up. In the native tribunals there are no difficult problems produced by a combination of circum- stances, however novel or intricate, which remain unsolved. The process of deduction may be unsatisfactory, but the result frequently commends itself to the general public. Assuming that the judges in Wclbeclc v. Brown meant by the word " custom," and used it as a general term for " native laws and customs," Chief Justice Bailey expressed the opinion that he had no reason to suppose that when the draughtsman of the Supreme Court Ordinance, 1876, spoke of customs, he meant anything more or less than that word imparts to legal ears ; and Mr. Justice Smallman Smith, concurring with the Chief Justice, said : " We must of course conclude that the native customs to which the Supreme Court Ordinance of 1876 requires us to give effect in the administration of the law of this colony, must be such as in the contemplation and according to the principles of English jurisprudence would be regarded as customs, that is to say, such as have existed in the colony from time immemorial, or ' to which the memory of man runneth not to the contrary.' " The English law has several rules by which the validity of any custom or usage must be tested. When one studies the said English law, he discovers one of such rules to be, that for a usage or custom to be valid, it must be 2(5 FANTI CUSTOMARY LAWS. immemorial or ancient, having existed "from the time whereof the memory of man runneth not to the contrary." On further investigation it is found that hefore the Pre- scription Act, by the statute of Westminster (3 Edw. I.), a period of legal memory was established distinct from that of living memory, whereby prescriptive claim was taken to be indefeasible if existing before the reign of King Richard I. in a.d. 1199. One need not fully go into the reasons assigned by English lawyers, who say King Richard's reign was taken as the limit, because from that reign only exists a connected record of legislative enactments, the laws of the realm prior to that reign having been merged in the general custom. " In like manner," says a writer on Indian institution, "with regard to India there was no system of legislation in force at all prior to our rule, nor has any authentic record of the law administered by native Courts come down to us. Under former rulers Might generally formed the standard of Bight, and disputes between private- individuals were for the most part settled by arbitration. Such a course of proceeding naturally favoured the creation of Customary Law, handed down traditionally, and acquiring its force according to the frequency of its practical applica- tion and recognition. Accordingly, if we take the analogy which the English law affords, we should require every custom to be at least as ancient as the commencement of our rule, which would in fact constitute the limit of legal memory in this country. And this was the principle which Sir Charles Grey, the Chief Justice, actually affirmed in a case which came before him in the late Supreme Court of Calcutta." If such opinion be accepted for the Gold Coast, it follows that as soon as any new district is brought under the juris- diction of the Supreme Court, the legal memory, of which so much was made of in Welbeck v. Brown, starts into beni- from that day, and not from 187G, the date of the Supreme Court Ordinance. The most important question is, Did the judicial assessors act in accordance with or under the English FANTI CUSTOMARY LAWS. 27 rules or tests at any time ? Certainly not. We know when and how that office was created, and who filled the post from time to time. The first Chief Justice and first puisne judge of the present Supreme Court had been judicial assessors, and in the Assessors' Court, which was the highest native Court (Buafoo v. Enimil), was administered not only the general Customary Law, which the learned assessors treated as the common law of the land, but mindful of her Majesty's instructions to Mr. Hill, the then Governor of the Gold Coast settlements, they gave to the general Customary Law the desirable flexibility and adaptation by enforcing new customs and usages in the same way as the native tribunals were wont to do, and so keeping abreast of the times, their decisions satisfied that rising standard of justice which continues to grow and expand from age to age. Eminent judges in India and the East are doing the same thing. Says West, J., in Naikin v. Esu Naikin, " in Abra- ham v. Abraham, 9 Moore's Indian Appeal, 195, the Privy Council say that customs and usages dealing with property, unless their continuance is enjoined by law, as they are adopted voluntarily, may be changed or lost by desuetude," and though race and blood are independent of volition, usage is not. . . . Custom can be entitled to recognition as a law, only in virtue of some power outside the court which has given it validity, and this must be the autonomy of the people in matters not withdrawn from their plastic power by positive legislation and the principles implied in its enactments. " The history of English law illustrates the true capacity of custom or usage, as a source of law, in a striking manner. On the one hand, we find it laid down by Tindal, C.J., in Tyson v. Smith, 9 A. and E., p. 421, that a custom is not invalid merely because it is contrary to a rule of the common law ; while on the other, it is said by Abbott, C.J., in B, v. Joliffe, 2 B. & C, p. 59, that " if that custom be against any known rule or principle of law, it cannot stand, however great its antiquity." No doubt the apparent contradiction is explained by a consideration of the 28 FANTI CUSTOMARY LAWS. different scope and purpose of different parts of the general law, and of the rejection of desuetude as affecting English statutes. A custom cannot prevail against a recognized general interest of the community, more especially when this has been guarded by an explicit law ; but as to the merely regulative or subsidiary laws, " wherein the State has no immediate interest of its own," a divergence is not impossible. At what point this general interest arises, or is considered to arise, is determined by the Courts as the authorized expositors of the imperative will of the Sovereign and the community, and varies at each stage of the national development. In delivering the judgment of the Exchequer Chamber in Goodwin v. Robarts, L. K. 10 Exchequer 337, Cockburn, C.J., refers to Williams v. Williams, wherein it was decided that the custom of merchants was part of the common law. After discussing a series of cases by which the negotiability given to various instruments by usage had been ratified, he says, at p. 352, " Usage adopted by the Courts having been thus the origin of the whole of the so-called law merchant as to negotiable securities, what is there to prevent our acting upon the principle acted upon by our predecessors, and followed in the precedents they have left to us ? Why is it to be said that a new usage which has sprung up under altered circumstances is to be less admissible than the usages of past times ? Why is the door now to be shut to the admission and adoption of usage in a matter altogether of cognate character, as though the law had been finally stereotyped and settled by some positive and peremp- tory enactment ? " In Crouch v. The Credit Foncier of England, L. R. 8 Q. B. 374, it was held that a recent custom could not have the effect of making an instrument negotiable which was not already so, " because it formed no part of the ancient law merchant." On this it is observed : " Eor the reasons we have already given, we cannot concur in thinking the latter ground conclusive. While we agree that the greater or less time during which a custom has existed may be material in determining how far it has generally prevailed, FANTI CUSTOMARY LAWS. 29 we cannot think, that if a usage is once shown to be universal, it is the less entitled to prevail, because it may not have formed part of the law merchant as previously- recognized and adopted by the Courts. It is obvious that such reasoning would have been fatal to the negotiability of foreign bonds, which are of comparatively modern origin, and yet, according te Gorgier v. Mieville, 3 B. and C. 45, are to be treated as negotiable. We think the judgment in Crouch v. The Credit Fonder may well be supported, on the ground that in that case there was substantially no proof whatever of general usage. "We cannot concur in thinking that if proof of general usage had been established, it would have been sufficient ground for refusing to give effect to it, that it did not form part of what is called the ancient law merchant." It is clear that a new usage which has sprung up under altered circumstances can be properly admitted and enforced by the Court when once it has been shown to be universal, or a fair and reasonable result of the development of a progress- ing community as the inhabitants of the Gold Coast. The law, however, " has laid down no rule as to the extent of the evidence necessary to establish a custom, or from which the inference of the fact of a custom may be drawn. It is the province of a jury to draw these inferences of fact " {Hanmer v. CJiance, 4 De G. J. and S.). Without pursuing this subject any further, it may be said the Legislature has stated the tests which are to be applied to native laws and customs ; they must not be repug- nant to natural justice, equity, and good conscience, nor incompatible either directly or' by necessary implication with any enactment of the Legislature, e.g. if a law were to be passed to-morrow that tenants must pay their rents for gold mines not to their landlords direct, but through a specified channel, such law would prevail against the Customary Law relating to rents of that nature or description ; so also, any custom recognizing the right of an illegitimate child, by an adulterous intercourse, in the property of the :io FANTI CUSTOMARY LAWS. putative father, is immoral, and therefore can have no effect. Westrop, C.J., and Melville, J., in the appeal case, Bharthi v. Laving Bharthi, says : " The alleged custom amongst the Gosavis to recognize a right of heirship in the son of a Gosavi, by a woman, who, in the lifetime of a previous husband and without his consent, has married the Gosavi, would be a bad custom and such as could not be treated by Courts of justice as valid." There is one point which has not, perhaps, received the attention which it deserves. When it does not appear to the Court, either by express contract or from the nature of the transactions out of which any suit or question has arisen, that such party agreed to be bound exclusively by English law, the Customary Law is to prevail, but if there is no Customary Law on the point, the Court is not to be governed by the doctrines of equity, but by the principles of justice, equity, and good conscience. It can be argued that the principles of equity so mentioned are not to be interpreted by the light of English authorities, which are necessarily unknown to the litigant parties. The Supreme Court Ordi- nance was passed on the 31st of March, 187G, about the time her Majesty's ministers in London were directing their special attention to the laws in force in India, and it is not unreasonable to think the result of the study and researches then going on may have influenced those who gave instructions for the making of the Supreme Court Ordinance. Writing to the Governor-General of India about the expediency of another code for India, Lord Salisbury, on 20th January, 1876, said, inter alia, " I may, however, observe that the need of such a code appears to me to be even greater at this moment than when its preparation was first resolved upon, because there is now an additional agency at work which is already pro- ducing embarrassing effects, and requires to be properly directed. The amalgamation of the Presidency and Mufassal Courts having taken place before the formation of the civil code which they were intended to administer, it has been remarked that the general direction to follow the dictates FANTI CUSTOMARY LAWS. 31 of equity which is alone given them for their guidance, is apt to be interpreted by many of the judges of appeal by the light of English authorities with which they are familiar, but which are necessarily unknown to the litigant parties. . . . Thus, it is said, many rules ill-suited for Oriental habits and institutions, and which would never recommend themselves for adoption in the course of systematic law-making, are indirectly finding their way into India by means of that informal legislation which is gradually effected by judicial decisions." CHAPTER II. Persons. (i.) THE FAMILY. A Fanti family consists of all the persons lineally descended through females from a common ancestress, provided, that neither they nor those through whom they claim to be the descendants of the common ancestress had severed their con- nection with that root by — (i.) Cutting Ekar. (ii.) Adoption. (iii.) Partition. (iv.) Commendation. (i.) Cutting Ekar is a particular mode of disowning any one's blood relation. When a man desires to disown a' blood relative, he brings him before the elders of his town or village, and in their presence, as well as in the presence of the other members of his family, an ekar is cut in twain, and saying clearly, " We are now divided," he takes one-half and the disowned the other half. As soon as this ceremony is completed, the two persons have no more share or portion in the property of each other. Where a man is disowned, it affects him alone ; but in the case of a woman, her issue is included, for the saying is, the children follow the mother's condition. In Welbcck v. Brown, February 4, 1884, per Chief 32 FANTI CUSTOMARY LAWS. Kobertsou : " The cutting of the custom or ekar is a thing of the past in Cape Coast, as a sign of disownment. It was abolished by Governor Maclean." (ii.) Adoption is practised by persons who have no next of kin to succeed to their property. The person adopted is usually of the same clan as the person adopting, but if of a different clan, he assumes the name given him and becomes a member of his clan. Women are usually adopted, not men. To make adoption valid, it must be done publicly, and the person who wishes to adopt must not only get the consent of the family and parents whose child is about to be adopted, but he must clearly state before witnesses his desire and intention. A person cannot adopt another outside his tribe. On account of the custom of descent, which is traced through the female line, it is more usual to adopt females in preference to males. (iii.) Partition is of rare occurrence, where persons live in the same town or locality. It takes place where two branches of one family, living in separate localities, agree to relinquish to the other, all claim to whatever family property that other has in its possession. E.g. : The family of Anan is divided into two branches, one residing in the family house at Chama, and the other branch living on the family land at Siwdu. As soon as the two branches agree to give up all claim to the property in each other's possession and retain what each has, none of the members of the Chama branch is considered member of the Siwdu family. The successors to each property will be selected from each branch. If one branch get into family difficulties, and the members thereof decide to sell their possessions, the other branch cannot stop such sale. But if at any time the right person to succeed to one branch of the family be a minor, then the headman or senior member of the other branch is, by his position, guardian. On failure of the legal successors, the two branches merge, and the existing line succeeds to both. Partition does not cause an absolute severance from one's family. FANTI CUSTOMARY LAWS. 33 (iv.) Commendation. When a person is anxious to enter another man's family, so that he may share in the protection and privileges which the members thereof enjoy, he goes before the head of that family, and formally transfers himself and all his worldly possessions unto the safe keeping of his new protector. Such is the ordinary commendation. This must not be confounded with that voluntary fellowship of a person in the retinue of some influential neighbour, or with that species of service whereby a man and his family, in town or village, voluntarily accept a sum of money from an influential king or chief, in order to be counted among his subjects. The head of a family and the whole family can (and in days gone by did so) commend themselves to rich, powerful, or influential neighbours. In former times, where, through straitened circumstances at home, or through a crushing family debt or calamity, a member of the family was sold or pawned, he ceased to be a member of his family ; but whenever he was reclaimed, he regained all his rights, privileges, and position in the family. But when a person through misconduct was expelled the family, or was sold and got rid of by the family after due deliberation, he ceased to be a member of the family, even if his master gave him his freedom. The members of the family are termed Ebusuafu. The normal condition of a Fanti family being joint, the law throws the burden of proving that a family has ceased to be joint, or that a person has ceased to be a member thereof, on the person asserting it. There is no limit to the number of persons of whom a family may consist, or to the remoteness of their descent from the common stock, and consequently to the distance of their relationship from each other. But the Fanti coparcenary, properly so called, constitutes a much larger body. "When we speak of a joint family as constituting a coparcenary, we refer, not to the entire number of persons who can trace descent from a common female person, and among whom no cutting of the ekar has ever taken place ; we include only those persons who, by virtue of relationship, D 34 FANTI CUSTOMARY LAWS. have the right to enjoy and hold the joint property, to restrain the acts of each other in respect of it, and to burden it with their debts. Outside this body there is a fringe of persons who possess inferior rights, such as that of resi- dence in the case of children, of maintenance in the case of domestics, or who may under certain contingencies hope to enter into the coparcenary. The ordinary incidents of a family are — (i.) A common penin. (ii.) Common liability to pay debts. (iii.) Common funeral rites. (iv.) Common residence. (v.) Common burial-place. In the native courts, and with the experienced Judges of the Supreme Court, these several incidents are most care- fully looked into in deciding contending claims, and for any light which may be thrown upon the matter, the opinion of the neighbourhood, and the statements of domestics and friends and servants, are received in evidence. Amonoo v. Ampima. (i.) A common penin (elder), also called Egya, father. The senior or other male member of a family who has control of the family, and is its representative, is called the penin, or egya. Such person may be a freeborn person of the heritable class (Dihi) known as the head of the family, managing and directing its affairs ; or he may be the person who first brought wealth into the family ; or increased its importance by buying slaves or receiving several persons by way of commendation ; or who, by some act or deed, had increased the family possessions. The penin has control over all the members of the family and the issue of such members. Where the founder of the family is deceased, then the senior male member in the line of descent is, in the absence of any direction to the contrary, the penin. As such, he is the natural guardian of every member within the family. He alone can sue and be sued, as the representative of the family, respecting claims on the family possessions, FANTI CUSTOMARY LAWS. 35 and he is as much the guardian and representative for all purposes of property as the Eoman father — Paterfamilias. The penin is usually one whose fitness had been re- •commended by the immediate predecessor, and who had been confirmed in his position by all, or by the majority of, the principal members of the family. The principal members of the family have the right to pass over any person so recommended, and to elect another member of the family instead. Where the penin suffers from mental incapacity, or enters upon a course of conduct which, unchecked, may end in the ruin of the family, or persistently disregards the interests of the family, he can be removed without notice by a majority of the other members of the family, and a new person substituted for him. In the absence of the penin, the eldest male member of ;the family acts as penin, for the long absence or incapacity of the penin must not prejudice the interests of the family. Like other members of the family, the penin has but a life interest in the immoveable property of the family. (ii.) Common liability to pay delts. Not only does the Customary Law render the person or persons who defray the burial expenses of any person liable and responsible for the debts of the deceased, but, as Bosman states, the members of a family and the head thereof are jointly and severally responsible for any family liability. If a member of a family contract debt which benefits the family, or commit a wrong for which he is liable to pay damages or give satisfac- tion, the other members of his family are bound to pay, or such member must be given up by the family to the person making the claim. If the family do not wish to be held responsible for the future acts of a certain member, there must be a public notice of their decision to that effect, and such person must be expelled the family, thereby severing his connection with them. A person is liable for the debts and the consequences of the torts of his slaves and the members of his family under his control. While a husband as living with his wife, or is providing for and maintaining 36 FANTI CUSTOMARY LAWS. her, he is not liable for her contracts, debts, or liabilities^ except for maintenance and any medical expenses she may be put to for herself or child by him. For the wife, if free- born or domestic of a different family, can acquire and hold property apart from the husband, and has her own family to> fall back on. If the wife be a domestic and member of the same' family as the husband, their common master's liability for them remains. (hi.) Common funeral rites. On the decease of a member, all persons who are members of the family take part in making the funeral custom and contribute in defraying its expenses, for which they are primarily liable. The members of the clan also take part in observing the funeral custom, and contribute collectively towards the payment of the same, but they are not liable at all. It is usual for the local senior member of the clan, with the head of the family of the deceased, to preside over the funeral custom, to receive the expressions of condolence from sympathising neighbours, and to accept funeral donations. ''It is customary for friends and acquaintances to bring presents to the relations of the deceased, to assist them in performing the funeral ceremonies in a becoming manner." (Cruickshank, vol. ii. 217.) Funeral donations are of two kinds, to wit : (a) Insaioa, which are not repaid at all, being considered as gifts to the deceased ; (b) Esi-adzi, which may be more correctly called funeral custom advances, Inspecting esi-adzi, Cruickshank writes : " Considerable sums are received in presents at the time of the funeral. They are seldom a source of gain, as it is expected that the receiver will make similar presents to the donor upon the occasion of death in his family." On entering into the accounts of the funeral custom expenses, esi-adzi sums are set aside, and if the Insaiva presents are found insufficient to defray the expenses, the immediate relatives of the deceased contribute for this purpose. Any sums received from the children or grandchildren of the deceased, or from his widows, are in the nature of Insaiva ; the liability to pay such sums by no means makes them FANTI CUSTOMARY LAWS. 37 members of his family, where such widow or widows are of a different family, since they are not entitled to be present when such accounts are being gone into, nor can they be ■compelled to contribute towards the liquidation of any ■deficiency. (iv.) Common residence. Persons who have a right to ireside in the family house, or the right to dwell on the family possessions unconditionally, are members of the same family. " It was customary to regard the possession of a house as a common family fund in all the members of the family ; while they remained such, each had a share at the same time that the head or representative of the family had the direction and disposal of it." (Cruickshank, vol. i. 316.) (v.) Common burial-place. It is customary for the family to have a common burial-place, which may be either in the family dwelling-house, or a grove or a plot of land set apart for burial. Children by a woman, freeborn or of a different family, can only be buried in the family burial-place of the father, by special leave of the head of the family. The members of a family have a right to burial in such burial- place, and it is here that libations are made on the special Adai seasons, or duriDg the time of Ahuba huma. (ii.) Marriage. The custom relating to marriage, simple in the extreme, has, by some inexplicable process, been the stumbling-block to the foreigner, and to the native who considers himself better than his forefathers. The attempt by the Christian Missions to force the English law of marriage on the native converts has had a most disastrous effect on the morals of .the people within the sphere or influence of the Christian missionary stations. Without knowing or studying the principles of the law of marriage as it obtains in the Akan and Fanti countries, the Christian pastors urged the Govern- ment to legislate ; the result is the marriage ordinance, which, 38 FANTI CUSTOMARY LAWS. being quite unsatisfactory from many points of view, has now become a veritable stumbling-block in the Christianizing efforts of the several missionary agencies. From the English law point of view, a man's family is that of his father, ami pedigree is generally traced in the male line. The converse is the case with the inhabitants of the Gold Coast, Asanti, and other neighbouring places. In the early days of the missionaries on the Gold Coast, a practice or usage arose amongst the native converts of recognizing the English law, while native custom was retained. The wife, by matrimony, took the name of her husband, and at his death, his children and widow took a half of his moveable property, while his own family took the other half. This practice cannot be said to be unreasonable or against the principles of justice, equity, and good conscience. Marriage is the union of a man to a woman to live as husband and wife for life. It is sometimes preceded by betrothals, which often take place long before a girl arrives at a marriageable age. Tins is done when a person desires to be connected with the family of a friend, or desires his child or relative to be so connected with a desirable family. The acceptance of any money or token, called consawment money or token, and a piece of cloth for tins specific purpose, destines the girl to be the wife of the person for whom the alliance is sought. This betrothal is perfectly binding on the family of the girl, who is regarded as the wife of the person betrothing her. He narrowly watches her conduct, and frequently demands and receives compensation for any liberties she may allow other men to- take with her. According to the law of the country, every person is the member of some family, and all the other members of that family are answerable for him. In theory, the stranger belongs to the family of the person with whom he lodges, to whom he came, or who is his landlord. He who desires a woman in marriage must apply to her family, or person or persons, in loco parentis, for consent, and without such application and consent there can be no betrothal. Nor is there any remedy for breach. FANTI CUSTOMAEY LAWS. 39 of promise of marriage. If a man fail to marry a woman for whose hand he had applied, or if such woman refuse to marry him, or her family withdraw their consent, no action arises, and no damages are incurred by the person in default, who, however, forfeits any consavsment or anything given to the other. For instance, a man after giving consawmcnt to the family of his intended wife, and money, trinkets and other valuable presents to herself, cannot have any of them back should he improperly break off the engagement. But, if the breach is caused by the woman or her family, they are bound to return him the consmcmcnt and every present to herself and family, even though he may have received presents from them ; the only exception is, in the case of funeral custom donations, as to which accounts are entered into and the balance struck off. In order to be valid, a marriage must not be in violation of any rule as to tribal relationship, in some districts, or con- sanguinity. A man may not marry his uterine sister, his father's sister, or mother's sister, or brother's daughter, or mother's sister's daughter. A man can marry his father's sister's child. This union, however, is not encouraged. An adopted son or daughter falls within the same rules both in his adoptive and natural families, and the same rule applies to their issue. In some districts, a marriage between freeborn persons of the same clan is very much discouraged, but is not improper between a freeborn and a domestic, or between two domestics. To the question of the judicial assessor in Penin v. Duncan, about the essential acts or ceremonies to constitute a valid marriage, according to the custom of the country, the chiefs replied : " When a man intends to have a certain woman for his wife, he applies to her family, asks her to be given in marriage by taking to the family according to his means, two flasks of rum, or two ackies of gold dust, or four or six ackies, according to his means. Upon this, if the family approve, they agree to give the woman. This request and consent with the first present alone make a valid marriage." The term "head ruin," so 40 FANTI CUSTOMARY LAWS. often used in the case of marriage, is an instance of erroneous and deplorable interpretation of Fanti into English. Bum was unknown to the people until brought to them by those engaged in the slave trade, and before then, surely, marriage was not unknown. The beverages made from maize, and extracted from the date and palm-trees, were common, but instead of nuptial wine, an ignorant clerk said head rum for Etsir cnsa. The term Etsir cnsa is evidently a contraction of Etsir nsa-nkredzi, literally, tokens or price of the head ; for in all primitive societies the idea of purchasing a wife under- lies the institution of marriage, but rum, the curse of West Africa, is not essential at all in contracting marriage. Cruick- shank, writing