<p>M’Carthy, J. In this case the plaintiff, the ex-Omanhene of Winneba, claimed as against the Kyidomhene of the Effutu State for and on behalf of the persons responsible for electing and installing his successor as Omanhene, a declaration of title to a certain dwelling-house in Winneba, and an injunction.</p><p>The plaintiff became Omanhene in 1916, taking office in 1919. In 1937 he purchased the house in question, paying the last instalment of the purchase money in 1939. He resided in the house, but on moving to Accra in August, 1945, after he had been deposed, he left a cousin, J. F. Mensah, in charge. The defendant and those whom he represents ousted Mensah from the house, which they claim to be Stool property. The main issue in the case was whether the house is the private property of the plaintiff or the public property of the Stool.</p><p>According to the defence, the house was bought with Stool funds, and even if it were otherwise, it would become Stool property as it was acquired by the plaintiff while on the Stool.</p><p>In Antu v. Buedu (1), Gardiner Smith, J., in the Divisional Court accepted as a general principle of native customary law “that property acquired by a Chief while on the Stool belongs to the Stool”. He similarly adopted the further principle “that, unless a Chief's private property is earmarked when he ascends the Stool, it becomes mixed with the Stool property, and cannot be claimed by him on his deposition “. These findings were confirmed by the Full Court.</p><p>The rule that property acquired by a Chief while on the Stool becomes the property of the Stool is subject to qualification, as is shown in Yamuah IV v. Sekyi (2). The effect of the judgment of this Court in that case is succinctly stated in the following passage;-</p><p>“Not a Stool holder who has kept his self-acquired property 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 to a member of the family vide Sarbah's Fanti Customary Laws, page 99-and so is an exception to the rule laid down in Koft Antu v. Ohene Kweku Buedu quoted above.”</p><p>It may be assumed that where the Stool holder is free to dispose of such property he can retain it as his private property should he leave the Stool on deposition or abdication.</p><p>The case of Yamuah v. Sekyi (2) does not appear to have been noticed in the Court below in the present case. But one learns from the judgment that after hearing the evidence, the learned Judge consulted the Assessor on the relevant native customary law, and accepted his opinion which was to the effect that the Omanhene can never acquire private property while he is on the Stool unless he first obtains the consent of the Oman (State).</p><p>We would mention in passing that the result of any consultation by a Land Judge with an Assessor on a material point of customary law should be announced in open Court before judgment.</p><p>In the Court below, Dr. Danquah. Counsel for the plaintiff, sought to take the case out of the general rule;-</p><p>(a) by contending that the provision in the Effutu (Winneba) Bye-Laws (No. 12 of 1934), made by the State Council and approved by the Governor-in-Council, for the payment to the Omanhene of personal emoluments amounted to recognition by the State Council of the Omanhene's right to hold private property; and (b) by proving that the house was paid for by the plaintiff from his personal funds (including moneys paid to him from state funds as personal emoluments).</p><p>The learned trial Judge did not deal in his judgment specifically with the effect of the Bye-Laws. He found the plaintiff-appellant an unreliable witness, and disbelieves his evidence that at the time of the purchase he had informed some of the principal members of the Stool of the transaction. He held that it was immaterial to consider what particular moneys were appropriated to the purchase of the house, as the requirements of customary law had. not been complied with. He also added that he disbelieved the plaintiff's evidence as to the sources of the money paid by him for the house. He therefore held the house to be Stool property.</p><p>In this Court Dr. Danquah mainly relied on his argument that the Bye-Laws had abrogated the native customary law.</p><p>With this submission we are unable to agree. Admittedly the benefit of native customary law could not be claimed by the defendant under section 74 of the Courts Ordinance, if it were found to be “incompatible either directly or by necessary implication with any Ordinance (which term includes bye-laws) for the time being in force”. But there is nothing in the Bye-Laws in question to indicate an intention to abolish a part of native customary law which has not been clearly established, but which is also obviously of considerable importance. Even if it were the intention that moneys paid to the Omanhene as personal emoluments should become his private property, the Bye-Laws provided no safeguard against State funds coming under his control, and further it must have been apparent that other funds might come into his hands, as happened in this case, for which the Stool would ultimately be responsible, if they were maladministered by the Omanhene. It would be unreasonable to read into the Bye-Laws the intention that it should no longer be necessary for the Omanhene, claiming to have acquired private property while on the Stool, to prove that he has done so in accordance with native customary law.</p><p>It seems to us that where a State Treasury was set up under the now repealed Native Administration Ordinance or exists under the Native Administration Treasuries Ordinance, 1939, the question whether any property is the private property of the Omanhene is a question of fact to be determined upon the evidence. Thus, if it can be proved that the Oman have by words or conduct indicated that they regard the Omanhene's personal emoluments as his private property, and that the property in question has been paid for by the Omanhene out of such emoluments, then his title to the property would be established. But the onus of proof always lies on him.</p><p>It follows from the above that in our view it was incumbent on the appellant to show that the question of ownership of the house could be brought within the exception stated in Yamuah v. Sekyi (2) to the general rule of customary law above-mentioned. On the findings upon the evidence stated by the trial Judge, it is clear that the appellant failed in this. We are of opinion that the findings of fact by the learned Judge are reasonable, and we are in full agreement with the conclusion which he finally reached.</p><p>The appeal will be dismissed, with costs assessed at £29 13s. 0d. </p><p>Appeal dismissed.</p>