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M’Cathy, J. This is an appeal from a judgment of the Chief Commissioner’s Court, Ashanti, upholding a decision of the Asantehene’s “A” Court.
Land litigation between the Stools of Essumeja and Offoasi reached the Privy Council which decided the question of title to the land in dispute in favour of Essumeja. Sometime later the Chief of Essumeja invited the Chief of Offoasi to negotiate the terms on which subjects of the Offoasi Stool who were settled on the land would be allowed to remain in occupation of it. There being no response, the Essumejahene obtained from the Chief Commissioner’s Court a writ of possession which was duly executed, the Essumejahene being put in possession and the subjects of the Offoasi Stool being-ejected from the land. In consequence of this the plaintiff-respondent, one of the said subjects of the Offoasi Stool, brought an action in the Asantehene’s “A” Court against the Essumejahene, claiming recovery of possession of ten cocoa farms and a compound house on the land in question, or in the alternative damages for wrongful dispossession.
The main question in issue was whether, on the facts which were not in dispute, there was any native customary law disentitling the defendant from ousting the plaintiff from possession of his farms and house.
In delivering his opinion, prior to judgment, the Kyidomhene stated: “According to native customary law, the only remedy of the defendant was to notify the farmer-tenants on the land to come before him for tenancy agreements, and if they failed to appear or attend before him, he could sue them in a Court of competent jurisdiction to show cause why they farm on his Stool land and refuse to enter into tenancy agreement with him.
The other members of the Court agreed with the Kyidomhene, and judgment was given against the defendant, he being ordered to restore the “plaintiff’s properties” to him and enter into a tenancy agreement with him in respect thereof.”
At the hearing of his appeal before the Chief Commissioner’s Court the Essume- jahene does not appear to have disputed that, according to native custom, he ought to have given the Offoasi farmers settled on his land an opportunity to come to terms with him. His point was that he did through their Chief, and that it would have been against custom to have dealt directly with the farmers. He also contended that, as a Safohene of the Offoasihene, the plaintiff-respondent must have known of the offer. Further, he contended that the issue of the writ of possession concluded the matter.
The Chief Commissioner’s Court held that the Court below was expert on native custom, and that it saw no reason to reject its findings that notice was not f, given to the plaintiff-respondent according to custom, and that the defendant- appellant -should have negotiated with him even after the issue of the writ of possession.
We are of the same opinion.
The Privy-Council judgment merely defined the boundary between the two Stools. The position therefore was the same as in Kuma v. Kuma (1), in which case it was pointed out that, though a declaration of title was granted, this did not amount to an order for ejectment of persons occupying the land.
Nor-could a writ of possession issued against the Offoasihene bind the plaintiff- respondent, having regard to the custom as stated by the Native Court, if this can be taken as proved.
In the case of Kobina Angu v. Cudjoe Attah (2), Sir Arthur Channel in delivering the judgment of the Privy Council said: “The land law in the Gold Coast Colony is based on native customs. As is the case with all customary law, it has to be proved in the first instance by calling witnesses, acquainted with the native customs until the particular customs have, by frequent proof in the Courts, become so notorious that the Courts take judicial notice of them.”
This, of course, was intended to apply to what may be described as British Courts before which it is sought to prove a particular custom. There is no ground for extending its application to Native Courts of which the members are versed in their own native customary law, although there is nothing to prevent a from calling witnesses to prove an alleged custom. If the members of a Native Court are familiar with a custom it is certainly not obligatory upon it to require the custom to be proved through witnesses. This has been recognised by this Court in cases where questions of' native customary law have been referred to a Native Curt for its opinion thereon.
This disposes of the only points of substance which have been argued before us.
The appeal will therefore be dismissed with costs assessed at ÂŁ15 1s. 0d.
Appeal dismissed.