on marriage, says in his second volume, " native contracts of marriage are made by the payment of a certain sum to the relations of the bride. This sum varies according to the rank of the individual from 2 ounces gold = £8, to 4£ ackies = 22s. 6d., but it is more frequently paid in goods than in gold." Gold or goods so given, for the hand of a woman in marriage, were called Etsir nsa-nkredzi, rendered, in the record of the old judicial assessors, consaivmcnt money. This word is also mentioned by Bowdich in his work on Asanti ; and when one bears in mind that some of the Etsir nsa-nkredzi are distributed among the relatives and more immediate friends of the woman, as proof of the honourable alliance, the absurdity of " head rum " becomes manifest. After the consaivmcnt is accepted, follows the matter of dowry. " That depends on the family. If they tell the man that they require dowry to be paid, they state the amount they wish, sometimes one ounce, or nine ackies." If the woman's family do not wish for dowry, the man is not bound to pay anything. Among the poorer classes, the man and woman live together without any dowry having been paid at all, and yet such marriage is perfectly legal, and the husband can sue any one for satisfaction, that is, damages for misconduct with the wife. If a man seduce an unmarried woman, he is liable to pay to her family damages for the wrong so done her and the FANTI CUSTOMARY LAWS. 4L disgrace brought on lier family. When such seduction was under promise of marriage, the liability to damages is not extinguished by any consaicmcnt subsequently given by the seducer to her family, who can at any time hold it as satisfaction for the wrong done their child. "Where a married woman is seduced, her seducer is bound to pay to the hus- band, damages not less than the value of the consaicmcnt dowry money, and all the marriage expenses. And if, on account of such seduction, the former marriage is dissolved &nd he marries the woman, he cannot at any time recover from her family what he had so paid, even if the woman, without any cause whatever, refuse to live with him then or afterwards. Nor can he recover compensation from any one who may take this woman away from him, for, unless a man has given consawmcnt, he cannot recover against anybody for seduction of a person who is nothing more than Ms mistress. Where the consent of the woman's family cannot be gained, either because they improperly refuse to give such consent, or because they reside in such a distant place that it is impossible to obtain such consent, a man and woman, who voluntarily agree to live as man and wife for life, can contract a valid marriage ; provided that such agreement is expressly made in the presence of credible and respectable witnesses, or in the presence of the chief or headman of the place, followed by the man and woman living as husband and wife. When there has been a marriage in fact, the validity thereof is presumed, and where the caprice, avarice, or ambition of a parent has not been excited to force on a marriage, it will be found by careful study of the people and ■examination of the local marriage institution, that marriage ■entirely rests on the voluntary consent of a man and a woman to live together as man and wife ; which intention, desire, consent, or agreement, is further evidenced by their living together as husband and wife. All other ceremonies .and expenses attending marriage are superfluous, but are useful and taken account of in assessing damages in case of •criminal conversation. Briefly stated, therefore, when a man 42 FANTI CUSTOMARY LAWS. desires to many a woman, he goes personally or sends some one to her parents or family for her hand. If his proposal is agreeable to the family, and he receives then- consent, the consawmcnt money or token, valuing as much as he can afford, is sent to them. This is all that is necessary to constitute the marriage tie. The man may, according to his means, send to his bride some dresses, so that she may come to him properly attired. In marriages where one finds such expensive ceremonies, it is a notorious fact, there is no unity of interest, for the domestic arrangement is such, that the wife rarely resides in the same house with her husband, but only carries his food to him daily and ministers to his desires. On the death of the husband, his widows, him surviving, and their children by him, are entitled to reside in any house built by him, and the children and their issue have a life interest in such house, subject to good behaviour. When there lias been a betrothal, a man can claim his wife on her reaching the age of puberty, and he is bound to support and maintain her from the day of betrothal. A man is bound to maintain his wife, and it is her duty to obey his request to live with him, and to perform all his lawful orders. A man can contract other marriages. By courtesy, the first wife should be informed of the proposed alliance; but the omission to do so is no cause for divorce or termination of the marriage by the first wife. A woman living in con- cubinage cannot sue the man with whom she is so living for any maintenance, nor can her family or parents sue the man for any satisfaction or maintenance. Whatever is given or entrusted by a man or woman, to the person with whom he or she is living in concubinage, cannot be reclaimed on any consideration whatsoever. This custom of forfeiture is called sarwic. At first sight, this custom may seem repugnant, but the grounds for it are most reasonable. Although men of substance and the influential classes will deny, or question, the existence of the custom or usage known as sarwic, or at least endeavour to limit its effect on account of its restraining influence on concubinal and illicit intercourse, this salutary FANTI CUSTOMARY LAWS. 43 custom or usage undoubtedly exists, and is well known to the female community (Quassuah v. Ward). In former times, this particular custom placed a great check or restraint on the wealthy, and those traders, European and native, who were in the habit of keeping a host of women under their protection as concubines, euphemistically called friends. Knowing per- fectly well that the customary law compels no man to maintain his mistress, these "friends" had no claim for support or maintenance on their so-called protectors. But if such a woman has a child by her protector, he is bound to look after her during her illness only, and to pay any expenses attending her confinement. The sole or principal object of keeping these women, for whom no consawmcnt had been given, and who had neither the status nor rights of a wife, was for their services. The protector lives on their services. A man having such a woman usually employed her without any pay or remuneration in selling goods, which he constantly, or at times, supplied her. Now and again the man may give to the woman money or clothing, with the object of inducing her to continue her services, and with fair words, a woman is ever a prey to a designing man. The protector invariably manages to make the woman indebted to him, and whenever he fears she will transfer her affection to another in honourable marriage or otherwise, he endeavours to dissuade her by frightening her with false unfounded claims. A woman living with a man as concubine, mistress, or friend, is not encouraged in the eyes of the native law, which stamps the relation as immoral, to be remedied as quickly as possible. But women are frail, though the desire to have issue is keen in them, and men are deceivers ever. If a man therefore will not be properly and honourably married to a woman, but will for his own purposes keep her and live upon her labour, she is at liberty to ter- minate the immoral relation at any time she pleases, and she shall not be liable to return to him anything whatsoever he may have given or entrusted to her for safe keeping, sale, or any purpose whatsoever. Where a person living with a woman as his concubine, wishes to marry her, he is bound 44 FANTI CUSTOMARY LAWS. to pay to the family of the woman satisfaction money, which can be waived, before giving the consawment, and if in consideration of the marriage, the family of the woman or she herself be willing to return to the man whatever he may have given her or entrusted her with, the amount thereof is ascertained by the man and woman going into detailed accounts, immediately before the consawment is given and •accepted. Such a marriage legitimizes the children of the man already born by the woman. The issue of an adulterous ■connection is illegitimate, and cannot be made legitimate by the subsequent divorce of the woman and her marriage with her paramour ; e.g. Amba, wife of Kwamina, during his absence at Akassa, bears a son, the issue of an adulterous intercourse with Kwesi. Such son is illegitimate, and cannot have any interest whatsoever in the house of his putative father, even if, on being divorced by Kwamina or on his death, Amba is married by Kwesi. Although a man may lawfully marry several wives, a woman cannot at the same time have more than one husband. Adultery is a ground for divorce, and a wife's adultery justifies her husband in expelling her from his house and refusing her any maintenance. Notwithstanding the vague ideas in the coast towns about divorce of native marriage, there is no doubt, that save and except the competency of a native tribunal to decree the dissolution of a marriage, the right of divorce is marital only. The wife cannot declare her marriage void, nor can her family give her permission to re- marry in the absence of the consent of her husband, signified by his releasing her from her conjugal obligation, either by chalking her, or saying so in the presence of competent witnesses. For adultery or witchcraft on the part of the wife, a man can divorce his wife and claim from her family the consawment and other expenses. But the wife cannot, except for impotency of her husband, enforce divorce or dis- continue marriage on the ground of her husband's adultery, or on his marrying more wives. Change of religion is no ground for divorce ; therefore, it* a FANTI CUSTOMARY LAWS. 45 married woman embrace Christianity and thereupon deserts her husband, she does not cease to be his wife, and whosoever weds her can be sued for damages. By the term " ground for divorce," is meant cause for which the husband could recover the consawmcnt and all his expenses from the woman's family ; or cause for which the wife and her family would not be compelled to return any portion of the consawmcnt to the man. If a husband is impotent, or neglect his wife or grossly illtreat her, or absent himself for a long period of time, so that she commits adultery, he can divorce her, but cannot recover the consawmcnt ; for a wife has a right to the protection of her husband, and Cus- tomary Law does not countenance negligence of marital obligations. There is no law on the Gold Coast similar to the Indian Act XXI., of 1866, the Native Converts Marriage Dissolution Act, under which, if a married person deserts his wife or her husband for six months or more, on the ground of change of religion, the Court can fix a year, on the expiration of which, if the defendant still refuses to continue the marriage, divorce is decreed. In our native tribunals a husband can bring an action against a man harbouring a wife, and against her family for her recovery. This form of action is well known in India, and there the British Courts constantly enforce decrees to recover possession of wives by their husband. A woman living with a man as concubine, is always looked down upon, and is considered immoral, however wealthy she may be. Where the marriage is discontinued through the fault of the husband, upon investigation by arbitrators or a native tribunal of a complaint made against him, he cannot claim the consawmcnt or money or any of his expenses, and the wife goes away with all the property she possessed at the time of marriage, and, in addition, she is entitled to claim from him whatever she or her family may have expended on him. If, on the other hand, it was through the fault of the. wife or her family, the consaivment, and such trinkets and 46 FANTI CUSTOMARY LAWS. clothing not worn out in the service of the wife to her husband, are returned. Moneys expended by the husband for the maintenance of his wife are not recoverable. An ac- count of loans advanced to each other, as well as of funeral donations is gone into and a balance struck, on paying which the woman is free to contract another marriage. On the death of the husband the wife is bound to contribute towards the funeral expenses. Children bear the cost of the coffin and burial clothes of their parents, but are not liable for the expenses of the funeral custom. " What is most commendable among the negroes is that we find no poor amongst them who beg : for though they are never so wretchedly poor they never beg. The reason of which is, that when a negro finds he cannot subsist, he binds himself for a certain sum of money, or his friends do it for him ; and the master to whom he hath obliged himself, keeps him in all necessaries, setting him a sort of task which is not in the least slavish, being chiefly to defend his master on occasion, and in sowing time to work as much as he himself pleases." (Letter ix. p. 140.) " Married people here have no community of goods ; but each hath his or her particular property. The man and his wives generally adjust the matter together, so that they are to bear the charge of housekeeping, while the clothing of the whole family is at his sole expense. " On the death of either the man or the wife, the respective relations come and immediately sweep away all, not leaving the widow or widower the least part thereof, though they are equally obliged to help to pay the funeral charges. Some negroes, besides wives, have also their concubines, which they several times prefer before their wives, and take more care of them ; but their children are esteemed illegitimate, and not reckoned amongst the relations. " If a negro has a child by his slave, whether married to her or not, his heir will look after it and keep it only as a slave, on which account those who love their slaves will take care to make their children free, with the usual ceremonies, FANTI CUSTOMARY LAWS. 47 before they die, after which thsy are in every particular treated as free persons. ****** " I have already told you how many wives the negroes marry; and herein they place the greatest glory and grandeur, as their riches consist in the multitude of slaves, though they frequently conduce to their ruin, because every man is obliged to make good the injury which his slave does ; if he is guilty of theft or adultery his master is obliged to pay the fine imposed for his crime. The negroes are also responsible for their sons, nephews, and other relations, though in this case the relations help each other by a mutual contribution, each giving something towards it according to his circumstances ; which if he should not do, the criminal would be condemned to death or slavery." (Bosman's letter xii. p. 202.) CHAPTER III. PROPERTY. Things are divided into moveables and immoveables. These two kinds are sub-divided into — (1) Ancestral, including stool property. (2) Family. (3) Self-acquired or Private. Moveables : e.g. sandals, cloth, a gold ring. Immoveables : a house, land. Moveable ancestral : a gold ring left by an ancestor or ancestress. Moveable family : a gold ring purchased by general con- tribution of the members of a family. Self-acquired : a gold ring purchased by a man with his own earnings. Immoveable ancestral : a house or land which has descended from an ancestor or some relative. 48 FANTI CUSTOMARY LAWS. Immoveable family : a house built or acquired by mem- bers of a family. Self-acquired or private : a house or land purchased or gained by a person by his individual effort or exertion. There are certain kinds of immoveable things which, either from their nature (as a fetish grove, public river or lake) or by reason of the uses to which they are put (as a. burial grove), cannot be sold. The acquisition of property is either original or derivative. Original acquisition may be by — (1) Appropriation of what has no owner, or of property whose owner has plainly expressed his intention of giving up and has, in fact, given up his ownership by leaving pos- session. (2) Conquest or capture in war. (3) Accession by means of the increase or development of a thing in one's possession : e.g. crops and fruits from one's land ; rent of property ; trees planted on one's land by any person whatsoever without the owner's permission ; lands gained from the sea or river, either by alluvion from the washing-up of mud, sand, or earth, or by the water gradually and imperceptibly receding. An inundation effects no change of property in land. Where treasure-trove is found on some one's land, the owner of the land is entitled to a moiety of such treasure. If such treasure was there hidden by the owner of the land, the finder is bound to restore it to its owner without any deduction whatsoever. If a hunter or any person kill game on another man's land, the owner of the land is entitled to the shoulder or a quarter of such game. Derivative acquisition may be by — (1) Transfer, as in gifts. To complete a transfer, it is necessary that — (a) The transfer* be by the owner of the thing transferred, or by one duly authorized by him. Where the thing trans- ferred is ancestral or family property, the transferor must act FANTI CUSTOMARY LAWS 49 with the concurrence and full approval of the senior members of the family having an interest in the property. (b) The transferee must be placed in possession of the thing. (c) The nature of the estate, title, or | interest therein transferred must be distinctly stated. (d) The transferee must show his acceptance of such •estate, title, or interest in the thing. (e) The subject of transfer must be capable of ownership. (/) There must be witnesses of the transaction. (2) Contract : e.g. sale. (3) Succession of another's property. (4) Partition : on the division of ancestral, family or other property held and enjoyed in common. Ancestral property is — (i.) Any moveable or immoveable thing which has descended to a person from an ancestor or ancestress how- ever remote. All savings made out of such moveable or immoveable thing, and all purchases or profits made from the income or from the proceeds on the sale thereof, follow the character of ancestral property. (ii.) Property acquired on partition of, or in exchange for, ancestral property (Mary Barnes v. John Mayan, June 24, 1871). Per Chalmers : " The ground on which Mrs. Barnes bases her right is that the subject in question was given by Mr. De Graft to her mother, who was one of his wives, and was occupied by her as a dwelling-place. It appears that Mr. De Graft's family house stood formerly near the Castle ; that it was removed as well as other houses by order of the Govern- ment, at a time when that part of the town was opened up, and that the tenement now in dispute was assigned by the Government to Mr. De Graft, in lieu of the one from which he had been dispossessed. He received also a money com- pensation for the building which it may be presumed he •laid out in the construction of his new house. These things E 50 FANTI CUSTOMARY LAWS. beiug so, I consider that the new tenement took all the incidents of the one for which it was substituted, and was therefore, in De Graft's lifetime, in the same position as if it had been land of inheritance to which he had actually suc- ceeded." (iii.) All accretions of any ancestral property. (iv.) Property earned by a person with or by means of an ancestral property or its accretions. (v.) Property which, belonging to a branch of a family, has come into the possession of another branch of the family on the failure of a successor. Family property is any moveable or immoveable thing (a) Acquired by the joint labour of two or more of the members of a family. (b) Or by contributions from the members of a family. Property is designated self-acquired or private, where it is acquired by a person (a) Through his own personal exertions, without any help or assistance from his ancestral or family property. (b) By gift to himself personally. (c) By superior skill in business or intellectual pursuits. Whatever a person acquires with the aid of his sister or their children or his brothers is family property. If his children by a free woman (Dihi) help him to acquire any property, they have no interest therein, and in the absence of any help from his own family, property so acquired is self-acquired or private. Whatever a wife helps her husband to acquire is the sole property of the husband. If any property lost by the ancestor or any of his successors be recovered by a member of the family out of his own private resources, it is no longer considered as ancestral or family property, but is private property; unless such property had been recovered by the use of any part or portion of the ancestral or family patrimony ; or it was acquired for the purpose of its forming part of the ancestral possessions, and tins was made known to the members of the family. With the exception of the coast towns, where there FANTI CUSTOMARY LAWS. 51 is much contact with European ideas, private property in its strict sense does not exist. The family group is of the pure Patriarchal type. The head of the family owns the whole of the property, and all acquisitions made by the members of the family are made for him, and fall into the common stock. This custom obtains in all parts of this country. In the coast towns a member of a family may make separate or private acquisition and dispose of them as he pleases in his lifetime, provided none of his family nor any part or portion of his ancestral or family property contributed to the acquisition of such property. But any property of his that remains undisposed of at his death, descends to his successors as ancestral property. As in India, even so in this country, the advance of civilization tends to break up the unity of the family. "Where the members of a family support themselves on the produce of a common land, the proceeds of their united labour must be necessarily small. The family has a claim upon its constituent members for their assistance in the cultivation of the common land, or in the ordinary labours of the household ; hence it is no matter of surprise to find the units breaking up, on the discovery of new industries requiring skill and producing great rewards, and giving scope to each individual unit for the exercise of his skill and ingenuity in the acquisition of wealth and private property. In this country joint property is the rule, and must be presumed to exist in each individual case until the contrary is proved. If an individual holds property in severalty — that is, as sole owner and possessor — it will in the next generation relapse into a state of joint tenancy. Absolute, unrestricted, exclusive ownership, enabling the owner to do anything he likes with his immoveable property, is the exception. The father is restrained by his brother, the brother by his nephew and sister's children, and the woman by her own issue. If land be free to-day in the hands of its 52 FANTI CUSTOMARY LAWS. acquirer, it will to-morrow resume its fetters iu the hands of his heirs. Iu the English law, individual property is the rule, but corporate property is the rule on the Gold Coast and among the Akan and Fanti tribes. A careful com- parison and analysis of the several kinds of systems commonly known here, show that there ure but three forms of corporate system of property, to wit, patriarchal family, joint family, and the village community. The Villaye Community is a corporate body, of which the members are families, or family groups, residing in the several households, and including the joint as well as patriarchal families. These village communities are scattered over the length and breadth of the whole of Guinea. The headman of the village is in some places so by hereditary right, in other places he is so by election. But in places, where the right is hereditary, the members of such village community have a right of veto. The Joint family is a corporate body whose members are persons or individuals having a remote common ancestor, or who, though alien in blood, have become members of a joint family by commendation. Patriarchal family is defined by the great jurist Sir Henry Maine, to be a group of natural or adoptive descen- dants, held together by subjection to the eldest living ascendant uncle, father, or grandfather. Whatever be the formal prescriptions of the law, the head of such a group is always practically despotic; and he is the object of re- spect, if not always of affection, which is probably seated deeper than any positive institution. In the more extensive assemblies of kinsmen which constitute the joint family, the eldest male of the eldest line is never the parent of all the members, and not neces- sarily the first in age among them. To many of them he is merely a distant relative, and he may possibly be an infant. The sense of patriarchal right does not die out in such groups. Each father or grandfather has more power FANTI CUSTOMARY LAWS. 53 than anybody else over his wife, children, and descendants ; and there is always what may be called a belief that the blood of the collective brotherhood runs more truly and purely in some line than in any other. Among the Hindoos the eldest male of his line, if of full mental capacity, is generally placed at the head of the concerns of the joint family; but where the institution survives in any com- pleteness, he is not a paterfamilias, nor is he owner of the family property, but merely manager of its affairs and administrator of its possessions. If he is not deemed fit for his duties a worthier kinsman is substituted for him by election, and, in fact, the longer the joint family holds together, the more election gains ground at the expense of birth (" Early History of Institutions," 117). During the lifetime of a father, the son and the son's children are in subjection under him. Whatever is ac- quired is acquired for the father, and this state of subjection doth only terminate on the father's death. In a patriarchal family, one finds the father having power over his sons and daughters and grandchildren, his wife, servants, and other dependents. If on his death his sons separate, this will be the setting up of several subordinate families, over which each son will be the head, but under the head of their mother's family. Under the system of village community, the land belong- ing to the village is so held, that all the inhabitants of the village have each of them a proportionate share in it as common property, without any possession of, or title to, distinct portions of it. Each person is entitled to cultivate any portion of it, and during such cultivation he has an absolute right to his crops. In the joint family all the holdings are enjoyed in severalty, and each member manages his portion of land. The extent of such holding is equal to the land originally brought under cultivation, or transferred on the day of commendation, or is determined by long usage. In the patriarchal family all the lands are under the 54 FANTI CUSTOMARY LAWS. control of the patriarch, who alone directs how they are to be cultivated. He is entitled to all the produce of the land, and nothing can be done with anything belonging to the family without his approval or confirmation. There is a fourth kind of corporate system of property, which may be called the " clan property." Property of this nature is usually in the possession of one of the prin- cipal clansmen, whose duty it is to look after it for the benefit of all the clansmen in that locality in particular, and for the fellow clansmen in general. Hence one hears the expression, " The land (Assasi) is the property of the Okonor clan." Plots of such lands are granted to members of the clan desirous of building thereon. The freehold is always in the senior clansman for the time being of the locality. By no length of uninterrupted enjoyment can any one acquire any title adverse to the title of the whole clan. It is very doubtful whether the clansmen have any power of sale over any part or portion whatsoever of such clan property. Analagous to such clan property, are burial groves, or places set apart for the burial of the members of each clan. CHAPTER IV. TENURES. The ordinary tenures of land are freehold, and the derivative tenure of leaseholds. An estate of freehold is an estate either of inheritance or for life in lands of free tenure. An estate in lands and tenements may be considered — (i.) In reference to the quantity of interest, that is, whether freehold or less than freehold ; or (ii.) With regard to the time of enjoyment, as to whether the interest is in possession or expectancy ; or (iii.) With regard to the number and connection of the tenants. FANTI CUSTOMARY LAWS. 55 The term " freehold " denotes the tenure of the property, and shows that the owner thereof has a life estate at least. An estate of inheritance is where the tenant is not only- entitled to enjoy the land for his own life, but where, after his death, it is cast by the law upon the persons who succes- sively represent him in jjcrpetuum in right of blood, according to an established order of descent. With regard to the quantity or duration of interest, there are estates more or less similar to English estates of {i.) fee-simple, (ii.) for life, (iii.) for years. An estate in fee- simple is the largest estate or interest which the English law allows any person to possess in landed property, and is that which a man has to him and his heirs. The holder of such property is called a tenant in fee-simple. Strictly speaking, the term " fee-simple," as used in English law, cannot be correctly applied or used when speaking of the highest kind of the native tenures obtaining on the Gold Coast. Even in those parts where the king is the owner of all the lands in his district, the use of the term " fee-simple " is misleading. At the most the king or head chief is but a trustee, who is as much controlled in his enjoyment of the public lands by liis subordinate chiefs and councillors as the head of a family by the senior members thereof. Per Chalmers, in Barnes v. Attah, July 17, 1871 : " I apprehend that not even the regular occupant " (of an Agua) " would alienate property without some concurrence by the people of the stool (Agua) who have an interest in it, and are usually consulted on such a matter." The king, by the law of England, is the supreme lord of the whole soil. Whoever, therefore, holds lands must hold them mediately or immediately of him ; and while the subject enjoys the usufructory possession, the absolute and ultimate dominion remains in the king. (Co. Lit. la.) As far as the Gold Coast is concerned, this portion of the English law does not apply, for it is a group of territories cinder native rulers taken under British protection; it is FAXTI CUSTOMARY LAWS. British territory, but not so by conquest or cession ; as ;t matter of fact the Colonial Office stated on the 11th day of March, 1S87, as published in Parliamentary Blue Book of that year, that it is inaccurate to state that after the successful' Asanti expedition of 1874, the Protectorate was annexed by Great Britain and became a colony, " inasmuch as the greater portion of the Gold Coast Colony still remains a Protectorate, the soil being in the hands of the natives and under the j urisdiction of the native chiefs." According to native ideas there is no land without owners.* What is now a forest or unused land will, as years go on, come under cultivation by the subjects of the stool, or members of the village community, or other members of the family. The granting of permission to others and outsiders to reside on or cultivate the lands of a family, a stool, or a village community, is a practice of the greatest antiquity, and was in times past more universal than sale of land, which is of comparatively modern growth. The chief or king of a tribe, or headman of a family, can, with the consent of the whole or major part of the sub-chiefs, and councillors, village elders forming body of councillors or senior members of the family,, as the case may be, allow strangers and foreigners to live on certain lands. In cases where the land is appurtenant to the stool of a king or head chief, the tenant becomes subjected to such stool, and he, with his people, is bound to perform such services, or pay such annual sums as may be declared to be performed or paid yearly. Plots of land in the actual and 1 lawful possession of a subject of the stool, or a member of the village community, or a member of the family or company, cannot, unless with the express consent of the person in possession, be so granted. But where a person in possession of a portion of the public land abandons it, or his family have abandoned it for more than ten years at least, the village headman and elders can allow another person to occupy the same, * Vide Mr. Justice Smith and Mr. Bruce Kindles opinions in appendix*. FANTI CUSTOMARY LAWS. 57 The making of grants to strangers, particularly to Europeans, of waste lands, that is, lands abandoned or never under cultivation by any one, and of minerals, and of concessions of forest land for a term of years, though said to be modern comparatively speaking, is not neces- sarily illegal, according to Customary Law. A person who. desires to procure a grant of land or any concession from a local ruler, should make special inquiries, and inform himself who the members of his council are, and get them or the linguist of the council to join the head chief in making such grant. Where the concession is made by a subordinate chief, inquiries should be made to find out whether the con- currence of his paramount chief is necessary or no, for what- ever lawful grant or permission is so given by a person dc facto chief, with the concurrence of men de facto members of the village council or stool, is good and valid according to Customary Law, and the grantee by takiug possession of the land and working thereon becomes a tenant of the stool, village council, or family, as the case may be, and not of a specific individual. Among European communities the title of a landlord, or vendor, or grantor of property is sought for by searching his muniments of title and making an abstract of his title-deeds ; on the Gold Coast one has to make careful inquiries, which must be guided by the Customary Law. The occupant of the stool, or head of the village community or family, as trustee, has the right to enforce performance of the conditions under which the permission was given. If the tenant fails so to do, or denies the right of the person who, or whose predecessors, gave him title, or encourages some other person to contest such right or title, he can be sent away from the land. Conveyance of land is invariably made in the presence of witnesses. The symbolic tokens and ceremonious per- formances, taken in addition to the words expressed before such witnesses, set forth the nature of the transaction, th& quality of the estate granted or transferred, and the con- ditions, if any, of such grant. 58 FANTI CUSTOMARY LAWS. There are certain well-established usages in the enjoy- ment of lands, one of which is the practice of allowing plots of land to lie fallow for a longer or lesser period of time. It must be borne in mind that no person can acquire, by long uninterrupted possession, an adverse title against the owner of property, through whom or whose ancestors possession was first acquired. The simplest and most common kind of tenure is what may be called " sowing tenure." Here, the owner of a plot of land usually gives to a person, who has applied to him, leave to have the use of his land for one sowing season. In the absence of agreement, the owner of the land is •entitled to take 500 heads of corn, or a small proportion, about one-tenth, of any other crops grown on such land. If the tenant die before his crops are gathered, his heir or successor is entitled to reap them, and the owner of the land cannot appropriate such crops, without giving notice to the representatives of the deceased, to the effect that the crops must be removed before the end of the harvest season, or before the festival Ahuba Kessi. Having once sown his crops, the tenant cannot sow a second crop on any part of the grantor's land without his express permission, for as soon as the crops are gathered in the tenancy ceases. "Where, after notice, the tenant's crops are not removed, such crops become the property of the owner of the land. There is also known what may be called an "annual tenure " running from year to year. A person having once got the land lias full right to cultivate it for any duration of time until the owner, by due notice, terminates the tenancy. The rent usually reserved, in the absence of special or other agreement, is the help which the tenant is bound to render the landlord at the period or seasons of sowing and reaping, usually three days in the week. Unlike the sowing tenure, the tenant has the right to build and reside on land so granted him. On his death, his FANTI CUSTOMARY LAWS. 59 .heir or successor, after notifying the owner and after certain ceremonies, acquires the same rights and privileges until the landlord gives notice to terminate the tenancy, when the land goes back to the owner with all the improvements thereon. But the owner of the land is not entitled to such crops as are sown and reaped yearly, unless the tenant has failed to remove them after due notice. Where the owner of land gives to a person permission to cultivate a portion of his land, and this person and his heiis continue the cultivation of such land, for upwards of forty years, without paying any rent or giving any produce therefrom to the owner, such long possession does not destroy the title of the original owner and his representatives. The original owner or his successor can at any time go upon and retake possession of the land as soon as the tenant asserts an adverse claim to it. In the absence of such adverse claim he cannot disturb the quiet enjoyment of the tenant, without prior notice to the tenant, that he requires the land. Where, however, there are palm-trees on the land, whether planted by the owner of the land or by the tenant, the landowner has full right, at any time he pleases, to cut trees or gather any nuts therefrom. Custom does not permit any person to be improved out of his land, and palm-trees not only improve, but also enhance the value of, lands. Where the nuts from a palm land are manufactured into oil, the owner of the land receives half of the oil, and the oil manufacturer the other half, and the expenses of preparing the oil is equally shared by them. If, instead of oil manu- facture, there is extracted from the palm-trees palm-wine, then the owner of the palm-trees is entitled to one-fourth of the proceeds of such palm-wine, the person who fells the trees and prepares the wine is entitled to one-fourth of such proceeds, and the person who sells such palm-wine is entitled to half of such proceeds. According to a well-known practice of the Law Courts, each palm-tree is valued at twenty shillings. GO FANTI CUSTOMARY LAWS. Abehem tenure arises where a person is placed on palm land, and the only stipulation is for a specified quantity of oil to be delivered to the owner each year, whether the tenant makes any oil or not during the year. In the absence of agreement, an owner of land, from persons having the use of his land, is entitled to claim when-, corn is planted 500 heads. Grants of land for building purposes are very frequently made in the form of perpetual leases, either for some valuable consideration, or by way of reward for past services, or on the ground of mere affection or friendship. Lands so granted are resumable by the grantor and his successors on failure of successors in the grantee's family. Land so granted is inalienable, except with the express consent and concurrence of the grantor, if it be his self- acquired property ; but if ancestral or family property, then the consent of the persons entitled to the reversion, and who have an interest in it, and who are usually consulted before any alienation is made, must be gained. The grantee of a building lease does not acquire any right in the soil. Grants of land for building purposes are generally made by members of a family to a junior member at the time of marriage. Thus a man takes in marriage a woman. The members of her family give or point out to the husband :t plot of land to build on, and the only object of this is that the man may have somewhere to reside with his wife and any issue of the union. The rule of the descent with regard to any erections on such lands is somewhat similar to what is known in English law as tenancy in tail special. The grant is invariably made to a man and his issue (not heirs) — say, on Essie, his wife begotten or to be begotten. Whatever is erected on such land goes: to Essie and her children by him. For all practical purposes; the man has only a life interest, which he forfeits by wrong- fully and improperly terminating the marriage. The man's heir or successor has no title or interest iin such premises, nor can he himself sell or mortgage them. FANTI CUSTOMARY LAWS. 61 If the land was granted by the family of the man to him for building purposes, then neither his freeborn wife, nor her issue has title or claim to the ownership of such premises, but his children by her have only a right of residence in the father's house, i.e. a life interest subject to good conduct (Sivajnm v. Acquuah). Land so granted for building purposes reverts to the grantor and his family — (a) On the grantee quitting possession ; (b) On the grantee denying the title of the grantor to the land by setting up his own title or the title of any other person ; (c) On the building erected thereon, or the greater part of such building, falling into ruins ; (d) On the grantee leaving no issue by the woman on whose marriage with him or through whom the grant was originally made. (c) By purchase of the building erected thereon. The woman is, however, entitled to live in such buildings as may have been erected by the husband. The right of the grantor is lost by — (a) Gift or sale of the freehold to the grantee ; (b) Sale of the land by the grantor to any person ; (c) Death of the grantor without heirs or any successor. If the grantee erects any building on land so granted, and he desires to sell such building, there being failure of issue by his wife then deceased, the grantor or his successor has an absolute right of having the first offer. Where the grantee has issue by the wife, through whom he came into possession, he cannot sell premises erected on land so granted without the concurrence of his wife and his children by her. If such premises be sold without the consent of the grantor or his successor and family, but only with the con- currence of wife and children, the purchaser acquires, at the most, only a life interest, and can only enjoy the property during the life of the grantee, his wife, and their 62 FANTI CUSTOMARY LAWS. children, for as soon as they all die, the grantor or his successor is entitled without any interruption to take back the land, without paying any compensation whatsoever for any improvements made, or for any buildings thereon erected. And not only is the grantor or his successor entitled to the first offer, but he is entitled to demand from the pur- chaser an acknowledgment, that the land is not the property of the person who built the premises. This acknowledgment may be made by payment of money or by giving any token. If the grantee or purchaser neglect or refuse to render the acknowledgment, or to pay any reserved rent, he must remove his buildings and quit the land. The creditors of the owner of the buildings can at any time pull down the buildings and remove the materials in satisfaction of their claim. Therefore, where the owner of land gives leave to a person to build, the maxim quicquid plantatur solo, solo ccdit, doth not apply, and even if the materials were acquired from the land, and the occupier unsuccessfully contests the right of the owner, yet he can pull down the houses, when he is being turned out, or he is voluntarily leaving. It is a well-established custom, that no one should be improved out of his land, and also that family and ancestral properties must not be alienated except for well-recognized reasons. Where family or ancestral property has been alienated for value, the original owners, or those descended from them, can repurchase such property, provided the proper sacrifice is offered, the necessary libations are made, and the family or persons in possession are not residing on such property or using it. If a portion of the land has been set apart for a burial-place, that part need not be reconveyed to the family of the original owner at their request. The re-pur- chasing of such property is called Pun, that is Redemption.* A family owning or in possession of other lauds as freeholders in the same neighbourhood, cannot compel this kind of redemption, and a long period of time does not bar the * Compare Leviticus xxv. 23-27. FANTI CUSTOMARY LAWS. 63 right to such recovery of ancestral property. This kind of redemption must not be confounded with the redemption of mortgaged or pawned lands. Owners of lands where gold and other minerals are found give permission to miners to work thereon. These men open mines and sink several shafts, and the customary rent is what is known as Ebusa, which is a division into three parts of whatever the mines produce, whether gold, or quartz, or other minerals. To the landlord belongs one-third. But whenever gold nuggets are found in such mines, the landlord takes one-half. The owner of land covered with timber is entitled, in the absence of express agreement, to one-third of all logs, beams, and other timber felled or gotten of his land. And generally the owner of land is entitled to one-third of all produce gotten of his land by his tenants ; this one-third is given him in kind, or its value paid in money, as the owner shall direct. CHAPTER V. SURETYSHIP. Suretyship, Aginam-dzi or Aba-su-dzi, is a collateral engagement by a person to be responsible for the debt or performance of the obligation of another. The person who undertakes to be so responsible is called the surety, Ac/inam- dzi nympa or Aba-su-dzi nyi. To constitute valid suretyship, it is essential to have the mutual assent of all the parties, namely, the creditor, the person secured, usually called the principal debtor, and the surety. These three parties must be persons competent to contract, and they must do so with the necessary formalities and ceremonies. However much a person may like to stand surety for another, he cannot do so against his approval, whether such person is related to him or not. The creditor also must <54 FANTI CUSTOMARY LAWS. assent to the suretyship, and, until his acceptance, the offer to be so liable is revocable. Where the creditor and his debtor are subjects of the same stool, or members of the same village community, under the same headman, chief, or king, such king, chief, or headman cannot be a surety, and any ■engagement on his part to be responsible to a person so under him for another person under him is void. Likewise, the head of a family cannot be surety to a member of the family for another member of the family. But where the creditor belongs to a different family, even though of the same clan, the head of the family can become surety for a member of the family to the creditor. Insane persons and lunatics cannot be sureties. If a person, through intoxication or by duress, become a surety, he can avoid his responsibility by acting promptly, and calling upon the creditor to release him from his obligation, otherwise his •acquiescence will bar his release. A married woman cannot without the consent of her husband become surety for any person whatsoever, save and excepting her parents and children. Except with her mother or other immediate blood relatives, an infant can never become surety. The liability of a surety to answer for the debt of another, or for the con- sequences arising from failure of the performance of his principal's obligation, is a personal responsibility, and does not bind the surety's family or his successors. When a man becomes surety none of his children are bound by his contract, except such as joined in the contract with the consent of their mother or her family. Although there may be slight varia- tions in some localities, there is always a promise made or oath taken by the principal debtor to the proposed surety, that on such and such a day he will hand to the surety the amount in question, or that before the expiration of the specified day, the contract will be performed ; e.g. A requiring '1 ackies goes to B, who agrees to give it him on his finding a surety. C consents to guarantee the amount. To complete this contract there must be witnesses, in whose presence 15 counts the money and places it in the hands of C, who passes FANTI CUSTOMARY LAWS. 65 it to A. Immediately before or after the receipt of the money, A has to promise C, or take oath in the presence of these witnesses, that he, A, will repay C the loan on the day fixed, so that he, C, may pay B. If A has sureties, whether members of his family or otherwise, each of them makes the same promise or takes an oath to the same effect. After this C also promises B, or takes oath, that, on the day specified, he will see A repay B the loan, or he, C, will make it good. Where C also has sureties, each of them promises B, and takes oath to the same effect, each promissor in his turn calls the witnesses to take note of what is going on. The witnesses are usually invited by the creditor, debtor, and surety respectively, and in their presence the considerations must be distinctly stated. After the creditor has consented to accept C as surety for A, a sum of money or chattel is given to the witnesses as token of the contract. If there are persons who " stand behind " the surety to ensure the due performance of his guarantee, they do not always expressly make any promise or take any oath, the surety C merely saying to the creditor, " these stand behind me," i.e. they are my sureties. Money or token given to the witnesses is added to the debt of the debtor. In default of payment, the remedy of the creditor is against the surety in the first instance, and not against the debtor. It is only where the surety cannot be found, or he fails to pay, that the creditor can sue the debtor, for then it is certain that the debtor had failed to keep his solemn promise to the surety. It is the duty of the debtor to perform his solemn stipulation, and to see that his surety does not fail in doing likewise, for the debtor should know more of his surety than the creditor. Where there are several sureties for one specific sum of money, they are jointly liable, and each cannot be made to pay more than a proportion of the debt. Where the creditor makes further arrangement with the debtor, unknown to the surety, or without his consent, or grants him more time, or instigates the debtor to run away or so to deal with his property, that the surety's means F 66 FANTT CUSTOMARY LAWS. of falling on it to recoup himself is lost, the surety is dis- charged. Where a creditor, by fraud, or misrepresentation, induces a man to become surety for a debtor, the contract is void. A person does not become a surety by merely inter- ceding for a debtor. At the time of accepting the guarantee, the creditor is to give the surety some money, varying in amount from a takoo, or ninepence, to an ounce of gold (£3 12s.), to bind the contract of suretyship. When the surety wishes to strengthen his claim on the debtor's relations, the debtor is usually joined by his brothers and nephews, the younger ones being preferred, as in the ordinary course of nature the younger ones may live longest. In order that the debtor may expeditiously fulfil his contract, it has long been customary for a child, relative, or servant of the debtor, to live with the surety, and in the event of the death of the debtor, the fact of such a person residing with the creditor, or surety, is a strong proof to the debtor's family of the existence of the debt. This custom is quite distinct from Pawning, Ahuba. A person placed in pawn is not personally liable for the debt, although in temporary bondage to the creditor, and as such he cannot acquire any property, which will belong to the creditor. The death of the pawn does not cancel the debt, and he must be replaced. But in case of Aginam-dzi, surety- ship, the co-surety, i.e. the person "standing behind," is personally liable for the settlement, and while remaining with the creditor he can acquire property or earn means to liquidate the debt. The creditor may, though not bound, maintain him, and if he does maintain him he can add the expenses thereof to the debt, unless the co-surety gives his services in return. The surety has a right to fall on the debtor to repay him all monies he may have paid to the creditor, together with any expenses and disbursements incident thereto. A surety is not entitled to the benefit of any set-off the principal debtor may have against the creditor, unless by express agreement. FANTI CUSTOMARY LAWS. 67 CHAPTER VI. ALIENATION. The head of a family has greater powers of alienation over moveable ancestral property than he has over immoveable ancestral and family property. He can alienate the former in gifts to any of the mem- bers of the family, or for their education, support, or relief from distress, or for starting in trade or business, or for getting a wife for any member. Amid all the conflict of contradictory accounts which meet one at every turn, it is nearer the mark to say, that the head of the family has the moveable ancestral property in his absolute control ; if, therefore, the family find he is misappropriating, wasting, or squandering the ancestral fund, it is to their interest to remove him at once and appoint another in his stead. The head of a family cannot, without the consent of all the principal members of the family, or the greater part thereof, that is the Ebusuafu, alienate the immoveable an- cestral or family property. And although an alienation may be necessary for some family purpose, or for the discharge of a family obligation, nevertheless, unless confirmed by the senior or principal members of the family, such alienation is revocable. Neither the head of the family acting alone, nor the senior members of a family acting alone, can make any valid alienation nor give title to any family property whatsoever. Any person buying or advancing money on any property should carefully inquire whether the property is ancestral, or family, or private. If he find from his inquiries that it is not of the last description, he is bound to inquire into the necessity for the alienation, and find out whether all the beneficiaries are parties to the transaction; whether such alienation benefits the estate or family ; and in cases where the property is in a stranger's possession, whether the senior 68 FANTI CUSTOMAKY LAWS. members of the family have received notice of such transac- tion. Pandy v. Koomoarce, 6 Moore's Indian Appeals, 423 : — " The court will consider whether the debt for the dis- charge of which the alienation is alleged to have taken place, has been incurred owing to misfortune, an income inadequate for the ordinary expenditure of a person in the position of the person incurring the debt, or antecedent mismanagement of other managers ; or, on the other hand, whether it is owing to profligacy and wanton waste of the estate on the part of the alienor ; and if the latter state of facts be proved, the court will scrutinize rigidly to see if the person advancing the money was in any way a party to such profligacy or wanton waste, and if it be shown that he was so cognizant of or a party to it, the court will not deem the alienation to have been lawful." Thus decided their lordships of the Queen's Privy Council, and it is worthy of remark, that in the native tribunals the purchaser of ancestral family or stool property must have clean hands, if he is to retain possession of such property. Where money has been advanced for the purpose of discharging an ancestral or a family debt, and the members of the family have parted with their ancestral or family property in satisfaction of such advance, such alienation is valid, if the alienee is able to show that he acted bond fide ; that in truth and in fact, the money advanced was for the discharge of an ancestral or family debt; and that on in- dependent inquiry he was satisfied it was an ancestral or family debt from which it was necessary to relieve them. Whenever the alienation of any property is set aside, the alienee is entitled to get back his purchase-money from the person who received it, and where the person at whose instance the alienation was set aside has had some benefit from the purchase- money, he will be bound to refund the whole or lose his suit. Avjortchic v. Esshon, March 7, 1871. But where the alienee fails to prove facts which would justify a refund of the purchase-money, he loses his money. If, however, part of the alienation is found to be FANTI CUSTOMARY LAWS. 69 justifiable and a part not, then the alienee will be entitled to the part upheld. (i.) Gift. Gift consists in the relinquishment of one's own right and the creation of the right of another, in lands, goods, or chattels, which creation is only completed by the acceptance of the offer of the gift by that other. To constitute a valid gift, an intention of giving or passing the property in the thing given to the donee by the donor, who has power so to do, is necessary. The acceptance of such gift by the donee must be made in the lifetime of the donor. The giving and acceptance must be proved and evidenced by such delivery or conveyance as the nature of the gift admits of. What is given by a person in wrath or excess of joy, or through inadvertence, or during minority or madness, or under the influence of terror, or by one intoxicated, or extremely old, or afflicted with grief or excruciating pain, or what is given in sport, is void. Where anything is given for a consideration unperformed, or to a bad man mistaken for a good ioue, or for any illegal act, the owner may take it back. The acceptance of a gift should have as much publicity as possible, having regard to the nature of the gift ; but the acceptance of a gift, consisting of immoveable property, must be invariably made public. Acceptance is made — (i.) By rendering thanks with a thank-offering or presents, alone or coupled with an utterance or expression of appro- priating the gift ; or (ii.) Corporeal acceptance, as by touching ; or (iii.) Using or enjoying the gift ; or (iv.) Exercising rights of ownership over the gift. In this country gifts invariably try to clothe themselves 70 FANTI CUSTOMAKY LAWS. with the semblance of a sale, and therefore, where formal acceptance is wanting, the owner can take back his gift. Gifts, in the European sense of the term, as far as regards immoveables, seem to be unknown here. If the donee is in possession, either alone or jointly with the donor before the gift, the continuance of his possession is sufficient without any new delivery, provided the donee makes acceptance in the way set forth by (i.) above. Every gift when completed is irrevocable, except in gifts between parent and child, which can be recalled or exchanged at any time by the parent in his or her lifetime, or by his will or dying declarations. A gift is not rendered invalid — (a) By being made in contemplation of death and subject to a conditional right of resumption in case of the donor's recovery ; (b) By being made dependent on a contingency ; or (c) Because the donee is a minor, provided some one on his behalf makes the necessary acceptance ; or (d) Because it is voluntary. Anything given in return for a gift, as a token of the acceptance, cannot be recalled so long as the original gift is in the possession of the original donee. (ii.) Mortgage and Pledge. A pledge is the delivery of a thing or chattel to a creditor as a security for money advanced or due, on con- dition of his restoring it to the owner after payment of the debt, and subject to a conditional power of sale if the loan or debt be not paid at a certain specified time. A moveable thing or chattel given as security for a debt is a pledge. An immoveable property given or conveyed by way of security for a debt is a mortgage. FANTI CUSTOMARY LAWS. 71 The person giving an immoveable property as security is called the mortgagor ; and the person to whom such property is given is called the mortgagee. When the mortgagor discharges the liabilities for which an immoveable property is mortgaged, he is said to redeem the property. When the mortgagee enforces any right given to him by his contract of putting an end to the mortgagor's right to redeem, whether by selling the property, and out of the proceeds of the sale satisfying the debt on the property, or by transferring the property to another person, or by becoming absolute owner of the mortgaged property, he is said to foreclose. Where a person is the security given for the payment of any sum of money, the person is called a pawn, and the transaction, pawning; but since the Gold Coast Ordinance, No. 1, 1874, this has been declared illegal. A mortgagee has no power to foreclose without first giving reasonable notice to the mortgagor, and in his absence, to the immediate relatives of the mortgagor, of his intention so to do. Where real property has been mortgaged, the mortgagee is absolutely entitled to enjoy, without any hindrance what- soever, all profits accruing therefrom, nor is he accountable for the profits so enjoyed. Amonoo v. Abbakuma, June 7, 1871. Where continuing interest is charged for the principal, the mortgagee may reimburse himself for any trouble or expenses he may have put himself to, for and on behalf of the mortgaged property. A mortgagor can redeem at any time he please, provided he repays all monies due on the property, whether such monies be the principal debt or interest, or expenses incurred on behalf of the property. No mortgagor or mortgagee, or their respective successors, can transfer to another any rights which he may have under the mortgage without notice to the other party to the 72 FANTT CUSTOMAKY LAWS. mortgage transaction. The mortgagor may assign or transfer his right of redemption to a third person. To make such an assignment or transfer of mortgage rights valid, it is necessary that some of the witnesses of the original transaction be present, if available, or the mort- gagor have notice of the person to whom such assignment or transfer is made. The person to whom a chattel is pledged has right to use it, nor is the pledgor discharged if the thing pledged is destroyed by use: e.g. Kudwo pledges his cloth to Kwow for a dollar. Kwow has right to use the cloth, and Kwow is bound to repay the dollar so long as the pledgee can restore the cloth, even if in a torn and worn-out condition. No person can sell a chattel pledged to him until the owner on being requested to redeem has failed so to do. Where the owner is dead or not to be found, his immediate successors or relatives must have notice of the intended sale of such pledged article before the pledgee can safely sell. The pledgee cannot purchase from himself any article pledged to him unless the owner thereof, or some one claim- ing through him, has gone into accounts with the pledgee and consented to his taking the chattel, in full or part satisfac- tion of the debt. Where a mortgagee or pledgee realizes his security and finds there is still a balance due, he cannot call on the mortgagor or pledgor to make up the difference. If his security has turned out insufficient, he has to thank himself for his simplicity. If, on the other hand, the security realizes- more than the debt, the surplus must be paid over to the debtor or his personal representative. Once a pledge or mortgage, always a pledge or mortgage. FANTI CUSTOMARY LAWS. 73 (iii.) Loans. A loan is the gratuitous lending by a person of an article to another person called the borrower, for the use of such borrower. The property in an article borrowed remains in the owner, whether the borrower himself have it in his possession or not. The borrower is bound to exercise the greatest diligence and care for the safety of the article borrowed, for if the thing borrowed is injured through his carelessness, he is bound to make an equivalent restoration. If the thing borrowed be injured or lost by act of God, he is not liable if his own negligence did not conduce to such loss or injury. If the thing be lost by any other cause whatso- ever, the owner at his own option can claim the value or an article of like nature and quality. Where the borrower fraudulently deals with property borrowed, or uses it for a purpose different from that for which he told the owner of the thing, he is liable, not only to return it, but also to account for any profits accruing therefrom. E.g. : A lends his cutlass for a month to B, who said he wanted to cut some bamboo trees. B does not use it to cut bamboo trees, but to cut down odum wood. A can claim his cutlass back before the end of the month, and compel B to give compensation from the proceeds of the odum wood. If B had not shown for what purpose he required the cutlass, A could not demand any compensation. The most common kind of loan is that for money. Here the lender invariably asks for a surety or security, and in the absence of a special and distinct contract, the rate of interest is fifty per cent, on the sum advanced, the principal and interest being payable at an indefinite time, not less than a year, and even then after notice. The said interest of fifty per cent, is added once for all ; other lower rates are fixed, according to an agreement of the parties. 74 FANTI CUSTOMARY LAWS. (iv.) Sale. Dealing with the native law and custom relating to the sale of land, where the English language * or a written in- strument is not used, the careful student of native law and custom will not fail to observe that of all things, land is about the last thing which became the subject of an out and out sale. Owners of land were as reluctant and unwilling to part with their land and inheritance as was Ephron, the Hittite, to sell a burying-place to Abraham, as recorded in the Holy writ. Eather than sell his land, the native will grant leave to another, a friend or alien, to cultivate or dwell upon it for an indefinite period of time, thus reserving unto himself the reversion and the right to resume possession whenever he please. This is the reason why the first European settlers could not buy the freehold of the site of their forts and castles, but had to give pay-notes, securing to the owners of the land certain annual rents. Before the prohibition of slavery and pawning on the Gold Coast, rather than part with the family inheritance, members of a family have cheerfully volunteered to be sold to raise money for the payment of a pressing family liability. But in process of time, and especially since the emancipation of slaves and the prohibition of slavery, the sale of lands has been of more frequent occurrence in the coast towns. The inhabitants of the more inland districts are very conservative, but the native laws and custom relating to the sale of land have not changed at all, and the decisions of the Judicial Assessors therein are as applicable to-day as then. To constitute a valid sale of land on the Gold Coast there must be — 1. Competent contracting parties ; 2. Mutual assent of such parties ; 3. The marking out or inspection of the land and its boundaries, and if necessary, the planting of boundary trees, and fixing of boundary marks. * Vide note A, p. 90. FANTI CUSTOMARY LAWS. 75 4. Valuable consideration, that is gold, money, or chattel, paid, given, or promised. 5. The payment of Trimma, earnest money, to the vendor or his representative, in the presence of some of the members of his family and witnesses. i. To find out who are the competent contracting parties, one must know whether the land about to be sold or pur- chased is — (a) Land appurtenant to a stool ; or (b) Land held in common by the members of a village community or a company ; or (c) Ancestral property ; or (d) Family property ; or (e) Self-acquired property. (A) To every stool (Bogyea Agwa) to which annual sacrifices are made, are attached lands under cultivation, or forest, or habitable, and in such lands the family, including the servants and others, the immediate dependents of the stool community called domestics, have a life interest. The blood relatives of the original owner, the purchaser, with the occupant of the stool, however, possess a greater and superior interest in such stool property, but the occupant of the stool alone cannot sell or alienate any portion of such property ; per Sir David Chalmers, Judicial Assessor : — " I apprehend that not even the regular occupant could alienate property without some concurrence by the people of the stool who have an interest in it, and are usually con- sulted on such a matter. Barnes v. Attah." If one of the people of a stool, Bogyea Agwa, convey any stool land on his own authority, and in so doing no doubt intends the best interests of the stool, yet such transaction is not binding on the stool or the members thereunder so as to give a valid title to the land. (b) The village community is a corporate body, of which the members are the resident families or family groups residing in the several households. These village communities are scattered over the length 76 FANTI CUSTOMARY LAWS. and breadth of the whole of Guinea. The headman of the village is in some places so by hereditary right, in other places he holds his position by election. In places where the right is hereditary, the members of the village community, by and through the council of the village elders, have a right of veto to his election. Land owned by the village community can be sold, when, there being a public liability, the inhabi- tants of the village are unable to contribute money for the payment of such claim, and the village council decides to sell such land or a portion thereof. The head-man of the village, acting together with the members of the village council, alone can sell the land ; but where the plot is in the occupa- tion of some one, that person is entitled to make the first offer for it. So, also, in cases where land is owned by a company, the person who can act for the company is the president of the assembly of captains controlling and managing the affairs of the company. The captains in a body, with their president, may sell lands belonging to the company whenever any pressing or special demand arises, causing the alienation of such property for purposes of the company, expedient or imperative. (c) Ancestral property is any moveable or immoveable thing which has descended to a person from an ancestor however remote ; all savings made out of such moveable or immoveable thing, and all purchases or profits made from the income, or from the proceeds on the sale thereof, follow the character of ancestral property, also every immoveable property acquired on partition of, or in exchange for, property which has so descended. Per Chalmers : — " I consider that the new tenements took all the incidents of the one for which it was substituted, and was therefore in Degraft's lifetime in the same position as if it had been land of inheritance to which he had actually succeeded. Barnes v. Mayan." (d) Family property is any moveable or immoveable thing acquired — 1. By the joint labour of the members of a family. One FANTI CUSTOMARY LAWS. 77 of the most common instances of this is the building of a house by the members of a family ; or 2. By the contributions from two or more members of one's family. (e) Property is designated self-acquired or private, where it is acquired by a person by means of his own personal exertions without any unremunerated help or assistance from any member of his family ; or without any advance or contribution from the ancestral or family possessions of his family. The owner of self-acquired property, whether such pro- perty consists in land or otherwise, can sell or deal with it as he thinks fit. But where any land, lost by an ancestor or any of his successors, has been recovered by a member of the family out of his private resources, such land is considered to have been purchased for the family, and is not self-acquired property, unless the members of the family were made dis- tinctly to understand at the time of purchase that it will not resume its former condition as the ancestral property. It should be noted, while on this point, that, with the exception of the coast towns, where there is much contact with European ideas, self-acquired or private property in its strict sense does not exist over the whole country, because the family group is of the patriarchal type. The occupant of a stool and the head of a family each occupies a position somewhat similar to that of a Boman paterfamilias. But in this country the head of a family holds the family possessions in trust for himself and the members of the family. All the family possessions are under his control, and all acquisitions made by the family are made for him, and fall into the common stock, and all the self-acquired property of a person which remains undisposed of at his death descends to his successors as ancestral property. It is a universal custom that if an individual holds 78 FANTI CUSTOMARY LAWS. property in severalty, that is, as sole owner and possessor, it will in the next generation relapse into a state of joint tenancy. If land be free to-day in the hands of its acquirer, it will to-morrow resume its fetters in the hands of his heirs. Absolute, unrestrained, and exclusive ownership, enabling one person to deal with his immoveable property, is the exception. For the father is restricted by his brother, the brother by his sister's sons and daughters, and the woman by her own issue. In the English law, individual property is the rule ; the converse holds in the Gold Coast. The head of a family has greater powers of alienation over moveable than he has over immoveable ancestral pro- perty and family property. He can alienate such moveable property in gifts to any of the members of the family, for their education, support, or getting a wife for any member of the family. If the family, therefore, find the head of the family misappropriating the family possessions and squandering them, the only remedy is to remove him and appoint another instead ; and although no junior member can claim an account from the head of the family, or call for an appro- priation to himself of any special portion of the family estate, or income therefrom arising, yet the Customary Law says they who are born and they who are still in the womb require means of support, wherefore the family lands and possessions must not be wasted or squandered. The head of a family cannot, without the consent of all the principal members of the family or the greater part thereof, alienate any part of the family immoveable posses- sions, and if such consent is secured, the alienation must be for the benefit of the family, either to discharge a family obligation, or the proceeds of such alienation must be added to the family fund. In answer to the Judicial Assessor, in 1872, as to how such consent should be signified, the Chiefs said : — " It would be necessary for all the members of the family to meet and discuss, and if there were land to be sold, all the members FANTI CUSTOMARY LAWS. 79 would meet and get strangers to be witnesses, and the family would concur for payment of the debts. As many members as could be got should represent the family. When such meeting and discussion has once been had, the sale remains good. It would be proved by the strangers who were witnesses." The right of one of the senior or elder members of the family to rescind or set aside sale of ancestral or family land, such person having opposed the sale has been the subject of a decision of the Full Court, presided over by Chief Justice Marshall in Bayaidce v. Mensah. The Court said : — " Although it may be, and we believe it is the law, that the concurrence of the members of the family ought to be given in order to constitute an unim- peachable sale of family land, the sale is not in itself void, but is capable of being opened up at the instance of the family, provided they avail themselves of their right time- ously, and under circumstances in which, upon the rescinding of the bargain, the purchaser can be fully restored to the position in which he stood before the sale. This, obviously, is not the case, whereas here the purchaser has possessed for a series of years (fourteen years) in undisturbed ownership, has cultivated and improved the land and established a home upon it. " "We are of opinion that whatever right of impeaching the sale the family possessed, is barred by their acquiescence and the plaintiff's continued cause of undisturbed possession." ii. The intending purchaser having discovered the proper persons from whom he could buy, and who could give him a good title, personally or by messengers, makes known his desire to buy the land. iii. When the owners of the land consent to sell, a day is fixed for inspecting the land. The owners of land adjacent to and abutting upon land under inspection, are invited to be present, so that disputes as to boundary marks may be averted in the future. iv. After the inspection, the price is fixed after much 80 FANTI CUSTOMARY LAWS. talk ; but when the intending purchaser knows the land, no inspection is made before the consideration money is agreed upon. v. Then is paid the earnest-money (Trimma). This binds the contract, and without the payment of Trimma to the vendor no contract exists, and he is at liberty to sell the land to some one else for a larger price ; the intending pur- chaser can withdraw his offer and repudiate the contract without being liable for any damages, although the Trimma is forfeited. The Trimma is sometimes distributed among the wit- nesses to the contract, as token of their presence when the bargain was struck ; but it is more usual for the vendor on receiving the Trimma to give to the witnesses a distinct amount of money. Quay v. A ywoodsuah. Tbe drinking of palm-wine, rum, gin, or other spirits is not an essential part of the contract of sale. In the absence of agreement reserving the crops on the land which are to be removed as soon as possible, or within a specified time by the owner, the purchaser of a piece of land is entitled to all that is thereon and within it. He who offers anything for sale thereby implies he has a right or is authorized by the true owner or owners to sell and part with the ownership therein, and to give a good title to the purchaser. Where the title is found defective, the purchaser can demand his money back, and all expenses incurred must be repaid by the seller whose personal repre- sentatives are not liable. If, therefore, a man buys from another, and after the death of the seller the purchaser discovers his title defective, he has no remedy, for if he wished to protect himself, he should have specially contracted with the seller for good title and included his successors or heirs. No earnest-money (Trimma) is paid in simple purchases or in barter. In the sale of lands and slaves, and for a large quantity of goods at one sale or transaction, Trimma must be paid. In contracts for the sale of chattels and merchandise, as soon FANTI CUSTOMARY LAWS. 81 as Trimma is paid, the purchaser is entitled to their possession on payment of the agreed price. If he fail to complete the purchase, he forfeits the Trimma, but he does not seem to be liable to any damages for breach of contract. The vendor cannot compel the purchaser to perform his part of the contract ; on the other hand, in the absence of the Trimma, the purchaser cannot, by tendering the price agreed upon, compel the vendor to give him delivery. The respective positions of the parties, and their freedom from liability, are tersely stated in the well-known trade expression, current on the West Coast of Africa — No buy, no pay. (v.) Testamentary Dispositions. The customary law knows nothing of wills in writing, and even in the matter of testamentary dispositions the members of the family exercise much influence. Cruickshank describes the ceremony of will-making, as he calls it, which is still common among the people. " In view of death, the head of the family summons around his death-bed his relations. He instructs them about the state of his affairs, and how his property was acquired, and how to be disposed of. He is most particular to furnish them with proofs respecting the acquisition of his pawns and slaves, mentions the names of the witnesses to the transactions, the circumstances under which they took place, and the sums paid for them, in order that his successor may be enabled to defend his rights, in the event of their attempting to obtain their liberty or redemption at the death of their master. He also recounts the names of his debtors with the sums which they owe to him, as well as the debts which he owes to others. His death-bed declarations, made in the presence of responsible witnesses, are always received as evidence in the event of litigation afterwards." The curious inquirer 82 FANTI CUSTOMARY LAWS. may here be informed how suggestive are the death-bed scenes of the patriarch J acob, as recorded in the sacred writ (Gen. xlix.), and that of King David. Now, it has been affirmed as a general proposition by Sir Henry Maine, in his " Ancient Law," that in all indigenous societies a condition of jurisprudence, in which testamentary privileges are not allowed, or rather not contemplated, has preceded the latter stage of legal development in which the mere will of the proprietor is permitted, with more or less restrictions, to override the claims of his kindred in blood. And even among the Eomans, a will was never regarded by them as a means of disinheriting a family or of effecting the unequal distribution of a patrimony, and the rules of Law preventing its being turned to such a purpose increase in number and stringency as the jurisprudence unfolds itself. Samansito is, in fact, not a word that accurately conveys the conception of a will as understood by an English lawyer, for the idea of making a disposition of property to take effect after the death of the giver, as has been noticed by observant European travellers on the Gold Coast, is really opposed to the fundamental principles of the ties binding the members of the family. Without doubt, the custom of making wills with respect to self-acquired property is of modern growth, but no one can tell when the practice first began. Death-bed dispositions, known as Samansiw, seem to be recognized, not so much because of any assumed right to make such a disposition, as because, from feelings of affection, respect, or even superstition, the last wishes of the deceased are considered to be entitled to weight, among the members of his family. And this idea runs through the customary law relating to testamentary disposition of property. In fact, the only disposition of property known to the early customary law was a transfer followed by immediate possession. Contact with British rule in the old settlements gave rise to the practice of reducing into writing such transactions, and writing has in some localities become common, not so much because it is essential FANTI CUSTOMARY LAWS. 83 for the validity of transfer, but because it is a permanent record of such occurrence. A stool-holder, or chief, or head of a family, or the manager of family property, has no power by testamentary disposition to alienate any part or portion of the family estate, moveable or immoveable, from the family. He may suggest one to be his successor, but on his decease the people of the stool or members of the family may or may not act upon his sug- gestion or recommendation {Coffic Yammooh v. Abban Cooma). The owner of self-acquired property can in his lifetime deal with it as he pleases, and where he intends to give the whole or a portion of it to his child by a freeborn wife, Adihiwa, or to any person not a member of his family, he does so before his death. As soon as he dies, his successor is entitled to all the property he died possessed as heritable and ancestral estate, subject to the usual rules of inheritance ; of course the successor may give heed to the expressed desires of the deceased, who may have been so taken ill suddenly, as to have been unable to accomplish his intention respecting the disposal of his property. Where the owner of self-acquired property gives testa- mentary directions as to its disposal among the members of his family, who thereby take such property as heritable or ancestral property, the person, who would otherwise have succeeded to the deceased, cannot ignore such dispositions, and the persons benefited have a right to enforce such bequest. E.g. Kwesi, owner of Addum and Donpim lands, four bendas, a house, and twelve pieces of salagha cloth, makes testamentary disposition, bequeathing Addum land to his son Kudwo, Donpim land to his youngest niece Araba, two bendas to Aduku, his younger brother, two pieces salagha cloth to Baidu, his friend. The said Kwesi had a mother, elder brother, and three sisters him surviving. By the customary law, his son Kudwo cannot take Addum land; Araba is entitled to Donpim land, and can enforce her right to possess the land, she being of the heritable blood ; and it is only on the failure of her issue to succeed, that the other 84 FANTI CUSTOMARY LAWS. members of her family come in. Aduku also is entitled to take the two bendas, but Baidu cannot compel delivery of the two pieces of salagha cloth, if the mother, eldest brother, or the sisters refuse to deliver them to him. The owner of self-acquired property, after solemnly making his testamentary dispositions, may subsequently revoke a part or the whole of them. Where a woman, having issue or descendants, possesses self-acquired property, her testamentary declarations as to the disposal of her property among her children and grand- children is binding. When she fails to make such disposition her mother is her successor, then her children by seniority, failing whom, her sisters and brothers by seniority. So long as her children and their issue are alive, the right of the brothers, sisters, and sisters' issue is subordinate to that of her own children. The property of her son, which a mother succeeds to, is at her absolute disposal, and she can do whatever she pleases with it; but she has only a limited or at the most a life interest in property which comes to her from her deceased daughter leaving issue. E.g. Amba has two daughters, Effua and Abba, both having issue, and sons Kwesi, Kobina, and Kwow. Effua, the pos- sessor of four bendas, and Abba, the owner of a piece of land and some valuable beads, and Kobina, possessing a house, chattels, and some money, die, each leaving children, but without making any testamentary disposition : the mother takes the property of her son Kobina, over which she has absolute control. She may appoint the youngest son Kwow to be Kobina's successor, or even give the estate of the deceased son to any of her grandchildren by her daughters Effua and Abba, and such person will hold the property as heritable or ancestral property. The said mother has only a limited interest, however, in the estate of her daughters, for the right of children to succeed to their mother is superior to that of their grandmother. A stool-holder, who had kept his self-acquired property FANTI CUSTOMARY LAWS. 85 distinct from the stool property, to the knowledge of the senior and immediate members of the stool, can make a valid testamentary disposition of such self-acquired property. The customary law does not permit any person to bequeath to an outsider a greater portion of his property than is left for his family. Nor does the customary law permit any testa- mentary disposition, by a man weak in intellect, or imbecile, or insane, or under the influence of fraud or misrepresentation, to stand, or to be regarded at all. It is not only on the death-bed that a man can make testamentary disposition. A person can make his testa- mentary disposition while enjoying perfect health ; but at the time it is made, the witnesses must be distinctly told by him his words are his Samansiw, to take effect after his death. A subsequent Samanshv does not necessarily cancel or revoke a previous one, unless it is incompatible therewith. Where a person, by testamentary declaration, releases his debtor from payment of any claim he may have against him, or directs that a person in possession of the testator's chattel shall retain it as his own, it is binding on his successor and other members of the family, who cannot claim from such debtor the amount of the debt, or from such legatee his legacy ; for, says the customary law, what is given under such solemn conditions cannot be recalled ; the acts of gratitude should be cherished, and an act of restitution that calms a guilty conscience pricked with remorse should be respected. CHAPTER VII. SUCCESSION. There is no such thing as succession, in the proper English meaning, in a family owning ancestral property. The whole family, consisting of males and females, consti- tutes a sort of corporation ; some of the members being coparceners, i.e. persons entitled to a portion of the property 86 FANTI CUSTOMARY LAWS. on partition (cutting Ekar), and others who are dependents, and are entitled to reside in the dwelling-house for life, such as sons and daughters, subject to good conduct and not dis- puting right of the family. Partition being extremely rare, the idea of heirship scarcely presents itself to the mind of any member of the family. The members are entitled to reside in the ancestral house, and to enjoy that amount of affluence and consideration which springs from their belonging to a family possessed of greater or less wealth. The head of a family holds his property either in severalty or in coparcenary, and this depends whether the property is self-acquired, family property, or ancestral property, and, if the last, whether it be attached to some political or public office. The right of inheritance to ancestral property attached to a public or political office, varies as to whether such property is enjoyed with or without the immediate or remote control of any person. For example, in the case of a cap- taincy (Tufuhin) or other commanding position in a fighting force, without election no one can fill the post left vacant by his father or uncle or brother. Where the property is under or subject to another stool or head of a family, either by commendation or subjection, or by any other means, the superior lord or head of the family has an ultimate and absolute right of veto, whenever the person selected or elected by the retinue or members of the family is considered unfit or unsuitable by him. E.g. Kudwo, brother or nephew of X deceased, is chosen by his family to sit on the stool under Y, whose chief he was. If the blood relatives and domestics and bondmen of the family concur, the proposal must be confirmed by king Y, before Kudwo can be placed in the room of X deceased. And on the failure of the blood relatives, domestics, and bondmen to present a suitable person, the king may him- self choose one of the blood relatives to succeed, or one of the domestics or bondmen, to be the manager or trustee for life or for a specified period of the family possessions. The owner of self-acquired real property dying intestate, FANTI CDSTOMAEY LAWS. 87 is not succeeded by his sons, they being outside the line of inheritance, but by his mother and her issue according to seniority. Persons in the line of succession are : — Mother. Brothers, according to seniority. Nephews, by seniority. Sisters. Sisters' daughters. Failing these — Mother's brothers, by seniority or election. Mother's sisters. Mother's sisters' children. Failing these and their stock, the domestics in whose veins runs any of the heritable blood, take by seniority. Next, the head domestic ; lastly, a member of the tribe. Provided always that a man is invariably preferred to a woman. Hence the saying, " Obaa odan bayin," a man is the mainstay of a woman. There are therefore four kinds of successors, viz. Eeal, Proper, Ordinary, and Extraordinary. The Eeal successor of a person is his mother. We call those persons Proper successors who are the uterine brothers and sisters of the deceased, and the issue of such sisters ; but never can the pedigree be traced out in the line of the male. Ordinary successors are such persons as are descended from the maternal grandmother : E.g. : A person's uncle or aunts, and the issue of such aunts. Extraordinary successors are : — (i.) Issue by a house domestic with a male person of the heritable blood (Dihi). (ii.) Domestic, (hi.) Clan or tribal relative. The rule of succession may be made plain perhaps by the following pedigree or table of descent : — FANTI CUSTOMARY LAWS. FANTI CUSTOMARY LAWS. 89 In the above pedigree A, a male, is the owner of self- acquired property. On his death, his wife Abba does not succeed to his property, but his Eeal successor is his mother B ; she waiving her right, his brothers C, D, and E take by seniority. Failing the brothers C, D, and E, his successor is found among his nephews, that is, children of his sisters F, G, and H. The nephews are I, son of his sister F ; and J, son of his sister G. These take by seniority ; if, therefore, J, the nephew by his younger sister G, is older than I, J has a better right to the succession. If the nephew I or J be older than the brothers C, D, E, such nephew can be preferred over the brothers C, D, E, and the sisters F, G, H, to succeed A, and although the brothers are capable to succeed, yet any of them can waive his right in favour of one of the nephews. On the death, however, of the nephew, the right of the brother passed over or who waived his right revives. Failing the brothers and nephews, the next persons in the succession are K and L ; next to them are M, N, and 0, then P, Q, and E. The persons so named are those who can be placed on the stool, if any, and can become head of the family. If any of them cannot succeed when it is his turn, and there is no proper person available, then S, a son of E, by a domestic of the house, or a suitable domestic is appointed manager of the property. It seems that where a house-born son as S is appointed guardian, trustee, or manager, he holds his post for life, although he can resign in favour of any of the proper suc- cessors becoming fit to inherit. The sisters F, G, and H are the natural and proper guardians of the property during the incapacity or minority of the proper successors, but their management of such pro- perty and their control goes by seniority, the eldest, F, taking before G and H. Where the nephews are capable to look after the property, they take by turns : e.g. if the three sisters had three sons each, after the death or deposition for mis- conduct of the eldest son of the eldest sister, one of the sons 90 FANTI CUSTOMARY LAWS. of the second sister will be entitled to succeed to the uncle's property, and on his death the eldest son of the youngest sister will be next entitled, and one branch will not be exhausted before those of the other branch come in. Suppose K, a son of U, the daughter of F, who is the sister of A, had died, leaving self-acquired property. After his mother he will be succeeded by L, then by M, his nephew, who will be in his turn succeeded by Z, his grandnephew, and not by 0, the great grandson of H, who cannot succeed until the issue of Z's sister, V, becomes extinct. When that line becomes extinct, some say any son of Z by a domestic takes in preference to 0, who is blood relative, and the ordinary successors of K, both persons tracing descent from a common ancestress B, and failing the descendants of B, the persons entitled must be found by finding the descendants of A's aunts. When a person such as A dies, having his own acquired property, moveable and immoveable, he is not succeeded by his sons, free-born or domestic, whose only right is that of a life interest in the dwelling-house built by their father, the deceased, on a land not family property. For if the house be built on family land, the children have only right of occupation during good conduct. If any one living in the house of his father deny the right of the proper successor, or commit waste or injure the house, or encumber or sell it, he thereby forfeits his life interest. Such person must make the necessary repairs, and may quit if the successor requires it for himself as a residence. Mr. Eminsang, giving his opinion in Boham and another v. Marshall (May 18, 1892), says : " By native law, Anna Boham had a right to the house, as she was the sister of John Boham. By native law, she was the only heiress at the time. She could by native law have power to give the house to the children for their natural lives. Of the part so given to the children, unless Marshall gave the children an equivalent, he could not turn them out of the house. Marshall can pull down his portion of the house, if he did not interfere with the other portion. FANTI CUSTOMAKY LAWS. 91 " By the Court : By native law, the person succeeding to property could not dispose of it to beyond his lifetime, unless with the consent of the families. In this case, the plaintiffs being the children of John Boham, have the right to remain in their father's house during their lives, unless for good reasons. If the children do not Live in their father's house, still if they can go and live there as they will, the heir could not break the house down and dispose of the materials. The heir is the one to repair the house, and if the children are in a position they contribute towards the expenses." The latter part of this opinion is, we submit, erroneous. Children who leave their father's house for their own family or private house, cannot stop the father's successor breaking down the house, and if they alone reside therein, they must keep the house in repairs. Where, however, the successor resides in the same house, he of course sees about the repairs. In Halmond v. Daniel, August 22, 1871, Chief Koffie Chie and others laid down the law, in answer to the inquiry : If a man went from his family, cleared land, and on that land built another house, would not his children be entitled to live in it after his decease ? that " if a man had a father, either by country marriage or otherwise, and the father lived in the house with the wife and child, and he died, all the deceased's property, except the house, goes to his family. The father's gun and sword and house go to the son, and the saying is, ' the father dies and leaves his house to the son.' " The family take the property, but do not turn away the child. The son lives in the house with the family of his father, supposing they had nowhere else to live, and the son does not turn them away. If it is a family house, the head occupies as head ; yet he does not turn away the son from the house, except the son, after he has grown up, finds himself competent to build and leaves for the purpose of doing so. But he would not under any circumstances be turned out by the head of the family. " The family would not be turned out for the son's accom- modation. If they had nowhere else to live, they would 92 FANTI CUSTOMARY LAWS. live in the house. Where there is room enough for all (son and family), the head of the family arranges the rooms to be allotted to each. My answer of the descent of house to the son applies in case it has been built by the father. The family would be allowed to live in it if they had nowhere else to go ; if they had, they would leave the father's house to the son. The son could not sell the house except with consent of the family." In the coast towns, one now and then comes across what at first sight seems to be an exception to the general rule of succession. There are some families where succession goes from father to son ; but this has reference only to the dignity or title or office, with such property or insignia going with it, and which was in the first instance created with it. Such a position is quite distinct from that of head of family, although a person may hold the two offices at the same time: e.g. B is head of a wealthy family having and possessing a large retinue. The townspeople make him their king or chief, and give him by general contribution a sword, robes, drums, etc. If at any time the people depose him, the only property they can take from him will be what was handed him on his installation as king or chief, at which time he took the oath of office, swearing to be true and faithful to the in- terests of his subjects. And unless the members of his family remove him, he nevertheless continues head of his family, although another person be given the public honour and office. Where the deceased is a slave, his master or mistress takes all the property, or if he chose to place another domestic in his place, the master or mistress takes from the personal effects whatever he pleases. If a person whose ancestress was a slave die without issue, there being no descendants of the ancestress's master or mistress, his fellow domestic takes his property as suc- cessor: e.g. B is great-grandchild of C, a donkor of A ; D is descendant of A, and there are in the family (i.) several domestics, (ii.) but one domestic. On the death of B, J) may keep B's effects or give some to such one of the FANTI CUSTOMARY LAWS. 93 domestics as he please. If there be no descendant or heir of D her surviving (i.), the head domestic succeeds ; (B) the one domestic takes, and no tribal or clan relative can take preference, for the donkors invariably acquire their owner's tribal name, and bondmen often join the master's tribe. Bosnian, writing on inheritance, says: "The children they have by their wives are indeed legitimate, but all along the Gold Coast (they) never inherit their parent's effects except at Accra only. The right of inheritance is very oddly adjusted, and as far as I could observe, the brothers' and sisters' children are the right and lawful heirs in the manner following : They do not jointly inherit, but the eldest son of his mother is heir to his mother's brother or her son, as the eldest daughter is heiress of her mother's sister or her daughter. Neither the father himself nor his relations as brothers' sisters have any claim to the goods of the defunct. In deficiency of the above-mentioned heirs, the brothers or sisters take their place ; but if none of them are living, then the nearest relation of the mother of the defunct comes in. " The eldest son, supposing the father a king or a captain of a town, succeeds him in his office only ; but besides his father's shield and sabre he has nothing more to pretend to. So that 'tis here no manner of advantage to be descended from rich parents, unless (which seldom happens) paternal love obliges them to bestow somewhat on their children in their lifetime, which must be privately done, otherwise the relations after the father's death will oblige the children to return it to the utmost farthing " (Bosman, letter xii. pp. 203, 204.) CHAPTER VIII. SLANDER. Words which cause or produce any injury to the reputation of another are called defamatory, and, if false, are actionable. False defamatory words, when spoken, constitute slander. 94 FANTI CUSTOMARY LAWS. Where a person has been found guilty for using slanderous words, he is bound to retract his words publicly, in addition to paying a small fine by way of compensation to the aggrieved party. Words imputing witchcraft, adultery, immoral conduct, crime, and all words which sound to the disreputation of a person of whom they are spoken are actionable. The native custom is more in accordance with natural justice, equity, and good conscience than the English law, which has been denounced by many a learned judge. Says Lord Chancellor Campbell, in Lynch v. Knight and Wife, "I may lament the unsatisfactory state of our law, according to which the imputation by words, however gross, on an occasion however public, upon the chastity of a modest matron or a pure virgin is not actionable, without proof that it has actually produced special temporal damage to her." In- stead of the word "unsatisfactory " I should substitute the word " barbarous," said Lord Brougham on the same occasion. An effective way of punishing a person guilty of slander of serious consequences, is to make him walk throxigh the town or village carrying a heavy stone in front of an officer of the Court, who, at convenient halting-places, beats a gong ; the guilty slanderer is compelled to recant his base falsehoods, and to confess his disgraceful behaviour, amid the sneers and jeers of the multitude. The heavy stone so carried is called oturliba. CHAPTER IX. MODES OF ENFORCING PAYMENT. There are several modes of enforcing payment of liability more or less common. I. "Dharna," a practice well known in India, especially in the native states. The word " Dharna " is said to be an exact equivalent to the Eoman capio. The person who adopts this means of enforcing payment of his claim, goes early in the morning to the door or house of the person against whom it is directed, or to the place where the debtor usually follows his occupation. Here the creditor, FANTI CUSTOMARY LAWS. 95 covered over with white clay or in sackcloth and ashes, and having a supply of food sufficient for one meal, seats himself on a mat or on the bare ground. He informs the debtor that unless the debt is paid to the last farthing he will not go away, and if the debtor goes out this creditor follows him everywhere. Instances are known where the debt not having been paid the creditor has died of starvation. Sometimes, as the day draws to a close, the creditor swears to commit suicide if the debt be not paid before sunset. If in such a case the debt be not paid, and the creditor doth commit suicide, the debtor is bound to bear the funeral expenses in addition to paying the original debt and making substantial compensation to the family of the deceased creditor. But when the creditor swears that if by a certain time the debt be not paid he and the debtor must both forfeit their lives, the debtor cannot save his life by simply paying the debt and a compensation, he too must take away his life. It is worthy of notice that in the Brehon law, if a person has a legal claim against a man of a certain rank, and is desirous of compelling payment, the law authorizes him to "fast upon him." Notice, it says, precedes distress in the case of the inferior grades, except it be by persons of dis- tinction or upon persons of distinction ; fasting precedes dis- tress in their case. (Ancient Laws of Ireland.) This insti- tution is said by Sir Henry Maine to be unquestionably identical with one widely diffused throughout the East, and known by the Hindoos as " Sitting Dharna," which consists in sitting at your debtor's door and starving yourself till he pays. II. There are two kinds of Panyarring, namely, (a.) persons, (b.) chattels. (a.) Among the coast tribes and members of the same tribe, panyarring of persons was not customary. "When a member of a different tribe was found in a distant place he was liable to be seized with all his goods, and detained in bondage for a debt due by a member of his tribe till such debt had been paid to the satisfaction of the person or creditor who had so detained him. 96 FANTI CUSTOMARY LAWS. (b.) A creditor whose claim remains unsatisfied after repeated demands, followed by unfulfilled promises of pay- ment by the debtor, is entitled to seize his debtor's goods and chattels, usually of a higher value, and retain them till his claim is satisfied in full. The creditor has no power or right to sell the goods so seized or to use them ; but he is under no obligation to take any special care of them, or to account for their safe custody or keeping. III. Payment of debts is also enforced by the debtor being detained in custody, imprisoned in chiefs prison or at the village lock-up till payment is made. The debtor mean- while has to subsist himself or get his family or friends to do so, failing which he is forced to do hard labour by way of return for his board. So effective is this custom that, except in very rare cases, the debtor's family quickly make a contribution and pay the debt in full. During the administration of the African Association and Governor Maclean, judgment debtors were never subsisted by their creditors. On their friends failing to look after them, they were compelled to earn their food, by being put to some remunerative occupation within the precincts of the prison. Note A (vide p. 74). — It has often been asked, is the execution by a native of a deed drawn wholly or partially in the English form for sale, mortgage, or leasing of any property, or any timber or mining rights, such an unequivocal act, whereby the parties may be presumed to have put the native law and custom aside, and elected such deed to be construed, and the trans- action therein referred to, to be regulated exclusively by the English law. If it be so, then what will be the effect where a document is written in the Fanti or Accra language, or say, in Arabic or any other language, for, the modern feudal elaborate and intricate laws of real and personal property in force in England, incidentally referred to by Sir James Marshall do not and cannot apply to the tenure of property on the Gold Coast. Where- self-acquired or private real property is concerned, documents drawn in the English form may be good ; but where the property is Ancestral, stool or family, such documents are too often not worth the cost of the paper. Having regard to the contemplated legislation affecting the Native rulers, local tribunals, and particularly tenure of lands and possessions- appurtenant to the office held by such native rulers, it has not been thought expedient to say anything on Stool property and other points of the Customary Law ; but when the opportunity offers these will be fully treated, and the English forms of conveyance analysed to show in what respects they arc defective or misleading for the Gold Coast. ( 97 ) PART II. DECIDED CASES. THE FAMILY. ABBA QUASSUA v. THOS. WAED. September 1, 1845. Consawment Money — Husband and Wife — Accounts. Plaintiff in this case complained that the defendant, her husband, according to the country custom, had been treating her ill, and not using her as she considered a wife should be. Complaint examined and found that he had not been treating her well. It appeared likewise that he refused to allow her to go away back to her family, who lived at a distance, alleging that she was due him on account. This account, on examination, seemed to consist of some small items which she had gotten on different occasions to sell, and of no great amount. This was declared unclaimable, con- sidering that the plaintiff or her family had not received any consawment money according to the country custom at the time he took her, and it is hereby accordingly declared un- claimable. The plaintiff was likewise to consider herself free from any claims which the defendant might have upon her, inasmuch as from his own conduct to her, he had not performed his duty to her as a husband is generally con- sidered according to the custom of this country. H 98 FANTI CUSTOMARY LAWS. AGGRYBA v. ABAN. September 1, 1845. Marriage — False Charges — Dissolution. The plaintiff in this case complained that during the time she had lived with the defendant as a wife he had used her ill, and endeavoured to get up a false debt against her and her family, by leaving in her hand some pieces of lead, iron, etc., going away and alleging afterwards that this was gold. This was disproved afterwards, and the defendant convicted thereupon by his own town chiefs. He did not, when brought up before me, even attempt to substantiate it. The plaintiff, in consequence of her own refusal to return and live with him, was declared free from any claim which he might have upon her. ECCUAH AHINFUA v. QUASHIE GHAK Anamaboe, October 7, 1845. Plaintiff claims for her daughter Adjuah Bakoom's lying- in and support charges from defendant, the father of a child, begotten with the said daughter. Judgment for plaintiff, 8 ackies and costs. YOW PENIN v. WILLIAM DUNCAN. October 11, 1869. Before D. P. Chalmers. Assessors : Chief John May ah and Chief Kofi Amoah. John Mayah, sworn : — What are the essential acts or ceremonies to constitute a valid marriage according to the custom of the country ? FANTI CUSTOMARY LAWS. 99 When a man intends to have a certain woman for his wife, he applies to her family, asks her to be given in marriage, by taking to the family, according to his means, two flasks of rum ; or 2 ackies of gold dust (9s.) or 4 or 6 ackies, according to his means. Upon this, if the family approve, they agree to give the woman. Next follows the matter of dowry. That depends on the family. If they tell the man that they require dowry to be paid, they state the amount they wish, sometimes one ounce or nine ackies. If the woman's family did not wish for dowry, the application of the man with the rum would make a valid marriage. Next custom to be performed by the man is preparing some clothing for the intended wife. Gold is given to the mother of the woman, called Tanbiba, signifying money for the mother, for cooking against the time of marriage. Would the request and consent with the first present alone make a valid marriage ? Ans. : It would. The preparation of the clothing and gold would not affect the marriage ; the man would give them afterwards. Kofi Amoah : — All that the witness Mayah has stated is correct, according to the custom of our country. If a wife steals from her husband, does that break the marriage ? No. It is not customary for a husband to turn his wife away in such case. The case must be looked into to see if the marriage is to continue. If that is proved, the husband has the option of continuing or discontinuing the marriage. If he elects to discontinue, what steps must be taken ? If husband says he does not want his wife, the wife goes away with all the property she possessed at the time of marriage ; if the wife refused to remain, everything that had been given the wife must be refunded. Is any ceremony necessary ? The word of mouth of the husband is not sufficient. It is necessary to chalk the woman. The husband chalks her 100 FANTI CUSTOMARY LAWS. on the shoulders, for unless chalked the woman would not be at liberty to marry again. How is the chalking proved ? The woman goes about to the neighbours showing the marks and telling, "My husband has chalked me." If a woman should falsely represent such chalking, the family would have to make satisfaction to the husband, paying about two flasks of rum. Though there has been no theft, if the husband wishes to be quit of his wife, he may chalk her and let her go. He cannot do so without assigning cause. It is inquired into by the family, and they judge whether the cause is sufficient. If a husband beats or illuses his wife, is she at liberty to leave him ? Not without the case being gone into by the family of the man and woman. If not investigated and the wife should marry again, the first husband would be entitled to have compensation from the second husband; the amount would vary according to the man's position — 6 ackies up to 2 ozs. When marriage is suspended and parties wish to renew, is any ceremony used ? When the woman has stolen from the husband, it is necessary, in the event of renewal, for the wife to give a sheep unto the husband by way of satisfaction. Judgment. — October 12, 1869. Find that the plaintiff was married to his wife Eccuah Chinwah according to the custom of the country. That a husband cannot validly put away his wife without going through certain ceremonies. That the plaintiff has not performed these ceremonies. Consequently that cohabitation with the said wife by another man was unlawful. Find that alleged cohabitation by defendant proved. But not proved that defendant enticed or seduced Chinwah to leave her husband. FANTI CUSTOMARY LAWS. 101 Find that plaintiff is entitled to compensation from the defendant ; under the whole circumstance, restrict the amount to 1 ackie, i.e. 4s. 6c?. (Signed) D. P. Chalmers. In the hearing of this case the following evidence was given among others. September 20, 1869. — Plaintiff my husband brought rum and engaged, and afterwards brought cloths and married me. No money was sent, only cloths. He did not ask my family when he took me to wife and paid the expenses charged by my first husband. I know the law in the country to which I belong, and the reason why none of my family was asked when I married plaintiff, (was that) plaintiff paid all the expenses charged by my former husband without dispute ; plaintiff paid to my former husband about 4 ozs. 8 acks. October 7, 1869. — Per Kofi Koomah. Eccuah Chinwah my niece has been married to plaintiff legally, according to country fashion. The ceremonies were not performed, but took her to be his wife. The presents should have been given to me. The marriage can be made good at any time by paying the dowry. No dowry has been paid to me. Eccuah's father and mother are both dead. Eccuah is not niece to me through her father or mother, only by tribe. I am not brother either to her father or mother. I am the chief man of the tribe. The presents are paid to the chief. If father or mother were alive, the presents would have been paid to them, but I must have been informed. Know defendant ; have seen defendant at Dominassie. Eccuah lived with plaintiff about two years. Cross-examined : I know country custom of marriage. Plaintiff asked Eccuah from me in marriage. A person who did not apply properly for a woman in marriage, but seduced her would be fined. "When a woman has been properly asked in marriage, though ceremonies not fully performed, if any trifle had been given as earnest, if she was seduced the husband would be entitled to compensation. 102 FANTI CUSTOMARY LAWS. When plaintiff asked for Eccuah, she had not been married. Plaintiff brought me 2 flasks of gin, and 2 flasks of rum. Eccualis mother was living when plaintiff proposed marriage. When it was time to fulfil the marriage, plaintiff brought nothing to me. The marriage gifts were brought direct before me. It is necessary for the man to buy some clothing, beads for the women, and I saw you send these. I could accept these tilings without monies also being given. There was no money. It is customary to send gold dust ; plaintiff sent some ; the mother returned it, because she did not know if the marriage would be prosperous. I gave my consent to this marriage. The gold sent was 8 takoos, i.e. 6s. Plaintiff undertook to cook according to custom for eight days. I invited friends. On the death of the mother- in-law plaintiff contributed to the customs. When a man detects his wife stealing from him, it breaks the marriage. If they wish to renew, the one in the wrong must give satisfaction — 3 ackies, i.e. 13s. 6d. LINTOTT BROTHERS v. SOLOMON. Before Francis Smith, Judge. James H. Brew : As chief, I have been in the habit of deciding cases referring to the law of descent, and I have decided cases wherein the ceremonies connected with native marriages are brought in. In certain respects the law of native marriages is not so different from that of the law in England. The party seeking the hand of the daughter of another, would apply to the parents of the girl for her ; and on the parents expressing their willingness to give their daughter to the man, he would give them headrum without doing anything more. That would make the woman his wife in the eyes of the native law. But if he were desirous of going through the remaining ceremonies in addition to the headrum, he would send the trousseau, give a party to FANTI CUSTOMARY LAWS. 103 his friends, and in the evening the friends of the lady would accompany her to her husband's residence with lanterns not dimly burning, and leave the wife with her husband to complete the ceremony. The headrum is given to the father, and in case of a slave to the master or mistress, as the case may be. In the absence of the father, to any person stand- ing in loco parentis. The party receiving the headrum distributes it amongst his family, and in some cases amongst his friends. The law as to descent is from uncle to nephew, the eldest son of the eldest sister taking, that is, where the party dying does not make a will according to native notions. But where there is a brother of the deceased uncle, he steps in before his nephew. Where there are freeborn in the house and slaves, the country law is that slaves cannot inherit as long as there are any of the blood surviving. They may inherit by will, or, where the blood is under age, one may be selected from the slaves to succeed. There is a vast distinction between legitimate and illegitimate children known to native law. If a man has children by a woman for whom he pays no headrum, the children are not legitimate according to native law, though they may become so by their parents marrying. Children cannot succeed unless under the will of the parent, or by express declaration of all the family, given during the lifetime of the deceased. Ancestral pro- perty cannot be willed absolutely as if it were acquired property, but the last surviving member of a family can dispose of it as he thinks best. If emancipated slaves take advantage of their emancipation by leaving the family and severing their connection, they have no right to the pro- perty of the family, and whatsoever they acquire becomes their own property. Those of the blood would be those coming out of the womb of the head. All who issue from her are all of the blood. The children begotten by those of the blood are termed household children. The emanci- pation is useless unless you take the benefit of it. The 104 FANTI CUSTOMARY LAWS. grandchild of an emancipated slave would still be a slave, if he does not sever the connection. If there are two cousins, A and B (males), and A is a (sic) family, and there are issues of A with a slave in the house, and there are issues of B with an outsider, the issues of A would take in preference ; but if A and B are females, the issues will take equally — that is, the senior branch would take first. If a mistress takes a slave, and through that branch one child remains, he will take in preference to the descendants of the brothers of the mistress. If one buys a slave, and that slave has a child, and he wishes to marry that child, he will give headrum to the mother. The exact ceremonies will not necessarily be followed. Cases are known in which the headrum is not paid. This might prejudice the issue of the blood. If a master has a child by a slave, and the master's sister has a child by an outsider, the sister's child will take in preference. Illegitimacy is no bar to issue of the female side as to succession. The head of the family cannot dispose of any of the family property without the consent of the family. No qualification, excepting that of birth, is needed to be the head of the family, and this head must be from the female side. By birth, I mean it must come from the blood, the seniority taking precedence. The father might be disposed not to regard the children by a slave for whom he paid no headrum, and in that case they would be prejudiced. The household children stand next in succession to those of the blood. If the father does recognize the issue of a slave of his, that issue's rights are not the same as issue of a lawful marriage. The issue of the lawful marriage would necessarily succeed first. If there are three sisters, A, B, and C, and A has a son lawfully born, who has a grandchild from a slave in the house, and B has sons and daughters, and C has a daughter, FANTI CUSTOMARY LAWS. 105 who marries outside and has a child, the children of B, with regard to the family property, would take first. But if A, B, or C has acquired property of her own, the line of descent of each must be extinguished before the property of the one can go to the other line. Judgment for plaintiffs with costs. Mr. Benner for plaintiffs. Mr. Sarbah for defendant. DE GBAFT v. ABBA MANSAH. September 9, 1871. Before Chalmers, Judicial Assessor. Marriage — Accounting — Second Marriage — Wife. To show cause why you, having refused to live with plaintiff as his country wife, and having left his home, should not be ordered by this Court to pay him the sum of £40 12s. 1\d., the same being amount incurred by plaintiff on your account according to the custom of the country. Chiefs : It is the practice for elder wife to be consulted by husband on taking " second wife." If husband takes a second wife without doing so, it is not cause for discon- tinuance of the marriage, but it brings dispute, and husband must give elder wife satisfaction. Defendant being interrogated, states that she does not wish to continue marriage with plaintiff. Plaintiff is willing to renew and do such things, and pay satisfaction as may be appointed by the Court. Bemitted to Chiefs Thomson, Martin, Bobertson, and Mr. Morgue, to receive from Abba Mansah for De Graft such of the articles given by him to her as may be serviceable, the value of which shaU go tanto towards satisfaction. Judgment for plaintiff, £30 10s. 106 FANTI CUSTOMARY LAWS. KOFI SACKIE v. ACCOSUA AGAWA. July 28, 1873. Before Chalmers, Judicial Assessor. Recovery of the headmoney from ! defendant, whose daughter declines marrying plaintiff. Chiefs : 1. When a man takes a woman as his wife, is it customary for him to pay a sum of money to her mother as a dowry ? Yes. 2. Is this dowry given as a " gift " to the mother, or can it, under any circumstances, be recovered back by husband ? It is recoverable in a case of dispute between husband and wife, which has led to a discontinuation of marriage. The money given as dowry by the husband does not always go to the mother alone, but .also to the father, as well as the nearest relations. On a discontinuation of marriage, accounts are gone into between the husband and wife as to their separate expenses, and a balance is struck, which becomes payable by the one on which it lies. 3. Can the mother be made liable to pay the lump sum of dowry, if it had been divided among others ? The appli- cation is made to the head of the family, who consults and acts with others. 4. If a woman deserts her husband, is her family liable? Yes. 5. If a woman deserts her husband, can the husband claim any money from the mother-in-law which he has expended in maintaining her ? The family of the wife will be liable for all the property which the wife possessed when she left her husband, if supplied by the husband. Judgment for plaintiff, Chiefs Attah and Mayan to settle matters of account in dispute between the parties. FANTI CUSTOMARY LAWS. 107 HANNAH JONAH v. ADDACOO. October 9, 1873. Claim of £12 8s., expenses incurred by plaintiff and her family during the illness and subsequent death of one Effua Marnan, wife of defendant and daughter of plaintiff. Chiefs : A woman is a man's sweetheart, and not his wife, until he provides her family with rum or money as a sub- stitute, when she becomes his wife. Plaintiff charged the following : — £ s. d. Native Doctor 4 10 0 Medical Comforts ... 1 16 0 Coffin 1 7 0 Burial Ground 1 7 0 Grave Diggers 0 5 0 Funeral Obsequies ... 1 5 0 Silk Pillow 0 6 Cloth for Coffin ... 0 13 6 Midwife 1 0 0 £12 8 0 Defendant said I sent the plaintiff 8 ackies in gold (£l 16s.) and a ring (2 ackies), and a gallon of rum, because I loved the deceased. That is more than is usual in this country. Judgment. On account of the iniquitous charges made, I had intended to relieve the defendant from all payment ; but under all the circumstances, I decree that the offer of the defendant be accepted. £2. 108 FANTI CUSTOMARY LAWS. ADJUAH CHIBBA v. AGOOWAH OF MOKEE. October 21, 1873. Custody of Children — The Right of the Mother. Judgment. No person has a right to detain a child from her family, and the plaintiff has had a right to demand the girl Accosuah ever since she went into defendant's possession, and the defendant has had no right to refuse to give her up nor to demand any money for doing so. The defendant seems to have treated this girl kindly, and to have kept her well ; but, it must be remembered, she has had the services of the girl in her house working for her. I wish it to be distinctly understood that I refuse any payment to be made to the defendant as though the girl belonged to her as a slave ; it will only be as compensation for the expenses the defendant has incurred in clothing her. Her services I consider an equivalent for her food. I order the girl to be given up to her family at once, and award £2 to the defendant to be paid by the plaintiff as compensation for the girl's clothing and expenses, which are not covered by the services given by the girl. PATRICK JONES AND HAERIET JONES v. J. F. MENDS. April 22, 1872. Before Chalmers, Judicial Assessor. Breach of Promise of Marriage. Judgment. I find that the defendant asked the plaintiff in marriage, and that his proposal was accepted by her and by her parents on her behalf. That the understanding was that a country FANTI CUSTOMARY LAWS. 109 marriage should at once be entered into, which should be converted afterwards into a marriage in the face of the Church. Find that no time was fixed for the second marriage; that there is no proof of the defendant having refused to fulfil this part of the agreement, and that he has not incapacitated himself from so doing by the contraction of any other lawful marriage. In these circumstances the cause of action is not sustained, and judgment must be for defendant. The country marriage, upon defendant's own statement, still continues, and the plaintiff is entitled to the privileges which belong to that relation. JOHN DANIEL NEIZER v. E. P. DONTOH. March 5, 1874. Before James Maeshall, Judicial Assessor. Breach of Promise of Marriage and Sedtiction. Chiefs Chiboo of Assin, Thompson, and Eobertson. If a man promises to marry a woman and breaks the promise, has the woman any remedy against him ? In our country, if a man wishes to marry a woman, he sends his friends to her parents and asks their permission to marry the woman. If they consent to give him the woman, and afterwards he refused to be married to her, there would be no penalty ; palaver set. But if he had already pro- vided the necessary things, as gold from 4 to 8 ackies, and some cloths, and some rum or money as a substitute, then there would be a penalty if the man refused to marry the woman. The penalty is that the man forfeits what he has provided, and if there has been connection between him and the woman, he has to pay money to the parents. If there is a child, the man would have to make provision 110 FANTI CUSTOMARY LAWS. for the child. In such a case, the parents would be the plaintiffs. If the man provides for the child, it belongs to him when it grows up, i.e. when fit to part from the mother, about four or five years. According to the law of the country, if a woman is made enceinte by a man, her family ought to give the man notice of it in about two months after she became aware of it. Loss of service is no ground for compensation. It is the custom in our country, that if a man has a daughter, and a man has connection with the daughter, the father may claim one ounce, and then if the man wishes to marry her, he begins to provide the necessary money and other things, and to ask her parents. But if the parents do not wish the marriage, they can claim nothing but the one ounce. If the woman prove pregnant, the man should provide for her during her pregnancy. If the man denies her being pregnant by him, the parents support her until after delivery, when the matter is decided by the appearance of the child. Tins is decided by the mid- wives. In this case, our opinion is that the defendant should pay one ounce and the Court expenses, and that the father should attend until she is delivered, and that if it be then found the child is the defendant's, the plaintiff should have further claims on himself. If it be found not to be his child, the father is to have no claim. Judgment. Verdict for plaintiff — compensation £5, and each side to pay their own costs. FANTI CUSTOMARY LAWS. Ill MAESHALL v. DAWSON. September 15, 1885. Before Hector Macleod, J. Maintenance of Illegitimate Child — Proper Person to sue — Satisfaction — Measure of Damages. Chiefs Sackey and Kofi Yammie. The plaintiff claims £30, being amount expended on Margaret Boham before and after her confinement of the illegitimate child of which defendant was the father, and £50 for the maintenance of the child during minority. Plaintiff is a person in loco parentis. Curia: I find that defendant is the father of Margaret Boham's child. The following questions were put to the chiefs by the Court : — Is the defendant liable for the medical expenses and . . . connected with the birth of this child ? Yes. Is the defendant liable for the maintenance of the mother during the seven months she was laid aside from work ? Yes. Is there any other expense for which the defendant is liable ? Yes ; these are the midwife and other expenses attending the birth ; and as the defendant does not wish to keep the woman, he ought to pay compensation, but only half what is usual, because she was not a virgin. We think perhaps £10 would be suitable. Marshall is the proper person to sue. Curia : This is a case to be decided altogether by native law. I find that defendant must pay the following sums : — £ s. d. For Maintenance of Margaret Boham, seven months, at 20s.... ... 7 0 0 Medical expenses during pregnancy 3 9 3 Fooshiw Tarn ... ... 2 0 0 Midwife expenses of birth 2 17 3 Illness after in-lying 1 13 6 Compensation 10 0 0 Total ... £27 0 0 Costs, £1 18s. 9d. ; Execution stay, one month. 112 FANTI CUSTOMAKY LAWS. SEY v. ABADOO. July 7, 1885. Before Hector Macleod, J. Infants — Native Law — English Law. Claim : £6, being rent for occupation of premises belong- ing to plaintiff. Appellant (the plaintiff) admitted that the defendant is under twenty-one years, and argued — (1) That the lodgings in this case were a necessity ; (2) That judgment was against the weight of evidence ; (3) The case should be decided according to native law. Respondent not called upon. Judgment. This case must be decided according to English law. The father of this infant told it that he had already provided lodgings for it. It was therefore unnecessary for the infant to enter into a contract for other lodgings ; and the fact that Mr. Scy did not know that the infant was already supplied, is not material. Appeal dismissed, with 21s. costs. Decision to be enforced by Court below. ASHON v. ATTAH PENIN. July 25, 1888. Coram Eayner, D.C. Plaintiff sued defendant for £3 12s., alleged as paid for head- rum. Facts proved. Defendant, while engaged by another man, was seduced by plaintiff, who was bound to pay, and did pay, all the expenses paid by this man on behalf of the woman, riaintiff and defendant then lived together. Held,^>er Chief Sackey. Plaintiff cannot recover what he thus paid. It was not head rum, but satisfaction money, and FANTI CUSTOMAKY LAWS. if the man had liked he could have still continued the marriage. Hence, as no headrum was paid or has been paid, the relation of husband and wife does not exist. Headrum is paid to family, not to outsiders. ELMINA ASSIZES. BOHAM'S CASE. June 15, 1892. Coram Francis Smith, J. In re Boham and Hay ford — Native Marriage — Marriage Ordinance No. 14, 1884— Caveat. In the matter of an intended solemnization of marriage between Joseph Alfred Boham and Helen Mary Hayford. A caveat in this matter was entered against the issue of the Kegistrar's certificate for the solemnization of the said marriage by Ambah Kortaba. Parties accordingly summoned to attend this Court to be examined concerning the premises. Ambah Kortaba, sworn : I live at Atchinm, near Elmina. I know Joseph Alfred Boham. He is married to me accord- ing to native law. I heard that he was going to marry Helen Mary Hayford, and I entered a caveat against the marriage. I wrote a letter to the Judge, saying I wish to withdraw the caveat, but I had been coerced to do so by the plaintiff. Boham married me long before he knew Mary Hayford. Of my own free will I do not wish to withdraw the caveat. By the Court : It appearing from the evidence of Ambah Kortaba that she is married by native law to Joseph Alfred Boham, who intends now to marry Helen Mary Hayford, it is ordered that the Begistrar shall not issue certificate. I 114 FANTI CUSTOMARY LAWS. DUNCAN v. ROBERTSON. . April 30, 1891. Before W. E. Cleaver, A.J. S.C.O. 1876, sec. 19 — Illegitimate son — Maintenance. This is an appeal by defendant against an order of the District Commissioner, bearing date the 17th day of September, 1891, in which the appellant was ordered to pay the sum of £12 15s. Mr. Eiloart appears for appellant. Mr. Sarbah appears for respondent. Mr. Eiloart addresses the Court, and argues that — (1) Native law should not apply to this case. He cites sects. 14 and 19 of Supreme Court Ordinance, 1876, and relies upon argument that respondent did not show that " substantial injustice " would be done by strict adherence to English law, appellant being a European and respondent a native. (2) That if native law applies, it is contrary to natural justice and equity if it has been rightly interpreted. (3) Respondent in loco parentis, and, therefore, a joint tort feasor with appellant. Mr. Sarbah replies — (1) English law not applicable. (2) Bastardy Act never enforced. (3) Appellant not European. Mr. Sarbah cites Marshall v. Dawson. Judgment of Chief Justice Macleod. Summons framed in accordance with that judgment. He further argues : — Affiliation orders not in accordance with practice of this Court. Respondent does not claim damages for tort, but action for money expended. Respondent did not encourage connec- tion, therefore native law alone applicable, and Marshall v. Daivson applies. Mr. Eiloart replies, and states that affiliation orders might issue, which would give Amba right to claim money FANTI CUSTOMARY LAWS. 115 expended for confinement, and respondent had her remedies against Arriba. Cur. ad vult. April 30, 1891. Judgment : I am of opinion that this is a cause which should be decided by native law. The appellant is not known to be, and there is no evidence as to his nationality ; but admitting that he is a European, I think that where a man enters into concubinal relations with a native woman, his liabilities (and rights, if any) should be determined by the same rules, whether or not that man is a European or a native. The position of the one should be no worse nor better than that of the other. The case of Marshall v. Dawson (Cape Coast, vol. vi. 420) appears to be almost identical with this case. The summons appears to have been drawn with reference to that case, and the decision of the District Commissioner appears to be strictly in accordance with the principles laid down in that case. I have not lost sight of a point, I think an important point, and raised by counsel for the appellant, namely, the respondent's connivance, or, at least, tacit consent to the immorality of her ward; but even in this particular, the case of Marshall v. Dawson appears to be similar, though there was very little on that point, and the Divisional Court did not appear to attach much importance to the point. I am bound by the decision in Marshall v. Dawson, and therefore I must dismiss this appeal with costs, which I assess at £1. QUAMMIE ASHON v. JOHN SNYPEE. November 26 and December 17, 1869. Where the relatives of a person undertake to pay his liabilities in his lifetime, they are bound to fulfil their under- taking even should he die in the mean time. Chiefs: When a man is married country fashion and 116 FANTI CUSTOMARY LAWS. dies in debt, it is his own relations who have to pay his debt. During his lifetime he applies to his relations for advice. Sometimes they undertake the debt for him. But without such previous voluntary understanding, the relations would not be held liable. The debtor himself would be liable. There is no obligation on wife to pay any part of husband's debt. Judgment of native Court at Mankessim affirmed. INKRUMA v. KANKAN. July 1C, 1885. Before Hector Macleod, J. Head of Family — Claiming Debt. Quamina Dansu [per the Court] : Did your stool belong to Kankan ? A. — No, it was my own ; he has his. Q. — Had Kankan any authority or control over your stool ? A. — He had. Q. — What was the extent of that control ? A. — When- ever he sent me anywhere I went. July 18, 1885 (j?er Macleod, in judgment]. Inhruma's answers to my questions lead me irresistibly to the conclusion that when the Dompin palaver was before Judge Smith nearly five years ago, Dansu took out the summons to recover, not only his own property, but also that of Inkruma, and such action on the part of the head of a family is of constant occurrence in the Courts of the colony, though generally in cases affect- ing the rights in laud, for cases of tins kind are rare. ECCUAH BIMBA v. EFFUAH MANSAH. November 25 and 26, 1891. Before Hayes Eedwak, Acting Judge. Plaintiff for herself and the family of Aggrey, late King of Cape Coast, seeks to establish her title to that piece or FANTI CUSTOMARY LAWS. 117 parcel of land situate at Amissa Akyre in Cape Coast, the freehold of which the defendant unlawfully claims. Judgment. In a case like the present, where an entirely different mode of tenure prevails from anything known to English law, and where the alienation and devolution of property proceed on principles the exact origin of which must ever remain, to a great extent, obscure, owing to the absence of any authentic records of native law, except of those points which have been litigated and decided in this Court, it is necessary to proceed with great caution, and, where customs are not strictly proved in evidence, or have received judicial recognition, to follow as far as practicable the analogy of English law, disregarding any customs not so proved or sanctioned by this Court. Native law, when not incorporated by judicial decision in the law of this land under the pro- visions of sect. 19 of the Supreme Court Ordinance, 1876, must stand therefore on the same footing as foreign law, and must be proved by the evidence of expert witnesses. Now, in this case expert evidence is not called, and reliance is placed upon certain decided cases which, although not conclusive on the points in dispute, throw the strongest light on them, enabling analogies to be drawn. In the first place, the plaintiff, by a form of action unknown to English procedure, claims to establish her title to certain land, the freehold of which it is alleged the defendant unlawfully claims. That this action is in no way connected with or similar to a proceeding under the Imperial Declaration of Title Act, 25 & 26 Vict. c. 67, is perfectly clear, since the proceedings under that Act are not hostile proceedings, and the Act itself is expressly confined in its operation to England. But the form of action employed is one which has been in use in this Court for many years, and although it is difficult to see why proceedings should be taken in this form rather than in ejectment or for the recovery of possession, the Court is in this case relieved from 118 FANTI CUSTOMARY LAWS. the responsibility of scrutinizing its own practice in this respect by the consent of counsel at the bar ; and, indeed, in view of the general aspect of the case as it appears to me, it is unnecessary to consider the point which was raised by defendant's counsel and subsequently dropped. Looking at the plaintiff's case first. She contends that her ancestor King Aggrey merely gave a permission or licence to build on this land, the freehold of which remained in himself and descends to his heirs ; and further, that the house erected by defendant's ancestor having fallen, further permission was necessary before it could be rebuilt, and this permission not having been obtained, the licence to build was annulled according to native law, since the house had been improperly rebuilt. No expert evidence, however, was called on this point, and reliance was placed upon the case of Lyall v. Dougan decided in this Court. But upon a com- parison of the facts of that case with the facts in this, it is at once clear that the case for the defendant in this action is of an entirely different character, and that the question which the Court has to decide in this case depends entirely upon the credit of the witnesses called on both sides to establish the respective parties' positions. The claim of the plaintiff is based upon a pedigree showing her descent from Aggrey, but she admits that she is the descendant of a slave of Aggrey ; and the question was then raised as to how the status of a slave to inherit is affected by the Emancipation Ordinance, No. 2 of 1874. Defendant's counsel has argued that, as slaves cannot legally exist, the conditions of their inheriting property are swept away with the status of slavery. But upon referring to sect. 3 of that Ordinance, a proviso is found that nothing in that Ordinance shall diminish or derogate " from the rights and obligations of parents and of children, or from other rights and obligations not being repugnant to the law of England, arising out of the family and tribal relations." The true construction of that section is, in my opinion, that slavery, being repugnant to the law of England, is abolished by that enactment, but that any FANTI CUSTOMARY LAWS. 119 privileges or rights which the slave may have had before the passing of the Ordinance are saved, provided those privileges or rights are not in themselves repugnant to English law. Obviously there is nothing "repugnant" in the idea of a slave child inheriting its parent's property, and I hold there- fore that a slave can inherit, under any native law permitting him to inherit under circumstances clearly defined and proved to exist. Now, in view of the decision to which I have come in this case, after a careful consideration of the evidence adduced on both sides, it is unnecessary to express any opinion as to the validity of the plaintiff's claim as a house-born slave to inherit King Aggrey's property, because, unless I entirely disbelieve the evidence led by defendant, the question narrows itself to this : " Was this land given or sold by King Aggrey to defendant's ancestors or not ? " If it was so given or sold, whatever may be the plaintiff's claim to inherit, this land in dispute forms no portion of the in- heritance. Now, the plaintiff sets xip an admission by Bosumafi that the land was not hers but King Aggrey's, and that the house only was her property. Upon what evidence is this alleged admission based ? I dismiss at once the evidence of Prah as being of no value. I further dismiss the evidence of plaintiff on this point, as she admitted in cross-examination that she derived her information from what she had heard from Tawiah, and that she was not present when the admission was made. The admission, then, must rest on the evidence of Ayensoo, and looking at his evidence generally, and the mode in which he stood the ordeal of cross-examination, I am forced to the conclusion, from the general tenor of his testimony and its improbability, that this witness's memory is at least defective, and his knowledge of facts even more defective. He is unable to answer any questions outside the alleged admission, and is unable to give any clear account even on the very points on which his evidence is of importance. So much for the admission; I will now address myself to the evidence adduced by defendant. 120 FANTI CUSTOMARY LAWS. She states that her ancestor Bosumafi went to Aggrey and asked for land to build on ; that King Aggrey said she was welcome to do so, as he had married into her family ; that subsequently he said he would make a present of the land in dispute to his wife Insafuabbah and her son by him ; that because of this the three sisters — Kabbribah, Insafuabbah, and Bosumafi — sent, as a thank-offering to the King, the sum of twenty dollars in cash and other valuable presents, which at first he refused, but that he subsequently accepted, at least some of them. Now, most of the witnesses of these trans- actions are stated to be dead, and the defendant is herself an aged woman ; but she tells her story in a straightforward manner, and comes through the ordeal of cross-examination with the main points of her testimony unshaken. Counsel for plaintiff has commented on the absence of witnesses to corroborate defendant's statements ; but these things occurred a long time ago, and it may well be that witnesses older than defendant have passed away. She says she was about twelve or fourteen years of age at the time, and she is now an aged woman. Amongst other things, she says that the three sisters contributed to the sum of twenty dollars, and that Kabbribah dying first, Insafuabbah and Bosumafi occupied the house that was built ; that neither could dispose of the land given by the King, or the house built without the consent of the others ; and that it passed to the survivor Bosumafi, and thence to her (defendant) as her niece. Further, that the King gave the land to them to do what they pleased with it. It would seem, therefore, that the land was held after the fashion of a joint tenancy with benefit of survivor- ship. Now, plaintiff's counsel asserted that such a tenancy was unknown to native law ; but he called no expert evidence on the point, nor did lie refer me to any case in which it has been held that such a tenancy is unknown or impossible according to native law. The cases cited in the arguments do not convince me either that this transaction was merely a permission to build on the land without affecting the ownership of the freehold, FANTI CUSTOMARY LAWS. 121 or that a licence to build is revoked by the falling of the house built upon it. Indeed, the cases, if anything, guide me by analogy to the conclusion that this transaction was really a gift of the land to defendant's ancestors as members of Aggrey's wife's family, and that there was no intention to limit or control the subsequent disposition of the lands so given. I am doubtful, indeed, whether the transaction was anything more than a gift. I hardly think it was, in the strict sense, a purchase, although valuable gifts are alleged to have been made to the King. I pass over minor points in the evidence, and deal only with the broad facts before the Court. A further point was raised by plaintiffs counsel that, according to native custom, a gift is revocable. He has produced no authority for this proposition, and the cases cited tend rather the other way. In the absence of any authority as to the native law on this point, I feel myself bound to be guided by the settled principles of English law on cases of this kind, and to hold that although it may be doubtful whether this was a purchase, even as a voluntary gift it is good as against the grantor himself, and those claiming under him. Under the circumstances, the judgment is for the defendant and with costs. Let the costs of the defendant of this action be taxed, and let the plaintiff pay to the defendant the amount of her costs when so taxed. GABEIE v. AFFKANQUAH AND Q. EBERI. September 3, 1844. Criminal Conversation of Plaintiff's Wife by Eberi, Slave of Affranquah. Plaintiff, Chief of Mansue. Defendant admitted offence. Ordered to pay to plaintiff as damages 2 ozs. gold, a sheep, and a case of rum, leaving it optional with his master, Affranquah, either to pay this sum or give up his claim to defendant Eberi. 122 FA Nil CUSTOMARY LAW'S. AMPIMA v. DEAMUA. Anamaboe, September 5, 1844. In this case plaintiff complains that the house or family, of which the defendant and himself formed a part, had fallen into debt. That the defendant, who is a slave of the house, wants to get off from it, and leave the house, contrary to a law that prevails among the natives of this country. Defendant pleaded that he was no slave of the house, but free-born; that he wished to go away from the house, and leave it to plaintiff and the rest of the family. It appeared, during a lengthened investigation, that de- fendant is a slave of the house, was born therein, and had ever since lived there ; that he had at one time assumed the highest place in the house, during which he had sold off several members of the family as slaves, among whom was the plaintiff's brother and the plaintiff himself also ; and that he had since redeemed himself and returned to the family. Decreed that defendant must either redeem himself from the family or still remain there, and pay his part of the debt that has fallen upon it. His redemption money was fixed at 2 ozs. SUPREME COURT OF THE GOLD COAST COLONY, WESTERN PROVINCE. ISAAC GODWIN JONES v. PRECILLA WARD AND OTHERS. December 23, 1895. Before Francis Smith, -J. Claim £137 2». with interest, being expenses incurred ' for the preservation and security of the late Richard Sam's house and land, etc. FANTT CUSTOMARY LAWS. 123 Judgment was reserved in this case, and parties having been duly notified to attend and hear it have accordingly done so. The opinion of the Eeferees upon the native law involved is made part of the case. Judgment. The plaintiff seeks contribution from the defendants for expenses incurred by him on the repairs of the family house during the lifetime of his mother. This house fell into ruins, and the Government bought the ruins and site for public purposes, the proceeds of which sale were shared between the plaintiff and defendants. This right, which is claimed by plaintiff, cannot be determined by English law, the act being a voluntary one on his part, and not performed at the request of any of the defendants. Native law must decide the matter, and (a) accordingly, at the close of the case, the facts were submitted by me to three native experts, and the native law bearing on the facts was asked of them, and these Eeferees have submitted their opinion thereon. These Eeferees are not unanimous in their opinion, two holding one view (b), and the third a different view (c). The two hold that the plaintiff has no right to contribution from the defendants, whilst the third that he has. They do not disagree, as it appears to me, upon the general question of the right of a member of a family to have the expenses he has incurred in repairing a family house, by which the value of that house has been enhanced, shared amongst the family when such a house is sold; but the two have applied the law to the circumstances of this case, whereas the third has stated the general law. That law, as stated by the two, commends itself to me, and is consistent with equity and good con- science. The circumstances are, that the Government did not buy any house, but the ground on which were the ruins of a house. Had there been a house, the value of the property would have been increased, the Government would have had to pay more, and in fairness and equitably, the member by whose means this increased value has been 124 FANTI CUSTOMARY LAWS. obtained should receive his expenses. The money so ex- pended on the house was practically lost when it fell into ruins, and the purchase-money was really given for the ground on which no money had been expended. By native law, therefore, and in this case the Court is bound by the opinion of the majority, the plaintiff cannot claim contribu- tion from the defendants. I must nonsuit the plaintiff, but in view of the circumstances of the case the nonsuit will Tpe without costs. i . Court Plouse, Cape Coast, December 4, 1895. (a) Dear King, — A matter has come before me touching the right of a member of a family to be repaid his expenses of helping to repair the family house. The facts are briefly these: During the lifetime of a person whom we shall call A, B her son now and again contributed money and materials to repair the family house where the mother and other members, except the son, were residing. After the death of the mother the house fell into ruins, and lately the Government have purchased the ruins and site for public purposes. The money paid by the Government was delivered to the son and eldest daughter on account of the family, and that money was accordingly shared by the whole family, the son and eldest daughter receiving the greater share, and the others in proportion. The son now has sued the members of the family amongst whom the money has been shared for contribution towards the expenses he has incurred, and as the determination of his right depends upon native law, I shall feel obliged if you will advise me on the following points : Is the son entitled to have his expenses shared amongst himself and the other members of the family ? Does the fact that when he incurred the expenses he was doing so at the request of his mother prevent him from claiming contribution from the other members ? Would each member who has expended money on the house have the right to contribution from the other members ? FANTI CUSTOMARY LAWS. 125 When the money is unequally shared, would each be only entitled to contribute to the extent of his share, or must the expenses be equally divided amongst the members ? "With kind regards, I am, dear King, yours faithfully, (Signed) Francis Smith, Puisne Judge. To King Amonoo IV. of Anamaboe and to Chief Andoh of Elmina. Cape Coast, December 8, 1895. (c) Dear Sir, — I have the honour to acknowledge receipt of yours of the 4th instant, and note contents of same having reference to a case that has come before you, and your honour requesting my opinion or advice on native points stated therein. In reply I beg to say — 1st. B the son of A is entitled to have his expenses made towards the house shared amongst himself and the other members of the family, and B should have one-third, and two-thirds for the other members of the family. 2nd. The fact that he made the expenses towards the house at the request of his mother does not prevent him from such a claim, unless he had the means from other property of the family. 3rd. Each member who resided in the house with the mother cannot have right to such contribution for his expenses unless he was not residing then in the house. 4th. The expenses should not be equally shared, but in proportion to the amount of his share of the money, or his age in order. I have the honour to be, dear Sir, Yours faithfully, (Signed) Amonoo IV. Elmina, December 13, 1895. (b) Sir, — Your letter of the 10th inst. to hand, in the matter touching the right of a member of a family to be repaid his expenses of helping to repair the family house. 126 FANTI CUSTOMARY LAWS. That during the lifetime of A, B her son now and again contributed money and materials to repair the family house, where the mother and other members, except the son, were residing. After the death of the mother, the house fell into ruins, and lately the Government have pur- chased the ruins and site for the public purposes. The money was delivered to the son and eldest daughter on account of the family, and that money was accordingly shared by the whole family, the son and eldest daughter receiving the greater share, and the others in proportion. The son sued the members amongst whom the money has been shared for contribution towards the expenses he has incurred : 1. Is the son entitled to have his expenses shared amongst himself and other members of the family ? Answer : No. 2. Does the fact that when he incurred the expenses he was doing so at request of his mother, prevent him from claiming contribution from the other members ? Answer : Yes. 3. Would each member who has expended money on the house have the right to contribution from the other members ? Answer: No. 4. When the money is unequally shared, would each be only entitled to contribute to the extent of his share, or must the expenses be equally divided amongst the members ? Answer : No. When the family shared the money unequally, by giving the son and eldest daughter the greater share, the members of the family must have had their reasons for doing so ; the expenses are not to be divided amongst the members. If the house in question was standing, and inhabited by any members of the family, or was under rent, and, as above stated, the son did not live in the house, but kept it in repair, and the house and site were pur- chased, the son or any members of the family who kept the house in repair, as by his or their keeping the house in repair makes the estate more valuable, therefore he or those memhers of the family who did so, would have a right to have their expenses first deducted out of the amount so paid, and share it amongst them, according to the extent of his or their expenses made in keeping the house in repair, and the balance of the money divided amongst all the members according to their connection (in blood), as the land and ruins belong to them all. I am, Sir, Your obedient servant, (Signed) G. E. Emixsano, Head Chief. Elmina, December 9, 1895. Sir, — I have the honor most respectfully to acknowledge the receipt of your letter, No. 3G2/341, of the 4th instant, and beg to reply you according to paragraphs as follows : 1st. According to the native laws, one person out of a united family may purchase house or build one, but such house will always be recognized as FANTI CUSTOMARY LAWS. 127 his own house, and it will only be considered a family house after the death of its rightful owner, but the next of kin to the party who owns the house will be recognized the rightful owner of the house ; and will be the only person to have supervision over the house ; the next of kin will be entitled to take entire charge of the house, and to dispose same. 2nd. The families can assist the next of kin to make the necessary repairs towards a house, if the next of kin is not in a position to do so ; but their doing so will not justify any family to have supervision over a house other than the next of kin ; their rendering such assistance is only a matter of form to keep the reputation of the first owner of the house. 3rd. Answer to paragraph 3. The son is not entitled to share any expenses he may have incurred towards the repairs of any building with families, except the families choose to render him any assistance ; and in rendering such assistance, the families will not be justified to have any claim after, or have any super- vision over the house. In reply to paragraph 4. The son will not in any way be entitled to claim any contribution he has from time to time incurred towards the repairs of the house. In reply to paragraph 5. The family will be entitled to demand any contribution from any family or the next of kin towards the repairs of any building, although some of the families may contribute more or less than the others. In reply to paragraph 6. I beg to inform you that the next of kin is entitled to have the greatest portion of the proceeds realized from any property or building sold; although the property or the house may be in a ruinous condition, and the families may, however, render assistance, but such assistance will not refer to either young or great, since the next of kin is supposed to be the rightful owner. I have the honor to be, Sir, Your obedient servant, Chief Quacoe Andorh his x mark. Witness to mark and writer : (Signed) K. B. Andorh. PROPERTY. BAINEE v. MENSAH. February 14, 1853. Plaintiff states he is accused of owing money to defendant's family. Defendant states that a man named Konfu Quabina 128 FANTI CUSTOMARY LAWS. pawned a man Bondon to Ewea for 1 oz. 2 acks. These three persons are all dead, and Ewea's family have claimed from Yarquah, of Bondon's family, the amount paid for Bondon. Yarquah, having no money, gave a piece of ground to Ewea's family that they should use it. The ground has been in possession of Ewea's family since it was given to them by Yarquah. This was about twenty years since. Plaintiff only laid claim to the ground last year. It was decreed that plaintiff should pay the amount of Bondon's price, 1 oz. 2 acks. In default, the land to remain in possession of Ewea's family, of which Mensah is a member. QUAMINA ATTOPEE v. EFFUA NANCY. February 21, 1853. Plaintiff states that the defendant gave him some ground, and now, after building a house on it, she wants it back. He now wishes her either to pay the expense of building the house or to receive payment for the ground. The defendant adopts the former. By the Judicial Assessor : — Beferred to Dawson and Mr. Clouston to say how much it will cost plaintiff to build as good a house as is now standing. EOBERTS v. AWOETCHIE. June 23, 1884. Before Hector Macleod, J. Isaac Robertson: This house could not be sold by Quamina Awortchie, because it is the public meeting-place of the company, and, if it chose, the company could turn Awortchie out without compensation. When Awortchie dies this house will belong to Awortchie's children. The native law is that the creditors of a trader can sell FANTI CUSTOMARY LAWS. 129 the materials of which such a house as Awortchie s is built, and the company has no right to prevent the purchaser from removing the materials. In the circumstances of this par- ticular case, the judgment creditor has quite a right to sell Atvortchie's house, and the No. 2 company has no right to pre- vent the purchaser from removing the materials of which the house is built ; but the judgment creditor has no right to sell the land itself, which belongs to the company. If part of the swish that Awortchie used, was on the land before in the shape of a ruined house, then such part is the property of the company, and cannot be sold ; but such part of the swish as defendant brought there himself, the judgment creditor can sell, and the judgment creditor can sell the woodwork belonging to Awortchie. Judgment. Macleod, J. : I have heard the case for the claimants. I think that an order ought to issue, releasing the land from attachment. Further, I think the claimants are entitled to half the swish composing the house ; but according to their own case, native law allows the judgment creditor to sell for the pur- pose of removal such of the material forming the house, as was brought there by the judgment debtor. Claimants: Ayea and Antoney, on behalf of No. 2 company. LYDIA BEOWN v. T. M. BELL. September 5, 1877. Land Tenure — Permission to build — Ownership. Per J. H. Brew : According to native law, if a house is built on another person's land with the knowledge and consent of the owner of the land, the owner of the house is entitled, and either owner of house pays value of land, or owner of land pays for house, or the owner of the house K 130 FANTI CUSTOMARY LAWS. has the preference as to buying out. If a man builds a house on his wife's land and they quarrel, the husband undoubtedly keeps the house and pays for the land. Chief llobertson concurs. Chief Amoah, contra : If a man builds a house on land belonging to another, with his knowledge and consent, the owner of the land can turn the builder of the house off and keep the house, and does not pay for the house. If a man build a house on the land of his wife, and they quarrel, the house belongs to the wife, (she) does not pay for it. QUAMIN DANSUE v. TCHIBU-DARCOON AND CANCAN. December 18, 1880. Before W. J. Smith, J. Stool Property — Occupant abdicating to restore Stool and Appurtenances. Assessors : When a person is placed on a stool and he wishes to leave the stool, everything he received with it and everything he had made by use of the property passing with the stool were taken from him, and he must go alone. ***** Defendant, King Tchibu-Darcoon, King of Assin: Have chiefs and captains under me. The chief of Fessoo is the head chief. The captain of Dompin is under Yow Fencee. Cancan succeeded to Yow Fencee. The stool of Dompin belongs to the stool of Fessoo. All the property belongs to the stool. When a captain dies, another is placed there, and if he leaves, the property is taken and given to the new captain. This was the reason the property at Dompin was taken, namely, because it belonged to the stool, and I ordered them to be taken because he said he was going to leave entirely. ***** Amonoo, of Anamaboe : When a captain leaves the stool, FANTI CUSTOMARY LAWS. 131 he must not take the property away if the stool is subordinate to another. Judgment. That the property taken at the village of Dompin belonged to the stool, and was legally seized by the defendants when plaintiff declared his intention of leaving the stool and going to Akim. ATTA v. SAM AND OTHERS. June 8, 1882. Before 1ST. Lesingham Bailey, Acting Chief Justice. Family Property — Succession — Slaves — Emancipation Ordinance. In this case plaintiff claims certain lands by right of suc- cession to one Otuah, whom he alleges to have been tenant in fee or absolute owner. The defendants claim to be joint owners of the lands by right of succession to one Odabin. After hearing the evidence on each side, I and the assessors also have come to the conclusion that the plaintiff has estab- lished his claim, and that Otuah was tenant in fee of the lands in question, and that the defendants were his slaves. On the death of Otuah, more than fifteen years ago ap- parently, the right of succession devolved on the plaintiff, who, however, permitted his younger brother Tebiah to exercise rights of ownership over the lands in question. Tebiah employed one Akon, as caretaker, and up to that time the defendants were, and considered themselves to be, the slaves of Tebiah. After Akon had been placed in posses- sion by Tebiah, one of the defendants, Incomah, lived with him (Akon) as his wife or concubine ; but, between ten and fifteen years ago, Akon was ejected by her from the lands over which he had been placed in charge by Tebiah. Tebiali I hold to have been simply the licensee of the plaintiff, and consequently his possession was the possession of the plaintiff. 132 FANTI CUSTOMARY LAWS. The adverse possession of the defendants, therefore, com- menced within the time limited by the statute of limitations (supposing such statute to be in force in the colony), a point which I am not called upon to decide. The point urged by Mr. Eminsang for the plaintiff, viz. that as slaves freed by the Ordinance of 1874, the defendants were not entitled to succeed to the ownership of his lands on the death of their master, does not arise. The master died before the passing of the Ordinance, and by native custom they as well as his other property devolved upon his nearest blood relation in the female bine. The fact that Tebiah and Attah were the nearest blood relations of Otuah was not put in issue, nor were the points in any way relied upon by the defendants, neither were the plaintiff's witnesses cross- examined on this head. Judgment will therefore be for the plaintiff, with costs. COBINA ASHON v. COBINA BARNG. November 27, 1891. Before Hayes Bedwar, Acting Judge. Plaintiff claims £50 damages for trespass on plaintiff's land, called Ottookrooban, and cutting down thirty-four palm- trees. Mr. Roberts for plaintiff; Mr. Sarbah for defendant. Plea— Not Guilty. Hearing resumed at 9 a.m. pursuant to adjournment. Mr. Sarbah proceeds and calls the following expert evidence : — Kofi Sackie, sworn : I am a Chief of Cape Coast. I have been accustomed to be consulted as to native law by this Court since the days of Chief Justice Chalmers. In the case of a pledge of lands, the pledgee works on the land, and if there are palm-trees on the laud, the pledgee has a FANTI CUSTOMARY LAWS. 133 right to cut them down. As to the neighbourhood of Cape Coast and Anamaboe, I know that at Anamaboe they make palm-wine, but whether some of them make oil I don't know. As to Cape Coast, they only make palm-wine there. In a palm-wine district the pledgee has the right to cut the palm- trees. In cutting the palm-trees the pledgee is not account- able to the pledgor. The pledgor's previous consent is not necessary to cut down the palm-trees. In the Fanti country the pledgee is not to account to the pledgor for the use of the land or of a man who is pledged. This is a universal custom in the Cape Coast district. [By the Court.] It is the custom of the whole Fanti country. Before the pledging is made, the custom* must be explained to the pledgor. [Examination continued.] Before the land is pledged, the pledgor tells the pledgee, " I am going to pledge my land to you." Then the pledgee says to the pledgor, "I am going to take your land on these conditions." [By the Court.] The conditions must be agreed on. There are some lands that have no palm-trees, and on those lands it is agreed that the pledgee should work thereon till the loan is paid. On lands which have palm-trees producing wine, the agreement is that the pledgee has a right to cut the palm-trees for wine in bleu of interest. Being the law of the country, this is explained and agreed to before the pledging is completed. Whether this law is explained or not, the pledgee has a right to cut the palm-trees. I have never known a case in which pledgor has claimed an account from pledgee. By the Court: If the pledgee takes from the land the amount of his loan and interest, is he entitled to continue cutting down the trees till he is paid ? Witness replies " Yes." [Examination continued.] I know one Inkrumah, and of * The word "custom" by interpreter objected to by defendants' counsel, who said that it should be interpreted as " matter." 134 FANTI CUSTOMARY LAWS. a dispute between him and some one about land which had been pawned for years. Dankin's land is situated in the Anamaboe district. The " conditions " I have mentioned before must be mentioned to both pledgor and pledgee. If the pledge be of land in a palm-oil district, there must be an arrangement that the pledgee shall take the palm-oil from the nuts. Where palm-oil is made, there is no cutting of trees for making wine for sale; the trees are only cut for wine for the labourers. No permission is necessary to cut down palm- trees for him for labourers. Not re-examined. Cudjoe Imrah, sworn : I am Chief of Cape Coast, and I was once linguist at the King of Anamaboe's Court. I hold Court now and decide cases. Supposing a man wants to raise money and borrows on the security of his land, there is native law on the subject. When the pledgor pledges land to the pledgee, and when there are palm-trees on the land, it is arranged that he is to cut the palm-trees. [By the Court.] The arrangement is on the basis of a native law. By the law it is so, but the pledgee is to be told of this. It is not necessary to tell the pledgee, inasmuch as he has taken your money, he has a right to take the crops and cut down the palm-trees. [Examination resumed.] Interest is matter of arrange- ment. There is a legal rate on all the Fanti Coast; the rate is 50 per cent. Sometimes the lender is asked to take less than this rate, and sometimes he forgoes interest altogether. 1 have done that myself. At Anamaboe the pledgee has a right to cut palm-trees for wine. In a palm-oil district, you have to ask the pledgor for permission to make oil, because palm-oil is considered more valuable produce than palm-wine. In a palm-oil district, the pledgor's permission is not necessary to enable the pledgee to cut down palm-trees for wine for labourers. The native law of pledging is applicable to palm-oil districts as well as palm- wine districts ; but, as I have stated, an arrangement also is FANTI CUSTOMARY LAWS. 135 made. The arrangement sometimes is that the pledgee charges no interest, in which case he is entitled to take the palm-oil ; and sometimes it is arranged that the pledgee takes interest and goes shares with the pledgor in the proceeds of the sale of the produce of the land. In palm-wine districts, sometimes it is arranged that the pledgee is only to fell a certain number of trees for the wine, and that goes as a set-off against the debt. Where this arrangement is not made, the pledgee has a right to fell the trees to any amount until the debt is paid. Cross-examined by Mr. Sarbah. A pledgee advances £4, no arrangement is made as to interest, the boundaries are shown. In such a case the pledgee has a right to cut the trees to any amount. [By the Court.] This Law is well known in the Anamaboe and Cape Coast districts. By the Court : Upon a careful consideration of the expert evidence, I find that by a preponderance of testimony the custom of cutting down the palm-trees by a pledgee until the debt is repaid is clearly and satisfactorily proved, and that therefore the plaintiff's claim for damages in trespass fails, as the defendant had a legal right to do what he had done, and which is the subject of this action. The judgment must be for the defendant and with costs, to be taxed. ABBAN v. SAGO. January 24, 1883. Before Quayle Jones, Acting Judge. Emancipation Ordinance — Tenure-service. Per Quayle Jones : I find that the land in question is the property of the plaintiff, and that defendant and his ancestors occupied as slaves in the first place, and since the abolition of slavery, on an implied contract of fulfilling the services 136 FANTI CUSTOMARY LAWS. and bearing the responsibilities which would have devolved on them as slaves. This being so, as long as defendant fulfilled these services and bore these responsibilities, the plaintiff would not have been entitled to recover the land in dispute. But the defendant having refused to continue to perform such services and bear such responsibilities, ceases to have any interest in the land, and plaintiff is entitled to recover the same. Judgment for plaintiff. ACCUFUL v. MARTEY. December 22, 1882. Tenant — Family Land — Failure of Bent — Adverse Possessio7i. Judgment. I think it is clearly proved that the lands in question were originally Etsien's, and by the native law land descends by the female line to the children of the owner's sister. Donkum was Etsien's son, or rather one of his sons, and was permitted at his father's death to occupy the land together with the other children, paying a portion of the produce to Etsien by way of rent. This permission was continued to Abocue's children, among whom was Mark// the defendant ; but for thirty years no rent had been received from the defendant. I cannot, however, bring myself to hold that the defendant's possession was adverse possession. I feel quite clear that the defendant was well aware of the tenure under which he held, and that he was in fact per- mitted by native custom to receive and cultivate the land, but had no right of ownership in it. FANTI CUSTOMARY LAWS. 137 KOFI AMONOO v. ADJUA ABBAKUMA. June 7, 1871. Before Chalmers, Judicial Assessor. To render payment to plaintiff of the value of the palm- wine, yams, and other produce of a certain land, known as Soldofoo, which proceeds you have unlawfully retained and converted to your own use for the last six years, and which plaintiff estimates at £97, or thereabouts. Judgment. In this case the plaintiff claims £97, being the value at which he estimates the use and profit had by the defendant from the lands at Soldofoo, which, by proceedings in 1865, before the Mayor's Court, and again recently in this Court, it has appeared, were held by the plaintiff and his ancestors in pawn for a loan made to the ancestors of the defendant. It appears that by the custom of the country a creditor who holds land in pawn is entitled to the use and produce of the land as well as the interest of the money borrowed. I must remark on this arrangement, that it gives a very large advantage to the lender over the borrower, where the land, as in the present case, is of considerable value ; and this consideration makes me, I confess, the less favourable to such a claim as is now made — to the effect, at least, of in- ducing me to inquire somewhat strictly that the circumstances which are necessary to sustain the claim should have been .thoroughly fulfilled. It appears from the evidence that during the six years which constitute the period to which this claim relates, there has been a joint use of the land by the people of the King of Anamaboe and the defendant's people. This shows that what the defendant was doing was perfectly well known, yet no steps were taken on the King's part to exclude her or her people. All that was done was that on some occasions the person who says he was in charge for the King of Anamaboe, 138 FA M TI CUSTOMAUY LAWS. asked persons who were working on the land to account to him for what they took. The names of such persons were not taken, nor is there in strictness any distinct proof that they were sent hy the defendant, though she has not disputed this. It is true that for a year Kuow Saman, while occupant of the stool, took possession of the land, driving away, it seems, defendant's people. After this he was deposed and left the land, and the present King succeeded, and soon after his succession, the defendant made payment of the sum found due by the Mayor's Court. Unfortunately the payment miscarried and she obtained no valid discharge, but it was made in complete good faith on her part ; and after so doing, she was, in the absence of notification to the contrary, well entitled to " think " she had a good right to the use of the land. It does not seem that any such notification was given to her; on the contrary, the joint use of the land by the plaintiff's and her people, appears to have continued without the plaintiff making any exclusive claim ; neither did the plaintiff apply to her for payment for the 8 ozs. found due by the Mayor's Court, which, though paid by the defendant, he had not received. I must further state that the actual value received by the defendant from the land is left a good deal conjectural, the witnesses for the plaintiff, who lived on the land and who speak to produce removed by people supposed to belong to the defendant, giving nothing but very indefinite statements on this subject. Taking all these considerations into account, and taking into account also that a very considerably increased amount of redemption money for the land has been assessed by the Court without any mention being made by the plaintiff of this claim, which redemption money has been paid; and taking into account also the clear opinion stated by the chiefs, that after a land has been redeemed, nothing should lie said about intermediate profits, which 1 think is a right and just opinion, I must advise the Kin" of Anamaboe that this claim should not be sustained. O .Judgment therefore for defendant. FAKTI CUSTOMARY LAWS. 139 ECCOBANG v. HAGAK May 29, 1885. Before Beandford Griffith, A.J. Trespass — Long Possession without Bent of any hind — Notice. Beferees : Messrs. .Sarbah and Chiefs Essell and Sacky. Q. — By the Court : The owner of land gives permission to a person to cultivate a portion of the land ; this person and his heirs continue cultivating the land for upwards of forty years, paying no rent and giving no produce to the owner ; by native law, does this prolonged possession destroy the title of the original owner ? Beferee : I say and affirm that such prolonged possession does not destroy the title of the original owner. It makes no difference if the permissive occupier inter- marry with the niece of the original owner. The original owner can re-enter upon the land at any time. The original owner could not enter on the land and take the produce at any time without consent of the occupier. The original owner cannot enter on the land at any time and " clear away bush " * without giving prior notice to the occupier that he required the land. The owner of the land might cut down palm-trees on this land at any time, as they either ought not to have been planted by the occupier without the previous consent of the owner, or they were there at the time the land was lent. Judgment. The Court finds that the portion of the land called Oduassie, claimed by the plaintiff, is held by the plaintiff' at the will of the defendant, and that the defendant before entering on the land gave notice thereof to the plaintiff, and that the defendant by entering on the land after such notice and clearing the land and cutting palm-trees thereon did not commit a trespass. * [" Clear away bush " means to till or cultivate the land. — Ed.] 140 PANTI CUSTOMARY LAWS. GEANT v. AMISS AH. November 20, 1884. Before N. Lesingham Bailey, Esq., Chief Justice, and Mr. Justice Macleod, Puisne Judge. Ejectment. This was an appeal against a judgment of Mr. Justice Macleod for the defendants on November 3, 1883, in an action brought by the plaintiffs to recover possession of a piece of land alleged by them to have been granted to one of the plaintiff's predecessors in title, one Charlotte Dc Graft, and subsequently conveyed to the plaintiffs. Mr. Maxwell was for the appellants, and Mr. Williams for the respondents. Mr. Justice Macleod delivered a written judgment as follows : — Upon the 1 5th of November, 1883, I gave judgment in the Court below for the defendants, and it is therefore not easy for me to view the case from the standpoint which ought to be taken by a Judge of Appeal. I have, however, listened with care and attention to the arguments addressed to the Court by the counsel for the appellants, and I still remain personally satisfied with my judgment of November 3, 1883 ; but I desire to add a word or two regarding the interpretation which I have thought it right to put upon the certificate of the measure of land granted to Charlotte Dc Graft, as that certificate appears upon page 1G of Vol. I. of the Register of Town Lots, for according to my views of the case upon that interpretation depends the issue. The certificate begins by saying that an actual measure- ment has been made of a lot of land upon the Saltpond Boad on the one side, but it does not say that the lot upon or on the other at the back. It simply narrates that this second road is at the back of the lot. That, therefore, does not necessarily mean that the lot extends from road to road. FANTI CUSTOMARY LAWS. 141 Erora the description so far, it may so extend or may not. Next follows a statement of the actual measurement made of the lot ; and it is declared to be (in the direction with which we are concerned) 120 feet. Then, for the first time, we get something clear and distinct ; 120 feet never change. I allowed this clear and distinct measurement to control and regulate the previous general description, and in doing so I think I adhere to the ordinary canons of interpretation. In a word, I held that in that direction Charlotte De Graft had only a right of 120 feet, and through her father she trans- ferred her rights, which, through Mr. Grant, senior, and Enchey, came into the ownerships of the present plaintiffs. There is nothing to show that Mr. Grant got from Mr. De Graft anything more than his daughter possessed. If I am right, so far, the plaintiffs have only established a right to 120 feet from the Saltpond Eoad. Now, does the Saltpond Eoad end at the ditch or at a wall ? That is an important question, for if it ends at the wall, part of Mary Amissah's house stands upon the 120 feet, whereas if it ends at the ditch, the house is clear of the 120 feet. Under these circumstances, the first occupants (of whom we know anything) of the land in dispute are the defendants, and I think they ought to remain there till some one with a better title makes his appearance. The Chief Justice said that it was with considerable regret and great hesitation that he felt compelled to differ from the judgment just delivered, and from that of the Court below. Still, while recognizing the great pains and care which had been bestowed by the Court below upon this case, he could not bring himself to interpret the certificate No. 15 (upon the construction of which the whole case was admitted to turn) in the way that Court had interpreted it. He then read the certificate, and said that although the description of the land granted was not such as would have been employed by a lawyer, it appeared to him sufficiently clear. He could not but interpret the words as meaning that the plot of land lying between the Saltpond Eoad on the 142 FANTI CUSTOMARY LAWS. south and the Napoleon Eoad on the north was granted by the then Lieutenant-Governor on December 31, 1850, to the plaintiff's predecessor in title, Charlotte Dc G-raft. It is true that the certificate goes on to say that the land had been measured from north to south, and was certified to be 120 feet ; but that appeared to him to be merely a matter of description, which could not affect the operative portion of the grant which, if his construction was correct, gave the land between the two roads above mentioned to the grantee. He observed that the Court below had suggested that the roads may have been altered since the date of the grant, but there was not a tittle of evidence that he could see in support of such a suggestion. The Court below had also viewed the land, and found that by measuring, not from the Saltpond Koad, but from a point some 27 feet to the north of it, 120 feet was left between that point and the Napoleon Eoad, and that the land claimed in this action would thus be excluded. But why measure from that point ? Why not take a point 27 feet to the south of the Napoleon Eoad, which would still leave only 120 feet of land, but would include the land in question ? He considered that the probabilities were also in favour of this view. The defendants had, on first squatting on the land in question, asked permission to do so from the plaintiffs or their predecessors in title. Then, too, why should the original grantee have asked for 120 feet from any given point off the road instead of from the road itself? On the whole, and looking at the terms of the certifi- cate No. 15, he felt bound to dissent from the judgment of the Court below. Ordered : That the judgment of the Court below be reversed, and that the plaintiffs do recover possession of the land in dispute. Costs to be appellants'. FANTT CUSTOMARY LAWS. 143 CUDJOE QUAY v. AYWOODSUAH. July 28, 1871. Before Chalmers, Judicial Assessor. Sale — Trimma or Earnest-money — Ceremonies — Burthen of Proof. Per Chief Kofi Yammie : If a mother was purchased by her husband and she had children, except they belong entirely to their father's house, they would be entitled to succeed to his property. They are his slaves. He could not sell his own children except the son were unruly. If uncle pays money for niece, he pays as one of same house, and the child on whose account the money is paid lives in the house. "When I say on account of the child, I contemplate that the father's necessities would have (if he had not got the advance from the uncle) compelled him to pawn the child to a stranger. The child would be a pawn, so that it might be redeemed whenever money could be raised ; or if not, then would continue living in the house. If the brother who advanced the money should predecease the borrower, the child comes back into its father's hands, through his succession to his brother. Ee-interrogated, states that the child in his uncle's hands would be a slave. Ee-interrogated — white man's palaver is very difficult, — states that the child would be pawn to his uncle. A man cannot owe a debt to himself. When a mother belonged to another family, and you received the mother for money, the son has nowhere to go to, is your property entirely. Brothers, if of different mothers, would be of different family ; if of same mother, of same family. Brothers who were of different family, would not succeed to each other. Judgment. The claim of the plaintiff to hold Adjuah Aywoodsuah and her relatives as slaves depends for its validity on the absolute sale of Aywoodsuah to Quamin Arhin ; it lies on the plaintiff to prove this, and without it he has no case. 144 FANTI CUSTOMARY LAWS. His proof is dependent on the statement made by the mother of the witness Kofi Arhin (who is now dead). That witness- certainly alleges that the information of his mother was that an absolute sale had taken place; but no accompanying circumstances are stated, such as the payment of earnest, or of the ceremonies denoting sale. Moreover, an absolute sale is improbable ; if the advance had been received from a stranger, it is much more likely that the father would have pawned the child than sold it absolutely, especially for the compara- tively small sum of 1 oz. 2 ackies ; and from the evidence of Chief Yammie, before whom the case formerly came, it does not seem that the fact of the sale was at that time stated to him. His decision seems to have been based on the fact (that) merely that money was paid by Quamin Ahin on account of the child, coupled with an assumption that on being transferred to him it passed into a different family from its father's. But this last was obviously a mistaken supposition, as appears from Quacoe Ahin (as is stated by both parties) having succeeded to the property of Quamin Ahin on his death. I consider, on the whole, that the burden of proof has not been satisfied, and I must dismiss the claim to hold the defendant as a slave. Judgment is therefore for defendant. JOHN HALM v. EEBECCA HUGHES* November 15, 17, and 19, 1869. Before Chalmers, Judicial Assessor. Interpleader — Family Property — Gift. To show cause why you shall not be ordered by the said Court to give up possession of the house known as Bosoo's house, seized and taken possession of by the Bailiff Minew, • From the evidence it appears that Mr. Hughes bought from Thompson I5osoo's house, which was then in possession of his nephew, Mr. Thompson, by right of inheritance. Hughes did not take possession, hut gave it to FANTI CUSTOMARY LAWS. 145 by virtue of a writ of fi.fa., issued from the said Court in Ec Hughes v. Halm at your instance, the said house being the property of the said plaintiff and his said brothers and sisters, to wit, Lucy Halm, John Holdbrook, Thomas Hughes, Josiah Martin, Elizabeth Hughes, William De Graft, and the children of John and Lucy Halm. November 19, 18G9. Chiefs : 1. A family house is when a person had an an- cestor and that ancestor died, he inherited the property and the ancestor's house, such house is called family house. 2. A house would also be called a family house if it was built from the proceeds of inherited property. 3. A family house descends to the heirs in succession ; the succession is by the mother's side. 4. Owner is not at liberty to sell family house. 5. The next succeeding members of the family would oppose him, and if he persevered, would turn him off the possession, saying, " you are likely to ruin this house." 6. A person who has not inherited, however rich he may be, cannot constitute his house a family house. 7. If a family house should be sold to a stranger it would cease to have the qualities. 8. Under some circumstances a brother might be bound to provide a married sister with a house, i.e. if she and her husband were poor and he had means, and also to keep it in repair. 9. Such a house would be considered a family house. The sister would leave children who must inherit the house. The sister could not sell the house. 10. This form would be used in making over such a house. The donor must say : " I dash this, or give it to you." his married sister, Mrs. Halm, who took possession with her children, ami made such repairs as were necessary. Mr. Hughes, the donor, spoke to the donee, his sister, about her quarrels with his wife and children ; told her, " I do not like it — there is that house for you," pointing towards Bosoo's house. Donor did not mention the children. L 146 FANTI CUST0MA11Y LAWS. 11. When a house is presented to a sister, it belongs also to the children and descendants. (This in answer to question, if it is necessary in the gift to make express mention of the children.) 12. If the sister is not poor, and the brother, nevertheless, gives her a house, that also would be a family house. 13. Could the house be seized for the sister's debts ? When a brother made a present of a house to his sister, knowing that she had children, but when there was debt in- curred by the family or debt incurred by the sister, it would not follow that the debt should be paid, and she must consult with the children : " there is this debt which I have incurred, let us consult how we can contribute towards its payment." If the family could contribute, well and good. If they did not, and the mother proposes to sell the house, the house would be sold. 14. But if the children did not consent? Then the mother could sell the house. 15. If children did not consent to their mother's making away with the house, they must pay the debt, or work for it. 16. If neither mother nor children were willing to sell the house, what would the creditor do ? The mother and children must pay the debt.* 17. If house is not occupied, could the creditor take possession for his debt without consent of the mother and children ? The creditor could not. Judgment. November 19, 1869. Find that the house claimed and known as Bosoo's house, was constituted a " family house " to Mrs. Lucy Halm and her family. * Creditor could originally in such a case put the debtor and her children in logs, panyarr any of them or their family till debt Is paid, or sit dharna. — Ed. FANTI CUSTOMARY LAWS. 147 That such house is not liable to execution for debt. Therefore find for the plaintiff' in this summons. Order the execution to be withdrawn. SAMUEL TOKOO v. IvWOW ASIMA. - January 2G, 1870. Defore Chalmers, Judicial Assessor. Interpleader — Family House —Debt. Per Samnel Christian : The house being a family house, it would not be seized for debt. Whole family must concur in sale. The present members of the family may agree to put away the house. When a man gives his whole property for his debt, I understand it to mean his own — not family property. January 28, 1870. Chiefs : It is always the case, when a member of a family has a debt and the debt is known to the whole family, and they all consent and speak on behalf of the debtor and give security for the debt, it would become necessary for the family to part with present. The family are not responsible, having made no agreement to be so. The defendant should have ascertained clearly from plaintiff what the property consisted of, whether a part of it was family property. If he understood plaintiff' to mean that the house was part of the property given in security, he would not attach it without intimation to the family and their consent. Failing to do this, it is not to be understood that the family house was included. The land or the house in question is known as a family house. There is no division; it is all one. It could not p>ass for the debt of one member. 148 FANTI CUSTOMARY LAWS. MARY BARNES v. CHIEF QUASSIE ATTA. July 17, 1871. Before D. P. Chalmers, Judicial Assessor. Property attached to Eyua (stool) — Debt of Deceased Chief —Liability of h is Fa milij — A liena t to / 1 . The claim of the plaintiff is that the land claimed by her- was conveyed to her late husband by Kofi Koomah, in satisfaction of a debt due first by Quacoe Atta, afterwards by Quacoe Eunoah, who had both been occupants of the stool now held by Chief Atta. The facts stated on behalf of the plaintiff (defendant ?) are that Quacoe Attah, whilst King of Cape Coast, owed a debt to Mr. and Mrs. Barnes; that Quacoe Eunoah succeeded him, undertook his debt, and also contracted some further debt of his own ; that on the death of Eunoah, Kofi Koomah,, who was his uncle, was applied to for payment, and having no money at command to meet the claim, gave this land, which was accepted by Mr. and Mrs. Barnes as equivalent. There is a discrepancy in the statements of plaintiff and defen- dant in regard to the acquisition of the land ; plaintiff says- it was purchased by Quacoe Atta and descended to Ennoah ; defendant, that it was purchased by Eunoah ; and this view is best borne out by the evidence, although not of material bearing on the case at issue. In order to the validity of the transfer, it is necessary that Kofi Koomah should have been in a position in which he had power to put away the property belonging to the stool. He was not regularly in occupation of it, and there is some dispute whether he was fully, or to what extent, in charge of its affairs at the time ; but assuming that he was, / apprehend thai, not even the regular occupant could alienate 'property without some concurrence by the people of the stool who have an interest in it, and are usuct/ly consulted on stick a matter. Here there was not only no concurrence, but there PANTI CUSTOMARY LAWS. is evidence of dissent. The presents which inferred indebted- ness were not accepted, but expressly refused by the people, •on which Kofi Koomah took upon himself to hand over the land on his own authority, in so doing, no doubt intending the best interests of the stool. Yet, I apprehend it was not an act binding on the stool, so as to give a valid title to the land that is now in the defendant as occupant of the stool. He will, however, be responsible for the debt of his prede- cessor on its amount being proved. Judgment for the defendant. QTJAMINA AWOllTCHIE v. CUDJOE ESSHOX. March 7, 1872. Before Chalmers, Judicial Assessor. Trespass on Land — Safe of Family Prop-rty — Eescission of Sale. Chiefs : When a man is head of the family and he has to sell land in case of debt having arisen in the family, is it necessary that he inform the members of the family and get their concurrence before the land could be sold ? If the purchaser know that the land he had to purchase was a family land and the man from whom he was purchasing it was the head of that family, he would not make the purchase from the head without requesting him to get the concurrence of his family. And if he paid his money to the head of the family without this, his money was considered lost, in respect he was fully aware that the land was family land. If he did not know it, it would be that he was a stranger, •and he would get back his money from the head of the family. Interrogated : Whether any limit of time within which family must interpose if they desire to set aside a sale ? There is no limitation of time — even after lapse of time. 150 FANTI CUSTOMARY LAWS. Interrogated : How consent should be signified ? It would be necessary for all the members of the family to meet and discuss, and if there were land to be sold, all the members would meet and get strangers to be witnesses, and family would concur for payment of the debt : as many members as could be got should represent the family. When such meeting and discussion has once been had, it remains- good ; it would be proved by the strangers who were witnesses. Judgment. Sale set aside, and Quamin Tawiah, who sold the land, ordered to restore to Quamina Awortchic 5 ozs., the amount he had received. FULL COURT REPORT. QUASS1E BAYAIDEE v. QUAMINA MENSAH. March 27, 1.878. Sale of Family Land — Impeachable Title — Possession — Improvements. The plaintiff here seeks to recover from the defendant a piece of land called " Odoomassie," the possession of which, he says, the defendant has unlawfully deprived him. The judgment of the Court below was, that the plaintiff should recover the land, against which judgment the present appeal is brought. It appears from the evidence that Bdyaidee purchased the land from Kofi Aigin for the price of 1 J, preguans ; that Kofi Aigin was the owner of the land ; that this purchase took place fourteen years ago, as plaintiff states, and in any ease, a very considerable number of years ago; that upon purchase Bayaidee entered into possession of the land and cultivated it, and that his possession was not disturbed until seven months before he brought the suit in September last. The ground on which the appeal M as maintained was that the land was family land; that Kofi Aigin, although the occupant of the stool, could not make a valid sale of the laud FANTI CUSTOMARY LAWS. 151 alone, and that one of the members of the family, Eccua Assabill, protested against the sale at the time it was being effected. Now, although it may be, and we believe it is the law, that the concurrence of the members of the family ought to be given in order to constitute an unimpeachable sale of family land, the sale is not in itself void, but is capable of being opened up at the instance of the family, provided they avail themselves of their right timeously and under circumstances in which, upon the rescinding of the bargain, the purchaser can be fully restored to the position in which he stood before the sale. This is obviously not the case, whereas here the purchaser has possessed for a series of years an undisputed ownership — has cultivated and improved the land, and has established a home upon it. We are of opinion that whatever right of impeaching the sale the family possessed is barred by their acquiescence and the plaintiffs continued course of undisturbed possession. And we order that the judgment of the Court that he should recover his land be affirmed, with costs of this appeal. ABBEOBAH v. CHIBBOO. January 26, 1883. Before Quayle Jones, Acting Judge. Land — Sale by Slave — Master's Consent necessary. Per Bobertson : A slave has no power to sell his master's land without his master's permission. A slave does not inherit land from his ancestors. If a man sold land to bury his mother, that would show he was a freeman, because if he were (not), the master would have to defray the funeral expenses. The leave a slave must have to sell such land is not a mere consent, but a formal consent given in the presence of and with the approval of his master's family. Judgment for defendant. 152 FANTl CUSTOMAIiY LAWS. DADDIE v. QUEATEABAH. February 22, 1884 Coram, HECTOR MACLEOD, J. A member of a family who, without the knowledge and consent of the other members, encumbers the family property, forfeits thereby any right or interest which he or she may have had in it. Calling on defendant to show cause why she should not be ordered by the Court to deliver to plaintiffs their family houses, which she had, unknown to the plaintiffs, mort- gaged to one J. W. Sey, and which were advertised to be sold. Defendant admitted that, unknown to plaintiffs, she mort- gaged the three houses to Mr. Sey ; she also admitted they were family property, that she had no right thus to mortgage the houses, and that she was not one of the elderly members of the family. Daddie, plaintiff, said as follows : I knew nothing of the debt which defendant incurred to Sey. I am not aware that any member of our family knew of the debt. The first intimation which I had of this debt or mortgage was the notice of sale posted in the houses. When I asked Queateahah about it, she told me she had incurred a debt to Sey, who married her daughter, and that she hoped to be dealt easily with. She said she had gone to Sey with her sister Fosuah and her daughter, Sey's wife. There was no family debt; it was Queateahah' a private debt, contracted without our knowledge. Queateahah is a member of our family, and if there had been any family debt, we would all have contributed to its payment. She told us she had incurred this debt about four years ago. We have had no interview with Mr. Sey about this, because it was not our palaver. Ambah Amissah, who is sick, is the present head of our family, and she was appointed our head. Defendant is not the head of our family, neither is she second in the FANTI CUSTOMARY LAWS. 153 family. Ganbah is next to Amissah. Our family knew nothing about the mortgage. We knew nothing about her doing so until we saw the notices for sale. I represent the family in this action. Fosuah is defendant's younger sister. Chiefs Essel and Kuow Ivuta, on oath, said : In conse- quence of the action of defendant in mortgaging to Sey those three houses without the knowledge of the heads * of the family, which she had no right to do, that she had forfeited thereby any right in the houses which, as a member of the family, she may formerly have had. AIacleod, J. : I adopt the opinion of the Chiefs, and declare that, in consequence of the conduct of defendant, she has forfeited any right in the three houses, which as a member of the family she may formerly have had. In making the declaration, I think I am substantially satisfying the ends of justice, and though my judgment in this action cannot directly affect the rights of Sey under his mortgage ; still, it may enable him to judge whether, in view of this judgment, he is likely to find a purchaser of the rights of the defendant in those three houses. ASSEAIDU v. DADZ1E. Xovember 5, 1890. Before Hutchinson, C.J. Sale — Family Property — Absent Member. This case has been reheard and evidence taken on the point raised in the affidavits filed by the plaintiff in this application for a rehearing, viz. that Chief Sackey's view of the native law applicable to the case was wrong. I have always found it hard to discover what is the .native law upon any point whatsoever. And the reason is * Elilers. 154 FANTI CUSTOMARY LAWS. because there does not exist any native law, which is the same throughout the colony or over any considerable area. It would be strange if it were otherwise, considering the few opportunities that were until recent times of friendly communications between distant tribes, the absence of Supreme Court of Appeal to lay down the law for inferior Courts or to enact new law. The present question is as to the circumstances under which " family land " can be absolutely sold or otherwise alienated. Cases raising this question have probably not often come before the native Court ; for until lately there was (so I have often heard) no market for land, and it was rarely sold or given away absolutely. This is not surprising, therefore, that answers of the chiefs who gave evidence in this case were contradictory and disclosed no principle. They were, in fact, so inconsistent, that I cannot place any reliance on them. There is a definition of family land given by assessors in the case of Halm v. Hughes on November 19, 1869 (" Civil and Criminal Record Magistrates' Court," p. 46 1), and that case and Awortchie v. Esshon, on March 6, 1872 (C. Magis- trate's Book 1, p. 50), and Beyaidee v. Mensah, on March 27, 1878 (vol. 1, p. 535), contain some information as to the circumstances under which family land can be alienated. The conclusion that I come to is, that it can be alienated by way either of sale or of gift by the heads of the family ; and that, if all the heads concur, the other members of the family, including children and unborn persons, are bound by the alienation. I asked one of the chiefs who gave evidence in this case, whether one of the headmen who was temporarily insane would be bound; he replied "Yes;" and 1 think the answer, only a guess, was right. Then, is a member who is absent from the country, bound ? I can see no principle upon which infants and lunatics cftn be bound, and yet persons living abroad are not bound ; upon which a man who, without fault of his own, is temporarily incapacitated from concurring can be bound, and FANTI CUSTOMARY LAWS. 155 not a man who voluntarily disables himself by going and living abroad. The case of Beyaidee v. Mensah, decided by the Court of Appeal in 1878, is important, and I think concludes this case. There, the head of the family sold family land without the concurrence of the other members of the family and in spite of the protests of one of them to the seller and the buyer. After fourteen years' possession by the buyer, the family tried to eject him ; but the Court decided in his favour on the following grounds : " Now, although it may be, and we believe is, necessary . . . established a home upon it" (quoting from p. 536). In the present case, the land is given absolutely by Ochrimpi, the head of the family, to Otua ; and it was afterwards sold with the knowledge of all the members of the family then living in the country. Now one member, who has been living in Salaga for many years, seeks to set the gift and the sale aside. Even supposing that he could have succeeded if he had brought his action within a reasonable time, I am of opinion that he cannot do so now. COBBOLD v. QUACOE T A WE I A. March 18, 184G. Pay men t — Ba Her. The defendant in this case having brought the amount of his debt, six ackies, in goods, to pay the plaintiff— a mode of payment often adopted by parties in this country, and in some cases (and under certain circumstances) sanctioned by the authorities— they were sent over to the plaintiff for the pur- pose of knowing whether he would accept them. They were shortly brought back with a message to the effect that he would see before he would accept them, whereupon the goods were ordered to be lodged in the fort and the defendant immediately released. 156 FANTI CUSTOMARY LAWS. INHERITANCE. JOHN AMAMOO AND OTHERS r. JOHN CLEMENT. April 24, 1871. Before Chalmers, Judicial Assessor. Right of Children to . But the man who drafted that Ordin- ance was a lawyer, and 1 have no reason to suppose that when he spoke of " customs " he meant anything more or less than that word imparts to legal ears. If my opinion be correct that this is no custom now — because we know the dale of the beginning of it — it was no custom when the Ordinance was drafted some eight years- ago. FANTI CUSTOMARY LAWS. 163 It may be that the old custom spoken to by Quansah has fallen into disuse, and that so there remains no means by •which a native can disinherit his nephews. I am not con- cerned with that ; but one thing does concern me, and that is, that the Courts should do all that is in their power to fix these fugitive will-o'-the-wisps called native customs, and transfer them to the records of the Court, rejecting all those which are alleged to be custom, but which do not bear the test to which I have subjected this one. Mr. Richards has put it on me that I am upholding one custom, that of the devolution of property to nephews, while I am refusing to uphold another. True, but I am not in- consistent; one is alleged to be a custom, and neither side has offered any evidence that it is not a valid custom — valid, that is to say, as a legal custom ; while with regard to the other, if I am right, Mr. Richards himself has shown it to be invalid — in short, no custom at all. I am of opinion that this appeal should be allowed, and that it be ordered — 1. That the decision of the Court below be reversed. 2. That the plaintiffs be permitted to enjoy the house in question together with the defendants as tenants in common, according to native law and custom, in every respect as though they had not been disinherited by the deceased P. B. Johnson. 3. That the plaintiffs be declared entitled to the personalty of the deceased P. B. Johnson. Judge MACLEOD. I do not find it necessary to give any opinion as to the meaning of the words " native custom," and I must not be understood as coinciding on that point with the Chief Justice. "Whether or not the plaintiffs were legally disowned by the deceased is to my mind a question for the Assessors, who are called in to assist the Court because they are supposed to be skilled in matters of native law. 164 FANTI CUSTOMAKY LAWS. They have given their opinion, and I see no reason why I should interfere with it. Judge SMALMAK Smith. I concur in the conclusion at which the Chief Justice has arrived, hut for somew hat different reasons. We must of course conclude that the native customs to which the Supreme Court Ordinance of 1876 requires us to give effect in the administration of the law of this colony, must he such as in the contemplation and according to the principles of English jurisprudence would he regarded as customs, that is to say, such as have existed in the colony from time immemorial, or " to which the memory of man runneth not to the contrary." It cannot, therefore, be con- tended that an observance or course of conduct which may have sprung up within the last fifty or sixty years, and which native chiefs choose to designate a custom, should have the effect of law in this colony, or should be, so to speak, crystallized into law by the action of the Courts of this colony. The intention of the Legislature was, in my judgment, to give the force of law to such customs of general and long- continued usage and observance as can be proved to have been in existence at the date of the Ordinance, and to have had at that date the essentials as well as the force of customs as by law established. Now, the right of a man to disinherit in his lifetime those who would otherwise be entitled to share in his property after death, is proved to exist as a custom to my satisfaction. The cutting of the " ekal " was a symbolic act which accompanied the act of disinheriting. I do not think, how- ever, that the cutting of the " ekal " was essential to the existence of the custom, which is based on the right of a man to disinherit in his lifetimelhose who would otherwise be entitled to succeed him, t Vnen therefore the cuttiiig of the "ekal" ceased to form apart of the ceremony^ The right ~t~